- “Agreement” means this Terms and Conditions document.
- “We”, “us”, “our” means Agile Networks Pty Ltd ABN 89 600 219 421.
- “You”, “your” means the customer.
- “Service/s” means any services that we have agreed to provide for you, and you have formally accepted our quotation. Services are primarily, but not limited to:
- Website design, construction and maintenance; or
- Web application design, construction and maintenance; or
- Hosting your website on our servers; or
- Domain name registration services; or
- Connection to and from the internet for web and email services at the level specified in the package you selected;
- Virtual server set up and management;
- VOIP phone systems set up and installation;
- General IT consultancy.
- This Agreement outlines the terms and conditions that apply to any Service you have taken up with us.
- The Service you purchased is identified in our quotation and the specifics of the Service are contained therein and / or detailed on our website.
- Our Unacceptable Use Policy (available at www.agilenetworks.com.au) forms part of this Agreement.
- Acceptance of this Agreement
You signify your acceptance of this Agreement when we accept your order for our Services.
- Commencement of Agreement
This Agreement commences on the date we accept your order for our Services.
- Service Availability
- We will use our best endeavours to provide continuing availability of our server fleet and the Service, but we are not liable for Service interruption or down time of the Service.
- 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 thirty (30) minutes we will post details of the scheduled maintenance at least forty-eight (48) hours in advance of the maintenance.
- If we need to perform unscheduled maintenance that requires the Service to be offline for more than thirty (30) minutes, we will post details of the event after the maintenance has been completed.
- Registering a Domain Name
- In respect of domain names, we are a reseller for the registrar TPP Wholesale.
- We do not warrant or guarantee that the domain name applied for will be registered in your name or is capable of being registered by you. Accordingly, you should take no action in respect of your requested domain name(s) until you have been formally notified that your requested domain name has been registered.
- Both the registration of the domain name and its ongoing use are subject to the relevant naming authority’s terms and conditions of use and you are responsible for ensuring that you are aware of those terms and conditions and that you comply with them. You irrevocably waive any claims you may have against us in respect of the decision of a naming authority refusing to register a domain name and, without limitation, agree that the administration charge paid by you to us shall be non-refundable in any event.
- We accept no responsibility in respect of the use of a domain name by you. Any dispute between you and any other individual or organisation regarding a domain name must be resolved between the parties concerned and we will take no part in any such dispute. We reserve the right, on our becoming aware of such a dispute, and at our sole discretion and without giving any reason, to either suspend or cancel the domain name and / or make appropriate representations to the relevant naming authority.
- Renewal of Domain Name Registration
- You acknowledge that we are not obliged to renew your domain name if you do not confirm to us that the domain name should be renewed. In such circumstances, we are not liable for any loss or damage resulting from non-renewal of your domain name.
- We may not renew your domain name where you have unpaid invoices or if you are in breach of any terms of your use of our Services.
- You acknowledge and agree that our primary method of communication for domain renewal purposes is via email. We will not be held responsible for the non-renewal of your domain name if you do not keep us up to date with your email contact details.
- If you close your account with us but do not transfer your domain name to another registrar, you agree that we may contact you after account closure to remind you of domain name renewals.
- Your Warranties, Liabilities and Undertakings
- You agree to indemnify and keep indemnified and hold us harmless from and against any claim brought against us by a third party resulting from the provision of Services by us to you and your use of our Services, and in respect of all losses, costs, actions, proceedings, claims, damages, expenses (including reasonable legal costs and expenses), or liabilities, whatsoever suffered and howsoever incurred by us in consequence of your breach or non-observance of this Agreement.
- You warrant that you will keep secure any passwords used with the Service.
- You warrant that you hold and will continue to hold the copyright in your data, graphics and / or pictures, or that you are licensed and will continue to be licensed to use that data, graphics and / or pictures.
- You warrant that at the time of entering into this Agreement you are not relying on any representations made by us which has not been stated expressly in this Agreement, or on any description or specifications contained in any other documents, including any catalogues or publicity materials which we may have produced.
- You undertake that 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 or us.
- You also agree that you are solely responsible for dealing with persons who access your data and that you will not refer complaints or enquiries in relation to such access to us.
- You indemnify us 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 our breach of this Agreement or our negligent act or omission.
- Our Warranties and Liabilities
- We accept liability for the supply of the Services to extent provided in this Agreement.
- We do not warrant that:
- The Services provided in this Agreement will be uninterrupted or error free;
- The Services will meet your requirements, other than as expressly set out in this Agreement;
- The Services will be free from external intruders (hackers), virus or worm attack, denial of service attack, or other persons having unauthorised access to services or systems of ours.
- 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 realised 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.
- We make or give no express or implied warranties including, without limitation, the warranties of merchantability or fitness for purpose, or arising from a course of dealing, usage or trade practice, with respect to any Services provided under or incidental to this Agreement. No oral or written information or advice given by us, our resellers, agents, representatives or employees will create a warranty or in any way increase the scope of the express warranties hereby given, and you may not rely on any such information or advice.
- Our total aggregate liability to you for any claim in contract, tort, negligence or otherwise arising out of or in connection with the provision of the Services will be limited to the charges paid by you in respect of the Services which are the subject of any such claim and provided that you notify us of any such claim within one (1) year of it arising.
- In no event will we be liable to you for any loss of business, contracts, profits or anticipated savings or for any other indirect or consequential or economic loss whatsoever.
- In the event that this Agreement constitutes a supply of goods or services to a consumer as defined in the Trace Practices Act 1974 (Cth) nothing contained in this Agreement excludes, restricts or modifies any condition, warranty or other obligation in relation to this Agreement where to do so is unlawful. To the full extent permitted by law, where the benefit of any such condition, warranty or other obligation is conferred upon you pursuant to the Act, our sole liability for breach of any such condition, warranty or other obligation, including any consequential loss which you may sustain or incur, shall be limited (except as otherwise specified in this agreement) to:
- The replacement of the goods or the supply of equivalent goods or payment of the cost of replacing the goods or acquiring equivalent goods; or
- The repair of the goods or payment of the cost of having the goods repaired; or
- The supplying of the Services again or the payment of the cost of having the Services supplied again.
- We specifically exclude any warranty as to the accuracy or quality of information received by any person via your server and in no event will we be liable for any loss or damage to any data stored on the server. You are responsible for maintaining insurance cover in respect of any loss or damage to your data stored on the server.
- Suspension and Termination of the Service
- We may suspend or terminate your Service if you:
- breach the terms of this Agreement; or
- become insolvent; or
- are declared bankrupt.
- From time to time we may have to suspend or disconnect the Service without notice or deny you access to the Service during any technical failure, modification or maintenance involved in the Service. We will use all reasonable endeavours to resume the Service as soon as reasonably practicable. In these circumstances you will remain liable for all charges due throughout the period of suspension.
- If your Service has been suspended or terminated due to your breach of this Agreement, reactivation of your account will be completely at our discretion. If we agree to reactivate your Service, we will require payment in full of all outstanding amounts and payment of a reactivation fee.
- If you wish to terminate your Service with us for any reason, you may do so by giving us thirty (30) days notice in writing. No refunds are available for monies paid in advance.
- If we wish to terminate your Service for reasons other than a breach of this Agreement, we may do so by giving you thirty (30) days notice in writing. In this circumstance, we will refund any remaining unused credit on your account.
- If your Service is closed for whatever reason, you must pay all outstanding charges immediately.
- If your Service has been suspended or terminated due to your breach of this Agreement, we are under no obligation to provide you with a copy of your data. If we provide you with a copy of your data in such circumstances, we are entitled to charge a fee for service.
- We may suspend or terminate your Service if you:
- Fees, Charges and Payments
- All charges payable by you to us for the Services will be in accordance with the relevant scale of charges and rates published from time to time by us on our website and will be due and payable within fourteen days of receipt of our invoice (unless otherwise advised). The price of the Services we provide to you will remain fixed for the period covered by the payment and as advised on our invoice. After that time you will be billed at the rates current on our website at the time the Service is renewed.
- If you exceed our credit terms, you will be charged an eleven dollar ($11.00) late payment fee.
- Prices published on our website are inclusive of government taxes and charges unless otherwise noted.
- The provision of Services is contingent upon us having received payment in full from you in respect of the Services we provide. Without prejudice to our other rights and remedies under this Agreement, if any sum payable is not paid on or before the due date, we reserve the right, at our discretion, to suspend the provision of Services to you.
- If you fail to make payment within the terms of this Agreement, you will become liable for the cost of collection. This will include interest on any overdue amount, calculated at the daily rate of 10% per annum, from the due date of payment.
- You consent to us obtaining a report from a credit reporting agency on your credit worthiness if you choose to pay by credit card.
- No refunds will be given for unused portions of payments in advance (including payment of yearly contracts) unless the account has been terminated due to our breach of this Agreement or we exercise our rights under clause 10.5.
- Archiving and Backup of Your Data
We will archive your data on a regular basis for the purpose 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 website. You must maintain a recent copy of your data at your premises at all times. We will not be liable for incomplete, out of date, corrupt or otherwise deficient data recovered from our backups.
- The Use of Spam and Virus Filters
You agree that we can use spam and virus filters and that this 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.
- Changes to Operating Platform
- Unless otherwise agreed, the Service is provide by us from our data centre in Australia. We reserve the right to migrate your website to a new operating system platform if our operating system supplier ceases to provide appropriate support or your particular server fails or becomes unreliable.
- We will advise you of such changes but we will not take any responsibility for website failure if you have failed to keep your contact details up to date or if you have not checked the operation of your website post migration and notified us of any required changes to the website configuration within seven (7) days from the date of our notification.
- Ownership of Server Equipment
Unless otherwise agreed, you have no rights to the hardware and other infrastructure and facilities used by us to deliver the Service.
If any clause of this Agreement is held to be invalid or unenforceable in whole or in part, the invalid or unenforceable wording shall be deemed to be omitted.
You may transfer this Agreement provided that you give us notice in the form we require (setting out the details of the assignee) accompanied by payment of any transfer fee specified by us. No other method of transfer by you is permitted.
- Changes to Agreement
We may change the terms of this Agreement at any time. Details of our current terms and conditions will always be available on our website.
- Governing Law
These terms and conditions are governed by the laws in force in Queensland. Both parties agree to submit to the exclusive jurisdiction of the Courts of that State.
- Notifications and Communications
All notifications under this Agreement will be by email to your nominated internet address. By entering into this Agreement you agree to receive other email communications of a marketing and promotional nature unless you opt out of our mailing list. You will not be able to opt out of critical Service notifications, renewal, billing and account notifications, scheduled downtime notifications or any other communications deemed to be an essential part of our Service to you.