Terms and Conditions

This Agreement sets out the terms and conditions under which Didymo will provide the Client with Hosting Services.
It is agreed
1. Definitions and Interpretation
1.1 Definitions
The following words and expressions have the following meanings unless the context otherwise requires:
(1) Additional Services means the services set out in Additional Services Section of Hosting Agreement.
(2) Agreement means this document including any schedules and annexures to it;
(3) Applicable Laws means the relevant laws, regulations, industry codes, rules and standards that may govern the supply or use of the Services, including the Broadcasting Services Act 1992 (Cth), the Privacy Act 1988 (Cth), the Spam Act 2003 (Cth) and the Trade Practices Act 1974 (Cth);
(4) Business Day means a day that is not a Saturday, Sunday or any other day which is a public holiday or a bank holiday in the place where an act is to be performed or a payment is to be made;
(5) Client Material means all Content provided or published by the Client in the course of using the Services;
(6) Confidential Information means all business, financial and technical information of a party other than information which:
(a) is in the public domain (except as a result of a breach of this Agreement by the other party); or
(b) comes to the other party through a third party who is under no obligation of confidentiality;
(7) Content includes any data, text, words, names, likenesses, logos, artwork, graphics, video, audio, HTML coding, image maps and software applications;
(8) Didymo Rates means the fees to be paid by Licensee for the provision of the Services as set out in this Agreement;
(9) Electronic Communication has the same meaning as in the Electronic Transactions Act 1999 (Cth);
(10) Fees means the fees set out in hosting agreement-product agrements.
(11) Force Majeure Event means a circumstance beyond a party’s reasonable control including any:
(a) lightning strikes, earthquakes, floods, storms, explosions, fires or other acts of God;
(b) failure or lack of availability of any third party goods or services required by Didymo to perform the Services; and
(c) strikes, acts of war, terrorism, riots, civil commotion, malicious damage, sabotage and revolution;
(12) GST has the meaning given to it in the GST Law;
(13) GST Law means A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any other similar or related acts, regulations or rulings;
(14) Hosting Services means the services set out in in this document.
(15) Initial Term means the period of 12 months commencing on the Operative Date;
(16) Intellectual Property Rights means all current and future registered and unregistered rights in respect of copyright, trade marks, trade secrets, Confidential Information, designs, circuit layouts and patents;
(17) Internet means the world wide connection of computer networks providing, among other things, for the transmittal of electronic mail and on-line information;
(18) Operative Date means date agreed by the parties. 
(19) Services means both the Hosting Services and the Additional Services;
(20) Supply has the meaning given to it in the GST Law; and
(21) Web Site means the web site of the Client which will be accessible on the Internet at  an address agreed between the parties.
1.2 Interpretation
Headings are for convenience only and do not affect interpretation.  The following rules of interpretation apply unless the context requires otherwise:
(1) the singular includes the plural and vice versa;
(2) where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(3) a reference to a clause, annexure or schedule is to a clause of, or annexure or schedule to this Agreement;
(4) a reference to any party to this Agreement or any other agreement or document includes the party’s successors and permitted assigns;
(5) a reference to dollars or $ is to Australian currency;
(6) a reference to conduct includes any omission and any statement or undertaking, whether or not in writing;
(7) the words “include”, “includes” or “including” must not be interpreted as words of limitation; and
(8) headings are for convenience of reference only and do not affect interpretation.
2. Provision of Services
2.1 Didymo must provide Services in the manner described in this Agreement.
2.2 The following activities are not provided by Didymo as part of the Services unless specifically set out in Error: Reference source not found:
(1) provision to the Client or any other person of any access services to the Internet;
(2) content development;
(3) uploading of data to the server(s); and
(4) rectification of problems caused by the Client’s software or data.
2.3 The Client acknowledges and agrees that Didymo:
(1) may use spam and virus filters in the provision of the Services which may require Didymo to use third party equipment or services to monitor and filter email traffic between Didymo’s equipment and the Internet; and
(2) is not liable for any loss or damage resulting from:
(a) the use of the spam or virus filters; or
(b) any bug found in the applications.
3. Permitted Use
3.1 The Client must not use the Services to:
(1) interfere with the use of the network by other users or do anything which may cause interference;
(2)     perform or facilitate the distribution of unsolicited commercial messages of any kind;
(3) engage in any activity that may be in breach of any Applicable Laws; or
(4) engage in or fail to engage in any activity in a manner which exposes Didymo to any liability.
4. The Client’s Obligations
4.1 The Client must give Didymo the information Didymo reasonably requires to enable it to comply with its obligations under this Agreement.
4.2 The Client is solely responsible for maintaining a backup of all computer software and data that it may use in connection with the Web Site.
4.3 The Client grants to Didymo and its sub-contractors a royalty-free, non-exclusive licence to upload, display, distribute, copy and store the Client Material for the purposes of permitting Didymo to provide the Services.
5. Term
5.1 This Agreement commences on the Operative Date and continues until the end of the Initial Term.
5.2 This Agreement is automatically renewed for a further 12 month period at the end of:
(1) the Initial Term; and
(2) any subsequent term,
unless either party gives not less than 90 days’ written notice of its intention not to renew the Agreement before the end of the then current term.
6. Warranties by Didymo
6.1 Didymo must exercise due care and skill in the performance of the Services.
6.2 The Client acknowledges and agrees that Didymo does not warrant that:
(1) the Services will be free from fault or interruption; or
(2) the Services will be free from virus or worm attack, denial of services attack, unauthorised intrusions or similar.
6.3 Didymo will from time to time need to perform scheduled and unscheduled maintenance on the servers which may result in the Hosting Services being temporarily unavailable.
6.4 Where practicable, Didymo must endeavour to:
(1) perform the maintenance during off-peak periods; and
(2) post the details of the event by email where the Hosting Services are likely to be offline for more than 30 minutes.
7. Warranties by the Client
7.1 The Client must:
(1) keep secure any passwords used by it in connection with the Services;
(2) comply with the terms of any policies or conditions that may apply to the Services, including any that may be imposed by Didymo or Didymo’s upstream service providers; and
(3) comply with all Applicable Laws.
7.2 The Client warrants that the Client Material:
(1) is not obscene, offensive, racist, illegal, offensive, upsetting or in any way unsuitable for people under the age of 18 years;
(2) will be free from viruses, worms, Trojan Horses or similar;
(3) does not infringe the Intellectual Property Rights of any person and that all royalties or licence fees have been paid to secure the use of that Client Material;
(4)     does not comprise and cannot be used for any purpose or activity of an illegal, fraudulent, harassing or defamatory nature; and
(5) complies with all Applicable Laws.
8. Fees
8.1 In consideration for Didymo providing the Services, the Client must pay to Didymo the Fees set out in their agreement.
8.2 If:
(1) Didymo is required to perform the Services in circumstances other than those expressly or reasonably anticipated in relation to this Agreement; or
(2) there is a change in the timing or complexity of the Services,
and the circumstances are not the result of a breach of this Agreement by Didymo, then Didymo is entitled to make an additional charge.
8.3 The Fees payable by the Client to Didymo are exclusive of all taxes, duties or levies including any GST. If any Supply made by Didymo to the Client under this Agreement is considered a Taxable Supply under the GST Law, then any GST payable on that Supply is due and payable by the Client at the time the Fees for that Supply are due under this Agreement, if Didymo provides to the Client a valid tax invoice for that Supply before the GST payment is due.
8.4 The Client must pay all invoices within 7 days after the invoice is issued.
8.5 Payment terms for the Hosting Fees will be monthly, in advance agreed method. [
8.6 Didymo may charge interest on any outstanding amount from the date on which the payment is due until the date on which payment is received in full. Interest must be calculated daily at an annual rate equal to 2% above the overdraft reference rate quoted by Didymo’s principal banker. 
9. Intellectual Property Rights
9.1 The Client acknowledges and agrees that all Intellectual Property Rights in any Content supplied or developed by Didymo in the course of providing the Services is and remains the sole property of Didymo and its licensors and that the Client does not acquire any rights in them.
10. Confidentiality
10.1 Each party must ensure that its employees, agents and sub-contractors engaged for the purpose of this Agreement:
(1) do not make public or disclose the other party’s Confidential Information;
(2) keep the Confidential Information confidential;
(3) use it only as permitted under this Agreement and only disclose it to employees, contractors and agents who have a need to know;
(4) do not copy it or any part of it that is in material form other than as strictly necessary; and
(5) promptly comply with any request by the disclosing part to return or destroy any or all copies of Confidential Information unless required by law to be retained.
10.2 Each party must keep the other party’s Confidential Information confidential. A party must not, without the prior written approval of the other party, disclose the other party’s Confidential Information unless the disclosure is required by law.
10.3 Each party must on demand destroy or return to the other party any Confidential Information supplied by the other party in connection with this Agreement.
10.4 Each party (Recipient) must:
(1) maintain security practices against unauthorised copying, use and disclosure (whether that disclosure is oral, in writing or in any other form) used to protect its own Confidential Information; and
(2) as soon as reasonably practicable notify the other party if the Recipient becomes aware of any:
(a) unauthorised copying use, or disclosure in any form; or
(b) disclosure required by law or rules of any recognised stock exchange.
11. Indemnities
11.1 The Client indemnifies Didymo against:
(1) all losses suffered by Didymo;
(2) all liabilities incurred by Didymo; and
(3) all costs actually payable by Didymo to its own legal representatives (whether or not under a costs agreement) and other expenses incurred by Didymo in connection with a demand, action, arbitration or other proceeding (including mediation, compromise, out of court settlement or appeal),
arising directly or indirectly as a result of, or in connection with, a breach or non-performance of any of the obligations of the Client under this Agreement (including any breach of the warranties set out in clause 7) whether express or implied.
11.2 The Client must pay Didymo all amounts referred to in clause 11.1, whether or not Didymo has paid or satisfied them.
12. Liability
12.1 To the extent permitted by law:
(1) any condition or warranty which would otherwise be implied in connection with this Agreement is excluded; and
(2) liability under any condition or warranty which cannot legally be excluded is limited to replacement, repair or resupply of the goods or services, or the payment of the cost of their replacement, repair or resupply, whichever is the lowest amount. 
12.2 Subject to clause 12.3below, to the extent permitted by law, the liability of Didymo in connection with this Agreement, whether arising in contract, tort or any other statutory or common law cause of action, is limited to the total amount paid by the Client to Didymo under this Agreement at the time of the liability arising.
12.3 To the extent permitted by law, in no event is Didymo liable to the Client for any indirect, special, punitive or consequential loss or damage even if the loss or damage was reasonably foreseeable. For the purposes of this clause, loss of revenue, loss of profit, loss of data and failure to realise anticipated savings are losses of a consequential nature.
13. Suspension
13.1 Didymo is entitled, without incurring any liability to the Client and without prejudice to any other rights that it may have under this Agreement or at law, to remove Content from the server(s) on which the Web Site is hosted and/or suspend the Services if:
(1) it reasonably suspects or determines that the Client has breached the terms of this Agreement;
(2) the Web Site uses more resources than it has been otherwise allocated; or
(3) it is required to do so by law.
13.2 All Fees continue to accrue during any period of suspension and the Client is responsible for the payment of the Fees in accordance with the terms of this Agreement.
14. Notices
14.1 A Notice or other communication connected with this Agreement (Notice) has no legal effect unless it is in writing.
14.2 In addition to any other method of service provided by law, the Notice may be:
(1) sent by prepaid post;
(2) delivered at, the address of the addressee set out in this Agreement or subsequently notified; or
(3) transmitted by facsimile or Electronic Communication
to the other party at the address of that party set out at in clause 14.3 or such other address as may be advised in writing from time to time. 
14.3 The addresses of the parties for the purposes of Notice are as follows:
(1) in the case of Didymo:
Attention:  The Manager, Didymo Designs, P.O. Box 1122, Wollongong. NSW 2500
(2) In the case of the Client:
Attention:  Refer individual agreement
14.4 If the Notice is sent or delivered in a manner provided by clause 14.2, it must be treated as given to and received by the party to which it is address:
(1) if sent by post, on the 2nd Business Day (at the address to which it is posed) after posting;
(2) if otherwise delivered before 5pm on a Business Day at the place of delivery, upon delivery, and otherwise on the next Business Day at the place of delivery; or
(3) if sent by Electronic Communication, at the time that would be the time of receipt under the Electronic Transactions Act 1999 (Cth).
15. Termination and cancellation
15.1 This Agreement may be terminated immediately by either party giving written notice to the other upon the occurrence of one or more of the following events:
(1) either party breaches a term of this Agreement and fails to remedy the breach within 30 days after the receipt of written notification of the breach;
(2) the other party enters into, or resolves to enter into, an agreement, composition or comprise with, or assignment for, the benefit or its creditors generally, or any class of creditors, or proceedings are commenced to sanction an arrangement, composition, compromise;
(3) the other party has a receiver or receiver and manager, official manager, trustee, provisional liquidator, administrator or similar officer appointed in respect of any of its assets;
(4) an order is made or a resolution is passed for the winding up or dissolution of the other party; or
(5) the other party ceases to carry on business or otherwise becomes incapable of paying its debts as they fall due.
15.2 On termination of this Agreement for any reason:
(1) Didymo may cease to provide the Services with immediate effect;
(2) Didymo is discharged from any further obligations under this Agreement;
(3) Didymo may retain any money paid;
(4) all Fees and other amounts owing by the Client for the Services become immediately due and payable; and
(5) Didymo may pursue any additional or alternative remedies provided by law.
15.3 Termination of this Agreement does not prejudice any claim by a party as a result of any event which gives rise to a right of termination under this clause.
15.4 If the Client discontinues the Services for a period of 6 months or more and wishes to reactivate the Services after that period the Client must pay an additional set up fee.
16. Dispute resolution
16.1 A party must not start arbitration or court proceedings (except proceedings seeking interlocutory relief) about a dispute arising out of this Agreement or the Services or Deliverables the subject of this Agreement (Dispute) unless it has complied with this clause.
16.2 A party claiming that a Dispute has arisen must notify the other party to the Dispute giving details of the Dispute (Notification).
16.3 On receipt of a Notification each party must negotiate in good faith to resolve the Dispute and, if necessary to resolve the Dispute, involve the Chief Executive Officers or other senior officers of the parties directly in those negotiations.
16.4 If the Dispute involves technical matters and has not been resolved by negotiations under the previous clause within a reasonable time, the parties will refer the Dispute for determination by an independent expert agreed by the parties in the technical field the subject of the Dispute.
16.5 If the Dispute is not resolved under 16.3 or 16.4 within 30 days (or longer period agreed between the parties), the parties must refer the Dispute for mediation by the Australian Commercial Dispute Centre Limited (ACDC) for resolution in accordance with the Mediation Rules of the ACDC.
16.6 If the Dispute is not resolved under clause 16.5 within 60 days after referral (or longer period agreed between the parties) either party may initiate proceedings in a court.
17. Force majeure
17.1 Didymo is not liable to the Client in any way by reason of any delays or failure by it to perform its obligations under this Agreement which is caused by a Force Majeure Event.
17.2 If a delay or failure by a party to perform its obligations due to a Force Majeure Event exceeds 60 days, either party may immediately terminate the Agreement on giving notice in writing to the other party.
18. Survival
Termination of this Agreement does not relieve any party from that party’s obligations under clauses 9, 10, 11, 12, 15, 16 and 19.
19. Relationship
19.1 Didymo is engaged by the Client as an independent contractor.
19.2 This Agreement does not create a relationship between the parties of employer and employee, principal and agent, partnership or joint venture.
20. Further assurance
20.1 Each party must promptly at its own cost do all things (including executing and if necessary delivering all documents) necessary or desirable to give full effect to this Agreement.
21. Sub-Contracting
21.1 The Client agrees that Didymo may sub-contract the performance of any or all of the Services to third parties.
21.2 Didymo remains responsible and liable for the performance of any obligations that it subcontracts.
22. Assignment
22.1 The Client may not assign or novate or otherwise deal with its rights, duties or obligations under this Agreement without the prior written consent of Didymo.
23. Variation or Amendment
23.1 Didymo may vary these terms, the amount of the Fees or the terms of the operation of the Services, at any time by giving the Client at least 14 days prior written notice. If the Client continues to use any of the Services following the introduction of the variations, the use constitutes an acceptance of those variations.
24. No Waiver
24.1 No failure to exercise and no delay in exercising any right, power or remedy under this Agreement operates as a waiver, nor does any single or partial exercise of any right, power or remedy preclude any other exercise of the right or power or remedy.
25. Counterparts
25.1 This Agreement may be executed in duplicate counterparts. Each such counterpart shall be an original and both together shall constitute one and the same document.
26. Severability
26.1 If any provision in this Agreement is unenforceable, illegal or void or makes this Agreement or any part of it unenforceable, illegal or void, then that provision is severed and the rest of this Agreement remains in force.
27. Entire Agreement
27.1 This Agreement contains the entire agreement between the parties with respect to its subject matter and supersedes any prior agreements or understandings on anything connected with that subject matter.
28. Governing Law
28.1 This Agreement is governed by the laws of New South Wales.  The parties submit to the non-exclusive jurisdiction of courts of New South Wales and of the Commonwealth of Australia.