TRUECMS Web-Hosting and Related Services Terms and Conditions

1.1

You agree that TRUECMS or its third party service provider (a "Supplier") will supply the Services to you on the terms set out in this agreement.

1.2

This agreement commences on the date upon which TRUECMS confirms to you by email or any other written medium that a Service has been activated ("Commencement Date").

1.3

The parties agree that the initial period that TRUECMS or its Supplier will supply the Services/s to you for the "Initial Period" specified in the written confirmation by TRUECMS to you of receipt of payment by you of the Plan Cost applicable to the Services for the Initial Period ("Initial Period Payment Confirmation"). Thereafter, the Service/s will be automatically renewed indefinitely for the same period as the period specified in the Initial Period Payment Confirmation (each a "Renewal Period") unless you have terminated the provision of any Service/s in accordance with clause 14, upon your payment of the applicable renewal fees and charges prior to the expiry of the relevant period and subject to the terms and conditions of this agreement.

1.4

We may vary these terms (including the Acceptable Use Policy or the Privacy Policy referred to in clause 5 below), the amount we charge for any Service, or the terms of the operation of any Service, at any time by general notice on a page of the Internet referred to on the home page of our Website at http://TRUECMS.net.au. Changes other than price changes will become effective upon publication of the notice.

Where we vary the prices for any Service, we will give at least 30 days notice of the change by the same means, and the new prices will apply at the end of that period.

1.5

If you use a Service after publication of any change in accordance with clause 1.4, your use will constitute acceptance of the amended terms.

1.6

Following the Commencement Date, you may at any time upgrade the Plan applicable to a Service acquired by you by written notice to TRUECMS in accordance with the process specified in the Initial Period Payment Confirmation ("Upgraded Service"). You agree that TRUECMS will supply you with the Upgraded Service in accordance with this agreement and you agree to at all times comply with this agreement in connection with any Upgraded Service (including, without limitation, paying any additional, or increased fees or charges that may apply to any Upgraded Service).

1.7

These terms constitute the agreement in its entirety and supersede all prior agreements.

2.1

You shall at all times keep your password and log-in details secure. You agree that TRUECMS cannot and does not know whether you have given access to your account and to the Services to other people (whether knowingly or not). You therefore agree that you are totally responsible for:

2.1.1	when and how your account with TRUECMS is used (including, without limitation, if your Accounts and/or the Services are terminated pursuant to clause 14 (if applicable)); and
2.1.2	the actions of the people (if any) you allow to access, or transmit information through the systems of TRUECMS or its Supplier, or otherwise utilise the Services.

2.2

You agree that you are solely responsible for any of your content residing on the Supplier's servers.

2.3

You agree that you are solely responsible for the back-up of your content and any other files (including, without limitation, email files, if applicable) unless otherwise agreed with TRUECMS.

2.4

You agree that data transfer bandwidth usage and/or disk space usage shall not exceed the number of megabytes per month for the Services ordered by you, as published by TRUECMS on its website located at http://TRUECMS.net.au
("Agreed Megabytes").

TRUECMS shall monitor your usage of the Services. If data transfer bandwidth usage and/or disk space usage exceeds the Agreed Megabytes, you agree that you will be responsible for purchasing any additional data transfer bandwidth and/or disk space that you determine may be required at your own cost and that your failure to do so may result in the Services ceasing to operate or function. In addition you also agree that if at any time your data transfer bandwidth usage and/or disk space usage exceeds the Agreed Megabytes, TRUECMS or its Supplier may charge you additional fees with respect to the additional megabytes used by you, suspend any and all Services, or, in the case of TRUECMS, terminate this agreement. In the event that any such action is taken by TRUECMS or its Supplier (as the context requires), you agree that you shall not be entitled to a refund of any fees paid in advance of such corrective action.

2.5

You agree that TRUECMS or its Supplier may be required to perform maintenance to maintain the continuous operation of the Supplier's servers, which maintenance may affect the operation or functioning of the Services. We will attempt to provide you with notice of the maintenance downtime, except when circumstances beyond the control of TRUECMS or its Supplier prevent either TRUECMS or its Supplier (as the context requires) from doing so. You also agree that TRUECMS or its Supplier may also be required to suspend the Services, or disconnect or deny you access to the Services, in accordance with clause 14.1.2.

2.6

You agree to take all necessary or desirable steps to ensure that any content (including, without limitation, any content pertaining to Your Products and Services (as that term is defined in clause 9.1) that is or could be unsuitable for children is labelled appropriately.

3.1

You must pay for the Services in accordance with the prices and charges published by TRUECMS on its website located at http://TRUECMS.net.au

(as amended from time to time in accordance with clause 1.4).

3.2

You must pay all prices and charges for the Services and other amounts incurred by you or any designated users or incurred as a result of any use of the Services (whether authorised or not) in advance, and, in accordance with the billing provisions specified in the Initial Period Payment Confirmation.

3.3

Prices and charges published on TRUECMS Website are inclusive of any government taxes or charges unless otherwise stated.

3.4

You consent to TRUECMS or its Supplier obtaining a credit reporting agency report containing personal information about you (as well as information concerning commercial creditworthiness and activities) for the purpose of assessment by TRUECMS of an application for credit (whether commercial or personal) or for the purpose of the collection of payments that are overdue.

3.5

You agree that in the event of any action being taken by TRUECMS to recover any overdue amount due to it under this agreement and/or the Initial Period Payment Confirmation (as evidenced for example by, without limitation, your credit card company notifying TRUECMS of you disputing the payment of, or refusing to pay such charge, or where your credit card payment has been declined or reversed), any costs incurred by TRUECMS in recovering the debt (including, without limitation, any legal expenses (on a solicitor/client basis), collection agency charges or any other reasonable associated costs incurred by TRUECMS) are payable by you to TRUECMS and shall be recoverable by TRUECMS as a separate debt.

4.1

You may cancel a Service/Services in accordance with this clause 4. This clause 4 shall not apply where you terminate this agreement and cease obtaining the Services from TRUECMS pursuant to clause 14.6.

4.2

You may cancel a Service/s in accordance with clause 14.3. Where you cancel a Service/s in accordance with clause 14.3, you shall be required to pay TRUECMS the following cancellation fees:

4.2.1

if you cancel the Service/s within 30 days of the Commencement Date, or, within 30 days of the date upon which TRUECMS confirms by email or other written medium that the Service/s has been renewed for an additional period, as referred to above in clause 1.3 (each a "Renewal Commencement Date"), you will pay TRUECMS a cancellation fee equal to the Set Up Fee applicable to the Service/s, which TRUECMS may deduct from any payments you have previously paid TRUECMS with respect to the Service/s; and

4.2.2

if you cancel the Service/s at any time following 30 days from the Commencement Date or Renewal Commencement Date (as the context requires), you will pay TRUECMS a cancellation fee equal to: 4.2.2.1 the Set Up Fee applicable to the Service/s; and 4.2.2.2 an administrative fee which shall be either a fee of AUD$25, or, a fee equivalent to the Plan Cost payable with respect to the Services for two months, whichever is the greater, which TRUECMS may deduct from any payments you have previously paid TRUECMS with respect to the Service/s.

4.3

Where you have cancelled any Service/s pursuant to clause 4.2, subject to your payment of the applicable cancellation fee as specified in clause 4.2, and any payments required by clause 14.7, TRUECMS will refund you for any other payments you have previously paid to TRUECMS with respect to the Service/s being cancelled unless otherwise expressed to the contrary in this agreement (including, without limitation, pursuant to clauses 2.4 or 5.1).

5.1

You agree to comply with TRUECMS's Acceptable Use Policy located at http://TRUECMS.net.au/book/policies/TRUECMS-acceptable-use-policy, as varied from time to time by TRUECMS in accordance with clause 1.4 ("AUP"). If we receive notice of, or otherwise become aware that you have failed to comply with any provision of this AUP, in addition to any other rights of TRUECMS under this agreement, you agree that TRUECMS or its Supplier may immediately take corrective action, including suspension of any and all Services, or, in the case of TRUECMS, terminating this agreement. In the event that any such corrective action due to a violation of the AUP occurs, TRUECMS shall not refund to you any fees paid to TRUECMS prior to such corrective action.

5.2

You agree to comply with TRUECMS's Privacy Policy located at http://TRUECMS.net.au/book/policies/TRUECMS-privacy-policy, as varied from time to time by TRUECMS from time to time in accordance with clause 1.4 ("Privacy Policy").

5.3

You agree that the AUP and the Privacy Policy form part of the terms and conditions of this agreement.

6.1

You agree that TRUECMS or its Supplier shall maintain and control ownership of all IP numbers and addresses that may be assigned to you by TRUECMS's Supplier and TRUECMS or its Supplier may, in each's respective sole discretion, change or remove any and all such IP numbers and addresses.

6.2

You expressly grant to TRUECMS and its Supplier a licence to cache the entirety of your Website, including data and content supplied by you and/or third parties, hosted by TRUECMS's Supplier under this agreement. You agree that you shall be responsible for obtaining any agreements and/or consents required of any third party in connection with the grant of this licence to TRUECMS and its Supplier. You also agree that any such caching is not an infringement of any of your intellectual property rights or any third party's intellectual property rights.

7.1

You acknowledge that TRUECMS's Supplier is acting only as a reseller and/or provider of any hardware, software, circuit and equipment (collectively, the "Equipment") offered to you under this agreement that was manufactured by a third party.

7.2

You agree that you shall only be entitled to use any Equipment provided by TRUECMS's Supplier in connection with any permitted use of the Services as specified in this agreement or as notified to you by TRUECMS from time to time.

7.3

You shall not resell, transfer, export or re-export any Equipment, or any technical data derived from any Equipment, in violation of any law applicable to you.

7.4

You agree that:

7.4.1	neither TRUECMS nor its Supplier shall be responsible for any changes in the Services that cause Equipment to become obsolete, require modification or alteration, or otherwise affect the performance of the Services;
7.4.2	any malfunction or manufacturer's defects of Equipment either sold or provided by TRUECMS or its Supplier to you or purchased directly by you used in connection with the Services will not be deemed a breach of the obligations by TRUECMS and/or its Supplier under this agreement; and
7.4.3	any rights or remedies you may have regarding the performance or compliance of Equipment are limited to those rights extended to you by the manufacturer of such Equipment.

8.1

you have not entered into this agreement or obtained any Services on the basis of, or in reliance on, any statement or representation (whether made orally or in writing and regardless of the medium used) made by either TRUECMS or its Supplier concerning this agreement or any of the Services, other than any statement or representation contained in this agreement;

8.2

you are at least 18 years of age;

8.3

you will conduct such tests and computer virus scanning as may be necessary to ensure that any data uploaded or downloaded to and from the Server of TRUECMS's Supplier by you does not contain any computer virus and will not in any way, corrupt the data or systems of any person (including, without limitation, TRUECMS or its Supplier);

8.4

your use of the Services will not at the Commencement Date or thereafter, infringe the intellectual property or other proprietary rights of TRUECMS, its Supplier or any third party; and

8.5

you will otherwise at all times use the Services in accordance with this agreement (including, for the avoidance of doubt, the AUP or the Privacy Policy);

9.1

You acknowledge and agree that neither TRUECMS nor its Supplier exercises any control over, and accepts no responsibility for, the content of the information passing through the Supplier's host computers, network hubs and points of presence or the Internet, nor, for any products and/or services that you may determine to offer for supply, or supply via your website, the Internet or otherwise ("Your Products and Services").

9.2

To the extent permitted by law, neither TRUECMS nor its Supplier, nor any employees, affiliates, agents, suppliers, third-party information providers, merchants, licensors nor the like (each a "Relevant Party") of either TRUECMS or the Supplier, make any warranties of any kind, either expressed or implied, statutory or otherwise, relating in any way to the subject matter of this agreement, including, but not limited to, warranties of merchantability or fitness for a particular purpose, or non-infringement for the Services or any equipment provided, and all such warranties are hereby excluded.

9.3

In addition to clause 9.2, to the extent permitted by law, neither TRUECMS nor its Supplier, or, any Relevant Party of either TRUECMS or its Supplier:

9.3.1	warrant that the Services will be uninterrupted or error free;
9.3.2	warrant that the Services will be free from external intruders (hackers), virus or worm attack, denial of service attack, or other persons having unauthorised access to the services or systems of TRUECMS or its Supplier;
9.3.3	make any warranty concerning the results that may be obtained from the use of the Services or as to the accuracy, reliability or content of any information services or merchandise contained in or provided through the Services.

9.4

Neither TRUECMS nor its Supplier shall be liable for the content or loss of any content, data or files (including, without limitation, email files, if applicable) transferred either to or from you or stored or backed-up by you or any of your customers via the Services.

11.1

You agree that neither TRUECMS nor its Supplier shall be liable for any indirect, incidental, special or consequential damages, or loss of profits, revenue, data or use, suffered by you or any third party, whether in an action in contract, tort or strict liability or other legal theory, even if TRUECMS or its Supplier (as the case may be) has been advised of the possibility of such damages.

11.2

Subject to clause 11.1, you further agree that the aggregate liability of TRUECMS and its Supplier for any damages, losses and causes of actions whether in contract or tort (including negligence or otherwise) shall not exceed the actual dollar amount paid by you for the Service which gave rise to such damages, losses and causes of actions during the 12-month period prior to the date the damage or loss occurred or the cause of action arose.

11.3

You agree that where any statute implies any term into this agreement, and that statute avoids or prohibits provisions in a contract excluding or modifying the application of or liability under such a term, then the term will be taken to be included in this agreement. However, the liability of TRUECMS and its Supplier for any breach of the term will, if permitted by that statute, be limited, at our option, to the re-supply of the services again; or payment of the cost of having the services supplied again.

11.4

We acknowledge that some jurisdictions do not allow the exclusion or limitation of warranties or incidental or consequential damages, so that the above limitations or exclusions may not apply to you. In such jurisdictions, the liability of TRUECMS and its Supplier (and the liability of any director, officer, employee, agent, affiliate, content provider or service provider of TRUECMS and its Supplier) shall be limited to the greatest extent permitted by applicable law.

12.1

You acknowledge that all right, title and interest in any and all technology, including the software that is part of or provided with the Services and any trademarks or service marks of TRUECMS or its Supplier (collectively, "Our Intellectual Property") is vested in TRUECMS, its Supplier and/or the licensors of TRUECMS or its Supplier (as the context requires).

12.2

Unless otherwise specifically provided in this agreement, you agree that you shall have no right, title, claims or interest in or to Our Intellectual Property.

12.3

You may not copy, modify or translate any of Our Intellectual Property or related documentation, or decompile, disassemble or reverse engineer any of Our Intellectual Property, to use it other than in connection with the Services, or grant any other person or entity the right to do so.

12.4

Unless otherwise specifically permitted by this agreement, you are not authorised to distribute or to authorise others to distribute any of Our Intellectual Property in any manner without the prior written consent of TRUECMS and/or its Supplier (as the context requires); provided, however, that nothing in this clause 12.4 shall preclude you from using Our Intellectual Property as incorporated in the Services. This clause 12.4 shall not operate to extinguish, restrict, vary, waive or affect in any manner whatsoever any right, title or interest which you may now have or hereafter acquire in, or in relation to, the third-party software that is part of or provided with the Services solely to the extent such third-party licensors publicly provide such rights, title or interest in the third-party software to you.

13.1

You acknowledge that, in the course of the performance of this agreement, you may have access to customer information and communications, including proprietary information claimed to be unique, secret, or confidential, and which constitutes the exclusive property and trade secrets of TRUECMS or its Supplier ("Confidential Information"). You agree to maintain the confidentiality of the Confidential Information and to use the Confidential Information only to the extent necessary for legitimate business uses in connection with this agreement. Upon request of TRUECMS or on termination or expiration of this agreement, you shall return the Confidential Information of TRUECMS or its Supplier then in your possession to TRUECMS or its Supplier. Nothing in this agreement shall prohibit or limit your use of information which (a) is now, or hereafter becomes, publicly known or available through lawful means; (b) is rightfully in your possession, as evidenced by your records; (c) is disclosed to you without confidential or proprietary restriction by a third party who rightfully possesses and rightfully discloses the information; (d) is independently developed by you without any breach of this agreement; (e) is the subject of a written permission to disclose provided by TRUECMS and/or its Supplier (as the context requires); or (f) is required by law to be disclosed.

13.2

You agree that TRUECMS may disclose your account and other information in accordance with the AUP and Privacy Policy.

14.1

In addition to any other rights of suspension under this agreement, TRUECMS or its Supplier may from time to time without notice to you suspend a Service, or disconnect or deny you access to any Service:

14.1.1

if you fail to comply with any provision in this agreement (including failure to pay charges due, or, for the avoidance of doubt, any provision in the AUP or Privacy Policy), or do, or allow to be done, anything which in our opinion may have the effect of jeopardising the operation of the Service, until the breach (if capable of remedy) is remedied to the satisfaction of TRUECMS or its Supplier (as the context requires);

14.1.2

during any technical failure, modification or maintenance involved in the Service provided that we will use reasonable endeavours to procure the resumption of the Services as soon as reasonably practicable. Notwithstanding any suspension of any Service under this clause 14.1, you shall remain liable for all charges due at the commencement of the suspension period throughout the period of suspension.

14.2

In addition to any other rights under this agreement, you agree that TRUECMS may without notice to you remove, amend or alter your data upon being made aware of:

14.2.1	any court order, judgment, determination or other finding of a court or other competent body, that the data is illegal, defamatory, offensive or in breach of a third party's rights;
14.2.2	if directed to do so by the Australian Broadcasting Authority under a "take down notice", in accordance with the Broadcasting Services Amendment (Online Services) Act 1999 (as amended or replaced from time to time) if we determine (acting reasonably) that such Act applies to you; or
14.2.3	an outside party or outside device disrupting or attempting to disrupt the Services.

14.3

In addition to any other rights of termination under this agreement. TRUECMS may terminate this agreement and cease providing the Services to you at any time on 30 days written notice to you. You may terminate this agreement and cease obtaining any Services from TRUECMS, or, terminate any Service/s being provided by TRUECMS to you, on 30 days' written notice to TRUECMS in accordance with the process specified in the Initial Period Payment Confirmation.

14.4

In addition to clause 14.3, and, in addition to any other rights of termination under this agreement, TRUECMS may terminate agreement and cease providing the Services to you at any time on written notice to you if TRUECMS has at any time suspended any Service or disconnected or denied access to any Service under clause 14.1.1.

14.5

Where TRUECMS supplies a Service to you through a Supplier, TRUECMS may terminate and replace such Supplier at any time without notice to you. TRUECMS will, however, endeavour to replace such Supplier:

14.5.1	with no or minimal disruption to the supply of the Services; and
14.5.2	on substantially the same terms as are set out in this agreement.

14.6

Where TRUECMS is unable to comply with clause 14.5.2, you may terminate your agreement with TRUECMS and cease obtaining any Service/s from TRUECMS within 30 days' of being notified of the new terms on which TRUECMS intends to supply the relevant Service/s to you. Where you terminate your agreement with TRUECMS under this clause 14.6, TRUECMS will refund you any fees previously paid by you on a pro rata basis.

14.7

In addition to any other obligation under this agreement, if you terminate any Service or, either TRUECMS or you terminate this agreement:

14.7.1	you must pay all outstanding charges (including, without limitation, data transfer bandwidth over-usage charges and/or disk space over-usage charges) to TRUECMS immediately;
14.7.2	other than if the termination occurs under clause 14.6, you must pay any charges that TRUECMS incurs from its Supplier in relation to any charges that TRUECMS's Supplier incurs in connection with migrating your data or retrieving any of your emails following termination of this agreement;
14.7.3	any licence issued to or by you in relation to the Services will cease from the date of termination; and
14.7.4	TRUECMS or its Supplier may delete all data from any storage media.

16.1

The law in force in Victoria, Australia governs this agreement and the transactions contemplated by this agreement.

16.2

In the event it is necessary for TRUECMS to enforce its rights under this agreement, you agree to pay all fees incurred by TRUECMS (including, but not limited to, legal fees and collection agency fees)

16.3

This agreement shall be binding upon and inure to the benefit of you, your respective successors and assigns. You may not resell any Services or assign your rights and obligations under this agreement without the prior written consent of TRUECMS.

16.4

A provision of, or a right created under this agreement, may not be waived except in writing signed by the party granting the waiver, or varied except in writing signed by the parties.

16.5

If any provision of this agreement is held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this agreement shall remain in full force and effect.