Website Design and Hosting Services

1.1 This agreement comprises:

1.2 This agreement commences on the date upon which Melbourne IT confirms to you by email or any other written medium that a Service has been commenced ("Commencement Date").

1.3 We may vary these terms or the terms of the operation of any Service, at any time by a general notice on a page of the Internet referred to on the home page of the Melbourne IT Web Site at http://www.melbourneit.com.au/policies/. Changes other than price changes will become effective upon publication of the notice.

If you purchased the Service directly from Melbourne IT, we may vary the charges for any Service and we will notify you of these variations either by a general notice on a page of the Internet referred to on the home page of the Melbourne IT Web Site at http://www.melbourneit.com.au/policies/, or, by written notice to you. Where we vary any charges for the Services, we will give at least 30 days notice of the change by either of the preceding means, and the new prices will apply at the end of that period.

We may at any time and without prior notice or liability to the Customer to alter the Services in the course of the Services ongoing development.

1.4 If you use a Service after publication of any change in accordance with clause 1.3, your use will constitute acceptance of the amended terms.

1.5 These terms constitute the agreement in its entirety and supersede all prior agreements.

1.6 Any reference in this agreement to Melbourne IT's "Supplier" is a reference to any third party service provider of Melbourne IT (a "Supplier"), if and to the extent a Supplier is supplying any part of the Services to you on behalf of Melbourne IT.

2.1 Melbourne IT will use reasonable efforts to provide to you the Services described on the Melbourne IT Website in relation to the relevant website services you have purchased (Do-It-Yourself Website, Done4U Website, Done4Uecommerce Website and Custom Website).

2.2 You agree to provide Melbourne IT or its Global Partner with such contact information as Melbourne IT or its Supplier may reasonably require in order to provide the Services to you ("Service Contact Information"). You further agree to provide Melbourne IT with any updates to such Service Contact Information, as may be required from time to time.

2.3 You shall at all times keep your password and log-in details ("Password Details") secure. You agree that Melbourne IT cannot and does not know whether you have given access to your account and to the Services to other people (whether knowingly or not). You therefore agree that you are totally responsible for:

2.4 You agree that Melbourne IT may from time to time require you to provide your Password Details to Melbourne IT. You acknowledge that if you fail to provide such Password Details to Melbourne IT if requested by Melbourne IT, Melbourne IT reserves the right not to provide any assistance to you in connection with the Services.

2.5 You agree that you are solely responsible for any of your data and content, as supplied by you and/or third parties ("Your Content") and for any other files (including, without limitation, email files, if applicable), residing on Melbourne IT or its Supplier's servers.

2.6 You agree that you are solely responsible for the back-up of Your Content and any other files (including, without limitation, email files, if applicable) unless otherwise agreed with Melbourne IT.

2.7 The Services provided to you under this agreement are provided in accordance with the data transfer bandwidth limits and/or disk space limits, as published on the Melbourne IT Web Site from time to time ("Agreed Megabytes"). Melbourne IT may monitor your usage of the Services to ensure that you are complying with the Agreed Megabytes. If data transfer bandwidth usage and/or disk space usage exceeds the Agreed Megabytes, you agree that Melbourne IT may require you to purchase any additional data transfer bandwidth and/or disk space and your failure to do so may result in the Services ceasing to operate or function. In addition you also agree that if at any time your data transfer bandwidth usage and/or disk space usage exceeds the Agreed Megabytes, Melbourne IT or its Supplier may suspend any and all Services, or, in the case of Melbourne IT, terminate this agreement. In the event that any such action is taken by Melbourne IT or its Supplier (as the context requires), you agree that you shall not be entitled to a refund of any fees paid in advance of such corrective action.

2.8 You agree that Melbourne IT or its Supplier may be required to perform maintenance to maintain the continuous operation of the Supplier's servers, which maintenance may affect the operation or functioning of the Services. We will attempt to provide you with notice of the maintenance downtime, except when circumstances beyond the control of Melbourne IT or its Supplier prevent either Melbourne IT or its Supplier (as the context requires) from doing so. You also agree that Melbourne IT or its Supplier may also be required to suspend the Services, or disconnect or deny you access to the Services, in accordance with clause 12.1.2.

2.9 You agree that Melbourne IT or its Supplier shall maintain and control ownership of all IP numbers and addresses that may be assigned to you by Melbourne IT's Supplier, and you further agree that Melbourne IT or its Supplier may, at their sole discretion, change or remove any and all such IP numbers and addresses.

2.10 You expressly grant to Melbourne IT and its Supplier a licence to cache the entirety of your Web Site, including Your Content, hosted by Melbourne IT or its Supplier under this agreement. You agree that you shall be responsible for obtaining any agreements and/or consents required of any third party in connection with the grant of this licence to Melbourne IT and its Supplier. You also agree that any such caching is not an infringement of any of your intellectual property rights or any third party's intellectual property rights.

2.11 You agree that Melbourne IT's Supplier may from time to time add, remove or vary any software with respect to the Service/s, or otherwise add, remove or vary any functionality with respect to the Service/s ("Services Change"). You hereby consent to any Services Change that may be undertaken by Melbourne IT's Supplier from time to time. Melbourne IT will use all reasonable commercial endeavours to provide you with 60 days' notice of any Services Change that would constitute a non-backwards compatible change.

2.12 You may from time to time request Melbourne IT to provide you with Your Content, where Your Content has been provided by you to Melbourne IT in hard copy, and where you provided Your Content to Melbourne IT together with a stamped, self-addressed envelope. You agree that neither Melbourne IT or its Supplier will otherwise be required to provide you with copies of Your Content.

2.13 You agree to take all necessary or desirable steps to ensure that any content (including, without limitation, any content pertaining to the Services that is or could be unsuitable for children is labelled appropriately and is presented in a way that complies with all relevant laws and industry policy.

If you purchased the Services via one of our Global Partners, this clause 3 does not apply to you. If you purchased the Service directly from Melbourne IT then:

3.1 You must pay for the Services in accordance with the prices and charges contained in the Quote or as set out on the Melbourne IT Website (as applicable, and as amended from time to time in accordance with clause 1.3). Those fees and charges may include one or more of:

3.2 You must pay all prices and charges for the Services and other amounts incurred by you or any designated users or incurred as a result of any use of the Services (whether authorised or not) in accordance with the billing provisions specified in the Payment Confirmation. You agree to keep your billing and account information up to date and to notify Melbourne IT of any changes to such information from time to time.

3.3 Prices and charges published on Melbourne IT's Web Site or set out in the Quote are inclusive of any government taxes or charges unless otherwise stated.

3.4 You consent to Melbourne IT or its Supplier obtaining a credit reporting agency report containing personal information about you (as well as information concerning commercial creditworthiness and activities) for the purpose of assessment by Melbourne IT of an application for credit (whether commercial or personal) or for the purpose of the collection of payments that are overdue.

3.5 If we have invoiced you in arrears for any Services, and you fail to pay the charges in any invoice by the due date specified in any applicable billing provisions (as referred to in clause 3.2 above) or the invoice ("Unpaid Charges"), in addition to any other rights under this agreement Melbourne IT may:

3.6 You agree that in the event of any action being taken by Melbourne IT to recover any overdue amount due to it under this agreement or the Proposal, as evidenced for example by, without limitation, your credit card company notifying Melbourne IT of you disputing the payment of, or refusing to pay such charge, or where your credit card payment has been declined or reversed, any costs incurred by Melbourne IT in recovering the debt (including, without limitation, any legal expenses (on a solicitor/client basis), collection agency charges or any other reasonable associated costs incurred by Melbourne IT) are payable by you to Melbourne IT and shall be recoverable by Melbourne IT as a separate debt.

4.1 You agree to comply with Melbourne IT's Acceptable Use Policy located at http://www.melbourneit.com.au/policies/acceptableusepolicy.php, as varied from time to time by Melbourne IT in accordance with clause 1.3 ("AUP"). In addition, you agree that neither you, nor any other person whom you permit to use the Services either undertakes, or attempts to undertake, any of the following additional prohibited activities:

4.2 If we receive notice of, or otherwise become aware that you have failed to comply with any provision of this AUP, or undertake or attempt to undertake any Additional Prohibited Activity, in addition to any other rights of Melbourne IT under this agreement, you agree that Melbourne IT or its Supplier may immediately take corrective action, including suspension of any and all Services, or, in the case of Melbourne IT, terminating this agreement. In the event that any such corrective action due to a violation of the AUP occurs, or, due to you or any other person whom you permit to use the Services undertaking or attempting to undertake any Additional Prohibited Activity, Melbourne IT shall not refund to you any fees paid to Melbourne IT prior to such corrective action.

4.3 You agree to comply with Melbourne IT's Privacy Policy located at http://www.melbourneit.com.au/privacy/, as varied from time to time by Melbourne IT from time to time in accordance with clause 1.3 ("Privacy Policy").

4.4 You agree that Melbourne IT may disclose your account and other information in accordance with the AUP and Privacy Policy.

You warrant that:

5.1 you have not entered into this agreement or obtained any Services on the basis of, or in reliance on, any statement or representation (whether made orally or in writing and regardless of the medium used) made by either Melbourne IT, its Global Partner or its Supplier concerning this agreement or any of the Services, other than any statement or representation contained in this agreement;

5.2 you are at least 18 years of age;

5.3 your use of the Services will not at the Commencement Date or thereafter, infringe the intellectual property or other proprietary rights of Melbourne IT, its Supplier or any third party;

5.4 you will conduct such tests and computer virus scanning as may be necessary to ensure that any data uploaded or downloaded to and from the Server of Melbourne IT's Supplier by you does not contain any computer virus and will not in any way, corrupt the data or systems of any person (including, without limitation, Melbourne IT or its Supplier); and

5.5 you will otherwise at all times use the Services in accordance with this agreement (including, for the avoidance of doubt, the AUP or the Privacy Policy).

6.1 To the extent permitted by law, neither Melbourne IT, its Global Partners nor its Supplier, nor any employees, affiliates, agents, suppliers, third-party information providers, merchants, licensors nor the like (each a "Relevant Party") of Melbourne IT, its Global Partner or its Supplier, make any warranties of any kind, either expressed or implied, statutory or otherwise, relating in any way to the subject matter of this agreement, including, but not limited to, warranties of merchantability or fitness for a particular purpose, or non-infringement for the Services or any equipment provided, and all such warranties are hereby excluded.

6.2 Melbourne IT agrees to use all reasonable efforts to provide the Services to you. However, you acknowledge to, and agree with, Melbourne IT, that nothing in this agreement shall constitute an express or implied warranty or guarantee by any Relevant Party of Melbourne IT, its Global Partners or its Supplier:

6.3 You acknowledge and agree that no Relevant Party exercises any control over, and accepts no responsibility for, the content of the information (including, without limitation, Your Content) passing through the Supplier's host computers, network hubs and points of presence or the Internet, nor, for any of Your Products and Services (if applicable).

6.4 You further agree that no Relevant Party shall be liable for:

You will indemnify and defend Melbourne IT and its Supplier and all directors, officers, employees, and agents of Melbourne IT and its Supplier (each an "Indemnified Party") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative) and expenses (including but not limited to reasonable legal fees) incurred by any Indemnified Party arising out of, or directly or indirectly relating to:

7.1 Your Products and Services (if applicable); and/or

7.2 any breach of this agreement by you; and/or

7.3 the use of the Services by you; and/or

7.4 any Services Change (as contemplated by clause 2.10); and/or

7.5 the implementation of the AUP by Melbourne IT, any action taken by Melbourne IT in accordance with the AUP, or, any breach or violation of the AUP; and/or

7.6 any action taken by Melbourne IT or its Supplier in connection with you undertaking or attempting to undertake any Additional Prohibited Activity.

Such claims shall include, but shall not be limited to, claims based upon trademark, service mark, trade name, copyright and patent infringement, trademark dilution, tortious interference with contract or prospective business relations, unfair competition, restrictive trade practices, misleading statement, misleading or deceptive conduct, breach of contract, defamation or injury to reputation, or other injuries or damage to business.

8.1 You agree that neither Melbourne IT nor its Supplier shall be liable for any indirect, incidental, special or consequential damages, or loss of profits, revenue, data or use, suffered by you or any third party, whether in an action in contract, tort or strict liability or other legal theory, even if Melbourne IT or its Supplier (as the case may be) has been advised of the possibility of such damages.

8.2 Subject to clause 8.1, you further agree that the aggregate liability of Melbourne IT and its Supplier for any damages, losses and causes of actions whether in contract or tort (including negligence or otherwise) shall not exceed the actual dollar amount paid by you for the Service which gave rise to such damages, losses and causes of actions.

8.3 You agree that where any statute implies any term into this agreement, and that statute avoids or prohibits provisions in a contract excluding or modifying the application of or liability under such a term, then the term will be taken to be included in this agreement. However, the liability of Melbourne IT and its Supplier for any breach of the term will, if permitted by that statute, be limited, at our option, to the re-supply of the services again; or payment of the cost of having the services supplied again.

8.4 We acknowledge that some jurisdictions do not allow the exclusion or limitation of warranties or incidental or consequential damages, so that the above limitations or exclusions may not apply to you. In such jurisdictions, the liability of Melbourne IT and its Supplier (and the liability of any director, officer, employee, agent, affiliate, content provider or service provider of Melbourne IT and its Supplier) shall be limited to the greatest extent permitted by applicable law.

9.1 You acknowledge that all right, title and interest in any and all:

9.2 Unless otherwise specifically provided in this agreement, you agree that you shall have no right, title, claims or interest in or to Our Intellectual Property.

9.3 You may not copy, modify or translate any of Our Intellectual Property or related documentation, or decompile, disassemble or reverse engineer any of Our Intellectual Property, to use it other than in connection with the Services, or grant any other person or entity the right to do so.

9.4 Unless otherwise specifically permitted by this agreement, you are not authorised to distribute or to authorise others to distribute any of Our Intellectual Property in any manner without the prior written consent of Melbourne IT and/or its Supplier (as the context requires); provided, however, that nothing in this clause 9.4 shall preclude you from using Our Intellectual Property as incorporated in the Services. This clause 9.4 shall not operate to extinguish, restrict, vary, waive or affect in any manner whatsoever any right, title or interest which you may now have or hereafter acquire in, or in relation to, the third-party software that is part of or provided with the Services solely to the extent such third-party licensors publicly provide such rights, title or interest in the third-party software to you.

You acknowledge that, in the course of the performance of this agreement, you may have access to customer information and communications, including proprietary information claimed to be unique, secret, or confidential, and which constitutes the exclusive property and trade secrets of Melbourne IT or its Supplier ("Confidential Information"). You agree to maintain the confidentiality of the Confidential Information and to use the Confidential Information only to the extent necessary for legitimate business uses in connection with this agreement. Upon request of Melbourne IT or on termination or expiration of this agreement, you shall return the Confidential Information of Melbourne IT or its Supplier then in your possession to Melbourne IT or its Supplier. Nothing in this agreement shall prohibit or limit your use of information which (a) is now, or hereafter becomes, publicly known or available through lawful means; (b) is rightfully in your possession, as evidenced by your records; (c) is disclosed to you without confidential or proprietary restriction by a third party who rightfully possesses and rightfully discloses the information; (d) is independently developed by you without any breach of this agreement; (e) is the subject of a written permission to disclose provided by Melbourne IT and/or its Supplier (as the context requires); or (f) is required by law to be disclosed.

Neither Melbourne IT nor its Supplier shall be liable for failure or delay in performing its obligations under this agreement if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labour disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Services.

12.1 In addition to any other rights of suspension under this agreement, Melbourne IT, its Global Partner its Supplier may from time to time without notice to you suspend a Service, or disconnect or deny you access to any Service:

12.2 In addition to any other rights under this agreement, you agree that Melbourne IT may without notice to you remove, amend or alter your data upon being made aware of:

12.3 In addition to any other rights of termination under this agreement. Melbourne IT may terminate this agreement and cease providing the Services to you at any time on 30 days written notice to you. You may terminate this agreement and cease obtaining any Services from Melbourne IT, or, terminate any Service/s being provided by Melbourne IT to you, on 30 days' written notice to Melbourne IT in accordance with the process specified by Melbourne IT from time to time.

12.4 In addition to clause 12.3, and, in addition to any other rights of termination under this agreement, Melbourne IT may terminate this agreement and cease providing the Services to you at any time on written notice to you if Melbourne IT has at any time suspended any Service or disconnected or denied access to any Service under clause 12.1.1.

12.5 Where Melbourne IT supplies a Service to you through a Supplier, Melbourne IT may terminate and replace such Supplier at any time without notice to you. Melbourne IT will, however, endeavour to replace such Supplier:

12.6 Where Melbourne IT is unable to comply with clause 12.5.2, you may terminate your agreement with Melbourne IT and cease obtaining any Service/s from Melbourne IT within 30 days' of being notified of the new terms on which Melbourne IT intends to supply the relevant Service/s to you. Where you terminate your agreement with Melbourne IT under this clause 12.6, Melbourne IT will refund you any fees previously paid by you on a pro rata basis.

12.7 In addition to any other obligation under this agreement, if you terminate any Service or, either Melbourne IT or you terminate this agreement:

13.1 You may cancel a Service/Services in accordance with this clause 13. This clause 13 shall not apply where you terminate this agreement and cease obtaining the Services from Melbourne IT pursuant to clause 12.6.

13.2 You may cancel a Service/s in accordance with clause 12.3. Where you cancel a Service/s in accordance with clause 12.3, you will be required to pay Melbourne IT a cancellation fee equal to an administrative fee which shall be either a fee of AUD$25, or, a fee equivalent to the Plan Cost payable with respect to the Services for two months, which Melbourne IT may deduct from any payments you have previously paid Melbourne IT with respect to the Service/s.

13.3 Where you have cancelled any Service/s pursuant to clause 13.2, subject to your payment of the applicable cancellation fee as specified in clause 13.2, and any payments required by clause 12.7, Melbourne IT will refund you for any other payments you have previously paid to Melbourne IT with respect to the Service/s being cancelled unless otherwise expressed to the contrary in this agreement (including, without limitation, pursuant to clauses 2.6 or 4.1).

14.1 The law in force in Victoria, Australia governs this agreement and the transactions contemplated by this agreement.

14.2 In the event it is necessary for Melbourne IT to enforce its rights under this agreement, you agree to pay all fees incurred by Melbourne IT (including, but not limited to, legal fees and collection agency fees).

14.3 This agreement shall be binding upon and inure to the benefit of you, your respective successors and assigns. You may not resell any Services or assign your rights and obligations under this agreement without the prior written consent of Melbourne IT.

14.4 A provision of, or a right created under this agreement, may not be waived except in writing signed by the party granting the waiver, or varied except in writing signed by the parties.

14.5 If any provision of this agreement is held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this agreement shall remain in full force and effect.