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TERMS
AND CONDITIONS
This Hosting Agreement (the
"Agreement") governs your purchase and use, in any manner, of all hosting
services ordered by you ("the Customer") and accepted by Datagraph. The hosting
services subject to this Agreement are any services, other than domain name
services, purchased on the Datagraph web site by you during the ordering
process (collectively, the "Services"). The available Service Options are
located at http://www.datagraph.net.au/ This Agreement describes the terms and
conditions that apply to such purchase and use of the Services. You must accept
the terms of this Agreement to use the Services. By checking the box that says
"I have read and accepted the terms of service" and registering for and using
the Services, you acknowledge that you have read this Agreement and agree to be
bound by the terms and conditions contained herein as well as all policies and
guidelines incorporated by reference. If you do not agree to the terms of this
agreement or any modification, do not check the box and do not continue to use
the services.
1 HOSTING SERVICES 1.1
The Customer has ordered, and
Datagraph agrees to provide (upon acceptance of the Customer's purchase
request), the Services pursuant to the Service Options selected by the
Customer. As part of the Services, Datagraph will configure, install, house,
maintain, upgrade, monitor, modify and operate the computer equipment,
server(s), operating software, network equipment and components (collectively,
"Datagraph Systems") as necessary to host and serve the Customer's Content (as
defined below) via the Internet in accordance with the Service Options. The
Customer acknowledges that, as a part of Datagraph Systems, Datagraph may
retain one or more third-party service providers to supply the necessary
facilities, equipment, and connectivity to provide the Services hereunder.
Subject to the specific terms of this Agreement, Datagraph retains sole right
and control over the programming, content and conduct on Datagraph Systems. The
Customer is responsible for securing and maintaining its own Internet
connectivity to access Datagraph Systems.
1.2 Domain Name Services
1.2.1 At the election of the
Customer and in accordance with the Service Options selected by the Customer,
Datagraph may provide domain name services, including the hosting of one domain
name held by the Customer (or more than one domain name where a multiple domain
name hosting package is ordered) ("DNS Services") as part of the Services. If
the Customer enters into the separate agreement governing the provision of
domain names to the Customer ("the Domain Agreement"), the Customer shall
provide Datagraph with one registered domain name (or more than one registered
domain names where a multiple domain name hosting package is ordered) (each
registered domain name, for the purposes of the Agreement, a "Customer
Domain"). Datagraph shall host the Customer Domain(s) during the effective term
of this Agreement (provided that such domain does not violate any of our
Policies http://www.datagraph.net.au/policies.aspx , or any laws or
regulations, Datagraph agrees to permit the transfer of the Customer Domain at
the direction of the Customer, upon termination of this Agreement, or otherwise
in accordance with the Domain Agreement.
1.2.2 Any Customer Domain shall be
hosted and administered in accordance with terms of the Domain Agreement (which
can be found here
http://www.datagraph.net.au/policies.aspx).
1.2.3 Datagraph may assign IP
addresses to the Customer as part of the Services. Any IP addresses or other
network numbers assigned to the Customer by Datagraph are and shall remain the
property of Datagraph. If the Customer terminates this Agreement or Datagraph
ceases to provide domain name services, Datagraph may, in its sole discretion,
reassign or reuse the IP addresses. Datagraph has sole discretion as to the
Internet routing of any Datagraph network numbers. Upon termination, Datagraph
will not have, and the Customer hereby releases Datagraph from, any
responsibility or liability for any actions or costs related to the
reassignment or reconfiguration of the Customer's system for any new IP
addresses.
1.3 Datagraph shall use commercially
reasonable efforts to make Datagraph Systems and the Service available 99.9% of
the time (the "Uptime Goal"). The Uptime Goal shall be measured within
Datagraph System on a monthly basis calculated to include 24 hours per day over
each month, but excluding from the numerator and denominator in the calculation
the duration in time of any temporary shutdowns due to scheduled maintenance
(which will not exceed in the aggregate 5 hours per month), telecommunications
or power disruptions caused by third parties, and any other causes beyond
Datagraph reasonable control. Any failure of Datagraph to satisfy the Uptime
Goal shall not constitute a breach of this Agreement. The Customer further
acknowledges and agrees that its sole and exclusive remedy for any failure of
Datagraph to provide the services in accordance with the uptime goal is to
terminate this Agreement pursuant to section 5.1.
1.4 If the Customer uses any
bandwidth or storage space in excess of the Service Options, Datagraph may, in
its sole discretion, assess the Customer with additional charges, suspend the
performance of the Services, or terminate this Agreement. In the event that
Datagraph elects to take any corrective action, the Customer shall not be
entitled to a refund of any unused pre-paid fees. The Customer's use of the
Services and access to it is the Customer's responsibility. The Customer is
responsible for any unauthorised access to the Services resulting in bandwidth
and/or storage usage exceeding the limits in the Order Form and resultant
charges. Should shared server Customers exceed the specified limits, Datagraph
will ask them to upgrade to a larger plan or purchase additional bandwidth or
storage space.
1.5 Datagraph reserves the right to
change or modify the Services, any Service Options, the terms and conditions of
this Agreement, or any policy or guideline applicable to the Services, at any
time in its sole discretion. Datagraph will send a notice to the Customer of
any such changes and will post a notice of such changes on Datagraph web site
http://www.datagraph.net.au/. Changes to this Agreement or Service Options will
be effective 15 days after the notice is posted. Changes to any policy or
guidelines governing the Services, including the Acceptable Use Policy, shall
be effective upon posting to the Datagraph site. The Acceptable use Policy
forms part of this Agreement. If the Customer does not agree to any change to
this Agreement, the Service Options, or any governing policy or guideline, the
Customer's sole remedy is to immediately terminate this Agreement pursuant to
Section 5 (notwithstanding any notice period). The Customer's continued use of
the Services following Datagraph posting of any changes to this Agreement, the
Service Options, or any policy or guideline will constitute the Customer's
acceptance of such changes or modifications.
1.6 The Customer may change Service
Options under the Agreement with appropriate prior notice.
2 VIRUS PROTECTION SOFTWARE/ANTI
SPAM SOFTWARE
2.1 The Customer acknowledges that
no anti-virus software can guarantee to detect 100% of viruses, and that no
anti-spam software can guarantee to be 100% accurate in its filtering of spam,
and accepts use of the AntiSpam/AntiVirus Services at their own risk.
2.2 Datagraph reserves the right to
remove attachments from incoming email messages if there is any indication that
the attachment is, or might be, infected with a virus.
2.3 The Customer acknowledge that
Datagraph cannot and does not warrant that the AntiSpam Services installed on
Datagraph servers will detect all viruses present in e-mails scanned by and
transmitted via Datagraph servers.
2.4 Datagraph makes no warranty that
the AntiSpam/AntiVirus Services will be error free or free from interruption of
failure.
2.5 Datagraph expressly disclaims
any express or implied warranty regarding system and/or the AntiSpam/AntiVirus
Services availability, accessibility, or performance.
2.6 The AntiSpam/AntiVirus Services
provide a high level of protection against viruses but the Customer
acknowledges and agrees that it is solely responsible for protecting its
property and email accounts from virus threats hacking or website 'hijacking'.
2.7 Datagraph offers no guarantee
that the AntiSpam/AntiVirus Services will capture all unwanted email sent to
the Customer, nor that all wanted email will be passed through the filter.
2.8 The Customer acknowledges that
some email may be made unavailable when using the AntiSpam/AntiVirus Software,
and by requesting to use the filter the Customer assumes all liability for any
lost or altered email.
2.9 By choosing to use the
AntiSpam/AntiVirus Software, the Customer agrees to hold Datagraph faultless
for any damages resulting from the use of the filtering service.
2.10 The software installed on
Datagraph servers minimises the risk of receiving SPAM and viruses through
email delivered via Datagraph servers only and does not mean a computer will
not be affected by a virus. Datagraph recommends that Customers also have
Anti-virus programs for extra protection for viruses that may arrive through
the Customers use of CD-ROM's, floppy disks, downloads or any other means.
2.11 The Customer waives any claims
against Datagraph in connection with access to or use of the AntiSpam/AntiVirus
Services installed on Datagraph servers, including without limitation any
claims based upon the deletion, misdirection or delay of emails and loss of,
damage to, records or data. Due to the volatile nature of the Internet and its
offerings, the accuracy of the performance of the AntiSpam/AntiVirus Services
is not guaranteed by the supplier of the Software, nor is it guaranteed by
Datagraph.
2.12 Email transmitted from
Datagraph servers will not be scanned by the AntiSpam/AntiVirus Services until
the Customer has indicated its willingness to utilise these services by
activating the AntiSpam/AntiVirus Services via its web hosting account Client
Control Panel.
3 THE CUSTOMER CONTENT; ACCEPTABLE
USE
3.1 Customer Content
3.1.1 The Customer hereby grants
Datagraph a limited, non-exclusive, royalty-free, non-sublicensable license to
host, reproduce, transmit, cache, store, exhibit, publish, display, distribute,
perform, edit, adapt, modify, create derivative works from, and otherwise use
the Customer Content solely as necessary to provide the Services for the
Customer. "Customer Content" means all materials, code, data, text (whether or
not perceptible by users), metatags, multimedia information (including, but not
limited to sound, data, audio, video, graphics, photographs, or artwork), the
Customer Domain(s), e-mail, chat room content, bulletin board postings, or any
other items or materials of the Customer or any third party that are provided
or permitted by the Customer to reside on Datagraph Systems. The Customer owns
all copyright in the Customer Content within the scope of the Copyright Act
1968 (Cth).
3.1.2 The Customer shall be solely
responsible for all Customer Content, including, without limitation, any
content or materials of a third party that the Customer permits or enables to
be posted onto or through Datagraph Systems. Subject to the terms of this
Agreement, the Customer shall (a) be solely responsible for the creation,
posting, updating and maintenance of the Customer Content; and (b) manage,
renew, create, delete, edit, maintaining and otherwise control the editorial
content of the Customer Content. Datagraph will not be responsible for
reviewing the Customer Content prior to its posting by the Customer. Datagraph
will not be responsible for keeping and maintaining a current version of the
Customer Content. The Customer shall be entirely responsible for obtaining any
insurance in relation to any loss or damage caused to the Customer Content, or
any other of the Customer's data held in Datagraph Systems.
3.1.3 The Customer is responsible
for ensuring that the Customer Content will be "server ready" and otherwise
remains fully compatible with Datagraph Systems (including all software and
operating systems). The Customer acknowledges that it is responsible for having
the necessary knowledge and expertise to maintain the Customer Content on
Datagraph Systems. Datagraph reserves the right to remove any the Customer
Content that is not compatible with Datagraph Systems. Upon request from the
Customer, and at the Customer's sole expense, Datagraph may assist the Customer
in resolving any compatibility problems on a time and materials basis.
3.2 Acceptable Use
3.2.1 The Customer shall at all
times adhere to all applicable laws, rules and regulations and to Datagraph
then current Acceptable Use Policy as set out herein as Schedule A. Any breach
of this Policy by the Customer will entitle Datagraph to elect to terminate
this Agreement, without notice to the Customer.
3.2.2 Datagraph may inspect the
Customer Content or investigate any alleged violation of this Agreement,
Datagraph policies or any third-party complaints. Datagraph will not access or
review the contents of any e-mail or other stored electronic communications
except as required or permitted by applicable law or legal process. In the
event that Datagraph determines in its sole and reasonable discretion that any
the Customer Content or conduct or actions of the Customer (including its
employees and users) are objectionable, unlawful, potentially infringing or
otherwise violate this Agreement, the Acceptable Use Policy, or other
applicable policy, Datagraph may take any action that it deems appropriate and
reasonable under the circumstance to protect its systems, facilities, the
Customers and/or third parties. Such corrective action includes, but is not
limited to: (a) issuing a warning; (b) immediately suspending or terminating
the Services; (c) restricting or prohibiting access to any the Customer Content
that is objectionable or otherwise violates this Agreement or applicable
policy; and/or (d) disabling or removing hypertext links, the Customer Content
or the content of any third party from Datagraph Systems. In the event
Datagraph takes corrective action, Datagraph shall not refund any fees paid in
advance of such corrective action. Without limiting the foregoing, it is
Datagraph policy to terminate its services for repeated violations of Datagraph
Acceptable Use Policy. The Customer agrees that Datagraph is not liable for any
defamatory or illegal content or any content contrary to Datagraph Acceptable
Use Policy. The Customer warrants to indemnify Datagraph for any and all
liability, damages, awards of costs (on an indemnity basis or otherwise), legal
costs (on a solicitor-client basis) and disbursements (including barristers'
fees) arising by way of the provision of Datagraph Services and Systems to the
Customer resulting in the perpetuation of any defamatory material, or the
infringement of any third parties' intellectual property rights, or the breach
of any other law of Australia or elsewhere (as applicable) as a result of the
Customer Content.
3.2.3 To comply with applicable laws
and lawful governmental requests, to protect Datagraph Systems and Datagraph
Customers, or to ensure the integrity and operation of Datagraph business and
systems, Datagraph may access and disclose any information it considers
necessary or appropriate, including, without limitation, user profile
information (ie. name, e-mail address, etc.), IP addressing and traffic
information, usage history, and the Customer Content residing on Datagraph
Systems.
4 FEES AND PAYMENT TERMS
4.1 The Customer agrees to pay to
Datagraph then current set up and service fees in accordance with the Service
Options and any and all costs and expenses incurred by Datagraph in connection
with the Services provided to the Customer by Datagraph under this Agreement.
For billing purposes, the service start date will be the date of the order. The
Customer will be invoiced for (a) any setup fees; (b) monthly fees
and (b) the annual fee for the Services at the rates and charges set out on the
Datagraph Web site at http://www.datagraph.net.au/webhosting.aspx.
Henceforth, the Customer will be sent an invoice renewal notice 7 days
prior to the anniversary of the order. If the renewal fee is not paid by the
anniversary of the order, the Services will be disabled and the Customers web
content and MX records disabled without notice. Disabled Services will be
deleted if the Customers account is not returned to a $0.00 balance within 30
days.
4.2 All fees shall be payable
immediately on issue of any invoice for annual webhosting, monthly webhosting,
a new service, or new order placed by the Customer for renewal of an existing
service. For recurring services, fees shall be payable within 7 days of issue
of any invoice. All fees, including recurring fees, will be charged to the
Customer's credit card of record unless other arrangements have been
specifically approved by Datagraph at Datagraph sole discretion. For billing
purposes, fractions of units shall be rounded up. All charges are considered
valid unless disputed within 30 days of the invoice date by submitting a
billing enquiry support ticket on the Datagraph web site. The Customer agrees
to pay all federal, state, and local sales, use, value added, excise, duty and
any other taxes assessed with respect to the Services provided to the Customer,
other than taxes based on Datagraph net income. The Customer's failure to fully
pay any fees and taxes on the applicable due date will be deemed a breach of
this Agreement, justifying Datagraph suspension of its performance of the
Services (including all e-mail and the deletion of the Customer Content) and,
in Datagraph sole discretion, termination of this Agreement. Accounts in
default are subject to an interest charge on the outstanding balance equal to
the lesser of 10% per month or the maximum rate permitted by law. Any
termination by Datagraph for the Customer's failure to pay will not relieve the
Customer from paying past due fees plus interest. In the event of collection
enforcement, the Customer shall be liable for any costs associated with such
collection, including, but not limited to, reasonable attorneys' fees, court
costs and collection agency fees.
5 TERM OF SERVICE
5.1 The Agreement shall remain in
full force and effect until terminated by either party. Either party may
terminate this Agreement for any reason by providing the other party 7 days
prior notice via a cancellation support ticket submitted on the Datagraph web
site; provided that, Datagraph may immediately terminate or suspend the
Services and this Agreement upon written notice for the Customer's or its
users' violation of the Acceptable Use Policy. Upon any termination of this
Agreement, Datagraph will not refund, and the Customer is not eligible for, any
remaining portion of any fees that already has been charged.
5.2 Should this Agreement be
terminated for any reason, Datagraph will not be liable to the Customer because
of such termination for compensation, reimbursement or damages on account of
the loss of prospective profits, anticipated sales, goodwill or on account of
expenditures, investments, leases or commitments in connection with the
Customer's business, or for any other reason whatsoever flowing from such
termination. The Customer is solely responsible for procuring any new or
replacement service upon termination. Any termination of this Agreement shall
not relieve the Customer of any obligations to pay fees and costs accrued prior
to the termination date and any other amounts owed by the Customer to Datagraph
as provided in this Agreement. Upon termination of this Agreement, the
following sections shall survive and remain in effect in accordance with their
terms: Sections 5.2 and 6 to 11 inclusive.
6 RESERVATION OF RIGHTS
Datagraph is the exclusive owner of
and retains all right, title and interest (including, but not limited to, all
copyrights, trademarks, patents, trade secrets, and any other proprietary
rights thereto (collectively, "Proprietary Rights")) to all materials,
including but not limited to any computer software (in object code and source
code form), data or information developed or provided by Datagraph or its
suppliers pursuant to this Agreement, and any know-how, methodologies,
equipment, or processes used by Datagraph to provide the Services to the
Customer. The Customer is the exclusive owner of and retains all right, title
and interest (including all Proprietary Rights) to the Customer Content. Note
that Datagraph does not guarantee retention of the Customer Content after
termination.
7 WARRANTIES AND REPRESENTATIONS
7.1 The Customer represents,
warrants and covenants to Datagraph that: (a) the Customer Content or its use
shall not violate, misappropriate or infringe any Proprietary Rights or any
other personal, privacy or moral right arising under the laws of any
jurisdiction of any person or entity, nor shall same constitute a libel or
defamation of any person or entity; (b) the Customer Content will not contain
any harmful components, including, but not limited to, viruses, trap doors,
hidden sequences, hot keys, or time bombs; (c) the Customer has all right,
power and authority necessary to enter into this Agreement and use the Customer
Content as described herein; and (d) the Customer shall comply with all
applicable laws, rules and regulations (including, but not limited to, export
control, decency, privacy and intellectual property laws).
7.2 Datagraph exercises no control
over, and accepts no responsibility for, third-party content of the information
passing through Datagraph System, network hubs and points of presence, or the
Internet. The Customer acknowledges that Datagraph systems (including any
software and any other items used or provided by Datagraph in connection with
any services hereunder) are provided as represented at the execution of this
Agreement. Datagraph does not make any representations or warranties of any
kind, express or implied, with respect to the performance of the services
(including the DNS services therein) or Datagraph systems, including, but not
limited to, any implied warranty of merchantability, fitness for a particular
purpose, or non-infringement or any implied warranty arising by usage of trade,
course of dealing or course of performance. Datagraph makes no representations
or warranties whatsoever that the services and Datagraph systems will be
uninterrupted, always accessible, free of harmful components, accurate or
error-free.
8 LIMITATION OF LIABILITY
Datagraph shall have no liability
for any consequential, exemplary, special, incidental, or punitive damages even
if Datagraph has been advised of the possibility of such damages. In no event
shall Datagraph have any liability for unauthorised access to, or alteration,
theft or destruction of information distributed or made available for
distribution via the services through accident, fraudulent means or devices
(including , without limitation, viruses, Trojan horses, worms, time bombs,
cancelbots or any other computer programming routines that may damage,
interfere with, surreptitiously intercept or expropriate any system, program,
data or personal information) . The total liability of Datagraph to the
Customer for any reason and upon any cause of action shall be limited to the
amount actually paid to Datagraph by the Customer under this Agreement during
the 12 months immediately preceding the date on which such claim arose. This
limitation applies to all causes of action in the aggregate, including, but not
limited to, breach of contract, breach of warranty, negligence, strict
liability, misrepresentations, and other torts. The fees for the services set
by Datagraph hereunder have been and will continue to be based upon this
allocation of risk. The Customer will have access to a variety of third party
sources of content through the use of the Web site and the Internet. Datagraph
has made no effort to verify the accuracy of suitability of any information
contained in any such sources, including, without limitation, any other web
site that the Customer can link to from the Web site. Accordingly Datagraph has
no liability or responsibility whatsoever for any content provided by any other
person contained on or available through the Web site. The Customer
acknowledges and agrees that any access, use or reliance on any such third
party content is at the Customer's own risk. The Customer acknowledges that,
except for information, products or services clearly identified as being
supplied by Datagraph, Datagraph does not operate, control or endorse any
information, products or services of any other person on the Web site or the
Internet in any way. The Customer also acknowledges and agrees that Datagraph
does not guarantee or warrant that files available for downloading from the Web
site or through the Internet will be free of infection or viruses, worms,
Trojan horses or other malicious code that may adversely effect the Customer,
the Customer's computer or computer systems or the customer's data or files.
9 INDEMNIFICATION
The Customer will indemnify, hold
harmless, and defend Datagraph and all employees, officers, directors and
agents of Datagraph and any of its affiliates from and against any and all
claims, suits, actions, demands or proceedings (whether threatened, asserted,
or filed) and all related damages, losses, liabilities, cost and expenses
(including, but not limited to, reasonable attorneys' fees) arising out of or
relating to: (a) any violation or breach by the Customer of any term,
representation or warranty, or policy of this Agreement; (b) the Customer's
unlawful or improper use of the Services; (c) any damages caused to Datagraph
Systems by the Customer Content; (d) any actual or alleged violation of any
Proprietary Rights or non-proprietary rights (including, but not limited to,
defamation, libel, rights of privacy or publicity) by the Customer Content.
10 ARCHIVING OF DATA
Datagraph will archive the
Customer's data onto backup mechanisms on a regular basis for the purposes of
disaster recovery. In the event of equipment failure or data corruption,
Datagraph will restore from the last known good archive. In the event of
corruption of all of Datagraph archives, or in the event that an old archive is
used to restore data, the Customer should be prepared to upload its data to its
web site. Datagraph will not be liable for incomplete, out-of-date, corrupt or
otherwise deficient Customer data recovered from Datagraph backups.
11 REFUND POLICY
"Refunds will be given at the discretion of dATAGraph Management"
GENERAL
Datagraph Services enable you to host and serve your Web site and all
related content, including, but not limited to, programs, program scripts,
e-mail, text, bulletin board postings, hypertext links, meta tags, domain
names, pictures, graphics, forums, interactive media, and audio/visual
materials that you or a third party (collectively, "Customer Content") posts on
your Web site or other equipment, servers, software and network
of Datagraph (collectively, "Datagraph Systems").
Generally, Datagraph does not actively monitor, censor, or directly
control any information that is stored on or transmitted over Datagraph
Systems. Datagraph cannot and does not warrant, verify or guarantee the
quality, accuracy, safety or integrity of your Customer Content or other
materials or information that you or a third party may post or access through
the Services. You are solely responsible for all of the Customer Content and
your and your users' use of Datagraph Services and your Web site.
NO ILLEGAL OR HARMFUL USES
Datagraph services and Systems may be used only for lawful purposes.
Transmission, distribution or storage of any material or any activity in
violation of any applicable law or regulation, including but not limited to
gambling, is strictly prohibited. The following non-exhaustive list describes
the kinds of illegal or harmful conduct that are prohibited. Datagraph
reserves the right to restrict or prohibit any and all uses or content that it
determines in its sole discretion is harmful to its systems, network,
reputation, good will, other Datagraph Customers, or any third party.
Excessive Use of Server Resources. The use of programs and scripts that
cause excessive stress to servers including, without limitation, chat scripts
is prohibited on shared server accounts. This is due to the resultant reduction
in resources and deterioration of service for other the Customers on the same
shared server. Such programs and scripts may only be used with dedicated server
accounts. Additionally, excessive use and/or violation of bandwidth/storage
maximums are prohibited on all web hosting accounts. Determination of excessive
use is at Datagraph sole discretion.
Infringement. Infringement of intellectual property rights or other
proprietary rights including, without limitation, material protected by
copyright, trade mark, patent, trade secret or other intellectual property
right used without proper authorisation. Infringement may result from the
unauthorised copying and posting of pictures, photographs, logos, registered or
unregistered trade marks, software, articles, musical works, and videos.
Illegal Materials. Disseminating or hosting material that is, without
limitation, unlawful, obscene, harmful, invasive of privacy or publicity
rights, abusive, or otherwise objectionable, under the laws of any
jurisdiction.
Harmful Content. Disseminating or hosting harmful content or software
including, without limitation, viruses, Trojan horses, worms, time bombs,
cancelbots or any other computer programming routines that may damage,
interfere with, surreptitiously intercept or expropriate any system, program,
data or personal information including the Services.
Fraudulent Conduct. Offering or disseminating fraudulent goods,
services, schemes, activities (ie. gambling) or promotions (ie. make money fast
schemes, chain letters, and pyramid schemes); fraudulent submission or use of
personal or financial information; or engaging in any practice that constitutes
an unfair or deceptive trade practice.
Privacy. Collecting, using and disclosing any personally identifiable
user information in violation of any applicable law and/or stated privacy
policy.
MAINTENANCE OF SECURITY AND INTEGRITY
Violations of system or network security are prohibited, and may result in
criminal and civil liability. Datagraph will investigate incidents
involving such violations and may involve and will cooperate with law
enforcement if a criminal violation is suspected. Examples of system or network
security violations include, without limitation, the following:
Hacking. Unauthorised access to or use of data, systems or networks,
including any attempt to probe, scan or test the vulnerability of a system or
network or to breach security or authentication measures without express
authorisation of the owner of the system or network.
Interception. Unauthorised monitoring of data or traffic on any network
or system of Datagraph or any third party.
Intentional Interference. Interference with service to any user, host or
network including, but not limited to, denial of service attacks, mail bombing,
news bombing, other flooding techniques, deliberate attempts to overload a
system and broadcast attacks.
Falsification of Origin. Forging of any TCP-IP packet header, e-mail
header or any part of a message header. This prohibition does not include the
use of aliases or anonymous remailers.
Avoiding System Restrictions. Using manual or electronic means to modify
usage details for billing reasons or to avoid any use limitations placed on the
Services such as access and storage restrictions.
NO E-MAIL ABUSES
You may not distribute, publish, send or incite unsolicited mass e-mailings,
promotions, advertising, or solicitations (such as "spam"), including, without
limitation, commercial advertising, informational announcements, and mail
bombing. You may not use Datagraph mail server or a third party mail server to
relay mail without the express permission of the account holder or the third
party site. Posting the same or similar message to one or more newsgroups
(including, but not limited to, the use of chain letters, excessive
cross-postings or multiple-postings) is explicitly prohibited.
NO SERVICE BUREAUS
You may not sell, assign, rent, transfer, distribute, act as a service bureau,
or grant rights in the Service to any other person without the express prior
written consent of Datagraph.
The Customer shall at all times adhere to all applicable laws, rules, and
regulations and to Datagraph then current Acceptable Use Policy (or such
other location as Datagraph may specify). In particular the Customer may
not utilise the Services:
| (a)
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in connection with any tortious or actionable activity;
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| (b)
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to publish or disseminate information that:
| (i)
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constitutes slander, libel or defamation;
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| (ii)
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publicises the personal information or likeness of a
person without that person's consent; or
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| (iii)
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otherwise violates the privacy rights of any person; or
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| (c)
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to threaten persons with bodily harm, to make harassing
or abusive statements or messages, or to solicit the performance of acts or
services that are illegal under applicable law;
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| (d)
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in connection with any disruptive or abusive activity;
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| (e)
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to cause denial of service attacks
against Datagraph or other network hosts or Internet users or to otherwise
degrade or impair the operation of Datagraph servers and facilities or the
servers and facilities other network hosts or Internet users;
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| (f)
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to post messages or software programs that consume
excessive CPU time or storage space;
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| (g)
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to offer mail services, mail forwarding capabilities,
POP accounts or autoresponders other than for the Customer's own account;
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| (h)
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to subvert, or assist others in subverting, the
security or integrity of any Datagraph system, facility or equipment;
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| (i)
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to gain unauthorised access to the computer networks
of Datagraph or any other person;
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| (j)
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to provide passwords or access codes to persons not
authorised to receive such materials by the operator of the system requiring
the password or access code;
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| (k)
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to:
| (i)
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forge the signature or other identifying mark or code
of any other person;
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| (ii)
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impersonate or assume the identity of any other person;
or
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engage in any other activity (including 'spoofing') to
attempt to deceive or mislead other persons regarding the true identity of the
Customer (excluding the use of anonymous remailers or Internet nicknames);
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to conduct port scans or other invasive procedures
against any server (except any server for which the Customer is an authorised
system administrator);
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| (m)
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to distribute, advertise or promote software or
services that have the primary purpose of encouraging or facilitating
unsolicited commercial email or spam;
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| (n)
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in any manner that might subject Datagraph to
unfavourable regulatory action, subject Datagraph to any liability for any
reason, or adversely affect Datagraph public image, reputation or
goodwill, including, without limitation, sending or distributing sexually
explicit, hateful, vulgar, racially, ethnically or otherwise objectionable
materials as determined by Datagraph in its sole discretion; or
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in any other manner to interrupt or interfere with the
Internet usage of other persons.
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12
MISCELLANEOUS
11.1 This Agreement is governed by
the law applicable in the State of NEW SOUTH WALES in
Australia. The Customer and Datagraph agree to irrevocably and unconditionally
submit to the non-exclusive jurisdiction of the courts of the State of NEW
SOUTH WALES.
11.2 The Customer agrees that,
unless other instructions are posted on Datagraph web site, any notices
required to be given under this Agreement will be deemed to have been given if
delivered by email or fax, or sent by certified mail return receipt requested,
in accordance with the most current contact information the Customer has
provided to Datagraph and the contact information for Datagraph posted on
Datagraph web site. All notices shall be effective upon receipt, except that
email and fax notices shall be effective upon transmission. Any failure by the
Customer to update the Customer's e-mail address will not invalidate this
provision. The Customer is solely responsible for ensuring that its Customer's
contact details are current and correct, that its email services is operational
and that it checks its emails regularly. The Customer must update its contact
details via the Users Section on the Datagraph web site as soon as
possible. If Datagraph sends an email to the Customer's current email address
as listed in the Customer's contact details, the Customer is deemed to have
received that email and Datagraph is not obliged to take any further action to
confirm that the Customer has received, opened and/or read the email unless the
Customer promptly notifies Datagraph that the email was not delivered to its
email address. If Datagraph receives an automated email non-delivery
notification indicating that the Customer has not received the email that
Datagraph has sent the Customer regarding the Services, Datagraph will use
reasonable endeavours to attempt to contact the Customer using the other
contact details the Customer submitted, including non-electronic means, but
does not guarantee that Datagraph will be able to contact the Customer.
11.3 Words or expressions used in this clause
11.3 which are defined in the A New Tax
System (Goods and Services Tax) Act 1999 (Cth) or, if not so defined, then
which are defined in the Trade Practices Act 1974 (Cth), have the same meaning
in this clause. For the purposes of this Agreement where the expression GST
inclusive is used in relation to an amount payable or other consideration to be
provided for a supply under this Agreement, the amount or consideration will
not be increased on account of any GST payable on that supply. Any
consideration to be paid or provided for a supply made under or in connection
with this Agreement, unless specifically described in this Agreement as GST
inclusive, does not include an amount on account of GST. Despite any other
provision in this Agreement, if Datagraph makes a supply under or in connection
with this Agreement on which GST is imposed (not being a supply the
consideration for which is specifically described in this Agreement as GST
inclusive): (a) the consideration payable or to be provided for that supply
under this Agreement but for the application of this clause (GST exclusive
consideration) is increased by, and the Customer must also pay to Datagraph, an
amount equal to the GST payable by the Datagraph on that supply; and (b) the
amount by which the GST exclusive consideration is increased must be paid to
Datagraph by the Customer without set off, deduction or requirement for demand,
at the same time as the GST exclusive consideration is payable or to be
provided. If a payment to the Customer under this Agreement is a reimbursement
or indemnification, calculated by reference to a loss, cost or expense incurred
by the Customer, then the payment will be reduced by the amount of any input
tax credit to which the Customer are entitled for that loss, cost or expense.
Datagraph, having regard to Part VB of the Trade Practices Act 1974 (Cth), may
refund to the Customer part or all of any amount paid by the Customer under
this Agreement during the New Tax System transition period, the amount of the
refund to be determined in the sole discretion of Datagraph. Datagraph will
provide a tax invoice. If the Customer objects to the amount of any refund or
adjustment determined by Datagraph under this clause, the Customer and
Datagraph will negotiate in good faith in an attempt to agree on the amount of
the refund or adjustment. If the Customer and Datagraph cannot agree on the
amount of the refund or adjustment, then the refund or adjustment must be
determined by a person: (a) who has at least 10 years experience as a lawyer;
(b) who is appointed by the parties but if the parties cannot agree who to
appoint within 28 days after one of them notifies the other that it requires a
person to be appointed for the purposes of this clause, then that person is to
be nominated at the request of either of the parties by the President of the
Queensland Law Society or by the President's nominee; (c) who the Customer and
Datagraph must instruct to give a written decision with reasons; (d) who acts
as an expert and not as an arbitrator; (e) whose decision except in the case of
obvious error is final and binding; and (f) whose cost the Customer and
Datagraph must bear equally. Pending that person's determination, the parties
must continue to comply with this Agreement, including, without limitation,
making all payments provided for under this Agreement. Any information given to
the expert by Datagraph including, without limitation, confidential
information, is for the use of the expert only and under no circumstances
(except if required by law) is the information to be disclosed.
11.4 If the Customer are entitled to
obtain an Australian Business Number (ABN) under the A New Tax System
(Australian Business Number) Act 1999 (Cth) the Customer: (a) warrant that the
Customer have an ABN and have provided the applicable registration number to
Datagraph; and (b) must: (i) continue to have an ABN during the term of this
Agreement; (ii) quote its ABN to Datagraph; (iii) advise Datagraph if its ABN
changes or is cancelled; and (iv) indemnify Datagraph for any loss or damage
suffered by Datagraph or any tax, charge, fine, penalty or other impost which
Datagraph incurs or becomes liable to pay, as a result of its breach of any of
the warranties contained in this clause.
11.5 Increased costs (a) To the extent
that any supply by Datagraph under this Agreement is input taxed (input
tax supply), Datagraph is entitled to increase: (i) any amount expressed as
payable; and (ii) anything else to be provided, by the Customer for that input
tax supply otherwise under or in connection with this agreement (consideration
for the input tax supply) by: (iii) such amount as Datagraph determines in its
discretion is reasonably necessary for Datagraph to recover from the Customer
(in addition to the consideration for the input tax supply) the amount of the
input tax credits in relation to acquisitions made by Datagraph and used by it
wholly or partly in making the input tax supply, to which Datagraph would have
been entitled had the input tax supply been a taxable supply by Datagraph; or
(iv) such lesser amount as Datagraph determines. (b) Datagraph may make a
determination under clause
11.5(a)(iii) above or 11.5(a)(iv) above
by notice in writing to the Customer (Datagraph determination) and each
Datagraph determination will be conclusive evidence of the making of the
determination. The amount specified in any Datagraph determination must be paid
by the Customer immediately on receipt of the Datagraph determination without
objection and without any set off or deduction of any other amount payable
under this Agreement.
11.6 Waiver of any provision of or right
under this Agreement: (a) must be in writing signed by the party entitled to
the benefit of that provision or right; and (b) is effective only to the extent
set out in any written waiver.
11.7 In this agreement, except where the
context otherwise requires: (a) the singular includes the plural and vice
versa, and a gender includes other genders; (b) another grammatical form of a
defined word or expression has a corresponding meaning; (c) a reference to a
document or instrument includes the document or instrument as novated, altered,
supplemented or replaced from time to time; (d) a reference to $ & AU is to
Australian currency; (e) a reference to time is to Australian eastern standard
time; (f) a reference to a party is to a party to this agreement, and a
reference to a party to a document includes the party's executors,
administrators, successors and permitted assigns and substitutes; (g) a
reference to a person includes a natural person, partnership, body corporate,
association, governmental or local authority or agency or other entity; (h) a
reference to a statute, ordinance, code or other law includes regulations and
other instruments under it and consolidations, amendments, re enactments or
replacements of any of them; (i) a word or expression defined in the
Corporations Act has the meaning given to it in the Corporations Act; (j) the
meaning of general words is not limited by specific examples introduced by
including, for example or similar expressions; (k) any agreement,
representation, warranty or indemnity by two or more parties (including where
two or more persons are included in the same defined term) binds them jointly
and severally; (l) any agreement, representation, warranty or indemnity in
favour of two or more parties (including where two or more persons are included
in the same defined term) is for the benefit of them jointly and severally; (m)
a rule of construction does not apply to the disadvantage of a party because
the party was responsible for the preparation of this agreement or any part of
it; and (n) if a day on or by which an obligation must be performed or an event
must occur is not a business day, the obligation must be performed or the event
must occur on or by the next business day. If the Customer has any questions
relating to this Agreement, it may submit a support ticket within the Client
Control Interface. SCHEDULE A: ACCEPTABLE USE POLICY This Acceptable Use Policy
(the "Policy") describes the proper kinds of conduct and prohibited uses of the
hosting and e-mail services (the "Services") provided by Datagraph. The Policy
forms part of the Agreement. This Policy is not exhaustive and Datagraph
reserves the right to modify it at any time, effective upon posting of the
modified version at http://www.datagraph.net.au/policies.aspx or such other
location designated by Datagraph. By using Datagraph Services, you agree to
abide by the then current version of this Policy. Any violation of this policy
may result in the suspension or termination of the services and such action as
Datagraph deems appropriate as further described in the hosting Agreement. Any
repeated violation of this policy will result in the termination of the hosting
Agreement. Indirect or attempted violations of this policy, and actual or
attempted violations by a third party on your behalf, shall be considered
violations of the Policy by you. GENERAL Datagraph Services enable you to host
and serve your Web site and all related content, including, but not limited to,
programs, program scripts, e-mail, text, bulletin board postings, hypertext
links, meta tags, domain names, pictures, graphics, forums, interactive media,
and audio/visual materials that you or a third party (collectively, "Customer
Content") posts on your Web site or other equipment, servers, software and
network of Datagraph (collectively, "Datagraph Systems"). Generally,
Datagraphdoes not actively monitor, censor, or directly control any information
that is stored on or transmitted over Datagraph Systems. Datagraph cannot and
does not warrant, verify or guarantee the quality, accuracy, safety or
integrity of your Customer Content or other materials or information that you
or a third party may post or access through the Services. You are solely
responsible for all of the Customer Content and your and your users' use of
Datagraph Services and your Web site. NO ILLEGAL OR HARMFUL USES Datagraph
Services and Systems may be used only for lawful purposes. Transmission,
distribution or storage of any material or any activity in violation of any
applicable law or regulation, including but not limited to gambling, is
strictly prohibited. The following non-exhaustive list describes the kinds of
illegal or harmful conduct that are prohibited. Datagraph reserves the right to
restrict or prohibit any and all uses or content that it determines in its sole
discretion is harmful to its systems, network, reputation, good will, other
Datagraph Customers, or any third party. Excessive Use of Server Resources. The
use of programs and scripts that cause excessive stress to servers including,
without limitation, chat scripts is prohibited on shared server accounts. This
is due to the resultant reduction in resources and deterioration of service for
other the Customers on the same shared server. Additionally, excessive use
and/or violation of bandwidth/storage maximums are prohibited on all web
hosting accounts. Determination of excessive use is at Datagraph sole
discretion. Infringement. Infringement of intellectual property rights or other
proprietary rights including, without limitation, material protected by
copyright, trade mark, patent, trade secret or other intellectual property
right used without proper authorisation. Infringement may result from the
unauthorised copying and posting of pictures, photographs, logos, registered or
unregistered trade marks, software, articles, musical works, and videos.
Illegal Materials. Disseminating or hosting material that is, without
limitation, unlawful, obscene, harmful, invasive of privacy or publicity
rights, abusive, or otherwise objectionable, under the laws of any
jurisdiction. Harmful Content. Disseminating or hosting harmful content or
software including, without limitation, viruses, Trojan horses, worms, time
bombs, cancelbots or any other computer programming routines that may damage,
interfere with, surreptitiously intercept or expropriate any system, program,
data or personal information including the Services. Fraudulent Conduct.
Offering or disseminating fraudulent goods, services, schemes, activities (ie.
gambling) or promotions (ie. make money fast schemes, chain letters, and
pyramid schemes); fraudulent submission or use of personal or financial
information; or engaging in any practice that constitutes an unfair or
deceptive trade practice. Privacy. Collecting, using and disclosing any
personally identifiable user information in violation of any applicable law
and/or stated privacy policy. MAINTENANCE OF SECURITY AND INTEGRITY Violations
of system or network security are prohibited, and may result in criminal and
civil liability. Datagraph will investigate incidents involving such violations
and may involve and will cooperate with law enforcement if a criminal violation
is suspected. Examples of system or network security violations include,
without limitation, the following: Hacking. Unauthorised access to or use of
data, systems or networks, including any attempt to probe, scan or test the
vulnerability of a system or network or to breach security or authentication
measures without express authorisation of the owner of the system or network.
Interception. Unauthorised monitoring of data or traffic on any network or
system of Datagraph or any third party. Intentional Interference. Interference
with service to any user, host or network including, but not limited to, denial
of service attacks, mail bombing, news bombing, other flooding techniques,
deliberate attempts to overload a system and broadcast attacks. Falsification
of Origin. Forging of any TCP-IP packet header, e-mail header or any part of a
message header. This prohibition does not include the use of aliases or
anonymous remailers. Avoiding System Restrictions. Using manual or electronic
means to modify usage details for billing reasons or to avoid any use
limitations placed on the Services such as access and storage restrictions. NO
E-MAIL ABUSES You may not distribute, publish, send or incite unsolicited mass
e-mailings, promotions, advertising, or solicitations (such as "spam"),
including, without limitation, commercial advertising, informational
announcements, and mail bombing. You may not use Datagraph mail server or a
third party mail server to relay mail without the express permission of the
account holder or the third party site. Posting the same or similar message to
one or more newsgroups (including, but not limited to, the use of chain
letters, excessive cross-postings or multiple-postings) is explicitly
prohibited. NO SERVICE BUREAUS You may not sell, assign, rent, transfer,
distribute, act as a service bureau, or grant rights in the Service to any
other person without the express prior written consent of Datagraph. The
Customer shall at all times adhere to all applicable laws, rules, and
regulations and to Datagraph then current Acceptable Use Policy (or such other
location as Datagraph may specify). In particular the Customer may not utilise
the Services: (a) in connection with any tortious or actionable activity; (b)
to publish or disseminate information that: (i) constitutes slander, libel or
defamation; (ii) publicises the personal information or likeness of a person
without that person's consent; or (iii) otherwise violates the privacy rights
of any person; or (c) to threaten persons with bodily harm, to make harassing
or abusive statements or messages, or to solicit the performance of acts or
services that are illegal under applicable law; (d) in connection with any
disruptive or abusive activity; (e) to cause denial of service attacks against
Datagraph or other network hosts or Internet users or to otherwise degrade or
impair the operation of Datagraph servers and facilities or the servers and
facilities other network hosts or Internet users; (f) to post messages or
software programs that consume excessive CPU time or storage space; (g) to
offer mail services, mail forwarding capabilities, POP accounts or
autoresponders other than for the Customer's own account; (h) to subvert, or
assist others in subverting, the security or integrity of any Datagraph system,
facility or equipment; (i) to gain unauthorised access to the computer networks
of Datagraph or any other person; (j) to provide passwords or access codes to
persons not authorised to receive such materials by the operator of the system
requiring the password or access code; (k) to: (i) forge the signature or other
identifying mark or code of any other person; (ii) impersonate or assume the
identity of any other person; or (iii) engage in any other activity (including
'spoofing') to attempt to deceive or mislead other persons regarding the true
identity of the Customer (excluding the use of anonymous remailers or Internet
nicknames); (l) to conduct port scans or other invasive procedures against any
server (except any server for which the Customer is an authorised system
administrator); (m) to distribute, advertise or promote software or services
that have the primary purpose of encouraging or facilitating unsolicited
commercial email or spam; (n) in any manner that might subject Datagraph to
unfavourable regulatory action, subject Datagraph to any liability for any
reason, or adversely affect Datagraph public image, reputation or goodwill,
including, without limitation, sending or distributing sexually explicit,
hateful, vulgar, racially, ethnically or otherwise objectionable materials as
determined by Datagraph in its sole discretion; or (o) in any other manner to
interrupt or interfere with the Internet usage of other persons. ENFORCEMENT BY
Datagraph Datagraph reserves the right, but does not assume the obligation, to
investigate any violation of this Policy or misuse of Datagraph Systems. As
described in the Hosting Agreement, Datagraph reserves the right and has
absolute discretion to (a) enforce this Policy and the terms of the Hosting
Agreement and (b) remove or disable access, screen or edit any Customer Content
that violates these provisions or is otherwise objectionable. Without
limitation, Datagraph also reserves the right to report any activity (including
the disclosure of appropriate Customer information) that it suspects violates
any law or regulation to appropriate law enforcement officials, regulators, or
other appropriate third parties. Datagraph also may without limitation
cooperate with appropriate law enforcement agencies to assist in the
investigation and prosecution of any illegal conduct or infringement of any
third party's legal rights by providing network and systems information related
to allegedly illegal, harmful, infringing or objectionable content. Datagraph
reserves all rights to identify the Customer by its IP address to third parties
within the scope of the Privacy Act 1988 (Cth).
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