Web Hosting Agreement

DEFINITION OF TERMS

Words used in this agreement have the meanings set out below.  These words can be identified in this document because they commence with a capital letter.

“Charges” means the Charges set out by us for the Hosting Plan you have selected;

“Commencement Date” means the date of acceptance of your registration by us;

“Confidential Information” means information belonging or relating to a party which is marked confidential or which the other party knows or could reasonably be expected to know may be confidential including without limitation, information relating to the design and operation of our Hosting Services, the personnel policies or business strategies of the party and the terms upon which the Hosting Services are provided;

“Content” means all forms of material including, without limitation, text, pictures, animation, data, logos, designs, graphics, video and sound recording, separately or combined and may include software;

“Hosting Services” means the services provided by us to you pursuant to this agreement in accordance with the Hosting Plan referred to

“Intellectual Property Rights” means copyright, trademark, design, patent, semiconductor or circuit layout rights relevant to, among other things, the textual, graphical, audio and other Content displayed on the Web Site, the user interface of the Web Site including but not limited to screens, organisation, patents and operation or control features and all software directly or indirectly associated with the Web Site.

“Master Services Agreement” is a document that specifies the customer of the Hosting Services, the Hosting Services supplied and the term of the agreement.

“Party” means either The Ripe Group Pty Ltd or you as the context dictates;

“User” means a person other than the Parties who seeks access over the Internet;

  1. Proprietary rights in Software and Hardware
    1. Customer shall have no right, title, or interest of any kind whatsoever in the Software, Hardware, documentation, or any copyrights, patents or trademarks, embodied or used in connection therewith, except for:
      1. the limited licence to use them provided in this Agreement; and
      2. Hardware supplied by Customer for use on its premises or supplied for Colocation Services.
  2. Hosting Services
    1. We will provide the Hosting Services as specified in the Hosting Plan that you have selected. If requested by you under your selected Hosting Plan, we will install your Web Site on our computer facilities.
    2. The Hosting Services do not include maintenance of the Web Site. In particular, we accept no responsibility for any deficiency or inaccuracy in the Web Site attributable to a lack of maintenance.
    3. The Hosting Services do not include support for web design, programming or search engines.
  3. This Agreement
    1. The Ripe Group Pty Ltd (referred to in this agreement as “RipeGroup”, “Ripe”, “us”, “we” or “our”) is a Hosting Service Provider providing access to servers over the Internet. You wish us to provide computer space for the hosting of your web site (the “Web Site”) described in the Hosting Plan.
    2. This agreement commences upon the Commencement Date and continues for an initial term of one (1) year unless a different term is specified in the Master Services Agreement. After the initial term has expired, the agreement may be terminated by either party by giving the other party 60 days written notice.  We may vary the Charges after the initial term.
  4. Maintenance of Hardware
    1. Ripe Hardware: Ripe will maintain and support Hardware (other than Hardware on premises of Customer) in accordance with best industry practice or, where applicable, vendor specifications.
    2. Scheduled Maintenance: Ripe will perform all regularly scheduled maintenance on Hardware at times which will least affect Customers. Ripe will give Customer reasonable notice by email if scheduled maintenance requires interruption to Service for more than 15 minutes.
    3. Replacement of Hardware: Ripe may substitute, change or modify the Hardware at any time, but shall not thereby substantially alter the technical parameters of the Services without the prior approval of Customer unless the effect of the substitution, change or modification is to enhance the capacity or specifications of the Hardware.
    4. Technical Support: Customer acknowledges that technical support is limited to hardware/network failures and utilities provided by Ripe. Ripe will provide correct operational procedures and links to operational resources on the Ripe Website. Ripe will charge for any additional technical support at its Technical Account Management Services rates then in effect.
    5. Exclusions: Ripe is not responsible for maintenance and support of Hardware where:
      1. problems arise from tampering, modification, alteration, or additions to the Hardware by persons other than Ripe or its authorized representatives;
      2. Hardware has been supplied by Customer; and/or
      3. Hardware is located on premises of Customer,
      4. Unless in the case of Hardware referred to in clause 4.5(ii) and (iii) Customer has entered into a maintenance agreement with Ripe relating to that Hardware.
  5. Software
    1. Operating System and Web Server Software License: During the Term Ripe grants the Customer a non-transferable, nonexclusive license to use and install the Software specified in the Cover Sheet on the Hardware specified in the Cover Sheet for purposes of the Services. Ripe warrants that it has full right, title and interest in the Software to grant sublicenses by virtue of a license granted by the vendor of the Software (“Vendor License”) to Ripe to use and sub-license the Software. Ripe does not warrant third party Vendor Software in any way whatsoever, but undertakes to pass onto Customer the benefit of all warranties and indemnities relating to use of the Software under the Vendor License.
    2. Software License Restrictions: Customer agrees that it will not, directly or indirectly (and it will not allow others to):
    3. Copy the Software, except as necessary to install on Hardware and for internal, archival purposes. In the event Customer makes authorized copies of the Software, Customer shall reproduce all proprietary notices on such copies;
    4. Sell, lease, license, transfer, give possession of, or sub-license the Software to others, other than as permitted in the Vendor License; and/or
    5. Write or develop any derivative or other software programs, based, in whole or in part, upon the Software or any Confidential Information.
    6. Exclusions: Customer acknowledges that breach of clause 4.2 may result in invalidation of warranties relating to Software, including the benefit of third party Vendor warranties.
    7. Software Provided by Customer: Where Customer provides Software, Customer warrants that it has full right title and interest under a valid license to use the Software and to grant a valid sub-license to Ripe to install and run the Software during the Term solely in connection with providing Services under this Agreement.
  6. Your Obligations
    1. You shall:
      1. Follow support procedures published on the Ripe Website from time to time;
      2. Document and promptly report all errors and malfunctions in the Hardware;
      3. Be responsible for maintaining its own telecommunications equipment, software and other materials at its premises unless it has entered into a maintenance agreement with Ripe relating to that equipment.
    2. You are responsible for the design, development, modification, Content and maintenance of the Web Site.
    3. You warrant that the Content and the Web Site:
    4. will not infringe the Intellectual Property Rights of any third person or entity;
    5. is and will not, in our reasonable opinion, be or be likely to be, obscene, offensive, illegal or defamatory;
    6. does not breach any codes, standards or requirements of any relevant authority or body, including (but not limited) to the Internet Industry Association Code of Practice or any other relevant industry codes of practice; and
    7. does not comprise and cannot be used for any purpose or activity of an illegal, fraudulent or defamatory nature.
    8. You will obtain advice as to whether the Content on the Web Site is in contravention of any State, Territory, Commonwealth or other laws including whether it breaches any codes, standards or requirements of any relevant authority or body, including (but not limited) to the Internet Industry Association Code of Practice or any other relevant industry codes of practice.
    9. Should any complaints about Content on the Web Site arise, we will forward the complaints to you for resolution. You will not refer any enquiries or complaints about the Web Site’s Content to us.
    10. You will and do hereby indemnify us, against any loss, costs, expenses, demands or liability, whether direct or indirect arising out of a claim by a third party in relation to the Web Site, its Content, this agreement or the Hosting Services.
    11. Under direction of a relevant authority, such as the Australian Communications and Media Authority, we may be required by law to remove Content from your Web Site. Where possible we will inform you of such an event which will be a breach by you of this agreement and, if applicable, an offence under law, and further, a repeat occurrence will result in the immediate termination of this agreement.
    12. Not to interfere with the operations of other websites hosted by Ripe Group. In particular, not to attempt to hack, modify or gain access to servers or information that is not your property. Should you accidentally gain access to material or services not paid for or that you believe you should not have access to; inform Ripe immediately.
  7. Charges
    1. You will pay all the Charges at the rate and in the manner specified by the Hosting Plan selected by you.
    2. If you dispute the whole or any portion of the amount claimed in any invoice submitted by us, you will (within seven (7) days of your receipt of the invoice) pay the undisputed portion of such invoice and notify us in writing of the reason for disputing the remainder of the invoiced Charges.
    3. If it is resolved that some or all of the amount in dispute ought properly to have been paid at the time of the original invoice, then you must pay the amount finally resolved together with interest at the rate of 15% per annum calculated daily.
    4. All Charges are inclusive of GST unless otherwise stated on the invoice.
    5. You will be liable for any new taxes, duties or charges imposed after the commencement of this agreement.
  8. Our Liability
    1. You warrant that you have not relied on any representation by us which is not expressly contained in this agreement and that you have had adequate opportunity to independently verify the accuracy of any such representation.
    2. Despite any other term in this agreement and except as prevented by law, we will not be liable to you or any third party for any loss (including consequential loss) arising from any breach of our obligations, duties of care, statutory duties or implied warranties in connection with any services provided by us to you and to the extent any law implies any duties or warranties that may not be excluded our liability will be limited, at our option, to either supplying the services again or paying the cost of having the services supplied again.
    3. You will at all times indemnify and hold harmless us, our officers, employees and agents from and against any loss (including reasonable legal costs and expenses) caused by:
      1. a breach by you of your obligations under this agreement; or
      2. any wilful, unlawful or negligent act or omission by you.
  9. Terminating this Agreement
    1. We may terminate this agreement immediately by notice in writing if:
      1. you are in breach of any term of this agreement and you do not remedy this breach within thirty (30) days of being notified by us;
      2. you become or we consider you may be insolvent or you become subject to any form of bankruptcy or external administration;
    2. Either party may after expiration of the initial term terminate this agreement by 30 days’ notice in writing to the other party;
    3. Should this agreement be terminated by either party, we may:
      1. repossess any of our property in your possession or control;
      2. charge a reasonable sum for the Hosting Services or work performed that has not been previously charged;
    4. be regarded as discharged from any further obligations under this agreement;
    5. pursue any additional or alternative remedies provided by law;
    6. refund money previously paid by you under this agreement for Hosting Services not provided to you, after retaining a reasonable amount in respect of any Hosting Services or work carried out by us; and
    7. Upon termination of this agreement we will:
      1. Keep on the server(s) your Content for a period of 30 days to allow for it to be retrieved. After this period, or earlier by written instruction, we will then remove that data from the server(s).
  10. Circumstances Beyond Control
    1. A party is excused from performing its obligations under this agreement, to the extent that it is prevented by circumstances beyond its reasonable control including but not limited to, such things as, acts of God, natural disasters, acts of war, riots, earthquakes, lightning strikes, floods, storms, explosions, fires, any natural disaster, act of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage, revolution and strikes.
    2. When these circumstances arise, the effected party will give notice of them to the other party as soon as possible, identifying the effect they will have on its performance, and will make all reasonable efforts to minimise the effects.
    3. If the non-performance or diminished performance by the affected party continues for a period which the other party regards as commercially unreasonable, the other party may terminate the agreement. If the agreement is terminated in these circumstances, each party will bear its own costs and neither party will incur further liability to the other.
  11. Confidentiality
    1. Neither you nor we, without prior written approval of the other, will disclose the other’s Confidential Information.
    2. Each of us will take all reasonable steps to ensure that our employees and agents, and any sub-contractors engaged for the purpose of this agreement, do not make public or disclose the other’s Confidential Information.
  12. Notice
    1. Where this agreement refers to a party giving notice, that means written notice (including electronic communications) delivered by hand, facsimile or electronic mail.
    2. Any notice sent by post is deemed to be received by the party to whom it is addressed on the day which it would have been delivered in the normal course of post.
    3. Any notice sent by electronic communication is deemed to be received by the receiving party at the time the electronic communication enters the receiving party’s information system.
  13. General
    1. This agreement constitutes the sole and entire agreement between the parties with regard to its subject matter and any warranty, representation, guarantee or other term or condition of any nature not expressly contained or recorded in this agreement is of no force or effect.
    2. Any provision, or the application of any provision herein, which is void, illegal, prohibited or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
    3. This agreement is governed by the Law of Victoria. The parties submit to the non-exclusive jurisdiction of the courts of Victoria and any court hearing appeals from those courts.

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