Terms and Conditions - Internet Services Provisions

1. DEFINITIONS & INTEPRETATION
   
   1.1 Terms capitalised throughout this Agreement have the meanings set out in Clause 21 of this Agreement.
   
   1.2 This Agreement will be interpreted in accordance with the provisions of Clause 21 of this Agreement.
2. GENERAL
   
   2.1 The agreement made between us on these Terms commences on the date Ireckon Pty Ltd accepts Customer’s application for the services.
   
   2.2 Acceptance of Customer’s application for services is deemed to be the date Ireckon Pty Ltd creates Customer’s account on its servers for use by Customer.
   
   2.3 The Service is provided on an “as is, as available” basis. Ireckon Pty Ltd gives no warranty, express or implied, for the Web Hosting Services provided.
   
   2.4 Ireckon Pty Ltd will not be held liable for reimbursement for losses of income due to disruption of services by Ireckon Pty Ltd or its providers beyond the fees paid by the client to Ireckon Pty Ltd for services.
   
   2.5 We may vary these terms, our pricing for any service, or the terms of the operation of the Service, at any time by updating this document on our website, by email or in writing. All changes will become effective upon publication of the changes.
   
   2.6 This agreement is governed by the laws in place in the State of Queensland, Australia.
3. PROVISION OF SERVICES
   
   3.1 While Ireckon Pty Ltd shall make every reasonable effort to protect data stored on our Server(s), Ireckon Pty Ltd is not responsible for Customer’s data, files or directories residing on Ireckon Pty Ltd’s equipment. The customer is solely responsible for maintained data, file and directory structure backups.
   
   3.2 We must perform scheduled maintenance to servers from time to time. We will attempt to perform all scheduled maintenance at times which will affect the fewest customers. If scheduled maintenance requires the service to be offline for more than 30 minutes we will post details of the scheduled maintenance to the Web Host System News at least 48 hours in advance of the maintenance, or notify via email.
   
   3.3 We may need to perform unscheduled maintenance. If unscheduled maintenance requires the Service to be offline for more than 30 minutes, we will post details of the event to the Web Host System News after the maintenance has been completed, or via email.
   
   3.4 We will archive your data onto backup mechanisms on a regular basis for the purposes of disaster recovery. In the event of equipment failure or data corruption, we will restore from the last known good archive. In the event of corruption of all of our archives, or in the event that an old archive is used to restore data, you should be prepared to upload your data to your web site. You must maintain a recent copy of your data at your premises at all times. We will not be liable for incomplete, out-of-date, corrupt or otherwise deficient Customer data recovered from our backups.
   
   3.5 You agree to Ireckon Pty Ltd’s use of spam and virus filters which may require us to use third party equipment or services to monitor and filter email traffic between our equipment and the Internet. You agree that we will not be liable for any loss or damage resulting from the use of spam or virus filters.
   
   3.6 The Service is provided by Ireckon Pty Ltd from its data centres in Australia. Ireckon Pty Ltd will determine in its absolute discretion from time to time the data centre location from which your Service is provided. Ireckon Pty Ltd reserves the right to migrate your web site to a new operating system platform if our operating system supplier ceases to provide support for the legacy operating system, or if the server from which the service is provided fails or, in Ireckon Pty Ltd’s opinion becomes unreliable. Ireckon Pty Ltd will use reasonable endeavours to notify you via the contact details in our database but does not take any responsibility for web site failure if you have failed to keep your contact details up-to-date or if you have not checked the operation of your web site post-migration and notified us of any required changes to the web site configuration.
   
   3.7 In contracting with Ireckon Pty Ltd for the Services, the Customer obtains no rights to the hardware and other infrastructure and facilities used by Ireckon Pty Ltd to deliver the Service.
4. CHARGES AND PAYMENT
   
   4.1 The Client will pay the Charges for the provision of the Services at the rate and in the manner specified on the Ireckon Pty Ltd Web Site or as otherwise agreed between the parties in writing.
   
   4.2 The Charges will be based on prices specified in the price list located on the Ireckon Pty Ltd Web Site, or as provided in the written quotation and current from time to time.
   
   4.3 In the event that:
   
   1. Ireckon Pty Ltd is required to perform the Services in circumstances other than those expressly or reasonably anticipated; or
   2. there is a change in the timing or complexity of the Services; and such circumstances are not the result of a breach of this Agreement by Ireckon Pty Ltd, then Ireckon Pty Ltd will notify the Client of any additional fees payable by the Client as a result of such changes.
   4.4 Payment of the Charges will be due in advance of provision of the Services unless otherwise agreed by Ireckon Pty Ltd in writing.
   
   4.5 Ireckon Pty Ltd reserves the right to charge the Client interest on any outstanding amounts under this Agreement.
   
   4.6 Where the Services include domain name registration:
   
   1. Ireckon Pty Ltd will raise an invoice for payment to the appropriate naming authority for the hosting of that name specifying the date by which payment by the Client must be made; and
   2. failure for any reason by the Client to make payment before the specified date will entitle Ireckon Pty Ltd to release the Client's domain name without any liability for loss suffered by the Client howsoever arising.
5. MONITORING OF BANDWIDTH
   
   5.1 The Client's subscription to the Services covers permitted bandwidth (monthly transfer limit) as stated on the Client's Written Quotation/Agreement.
   
   5.2 Ireckon Pty Ltd reserves the right to:
   1. monitor the Client's monthly bandwidth usage;
   2. implement restrictions on available bandwidth in order to protect all Services using the Ireckon Pty Ltd Servers from time to time when necessary; and
   3. make additional charges for usage above the limit at the prevailing rate as stated in the agreed quotation.
6. DOMAIN NAME REGISTRATION
   
   6.1 The Client is responsible for checking the accuracy and correct spelling of the Client's domain name and its ownership entitlement as identified on Ireckon Pty Ltd documents sent to the Client and will notify Ireckon Pty Ltd within 24 hours of any corrections required.
   
   6.2 Upon registration of the Client's domain name, the Client shall at all times comply with the terms and conditions for the registration of domain names published by the relevant naming authority and generally to the terms and conditions of any such authority having similar force and to which the Client may become subject as a result of the provision of the Services by Ireckon Pty Ltd.
   
   6.3 The Client agrees to indemnify Ireckon Pty Ltd, its employees and agents and shall hold them harmless from and against all loss, penalties, damages, liability, claims or expenses whatsoever arising from any claims by third parties as to ownership or other rights to use a domain name where one has been registered by or transferred to Ireckon Pty Ltd or arising in any way by the Client infringing (whether innocently or knowingly) third party rights.
7. UNAUTHORISED USE BY CLIENT
   
   7.1 Ireckon Pty Ltd enforces 'Good Netiquette' practice and all Clients using Services and facilities offered by Ireckon Pty Ltd are obliged to comply with this Code of Practice and Ireckon Pty Ltd’s Acceptable Use Policy.
   
   7.2 The Client must comply with any directions regarding the Services given to the Client from time to time by Ireckon Pty Ltd, including, but not limited to procedures imposed from time to time to prevent unauthorised use of or access to the Services.
   
   7.3 The Client must not engage in or otherwise permit, any unauthorised use of Ireckon Pty Ltd facilities or Services by the Client, its employees, contractors, customers or third parties and in particular, the Client must not:
   1. permit any third party to use or to access any of the Services for any purpose without the prior written consent of Ireckon Pty Ltd;
   2. serve information in the form of text or graphics from Ireckon Pty Ltd Servers which may:
      1. directly or indirectly lead to a contravention of any law; or
      2. bring Ireckon Pty Ltd into disrepute or call into question any action taken by Ireckon Pty Ltd on the Client's behalf;
   3. use the Ireckon Pty Ltd Servers to either send bulk unsolicited e-mail, or append a domain name or e-mail address which has its mx record or DNS pointing to the Ireckon Pty Ltd Servers to such bulk unsolicited e-mail; or
   4. use or attempt to use protocols, procedures or scripts which in the unfettered opinion of Ireckon Pty Ltd have the effect of degrading or the potential to degrade the Services and facilities offered by Ireckon Pty Ltd.
   7.4 The Client agrees to immediately inform Ireckon Pty Ltd if it becomes aware of any unauthorised use of all or any of the Services by any person.
8. SUSPENSION OF SERVICES
   
   8.1 Ireckon Pty Ltd may suspend access to the Services:
   1. to preserve data and integrity;
   2. if there is a security breach; or
   3. if there is a malfunction in the Services.
   8.2 Ireckon Pty Ltd reserves the right to terminate or suspend the Services to the Client indefinitely and without refund or compensation in the event that:
   1. the Services are used, or appear to Ireckon Pty Ltd to be intended to be used, by a Client or a customer of the Client in a manner deemed inappropriate by Ireckon Pty Ltd;
   2. the provision of the Services is likely to expose Ireckon Pty Ltd to any liability as a result of a breach of any law or any third party rights; or
   3. the Client otherwise breaches this Agreement.
   8.3 Suspension of Services by Ireckon Pty Ltd will continue until the problem or breach is rectified or until otherwise agreed.
   
   8.4 Ireckon Pty Ltd will not be liable to the Client, its employees, contractors, customers or agents as a result of taking the action referred to in this Clause 8 where such action is taken on a view which is formed on a reasonable basis by Ireckon Pty Ltd.
9. LOSS OF DATA
   
   9.1 Ireckon Pty Ltd will take all reasonable steps to safeguard the Ireckon Pty Ltd Servers and the data contained therein, however Ireckon Pty Ltd will not be responsible for any loss of Client data stored or intended to be stored on the Ireckon Pty Ltd Servers or back-up devices and the Client will not be entitled to any form of compensation from Ireckon Pty Ltd in the event of loss of data.
10. INTERRUPTIONS TO SERVICE
    
    10.1 Ireckon Pty Ltd takes no responsibility for any delay, malfunction, non performance, or other degradation of performance of any of the Services caused by or resulting from any alteration, modifications or amendments due to changes and specifications requested or implemented by the Client whether or not beyond the Services already supplied.
    
    10.2 In the event of total systems failure resulting in the disruption of service to the Internet from Ireckon Pty Ltd Servers, Ireckon Pty Ltd will endeavour to repair and reinstate the service within 24 hours of detection depending on the severity of the failure.
    
    10.3 If failure is caused by the Client or any agent or customer of the Client to whom access to Ireckon Pty Ltd Servers was given, the Client shall pay all costs to reinstate and/or repair the Client server.
11. CLIENT DELIVERABLES
    
    11.1 The Client will provide Ireckon Pty Ltd with the Client Deliverables in accordance with the time frames agreed between the parties.
    
    11.2 Ireckon Pty Ltd will not be responsible for any deficiency or alleged deficiency in the Services which is attributable to:
    1. incorrect information provided by the Client; or
    2. failure by the Client to provide the Client Deliverables or other relevant information.
    11.3 The Client will have no remedy against Ireckon Pty Ltd in relation to any delay or failure to complete the Services, where such delay or failure is the direct or indirect result of any act or omission of the Client or a breach by the Client of this Agreement.
12. INDEMNITY
    
    12.1 The Client warrants that:
    1. it owns, or has a licence to use the Intellectual Property Rights in any Client Deliverables provided to Ireckon Pty Ltd, including any trade marks;
    2. Ireckon Pty Ltd’s provision of Services to the Client will not infringe any third party's Intellectual Property Rights.
    12.2 The Client indemnifies Ireckon Pty Ltd against all expenses, losses, damages and costs (on a solicitor and own basis and whether incurred by or awarded against Ireckon Pty Ltd) which Ireckon Pty Ltd may sustain or incur as a result, whether directly or indirectly, of:
    1. any breach of this Agreement or the warranties contained herein by the Client including, but not limited to, a breach, in respect of which Ireckon Pty Ltd exercises an express right to terminate this Agreement; and
    2. any claim by any person arising out of a breach of any of the warranties contained in Clause 12.1.
13. IMPLIED TERMS
    
    13.1 Subject to Clause 13.2, any condition or warranty which would otherwise be implied in this Agreement is hereby excluded.
    
    13.2 In the event that a condition or warranty cannot be excluded by law, the liability of Ireckon Pty Ltd for any breach of such condition or warranty will be limited, at the option of Ireckon Pty Ltd, to:
    1. the supplying of the Services again; or
    2. the payment of the cost of having the Services supplied again.
14. LIMITATION OF LIABILITY
    
    14.1 Ireckon Pty Ltd will be under no liability to the Client, or any customers of the Client, in respect of any loss of profits or data, consequential loss or damage which may be suffered or incurred or which may arise directly or indirectly in respect of:
    1. goods or Services supplied pursuant to this Agreement;
    2. failure or omission on the part of Ireckon Pty Ltd to comply with its obligations under this Agreement; or
    3. supply of Client Deliverables by the Client which are incomplete, inaccurate, illegible, out of sequence, in the wrong form or arising from late arrival or non-arrival or any other fault by the Client.
    14.2 The Client warrants that it has not relied on any representation made by Ireckon Pty Ltd which has not been stated expressly in this Agreement.
    
    14.3 The Client will at all times indemnify and hold harmless Ireckon Pty Ltd and its officers, employees and agents ('those indemnified') from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of those indemnified arising from any proceedings against those indemnified where such loss or liability was caused by:
    1. a breach by the Client of its obligations under this Agreement; or
    2. any wilful, unlawful or negligent act or omission of the Client.
15. CONFIDENTIAL INFORMATION
    
    15.1 Each party will use the Confidential Information of the other party only for the purposes of this Agreement.
    
    15.2 Neither party to this agreement will disclose to any third party (other than its employees or contractors in their capacities are such) any Confidential Information of the other party which information is not lawfully in the public domain.
    
    15.3 Any lawfully required disclosure of Confidential Information to any governmental or other controlling body will be limited to essential information only and, if possible, made subject to a confidentiality order.
16. TERM
    
    16.1 The minimum contractual period for the provision of the Services by Ireckon Pty Ltd is 12 months from the first day that the Services are made available to the Client ('Initial Term'), or as specified as part of individual quotations and/or agreements.
    
    16.2 Subject to Clause 16.3, following the expiry of the Initial Term, this Agreement will continue until terminated by either party pursuant to Clause 17 of this Agreement.
    
    16.3 The Client may elect to terminate this Agreement after the Initial Term by providing Ireckon Pty Ltd with written notice to that effect one month prior to the expiry of the Initial Term.
17. TERMINATION
    
    17.1 Either party may terminate this Agreement with immediate effect by giving notice to the other party if:
    1. the other party breaches any of its obligations under this Agreement and fails to remedy that breach within 14 days after receiving notice requiring it to do so; or
    2. any event referred to in Clause 17.2 occurs.
    17.2 Each party will notify the other immediately if:
    1. it ceases to carry on business;
    2. it disposes of the whole or any part of its assets, operations or business other than in the ordinary course of business;
    3. any step is taken to enter into any arrangement between that party and its creditors;
    4. any step is taken by a mortgagee to enter into possession or dispose of the whole or any part of its assets or business; or
    5. any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator or other like person of the whole or any part of its assets or business.
    17.3 Termination of this Agreement will not affect the accrued rights or remedies of either party.
18. FORCE MAJEURE
    
    18.1 Neither party will be in default under this Agreement by reason of its delay in performance of or failure to perform any of its obligations, if such delay or failure is caused by declaration of war, strikes, Acts of God or the public enemy, riots, interference by civil or military authorities, compliance with Governmental laws, rules and regulations, delays in transit or delivery, inability to secure necessary governmental priorities or any fault beyond its control and without its fault or negligence.
19. GENERAL
    
    19.1 Severance
    
    If any part of this Agreement is deemed unenforceable then:
    1. if the provision would not be illegal or unenforceable if a word or words were omitted, that word or those words are severed; or
    2. in any other case the provision is severed,
       then the rest of this Agreement will continue to be legal and enforceable.
    19.2 Waiver
    
    The failure of a party at any time to insist on performance of any obligation under this Agreement of the other party is not a waiver of its right:
    1. to insist on performance of, or claim damages for breach of, that obligation unless that party acknowledges in writing that the failure is a waiver; and
    2. at any other time to insist on performance of that or any other obligation of the other party under this Agreement.
    19.3 Notices
    1. Each party notifying or giving notice under this Agreement will do so:
       1. in writing;
       2. addressed to the address of the recipient; and
       3. hand delivered or sent by prepaid post to that address or sent by e-mail or facsimile transmission to the other party's e-mail address or facsimile number.
    2. A notice given in accordance with Clause 19.3(a) is deemed received:
       1. if hand delivered, on the date of delivery;
       2. if sent by prepaid post, 4 days after the date of posting within Australia and 7 days after the date of posting outside Australia; and
       3. if sent by facsimile transmission, on the day the transmission is sent (but only if the sender has a confirmation report specifying a facsimile number of the recipient, the number of pages sent and the date of transmission
    19.4 Sub-Contracting
    
    Ireckon Pty Ltd may sub-contract the performance of any of the Services but will remain primarily responsible for the performance of its obligations under this Agreement.
    
    19.5 Entire Agreement
    
    This Agreement forms the entire agreement between the parties in respect of the subject matter of this Agreement.
20. GOVERNING LAW
    
    This Agreement is governed by the laws of the State of Queensland
21. DEFINITIONS AND INTERPRETATIONS
    
    21.1 In this Agreement, the following terms will have the following meanings:
    
    'Acceptable Use Policy' means the policy governing acceptable use of the Ireckon Pty Ltd Services annexed this Agreement as updated from time to time and posted on the Ireckon Pty Ltd Web Site;
    
    'Agreement' means this agreement, including the Acceptable Use Policy, governing the provision of the Services by Ireckon Pty Ltd to the Client as may be varied from time to time by the parties in writing;
    
    'Charges' means the amount payable for provision of the Services as prior agreed between the parties in writing;
    
    'Client' means the party who has entered into this Agreement for Services with Ireckon Pty Ltd;
    
    'Client Deliverables' means all information and materials to be provided by the Client to Ireckon Pty Ltd under the terms and conditions of this Agreement as agreed between the parties or as otherwise provided by the Client to Ireckon Pty Ltd from time to time;
    
    'Confidential Information' of a party means all information disclosed by a party to the other party and nominated as confidential (including, but not limited to, confidential information in machine readable form) but does not include information which is already in the public domain;
    'GST' means any goods or services tax, charge, impost or duty payable in respect of this Agreement or the supply of any goods or services made under or in respect of this Agreement;
    
    'Ireckon Pty Ltd Servers' refers to all Software Processing Units belonging to Ireckon Pty Ltd that are connected to the Internet;
    
    'Ireckon Pty Ltd Web Site' means the web site maintained by Ireckon Pty Ltd and located at http://www.ireckon.com or any other URL notified by Ireckon Pty Ltd to the Client from time to time;
    
    'Intellectual Property Rights' means all intellectual property rights including, but not limited to:
    1. patents, copyright, circuit layout rights, designs, trade marks ; and
    2. any application or right to apply for any of the rights referred to in paragraph (a);
       
       'Internet' means the world wide connection of computer networks providing for the transmittal of electronic mail, on-line information, information retrieval and file transfer protocol;
       
       'Services' means those Services which the Client and Ireckon Pty Ltd agree are to be provided to the Client by Ireckon Pty Ltd in accordance with the package descriptions and payment details set out on the Ireckon Pty Ltd Web Site;
    21.2 In this Agreement:
    1. clause headings have been inserted for convenience only and will not be taken into account in interpreting the Agreement;
    2. words importing the singular will include the plural and vice versa;
    3. words importing natural persons will include firms and corporate bodies or other legal persons and vice versa;
    4. reference to a party to this Agreement includes reference to that party's successors and assigns.