“Customer” means the person or entity purchasing the Hosting Services or part thereof.

“Hosting Services” refers to the services provided by Hostaway pursuant to this Agreement in relation to domain, email and /or website hosting.

 “Users” means any persons or entities other than the parties to this Agreement who access the Website through the use of the internet.

 “Website” means the location on the internet made available by Hostaway through the World Wide Web which provides hypertext, hyperlinks, graphical or similar data content provided by or for the Customer made accessible for Users;

 “World Wide Web” means a part of the internet accessed through a graphical user interface containing textual and graphical data connected by hyperlink between data items.

2.1    As a World Wide Web service provider, HostAway provides the Hosting Services and maintains a network of dedicated server computers, routers, hubs, switches and other equipment and software (collectively called “Hostaway’s  Network”) located in the State of Western Australia which is integrated with the internet.

2.2    Hostaway’s Network sends and receives data and information in relation to the World Wide Web.

2.3    The Customer wishes to connect to the World Wide Web utilizing Hostaway’s Network and Hostaway will provide such Hosting Services as requested by the Customer.

3.1   Hostaway does not guarantee that any preferred domain name of the Customer will be available and, in any event, Hostaway accepts no liability resulting from the inability of Hostaway to obtain the Customer’s preferred domain name, or the exercise of Hostaway’s discretion in obtaining an alternative and reasonably comparable domain name on behalf of the Customer.

3.2   The Customer acknowledges and agrees that:

(a)   all information provided in the application for a domain name is true and correct;

(b)   the preferred domain name does not breach any legal rights, including but not limited to intellectual property rights, of any third party; and

(c)   the registration of its domain name may be subject to certain licence conditions and that the licensor may revoke the licence for the infringement of such conditions.  The Customer shall indemnify Hostaway and hold it harmless in respect of any liability arising directly or indirectly, as a result of the Customer’s failure to comply with any such licence conditions.

4.1   This Agreement will remain in full force during the period paid by the Customer.

4.2   In the event that the Customer fails to pay the fees for the Hosting Services in advance or the Customer’s account become overdue by more than 14 days, Hostaway shall be entitled to suspend or terminate the Customer’s account and discontinue the Hosting Services without notice to the Customer until such payment is made.

4.3   Either party may cancel this Agreement by giving thirty (30) days notice to the other party.

5.1   Hostaway does not guarantee that the Customer will have continuous access to the Hosting Services.

5.2   Hostaway is not liable in the event that the Hosting Services is unavailable to the Customer or to Users due to computer downtime resulting from malfunction, upgrades, preventative or remedial maintenance activities or the availability of services from suppliers.

5.3   Hostaway accepts no responsibility for any fault or inaccuracy in the Hosting Services resulting from a lack of maintenance.

5.4   The Customer is responsible for securing and maintaining its own Internet connection in order to access the Hosting Services.

5.5   Hostaway will not, under any circumstance, be responsible or liable for any loss or liability relating to or arising under this Agreement or in relation to the provision of the Hosting Services, including but not limited to:-

(a)   any suspension or loss of any website installed, housed or created pursuant to the Hosting Services;

(b)   the use of the Hosting Services;

(c)   the unauthorized use or misuse of the Customer’s account with Hostaway; 

(d)   any interruption of the Customer’s business and operations;

(e)   any access delays or access interruptions to the website the Customer accesses through the Hosting Services;

(f)   the non-delivery, mis-delivery, corruption, destruction or other modification of data;

(g)   the modification or removal of any website or any part thereof; and/or

(h)   any event beyond the control of Hostaway.

5.6   Hostaway’s entire liability and the Customer’s only remedy with respect to the Hosting Services provided under this Agreement and any breach of this Agreement is solely limited to the amount paid by the Customer for the Hosting Services.   Hostaway and its contractors shall not be liable for any direct, indirect, special or consequential damages resulting from the use or inability to use any of the Hosting Services or for the cost of procurement of substitute services.  In the event that any jurisdiction does not allow the exclusion or limitation of liability for consequential or incidental damages, then in such jurisdictions, Hostaway’s liability is limited to the extent permitted by law.

The Customer agrees to release, indemnify and hold Hostaway, its contractors, agents, employees, officers and directors harmless from all liabilities, claims, losses, damages, penalties, actions, judgments, suits, costs and expenses of any kind and in any jurisdiction including but not limited to events relating to or arising under this Agreement, the Hosting Services provided under this Agreement, or the Customer’s use of the Hosting Services including without limitation any infringement by the Customer, or a third party using the Hosting Services with the Customer’s account, of any intellectual property or other proprietary right of any person or entity.

The Customer’s failure to abide by any provision of this Agreement may be considered by Hostaway to be a material breach and that Hostaway may provide a written notice, describing the breach to the Customer. If within thirty (30) days of the date of such notice, the Customer fails to provide evidence, which is reasonably satisfactory to Hostaway that the Customer has not breached its obligations under the Agreement, Hostaway may suspend or terminate the Customer’s account and discontinue the Hosting Services.  Any such breach by the Customer shall not be deemed to be excused simply because Hostaway did not act earlier in response to that, or any other, breach by the Customer.

Hostaway may immediately suspend or terminate the Customer’s account and discontinue the Hosting Services without giving notice to the Customer if the Customer carries out or allows a third party to carry out without limitation the following:-

(a)   the transmission, distribution or storage of any material in contravention of any law or regulation 

(b)   the infringement of intellectual property rights or other proprietary rights of a third party;

(c)   the transmission, distribution or storage of any harmful content or software that contains viruses or any other computer code, files or programmes that may destroy, damage, impair, interfere or intercept any computer hardware or software,  telecommunications system or network or programme, data or information including the Hosting Services;

(d)   collecting any personally identifiable information without prior consent and in contravention of any applicable law or regulation

(e)   the uploading, posting, linking or otherwise transmitting of any fraudulent goods, services, schemes or activities;

(f)   the uploading, posting, linking or otherwise transmitting of any material that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, libelous, invasive of another party’s privacy or hateful or otherwise objectionable under any law or regulation; and

(g)   the unauthorized access to or use of any data, systems or network.

Upon the suspension or termination of the Customer’s account:-

(a)    the Customer shall immediately pay all unpaid fees in respect of the Hosting Services provided by Hostaway to the Customer.

(b)    Hostaway reserves the right to remove the Customer’s data and information located on the Customer’s website or stored in any manner as a result of the Hosting Services provided to the Customer.

The Customer agrees that its use of the Hosting Services is solely at its own risk.

Hostaway expressly disclaims all warranties of any kind, whether expressed or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement.  Hostaway makes no warranty that the Hosting Services will meet the Customer’s requirements, or that the Hosting Service will be uninterrupted, timely, secure, or error free; nor does Hostaway make any warranty as to the results that may be obtained from the use of the Hosting Services or as to the accuracy or reliability of any information obtained through the Hosting Services or that defects in the Hosting Service will be corrected. 

The Customer agrees that any material and/or data downloaded or otherwise obtained through the use of the Hosting Service is done at its own discretion and risk and that the Customer will be solely responsible for any damage to its computer system or loss of data that results from the download of such material and/or data.

Hostaway, in its sole discretion, reserves the right to refuse the Hosting Services within thirty (30) days from receipt of payment from the Customer for such services. Hostaway agrees to refund the Customer’s applicable fee(s) and shall not be liable to the Customer for loss or damages that may result from Hostaway’s refusal to provide Hosting Services.

Any notice, direction or other communication given under this Agreement shall be in writing and given via e-mail or regular mail. In the case of e-mail, valid notice shall only have been deemed to have been given when an electronic confirmation of delivery has been obtained by the sender. Any e-mail communication shall be deemed to have been validly and effectively given on the date of such communication, if such date is a business day and such delivery was made prior to 5:00 p.m WST, otherwise it will be deemed to have been delivered on the next business day. In the case of regular mail notice, valid notice shall be deemed to have been validly and effectively given three (3) business days after the date of mailing and, in the case of notification to Hostaway shall be sent to:

HostAway Unit 1/8 Midas Road MALAGA WA 6090

and in the case of notification to the Customer, such notification shall be to the address specified in the Customer’s application form.

 

12.1   No right under this Agreement shall be deemed to be waived except by notice in writing signed by each party.

12.2   A waiver made by Hostaway pursuant to this sub-clause will not prejudice its rights in respect of any subsequent breach of the Agreement by the Customer.

12.3   Subject to this sub-clause, any failure by Hostaway to enforce any clause of this Agreement, or any forbearance, delay or indulgence granted by Hostaway to the Customer will not be construed as a waiver of Hostaway’s rights under this Agreement.

If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, this Agreement shall remain otherwise in full force apart from such provisions which shall be deemed deleted.

14.1    Subject to any provision to the contrary, this Agreement shall enure to the benefit of and be binding upon the parties and their successors, trustees, permitted assigns or receivers but shall not enure to the benefit of any other persons.

14.2   The covenants, conditions and provisions of this Agreement which are capable of having effect after the expiration of the Agreement shall remain in full force and effect following the expiration of the Agreement.

15.1   Hostaway reserves the right to assign, pledge or transfer this Agreement provided that such assignment, pledge or transfer shall not affect the rights and privileges granted to the Customer hereunder.

15.2   The Customer may not assign this Agreement without the prior written consent of Hostaway.

16.1   Hostaway reserves the right to change the terms and conditions of this Agreement and the Hosting Services provided there under.  Any such change will be effective immediately upon posting of the change on Hostaway’s website or on notification to the Customer by email or regular mail.

16.2   Any change in fees for the Hosting Services will only take effect at the end of the period for which the Customer has pre-paid.

16.3   In the event that the Customer does not agree with any changes to the Agreement or to the Hosting Services provided there under, the Customer may terminate this Agreement at any time by giving notice to Hostaway by email or by regular mail.

16.4   Utilisation of the Hosting Services by the Customer following the effective date of the change in the terms and conditions of this Agreement and/or the Hosting Services provided there under shall constitute acceptance by the Customer of such changes.

17.1    This Agreement is governed by and is to be construed in accordance with the laws in force in the State of Western Australia.

17.2    Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the Courts of Western Australia and any Courts which have jurisdiction to hear appeals from any of those Courts and waives any right to object to any proceeding being brought in any of those Courts.