Nathan Franklin (“Nathan”, “me”, “we”, “I”)
WEB HOSTING TERMS AND CONDITIONS FOR THE SUPPLY OF WEB HOSTING SERVICES (“HOSTING TERMS OF SERVICE”, “TERMS OF SERVICE”, “TERMS”)
1. APPLICATION OF THESE HOSTING TERMS OF SERVICE
1.1 A person or company that accepts an order from Nathan for the provision of internet services (“the Services”) enters into a binding legal agreement with Nathan Franklin (“User Agreement”) which consists of:
- the order;
- these Hosting terms of Service ; and
- the Service Level Agreement which can be viewed at https://nathanfranklin.com.au/sla.
- By, accepting the order, the Customer agrees to be bound by the User Agreement.
2.1 In the User Agreement, unless the context requires otherwise:
- The singular includes the plural and vice versa.
- A reference to any gender includes all other genders.
- A reference to a statute means that statute as in force from time to time, and to any statute passed in substitution for that statute.
- The word “includes” means “includes but is not limited to”.
- Where one part of speech of a word is defined, other parts of speech of that word have corresponding meanings.
- A reference to A$, $A, dollar or $ is to Australian currency.
- If a day on or by which an obligation must be performed or an event must occur is not a business day in the place where it is to be performed, the obligation must be performed or the event must occur on or by the next business day.
- Headings are for ease of use and reference only, and do not affect interpretation.
3. PROVISION OF THE SERVICES
3.1 Nathan’s Services are provided only to Customers 18 years and above.
3.2 Nathan will commence supplying the Services to the Customer within seven days of the date of first payment for the Services unless otherwise agreed with the Customer.
3.4 Nathan will continue to provide the Services unless suspended in accordance with paragraph 8 or until the User Agreement is terminated in accordance with paragraph 10.
3.5 Nathan will provide the Customer with all identification and log-in information necessary for the Customer to access and use the Services if required by the Customer.
4.1 Charges for the Services (“Charges”) will be calculated according to the billing option and pricing structure for the Services selected by the Customer.
4.2 Charges for Services not prepaid by the Customer will be invoiced monthly.
4.3 Charges are exclusive of taxes, duties and government charges, other than income tax (“Taxes”) imposed or levied in Australia or overseas in relation to the supply of the Services. GST and other Taxes imposed on Nathan shall be added to the Charges, and shall be paid in accordance with paragraph 5.
4.4 The Customer is liable for all Charges for Services accessed through the Customer’s identification or log-in information whether authorised by the Customer or not, other than unauthorised access resulting from the negligence or wrongful conduct of Nathan or its employees or agents.
4.5 Charges may be modified in accordance with paragraph 12.
5.1 Nathan provides a pre-paid service. Therefore the Customer must pay any Charges by the due date specified to the Customer (“Customer Account”) to receive Nathan’s Services.
5.2 Nathan is not required to refund any prepaid charges and will only do so at my own discretion pursuant to paragraphs 8.1(d) and 10
5.3 All overdue Customer Accounts will incur interest at the rate set out in the Penalty Interest Rate Act (Vic.).
5.4 Nathan may refer Customer Accounts (which it has notified to the Customer are more than 30 days in arrears) to a debt collection agency, without further notice to the Customer.
5.5 The Customer must pay Nathan on demand any expenses incurred by Nathan as a result of the Customer’s failure to pay the Charges by the due date, including debt collection fees and Nathan’s legal costs on an indemnity basis, regardless of whether Nathan has commenced legal proceedings to recover the amount due.
5.6 If the Customer disputes the Charges payable on the Customer’s Account (“Dispute”), and has notified Nathan of the Dispute and the reasons for it, the Customer may withhold the disputed amount of the Charges until the Dispute is resolved, but must not withhold any other part of the Charges.
5.7 The Customer must pay Nathan the disputed amount of the Charges within 60 days of the due date for payment unless the Dispute has been resolved or referred by a party to a court, tribunal or other body with authority to resolve it.
6. USE OF THE SERVICES
6.1 The Customer is responsible at its own expense for the provision of all equipment, including computer hardware and telecommunication connections, needed to use and access the Services.
6.2 The Customer must comply with:
- all laws of the State of Victoria in the Commonwealth of Australia, all federal laws of the Commonwealth of Australia and all reasonable directions from Nathan in relation to the use of the Services; and
- any other reasonable policies Nathan may notify to the Customer from time to time in connection with the provision or use of, or access to the Services.
6.3 If the Services include hosting services which incorporate material created by third parties, the Customer must obtain, at its own expense, all necessary authorisations for Nathan to use or reproduce the material to the extent necessary to provide the Services.
6.4 The Customer must ensure any person including the Customer who accesses the Services does not, use or attempt to use, the Services:
- to infringe the intellectual property rights of any person, including use, sale or transmission of software or other material which infringes copyright;
- to publish, distribute or issue any information or material which is obscene, defamatory, threatening or abusive, or which vilifies any group of persons;
- for any purpose or activity which is illegal, or to promote any such activity;
- to sell or offer to sell pornography or sex-related merchandise;
- to provide links to another website which contains any content referred to in paragraph (b) or is used for the purposes set out in paragraphs (c) and (d);
- to interfere with or disrupt Nathan or he’s business, other Internet users or other service providers, or their computers, software or hardware, including by the propagation of computer worms and viruses; or
- to access without authorisation any other computer accessible via the Services.
6.5 The Customer shall take all reasonable steps to ensure that the Customer’s hardware, software or network configuration (including IP addresses) are not used to cause any security breach or attack on’s or other Customers’ hardware, software or network configurations.
6.6 The Customer must use passwords of a least eight characters, which include at least one of each of a number, an uppercase letter and a lowercase letter, for the purpose of the Services.
6.7 The Customer must ensure that the information it provides to Nathan is complete, accurate and up to date throughout the period that Nathan provides Services to the Customer.
7.1 Nathan will only perform backups of Customer Content if the Services are purchased as a part of the WordPress care package provided by Nathan, or there is an agreement between Nathan and the Customer in writing for Nathan to perform backups of Customer Content.
7.2 If Nathan is not required to perform backups of Customer content under paragraph 7.1, the Customer agrees to perform any backups necessary to protect the Customer from incurring financial loss as a result of data loss.
7.3 If, in the event that a backup is available where Customer has not purchased the WordPress care package, a restoration fee will apply that will be set forth by Nathan at the time of service. This fee will be subject to actual work involved in restoring Service from the backup archive. Where customer’s have not purchased a WordPress care package, Nathan is not obligated to make and retain backups.
7.4 The timeframe to restoration s Service from a backup will be reasonable, however, factors including internet speed, current server load, technician availability will all affect actual timeframe to restore Service.
8. SUSPENSION OF SERVICES AND REMOVAL OF CUSTOMER CONTENT
8.1 Nathan may from time to time without notice to the Customer suspend the Services or disconnect or deny the Customer access to the Services if:
- the Customer breaches the User Agreement;
- the Customer provides Nathan with false, incomplete or out of date information; or
- the Customer’s Account is more than 14 days in arrears.
- it is necessary to do so due to prevent any technical failure of, or for the upgrading or preventative or remedial maintenance of Nathan’s computer systems and software;
- in Nathan’s reasonable opinion, it is required by law to do so; or
- in Nathan’s reasonable opinion, the Customer’s use of the Services adversely affects Nathan’s Server performance or the integrity of Nathan’s digital network.
- in Nathan’s reasonable opinion, the relationship with the Customer is not economically viable.
8.2 Services suspended under paragraph 8.1 will not be reinstated until the breach is remedied if capable of being remedied, or the account and interest is paid in full, and a fee of $75 for the administrative costs of reinstatement is paid.
8.3 The 14 day grace period outlined in 8.1c, is a privilege provided to our customers. This cannot and will not be extended under any circumstances. Nathan reserves the right to increase the reinstatement fee in the event that there are multiple instances of non-payment by the same Customer.
8.4 Nathan shall compensate the Customer for suspension of service pursuant to paragraph 8.1(d) only, in accordance with the Service Level Agreement.
8.5 Nathan may remove Customer Content or terminate a Service where in Nathan’s reasonable opinion, the Customer is using the Service in breach of the conditions outlined in paragraph 6.4.
9. WARRANTIES AND LIMITATION OF LIABILITY
9.1 Nathan does not give any express warranties in relation to the Services, including warranties that:
- Customers will have continuous access to, or usage of the Services; or
- data stored on Nathan’s Servers will not be lost or corrupted;
- it will be possible to restore Customer Content from Nathan’s back up media regardless of support agreement purchased; or
- it will be able to prevent unauthorised persons obtaining access to Customer Content.
9.2 Any condition or warranty which would otherwise be implied into this User Agreement is excluded, unless it would be unlawful to do so.
9.3 Nathan’s liability to the Customer in relation to the Services on any legal basis is limited, to the extent it is lawful to do so, to one or more of the following:
- the supplying of the Services again; or
- the payment of the reasonable costs of having the Services supplied again.
9.4 The Customer acknowledges that Nathan does not and cannot control, supervise or edit any information or material accessed through the Services and that Nathan is not responsible for any content or information accessed via the Services.
9.5 Customer agrees to defend, indemnify and hold harmless Nathan from any and all expenses, losses, liabilities, damages or third party claims resulting from Client’s breach or alleged breach of any Client obligations set forth hereunder.
9.6 Customer agrees that it shall defend, indemnify, save and hold harmless Nathan from any and all demands, liabilities, losses, costs and claims, including reasonable legal fees, asserted against Nathan, its agents, its customers, servants officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by the Customer, its agents, employees or assigns.
9.7 Customer agrees to defend, indemnify and hold harmless Nathan against Liabilities arising out of:
- any injury to person or property caused by any products sold or otherwise distributed in connection with Nathan’s Web Hosting Server.
- any material supplied by Customer infringing or allegedly infringing on the proprietary rights of a third party;
- copyright infringement;
- any defective product which Customer sold on Nathan’s Servers.
10.1 Either party may terminate the User Agreement by giving notice to the other if the other commits a material breach of any provision of the User Agreement which:
- can be rectified, and fails to rectify the breach within thirty days of notice being given by the party alleging the breach, describing the breach and the action which must be taken to rectify it; or
- cannot be rectified.
10.2 Nathan may terminate a User Agreement by giving notice to the Customer if the Customer knowingly provides false or misleading information to Nathan, abuses or threatens staff or the relationship is not economically viable.
10.3 Nathan at its own discretion may choose not to renew a customer’s subscription. In such instances, twenty one day’s notice will be given.
10.4 The Customer may terminate a User Agreement by giving Nathan notice at least two business days before the end of any period for which the Customer has paid for provision of Services (“Paid-up Period”) with effect from the end of that Paid-up Period.
10.5 If the User Agreement is terminated by Nathan under paragraph 10.1 or 10.2, all outstanding Charges will become payable upon the giving of notice of termination.
10.6 Nathan is not required to refund any prepaid Charges, unless the User Agreement is terminated by the Customer under paragraph 10.1.
11.1 Nathan may sub-contract the performance of its obligations under the User Agreement without obtaining the Customer’s consent.
12. VARIATION OF USER AGREEMENT
12.1 Nathan may modify the User Agreement (including by varying the Services or the Prices) at any stage without prior notice to the Customer. Modifications shall not take effect until the later of the day following the last day of the Customer’s current Pre-paid Period, or thirty days after the Notice of Modification is given. Any use of the Services after the date on which modification takes effect will constitute acceptance of the modification.
12.2 The User Agreement may only be modified by a written agreement between Nathan and the Customer, or in accordance with paragraph 12.1. The User Agreement and any such written agreement constitute the entire agreement between Nathan and the Customer.
13.1 Any notice issued by Nathan or the Customer pursuant to the User Agreement shall be in writing. Notices may be delivered by hand, by receipted mail, or by email to the last email address provided to Nathan by the Customer.
13.2 Notice will be treated as given:
- in the case of hand delivery, on the date of delivery;
- in the case of postal delivery, on the date of delivery recorded by the postal authority;
- in the case of email, on receipt by the sender of notification that the email has been received by the recipient’s email server, but if the delivery or receipt is not on a business day or is after 5.00pm on a business day in the place where it is received, the notice is taken to be received at 9.00am on the next business day.
13.3 It is the Customer’s responsibility to notify Nathan of any changes to its contact details.
14.1 The User Agreement (and the validity and enforceability of the User Agreement) are governed by and to be interpreted in accordance with the law of the State of Victoria in the Commonwealth of Australia, without reference to its conflict of laws rules. The parties submit to the non-exclusive jurisdiction of the courts of the State of Victoria, and the federal courts of the Commonwealth of Australia. The parties irrevocably waive any right they may have to object to those courts exercising jurisdiction on the ground that the court is not a convenient forum.
14.2 If any provision of the User Agreement is illegal, unenforceable or void in any jurisdiction, then, with respect to that jurisdiction only:
- that provision shall be read down if possible so that it is no longer illegal, unenforceable or void in that jurisdiction; and
- if it is not possible to read down that provision, it shall be severed from the remaining provisions of the User Agreement, with respect to that jurisdiction only.
14.3 No act or omission by a party shall constitute a waiver of any of its rights under the User Agreement, other than an express waiver of those rights in writing signed by the party to be bound.
14.4 The User Agreement supersedes all prior agreements and understandings between the parties, and constitutes the entire agreement between the parties relating to the subject matter of the User Agreement.