Hostworks Standard Customer Terms
These are the Hostworks Standard Customer Terms referred to in the Proposal presented to the Client. By accepting and signing the Proposal, the Client agrees to be bound by these terms and the other components of the Agreement (as defined in clause 1.1 below).
1. Structure and overview
1.1 The terms and conditions under which Hostworks will provide, and the Client will acquire, the Services are set out in the following documents:
1.1.1 the Service Terms;
1.1.2 these Standard Terms
1.1.3 the Acceptable Use Policy; and
1.1.4 the Proposal
(together, the Agreement).
1.2 The order of precedence of the documents making up the Agreement is as set out in clause 1.1. Unless the contrary intention is expressly stated in the relevant document then, in the event of any inconsistency or conflict, the document higher in the list will prevail and the conflicting provision in the document lower in the list will be read down or severed, to the extent necessary to resolve the conflict.
2.1 This Agreement commences on the Commencement Date and, unless terminated earlier by either party in accordance with its terms, continues until the end of the period specified in the Proposal, or if no such period is specified, until Hostworks completes the provision of the Services in accordance with the Proposal (Term).
2.2 The parties may vary or extend the Term of this Agreement at any time by agreement in writing.
3.1 Subject to payment of the Fees by the Client in accordance with the terms and conditions of this Agreement, Hostworks will provide the Services to the Client:
3.1.1 in accordance with the terms and conditions of this Agreement, including the applicable Service Terms; and
3.1.2 subject to clause 3.3, so as to meet or exceed the applicable Service Levels (if any).
3.2 Hostworks must provide the Services to the Client, and perform its other obligations under this Agreement:
3.2.1 in a timely, efficient, proper and workmanlike manner, using reasonable care, skill and diligence;
3.2.2 using suitably skilled and experienced Personnel; and
3.2.3 in compliance with any Laws applicable to Hostworks in relation to its provision of the Services.
3.3 The parties agree that any rebates or service credits paid or payable in respect of a failure to meet any Service Level (as specified or referred to in the Proposal or otherwise agreed by the parties):
3.3.1 are a genuine and reasonable pre-estimate of the reduction in value of the Services that would arise from Hostworks’ failure to meet the applicable Service Level; and
3.3.2 are the Client’s sole and exclusive remedy, and Hostworks’ sole and exclusive liability, in relation to that failure to meet the applicable Service Level.
3.4 The Client acknowledges that:
3.4.1 Hostworks relies on a range of third-party systems, applications, tools, technologies and services (Third Party Tools) in order to deliver the Services in accordance with this Agreement; and
3.4.2 from time to time, there may be changes to the Third Party Tools, or certain Third Party Tools may cease to be provided or supported by the relevant third-party owners, with the result in each case that Hostworks may make changes to the manner in which the Services are provided to the Client (Required Service Changes).
3.5 Where Hostworks makes any Required Service Change:
3.5.1 it will give the Client as much prior notice as is reasonably practicable in the circumstances;
3.5.2 it will use all reasonable endeavours to maintain the same features, functionality and performance of the Services following the Required Service Change; and
3.5.3 it will provide reasonable assistance to enable the Client to modify the Client Applications and/or Client Content as necessary to accommodate the Required Service Change.
3.6 If following a Required Service Change:
3.6.1 Hostworks is unable to maintain the same features, functionality and performance of the Services; or
3.6.2 the Client is unable (despite its best efforts) to modify the Client Applications and/or Client Content to accommodate the Required Service Change, the Client may cancel the affected Services, without penalty, by giving Hostworks at least 30 days’ written notice.
3.7 The Client may request a change to the Services in accordance with clause 6.
4. Service limitations and disclaimers
4.1 Except as specified otherwise in this Agreement, the Services are provided “as is”, and Hostworks does not represent, warrant or guarantee that they will be:
4.1.1 error, defect or “bug” free;
4.1.2 free from interruption or intrusion;
4.1.3 continuously available, accurate or secure; or
4.1.4 suitable for the Client’s business objectives or other purposes.
4.2 Hostworks will not be responsible or liable for:
4.2.1 the development, functionality or performance of the Client Applications, or the compatibility and interoperability of the Services with the Client Applications or the Client’s Systems, in each case except as specified otherwise in the Proposal;
4.2.2 without limiting the generality of clause 4.2.1, any Client Application-related issues of which Hostworks was not aware, or could not reasonably have been expected to be aware, at the time it prepared the Proposal;
4.2.3 the content, operation, maintenance, backing-up, security and use of the Client Applications or the Client Content, except as specified otherwise in the Proposal;
4.2.4 any claims or legal issues related to or arising out of the Client Applications or Client Content;
4.2.5 the acts and omissions of End Users;
4.2.6 maintaining the currency of, and ensuring the Client’s ongoing compliance with, any third-party software licences, maintenance contracts and other agreements;
4.2.7 any interrupted availability or degraded performance of Client Applications or Client Content attributable to the Client:
(a) failing to adopt Hostworks’ recommendations for changes or upgrades reasonably required to the Services due to material changes in the Client’s requirements (for example because of increased traffic, usage or capacity requirements); or
(b) using unsupported or out-of-date software;
4.2.8 providing support to End Users, except as specified otherwise in the Proposal; or
4.2.9 the Client’s compliance with applicable Laws, including the Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth).
4.3 The Client acknowledges that the tools made available through MyHostworks, or through any other service management interfaces provided by Hostworks from time to time (together, the Management Tools), provide the Client with a high degree of control over the configuration and management of the Services. The Client agrees that it is solely responsible and liable for:
4.3.1 any and all consequences that result from the Client’s or any End User’s use of the Management Tools, including any disruption to, or failure or degradation of, the Services or any Client Applications, any corruption or loss of Client Content, and any other losses, damages, costs or expenses suffered or incurred as a result of any acts or omissions of the Client or any End User in the course of using the Management Tools; and
4.3.2 any additional fees or charges levied by Hostworks for any steps taken to remedy any faults or damage caused by the Client’s or any End User’s use of the Management Tools.
4.4 The Client acknowledges that the Internet and activities conducted online are, by their nature, not secure. Except as provided otherwise in the Proposal, the Client is responsible for providing all necessary security and privacy features and procedures to protect its Systems and End Users.
4.5 The Client must not use the Services in any high risk situations or for high risk purposes, such as situations where failure or fault of the Services could harm or threaten the life, health or safety of any individual, or public health or safety.
5. The Client’s obligations
The Client must:
5.1 take full responsibility for the items or matters referred to in clause 4.2;
5.2 maintain adequate operational and technical safeguards and security procedures in relation to the Client’s (and End Users’) use of the Services, Client Applications and Client Content;
5.3 comply with any technical documentation, user manuals or other documentation provided by Hostworks in relation to the Services;
5.4 comply, and ensure that all End Users comply, with the Acceptable Use Policy;
5.5 control access to and use of logins and passwords by End Users to ensure their compliance with this Agreement;
5.6 ensure all information the Client provides to Hostworks remains accurate, current and complete;
5.7 comply with all Laws applicable to its use of the Services, the Client Applications and the Client Content; and
5.8 provide reasonable assistance in relation to Hostworks’ investigation of Service interruptions and outages, security issues and breaches of the Agreement.
6. Changes to the Services
If either party notifies the other party that it wishes to make a change to the Services (other than a change of the kind contemplated by clause 3.4), or add to them, then:
6.1 Hostworks will prepare a proposal, setting out how it would implement the change, the costs and timing of implementation and any impact on other aspects of the Services and this Agreement;
6.2 the parties will negotiate, in good faith, the terms of Hostworks’ proposal; and
6.3 upon the parties reaching agreement on, and executing a document outlining, the details of the change, Hostworks will implement the change.
7. Fees and invoicing
7.1 Hostworks may from time to time issue invoices to the Client in respect of the Fees and its Expenses, including as may be further detailed in the Proposal.
7.2 Unless specified otherwise in the Proposal, the Client must pay each invoice issued by Hostworks within thirty (30) days of the date of the relevant invoice.
7.3 Hostworks may charge the Client interest on any amounts unpaid as at the due date, at an annual rate equal to seven per cent (7%) above the official cash rate of the Reserve Bank of Australia on the date the invoice was issued.
7.4 All amounts payable under or in connection with this Agreement are exclusive of GST and any other taxes, which, if applicable, shall be payable by the Client in addition to the Fees at the rate prevailing at the time.
8. Suspension of the Services
8.1 Without limiting any of Hostworks’ other rights or remedies, whether under this Agreement or otherwise, Hostworks may suspend or restrict any or all of the Services at any time, without liability to Hostworks, if:
8.1.1 it is necessary to undertake emergency maintenance of Hostworks’ Systems or scheduled maintenance of which the Client has been provided reasonable advance notice;
8.1.2 required to do so by Law;
8.1.3 either party is affected by a Force Majeure Event;
8.1.4 the Client is affected by an Insolvency Event;
8.1.5 the Client has breached the terms of this Agreement, including any provision of the Acceptable Use Policy, and that breach is incapable of remedy or has not been promptly remedied by the Client after receiving a notice from Hostworks requiring it to do so; or
8.1.6 Hostworks reasonably believes that:
(a) the use of the Services by the Client or an End User poses a security risk to, or may adversely affect, the Services, either party’s Systems, or any of Hostworks’ other customers;
(b) the Client, or an End User, is using the Services in a fraudulent, unlawful, threatening or harassing manner; or
(c) the Client’s, or an End User’s, continued use of the Services may expose the Client, Hostworks or any third party to liability.
8.2 Where practicable, Hostworks will endeavour to give the Client reasonable advance notice of any suspension of the services under clause 8.1, unless it reasonably believes that the circumstances require otherwise (including, for example, in the event of an emergency or serious breach or misconduct by the Client or an End User).
9. Termination for default
9.1 Either party may terminate this Agreement by notice in writing to the other party where the other party:
9.1.1 has committed a material breach that is not capable of remedy;
9.1.2 has committed a material breach that is capable of remedy, and has failed to remedy that breach within thirty (30) days after receiving notice in writing specifying the breach and requiring the breach to be remedied. For the purposes of this clause, a breach by the Client of clause 5, 10 or 17.1 is deemed to be a material breach; or
9.1.3 becomes subject to an Insolvency Event.
9.2 In addition to and without limiting its rights under clause 9.1, Hostworks may terminate this Agreement by notice in writing to the Client if Hostworks becomes entitled to suspend the Services on any of the grounds set out in clauses 8.1.2 or 8.1.6, provided that, if Hostworks is seeking to terminate the Agreement on the grounds set out at clause 8.1.6 and those grounds are capable of remedy, Hostworks must first provide the Client with a notice specifying the grounds and giving the Client a reasonable opportunity to remedy them.
9.3 Upon termination of the Services:
9.3.1 subject to clause 9.4, Hostworks will provide reasonable assistance and information requested by the Client in relation to the transition of the Services to a successor supplier;
9.3.2 unless expressly stated otherwise in the Agreement, all the Client’s rights under the Agreement immediately terminate and the Client must cease using the Services other than in consultation with Hostworks for transition-related activities;
9.3.3 if requested by Hostworks, the Client must promptly return to Hostworks or (if directed by Hostworks) destroy, any of Hostworks’ Confidential Information, or any documents or other materials that record any of the Services IP, which are in the possession, custody or control of the Client; and
9.3.4 the Client remains responsible for any unpaid Fees, Expenses or other charges and must promptly pay these to Hostworks.
9.4 Any post-termination services or assistance from Hostworks will be by mutual agreement between the parties. Hostworks will charge the Client for its provision of such services.
10.1 Subject to clauses 10.2 and 10.3, each party must:
10.1.1 keep confidential and not disclose to any person the other party’s Confidential Information; and
10.1.2 not use or permit the use of the other party’s Confidential Information for any purposes other than those contemplated by this Agreement.
10.2 The obligations of confidentiality in this clause 10 do not apply to Confidential Information:
10.2.1 that is in the public domain otherwise than as a result of a breach of this Agreement or other obligation of confidence; or
10.2.2 that is already known, or rightfully received or independently developed, by the recipient free of any obligation of confidence.
10.3 Each party may disclose Confidential Information which it would otherwise be prevented from disclosing pursuant to clause 10.1:
10.3.1 if, but only to the extent, it can demonstrate that such disclosure is required by applicable Law or by any securities exchange or Regulator having jurisdiction over it, wherever situated, and provided that any such disclosure must not be made without prior consultation with the party from whom the Confidential Information was obtained and must be made so as to minimise any such disclosure;
10.3.2 with the prior written consent of the other party; or
10.3.3 to its officers, agents, professional advisers (including lawyers), employees, contractors, sub-contractors and insurers for the purposes of exercising rights or performing obligations under this Agreement.
10.4 Where a party discloses Confidential Information pursuant to clause 10.3, that party must procure that the recipient of the Confidential Information:
10.4.1 agrees to maintain the confidentiality of the Confidential Information on substantially similar terms to those set out in this clause 10; and
10.4.2 if requested by the other party, executes a confidentiality deed on such terms.
Each party must, in connection with the Services and the performance of its obligations under this Agreement:
11.1 comply with the Privacy Act 1988 (Cth); and
11.2 ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing, accidental loss or destruction of, or damage to, Personal Information.
12. Services IP and Client Materials
12.1 As between the parties, all Intellectual Property Rights subsisting in, relating to or arising out of the Services (Services IP), are owned by and vest in Hostworks or its licensors. The Client acknowledges and agrees that this Agreement does not transfer any right, title or interest in any Services IP to the Client or any third party.
12.2 Hostworks warrants and represents that it has the right to use and provide the Services IP, and that the Client’s use of the Services IP in connection with the Services, and in accordance with this Agreement, will not infringe the Intellectual Property Rights of any third party.
12.3 If any third party makes a claim, or in Hostworks’ reasonable opinion is likely to make a claim, that any aspect of the Services infringes the Intellectual Property Rights of any third party, Hostworks may, at its option:
12.3.1 modify or replace that aspect of the Services;
12.3.2 procure a licence for the Client to continue using the Services free from any such claim; or
12.3.3 if neither of the above are reasonably practicable, terminate this Agreement (in whole or in part) by providing written notice to the Client.
12.4 As between the parties, the Client Content and Client Applications (Client Materials), and all Intellectual Property Rights subsisting in the Client Materials, are owned by and vest in the Client or its licensors. Hostworks acknowledges and agrees that this Agreement does not transfer any right, title or interest in any Client Materials to Hostworks or any third party.
12.5 The Client warrants and represents that it has the right to use and to permit Hostworks to use, store, copy, transmit and otherwise handle the Client Materials for the purposes contemplated by this Agreement and that such Client Materials do not contain any misleading, deceptive, defamatory, offensive, obscene or otherwise unlawful data or information, and do not otherwise infringe the rights of any third party.
12.6 Hostworks may at any time, and without liability to the Client, take down, remove, delete or cease hosting (Take Down) any Client Materials that it reasonably believes may breach the warranty set out in clause 12.5. The Client acknowledges that, in order for Hostworks to take such action, it may need to wholly or partially suspend or restrict the Services under clause 8.1. Where practicable, Hostworks will endeavour to give the Client reasonable advance notice of any Take Down of Client Materials, unless it reasonably believes that the circumstances require otherwise (including, for example, in the event of an emergency or serious breach or misconduct by the Client or an End User).
13.1 The Client may have rights under statutory consumer protection laws, including the Competition and Consumer Act 2010 (Cth), which cannot be excluded, restricted, limited or modified. The following exclusions of warranties, and the limitations of liability in clause 14, below, apply subject to any rights the Client may have under such laws.
13.2 Without limiting the foregoing, and to the extent permitted by law, all express or implied representations, conditions, warranties, guarantees or other provisions that are not contained in this Agreement (whether based in legislation, the common law or otherwise) are excluded, including any representations, conditions, warranties or guarantees as to acceptable quality, fitness for purpose, timeliness, or non-infringement of third party rights.
13.3 If any condition, warranty, guarantee or other provision is implied or imposed in relation to this Agreement (whether based in legislation, the common law or otherwise) and cannot be excluded (a Non-Excludable Term), and Hostworks is able to limit the Client’s remedy for a breach of such a Non-Excludable Term, then Hostworks’ liability for such a breach of the Non-Excludable Term is limited to one or more of the following, at Hostworks’ option:
13.3.1 in relation to goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; or
13.3.2 in relation to services, the supplying of the services again or the payment of the cost of having the services supplied again.
14.1 The exclusions and limitations on a party’s liability in this Agreement, including this clause 14, do not apply to:
14.1.1 the Client’s liability for breach of clauses 10 or 11;
14.1.2 the Client’s liability under the indemnity in clause 14.4;
14.1.3 the Client’s obligation to pay any Fees due and payable under this Agreement; or
14.1.4 any liability under a Non-Excludable Term, or any other liability to the extent that it may not be excluded or limited as a matter of applicable Law.
Exclusion of consequential loss
14.2 Subject to clause 14.1, neither party will be liable, under or in connection with this Agreement, whether in contract, tort (including negligence), equity, breach of statutory duty, or otherwise, for any indirect, consequential, incidental or special loss or damage, or for any loss of profits, loss of sales, loss of business or agreements, loss of goodwill, loss of or wasted management of staff time, loss of use or corruption of software, loss of or corruption to data, or loss of anticipated savings, even if such party has been advised of the possibility of such loss or damage.
Cap on Hostworks’ Liability
14.3 Subject to clauses 14.1 and 14.2, Hostworks’ total maximum liability to the Client for all Loss sustained, incurred or suffered by the Client and any End Users (a Client Claim) arising under or in connection with this Agreement, whether in contract, tort (including negligence), equity, breach of statutory duty, or otherwise, shall be limited for all Client Claims in aggregate to an amount equal to one hundred per cent (100%) of the total Fees paid by the Client to Hostworks under this Agreement in the twelve (12) month period prior to the most recent Client Claim.
14.4 The Client will indemnify and hold harmless Hostworks and its Affiliates, and their respective Personnel, from and against all Loss sustained, incurred or suffered by any of them, arising out of or in connection with:
14.4.1 the use or attempted use of the Services by an End User;
14.4.2 any breach by the Client of its warranty in clause 12.5;
14.4.3 any Client Content (including where such Client Content is alleged to infringe any rights, including Intellectual Property Rights); and
14.4.4 any claims brought or threatened by a third party against any of them, to the extent that such third party claim arises out of any breach by the Client or End Users of this Agreement, including the Acceptable Use Policy.
Limitation where the Client contributes to loss or damage
14.5 Any liability of Hostworks for any Loss sustained, incurred or suffered by the Client arising under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, is reduced to the extent that the Client, its Personnel or any End User contributes to the Loss.
Obligation to mitigate
14.6 The Client must promptly mitigate any Loss likely to be or actually sustained, incurred or suffered by the Client.
15. Force Majeure Event
15.1 Notwithstanding any other provision of this Agreement, neither party shall be deemed to be in breach of this Agreement or otherwise liable to the other party as a result of any delay or other failure in the performance of its obligations under this Agreement (other than an obligation to pay money, including the Fees) if and to the extent that such delay or other failure is caused by or arises from any event or circumstance not within the reasonable control of the party concerned (Force Majeure Event), and the time for performance of the relevant obligation(s) shall be extended accordingly.
15.2 A party whose performance of its obligations under this Agreement is delayed or prevented by a Force Majeure Event shall:
15.2.1 notify the other Party of the nature, extent, effect and likely duration of the circumstances constituting the Force Majeure Event as soon as reasonably practicable; and
15.2.2 after cessation of the Force Majeure Event, as soon as reasonably practicable notify the other Party thereof and resume full performance of its obligations under this Agreement.
15.3 Hostworks may terminate this Agreement in whole or in part by notice to the Client if any Force Majeure Event has the result that Hostworks is unable to deliver the Services for more than 20 Business Days.
16. Dispute resolution
16.1 A party claiming that a dispute (Dispute) has arisen under or in connection with this Agreement must notify the other party in writing, giving details of the dispute, and, subject to clause 16.5, must not commence any action or court proceeding in respect of the Dispute unless it has followed the procedure set out in this clause.
16.2 During the one (1) month period after a notice is given under clause 16.1 (or any longer period agreed in writing between the parties) the parties’ chief executive officers (or their delegates) must work together in good faith to resolve the Dispute.
16.3 If the dispute is not resolved within one (1) month from the date of the notice given under clause 16.1 (or longer agreed period), either party may then commence any action or court proceeding in relation to that dispute.
16.4 The parties will continue performing their respective obligations under this Agreement while the dispute is being resolved, unless and until such obligations are terminated or expire in accordance with this Agreement.
16.5 Nothing in this clause 16 prevents either party from commencing any action or proceeding at any time for urgent interlocutory relief in any court or tribunal having jurisdiction over such action or proceeding.
17. Assignment and Subcontracting
17.1 Subject to clauses 17.2 and 17.3, neither party shall assign, novate, transfer, sub-contract or otherwise dispose of any or all of its rights and/or obligations under this Agreement without the prior written consent of the other party (which may be withheld in that party’s absolute discretion).
17.2 Notwithstanding clause 17.1, the Client acknowledges and agrees that Hostworks may enter into sub-contract arrangements with third parties from time to time in relation to the performance of Hostworks’ provision of the Services under this Agreement. Any such sub-contract shall not excuse Hostworks from performing its obligations under this Agreement.
17.3 Hostworks may assign, novate, transfer, or otherwise dispose of any or all of its rights or obligations under this Agreement to:
17.3.1 a Hostworks Affiliate; or
17.3.2 a third party that has acquired a substantial part of Hostworks’, or any of its Affiliates’, business, assets or undertaking, without the prior consent of the Client and, in the case of a novation, the Client, Hostworks and the relevant third party will execute a novation agreement in a form reasonably prescribed by Hostworks.
Consents and approvals
18.1 Except as expressly provided in this Agreement, a party may conditionally or unconditionally in its absolute discretion give or withhold any consent or approval under this Agreement.
18.2 This Agreement may be executed in any number of counterparts, each of which, when executed, is an original. Those counterparts together make one instrument.
Costs, expenses and duties
18.3 Except as expressly provided in this Agreement each party must pay its own costs and expenses of negotiating, preparing and executing this Agreement and any other instrument executed under this Agreement.
18.4 Except as expressly provided in this Agreement, the rights of a party under this Agreement are in addition to and do not exclude or limit any other rights or remedies provided by Law.
18.5 This Agreement is the entire agreement between the parties about its subject matter and replaces all previous agreements, understandings, representations and warranties about that subject matter. Each party represents and warrants that it has not relied on any representations or warranties about the subject matter of this Agreement except as expressly provided in this Agreement.
Governing law and jurisdiction
18.6 This Agreement is governed by the laws of New South Wales. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales.
18.7 Any notice (which includes any other communication) required to be given under this Agreement or in connection with the matters contemplated by it must, except where otherwise specifically provided, be in writing, addressed as per the parties’ details set out at the beginning of these General Terms (as updated from time to time), and may be personally delivered or sent by courier or pre-paid post.
Relationship of the parties
18.8 Except as expressly provided in this Agreement:
18.8.1 nothing in this Agreement is intended to constitute a fiduciary relationship or an agency, partnership, franchise or trust; and
18.8.2 neither party has the authority to bind the other party.
Survival and merger
18.9 No term of this Agreement merges on completion of any transaction contemplated by this Agreement.
18.10 Clauses 3.3, 4, 7, 9.3, 9.4, 10, 12 to 14, and 16 to 18 survive termination or expiry of this Agreement together with any other term which by its nature is intended to do so.
18.11 Any term of this Agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity or enforceability of the remainder of this Agreement is not affected.
Third party rights
18.12 In entering into and obtaining the benefits of the exclusions and limitations of liability in this Agreement, including in clause 14, Hostworks acts on its own behalf and as trustee for each of its Affiliates and Personnel. Each of Hostworks’ Affiliates shall be entitled to enforce against the Client the rights and benefits conferred on Hostworks by this Agreement, including the limitations and exclusions of liability in clause 14.
18.13 Subject to clause 18.12 and except as otherwise expressly provided in this Agreement:
18.13.1 each person who executes this Agreement does so solely in its own legal capacity and not as agent or trustee for or a partner of any other person; and
18.13.2 only those persons who execute this Agreement have a right or benefit under it.
18.14 No variation of this Agreement is effective unless made in writing and signed by each party.
18.15 No waiver of a right or remedy under this Agreement is effective unless it is in writing and signed by the party granting it. It is only effective in the specific instance and for the specific purpose for which it is granted. No failure or delay by either party to exercise any right under this Agreement or to insist on strict compliance by the other party with any obligation under this Agreement, nor any custom or practice of the parties at variance with the terms of this Agreement, constitutes a waiver of that party’s right to demand exact compliance with this Agreement.
18.16 Each party must do all things and execute all further documents necessary to give full effect to this Agreement.
In this Agreement unless expressed or implied to the contrary:
- Affiliate means, in respect of a company or other business entity, any company or other business entity Controlled by, Controlling, or under the common Control of that company or other business entity from time to time.
- Agreement has the meaning given by clause 1.1.
- Acceptable Use Policy means the Hostworks Acceptable Use Policy available at https://www.hostworks.com.au/acceptable-use-policy/ as updated by Hostworks from time to time.
- Business Day means Monday to Friday, excluding any day that is a public holiday in Sydney and/or Adelaide.
- Client means the entity to which the Services are to be provided, as specified in the Proposal.
- Client Applications means any scripts, software, websites or applications developed or used by the Client, and hosted or supported by Hostworks as part of the Services, including (if applicable) as described in the Proposal.
- Client Content means all text, images, audio, video, data, databases, information, programs, files and other content created, generated, uploaded, stored, transmitted or otherwise used by the Client or an End User:
(a) in or through the Client Applications; or
(b) otherwise over or in connection with the Services.
- Commencement Date means the date specified as such in the Proposal, or if no date is specified, the date on which Hostworks commences providing the Services to the Client.
- Confidential Information means, in relation to a party, all information relating to that party and its Affiliates, including all information concerning the business, products, services, Systems, procedures and records (in whatever form, including in electronic format) of that party and its Affiliates, and their relationships with their customers and suppliers, which is provided to or accessed by the other party in connection with this Agreement. Hostworks’ Confidential Information includes any pricing information it provides to the Client that is not published in a publicly accessible section of its website.
- Control means the direct or indirect power to direct or cause the direction of the management and policies of a company or other business entity, whether through ownership of fifty per cent (50%) or more of the voting interest, by contract, or otherwise (and Controlled and Controlling are to be construed accordingly).
- End User means an end user of the Client Applications or the Services, and includes any of the Client’s customers or Personnel who access or use the Client Applications or the Services.
- Expenses means any ‘out-of-pocket’ expenses (for example, travel, accommodation and subsistence) incurred by Hostworks in performing its obligations under this Agreement, including any listed in the Proposal.
- Fees means the fees and charges set out or referred to in, or calculated in accordance with, the Proposal.
- Force Majeure Event has the meaning given to that term in clause 15.1.
- GST means a goods and services tax, or a similar value added tax, levied or imposed under the GST Law.
- GST Law has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
- Hostworks means Hostworks Pty Limited (ACN 087 307 695) of Level 10, Tower A, 799 Pacific Highway, Chatswood NSW 2079.
- Intellectual Property Rights means all copyright, trade mark, design, patent, semiconductor and circuit layout rights, trade, business, company and domain names, confidential and other proprietary rights, and any rights to registration of such rights whether created before or after the date of this Agreement both in Australia and throughout the world.
- Insolvency Event means, in relation to a party:
(a) the party ceases to pay its debts or suspends payments generally, or becomes unable or admits its inability to pay its debts as they fall due, or the value of its assets is or becomes less than its liabilities (taking into account contingent and prospective liabilities), or it becomes otherwise insolvent;
(b) a moratorium or suspension of payments is declared or instituted or ordered, or a resolution is passed in respect of any indebtedness of the party, or the party is otherwise afforded protection from its creditors generally;
(c) the party passes a resolution for voluntary winding up or a court of competent jurisdiction makes an order that the party be wound up (except for the purposes of bona fide reconstruction while solvent);
(d) save in respect of a solvent reorganisation, a liquidator, receiver, administrative receiver, administrator, examiner, trustee, supervisor, compulsory or interim manager is appointed over the party or any of its assets;
(e) the party ceases, or threatens to cease, carrying on business; or
(f) any similar or analogous event in, or under the law of, any jurisdiction.
- Law includes:
(a) any treaty, statute, regulation, by-law, ordinance or subordinate legislation in force from time to time;
(b) the common law and the law of equity;
(c) any binding court order, judgment or decree;
(d) any applicable industry code, policy or standard, whether or not enforceable by law; and
(e) any applicable direction, policy, rule or order that is given in writing by a Regulator, whether or not enforceable by law.
- Loss includes claims, actions, proceedings, losses, damages, liabilities, fines, penalties and costs (including legal expenses).
- MyHostworks means the web-based service configuration and management tools provided by Hostworks to its customers. As at the Commencement Date, MyHostworks is accessible from https://my.hostworks.com.au.
- Non-Excludable Term has the meaning given by clause 13.3.
- Personal Information has the meaning given to that term in the Privacy Act 1988 (Cth).
- Personnel means employees, secondees, agents and contractors.
- Proposal means the written proposal and/or quotation prepared by Hostworks, which sets out details of the Services to be supplied to the Client by Hostworks, and which was accepted when the Client’s authorised representative signed the document.
- Regulator means, in relation to a party, any statutorily recognised supervisory or government agency, body or authority having regulatory or supervisory authority over a party’s assets, resources or business, including any organisation reporting to such bodies, to the extent that such entity has jurisdiction over that party.
- Service Levels means any service levels applicable to the Services, as set out or referred to in the Proposal.
- Services means the products, deliverables and services to be provided to the Client by Hostworks, as set out or referred to in the Proposal.
- Services IP has the meaning given by clause 12.1.
- Service Terms means the additional terms and conditions that apply to the particular kind of Services the Client is acquiring, as set out in 0 to these Standard Terms.
- Standard Terms means these Hostworks Standard Customer Terms, excluding the Service Terms.
- Systems includes telecommunications systems, computer systems, networks, computer programs and databases, and the tangible media on which they are recorded and their supporting documentation.
- Term has the meaning given by clause 2.1 .
20.1 In this Agreement, unless the context requires otherwise:
20.1.1 any reference to a ‘person’ includes any individual, company, corporation, firm partnership, joint venture, association, organisation or trust (in each case, whether or not having separate legal personality) and references to any of the same includes a reference to the others;
20.1.2 references to any legislation, statute or statutory provisions includes a reference to those provisions as amended or re-enacted or as their application is modified by other provisions from time to time and any reference to a statutory provision includes any subordinate legislation made from time to time under that provision;
20.1.3 any phrase introduced by the words ‘including’, ‘include’, ‘in particular’, ‘for example’ or any similar expression must be construed as illustrative only and must not be construed as limiting the generality of any preceding words;
20.1.4 references to the singular include the plural and to the masculine include the feminine, and in each case vice versa; and
20.1.5 a reference to ‘$’ or ‘dollars’ is a reference to Australian dollars.
20.2 The headings and sub headings in this Agreement are inserted for convenience only and do not affect the meaning of this Agreement.
20.3 If a payment or other act is required by this Agreement to be made or done on a day which is not a Business Day, the payment or act must be made or done on the next following Business Day.
In addition to the Standard Terms, your use of the Services is subject to the following additional terms and conditions (or “Service Terms”). The Service Terms apply only to the specific Services to which they relate, as indicated by the headings below.
1.1 No additional terms and conditions apply to the Flex service.
2. Media Foundry
2.1 The Media Foundry service provides the Client with a range of applications and tools to manage Client Content (including Client Content created in connection with live events) online, and to distribute it through various online channels (MF Tools). The Client is authorised to access and use the MF Tools solely for the purpose of receiving the benefit of the Services in accordance with this Agreement, and for any other purposes described in the Proposal. Neither the Client, its Personnel or any End Users may:
(a) modify, alter or tamper with any of the MF Tools;
(b) reverse engineer, disassemble or decompile any of the MF Tools, or attempt to derive by any other means the source code for any of the MF Tools; or
(c) resell or sublicense the MF Tools.
2.2 The Client acknowledges that the MF Tools may not support all available content types and formats, and may not support all available End User devices. The supported types, formats and devices will be specified in the Proposal or otherwise agreed in writing by the parties from time to time.
2.3 Except as expressly provided otherwise in the Proposal, Hostworks is only responsible for making the MF Tools available for the Client’s use, and accepts no responsibility or liability for the results of the Client’s use of the MF Tools (including any use of the Client Content by End Users).
2.4 If Hostworks provides an online payment gateway as part of the Media Foundry service, then the Proposal will specify into which party’s merchant account the collected revenue will be deposited.
(a) If Hostworks’ merchant account is nominated for this purpose, then the Client authorises Hostworks to deduct its own fees, and any applicable bank, merchant or other transaction charges (together, the Fees and Charges), prior to remitting the balance to the Client.
(b) If the Client’s merchant account is nominated, then the Client must promptly pay the Fees and Charges to Hostworks in accordance with clause 9 of the Agreement.
3. Campaign Box
3.1 No additional terms and conditions apply to the Campaign Box service.
4.1 As described further in the Proposal, the Services provided by Hostworks as part of its “Unity” service offering (the Unity Services) include assistance with purchasing, managing and implementing services provided by third party service providers (such third parties to be referred to as Third Party Service Providers and the services they provide to be referred to as the Third Party Services). At the time that this Agreement was entered into, Third Party Service Providers included Amazon Web Services, Inc. (AWS) and hybris AG (Hybris).
4.2 In procuring the Unity Services, the Client acknowledges that its use of the Third Party Services is subject to the Third Party Service Provider’s terms, which constitute a separate agreement between the Client and the Third Party Service Provider.
4.3 Hostworks is not responsible or liable to the Client for the performance or non-performance of the Third Party Services. Hostworks’ sole responsibility is to provide the Services in accordance with this Agreement.
4.4 Without limiting the generality of the foregoing, the Client agrees and acknowledges the following in respect of the following Third Party Services:
(a) The Client’s use of AWS’ services (the AWS Services) is subject to the terms and conditions of the AWS Customer Agreement. AWS may modify the AWS Customer Agreement from time to time, and those changes can be seen by the Client at the following link: http://aws.amazon.com/agreement/.
(b) The only service level commitments applying to the AWS Services are those offered by AWS itself. Hostworks will pass through to the Client the benefit of any such service level commitments (if they are not made available directly to the Client by AWS).
(c) The AWS Services can be terminated by AWS with limited notice periods, and are provided “as is”, with no representations or warranties made by either AWS or Hostworks.
(d) AWS’ liability to the Client in relation to the provision of the AWS Services is excluded and/or limited in the manner specified in clause 7 of the AWS Customer Licence Terms.
(e) If the Reseller Agreement between Hostworks and AWS is terminated, or Hostworks is no longer able to on-supply the AWS Services to the Client, Hostworks will advise the Client in writing, and will be entitled to excise all Services relevant to the AWS Services from this Agreement. Hostworks will work with the Client to develop a transition plan to facilitate the orderly and seamless transition and migration to a replacement service provider over a reasonable timeframe.
(a) No additional terms apply.
5.1 As described further in the Proposal, the Services provided by Hostworks as part of its “Assist” service offering (the Assist Services) include consulting, design and implementation services.
5.2 Hostworks is only responsible for delivering the Assist Services as outlined in the Proposal. Other than as expressly set out in the Proposal, Hostworks is not responsible or liable for, and makes no representations, warranties or commitments in relation to:
5.2.1 the Client’s business objectives and the ability of the Assist Services to further those objectives;
5.2.2 expected outcomes for the Client’s business following delivery of the Assist Services;
5.2.3 the suitability of any applications, solutions, hardware or software for the Client’s purposes or business; or
5.2.4 the ongoing performance of any deliverables arising out of the Assist Services, once they have been accepted by the Client.