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WebCentral Pty Limited (ABN 87 084 429 318)

Date: March 2011

These are the standard terms and conditions of supply of the WebCentral web hosting and other products and services offered from time to time by WebCentral ("the Service"). These terms apply to you as a user of the Service ("Customer" or "you"). Please read these terms and conditions carefully.

1. Terms and Amendment Procedure

1.1 These are the terms upon which we agree to provide the Service to the Customer. In addition to these terms, you must also comply with:

1.2 The agreement made between us on these terms commences on the date listed in the Mission Control panel when your order for Services was accepted by WebCentral and will continue until terminated in accordance with these terms.

1.3 Monthly contracts will roll on a monthly basis without notice to you. If you have chosen a fixed contract period (a contract period other than a month to month contract) for your Service, but excluding .au domain names renewals, your Service will be automatically renewed for a further fixed contract period at the end of the term or in the case of a domain name renewal, on the date notified to you by our reminder email. If your fixed contract period Service is to be auto-renewed, we will:

(i) notify you of the impending auto-renewal; and

(ii) provide you the ability to cancel the impending auto-renewal.

You must advise us prior to the auto-renewal date if you wish to cancel the Service. If we do not receive your cancellation or 'do not renew' advice, we will auto-renew the Service in order to ensure it continues uninterrupted. Your Service will be auto-renewed for the same duration at the then current applicable charges published on WebCentral's website located at www.webcentral.com.au.

1.4 You must ensure that your contact details in Mission Control Account Management are current at all times. We will use those contact details to notify you of anything which affects the Services and do not take any responsibility for any loss, damages or expenses you incur if we have been unable to contact you because you have not kept your contact details up-to-date.

1.5 We may vary these terms, the price we charge for any Service (excluding Services supplied under a fixed contract period), or the terms of the operation of the Service, at any time by notice via the Mission Control panel, by email or in writing. The changes will become effective upon publication of the notice. Where we vary the prices for Services, we will give at least 14 days notice of the change by the same means, and the new prices will apply at the end of that period. If you use the Service after that publication, your use will constitute an acceptance of the amended terms.

1.6 These terms constitute the agreement in its entirety and supersede prior agreements.

1.7 We may from time to time run promotions and make special offers of limited time duration ("Promotions"). All Promotions are offered subject to their terms and may be withdrawn or altered at WebCentral's discretion. The terms of a promotion will override these terms to the extent of any inconsistency.

2. Service

2.1 We will assign the Customer a logon name ("VS number") and password which will provide you with access to the Mission Control panel (which is used by you to configure various features of your Service). If you downgrade your Service to one of a lesser value, you may be charged a downgrade fee.

2.2 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 via the job system in Mission Control at least 48 hours in advance of the maintenance.

2.3 Where we need to perform unscheduled maintenance, we will use reasonable efforts to provide prior notice before interrupting the Services. Where it is not reasonably practicable to provide prior notice of unscheduled maintenance, we will provide notice as soon as possible following the performance of the maintenance.

2.4 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 all times. We will not be liable for incomplete, out-of-date, corrupt or otherwise deficient Customer Data recovered from our backups.

2.5 You agree to WebCentral'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.

2.6 The Service is provided by WebCentral from any of the data centres it operates. WebCentral will determine in its absolute discretion from time to time the data centre location from which your Service is provided. WebCentral reserves the right to migrate your Service upon 14 days notice to you. We will use reasonable endeavours to minimise downtime and you will have no claim against WebCentral for downtime in supply of the Services caused by the migration. WebCentral does not take any responsibility for Service failure if you have not checked the operation of your Service post-migration and notified us of any required changes to its configuration.

2.7 In contracting with WebCentral for Services, the Customer obtains no rights to the hardware and other infrastructure and facilities used by WebCentral to deliver the Service.

3. Payment

3.1 You must pay for the Service as notified to you by WebCentral in accordance with WebCentral's published prices for Services from time to time. If you elect to pay your fees on a yearly basis, and fail to make payment within 30 days of invoice, you will not be entitled to receive the yearly fee discount.

3.2 You must pay all Service charges, traffic and/or storage charges and other amounts incurred by you or any designated users or incurred as a result of any use of your password (whether authorised or not) in accordance with the billing option selected and in advance. Where a billing option does not specify otherwise, all Service charges are payable within 14 days of the date of invoice (whether online or paper invoice).

3.3 Prices published are inclusive of any government taxes or charges unless otherwise noted, and exclusive of any registration or delegation charges imposed by domain name authorities.

3.4 In addition you must provide and pay for:

  • the installation and use of telephone lines and all other equipment needed to access the Service; and
  • all government taxes, duties and levies (if any) imposed on either you or us in respect of the Services or any other service or goods supplied.

3.5 You must pay all amounts billed in accordance with your billing option. No credit terms are given to credit card accounts. Upon registration of a credit card account, you give us authorisation to debit your credit card for all charges. Billing period is on a monthly cycle beginning when you register. If you register after the 28th of each month, your billing date becomes the first of the next month.

3.6 You authorise us to obtain from and give to credit reporting agencies and other credit providers certain information about you so that we may manage your account with us. This information may include personal details such as your name, address, date of birth, company details and address, credit history and creditworthiness, credit standing with us and credit capacity. We reserve the right to refuse your application for, monitor ongoing usage of, or restrict your access to the Services on the basis of our assessment of credit information relating to you. You are entitled to see and correct any credit information we hold about you. You also authorise us to exchange information about you and your account with us to our suppliers, agents and contractors, and use that information for account management and business planning.

3.7 You agree that you will be charged an account keeping fee of AU$3.50 per month. The account keeping fee will not be charged if you elect to make payment by auto debit credit card. The account keeping fee will be charged per customer account identified with a unique 'vs' number. If a customer has multiple accounts with WebCentral, the account keeping fee will be charged on each account for which monthly invoices are issued.

3.8 No refunds will be given for unused portions of payments in advance unless the account has been terminated due to WebCentral's breach of these terms and conditions. If you terminate a rolling fixed period contract before the end of its term, you will be charged for the balance of the contract term.

4. Customer Warranties and Indemnities

4.1 You warrant that:

  • if you are not the Customer, you have the power and authority to enter into this agreement on behalf of the Customer and will indemnify WebCentral for any breach of this agreement by the Customer; at the time of entering into this agreement you are not relying on any representation made by us which has not been stated expressly in this agreement, or on any descriptions or specifications contained in any other document, including any catalogues or publicity material which we have produced;
  • you will conduct such tests and computer virus scanning as may be necessary to ensure that data uploaded by you onto or downloaded by you from the Server does not contain any computer virus and will not in any way, corrupt the data or systems of any person; you will keep secure any passwords used with the Service; and,
  • you hold and will continue to hold the copyright in the Customer Data or that you are licensed and will continue to be licensed to use the Customer Data.

4.2 You are solely responsible for dealing with persons who access the Customer Data, and must not refer complaints or inquiries in relation to such data to us.

4.3 You indemnify us against all costs, expenses, loss or liability that we may suffer (directly or indirectly) resulting from:

  • your breach of these terms;
  • your use or misuse of the Service;
  • the use or misuse of the Service by any person using your account; and,
  • publication of defamatory, offensive or otherwise unlawful material on any web site forming part of your service.

4.4 If your use of our Services involves storage, processing or transmission of or access to any credit cardholder data, you warrant that the tools, programmes, processes and technologies you use to do so comply with the Payment Card Industry Data Security Standard ("PCI Standard") which is available at https://www.pcisecuritystandards.org. If you breach this warranty, WebCentral may terminate this agreement immediately upon written notice to you (which may be delivered by email to the person identified in Mission Control as your authorised contact, or by logged job), and without prejudice to any other rights it may have under this agreement or at law.

5. WebCentral's Warranties and Liabilities

5.1 We do not warrant that:

  • the services provided under this agreement will be uninterrupted or error free;
  • the services will meet your requirements, other than as expressly set out in this agreement; or
  • the Services will be free from external intruders (hackers), virus or worm attack, denial of service attack, or other persons having unauthorised access to the services or systems of WebCentral.

5.2 Where the Customer is a Consumer (as that word is defined by the Competition and Consumer Act), we accept liability where: the Service is not supplied with due care and skill; any material supplied in connection with the Service is not reasonably fit for the purpose for which it was supplied; and as we are otherwise required to do so by the Competition and Consumer Act.

5.3 To the extent that the Service is not of a kind ordinarily acquired for personal, domestic or household use, our liability is limited to, at our option, to the resupply of the services again; or payment of the cost of having the services supplied again.

5.4 Except as expressly provided to the contrary in this agreement, we exclude all liability for indirect and consequential loss or damage of any kind, loss or corruption of data, loss of revenue, loss of profits, failure to realise expected profits or savings and any other commercial or economic loss of any kind, in contract, tort (including negligence), under any statute or otherwise arising from or relating in any way to this agreement and/or its subject matter.

5.5 Other than liability accepted by us in clause 5.2, our total liability for loss or damage of any kind not excluded by clause 5.4, however caused, in contract, tort (including negligence), under any statute or otherwise arising from or relating in any way to this agreement is limited in aggregate to the fees paid by you for the Service in the previous 12 month period.

6. Suspension and Termination of Service

6.1 We may from time to time without notice suspend the Service or disconnect or deny your access to the Service:

  • during any technical failure, modification or maintenance involved in the Service provided that we will use reasonable endeavours to procure the resumption of the Services as soon as reasonably practicable; or
  • if you fail to comply with any provision in this agreement (including failure to pay charges due), or do, or allow to be done, anything which in our opinion may have the effect of jeopardising the operation of the Service, until the breach (if capable of remedy) is remedied.
  • Notwithstanding any suspension of any Service under this clause you shall remain liable for all charges due throughout the period of suspension.

6.2 If your account has been suspended or terminated due to your breach, reactivation of your account will be completely at our discretion. If we agree to reactivate your account, we will require:

  • payment in full of all outstanding amounts; and
  • payment of a reactivation fee.

6.3 WebCentral reserves the right to refuse to supply services to a potential customer who has previously had its account with WebCentral terminated for breach. In this clause, "potential customer" includes:

  • (if the potential customer is a corporation) its Related Entity or Related Party (as those phrases are defined in the Corporations Law); and
  • (if the potential customer is an individual) any corporation in which the potential customer was at the relevant time an officer or shareholder, or a Related Party of a shareholder.

6.4 WebCentral may without notice to you remove, amend or alter your data upon being made aware:

  • of any claim or allegation;
  • of any court order, direction, judgment, determination or other finding of a court or other competent body; or
  • that the data is illegal, defamatory, offensive or in breach of a third party's rights.

6.5 We may end our agreement with you and cease providing Services (other than Services for a fixed contract period) for any reason, on 30 days written notice to you; with respect to Services for a fixed contract period, the notice will not expire before the end of the fixed contract period.

6.6 You may terminate a Service by removing the Service from Mission Control. You will continue to be invoiced for all Services that remain in Mission control. To close your account with WebCentral, you must provide notice to WebCentral in accordance with the methods set out below.

  • by logged job in Mission Control;
  • by letter or fax on company letterhead (if applicable) and signed by you or an authorised person; or
  • by email to accounts@webcentral.com.au from a listed Mission Control contact, quoting the Mission Control password

The closure notice will take effect on the next billing date following the date of your notice. You will be required to pay charges for Services supplied up to the date on which the closure notice takes effect. Your account cannot be closed unless you have terminated and removed all Services from Mission Control.

6.7 If your account is closed you must pay all outstanding charges immediately and we may delete all Customer Data from any storage media.

6.8 We are under no obligation to provide you with a copy of the Customer Data if we have suspended or terminated your access to the Service for your breach. If we provide you with a copy of Customer Data, we are entitled to charge a fee for service.

7. Money Back Guarantee for Hosting Plans

7.1 If you are not satisfied with the quality of the service received in respect to your hosting plan, Managed Exchange or SharePoint products, you may cancel your service with WebCentral within 30 days of commencement and request a refund for the services fees ("Money Back Guarantee").

7.2 Excluded from the Money Back Guarantee are:

  • Setup fees;
  • Excess storage and traffic charges;
  • Charges for add-on services including but not limited to promotions manager, Cold Fusion, MS SQL and PC Back-up;
  • Domain name charges.

7.3 The Money Back Guarantee is limited to one claim per customer and does not apply to customers with existing hosting accounts.

7.4 Customers who have amounts owing under any of their other accounts are not eligible for the Money Back Guarantee.

8.  Uptime Service Level

8.1 This clause 8 will only apply to you only if you have selected a webhosting service package which includes an Uptime service level ("Uptime SLA").

8.2 For the purposes of this clause, "Uptime" means the percentage of time your website is available to designated WebCentral monitoring endpoints and will be measured according to monthly averages. The Uptime SLA does not apply to:

(a)        DNS services;

(b)        FTP services;

(c)        email services (POP, IMPAP and SMTP);

(d)       SQL services (MySQL and MS SQL); or

(e)        Mission Control.

8.3 WebCentral warrants that your webhosting Uptime availability will be at least 99.99% except where the failure results from:

  • (a) A failure or malfunction in relation to any device or equipment, any software or power supply outside our control, unless caused by our wrongful act or omission;
  • (b) Your act or omission (or a person under your direction or control);
  • (c) A failure or malfunction of any software forming part of the Service which has not been subjected to a testing regime due to its time critical nature including updates, patches, definitions etc;
  • (d) during scheduled maintenance windows and any emergency maintenance and upgrade work;
  • (e) a requirement, direction or any other order issued by a court, government authority, administrative or judicial body;
  • (f) unauthorised or illegal access by any party to any party of the computer systems used to provide the Services including hacking, cracking, virus dissemination and denial of service attacks;
  • (g) any false SLA breaches reported as a result of outages or errors of any WebCentral measurement system;
  • (h) DNS propagation;
  • (i) where Customer's website is not being hosted on WebCentral's new webhosting platform.

8.4 If in any calendar month, we fail to meet the Uptime SLA, we will refund to you, as your sole right or remedy, a percentage credit of the fees for the relevant Service in that month as set out in the table below:

Monthly Uptime

Service Credit*

99.98% - 99.8%

10%

99.79% - 99.6%

15%

99.59% or lower

20%
*Service Credits are calculated against that month's webhosting fees and charges only.

8.5 You must request a Service Credit in writing, by logging a job through the Mission Control panel, or by sending an email or facsimile to WebCentral.  All requests must be made within 30 days of the Uptime SLA breach occurring, and you must provide WebCentral with details of the breach claimed for verification purposes.  If the breach is confirmed by WebCentral (based on WebCentral's records obtained from its monitoring endpoints) to have occurred, then WebCentral will, within 60 days of your request being received, apply the relevant Service Credit to your account.

8.6 You will not be entitled to receive a Service Credit if, at the date of your request for a Service Credit, you are in breach of any of your obligations under these Terms and Conditions, including the obligation to pay fees and charges.

8.7 You will be entitled to make only 1 claim for Service Credits per month.

9. Domain Names

9.1 If you have requested that WebCentral register, renew or redelegate a domain name on your behalf, you agree that you have read and accept the applicable policies issued by our registrars, Melbourne IT Limited and NetSol.

9.2 You agree that in the event of a dispute about a TLD, you will submit to and are bound by the Uniform Domain Name Dispute Resolution Policy (UDRP) and the Rules for UDRP.

9.3 You agree that in the event of a dispute in registering a .au domain or about a .au domain after registration, you will submit to and are bound by the .au Dispute Resolution Policy (auDRP) and any variations to this policy.

9.4 In registering, renewing or redelegating a domain on your behalf, WebCentral is acting as a reseller of the registrars, Melbourne IT and NetSol.

9.5 You agree that by maintaining the registration of a domain name after changes or modifications to the applicable policies become effective, you are confirming your continued acceptance of these changes and modifications.

9.6 WebCentral makes no representation and gives no warranty about your chosen domain name being available for registration, renewal, redelegation or use by you.

9.7 In respect of .au domains, you acknowledge that WebCentral is not able to renew your domain name and is not liable for any loss or damage resulting from non-renewal of your domain name if you do not provide any warranty required and confirm to us that the domain name should be renewed.

9.8 WebCentral may refuse to renew your domain name where you have unpaid invoices or if you are in breach of any terms of your use of WebCentral's services.

9.9 You expressly authorise and direct WebCentral, if WebCentral is able to do so, to: (a) be nominated as authorised billing contact for your domain name with the domain name registrar; and (b) subject to receipt of your confirmation in respect of .au domains, renew your domain name registration upon receipt of renewal notification from the domain name registrar and invoice you for the relevant charge in accordance with WebCentral's list price from time to time.

9.10 If you close your account with WebCentral but do not remove WebCentral as the reseller of your domain name with the domain name registrar, you agree that we may contact you after account closure to remind you of domain name renewals and to provide marketing material in respect of our services.

9.11 You indemnify WebCentral against all claims arising out of your registration and use and renewal of registration of your chosen domain name, unless and to the extent that the claim arises out of WebCentral's breach of this contract, or its negligent act or omission.

10. Miscellaneous

10.1 The Customer grants to WebCentral a license to use and reproduce all Customer Data in order to fulfil its obligations under this agreement. In this agreement "Customer Data" means all information, data, text, logos, images, audio, movie clips and/or content in any form that forms part of the Customer's web sites or emails.

10.2 A provision of, or a right created under this agreement, may not be waived except in writing signed by the party granting the waiver, or varied except in writing signed by the parties.

10.3 You may not resell Services or assign your rights and obligations under this agreement without our prior written consent.

10.4 The law in force in Queensland governs this agreement and the transactions contemplated by this agreement.