Legals

1.1 General

OzHosting.com is committed to protecting your privacy. That is why we have adopted this Privacy Policy. This Privacy Policy is intended to describe how your personal information is processed and used, and we will make every effort to ensure that our activities keep within the spirit of this Privacy Policy. Please note that by visiting and using www.ozhosting.com or www.ozhosting.com.au, or any derivative thereof, you are accepting the practices described in this Privacy Policy.

1.2 What information is OzHosting.com gathering about its visitors and how is it being used?

Every computer connected to the Internet is provided with a domain name (e.g. myhostingprovider.com) and an IP Address (e.g. 192.164.13.145). When a visitor requests a page from within the OzHosting.com site, our Web Servers automatically identify and log the HTTP request that is made to our Web Server. This information reveals nothing personal about you. In fact, the only information that we automatically gather and log is as follows:

1. 1. The IP Address of the Site that may have Referred you.
2. 2. Your IP Address.
3. 3. The Web Page that you may have linked to us from, if any.
4. 4. The Product Identifier for Version and Make of Browser (e.g. Internet Explorer 6.0)
5. 5. The Operating System platform that you may be running (e.g. Macintosh or Windows)
6. 6. Search Words or Terms that are passed from a Search Engine (e.g. Google, Yahoo, or Lycos)
7. 7. There is absolutely nothing special about the information just described, and the practice of collecting this data has been generally standardized by virtually every Web Server on the Internet today.

The purpose of this information is actually two-fold. One, OzHosting.com has found it advantageous to examine visitor traffic in its aggregate, so that we can ensure maximum compatibility for the various Browsers and Operating Systems that visit our site. Additionally, as any business should attest, it is our desire to generate greater amounts of visitor traffic. By analyzing visitation patterns, referring URLs and Search Engine terms, we can strategically enhance our exposure on the Internet.

1.3 What about cookies?

Cookies are small pieces of data that are transferred to your computer’s hard drive through your Web browser from our Web Server. A cookie cannot read data from your hard disk or read cookie files that may have been created from other sites. The OzHosting.com website utilizes cookies as a means of providing personalisation features to our visitors. For example, we utilize cookies to remember settings (background music selections, wallpapers preferences, etc.) that you may have made at our website.

You can choose whether to accept cookies by changing the settings of your browser. Typically, by accessing the browser’s help feature you can obtain information on how to prevent your browser from accepting all cookies or to notify you when a cookie is being sent. If you choose not to accept these cookies, your experience at our website and other websites may be diminished and some features may not work as intended.

1.4 What other information does OzHosting.com request?

We may also request your e-mail address or mailing address for the purposes of conducting a survey, adding you to our mailing list, or by your request to have someone contact you for additional information. Whenever we request the identity of a visitor, we will clearly indicate the purpose of the inquiry before the information is requested. We maintain a strict “No Spam” policy that means we do not intend to sell, rent, or otherwise give your e-mail address to a third-party, without your consent.

In addition, OzHosting.com will not send you e-mail that you have not agreed to receive. If you are a member of our Mailing List, you will be contacted with announcements, news, portfolio additions, and new products or services. You have the option of “Unsubscribing” from our Mailing List at any time, thereby disabling any further such e-mail communication from being sent to you. If you wish to have specific communications with a member of the OzHosting.com staff, you will be required to provide specific information that will be routed to the appropriate contact within OzHosting.com.

1.5 What information does OzHosting.com collect when I purchase something?

If you purchase something, such as hosting plan service or a physical product such as a T-Shirt, we need to obtain the appropriate information in order to complete the transaction. Depending upon the method of payment that you select and your location, the required information may vary. However, generally speaking, we will need:

1. 1. Your Name
2. 2. Billing Address (for Credit Card Orders)
3. 3. Shipping Address
4. 4. Domain Information (New Registrations and Modifications)
5. 5. Additional Contact Information (for Domain Registrations)
6. 6. E-Mail Address
7. 7. Phone Number
8. 8. Credit Card; Details can be securely entered via the Payment Methods link in the Control Panel.

Note; your credit card details are not held held or stored by OzHosting.com after processing.

We use shopping cart features that safeguard this information by using industry standard SSL (Secure Sockets Layer) encrypted servers. SSL encodes the information transferred between you and the server, rendering it unreadable to anyone trying to intercept the information.

1.6 Will OzHosting.com disclose the information collected to third parties?

OzHosting.com will disclose your personal information or any of its log file information when required by law or in the good-faith belief that such actions are necessary to:

1. 1. Conform to the edicts of the law or comply with a legal process served on OzHosting.com.
2. 2. Protect and defend the rights or property of OzHosting.com, or visitors of OzHosting.com.
3. 3. Identify persons who may be violating the law, the legal notice, or the rights of third parties.
4. 4. Cooperate with the investigations of purported unlawful activities.

OzHosting.com uses reasonable precautions to keep the information disclosed to us secure. OzHosting.com reserves the right to transfer information in connection with the sale of all or part of OzHosting.com capital stock or assets to any third party. Furthermore, we are not responsible for any breach of security or for any actions of any third parties that receive the information. OzHosting.com also provides “links” to a wide variety of other websites on the Internet. We are not responsible for their Privacy Policies or how those web sites manage information about their users. We strongly urge you to check with those websites to determine their privacy policy.

Any changes to this Privacy Policy will be posted on this page so that you are always aware of the information that we collect, how we use it, and under what circumstances we disclose it.

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By purchasing Microsoft services through Ozhosting.com Pty Ltd the purchaser agrees to be bind by the applicable Terms of Service as published by Microsoft from time to time. The purchaser expressly authorises Ozhosting.com Pty Ltd to accept such terms on behalf of the purchaser.

2.1 General

a. Right to Use. We grant you the right to access and use the Online Services and to install and use Software included with your Subscription, as further described in this agreement. We reserve all other rights.

b. Acceptable Use. You will use the Product only per the Acceptable Use Policy. You may not reverse engineer, decompile, disassemble or work around technical limitations in the Product, except where applicable law permits it despite this limitation. You may not disable, tamper with or otherwise attempt to circumvent any billing mechanism that meters your use of the Product. You may not rent, lease, lend, resell, transfer, or host any Product to or for third parties.

c. Use Rights. The Online Services Terms in effect on the Effective Date will apply to your use of the Product for the initial Term of the Subscription. For any renewal Term, the Online Services Terms in effect on the date of renewal will apply. The use rights and Microsoft’s process for updating them are detailed in the Online Services Terms.

d. Choosing a Reseller. You must choose and maintain a Reseller authorised in your region.

e. Reseller Administrator Access and Customer Data. You acknowledge and agree that (i) once you have chosen a Reseller, that Reseller will be an additional administrator of the Online Services for the Term, and you will be unable to choose another Reseller for the Online Services during the Term, unless otherwise permitted by Microsoft; (ii) Reseller will have the same administrative privileges and access to Customer Data as your own administrator; (iii) Reseller’s privacy practices with respect to Customer Data or any services provided by Reseller may differ from the privacy practices of Microsoft; and (iv) Reseller may collect, use, transfer, disclose, and otherwise process Customer Data, including personal data. You consent to Microsoft providing Reseller with information that you provide to Microsoft and Customer Data for purposes of ordering, provisioning and administering the Online Services.

f. Eligibility for Academic and Government Versions. You agree that if you are purchasing an academic or government offer, you meet the respective eligibility requirements for a Qualified Educational User or Qualifying Government Entity published at http://www.microsoftvolumelicensing.com Microsoft reserves the right to verify eligibility at any time and suspend the Online Service if such eligibility requirements are not met.

2.2 Confidentiality

To the extent permitted by applicable law, the terms and conditions of this agreement are confidential. Unless otherwise agreed, you may not disclose these terms and conditions, or the substance of any discussions that led to them, to any third party other than your Affiliates or agents, or to designated or prospective Resellers who: (a) have a need to know such information in order to assist in carrying out this agreement; and (b) have been instructed that all such information is to be handled in strict confidence.

2.3 Orders, prices, term, termination & suspension

a. Orders.

(i) Orders must be placed through your designated Reseller.
(ii) You may increase the quantity of Product ordered during the Term of a Subscription. Additional quantities of Product added to a Subscription will expire at the end of that Subscription.

b. Available Subscription Offers.

(i) Commitment Offering. You commit in advance to purchase a specific quantity of Services for use during a Term. With respect to Microsoft Azure Services, additional or other usage (for example, usage beyond your commitment quantity) may be treated as a Consumption Offering. Committed quantities not used during the Term will expire at the end of the Term.
(ii) Consumption Offering (also known as Pay-As-You-Go). For Microsoft Azure Services only, your Reseller will bill you based on your actual usage of the Online Services.
(iii) The Subscription offers available to you will be established by your Reseller.

c. Pricing and Payment. You acknowledge that your prices for each Product and terms and conditions for invoicing and payment will be established by your Reseller.

d. Renewal. The Term of your existing Subscription will automatically renew unless you provide your Reseller with notice of your intent not to renew prior to expiration of the Term of the Subscription. Microsoft may require you to sign a new agreement, a supplemental agreement or an amendment before processing a renewal.

e. Taxes. The parties are not liable for any of the taxes of the other party that the other party is legally obligated to pay and which are incurred or arise in connection with or related to the transactions contemplated under this Agreement, and all such taxes shall be the financial responsibility of the party who is obligated by operation of law to pay such tax.

f. Duration of agreement and Termination. This agreement will remain in effect for the Term of any Subscription purchased hereunder. You may terminate this agreement at any time by contacting your designated Reseller. The expiration or termination of this agreement will only terminate your right to place new orders for additional Products under this agreement.

g. Termination for breach. Either party may, on written notice to the other party, terminate this agreement if the other party materially breaches this agreement. Except where the beach is by its nature incapable of being cured within 30 days, the terminating party must give the other party 30 days prior written notice and opportunity to cure.

2.4 Security, privacy & data collection

a. You consent to the processing of personal information by Microsoft and its agents to facilitate the subject matter of this agreement. You may choose to provide personal information to Microsoft on behalf of third parties (including your contacts, resellers, distributors, administrators, and employees) as part of this agreement. You will obtain all required consents from third parties under applicable privacy and data protection law before providing personal information to Microsoft.

b. Additional privacy and security details are in the Online Services Terms. The commitments made in the Online Services Terms only apply to the Online Services purchased under this agreement and not to any services or products provided by your Reseller.

c. You consent and authorize Microsoft (and its service providers and subcontractors), at Reseller’s direction or as required by law, to access and disclose to law enforcement or other government authorities data from, about or related to you, including the content of communications (or to provide law enforcement or other government entities access to such data).

d. As and to the extent required by law, you shall notify the individual users of the Online Services that their data may be processed for the purpose of disclosing it to law enforcement or other governmental authorities as directed by Reseller or as required by law, and shall obtain the users’ consent to the same.

e. You appoint Reseller as its agent for purposes of interfacing with and providing instructions to Microsoft for the purposes of this Section 4.

2.5 Warranties

a. Limited warranty.

(i) Online Services. We warrant that each Online Service will meet the terms of the applicable SLA during the applicable Term. Your only remedies for breach of this warranty are those in the SLA.
(ii) Software. We warrant for one year from the date you first use the Software that it will perform substantially as described in the applicable user documentation. If Software fails to meet this warranty we will at our option (1) return the price paid for the Software or (2) repair or replace the Software.

b. Limited warranty exclusions. This limited warranty is subject to the following limitations:

(i) any implied warranties, guarantees or conditions not able to be disclaimed as a matter of law will last one year from the start of the limited warranty;
(ii) this limited warranty does not cover problems caused by accident, abuse or use of the Products in a manner inconsistent with this agreement, or resulting from events beyond our reasonable control;
(iii) this limited warranty does not apply to problems caused by the failure to meet minimum system requirements; and
(iv) this limited warranty does not apply to free, trial, pre-release, preview or beta Products.

c. Disclaimer. Other than this warranty, we provide no warranties, whether express, implied, statutory, or otherwise, including warranties of merchantability or fitness for a particular purpose. These disclaimers will apply except to the extent applicable law does not permit them.

2.6 Defense of claims

a. Defense. We will defend you against any claims made by an unaffiliated third party that a Product infringes its patent, copyright or trademark or makes unlawful use of its trade secret. You will defend us against any claims made by an unaffiliated third party that any Customer Data (i) infringes the third party’s patent, copyright, or trademark or makes unlawful use of its trade secret or (ii) arises from violation of the Acceptable Use Policy.

b. Limitations. Our obligations in Section 5a will not apply to a claim or award based on: (i) Customer Data, non-Microsoft software, modifications you make to the Product, or materials you provide or make available as part of using the Product; (ii) your combination of the Product with, or damages based upon the value of, a non-Microsoft product, Customer Data or business process; (iii) your use of a Microsoft trademark without our express written consent, or your use of the Product after we notify you to stop due to a third-party claim; or (iv) your redistribution of the Product to, or use for the benefit of, any unaffiliated third party.

c. Remedies. If we reasonably believe that a claim under Section 5a may bar your use of the Product, we will seek to: (i) obtain the right for you to keep using it; or (ii) modify or replace it with a functional equivalent and notify you to stop use of the prior version of the Product. If these options are not commercially reasonable, we may terminate your rights to use the Product and then refund any advance payments for unused Subscription rights to your Reseller.

d. Obligations. Each party must notify the other promptly of a claim under this Section 6. The party seeking protection must (i) give the other sole control over the defense and settlement of the claim; and (ii) give reasonable help in defending the claim. The party providing the protection will (1) reimburse the other for reasonable out-of-pocket expenses that it incurs in giving that help and (2) pay the amount of any resulting adverse final judgment (or settlement that the other consents to). The parties’ respective rights to defense and payment of judgments or settlements under this Section 6 are in lieu of any common law or statutory indemnification rights or analogous rights, and each party waives such common law or statutory rights.

2.7 Limitation of liability

a. Limitation. The aggregate liability of each party for all claims under this agreement is limited to direct damages up to the amount paid for the Online Service during the 12 months before the cause of action arose; provided, that in no event will a party’s aggregate liability for any Online Service exceed the amount paid for that Online Service. For Products provided free of charge, Microsoft’s liability is limited to direct damages up to U.S. $5,000.

b. Exclusion. Neither party will be liable for loss of revenue or indirect, special, incidental, consequential, punitive, or exemplary damages, or damages for lost profits, revenues, business interruption, or loss of business information, even if the party knew they were possible or reasonably foreseeable.

c. Exceptions to limitations. The limits of liability in this Section apply to the fullest extent permitted by applicable law, but do not apply to: (i) the parties’ obligations under Section 6; or (ii) violation of the other’s intellectual property rights.

2.8 Software

a. Licenses purchased. We grant you licenses for the number of copies of Software you ordered.

b. License confirmation. Proof of your Software license is (i) this agreement, (ii) any Order confirmation, (iii) documentation evidencing license transfers (for any permitted transfers), and (iv) proof of payment.

c. License rights are not related to fulfillment of Software media. Your acquisition of Software media or access to a network source does not affect your license to Software obtained under this agreement. We license Software to you, we do not sell it.

d. Transferring and assigning licenses. License transfers are not permitted.

2.9 Support

Support services for Products purchased under this agreement will be provided by Reseller.

2.10 Agreement Mechanics

a. Notices. You must send notices by mail to the address below:

Notices should be sent to:
Microsoft Regional Sales Corporation
Dept. 551, Volume Licensing
438B Alexandra Road, #04-09/12, Block B
Alexandra Technopark
Singapore 119968

Copies should be sent to:
Microsoft Corporation
Legal and Corporate Affairs
Volume Licensing Group
One Microsoft Way
Redmond, WA 98052 USA
Via Facsimile: (425) 936-7329

We may email notices to account administrators you identify. Notices are effective on the date on the return receipt or, for email, when sent.

b. Assignment. You may not assign this agreement either in whole or in part.

c. Severability. If any part of this agreement is held unenforceable, the rest of the agreement will remain in full force and effect.

d. Waiver. Failure to enforce any provision of this agreement will not constitute a waiver.

e. No third-party beneficiaries. There are no third-party beneficiaries to this agreement.

f. Applicable law and venue. This agreement is governed by Washington law, without regard to its conflict of laws principles. Subject to sections (i) and (ii) below, if we bring an action to enforce this agreement, we will bring it in the jurisdiction where you have your headquarters. If you bring an action to enforce this agreement, you will bring it in the State of Washington, U.S.A. This choice of jurisdiction does not prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights.

(i) If your principal place of business is in Brunei, Malaysia or Singapore, you consent to the non-exclusive jurisdiction of the Singapore courts.
(ii) If your principal place of business is in Bangladesh, Cambodia, India, Indonesia, Macau SAR, the People’s Republic of China, Sri Lanka, Thailand, The Philippines or Vietnam, any dispute arising out of or in connection with this agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC”), which rules are deemed to be incorporated by reference into this subsection. The Tribunal shall consist of one arbitrator to be appointed by the Chairman of SIAC. The language of the arbitration shall be English. The decision of the arbitrator shall be final, binding and incontestable and may be used as a basis for judgment thereon in the above-named countries or elsewhere. To the maximum extent permitted by applicable law, the parties waive their right to any form of appeal or other similar recourse to a court of law. For the purpose of this agreement only, the People’s Republic of China does not include Hong Kong SAR, Macau SAR and Taiwan.

g. Entire agreement. This agreement is the entire agreement concerning its subject matter and supersedes any prior or concurrent communications.

h. Survival. The following provisions will survive this agreement’s termination or expiration: 5 (Warranties), 6 (Defense of claims), 7 (Limitation of liability), 10f (Applicable law and venue), 10g (Entire agreement), 10h (Survival), 10i (U.S. export jurisdiction) and 11 (Definitions).

i. U.S. export jurisdiction. The Product is subject to U.S. export jurisdiction. You must comply with all applicable laws, including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and end-user, end-use and destination restrictions issued by U.S. and other governments. For additional information, see http://www.microsoft.com/exporting/.

j. Force majeure. Neither party will be liable for any failure in performance due to causes beyond that party’s reasonable control (such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), acts of God, acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of Online Services)). This section will not, however, apply to your payment obligations under this agreement.

k. Publicity. Microsoft may publicly disclose (orally and in writing) that you are a customer of Microsoft and a purchaser of the Product(s), including in a list of Microsoft customers and other promotional materials.

l. Order of Precedence. In the case of a conflict between any documents referred to in this agreement that are not expressly resolved in those documents, their terms will control in the following order of descending priority: (1) this agreement, (2) the SLAs, and (3) the Online Services Terms. Terms in an amendment control over the amended document and any prior amendments concerning the same subject matter.

m. Statutory liability. The following provisions are only applicable to customers in New Zealand.

(i) Business. Where we act as a “supplier” (as that term is defined in the Consumer Guarantees Act 1993 (“CGA”)) of a Product, you confirm that the Product provided by us under this agreement is acquired for the purposes of a business (as that term is defined in the CGA) and that the CGA does not apply to the Product supplied by Microsoft.

(ii) Consumers. Nothing in this agreement is intended to limit the rights of a “consumer” under the CGA where that Act applies, except to the extent permitted by that Act, and the terms of this agreement are to be modified to the extent necessary to give effect to this intention.

n. Consumer remedies. The following provision is only applicable to customers in Australia:

Notwithstanding anything in this agreement, consumers may have the benefit of certain, rights or remedies pursuant to the Competition and Consumer Act 2010 (Cth) and similar state and territory laws in Australia in respect of which liability may not be excluded. If so, then to the maximum extent permitted by law, such liability is limited, at our option, in the case of goods to either (1) replacement of the goods or (2) correction of defects in the goods, and in the case of services to either (1) resupply of the Services or (2) the cost of the resupply of the services. Australian law requires us to notify consumer purchasers of Microsoft goods that: “Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure”.

2.11 Definitions

Any reference in this agreement to “day” will be a calendar day.

“Acceptable Use Policy” is set forth in the Online Services Terms or as otherwise made prominently available by Microsoft.

“Affiliate” means any legal entity that a party owns, or that owns a party, with a 50% or greater interest.

“Commitment Offering” and “Consumption Offering” describe categories of Subscription offers and are defined in Section 3.

“Customer Data” is defined in the Online Services Terms.

“Online Service” means any Microsoft online service subscribed to under this agreement.

“Online Services Terms” means the terms that apply to your use of the Products available at http://www.microsoft.com/licensing/onlineuserights. The Online Services Terms include terms governing your use of Products that are in addition to the terms in this agreement.

“Product” means any Online Service (including any Software).

“Reseller” means OzHosting.com Pty Ltd an entity authorised by Microsoft to resell Software licenses and Online Service

Subscriptions under this program and engaged by you to provide pre- and post-transaction assistance.

“SLAs” means the service level agreement commitments we make regarding delivery and/or performance of the Online Service, as published at http://www.microsoft.com/licensing/contracts, http://www.windowsazure.com/en-us/support/legal/sla/ or at an alternate site that we identify.

“Software” means software we provide for installation on your device as part of your Subscription or for use with the Online Service to enable certain functionality.

“Subscription” means an order for a quantity of Product for a defined Term (e.g., 30 days or 12 months).

“Term” means the duration of a Subscription for a specific Product as established by your Reseller.

MicrosoftCloudAgreement(Asia)ExJPN,KOR,TAI(ENG)(Jul2014) Document X20-12428

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By purchasing services through Ozhosting.com Pty Ltd that include Acronis licenses, the purchaser agrees to be bound by the applicable terms of services as published by Acronis from time to time. The purchaser expressly authorises Ozhosting.com Pty Ltd to accept such terms on behalf of the purchaser.

The Acronis License Terms are currently located at; https://www.acronis.com/en-us/support/eula.html

This is an important document. It sets out the overarching Terms and Conditions on which OzHosting.com Pty Ltd [ABN 48 153 588 142] (“OzHosting”) provides Services to you, the Customer. You accept these Terms and Conditions when you purchase a Cloud Service through OzHosting Store and our OzHosting Control Panel. When you have accepted these Terms and Conditions, they become a legal agreement between you and OzHosting.com Pty Ltd. Please read it carefully. Once you have accepted these Terms and Conditions, you can always access and review them via the OzHosting Website and its contents are owned and operated by OzHosting.com Pty Limited (“OzHosting”).

4.1 Services

4.1.1 These overarching Terms and Conditions cover all Services offered by OzHosting.com (together or separately referred to as “Services”).

4.1.2 Services: includes:

(a) internet connectivity services (“Bandwidth”),
(b) use of equipment including the server and other equipment used in internet connectivity services (“Hardware”), and
(c) use of text messaging services to companies, small businesses, and individual business users (“Messaging”), and
(d) licensing of the associated operating system and web server applications (“Software”), all as detailed and for the Fees set out in the Cloud Plan which Customer has selected.

4.1.3 Service Levels: OzHosting will provide the Services in accordance with the Service Level Agreement applicable to the Plan selected by Customer – Cloud SLA or Cloud SLA.

4.2 Control Panel

4.2.1 Control Panel: “Control Panel” means a unique, live and interactive website page individualised for the Customer which the Customer may access at the OzHosting Website after supplying its User ID and Password. When accessed, the Control Panel enables Customer to:

(a) Review the status of its account, and pay outstanding invoices;
(b) View the registration status of its domain names and dates for renewal of registration;
(c) view the current status of its Hosting Services and reports of operation of those Services;
(d) perform maintenance and other functions on components of Services, Hardware and Software, including configuring website and email services; and
(e) access Customer support services.

4.2.2 Password Access: OzHosting will provide Customer with User ID and Password to access the Control Panel for the purposes specified in clause 2.1. The customer is solely responsible for maintaining the secrecy and confidentiality of its User ID and Password assigned to it or its nominated representatives and is and remains liable for any fees or charges incurred by any person accessing the Control Panel by using that User ID and Password.

4.3 Warranties

4.3.1 Sole Warranties: OzHosting warrants that the Services will be supplied with due care and skill in accordance with the applicable Service Level Agreement and that any material supplied in connection with the Service is reasonably fit for the purposes for which it is supplied.

4.3.2 Exclusion of All Other Warranties: With the exception of the warranties set out in clause 3.1 and to the full extent permitted by law, all other all express or implied warranties, representations, terms and conditions regarding Services, Hardware and/or Software and their use or regarding the Agreement are hereby expressly excluded.

4.3.3 Limitation of Liability: OzHosting’s liability for breach of the warranties set out in clause 3.1 is limited at its option to the resupply of Services, or payment of the cost of having the Services supplied again. In no event shall OzHosting be liable for any loss of data, loss of profits, cost of cover, or any other special, incidental, consequential, indirect or punitive damages, however, caused and regardless of theory or liability, notwithstanding that OzHosting has been made aware or advised of the possibility of such damages.

4.4 Payment of Fees

4.4.1 Payment of Fees: Customer agrees to pay the fees set out in the Online Plan selected by it (which are inclusive of GST), and such other charges and fees as may properly be incurred by it under this Agreement, including without limitation:

(a) Charges for excess Data, Traffic, Bandwidth, Text Messages and/or power usage by Customer; and
(b) Additional license fees charged to OzHosting under software licenses where fees are calculated by reference to usage or number of users or mailboxes.

4.4.2 Usage Charges: Where applicable, Usage Charges for Bandwidth are measured by the billing data collection devices that measure data traffic at the OzHosting router interface at the edge of the OzHosting network, and are calculated according to the Plan selected by Customer. In the event of a billing dispute, Customer acknowledges and agrees that it will accept these data traffic records as accurate and final records of the data traffic to which they relate..

4.4.3 Refund of Initial Fees: Customer is solely responsible for selecting the Online Plan appropriate to its requirements. Once a Plan has been ordered, OzHosting will not issue a refund of the initial payment of fees unless:
(a) Customer makes a request for a refund within 72 hours of the initial payment of fees; and
(b) OzHosting has not irrevocably committed itself to expenses associated with the supply of services, including without limitation ordering of domain names and activation of services covered by the Online Plan selected by Customer.

4.4.4 Invoices: OzHosting will issue and post invoices on the Control Panel in accordance with its billing cycle, as from time to time notified to Customer:

(a) For fixed or recurring charges, in advance;
(b) For variable charges including Usage Charges and excess Usage Charges, in arrears;
(c) Otherwise as notified by OzHosting from time to time.

4.4.5 Billing Periods: OzHosting will use its best endeavours to bill all charges for the relevant billing period in the invoice relating to that period. Where charges relating to that billing period arise for any reason after the invoice is issued, including without limitation late notification of a Supplier of billing errors, OzHosting may include such charges on a later invoice.

4.4.6 Payment Authorities: Customer hereby authorises OzHosting to debit all fees under any invoices rendered by it under this Agreement and as the Customer chooses, to their nominated Paypal Account or to Customer’s or Associates nominated credit card or card’s as listed in the OzHosting Control panel and all subsequent auto-renewals will be charged to the credit card which is listed within the OzHosting control panel and as marked default credit card for payment. The customer can also to nominate to pay any invoice or charge in excess of $100.00 by bank transfer and advise [email protected] of the renewal or order number and amount paid (EFT payments). Any customer using EFT must have a credit card on their account as a backup in the event they cannot process an EFT payment by the due date.The Customer acknowledges they can call OzHosting or log into OzHosting control panel at any time to update credit card information, default payment method and/or suspend auto-renewal of a subscription. OzHosting accepts no liability for a Customer using an associates Credit card for payment within OzHosting control panel marked as default payment, the Customer assumes full liability for payment and authorises OzHosting to use an associates credit card.

OzHosting reserves the right to recover or partially recover the transaction fees imposed by financial institutions as a consequence of the customer’s use of a specific payment method.

This Includes the following:

– Visa, Mastercard and Amex; surcharge 0.9% of transaction value
– PayPal; handling fee of $0.20 and a surcharge of 2.5% of transaction value
– EFT direct to Ozhosting; no transaction fees

4.4.7 Provisioning of Services: OzHosting will provision services constituting the Plan selected by Customer within the following time frames:

(a) Domain Name services: within 24 hours of receipt of payment, provided however that:
(i) Payment for renewal must be received at least 72 hours before the expiration of the current registration; and
(ii) If Customer has NOT been notified by Melbourne IT of registration or renewal of a Domain Name within 72 hours, Customer must promptly notify OzHosting. Failure to notify OzHosting on a timely basis may result in loss of the domain name;
(b) Instant Applications: these applications are normally provisioned on average within 1 hour of receipt of payment, though external factors can sometimes cause delays of an hour or more. Instant Applications are those products and services designated on the Website as “Instant” and include Share-point Services, Web Hosting, Windows VPS, Linux VPS, Cold Fusion, Urchin, Application Vault and sub-applications and Site Builder;
(c) All other Applications/services: within 3 business days, depending on the particular services,

4.4.8 Account Activation: Ozhosting will forward details, including User ID and password, for activating services covered by the Online Plan selected by Customer to the contacts specified by Customer when registering so that Customer can activate the account within 24 hours of placing its order, subject to:

(a) Payment for that Plan having been received and cleared in full;
(b) No other accounts of Customer being outstanding;
(c) The domain name nominated by Customer being a valid, currently registered domain name; and
(d) OzHosting being satisfied in its sole discretion that Customer will use the services selected by it in accordance with its Acceptable Use Policy.

4.4.9 Account Maintenance Fee: where Customer’s authority to OzHosting to debit invoiced fees and charges against a nominated bank Account, debit card or credit card expires or is otherwise terminated, OzHosting may charge, and Customer agrees to pay, an account maintenance fee of $1.50 on each monthly or quarterly invoice rendered by OzHosting to Customer, including, where Customer has multiple services, on each invoice rendered for each of those services.

4.4.10 Downgrade Fee: where Customer requests a change to the specifications for its Services which results in lower monthly fees, and OzHosting agrees to such request, OzHosting may charge Customer a Downgrade Fee of $25. Where a customer cancels a service all unpaid amounts for the provision of that service become immediately due and payable and a Downgrade Fee of $25 may also be charged by Ozhosting.com.

4.4.11 Credit Information: The Customer hereby agrees and consents to OzHosting acquiring a credit report from any credit reporting agency containing personal information (as well as information concerning commercial creditworthiness and activities) for purpose of assessment by OzHosting of an application for credit (whether commercial or private) or for the collection of payments which are overdue. The Customer also agrees and consents to OzHosting reporting information to any credit reporting agency that the Customer is in default of the trading terms of this Agreement or that it has handed over collection of the Customer’s account to a collection agency.

4.4.12 Transaction Currency: AUD – All transactions are processed in AUD

4.4.13 Transaction Security: When purchasing from Ozhosting your financial details are passed through a secure server using the latest 256-bit SSL (secure sockets layer) encryption technology.256-bit SSL encryption is approximated to take at least one trillion years to break and is the industry standard. If you have any questions regarding our security policy, please contact our Customer Support Team on 1300 467 843.

4.4.14 Merchant Charge-backs: The Customer hereby agrees in the event of a Merchant Charge-back that the Customer Account which the Charge-back has occurred will be placed on Credit Hold and no further transactions will be processed until the outstanding amounts are settled. An additional fee of $25.00 per Charge-back will be applicable before Account is removed from Credit Hold. The Customer understands this may result in other services being disabled and not being renewed In event of a customer account being placed on Credit Hold.

4.4.15 Promotional Periods: From time to time OzHosting runs Promotions or Special offers such as discounts for paying Annually your subscription period. OzHosting reserves the right to change these promotions at any time and without notice. These promotions are generally for New Customers and not for existing Customers on Renewal Subscription periods. OzHosting may elect to run promotions to New and Existing customers as it sees fit.

4.5 Proprietary rights in Hardware & Software

Customer shall have no right, title, or interest of any kind whatsoever in the Software, Hardware, documentation, or any copyrights, patents or trademarks, embodied or used in connection therewith, except for the limited license to use the Hardware and Software provided in this Agreement.

4.6 Maintenance of Hardware & Network

4.6.1 OzHosting Hardware: OzHosting will maintain and support Hardware in accordance with best industry practice or, where applicable, vendor specifications.

4.6.2 Scheduled Maintenance: OzHosting will perform all regularly scheduled maintenance to maintain Hardware and the OzHosting network outside Business Hours. OzHosting will give Customers notice by email and will be posted on our Service Status site – http://status.ozhosting.com at least 48 hours in advance if scheduled maintenance requires interruption to Services for more than 30 minutes.

4.6.3 Replacement of Hardware: OzHosting may substitute, change or modify the Hardware at any time, but shall not thereby substantially alter the technical parameters of the Services without the prior approval of Customer unless the effect of the substitution, change or modification is to enhance the capacity or specifications of the Hardware.

4.6.4 Technical Support: OzHosting will provide technical support by enabling Customer access through the Control Panel to correct operational procedures for tools and modules specified in this Agreement and to links to operational resources on the OzHosting Website. Customer acknowledges that technical support is limited to hardware/network failures and utilities provided by OzHosting.

4.7 Software

4.7.1 Operating System and Web Server Software License: During the Term, OzHosting grants the Customer a non-transferable, non-exclusive license to use and install the Software specified with the service. OzHosting warrants that it has full right, title and interest in the Software to grant sub-licenses by virtue of a license granted by the vendor of the Software (“Vendor License”) to OzHosting to use and sub-license the Software. OzHosting does not warrant third-party Vendor Software in any way whatsoever but undertakes to pass onto Customer the benefit of all warranties and indemnities relating to the use of the Software under the Vendor License.

4.7.2 Software License Restrictions: Customer agrees that it will not, directly or indirectly (and it will not allow others to):

(a) copy the Software, except as necessary to install on Hardware and for internal, archival purposes. In the event Customer makes authorized copies of the Software, Customer shall reproduce all proprietary notices on such copies;
(b) sell, rent, lease, license, transfer, give possession of, or sub-license the Software to others, other than as permitted in the Vendor License; and/or
(c) write or develop any derivative or other software programs, based, in whole or in part, upon the Software or any Confidential Information.

4.7.3 Exclusions: Customer acknowledges that breach of clause 7.2 may result in invalidation of warranties relating to Software, including the benefit of third party Vendor warranties.

4.7.4 Software Provided by Customer: Where Customer provides or uses other software on or in connection with its website, Customer warrants that it has full right title and interest under a valid license to use that software and to grant a valid sub-license to OzHosting to install and run that software during the Term solely in connection with providing Services under this Agreement.

4.7.5 Termination: in pursuant to clause’s 11, Customer will immediately cease using and destroy any Software which OzHosting has granted a non-transferable, non-exclusive license to use.

4.8 Storage; Data retention

4.8.1 Storage: At all times, you shall bear the full risk of loss and damage to your hosted services and all of your content on the hosted services. You are entirely responsible for maintaining the confidentiality of your password and account information and securing access to your hosted services including websites, mailboxes, Virtual Machines and File Sharing services. You agree you are solely responsible for all acts, omissions and use under and charges incurred with your account or password or in connection with the Site or any of your website content displayed, linked, transmitted through or stored on the Server. You shall be solely responsible for undertaking measures to:

(a) prevent any loss or damage to your hosted services content;
(b) maintain independent archival and backup copies of your hosted services content;
(c) ensure the security, confidentiality and integrity of all your hosted services content transmitted through or stored on OzHosting servers; and
(d) ensure the confidentiality of your passwords and use Multi-Factor Authentication wherever that is available.

OzHosting’s servers are not an archive and OzHosting shall have no liability to you or any other person for loss, damage or destruction of any of your content.

4.8.2 Hosted Exchange Business Email: alone is not an archival service. You are solely responsible for maintaining independent backup copies of your emails. OzHosting performs daily disaster recovery backups on the entire Hosted Exchange Business Email Platform for restoration in the event of a disaster, individual mailboxes cannot be restored because of this backup process. OzHosting expressly disclaims any liability or responsibility for any loss, damage or destruction of your emails, contacts, distribution lists, or any other content.

4.8.3 Backup & Restoration: We use best efforts to maintain backups of all OzHosting’s products services, however, we cannot guarantee backup restores for individual websites, databases or Hosted Exchange Business Email.

4.8.3.1 Restoration Fees: A fee of $60.00 per 30 minute period will apply for any requested restoration of individual websites, virtual server’s or databases.

4.9 Acceptable use policy & use of services

4.9.1 Acceptable Use Policy: Customer agrees and acknowledges that it has read OzHosting’s Acceptable Use Policy published on the OzHosting Website at: https://www.ozhosting.com.au/legal/ and agrees and undertakes that it will at all times observe and comply with that Acceptable Use Policy, as may be amended from time to time by publishing of amendments on the OzHosting Website.

4.9.2 Sole Responsibility: Customer acknowledges and agrees that it is solely responsible for all information, material, content or data (“Content”) of any postings, data or transmissions utilising the Services or any other use of the Services by Customer or User.

4.9.3 Removal of Offending Content: Customer acknowledges that OzHosting has the right to remove Content in accordance with the terms of the Acceptable Use Policy, including without limitation and without notice to Customer any Content deemed by it in its sole opinion to breach or offend its Acceptable Use Policy, or to suspend Services or disconnect or deny access to Services if in its sole opinion it deems Content to breach or offend its Acceptable Use Policies.

4.9.4 Excessive Use: Customer covenants and agrees that it will at all times observe and comply with and not breach usage limitations, including bandwidth, traffic (inbound, outbound and aggregated), data storage and backup, server resources and mailboxes, applicable to the Plan chosen by the Customer. The customer also agrees and covenants that it will not use the Services in an excessive or unusual way.

4.9.5 Suspension: Customer acknowledges that OzHosting is entitled to suspend or cancel Services, permanently or temporarily, if Customer breaches clause 4.11, and that if at any time OzHosting does suspend or cancel the Services, the Customer remains liable for any charges incurred:

(a) through excessive or unusual usage; and
(b) where the suspension is temporary, during such suspension.

4.9.6 Indemnity: Customer agrees to and shall hold harmless and indemnify OzHosting against any loss, expenses, liability, damages or claim made against it by any party whatsoever (including without limitation Customer, a User or any party claiming through Customer) which OzHosting may suffer, directly or indirectly, resulting from or arising out of Customer’s or User’s breach of the Acceptable Use Policy or the misuse or abuse of the Services in any way whatsoever by Customer or any User.

4.10 Release of information to authorised agencies

4.10.1 Monitoring Use of Services. In order to comply with, and subject to, any applicable laws, including without limitation the Telecommunications Act 1997 and the Telecommunications (Interception) Act 1979, OzHosting may at any time:

(a) When required by a warrant issued by a Regulatory Agency or an authorised law enforcement agency or court, intercept or monitor Services, or enable another person authorised by a warrant issued by a Regulatory Agency or an authorised law enforcement agency or court, to intercept or monitor Services, including data hosted on or being transmitted through Services;
(b) Monitor and/or examine the use of Services, including email, records and other data in the course of installation, connection or routine maintenance of the Services, but only to the extent permitted by legislation;
(c) Suspend Services; and/or
(d) Release information obtained by any of these actions to any Regulatory Agency.

4.10.2 Indemnity. Customer agrees to and shall hold harmless and indemnify OzHosting against any loss, expenses, liability, damages or claim made against it by any party whatsoever (including without limitation Customer, a User or any party claiming through Customer or a User) which OzHosting may suffer, directly or indirectly, resulting from or arising out of any actions taken by it pursuant to clause 3.10.1.

4.11 Term & Termination

4.11.1 Term: This Agreement shall be effective for the term (“Term”) of the Plan selected by Customer. Unless Customer gives at least 30 days notice of termination within the customer control panel – (https://my.ozhosting.com) prior to the expiration of the Term, this Agreement shall automatically be extended for a further period identical to the period of the initial Term, which further period shall be referred to as “the Term” or “Subsequent Term”, and where appropriate any reference in this Agreement to Term shall be deemed to include a reference to a Subsequent Term.

4.11.2 Mutual Termination: This Agreement shall be terminated prior to the expiration of the Term in the following circumstances:

(d) either party gives written notice of a material breach of this Agreement, and the breach is not remedied within 30 days after receipt of the notice; or
(e) if either party goes into administration or liquidation either compulsorily or voluntarily (save for the purpose of reconstruction or amalgamation) or if a receiver is appointed in respect of the whole or any part of its assets or if either party makes an assignment for the benefit of or composition with its creditors generally or threatens to do any of these things, and in either event the other Party gives notice that it elects to terminate the Agreement which notice shall be effective immediately.

4.11.3 Other Termination: OzHosting may terminate this Agreement by giving reasonable notice to the Customer prior to the expiration of the Term set out in the Service if:

(a) a Regulatory Authority directs it to do so; or
(b) a Supplier terminates an agreement to supply services to OzHosting, and as a consequence OzHosting is unable to supply Service(s) to Customer through an alternative Supplier on reasonable commercial terms.

4.12 Consequences of termination

4.12.1 In the event of termination of the Agreement prior to the expiration of the Term by reason of a default by Customer under clause 11.2(a) or by reason of actions by or on behalf of Customer under clause 11.2(b), all amounts which would have become due and payable under the Agreement had it continued in effect until the expiration of the Term shall immediately become due and payable, and Customer shall immediately pay all amounts so becoming due and payable. If Customer has made a payment for services in advance, OzHosting will apply the balance of any such payment remaining (calculated on a pro rata basis) against any amounts due and payable by the Customer, but in no other case shall Customer be entitled to a refund of such payment.

4.12.2 In the event of termination of the Agreement prior to the expiration of the Term under clause 11.2, and on the expiration of the Term, OzHosting will bill Customer for all services up to the date of termination, and Customer will immediately pay that invoice and any other outstanding invoices.

4.12.3 On the expiration of the Term or on termination of the Agreement pursuant to clause’s 7,11, OzHosting will immediately cancel Services, and Customer will immediately cease using Services and any Software and Hardware provided under this Agreement.

4.13 Suspension of services

4.13.1 Events of Suspension. OzHosting may, in its sole discretion and without derogating from its right to terminate this Agreement pursuant to clause 11, at any time suspend, restrict or disconnect the supply of Services to the Customer and/or any of its customers or Users on the occurrence of any of the following events:

(a) Customer fails to pay any outstanding invoices within 7 days of written demand by OzHosting;
(b) Customer breaches OzHosting’s Acceptable Use Policy and fails to rectify that breach immediately on written demand by OzHosting;
(c) OzHosting is directed by any Regulatory Agency and/or authorised law enforcement agency to do so;
(d) During any technical failure, modification or maintenance of the Service provided that OzHosting will use its reasonable endeavours to ensure that the Service are resumed as soon as practicable; and/or (e) OzHosting deems it necessary for purposes of scheduled or unscheduled maintenance.

4.13.2 Consequences of Suspension. OzHosting will not reconnect or re-activate Services suspended pursuant to clause 13.1(a), (b) and (c) until Customer has paid any re-connection or re-activation fee then in effect for each Service. Customer will remain liable under this Agreement for all payments falling due within the period for suspension of Services, including without limitation for all fees accruing and accrued during the suspension.

4.13.3 Indemnity. Customer agrees to and shall hold harmless and indemnify OzHosting against any loss, expenses, liability, damages or claim made against it by any party whatsoever (including without limitation Customer, a User or any party claiming through Customer) which OzHosting may suffer, directly or indirectly, resulting from or arising out of any actions taken by it pursuant to clause 4.13.1.

4.14 Amendment of these terms & conditions

4.14.1 Amendment of Agreement: This Agreement may be amended or varied as follows:

(a) If this Agreement is automatically extended pursuant to clause 11.1, OzHosting may, during the Subsequent Term or Terms, amend or vary the Fees charged for Services and terms relating to the operation of Services, by posting the amendments or variations on the OzHosting website. Such amendment or variation shall become effective 24 hours after the date of posting, and the Customer shall be deemed to have accepted such amendment if it continues to use the Services after the amendments become effective.
(b) OzHosting may from time to time amend or vary these Terms and Conditions, its Acceptable Usage Policy and its Privacy Policy by publishing such amendments or variations on the OzHosting Website. These amendments and/or variations shall take effect from the date they are published on the OzHosting Website.

4.15 Privacy

OzHosting may collect, use and disclose information relating to Customer for purposes related to the supply of Services, including without limitation billing and account management, business management and product development, and to the provision of information about promotions, products and services of OzHosting, in accordance with the Privacy Policy set out on the Trustee Website https://privacy.truste.com/reseller/privacy-policy/OzHosting.com-Pty-Ltd/certified/0667ee91-ae6d-4f9a-8ca8-31fd34a0f116, but will not use such information so as to breach any Privacy Law.

4.16 Notices

4.16.1 Subject to clause 16.2, any notice to be served on either of the parties by the other shall be sent by prepaid recorded delivery or registered post or by facsimile or by electronic mail and shall be deemed to have been received by the addressee within 72 hours of posting, within 24 hours if sent by facsimile to the correct facsimile number (with correct answer-back), or within 24 hours if sent by electronic mail to the correct electronic mail address of the addressee.

4.16.2 Any notice to be served by OzHosting in relation to the variation or amendment of the terms set out in the Plan selected by Customer, including prices for Services and terms relating to the operation of Services, during Subsequent Terms may be served by posting the amendment or variation on the Customer’s Control Panel, and such notice shall be deemed effective 24 hours after the date of posting of the notice.

4.17 Governing law

This Agreement shall be governed by the law in effect in the State of New South Wales, and the parties submit to the jurisdiction of the Supreme Court of New South Wales.

4.18 General provisions

4.18.1 Assignment: The Customer may not transfer its rights or obligations under this agreement to, or share them with, anyone without the prior written consent of OzHosting. OzHosting may transfer its rights or obligations under this agreement to, or share them with, anyone on notice to the Customer.

4.18.2 Severability: If any provision or portion of this Agreement is held to be unenforceable, it shall be enforced to the maximum extent permissible consistent with the terms hereof, and the remainder of this Agreement shall continue in full force and effect.

4.18.3 Entire Agreement: This Agreement represents the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior and/or contemporaneous agreements and understandings between the Parties with respect to the subject.

4.19 Definitions

Acceptable Use Policy means the policy set out at URL https://www.ozhosting.com.au/legal/ which defines acceptable and unacceptable use of the Services by the Customer.

Activation means the first order through OzHosting Store or log on by a Customer to the OzHosting Control Panel with the User ID and password supplied by OzHosting which when successfully completed enables the services selected by Customer to be activated.

Associates means a person who is connected with others in a business; director, employee, co-worker, family or friend.

OzHosting or OZHOSTING means OzHosting.com Pty Limited.

OzHosting Network or OzHosting IP Network means the data communications network (based on TCP/IP and other Internet protocols) between the OzHosting IP routers owned and operated by OzHosting.

OzHosting Website means the website located at the URL, http://www.ozhosting.com or https://www.ozhosting.com.au

OzHosting Control Panel means the website located at the URL, https://my.ozhosting.com or https://my.ozhosting.com.au

OzHosting Store means the website located at the URL, https://store.ozhosting.com or https://store.ozhosting.com.au

Business Hours means the hours between 8.30 am and 5.30 pm on normal business days in the State of New South Wales, Australia.

Customer means the end user of Services to whom OzHosting sell Services, or to whom it’s authorised Resellers resell Services.

Plan or Online Plan means the particular business solution selected online by Customer from the range of solutions offered by OzHosting on the OzHosting website, and specifies each of the components of that solution, including disc space, data traffic volumes, mail box sizes and fees relating to the Plan.

Privacy Law means and includes the Privacy Act (Cth) 1988, the Privacy and Personal Information Protection Act (NSW) 1988, and any other law, statute or code in Australia that regulates the dissemination and use of information about or concerning an individual person or corporation.

Privacy Policy means the OzHosting Privacy policy as set out from the main URL page http://www.ozhosting.com/terms-and-conditions/privacy-policy.aspx.

Provisioning in relation to services provided under the Plan selected by Customer means OzHosting doing everything necessary to set up and manage those services, and includes configuring and programming its equipment, networks and databases to enable all options selected by Customer.

Regulatory Authority means and includes the Australian Communications and Media Authority, the Australian Competition and Consumer Commission, the Australian Communications Industry Forum Limited, the Telecommunications Industry Ombudsman, the Internet Industry Association, the Asia Pacific Network Information Centre, authorised domain name registrars, and any other competent government or statutory body or authority having jurisdiction over OzHosting.

Service or Services means the service or Services set out in the Plan selected by Customer and any related Hardware, Software and additional services which OzHosting supplies in connection with the Service or Services.

Service Level Agreement means the agreement set out at the URL https://www.ozhosting.com.au/legal/

Supplier means any supplier of goods or services (including without limitation interconnection services) used directly or indirectly by OzHosting to supply Services under this Agreement.

Term means the period of the online Plan selected by Customer and Subsequent Term means any further period for which this Agreement is automatically extended pursuant to clause 12.1.

Usage Charges means any charges for services which are measured, calculated or determined by reference to use of the Services by Customer.

User means any person or entity authorised by Customer to access and/or use the Services and includes any person accessing any Customer website.

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This is an important document. It sets out the Product-specific Terms and Conditions on which OzHosting.com Pty Ltd [ABN 48 153 588 142] (“OzHosting”) provides Services to you, the Customer. You accept these Terms and Conditions when you purchase a Cloud Service through OzHosting Store and our OzHosting Control Panel. When you have accepted these Terms and Conditions, they become a legal agreement between you and OzHosting.com Pty Ltd. Please read it carefully. Once you have accepted these Terms and Conditions, you can always access and review them via the OzHosting Website and its contents are owned and operated by OzHosting.com Pty Limited (“OzHosting”).

1. Services

1.1 These Terms and Conditions cover Text Messaging Services (together or separately referred to as “Services”).

1.2 Text Messaging Services: includes:

(a) Text messaging services to companies, small businesses, and individual business users. You may access and use our Service through your corporate exchange server or intranet, through your personal computer via an application programming interface (“API”) that we make available to you, or through your browser.
(b) Text messaging through OzHosting’s preferred SMS provider (Bulletin.net, Inc.).

2. Subscription to service

If you subscribe to use our Service, the following terms will apply to your subscription:

2.1 Authorised Subscribers: Only adults, who are at least eighteen (18) years of age are eligible to subscribe to use our Services. In addition, to use the Service, you must be fully competent to enter into and comply with the terms, conditions, obligations, representations, and warranties set forth in these Terms of Service. By subscribing to and using our Service, you represent and warrant that you have the right, authority, and capacity to enter into these Terms of Service and can abide by all of the terms and conditions set forth herein. If you acting on behalf of a business, you represent and warrant that you are an authorised representative of that business duly authorised to subscribe and access these Services and to legally bind the business to these Terms of Service.

2.2 Access and Use of our Service: As a subscriber to our Service, you will be granted for the period of your subscription a limited, non-exclusive, non-transferable, revocable right to –
(i) access and use the Service and any software underlying our Service in accordance with these Terms of Service and
(ii) use any documentation solely in connection with your use of the Service. You and any third party acting on your behalf are expressly prohibited from copying, creating derivatives works of, distributing, selling, disclosing, lending, transferring, conveying, modifying, decompiling, disassembling, or reverse engineering any underlying software comprising the Service for any purpose whatsoever. For the avoidance of doubt, you may not allow any unauthorised third party to access the Service.

2.3 Download and Use of APIs: As a subscriber, you will have the right to download, install, use, and display certain APIs that we may make available to subscribers, which will be made available to you in accordance with the applicable End User License Agreement (“EULA”). You and any third party acting on your behalf agree to comply with the applicable EULA and agree to refrain from copying, creating derivatives works of, distributing, selling, disclosing, lending, transferring, conveying, modifying, decompiling, disassembling, or reverse engineering such APIs.

2.4 Text Messages: We agree that you or your licensors will retain all right, title, and interest in the text messages or content that you send through our Service. To the extent permitted by applicable law, you grant to us and any third party carrier (the “Carrier”) –
(i) a non-exclusive license to send, intercept, and read the text messages and use your messages and content as necessary to perform the Service contemplated herein, (ii) a perpetual, non-exclusive license to store all text messages and content on the back-end of our servers and to create archived backup copies, and
(iii) provide the text messages and content as required by any governmental body or court order, or as required to defend our rights in a legal dispute or as may be legally compelled by a third party. You expressly warrant that you own all right, title, and interest in all content in your text messages or in the alternative, that you have procured a valid license from the copyright owner of the text message content, which authorizes you to grant sub-licenses to display, store, and back-up your text message content as set forth herein. You are solely responsible for ensuring that all text message content that you upload is appropriate; legal and not in violation of any federal, state, or local law or ordinance; is not obscene or pornographic; does not defame any third party; is not threatening or harassing; does not invade anyone’s privacy; is not infringing; and is not otherwise objectionable. We reserve the right in our sole and absolute discretion to monitor any text or other content that you send through our Service in order to ensure that they conform to our usage guidelines, policies (including but not limited to our Acceptable Use Policy), these Terms of Service, and our agreement with the applicable Carrier.

2.5 Volume Restrictions: You acknowledge and agree that we may limit the volume of messages that you are able to send. We will make commercially reasonable efforts to notify you in advance of imposing any such limitations on your account. All new accounts will have an initial message limit of fifty (50) messages per day and 500 per month, which can be increased upon request.

2.6 Trial: If you subscribe to the Service a free trial you will receive ten (10) free messages to evaluate our Service. Upon exhaustion of your ten (10) free messages, we will start charging you for the Services. You agree and acknowledge that we have no obligation to notify you that your free trial has ended.

2.7 Emergency Services: You acknowledge and agree that you may not currently access any 911 or similar emergency services through this Service. Our Service is not intended to replace any primary phone service, such as a traditional landline or mobile phone, that may be used to contact emergency services.

2.8 Transmission of Messages and other Content: You acknowledge and agree that your messages and other content are transmitted in real time and that we have no visibility or control over individual messages or their content. You are solely responsible and liable for all messages and content that you send, including any loss, damage, or liability arising from any transmission, including but not limited to billing or payment issues or other mistakes that you transmit.

3. Standard of conduct

3.1 Compliance with our Acceptable Use Policy: You agree to conduct yourself in your use of our Service
(i) in manner that will not result in liability to us or to the Carrier,
(ii) in a manner that will not disparage or damage the reputation of us or the Carrier, and
(iii) in good faith at all times. You further agree to ensure that your recipients conduct themselves in a substantially similar manner. In addition, you agree to comply at all times with the terms of our Acceptable Use Policy.

3.2 Compliance with Applicable Laws and Industry Standards or Codes: You agree to comply with and ensure that the Service is used in compliance with all applicable state, federal, and international laws, including but not limited to the Telephone Consumer Protection Act and industry standards or codes (including advertising codes).

3.3 Other Terms and Conditions. If you have a dedicated telephone number, the following will apply:
(i) Peer-to-Peer: Any message that you send must be used exclusively as peer-to-peer, meaning that (a) your message must go to another SMS service subscriber, and (b) your message must have been initiated due to human interaction and not by an automated or timed message.
(ii) Fair Use Basis.You agree and acknowledge that we provide mobile originated messages, meaning messages initiated on a mobile phone to us, on a “Fair Use Basis.” “Fair Use” means that the number of mobile originated messages should generally be substantially similar to the number of messages sent by you from our specific Service.

This is an important document. It sets out the Product-specific Terms and Conditions on which OzHosting.com Pty Ltd [ABN 48 153 588 142] (“OzHosting”) provides Services to you, the Customer. You accept these Terms and Conditions when you purchase a Cloud Service through OzHosting Store and our OzHosting Control Panel. When you have accepted these Terms and Conditions, they become a legal agreement between you and OzHosting.com Pty Ltd. Please read it carefully. Once you have accepted these Terms and Conditions, you can always access and review them via the OzHosting Website and its contents are owned and operated by OzHosting.com Pty Limited (“OzHosting”).

• 1. Services
• 2. Domain Name Regulation
• 3. Domain Names
• 4. Payment of Domain Name Fees

1. Services

1.1 These Terms and Conditions cover Domain Name Services (together or separately referred to as “Services”).

1.2 Domain Name Services: includes:

(a) Domain Name Services: includes the registration and maintenance of Domain Names through OzHosting’s preferred domain name registrar’s (Melbourne IT & Enom) for top level domains (“TLD’s” and gLTD’s).

2. Domain name regulation

2.1 The registration and administration of domain names is conducted pursuant to general policies determined and promulgated by the Internet Corporation for Assigned Names and Numbers (“ICANN”).

2.2 ICANN has delegated the registration and administration of particular TLD’s (au, uk etc) to accredited Domain Name Registrars who conduct the registration and administration of domain names in those TLD’s according to general ICANN policies, as interpreted by each Domain Name Registrar. There may accordingly be significant differences in administration of domain names for particular TLDs.

2.3 In order to purchase a domain name, Customer enters into a registration agreement with OzHosting’s domain name registrar, Melbourne IT relating to the relevant TLD and its administration of that TLD. As there may be significant differences between agreements relating to each TLD, Customer must carefully review and agree to, and accept sole responsibility for agreeing to, each particular registration agreement.

3. Domain names

3.1 Registration: OzHosting accepts no responsibility for the refusal of a domain name registrar to register a particular domain name, and Customer irrevocably waives any rights of any kind whatsoever against OzHosting arising out of the refusal of a domain name registrar to register a particular domain name.

3.2 Renewal: ICANN policies do not permit domain name registrars to solicit nor pay fees on behalf of Customers for renewal of domain names. It is Customer’s sole responsibility, on receiving a notice for renewal of a domain name, to promptly pay all fees for renewal or risk loss of the domain name. Neither OzHosting nor Melbourne IT accepts liability for any failure, for any reason whatsoever, to renew a domain name on a timely basis.

3.3 Cancellation: ICANN policies require cancellation of domain names in certain circumstances, including fraud, provision of false registration details, interference with the rights of third parties and other grounds. A Customer is not entitled to a refund of registration fees, in whole or in part, on any such cancellation. OzHosting does not, under any circumstances, refund any registration fees, in whole or in part, on any cancellation of a domain name by a domain name registrar. It is the sole responsibility of Customer to review and adhere to the terms and conditions of the agreement for each domain name, including without limitation the terms and conditions which may lead to cancellation of domain names.

3.4 How to Cancel a Domain Name Renewal: We DO NOT accept telephone cancellations, a cancellation must be in writing or submitted via a ticket within the control panel.

4. Payment of domain name fees

4.1 Payment of Domain Names Fees: OzHosting will notify Customer of fees for registration and/or renewal of domain names. Under ICANN policies Registrars are not permitted to solicit nor pay fees on behalf of Customers for renewal of Domain names. It is Customer’s sole responsibility, on receiving a notice for renewal of a Domain name, to promptly pay all fees for renewal or risk loss of the Domain name. Neither OzHosting nor Melbourne IT accepts liability for any failure, for any reason whatsoever, to renew a Domain name on a timely basis.

4.2 Delays in Payment of Domain Name Fees: OzHosting cannot take action to register or renew Domain names until in each instance it has received payment for the particular service. Customers must allow 3 business days to elapse after making payment and issuing instructions to OzHosting to register or renew a Domain name before OzHosting is able to process the application or renewal. Neither OzHosting nor Melbourne IT accepts liability for failure to register or renew a Domain name through delays of Customer in making payments and/or arising out of administrative delays, acts or omissions of Customers or third parties or out of automated systems failures.

This is an important document. It sets out the Acceptable Usage Policy by which OzHosting.com Pty Ltd (“OzHosting”) provides Hosting Services, Cloud Hosting, Text Messaging and/or Domain Names Services to you, the Customer. This Usage Policy applies to all Customers and users of OzHosting’s infrastructure, network and systems for communications and hosting services (collectively “Services”). It is intended to ensure that your use (and that of all other Customers and users) of OzHosting’s Services is optimized by minimizing disruptions and outages caused by use otherwise than in accordance with the terms of each Customer’s agreement with OzHosting or by use which unfairly interferes with the rights of other Customers and Internet users. It is also intended to ensure that each Customer understands its obligations to comply with legislation which applies to Content which may be hosted on Customers websites or transmitted over telecommunications networks.

We may from time to time amend this Usage Policy. Your use of our Services after any amendments or revisions have been posted on the OzHosting.com website will constitute your acceptance of the amended Usage Policy.

1. Responsibilities of Customers

You must:

• Use our Services in a manner which complies with all relevant laws, whether Federal, State or international;
• Comply with all service usage limitations applicable to the plan or product selected by you;
• Be solely responsible for disseminating or posting content through the Services or publishing on the web pages of your site, including obtaining legal permission to use any works included in such content and/or web pages;
• Respect the legal protection afforded by copyright, trade mark, patent and other laws protecting intellectual property rights in material, including content and software applications, accessible through the Internet;
• Respect the privacy of others and the legal protection afforded by the Privacy Act (Cth) 1988 and all other applicable laws and regulations; and
• Use our Services in a manner which does not interfere with, jeopardise or disrupt our Services (including their operation) or other Internet users.

2. Unacceptable Usage

You must not use our Services to:

• Violate anyone’s copyright or intellectual property rights;
• Send Infringing Texts. Transmitting any material that may infringe the intellectual property rights or other rights of third parties, including trademark, copyright or rights of publicity;
• Tamper with the Carriers’ networks. Interfering with or disrupting networks connected to the Service or violating the regulations, policies or procedures of such networks;
• Publish or transmit defamatory, obscene, threatening, abusive or offensive material or content which breaches the ratings of the Classification Board;
• Publish content which is unsuitable for minors without using appropriate warnings and/or labeling systems for that content,;
• Enable minors to access content inappropriate for a minor or to make contact with minors other than minors known to you;
• Facilitate or engage in “spamming” which we regard as unsolicited broadcast or commercial email or text messages sent to recipients who do not affirmatively and verifiable request the material, collect or redirect responses from unsolicited emails sent from accounts with other Internet service providers or Carriers, or any activity which is prohibited under:
  (a) the Spam Act 2003 (Cth);
  (b) any other applicable legislation and regulations; and
  (c) policies or regulations of any regulatory authority or body having jurisdiction over such activities; Breaches of the SPAM Act 2003 (Cth) carry heavy penalties (up to $220,000 per day for individuals and up to $1,100,000 per day for companies).
• Facilitate or engage in the sending of solicited broadcast, bulk or commercial email or otherwise utilize our Services in a manner which may, in our opinion, compromise or adversely affect server performance or network integrity.
• Create or propagate Internet viruses, worms and other types of malicious programs;
• Facilitate or engage in “Hacking” which we regard as including gaining illegal or unauthorized access to any computers, accounts or networks accessible through the Internet;
• Misrepresent transmission information by forging, deleting or altering message headers, return mail information and/or Internet Protocol addresses in order to conceal or misidentify the origin of a message;
• Interfere with, disrupt or jeopardise or threaten to interfere with, disrupt or jeopardise our Services and/or the ability of our customers or any of them to use the Services; or
• Breach any relevant law, Federal, State or international.
• Facilitate or engage in “spamming” which we regard as unsolicited broadcast or commercial email sent to recipients who do not affirmatively and verifiable request the material, collect or redirect responses from unsolicited emails sent from accounts with other Internet service providers, or any activity which is prohibited under:

If you have Cloud Hosting or other Shared Web Hosting, you also must not:

• Distribute, File-share or store multimedia files if those files account for more than 20% of the disc space usage on your website in terms of total space and/or number of files. For these purposes multimedia files comprise any graphic, pdf, audio and video files;
• Use our Services for development purposes;
• Use our Services for CGI script sharing; or
• Run background programs without our prior written permission.

3. Fair Usage

You agree to comply with the service usage limitations of the plan or product selected by you. Service usage limitations apply to:

• Bandwidth
• Traffic (inbound, outbound and aggregated)
• Data storage
• Text Messaging
• Server resources
• Mailboxes

It is your responsibility to be aware of the usage limitations under the plan or product selected by you, and to observe them.

These limitations enable us to operate our network at optimal efficiency for the benefit of all customers and users, and to ensure that all our customers enjoy internet services of the highest quality. If you exceed the service usage limitations applicable to your plan, we may at our option shape your services, charge additional fees and/or take other actions to restrict use of the services until the service usage limitations are observed. If excessive use in breach of the service usage limitations in your Plan adversely affects server performance or network integrity, we reserve the right to shut down your service without notice to you.

OzHosting reserves the right to refuse service or shut down a service if your peak usage of resources exceeds 10x the usage of an average OzHosting customer. This includes but is not limited to total mail domain allocated space, the number of mail users under unlimited user plans, email hosting, shared web hosting and virtual server data usage under unlimited plans. Additional fees and charges may apply for usage outside these terms.

4. Breach of Usage Policy

We exercise no direct supervision or control whatsoever of content and software transmitted through our network or hosted on our infrastructure, and we do not monitor your websites, the content published them or your activities to determine whether they fail to comply with this Usage Policy or with any relevant law. We do monitor usage limitations using various tools to ensure that our network and infrastructure is operating at optimal efficiency. When we become aware of any breach or threatened breach of this Usage Policy, we may take whatever action we deem necessary, in our sole discretion and without notice to you, to correct such breach or threatened breach, including:

• Monitoring your website and traffic;
• Shutting down a website or Service;
• Suspending or denying access to the Services or to the Internet on a temporary or permanent basis; and/or
• Deleting or removing content or software stored on our infrastructure.

In certain circumstances we can be required to remove content from our network infrastructure by third parties, including on receipt of a Take Down Notice under the Copyright Act of 1968 (as amended)(Commonwealth of Australia).

In all cases you will indemnify us against, and we will not be held liable for, any loss or damage which you may suffer through the suspension, unavailability or removal of the Services or which we may suffer where your use of the services causes loss or damage to a third party.

5. Disclosure of Information

You should be aware that we may disclose information relating to you and your use of the Services, including website activity and Internet transmissions, in order to comply with any court order, subpoena, summons, discovery request or order made by any competent court or any warrant or request of any authorized government agency.

6. Cooperation in Investigating Breaches of this Usage Policy

We reserve the right to investigate suspected violations of this Usage Policy, including the gathering of information from users involved and from complainants, as well as an examination of materials and content which may have been stored on or transmitted through our network. In investigating breaches of this Policy, you authorise us to cooperate with law enforcement authorities and other regulators as well as other systems administrators at other Internet and carriage service providers.

This is an important document. It sets out the Service Level Agreement, which OzHosting.com Pty Ltd [ABN 48 153 588 142] (“OzHosting”) provides Cloud Hosting Services to you, the Customer. The OzHosting.com website and its contents are owned and operated by OzHosting Pty Limited (“OzHosting”).

OzHosting.com is committed to providing superior hosting services and the highest quality of care for our clients. Our goal is to provide a Service Level Agreement (SLA) that is more competitive than industry standards while providing our clients with superior customer support.

Services Covered

This SLA applies to all OzHosting Cloud Hosting Services ordered by any Customer whose account is current and which OzHosting provides through the OzHosting infrastructure and network resources excluding Hosted Exchange 2010 Email (made End-of-Life by Microsoft and no longer supported).

100% Service Availability

OzHosting’s objective is to have Service Availability for Services covered by this SLA of at 100%. Service Availability is defined as the percentage of time Services are available to the Customer during the course of a month. Service Availability is calculated in accordance with the following formula:

Service Availability for Month = ( (T – D) x 100 ) / T
Where:
T is the total number of minutes in the Month; and
D is Downtime.

Downtime means any interruption to availability of Services which exceeds 90 seconds, but does not include interruptions resulting from:

(a) planned outages for scheduled maintenance;
(b) network outages caused by other carriers;
(c) Force Majeure (as defined in the Standard Terms and Conditions);
(d) Any other circumstances outside the reasonable control of OzHosting, including without limitation interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, virus attacks or hackers, failure of third party software (including, without limitation, ecommerce software, payment gateways, chat, statistics or free scripts) or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of this SLA;
(e) Any acts or omissions of Customer (or acts or omissions of others engaged or authorized by Customer), including, without limitation, custom scripting or coding, any negligence, wilful misconduct, or use of the Services in breach of OzHosting’s Standard Terms and Conditions and/or Acceptable Use Policy;

OzHosting measures Service Availability at the point (Service Delivery Point) where the Internet interfaces with the OzHosting router within the OzHosting Data Centre through which the Services are provided.

Service Availability is determined primarily through the OzHosting fault ticketing system at https://support.ozhosting.com. This system logs faults and issues fault tickets when a Customer notifies OzHosting of the fault through the fault ticketing system.

Third Party Products or Services – OzHosting does not provide a Service Level Agreement for Products and Services hosted external from the OzHosting Data Centre facility.

Service Level Guarantee (Cloud SLG) – OzHosting does not provide a Service Level Guarantee or Customer Rebates if our objective of 100% SLA is not achieved with our Cloud Products. You may however, upgrade or purchase a Service Level Guarantee (Cloud SLG) applicable to your Cloud Product.

This is an important document. It sets out the Service Level Guarantee which OzHosting.com Pty Ltd [ABN 48 153 588 142] (“OzHosting”) provides Cloud Hosting Services to you, the Customer. The OzHosting.com website and its contents are owned and operated by OzHosting Pty Limited (“OzHosting”).

OzHosting.com is committed to providing superior hosting services and the highest quality of care for our clients. Our goal is to provide a Service Level Guarantee (SLG) that is more competitive than industry standards while providing our clients with superior customer support.

Services Covered

This SLG applies to all OzHosting Cloud Hosting Services ordered by any Customer with the Cloud SLG Upgrade option upgraded or purchased and which OzHosting provides through the OzHosting infrastructure and network resources.

100% Service Availability

OzHosting’s objective is to have Service Availability for Services covered by this SLG of at 100%. Service Availability is defined as the percentage of time Services are available to the Customer during the course of a month. Service Availability is calculated in accordance with the following formula:

Service Availability for Month = ( (T – D) x 100 ) / T
Where:
T is the total number of minutes in the Month; and
D is Downtime.

Downtime means any interruption to availability of Services which exceeds 90 seconds, but does not include interruptions resulting from:

(a) planned outages for scheduled maintenance;
(b) network outages caused by other carriers;
(c) Force Majeure (as defined in the Standard Terms and Conditions);
(d) Any other circumstances outside the reasonable control of OzHosting, including without limitation interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, virus attacks or hackers, failure of third party software (including, without limitation, ecommerce software, payment gateways, chat, statistics or free scripts) or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of this SLG;
(e) Any acts or omissions of Customer (or acts or omissions of others engaged or authorized by Customer), including, without limitation, custom scripting or coding, any negligence, willful misconduct, or use of the Services in breach of OzHosting’s Standard Terms and Conditions and/or Acceptable Use Policy;
(f) Email delivery delay’s of any kind caused by Spam filtering, Delays with Third party Networks, 3rd Party Software, Telecommunication services and IP Blacklisting.

OzHosting measures Service Availability at the point (Service Delivery Point) where the Internet interfaces with the OzHosting router within the OzHosting data centre through which the Services are provided.

Service Availability is determined primarily through the OzHosting fault ticketing system at http://desk.ozhosting.com. This system logs faults and issues fault tickets when a Customer notifies OzHosting of the fault through the fault ticketing system.

Rebates

OzHosting.com will provide the following rebates for service unavailability: