1 Agreement
1.1 The service is provided by Neologix Pty Ltd (Neologix), and the use of and the services provided therein (Service) is governed by the following Terms and Conditions of Use.
1.2 Any person utilising Neologix' Hosting Service (the “Service”) whether shared hosting, virtual server hosting or dedicated server hosting, hereafter known as the "Client", agrees to follow and be bound by these "Hosting Terms and Conditions" without reservation.
1.3 Neologix may amend this Agreement at any time by posting the amended Agreement on its web site and the effective date on which the amended Agreement is so posted. Without limiting the generality or effect of the foregoing, Neologix may also add, delete or modify some or all of its Services at any time in its sole discretion.
2 Service
2.1 Neologix agrees to provide Client with: (i) space on one of Neologix servers to host a web site on the Internet, (ii) a licence to use any Neologix proprietary software, and (iii) various other services to facilitate the maintenance of the Web Site as more specifically set forth in Plan and this Agreement.
2.2 Neologix shall provide the Services so that the Web Site is accessible to third parties via the World Wide Web portion of the Internet as specified herein.
3 Responsibilities
3.1 Neologix shall endeavour to provide the Service in a professional manner, and will take all reasonable steps necessary to ensure the availability and security of the Service is maintained.
3.2 Changes in Client contact personnel will be promptly communicated to Neologix in writing. Client contact details will include business hours and after hours phone number(s), email address(es), postal and office address(es). Communications may be by electronic mail and/or fax and/or Australia Post and/or courier. Communications sent to one nominated are deemed as a communication sent to all nominated contacts. Electronic communications should be acknowledged; where an acknowledgement for electronic communications is not received with 48 hours, the electronic communications shall be deemed to have not been received.
3.3 Neologix reserves the right, in its sole discretion, to exclude or remove from the Web Site any Client content for any of the following reasons:
- Client Content is not Server ready;
- CGI scripts or programs consume an unreasonable amount of Central processing Unit (CPU) usage, Random Access memory (RAM), Network Bandwidth or Disk Input/Output Activity (Disk I/O) ;
- Neologix has received a significant number of complaints regarding Clients failure to be reasonably accessible to Clients customers or timely fill orders;
- Client has become the subject of a government complaint or investigation;
- Client breaches Acceptable Use Policy (AUP) published on Neologix web site; or
- any other reason which may violate or infringe any law or third party rights or which otherwise may potentially expose Neologix to criminal liability or public ridicule, provided that such right shall not place an obligation on Neologix to monitor or exert editorial control over the Web Site.
3.4 Client is responsible for ensuring a current copy of the content or Web Site is located at their premises.
3.5 Client acknowledges that maintenance must be performed from time to time. Neologix will attempt to perform all scheduled maintenance at times which will affect the least amount of customers, and Neologix will attempt to provide reasonable notice to Client? prior to maintenance being performed.
3.6 Client acknowledges Neologix uses Name Based Hosting in compliance with APNIC standards and hence Client is not able to receive unique IP addresses. Neologix reserves the right to renumber its network and cannot guarantee continuity of initial IP address assigned nor be responsible for any dependencies. Neologix will provide reasonable notice should renumbering occur.
3.7 Neologix may, at its sole discretion and at client request, attempt to obtain a unique ip address for the purpose of setting up secure internet services. Neologix cannot guarantee that an IP address will be obtained or, if obtained, will be available and configured on a particular date.
3.8 Client acknowledges Neologix reserves the right not to install any third party software on its servers including but not limited to COM Objects, Perl Modules and other 3rd party binaries.
3.9 Neologix will provide technical support limited to scope of service provided. Technical support for queries involving the provision of programming code or troubleshooting programming code may incur additional fees. Client is responsible for seeking technical support from their ISP for issues related to Internet connectivity. Neologix may deem a support query related to Internet connectivity at its sole discretion.
3.10 HTTP log files are provided as a means of producing statistics. Client is responsible for report creation and maintaining a copy of reports. Neologix reserves the right to remove log entries that are older than 1 month, or that are excessive in size. Client acknowledges that log files contribute to total disk space used for each hosting package.
3.11 Neologix provides production environment for web content. Client is responsible for testing scripts in development environment managed by themselves. Neologix servers are not to be used to compile code or test code.
3.12 Email facilities provided with shared hosting products are not deemed enterprise level solutions. As such, Neologix mail servers reject email messages exceeding 10MB in size. Neologix also advises customers not to leave mail on server when downloading.
3.13 Service provided by Neologix does not facilitate the execution of scheduled processes, through the use of CRON, Cold Fusion Scheduler, nor any other scheduler on Neologix servers.
3.14 Client must take all reasonable steps to ensure the safety and security of their web site and/or applications. Client acknowledges that use of any third-party software, including (but not limited to) web site functionality such as chat rooms, bulletin boards, guest books, etc. must be done so on the basis that it is kept updated and patched to ensure that known bugs and security holes are eliminated as far as possible. Client acknowledges that Neologix is not responsible for any loss or otherwise caused by failure of Client to maintain the software used by the Client for their web site.
4 Fees & Charges
4.1 Client shall pay Neologix a 'Set Up' fee (if any) and a monthly or annual fee as set forth in the Neologix fee schedule for Client in corresponding Plan. The fee schedule may be found on Neologix web site and is hereby made part of this Agreement. All such fees due to Neologix shall be received at Neologix by 3:00 pm on the date due (payment date).
4.2 Payments to Neologix may be made by Cheque, money order and electronic funds transfer in Australian dollars. In the event that a cheque is returned as unpayable, Client will be sent a suspension of Services email which will grant 7 days to make payment and charged a AUD$45.00 returned cheque fee.
4.3 Failure to pay any fees on or before the due date shall be deemed a material breach of this Agreement, justifying suspension of the performance of the Services by Neologix, the immediate removal and deletion of all Client Content from the Server and will be sufficient cause for immediate termination of this agreement by Neologix. Any such suspension does not relieve Client from paying past due fees plus interest thereon at the rate of 2% per month or the maximum allowable rate under applicable law, and in the event of collection enforcement, Client shall be liable for any costs associated with such collection, including but not limited to, legal costs, court costs and collection agency fees.
4.4 All fees are inclusive of all taxes and duties including Goods and Services Tax (G.S.T). All taxes will be itemised for the Client.
4.5 Neologix may amend its fee schedule at any time by posting the amended fee schedule on its web site and the effective date for the amended fee schedule is the date on which the amended fee schedule is so posted.
5. Term, Termination and Renewal
5.1 Term. Upon acceptance by Neologix, this Agreement shall remain in effect for the time frame set forth in the Client Plan (term), unless otherwise terminated in accordance with this Agreement.
5.2 Termination for Breach. Except as otherwise provided herein, either party may terminate the Agreement on fourteen (14) days notice if the other party has materially breached or is otherwise not in compliance with any provision of the Agreement, and such breach or noncompliance is not cured within such fourteen (14) day period. Neologix reserves the right to immediately suspend any access to the Web Site until such breach or noncompliance is cured.
5.3 Termination for Convenience. Either party may terminate the Agreement for any reason with fourteen (14) days written notice to the other party. In the event of termination under this section by Client, Client shall not be entitled to a refund of any fees paid for the current Term and termination will only be affected once Client receives written communication from Neologix. In the event of termination under this section by Neologix, Client shall be entitled to a pro-rata refund of the fees paid during the current term, but only in the event that the Client was not in breach of the Agreement at the time the termination was given by Neologix.
5.4 Renewal. The Term of this Agreement shall automatically be renewed for the same term as set forth in the Client? Plan, unless prior to fourteen (14) days in advance of the end of the Term, Client either: (i) submits cancellation authorisation in writing, or (ii) faxes a cancellation request to Neologix. In either case the cancellation authorisation must contain the account name, password, reason for cancellation and signature of Client. Termination will only be affected once Client receives written acknowledgement of receipt of cancellation request from Neologix.
6 Neologix Limited Warranties
6.1 30-Day Money Back Warranty. Neologix hereby extends, with the exception of fees paid for domain name registration and domain name registration renewal, an unconditional money back-guarantee to Client during the first thirty (30) days of the initial term of the Client? Plan, beginning upon the initial setup of Client? Plan. Client shall provide Neologix with written notice of the Client? desire to terminate Services prior to the expiration of the thirty days. The written cancellation notice shall entitle the Client to a refund of any monies paid, including setup fees incurred by Neologix for the service cancelled.
7 Warranty, Disclaimer, Limitation on Liability & Indemnity
7.1 Warranty Disclaimer. EXCEPT WHERE EXPRESSLY REQUIRED BY LAW AND FOR THE LIMITED WARRANTY SET FORTH IN SECTION 6, Neologix MAKES NO WARRANTIES HEREUNDER, AND Neologix EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE EXCEPT FOR THOSE WARRANTIES EXPRESSLY REQUIRED BY THE LAWS OF THE COMMONWEALTH OF AUSTRALIA, THE STATE OF NSW AND THE AUSTRALIAN CAPITAL TERRITORY. Neologix AGENTS HAVE NO AUTHORITY TO GIVE SUCH WARRANTIES ON BEHALF OF Neologix.
7.2 Limitation on Liability. EXCEPT WHERE EXPRESSLY REQUIRED BY LAW, IN NO EVENT SHALL Neologix BE LIABLE TO CLIENT FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATED TO THIS AGREEMENT AND THE SERVICES PROVIDED BY Neologix, INCLUDING WITHOUT LIMITATION, RELATED TO THE PERFORMANCE OR BREACH THEREOF, EVEN IF Neologix HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. Neologix LIABILITY, IF ANY, TO CLIENT HEREUNDER SHALL IN NO EVENT EXCEED THE TOTAL AFTER TAX PROFITS OF Neologix UNDER THIS AGREEMENT.
IN NO EVENT SHALL Neologix BE LIABLE TO CLIENT OR TO CUSTOMERS OF CLIENT FOR ANY DAMAGES RESULTING FROM OR RELATED TO ANY FAILURE OR DELAY OF Neologix IN THE DELIVERY OF THE SERVICES UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, DELAYS CAUSED BY ACTS OF GOD, FIRE, WAR, RIOTS OR STRIKES.
7.3 Indemnity. Client agrees to indemnify, defend and hold harmless Neologix, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability.
8 Miscellaneous Provisions
8.1 Publicity. Neologix may refer to the name of the Client, the Clients product(s) or the business in which the product(s) are used in their customer listings, on their web site, in a customer profile, or in a press release, without the consent of Client.
8.2 Governing Law; Venue. This Agreement shall be governed by and shall be interpreted and enforced in accordance with the laws of the state of the Australian Capital Terriroty (Australia) The parties agree that the sole and exclusive venue for any disputes arising hereunder shall be in a territory a court located in the Australian Capital territory, Australia.
8.3 All content on the Neologix Web Site is subject to and protected by the Copyright Act as amended and all rights are reserved by Neologix.
8.4 All provisions of this Agreement shall be severable and no provision shall be affected by the invalidity of any other provision and in the event that some provision is construed as illegal, invalid, void or unenforceable the remaining provisions of this Agreement shall not be affected thereby and shall be interpreted and enforced as if such illegal, invalid, void or unenforceable provisions were not ever incorporated in this Agreement.
8.5 Client may not assign its rights and obligations under this Agreement without written consent from Neologix.
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