WEBHOSTING AGREEMENT -
Highway Internet Services
1.1 Highway Internet Services Pty Ltd (referred to in this agreement as
"Hwy", "Hwy Internet", "us", "we"
or "our") is an Internet Service Provider providing access to
the Internet. You wish us to provide computer space for the hosting of
your web site (the "Web Site") described in the Hosting Plan.
1.2 This agreement commences upon the Commencement Date and continues
for an initial term of one (1) year. After the initial term has expired,
the agreement may be terminated by either party by giving the other party
30 days written notice. Charges can be subject to change, given 30 days
notice, at any time during this term.
2. Web Hosting Services
2.1 In providing the Web Hosting Service, your website files will be stored
on our domain server.
2.2 We do not warrant that you or other Users will have continuous access
to the Web Site. We will not be liable in the event the Web Site is unavailable
for any reason, including computer downtime attributable to malfunction,
upgrades or preventative or remedial maintenance activities.
2.3 The Web Hosting Services do not include maintenance of the Web Site.
We accept no responsibility for any deficiency or inaccuracy in the Web
Site attributable to a lack of maintenance. Requests can be made to Hwy
to update the Web Site and will be charged at the going rate.
2.4 We reserve the right to reassess the Web Hosting Service should the
Web Site be generating excessive traffic which can overload our server.
In such cases, you will be contacted so the Service can be amended to
be agreeable to both parties.
3. Your Obligations
3.1 You represent and acknowledge to us that you are over the age of 18
years and that upon our request you will provide to us documentary evidence
of your age. If you are not over the age of 18 years, you will provide
to us documentary evidence that you have the consent of a parent, teacher
or other responsible adult to apply for the provision of the Hosting Services.
3.2 You are responsible for the design, development, modification, Content
and maintenance of the Web Site.
3.3 You warrant that the Content and the Web Site:
(a) will not infringe the Intellectual Property Rights of any third person
(b) is and will not, in our reasonable opinion, be or be likely to be,
obscene, offensive, illegal or defamatory;
(c) does not breach any codes, standards or requirements of any relevant
authority or body, including (but not limited) to the Internet Industry
Association Code of Practice or any other relevant industry codes of practice;
(d) does not comprise and cannot be used for any purpose or activity of
an illegal, fraudulent or defamatory nature.
3.4 You will obtain advice as to whether the Content on the Web Site is
in contravention of any State, Territory, Commonwealth or other laws including
whether it breaches any codes, standards or requirements of any relevant
authority or body, including to the Internet Industry Association Code
of Practice or any other relevant industry codes of practice.
3.5 Should any complaints about Content on the Web Site arise, we will
forward the complaints to you for resolution. You will not refer any enquiries
or complaints about the Web Site's Content to us.
3.6 You will and do hereby indemnify us against any loss, costs, expenses,
demands or liability, whether direct or indirect arising out of a claim
by a third party in relation to the Web Site, its Content, this agreement
or the Web Hosting Services.
3.7 You will use the Web Site only for your own purposes and will not
sub-let space to or for any other individual or entity except as set out
in the Schedule or with our prior written consent.
3.8 Under direction of a relevant authority, we may be required by law
to remove Content from your Web Site. Where possible, we will inform you
of such an event. Such content will be a breach by you of this agreement
and, if applicable, an offence under law. A repeat occurrence will result
in the immediate termination of this agreement.
3.9 You are strongly encouraged to use a relevant labelling system. If
the Content is unsuitable for person under the age of 18, you are required
to install an age verification process. Content classification information
can be found at the Office of Film and Literature web site at http://www.oflc.gov.au.
Guidelines on the new Content regulation legislation can be found at http://www.aba.gov.au
or at http://www.iia.net.au
4.1 You will pay all the Charges at the rate and in the manner specified
by the Web Hosting Plan selected by you.
4.2 If you dispute the whole or any portion of the amount claimed in any
invoice submitted by us, you will (within 7 days of receipt of invoice)
pay the undisputed portion of such invoice and notify us in writing of
the reason for disputing the remainder of the invoiced Charges so that
this can be resolved.
4.3 We reserve the right to reassess the Web Hosting charge should the
Web Site be generating excessive traffic which can overload our server
and add to our data costs. In such cases, you will be contacted so the
charge can be amended to be agreeable to both parties.
5 Our Liability
5.1 You warrant that you have not relied on any representation by us which
is not expressly contained in this agreement and that you have had adequate
opportunity to independently verify the accuracy of any such representation.
5.2 Despite any other term in this agreement and except as prevented by
law, we will not be liable to you or any third party for any loss (including
consequential loss) arising from any breach of our obligations, duties
of care, statutory duties or implied warranties in connection with any
services provided by us to you and to the extent any law implies any duties
or warranties that may not be excluded our liability will be limited,
at our option, to either supplying the services again or paying the cost
of having the services supplied again.
5.3 You will at all times indemnify and hold harmless us, our officers,
employees and agents from and against any loss (including reasonable legal
costs and expenses) caused by:
(a) a breach by you of your obligations under this agreement; or
(b) any wilful, unlawful or negligent act or omission by you.
6.1 A party is excused from performing its obligations under this agreement,
to the extent that it is prevented by circumstances beyond its reasonable
control including but not limited to, such things as, acts of God, natural
disasters, acts of war, riots, earthquakes, lightning strikes, floods,
storms, explosions, fires, any natural disaster, act of public enemies,
terrorism, riots, civil commotion, malicious damage, sabotage, revolution,
strikes and failure of equipment or systems.
6.2 If the non-performance or diminished performance by the affected party
continues for a period which the other party regards as commercially unreasonable,
the other party may terminate the agreement. If the agreement is terminated
in these circumstances, each party will bear its own costs and neither
party will incur further liability to the other.
7.1 Neither you nor we, without prior written approval of the other, will
disclose the other's Confidential Information.
7.2 Each of us will take all reasonable steps to ensure that our employees
and agents, and any sub-contractors engaged for the purpose of this agreement,
do not make public or disclose the other's Confidential Information.
8.1 Where this agreement refers to a party giving notice, that means written
notice (including electronic communications) delivered by hand, facsimile
or electronic mail.
8.2 Any notice sent by post is deemed to be received by the party to whom
it is addressed on the day which it would have been delivered in the normal
course of post.
8.3 Any notice sent by electronic communication is deemed to by received
by the receiving party at the time the electronic communication enters
the receiving party's information system.
9.1 This agreement constitutes the sole and entire agreement between the
parties with regard to its subject matter and any warranty, representation,
guarantee or other term or condition of any nature not expressly contained
or recorded in this agreement is of no force or effect.
9.2 Any provision, or the application of any provision herein, which is
void, illegal, prohibited or unenforceable in any jurisdiction does not
affect the validity, legality or enforceability of that provision in any
other jurisdiction or of the remaining provisions in that or any other
9.3 This agreement is governed by the Law of New South Wales. The parties
submit to the non-exclusive jurisdiction of the courts of New South Wales
and any court hearing appeals from those courts.