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Terms of Service (ToS)

This document is an Agreement that governs your purchase and use of all Web Hosting Services (the "Service") provided by On The Web Solutions ("OTWS").

By registering for and using the Service, you (the "Customer") acknowledge that you have read this agreement and agree to be bound by its terms and conditions as well as all policies and guidelines incorporated by reference.

OTWS may modify any of the terms and conditions contained in this Agreement and any policy or guideline incorporated by reference, at any time in its sole discretion and may also determine whether and when the modifications apply to existing or future customers. Any modifications are effective upon posting of the revisions on the OTWS web site (the "Site").

OTWS may post modifications to referenced policies and guidelines on the Site. In the case of major changes, OTWS will attempt to contact the Customer using their primary email address. Your continued use of the Service following OTWS's posting of any modifications constitutes your acceptance of the modifications.

If you do not agree to the terms of any modification, do not continue to use the Service and immediately notify OTWS of your termination of this agreement in the manner described in section 1.2 below.

1. Term and Payment for Service

1.1 Term

This Agreement will be for an "Initial Term" of either:

  1. 30 days from the order date when paying monthly (credit card),
  2. 12 months from the order date when paying yearly (direct deposit), or
  3. as otherwise agreed in writing by OTWS and the Customer.

This Agreement will be automatically renewed (the "Renewal Term") at the end of the Initial Term for the same period as the Initial Term, unless you provide OTWS with notice of termination either at least 7 days before the end of the Initial Term or the Renewal Term, whichever is then applicable.

You must provide OTWS with your notice of termination in writing. Email communication is considered to be "in writing" for all practical purposes. OTWS may reply requesting more information for customer identification information purposes before the account will be terminated. Any notice of termination will be effective upon OTWS's receipt of notice.

1.2. Termination Policy

If you terminate the Service before the end of the Initial Term or the Renewal Term, whichever is then applicable, OTWS will not refund to you any fees paid in advance of termination.

OTWS may terminate this Agreement at any time and for any reason by providing to you 30 days' prior written notice of termination. If OTWS terminates this Agreement, OTWS will refund to you the pro-rata portion of pre-paid fees attributable to Service not yet rendered as of the termination date, unless otherwise expressly provided in this Agreement.

1.3. Liability and Obligations on Termination

If the Agreement expires or is terminated for any reason, OTWS is not liable to you because of the expiration or 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 your business, or for any other reason whatsoever flowing from the termination or expiration.

If you terminate this Agreement, OTWS will not relieve you of any obligations to pay fees and costs accrued before the termination date or any other amounts you owe to OTWS under this Agreement.

1.4. Payment

You will pay all charges for Service in advance according to the then current price for the Service.

If you elect to pay by the month, you must pay for the Service by credit card.

If you elect to pay by the year, you may pay for the Service by either direct deposit or credit card.

If you choose to pay by credit card, you authorize OTWS to charge your credit or debit card to pay for any charges that may apply to your account. OTWS may utilise a 3rd party credit card processor to credit or debit your credit card on behalf of OTWS.

You must notify OTWS or the elected credit card processor of any changes to your card account (including, applicable account number or cancellation or expiration of the account), your billing address, or any information that may prohibit OTWS from charging your account.

OTWS may also send periodic invoices to you for any applicable Supplemental Charges associated with your use of the Service. You will pay to OTWS the amount indicated in each invoice by the due date reflected on the invoice.

Your failure to fully pay any fees and taxes by the applicable due date is a material breach of this Agreement. In such circumstances, OTWS may suspend your account and terminate this Agreement. If OTWS terminates for your material breach, you must still pay past due fees.

You are responsible for any costs OTWS incurs in enforcing collection, including reasonable attorneys' fees, court costs and collection agency fees. If you reinstate Service, you must pay any fees associated with reinstating Service.

1.5. 14 Day Guarantee

If you are not fully satisfied with the Hosting Service, you may terminate this Agreement at any time during the first 14 days from your initial order date and receive a full refund of all payments you made to OTWS for the Hosting Services. To receive your refund, you must terminate this Agreement in the manner described in Section 1.1 and cease using the Service, and OTWS must receive your termination notice within the 14-day period. Your notice must describe why you are not satisfied with the Service.

2. Use of Service

Use of the Service is governed by the terms and conditions outlined in the Acceptable Use Policies (AUP) found at http://www.ontheweb.com.au/aup.php

3. Intellectual Property Rights

3.1. Your License Grant to OTWS

You grant to OTWS a non-exclusive, worldwide, and royalty-free license for the Initial Term and the Renewal Term, if applicable, to edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, reproduce, create derivative works from, distribute, perform, display, and otherwise use your content as necessary for the purposes of rendering and operating the Service to you under this Agreement.

You expressly:

  1. grant to OTWS a license to cache materials distributed or made available for distribution via the Service, including content supplied by third parties, and
  2. agree that this caching is not an infringement of any of your intellectual property rights or any third party's intellectual property rights.

3.2. Your Warranties And Representations to OTWS

You warrant, represent, and covenant to OTWS that:

  1. you are at least 18 years of age;
  2. you possess the legal right and ability to enter into this Agreement;
  3. you will use the Service only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines;
  4. you will be financially responsible for the use of your account;
  5. you have acquired or will acquire all authorization(s) necessary for hypertext links to third-party Websites or other content;
  6. you have verified or will verify the accuracy of materials distributed or made available for distribution via the Service, including your content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and
  7. your content does not and will not infringe or violate the rights of any third party (including any intellectual property rights) or violate any applicable law, regulation or ordinance.

3.3. OTWS Materials And Intellectual Property

All materials, including any computer software (in object code and source code form), data or information that OTWS or its suppliers or agents develop or provide under this Agreement, and any know-how, methodologies, equipment, or processes OTWS uses to provide the Service to you, including all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto will remain OTWS's or its suppliers' sole and exclusive property.

OTWS may, in its sole discretion, change or remove any and all IP numbers and addresses. Neither the Customer, nor OTWS own any IP addresses used in providing the Service.

4. Enforcement

4.1. Investigation of Violations

OTWS may investigate any reported violation of this Agreement, or its policies or any complaints and take any action that it deems appropriate and reasonable under the circumstance to protect its systems, facilities, customers or third parties. OTWS will not access or review the contents of any email or similar stored electronic communications except as required or permitted by applicable law or legal process.

4.2. Actions

OTWS may restrict or remove from its servers any content that violates this Agreement or related policies or guidelines, or is otherwise objectionable or potentially infringing on any third party's rights or that potentially violates any laws. If OTWS becomes aware that you have possibly violated this Agreement, any related policies or guidelines, third party rights or laws, OTWS may immediately take corrective action, including:

  1. issuing warnings,
  2. suspending or terminating the Service,
  3. restricting or prohibiting any and all uses of content hosted on OTWS's systems, and
  4. disabling or removing any hypertext links to third-party Websites, any of your content distributed or made available for distribution via the Service, or other content not supplied by OTWS that, in OTWS's sole discretion, may violate or infringe any law or third-party rights or that otherwise exposes or potentially exposes OTWS to civil or criminal liability or public ridicule.

It is OTWS's policy to terminate repeat infringers. These rights of action, however, do not obligate OTWS to monitor or exert editorial control over the information made available for distribution via the Service. If OTWS takes corrective action because of a possible violation, OTWS will not refund to you any fees you paid in advance of the corrective action.

4.3. Disclosure Rights

To comply with applicable laws and lawful governmental requests, to protect OTWS's systems and customers, or to ensure the integrity and operation of OTWS's business and systems, OTWS may access and disclose any information it considers necessary or appropriate, including, user profile information (i.e., name, email address, etc.), IP addressing and traffic information, usage history, and content residing on OTWS's servers and systems.

OTWS may report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. To the extent any inconsistency exists between any terms of OTWS's Online Privacy Statement and OTWS's right to disclose under this section, OTWS's right to disclose under this section will control.

5. Disclaimed Warranties

OTWS exercises no control over, and accepts no responsibility for, the content of the information passing through OTWS's host computers, network hubs and points of presence, or the Internet.

All services performed under this agreement are performed "as is" and without warranty against failure of performance including, any failure because of computer hardware or communication systems. Except as expressly provided in this agreement, OTWS does not make and disclaims, and you waive all reliance on, any representations or warranties, arising by law or otherwise, regarding the Service, including implied warranties of merchantability, fitness for a particular purpose, non-infringement, or arising from course of dealing, course of performance or usage in trade.

6. Limitation and Exclusion of Liability

6.1. Limitations

In no event will OTWS or its suppliers have any liability for unauthorized access to, or alteration, theft or destruction of information distributed or made available for distribution via the Service through accident, fraudulent means or devices. Neither OTWS nor its suppliers will have liability with respect to OTWS's obligations under this agreement, or otherwise for consequential, exemplary, special, incidental, or punitive damages even if OTWS has been advised of the possibility of these damages.

The liability of OTWS and its suppliers to you for any reason and upon any cause of action is limited to the amount you actually paid to OTWS under this agreement during the 3 months immediately preceding the date on which the claim accrued. This limitation applies to all causes of action in the aggregate, including breach of contract, breach of warranty, negligence, strict liability, misrepresentations, and other torts.

The fees for the Service set by OTWS under this agreement have been and will continue to be based upon this allocation of risk. Accordingly, you release OTWS and its suppliers from any and all obligations, liabilities, and claims in excess of the limitation stated in this section 6.1.

6.2. Interruption of Service

OTWS and its suppliers are not liable for any temporary delay, outages or interruptions of the Service. Further, OTWS is not liable for any delay or failure to perform its obligations under this Agreement, where the delay or failure results from any act of God or other cause beyond its reasonable control (including, any mechanical, electronic, communications or third-party supplier failure).

7. Indemnification

You release and hold harmless, and agree to indemnify, OTWS and its affiliates and suppliers (and their respective employees, directors and representatives) against any and all claims, actions, proceedings, suits, liabilities, damages, settlements, penalties, fines, costs or expenses (including, reasonable attorneys' fees and other litigation expenses) incurred by OTWS or its suppliers, arising out of or relating to:

  1. your violation or breach of any term, condition, representation or warranty of this Agreement, or any applicable policy or guideline;
  2. your improper or illegal use of the Service; or
  3. your violation, alleged violation, or misappropriation of any intellectual property right (including trademark, copyright, patent, trade secrets) or non-proprietary right of a third party (including defamation, libel, violation of privacy or publicity).

8. Miscellaneous provisions

8.1. Entire Agreement

This Agreement, in conjunction with all policies and guidelines incorporated by reference, constitutes the entire agreement between you and OTWS with respect to the subject matter of the Agreement, and there are no representations, understandings or agreements that are not fully expressed in this Agreement and the related policies and guidelines.

8.2. No Fiduciary Relationship

OTWS is not the agent, fiduciary, trustee or other representative of you. Except for the rights of OTWS's suppliers under sections 6 and 7, nothing expressed or mentioned in or implied from this Agreement is intended or will be construed to give to any person (other than the parties to this Agreement) any legal or equitable right, remedy or claim under or in respect to this Agreement. This Agreement and all of its representations, warranties, covenants, conditions and provisions are intended to be and are for the sole and exclusive benefit of the parties to this Agreement.

8.3. Amendments

Except as expressly provided in this Agreement, no amendment, change, waiver, or discharge of this Agreement is valid unless in writing and signed by the parties.

8.4. Identification

OTWS may, free of any obligation to pay compensation, use your name and identify you as an OTWS client, in advertising, publicity, or similar materials distributed or displayed to prospective clients.

8.5. Choice of Law and Forum

This agreement is governed by the laws of the Australia and the state of New South Wales (NSW), without reference to rules governing choice of laws. Any action relating to this agreement must be brought in the courts located in NSW, and you irrevocably consent to the jurisdiction of these courts.

8.6. Compliance With Laws

You will comply with all applicable laws and regulations and will indemnify and save OTWS harmless from your failure to so comply. OTWS will not have to perform any obligations set forth in this Agreement if the performance would violate any present or future law, regulation or policy of any applicable government.

8.7. Non-Assignment

You may not assign this Agreement or any right or obligation under this Agreement, by operation of law or otherwise, without OTWS's prior written consent. OTWS may assign its rights and obligations under this Agreement, and may utilize affiliates and agents in performing its duties and exercising its rights, without your consent. This Agreement is binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.

8.8. No Waiver

OTWS's failure to enforce the strict performance of any provision of this Agreement does not constitute a waiver of OTWS's right to subsequently enforce the provision or any other provisions of this Agreement.

8.9. Severability

If any term or provision of this Agreement is deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of this Agreement, if applicable, will remain in full force and effect and, if the subject term or provision is deemed to be invalid, void or unenforceable only with respect to a particular application, the term or provision will remain in full force and effect with respect to all other applications.

8.10. Severability

The section headings used in this Agreement are for reference and convenience only and will not enter into the interpretation of the Agreement.

8.11. Survival

All provisions of this Agreement relating to your warranties, intellectual property rights, limitation and exclusion of liability, your indemnification obligations and payment obligations will survive the termination or expiration of the Agreement.

Last Updated: 25 January 2005

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