Terms and Conditions (TCs) - Hosted Services
These are the terms and conditions under which we are prepared to provide hosted services to you. By clicking on your acceptance of these terms you agree to be bound by them.
We are: Digital Catalyst Group Pty Ltd
ACN: 103 998 885
ABN: 63 103 998 885
Our address is:
Level 26, 44 Market Street
Sydney NSW 2000
Our main e-mail address is: info [at] digcat.com
Our support email address is: support [at] digcat.com
You are: Any person or entity who pays us for our hosted services.
The terms and conditions:
1 Basis of contract
1.1 Subject to the terms set out in this document and to your compliance with our Acceptable Use Policy (“AUP”) we agree to provide to you some or all of the services described on our web site (“the Services”) at the prices we charge from time to time. We now refer to the prices of services we sell to you as the “Price”.
1.2 The information on our Web site is to be treated in law as an invitation to you to make an offer, and not itself an offer. Accordingly, there is no contract between us until we have accepted you as a client or customer by confirmation by letter or e-mail.
1.3 We are free to refuse your order or to offer to supply you at a different price or under different conditions.
1.4 This document forms the basis of the contract between us automatically upon our acceptance.
2 Identification of the Service
You acknowledge that:
2.1 You buy as a business and not as a consumer;
2.2 You understand exactly what is included in the Services;
2.3 You are satisfied that the Services are suitable and satisfactory for your requirements;
2.4 In entering into this contract you have not relied on any representation or information from any source except the definition and explanation of the Price and the Services given on our web site.
3 Price Increases
The Price is set out in the Proposal Document. We may increase our prices at any time. We will give you 90 days notice of any proposed increase.
4 Payment and Goods and Services Tax (GST)
4.1 You agree to pay the Price for the Services quarterly in advance on the first day of each calendar quarter being 1st January, 1st April, 1st July and 1st October (unless otherwise agreed in writing), together with Australian GST at the then current rate. If you can satisfy us that you are not liable to Australian GST, then we shall not charge it to you.
4.2 You may pay by EFT, credit card or cheque. If you pay by cheque it is your responsibility to make sure cleared funds are in our account by the due date.
4.3 If you pay by credit card you agree to pay the merchant fee being 1.5% for MasterCard and Visa Card and 2.5% for American Express and Diners Card.
5 Late payment surcharge
5.1 You acknowledge that if any payment for renewal of an agreement is not received in our bank by the due date we may suspend the Services and / or cancel this agreement.
5.2 We may choose not to cancel the agreement if you make an additional payment to us to cover the disruption caused by your late payment. This payment is:
5.2.1 if you have not paid within 30 days of the due date, the late payment fee will be A$11.00;
5.2.2 if you have not paid within 60 days of the due date, the late payment fee will be A$33.00;
5.2.3 if you have not paid within 90 days of the due date, your account will be closed and services will be discontinued. Recovery action will be taken for the outstanding fees.
5.3 If your account is closed by us because you have not made a payment when due or because you have for any reason failed to give us notice of cancellation you agree to pay us:
5.3.1 all of the Price for Services to the end of the quarter of cancellation, whenever that is;
5.3.2 and you agree that these terms are reasonable.
6.1 This agreement terminates upon either of us giving the other one seven (7) days notice in writing addressed by email to the last known email address of the other of us. For this and all purposes in connection with this agreement, our addresses are as at the head of this document.
6.2 If your cancellation is to be effective, you must give us full information to enable us to identify:
6.2.1 who you are and
6.2.2 that you have proper authority to cancel, and
6.2.3 the Service you wish us to cancel.
6.3 The agreement may also terminate when we terminate it, without notice, on account of your failure to comply with these terms or the AUP.
7 Money refund
You are not entitled to a refund of any fees paid to us:
7.1 If you terminate this agreement prior to the end of the calendar quarter, or
7.2 If we terminate this agreement because you have failed to comply with our AUP.
8 Interruption to Services
8.1 If it is necessary for us to interrupt the Services, we will give you reasonable notice where this is possible and when we judge the down time is such as to justify telling you.
8.2 You acknowledge that the Services may also be interrupted for many reasons beyond our control.
8.3 You agree that we are not liable to you for any loss, foreseeable or not, arising from any interruption to the Services.
9 Transfer of Domain names
9.1 If we have to transfer your domain name from another web hosting service to ourselves, you understand that:
9.1.1 we may charge for this service and
9.1.2 the transfer may take from 3 to 7 days.
10 Customer Support
10.1 We will provide direct customer support within the areas of our expertise during normal business hours. Our email address is [email protected].
10.2 Onsite and phone support is provided on a consultative basis.
10.3 We do not guarantee to provide any particular support nor that the support we provide will be adequate for your requirements.
11 SPAM and Unsolicited Commercial Email (“UCE”)
11.1 You agree that you will not:
11.1.1 use or permit others to use our network to transmit UCE
11.1.2 publish or permit publication of, sites or information that is advertised by UCE from other networks. You agree that if you do so, we may terminate the Services.
12 Intellectual Property Ownership
12.1 Our use of any Intellectual property belonging to us or to any third party as part of the Services shall not operate to transfer any right to you permanently.
12.2 If we assign to you an Internet Protocol address the right to use that Internet Protocol address shall belong only to us.
12.3 We reserve the right to change or remove any Internet Protocol number in our sole discretion.
13 Bandwidth and Disk Usage:
13.1 You agree that bandwidth and disk usage shall not exceed the data usage per month for the Services ordered by you.
13.2 If your usage exceeds the contractually ordered amount we may in our discretion:
13.2.1Increase the Price according to the Proposal Document;
We shall give you 7 days notice of our intention.
We are both aware that in the course of business, we will each have access to and be entrusted with information in respect of the business and operation of the other and their dealings, transactions and affairs, and/or any and all other proprietary information belonging to the other relating to his business or businesses and/or related affairs, all of which information (written, oral or otherwise) is or may be confidential. Accordingly, you and we hereby undertake for us and every employee or sub-contractor whose services we may use both during and after completion of the Agreement:
14.1 That neither we nor they will divulge to any person whatever or otherwise make use of (and shall use their best endeavours to prevent the publication or disclosure of) any trade secret or confidential information.
14.2 That both of us shall make all of them aware of the confidentiality of information and the provisions of this paragraph and to take all such steps as shall from time to time be necessary to ensure compliance with these provisions.
15 System and Network Security:
15.1 You agree that you will not, and you will not allow any other person to, violate or attempt to violate any aspect of the security of our systems.
15.2 You understand that any such violation is unlawful in many jurisdictions and that any contravention of law may result in criminal prosecution.
15.3 Examples of violations are:
15.3.1 accessing data unlawfully or without consent;
15.3.2 attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures;
15.3.3 attempting to interfere with service to any user, host or network, including, without limitation, via means of overloading, "flooding", "mail bombing" or "crashing";
15.3.4 forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting;
15.3.5 taking any action in order to obtain services to which you are not entitled.
You agree that we may disclose your information including assigned IP numbers, account history, account use, etc. to any judicial or proper legal authority who makes a written request without further consent or notification to you.
17 No Duty to Monitor
We are under no obligation to monitor or record the activity of any customer for any purpose, nor do we assume any responsibility through our AUP or otherwise to monitor or police Internet-related activities.
18 Violation of AUP (Acceptable Use Policy)
18.1 You agree at all times to comply with our AUP.
18.2 If in our absolute discretion we think that you have violated our AUP, we shall notify you of this by email. We may suspend service to you pending further investigation.
18.3 If within 12 months of the first violation, you commit a second violation whether in a similar or different way then we will terminate part or all of the Services without notice.
18.4 In any case we may suspend all the Services without notice if we reasonably believe the circumstances justify this to protect others or ourselves or to comply with any law. In making the decision to suspend we are not obliged to consider the cost or damage to you that may be caused by suspension of the Services to you.
18.5 Money will not be refunded to you in respect of any period during which Services are suspended.
19 Your Contact Details
You undertake to provide to us your current land address email address fax and telephone numbers as often as they are changed.
20 Limitation of Liability
20.1 We give no warranty in connection with the Services.
20.2 We do not represent that the Services are suitable for your use.
20.3 You have not relied on us as “experts” in any area.
20.4 You agree that in entering into this agreement you have not relied on any representation or other information except the list of services and the prices posted on our web site.
20.5 We accept no responsibility for:
20.5.1 any malfunction in hardware provided by you;
20.5.2 any firewall provision not specified in the Services;
20.5.3 any malfunction in any software whether provided by you or by us;
20.5.4 any aspect whatever of the content of your web site.
20.6 You agree that in any circumstances when we may become liable to you, the limit of our liability is the amount you have paid us in the immediately preceding 12-month period.
20.7 For the avoidance of doubt we shall not be liable to you for loss of profits goodwill or any type of special indirect or consequential loss (including loss or damage suffered by you as a result of an action brought by a third party) even if such loss was reasonably foreseeable or we had been advised of the possibility of your incurring it.
21 Comply with AUP (Acceptable Use Policy)
You agree to comply with the acceptable use policy set out from time to time on our web site or as notified to you from time to time by email.
22 You indemnify us
22.1You agree to indemnify us against all costs claims and expense arising directly or indirectly from:
22.1.1 your failure to comply with the law of any country;
22.1.2 the posting by you of any content on your web site;
22.1.3 a breach of the intellectual property rights of any person;
22.1.4 the posting by any third party with or without your knowledge of any material on your web site;
22.1.5 any action taken or omitted by any third party in relation to your web site;
22.1.6 any use of your web site for a purpose forbidden by this agreement;
22.1.7 and for the purpose of this paragraph you agree that the cost of our management and technical time is properly recoverable and can reasonably be valued at A$110 per hour without further proof.
23 Force Majeure
Neither party shall be liable for any breach of its obligations resulting from causes beyond its reasonable control including fire, natural disaster, war or military hostilities and strikes of its own employees, and in such a situation:
23.1 Each of the parties agrees to give notice immediately to the other upon becoming aware of an event of force majeure such notice to contain details of the circumstances giving rise to it.
23.2 If a default due to force majeure continues for more than 4 weeks then the party not in default shall be entitled to terminate this agreement. Neither party shall have any liability to the other in respect of the termination of this agreement as a result of force majeure.
24 Successors to the Agreement
24.1 The benefit and obligations of this agreement shall be binding on any successor in title.
24.2 Neither party shall be entitled to assign this agreement nor all or any of their rights and obligations hereunder without the prior written consent of the other.
25 Dispute Resolution
In the event of a dispute arising out of or in connection with this Contract and which has not been resolved following discussions and negotiations between a person or persons appointed or authorised by the Customer and the Web Writers then they undertake to attempt to settle the dispute by engaging in good faith with the other in a process of mediation before commencing arbitration or litigation.
Failure by us to enforce at any time or for any period any one or more of the terms or conditions of this Contract shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this Contract.
The validity, construction and performance of this agreement shall be governed by the laws of the State of New South Wales. Any dispute arising in connection with this agreement shall be subject to the exclusive jurisdiction of the New South Wales courts.