Hosting Terms and Conditions
Hosting Terms & Conditions
1. Application and Interpretation
1.1 These Hosting Terms & Conditions (“Agreement’) are between Fluid Flow Studios Pty Ltd (ABN 96 145 924 116) (“Fluid Flow Studios”) and you for the provision of Hosting Services described below.
1.2 You acknowledge that you have read, understood and agreed to these Hosting Terms & Conditions, and agree to be bound by them. Your continued receipt or use of the Hosting Services indicates your agreement to these Hosting Terms & Conditions, together with the Master Services Terms & Conditions located at http://fluidflow.com.au/terms-and-conditions. If there is any inconsistency between the provisions of these Hosting Terms & Conditions and the Master Services Terms & Conditions, the latter will prevail to the extent of any inconsistency.
1.3 The following definitions shall apply:
Materials: content, images and databases provided to Fluid Flow Studios by you from time to time that are incorporated, or to be incorporated, in the Site (where applicable)
Site: the website to be hosted by Fluid Flow Studios, the url of which is set out in your Proposal document, pursuant to this Agreement.
Site Software: software for the Site commissioned by you independently of Fluid Flow Studios, (where applicable).
2.1 Fluid Flow Studios shall provide hosting and related services, and perform its obligations, in accordance with your Proposal document.
2.2 Provided Fluid Flow Studios receives a copy of the Site Software and Materials (where applicable) on or before the date set out in your Proposal document, Fluid Flow Studios shall provide the Services in accordance with this agreement.
3. Customer responsibilities
3.1 You shall be responsible for the accuracy and completeness of the Materials.
3.2 Fluid Flow Studios shall not be liable for any delays resulting from your failure to fulfil any of your obligations. Fluid Flow Studios reserves the right to invoice you for any additional expenses reasonably incurred by Fluid Flow Studios as a result of such delays.
4. Charges and payment
4.1 Fluid Flow Studios shall issue invoices in respect of the Charges and frequency set out in our Proposal documents. The Charges, payable in advance for the Hosting Service, are set out in your Proposal document.
4.2 The Charges shall be payable in Australian dollars within seven (7) days of the date of the invoice or on such other payment terms set out therein and must be made by one of the methods outlined in the invoices provided by Fluid Flow Studios. All deposits or advanced payments are non-refundable.
4.3 You remain committed to pay us for all Charges for Hosting Services for their full invoicing periods, irrespective of whether: (a) this Agreement has been suspended or terminated during such invoicing period, or (b) such Hosting Services have been changed or cancelled during such invoicing period.
4.4 Unless otherwise stated, all Charges and other amounts payable are exclusive of GST. If GST becomes payable on any supply made or provided, on which GST is not payable at the date of this Agreement, you will pay Fluid Flow Studios an additional amount equal to value of consideration for the supply multiplied by the prevailing GST rate.
4.5 Fluid Flow Studios may set off any amounts due and payable under this Agreement against amounts that may be payable by Fluid Flow Studios to you.
4.6 Fluid Flow Studios reserves right to charge interest on overdue amounts at annual rate of 2% over Reserve Bank of Australia base rate ruling on due date.
4.7 Fluid Flow Studios may by notice to you suspend work, and your use of and access to Hosting Services (including public access to your web content and delivery of email), until outstanding invoice(s) and interest are paid in full. Charges shall continue to accrue during such period of suspension. Time for payment shall be of the essence.
4.8 Invoices may only be disputed by you by providing Fluid Flow Studios with written details of the dispute within fourteen (14) days of the date of the invoice, failing which the invoice shall be deemed to have been accepted by you. You shall remain liable to make payment of any undisputed portions of an invoice.
4.9 Additional charges shall be payable for out-of-scope work, that is work not otherwise expressly set out in your Proposal document (including, without limitation, maintenance and Site content updates).
5. Variations and Cancellations
5.1 You may change the Hosting Services by notifying Fluid Flow Studios in writing. Your new Hosting Service will take effect from the date Fluid Flow Studios commences provision of the new Hosting Services in accordance with the terms agreed in writing by Fluid Flow Studios. Your next invoice will reflect: (a) Charges applicable to your new Hosting Service from the date of the notice; (b) Charges for any remaining invoice period for your previous Hosting Service(s) (whether or not such Hosting Service(s) are utilised during such remaining invoice period); (c) Charges for amounts then due but unbilled for your previous Hosting Service(s); and (d) Charges for costs associated with any Hosting Service change or cancellation, where such costs are based on the standard rates of Fluid Flow Studios at the time. Any amounts or deposits already paid by you for a changed, cancelled or discontinued Hosting Service shall not be refunded in any circumstances.
5.2 Fluid Flow Studios may change these Hosting Terms & Conditions by giving you written notice (whether by email, fax or post to your designated email address, fax number or postal address, notified by you to Fluid Flow Studios as part of your registration process). Where a change relates to an increase in Charges, Fluid Flow Studios shall provide you with thirty (30) days’ prior written notice.
6.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform this Agreement.
6.2 Fluid Flow Studios shall perform the Hosting Services with reasonable care and skill.
6.3 This Agreement sets out the full extent of Fluid Flow Studios’s obligations and liabilities in respect of the supply of Hosting Services. All conditions, warranties or other terms concerning the Hosting Services which might otherwise be implied into this Agreement (whether by statute or otherwise) are hereby expressly excluded.
7.1 Hosting Services shall be provided without any guarantees, conditions or warranties as to its accuracy, speed, uptime, completeness, reliability, suitability or currency of Hosting Services and they are provided on an “as is where is’ basis. Fluid Flow Studios does not warrant that the Hosting Services or the Site will be uninterrupted or error free, will meet your requirements (such as speed, uptime, performance or reliability), nor will they be free from external intruders (hackers), unauthorised virus or worm dissemination. Any timeframes are provided as a guide or estimate only.
7.2 To extent permitted by law, Fluid Flow Studios, its directors and employees hereby expressly exclude: (a) all conditions, warranties and other terms which might otherwise be implied by statute, common law or equity; and (b) any liability for any direct, indirect or consequential loss or damage incurred by you or any end user in connection with Hosting Services, or use of Hosting Services, including, without limitation any liability for loss of income or revenue; loss or interruption of business; loss of uptime; loss of profits; loss of software; loss of anticipated savings; loss of data; loss of goodwill; wasted management; and for any other loss or damage of any kind, however arising and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable.
7.3 This does not affect liability of Fluid Flow Studios which cannot be excluded or limited at law. Without limiting foregoing, parties acknowledge that laws in certain jurisdictions may imply warranties and conditions which cannot be excluded, restricted or modified except to a limited extent. If any such laws apply, then to extent permitted by law of relevant jurisdiction, Fluid Flow Studios’s liability is limited to any one or more of the following in its sole discretion: (a) in case of any goods, replacement or repair of goods, or supply of equivalent goods, or payment of cost of repairing or replacing goods or supplying equivalent goods; and (b) in case of any services, supply of services again or payment of cost of having services supplied again.
7.4 Without limiting foregoing, you agree that in no event shall Fluid Flow Studios’s maximum aggregate liability exceed AUD$5,000.00.
7.5 You shall indemnify Fluid Flow Studios, its directors and representatives from and against all actions, claims, damages, liabilities or costs (including legal costs) arising from, or directly or indirectly related to provision of Materials or Site Software, use of Hosting Services by you or anyone else, or otherwise arising as result of this Agreement.
8. Intellectual property rights
8.1 Fluid Flow Studios retains copyright and all other intellectual property rights in: (a) all programming modules, code, computer programmes, hosting control panels (such as CPanel or Plesk), material, tools, drawings, documents, presentations, specifications, data, designs, know-how and anything else generated, whether as improvements or otherwise, in course of providing (directly or indirectly) the Hosting Services; and (b) all intellectual property rights existing prior to the provision of such Hosting Services (“Fluid Flow Studios IP’). Unless agreed otherwise in writing, Fluid Flow Studios shall be entitled to claim authorship for any work which it is responsible.
8.2 Fluid Flow Studios licenses to you the right to access the Fluid Flow Studios IP on a non-exclusive basis to such extent as is necessary to enable you to make reasonable use of the relevant Hosting Services for the duration of the Agreement.
8.3 You acknowledge that Hosting Services may include individual third party software or third party intellectual property rights (including, with limitation, content management system and open source software) (“Third Party IP’) and licence in clause 8.2 and your rights to use Hosting Services is without prejudice to the Third Party IP. Any rights you may have to access Third Party IP shall be limited to extent of Fluid Flow Studios’s right to access same and its ability to pass on such rights to you.
8.4 In relation to the licence in clause 8.2 and the right to access in clause 8.3: (a) they will both automatically terminate if this Agreement ends; and (b) they do not include the right to replicate, commercialise, adapt, modify, reverse engineer, decompile or disassemble in whole or in part.
8.5 Subject to clauses 8.2, 8.3 and 8.4, you shall retain copyright in the Materials and Site Software and you grant Fluid Flow Studios a licence to use same to extent required to perform its obligations herein.
8.5 In relation to any data, content, information or material provided by you to us (including Materials and Site Software), you warrant that same will not infringe the rights of any third party nor contravene any law or industry code.
8.6 Save as required by law, you shall not disclose any confidential information relating to Fluid Flow Studios or its affiliates obtained during or arising out of this Agreement, to anyone (except your employees on an as need basis). You shall procure that anyone else receiving benefit of Hosting Services, whether employees or otherwise, comply with terms of this clause as if they were a party to Agreement.
9. Site content
9.1 You shall ensure that Materials and the Site do not infringe any applicable laws, regulations or third party rights (such as material which is obscene, indecent, pornographic, offensive, defamatory, threatening, liable to incite racial hatred or in breach of any third party intellectual property rights) (“Inappropriate Content’).
9.2 You acknowledges that Fluid Flow Studios has no control over any content placed on the Site by you or anyone else and does not purport to monitor the content of the Site. Without limiting the foregoing, Fluid Flow Studios reserves the right to remove content from the Site where it reasonably suspects such content is Inappropriate Content.
9.3 You shall indemnify Fluid Flow Studios against all damages, losses and expenses arising as a result of any action or claim that the Materials or any other material posted to, or linked to, the Site constitutes Inappropriate Content.
10. Term and termination
10.1 This Agreement commences on date Fluid Flow Studios confirms to you that the Hosting Service has been activated or such other date as agreed by us in writing (“Commencement Date’) and continues for the period set out in your Proposal document and continues for successive periods of the same duration, unless a party provides the other with 30 days prior written notice of termination.
10.2 Fluid Flow Studios may terminate or suspend this Agreement (without any liability): (a) at any time by giving you at least 30 days’ notice; (b) immediately on giving notice to you, if you breach, including failure to pay the Charges; or (c) you become insolvent within the meaning of Corporations Act, are otherwise unable to pay your debts when due or you cease to carry on business.
Should Fluid Flow Studios elect to reinstate such suspended Service you shall be responsible for Fluid Flow Studios’s standard re-activation charge.
10.3 On termination or expiration of this Agreement:
(a) Fluid Flow Studios shall invoice you for all amounts then due but unbilled and it may delete all data, materials, content, configuration and settings in connection with your Services, whether on a Fluid Flow Studios storage media or otherwise. It is your obligation to ensure you have retained back-up copies.
(b) Any amounts or deposits already paid by you shall not be refunded in any circumstances.
(c) All licences granted by Fluid Flow Studios under this Agreement shall terminate immediately.
10.4 Following expiry or termination of this Agreement otherwise than on termination by Fluid Flow Studios pursuant to clause 10.2, Fluid Flow Studios shall:
(a) return to you any Materials, and shall provide to you an electronic copy of the Site (including all content on the Site).
(b) provide such assistance as is reasonably requested by you to transfer hosting of the Site to you or another service provider, subject to payment of Fluid Flow Studios’s expenses reasonably incurred.
11. Force majeure
11.1 The definition in this clause applies in this agreement. Force Majeure Event: any event arising which is beyond reasonable control of the affected party (including any industrial dispute affecting any third party, governmental regulations, fire, flood, disaster, civil riot, war, internet interruption).
11.2 A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this agreement shall forthwith notify the other and shall inform the other of the period for which it is estimated that such failure or delay will continue. The affected party shall take reasonable steps to mitigate the effect of the Force Majeure Event.
12.1 All notices given by Fluid Flow Studios may be given by email to email address notified by you to Fluid Flow Studios as part of your registration process. It is your obligation to keep that email address current and correct. You agree and acknowledge that record of Fluid Flow Studios having sent a notice to you by email is, of itself, conclusive proof of receipt.
12.2 Notices given by you must be delivered to Fluid Flow Studios in writing and addressed to: P.O. Box 7191, Mt Annan NSW 2567, Australia (with copy by email to firstname.lastname@example.org).
13. Entire agreement
This Agreement, and the documents referred to herein, contains the entire understanding between the parties as to its subject matter and supersedes and excludes all prior and other discussions, specifications, representations and arrangements relating to Hosting Services including, but not limited to, those relating to performance or results that ought be expected from using Hosting Services. Any representations (oral or written) given by, or on behalf of, Fluid Flow Studios shall not be relied upon. Notwithstanding, you shall also be bound by any policies or guidelines of Fluid Flow Studios, currently situated at http://fluidflow.com.au/terms-and-conditions, as updated by Fluid Flow Studios from time to time.
14. Governing law and jurisdiction
This Agreement and any dispute or claim arising out of or in connection with same shall be governed by and construed in accordance with the laws of New South Wales, Australia and parties submit to the exclusive jurisdiction of that State.
Last updated 21 July 2014