Date: May 2018
These are the Service Terms for the PageOne Website, Do-It-Yourself Website, Done4U Website, Done4Uecommerce Website, Custom Website, BizBoster Website, Small Business Website, Ecommerce Website, and 14 day trial products (individually, a Service, collectively, the Services). Our Universal Terms of Service apply to these Services.
Certain words used in these Service Terms have special meanings, as set out in clause 8. Any terms used and not defined in these Service Terms have the same meaning as given to them in the Universal Terms of Service.
1.1 If you have purchased a Service with a minimum term (fixed term), your minimum total cost is set out in the Service Description.
1.2 You may upgrade your fixed term Service at any time provided you pay any increased fees that apply to the upgraded Service; your upgraded Service will commence from the beginning of the billing month after you have given notice of the upgrade. If you wish to downgrade a fixed term service, you may only do so if there is more than 6 months remaining in your fixed term, and by providing 6 months' notice.
1.3 If (1) a Melbourne IT Quote for Service has been sent to you (Quote) and/or (2) written receipt of charges applicable to the Services has been sent to you (Payment Confirmation), those documents will form part of the Contract.
2.1 You agree to provide us or our Global Partner with such contact information as reasonably required in order to provide the Services to you (Service Contact Information). You further agree to provide us with any updates to such Service Contact Information, as may be required from time to time.
2.2 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.
2.3 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 expressly agreed in writing with us.
2.4 The Services are subject to an email data volume limit of an average of 200MB per mail box in any calendar month. If your email data volumes average in excess of 200MB per mail box per calendar month you will be charged additionally at a rate of AUD $0.11 (inc GST) per extra MB used. The Services are also subject to data transfer bandwidth limits and/or disk space limits, as published on our website at www.melbourneit.com.au from time to time or where not published, then with such reasonable limits as would otherwise apply (Agreed Megabytes). We 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 we 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 agree that if at any time your email data volume, data transfer bandwidth usage and/or disk space usage exceeds the limit set out above, we or our Supplier may suspend any and all Services, or, in the case of Melbourne IT, terminate the Contract. In the event that any such action is taken by us or our 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.
2.5 You agree that we or our Supplier shall maintain and control ownership of all IP numbers and addresses that may be assigned to you by our Supplier, and you further agree that we or our Supplier may, at their sole discretion, change or remove any and all such IP numbers and addresses.
2.6 You expressly grant to us and our Supplier a licence to cache the entirety of your website, including Your Content, hosted by us or our Supplier. 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 us and our 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.
2.7 You agree that our 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 our Supplier from time to time. We 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.
2.8 You may from time to time request us to provide you with Your Content, where Your Content has been provided by you to us in hard copy together with a stamped, self-addressed envelope. You agree that neither us nor our Supplier will otherwise be required to provide you with copies of Your Content. For the purposes of this clause, Your Content does not include any content which you may import, receive, upload or download onto your PageOne Website, via a third party application or link.
2.9 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.
3.1 The following terms and conditions apply to any social media component of the Services, and are in in addition to your other obligations under the Contract:
3.1.1 You agree that you will keep any Social Media Provider user account details secure, for example password or account log-in, and not provide any other party with these account details and that any such details entered into any Social Media API by you will only be yours, and you will not enter any other parties Social Media account details into any Social Media API integrated with your Website;
3.1.2 You acknowledge that we have no control or relationship with any Social Media Provider or any Social Media API, and that any maintenance performed by us may affect the functionality of any Social Media API plugin. You accept that any Social Media API plugin may not function on your Website.
3.1.3 You agree that:
(a) You accept that you are responsible for all content displayed on your website, including any content displayed by any Social Media API plugin you have integrated into your website;
(b) You will not post any content for which you are not the owner;
(c) You are responsible for everything that happens on your website;
(d) You are responsible for determining whether you integrate any Social Media API into your website and whether such integration and use is in accordance with the Social Media Policies of the relevant Social Media Provider. You also agree that you have reviewed all relevant Social Media Policies, and acknowledge that if you choose to integrate a Social Media API, that Social Media API may access information on the Social Media Provider's service related to you and the account you hold with Social Media Provider;
(e) integration and/or use of Social Media API is at your own risk, and is in no way endorsed by us. You acknowledge that you alone are responsible for any content displayed on your website, and that we have no connection or responsibility, other than as a provider of the Services, either to you or any third party for any content displayed;
(f) if at any time you elect to integrate any Social Media API into your website, your use of that Social Media Provider's service must be in accordance with any and all relevant terms and conditions, terms of service, guidelines, policies and agreements of the relevant Social Media Provider (collectively, the Social Media Policies), and you will indemnify us in relation to any third party claim arising from your use of the website service or Social Media Provider's service;
(g) any warranties, representations, consents, affirms, indemnities, agreements, undertakings or otherwise, given by you to the Social Media Provider pursuant to Social Media Policies, are also given by you to us;
(h) any modifications to Social Media API by Social Media Provider which results in any loss of functionality on your website, is beyond our control and is an issue between you and Social Media Provider;
(i) if Social Media Provider suspends, terminates or otherwise disables your account for any reason, any Social Media API functionality for that Social Media Provider will cease on your website; and
(j) we will not be responsible for any loss of functionality of any Social Media API integrated to your website.
3.1.4 We may disable any Social Media API functionality in your website if we determine (in our sole discretion) that any content displayed on your Website via any Social Media API violates our Acceptable Use Policy or infringes upon any other party's rights in any manner.
If you purchased the Services via one of our Global Partners, this clause does not apply to you.
4.1 If you purchased the Service directly from us then you must pay for the Services in accordance with the prices and charges contained in the Quote or as set out on our website located at http://www.melbourneit.com.au/, and in accordance with clause 7 of our Universal Terms of Service. Those fees and charges may include one or more of:
(a) a fixed non-refundable build fee, payable in advance;
(b) a monthly or annual recurring fee, payable in advance;
(c) custom build fees, payable in accordance with the Quote, 50% non-refundable in advance and 50% on completion;
(d) other customisation and optional service fees, payable on a time and materials basis in arrears;
(e) excess email data volume charges payable in arrears; and
(f) newsletter mail out fees payable in advance.
5.1 You warrant that:
(a) your use of the Services will not infringe the intellectual property or other proprietary rights of us, our Supplier or any third party;
(b) you will conduct such tests and computer virus scanning as may be necessary to ensure that any data uploaded or downloaded to and from our servers or the servers of our 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, us or our Supplier); and
(c) you will comply with all applicable privacy and spam legislation.
5.2 You acknowledge and agree that:
(a) we may disclose your account and other information in accordance with our Acceptable Use Policy and Privacy Policy;
(b) no Relevant Party exercises any control over, and accepts no responsibility for, the content of the information (including, without limitation, Your Content) passing through our Supplier's host computers, network hubs and points of presence or the Internet, nor, for any of any products and/or services that you may determine to offer for supply, or supply via your web site, the Internet or otherwise (if applicable); and
(c) no Relevant Party shall be liable for (i) Your Content or loss of any of Your Content or files (including, without limitation, email files, if applicable) transferred either to or from you or stored or backed-up by you or any of your customers via the Services; and/or (ii) any damage to or loss to Your Content as a result of any request by you pursuant to clause 2.8.
5.3 In addition to any other rights under the Contract, you agree that we may, without notice to you remove, amend or alter your data upon being made aware of:
(a) any court order, judgment, determination or other finding of a court or other competent body, that the data is illegal, defamatory, offensive or in breach of a third party's rights;
(b) if directed to do so by the Australian Broadcasting Authority under a "take down notice", in accordance with the Broadcasting Services Amendment (Online Services) Act 1999 (as amended or replaced from time to time) if we determine (acting reasonably) that such Act applies to you; or
(c) an outside party or outside device disrupting or attempting to disrupt the Services.
6.1 You indemnify and defend us, our subsidiaries and our Supplier and each Relevant Party (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 any:
(a) products and/or services that you may determine to offer for supply, or supply via your web site, the Internet or otherwise (if applicable);
(b) use of the Services by you;
(c) Services Change (as contemplated by clause 2.7); and
(d) breach or violation of, or any action or implementation by us (or our Supplier) taken in accordance with, our Acceptable Use Policy (as outlined in clause 7 below).
6.2 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.
7.1 If we receive notice of, or otherwise become aware that you have failed to comply with any provision of our Acceptable Use Policy, you agree that we or our Supplier may immediately take corrective action, including suspension of any and all Services, or, in the case of us, terminating the Contract. In the event that any such corrective action occurs, or, due to you or any other person whom you permit to use the Services undertaking or attempting to undertake any behaviour which breaches our Acceptable Use Policy, we will not refund to you any fees paid to us prior to such corrective action.
7.2 Where we supply a Service to you through a Supplier, we may terminate and replace such Supplier at any time without notice to you. We will, however, endeavour to replace such Supplier:
(a) with no or minimal disruption to the supply of the Services; and
(b) on substantially the same terms as are set out in these Service Terms.
7.3 Where we are unable to comply with clause 7.2, you may terminate the Contract and cease obtaining the Services within 30 days' of being notified of the new terms on which we intend to supply the relevant Services to you. Where you terminate under this clause, Melbourne IT will refund you any fees previously paid by you for Services not yet provisioned.
7.4 In addition to any other obligation under the Contract, if the Service is terminated:
(a) you must pay all outstanding charges (including, without limitation, data transfer bandwidth over-usage charges and/or disk space over-usage charges) immediately;
(b) other than if the termination occurs under clause 7.3, you must pay any charges that we incur from its Supplier in relation to any charges that Melbourne IT's Supplier incurs in connection with migrating your data or retrieving any of your emails following termination of the Services;
(c) any licence issued to you, or by you, in relation to the Services will cease from the date of termination; and
(d) we or our Supplier may immediately delete all data, including Your Content or files (including, without limitation, email files, if applicable) from any storage media without any liability to you whatsoever.
"Global Partner" means the company (other than Arq Group Limited) who you purchased the Service or Services through, and who is a Melbourne IT authorised reseller.
"Relevant Party" means all directors, officers, employees, and agents of Arq Group Limited, its subsidiaries, and its' Supplier.
"Social Media" means various online technologies allowing for communication through social interaction via the internet.
"Social Media Provider" means any provider of Social Media, such as Facebook, Twitter, Flickr, YouTube etc.
"Social Media API" means any application programming interface provided by a Social Media Provider.