THIS AGREEMENT BETWEEN WEGENER PTY. LTD. (hereinafter
referred to as "The Company") and Account Holder (hereinafter referred
to as "User")
WHEREAS The Company provides the
service (the "Service") of hosting world-wide-web sites and
supplementary services in exchange for chargeable amounts as advertised.
AND WHEREAS User desires to
subscribe to the Acceptable Use Policy contained herein;
NOW THEREFORE in consideration of
the mutual covenants and agreements contained in this Agreement and other good
and valuable consideration (the receipt and sufficiency of which are hereby
irrevocably acknowledged by the parties) The Company and User agree as
The Service. The Company
agrees to provide User with storage space and bandwidth as advertised on servers
selected by The Company for the purpose of hosting world-wide-web site (the
"Site"); Extra bandwidth
is charged at rate of $ 1,20/GB.
Limitations. The Service is
subject to the following limitations:
User shall not include content, or internet links to
content on the Site that contain, promote or involve any of the
any infringement of copyright, trademark, patent,
trade secret or other intellectual property right;
nudity or pornography;
password restricted pages that are not available to
the entire Internet community at large;
content that exploits children under 18 years of
racist, threatening, or otherwise abusive content;
the promotion or incitement of, or instruction for,
the commission of illegal activities;
mail fraud, multi-level marketing (pyramid) schemes
or any other fraudulent activities;
content promoted through the sending of unsolicited
e-mail (also known as spamming);
sending of unsolicited e-mail (spam) from The
Company's servers, or any other server that refers to content on The
warez, cracks, hacks, spam software & their
mpeg layer two or three files (MP2 or MP3);
information or other material that contains a
virus, corrupted data or any other harmful or damaging component;
storage of log files on non-html content;
any binary files that are not linked to an html
page on the Site;
any links from other providersí web pages to
userís Site that do not first link to an html page on The Company
and services provided by Smartweb, credit card orders
placed online are sold by 2CheckOut.com.
Idem. User agrees
that The Company is not responsible for content on pages hosted on
member sites and acknowledges that The Company does not endorse or
verify any such material.
Idem. User agrees to
assume full responsibility for all files associated with the Site and
acknowledges that User may be held legally for the contents of the Site.
Backup and Monitoring. User
is solely responsible for creating backups of any files associated with
the Site and for monitoring the Site.
Notice to Officials. If
The Company determines that law enforcement officials should be notified
regarding potentially illegal content on the Site, User agrees
that The Company may provide copies of Userís web pages to the
appropriate officials without notice to user. The Company will cooperate
with all law enforcement efforts to locate persons who have posted
content that is illegal or promotes illegal conduct.
Policies and Guidelines. User
agrees to abide by all policies or guidelines, together with any
amendments thereto, set out, from time to time, by The Company anywhere
on the site.
Amendments. User agrees to be
bound by any amendments to this Agreement that are set out, from time to
time, by The Company.
No Representations or Warranties.
The Service is offered on an "as is" basis without any
representations or warranties of any kind either expressed or implied. For
greater certainty and without limitation to the generality of the foregoing:
The Company makes no representations, warranties or
guarantees of any kind whether written or verbal regarding the
reliability of the Site provided or any other services offered;
The Company is not responsible for any deletion,
alteration, or loss of data due to network or system outages, file
corruption, accidental deletion, or any other reasons;
The Company makes no representations, warranties
or guarantees with regards to server reliability, speed or consistency;
The Company makes no representations, warranties or
guarantees as to the accurateness or correctness of any content on any
of the Sites and is not responsible for any errors or omissions arising
from the use of such information;
The Company registers
domain names free of charge, on User's behalf and in User's name. The
Company manages domain name(s) in a responsible manner on User's behalf,
domain registration renewal fees apply.
Limitation of Liability. The
Company is not responsible for any failures, delays, or interruptions in the
delivery of any content or services contained on the The Company
server; or losses or damages arising from the use of the content or services
provided by The Company. For greater certainty and without limitation to the
generality of the foregoing:
(a) There is no liability of the The Company
to User for actual damages for
any cause whatsoever; no refunds of monies paid will be made.
(b) in no event will The Company be liable to User for any
indirect, incidental, or consequential damages arising out of the Service or
in connection with the Site or any other services or products provided to
(c) The Company , its officers, directors, owners, agents
and employees, shall in no way be liable to User or anyone else for any loss
or injury resulting from use of the Service or the Site;
(d) in no event shall The Company be liable for any
damages, whatsoever, as a result of the notifying any official of
potentially illegal content on the Site, providing copies of Userís web
pages to the appropriate officials or cooperating with law enforcement
efforts to locate persons who have posted content that is illegal or
promotes illegal conduct;
(e) In no event shall The Company be liable for any
damages, whatsoever, as a result of the termination of this Agreement
pursuant to Article 8.
Indemnity. User agrees to
indemnify and hold The Company harmless from and against, and to reimburse
The Company with respect to, any and all losses, damages, liabilities,
claims, judgments, settlements, fines, costs and expenses (including
reasonable related expenses, legal fees and costs of investigation) or every
nature whatsoever incurred by The Company by reason of or arising out
of or in connection with (i) any breach of this Agreement by User; (ii) any
infringement of any copyright, trade-mark, patent, trade secret or any other
intellectual propriety right of any party by content on the Site; or (iv)
illegal, libelous, or defamatory content on the Site.
Either of The Company or User may terminate this
Agreement at any time upon providing five business days prior notice to
the other party.
The Company may terminate this Agreement,
discontinue the Service and delete the Site at any time without notice
to User in any of the following circumstances:
User violates any term of this Agreement, any
municipal, provincial or federal laws or regulations, or any policy
or guideline set out, from time to time, by The Company.
User engages in conduct or posts material on the
Site that The Company in its sole discretion believes is
harmful to other Users, the business of The Company or any
User engages in any activity that could overwhelm
the server with heavy CPU usage or that requires a disproportionate
amount of the resources of The Company server;
User disputes the terms of this Agreement or any
amendment set out, from time to time, by The Company.
The Company receives any complaints regarding
User or the Site from any other Users or third parties.
Following termination of this Agreement, for any
reason, User agrees not to use the Service or the Site in any manner or
for any reason.
Consent to Breach Not Waiver. No
term or provision of this Agreement is deemed waived and no breach
excused, unless the waiver or consent is in writing and signed by the
party claiming to have waived or consented. Any consent by any party to,
or waiver of, a breach by the other, whether expressed or implied, does
not constitute a consent to, waiver of, or excuse for, any other
different or subsequent breach.
Governing Law. This
Agreement is governed by and construed in accordance with the applicable
laws of the State of Western Australia and the federal laws of Australia
and is treated in all respects as a Western Australian contract.
Severeability. If any
provision of this Agreement is held to be invalid, illegal or
unenforceable, all other provisions will nevertheless continue in full
force and effect.
Entire Agreement. This
Agreement, together with all policies, guidelines and amendments set
out, from time to time, by The Company constitutes the entire agreement
between the parties with respect to the subject matter of the Agreement
and supersedes all previous negotiations, proposals, commitments,
writings and understandings of any nature whatsoever, whether oral or
Survival. Any terms and
conditions of this Agreement which by their nature extend beyond the
term or expiry of this Agreement shall survive the termination or expiry
of this Agreement. This includes, without limitation, Article 5 (No
Representations or Warranties), Article 6 (Limitation of Liability),
Article 7 (Indemnity), and this Article 9 (General).
Headings. The headings and
captions used in this Agreement are inserted only as a matter of
convenience and for reference and in no way are to be construed as
defining, limiting, or describing the scope or intent of this Agreement.
Remedies Cumulative. Unless
otherwise set out in this Agreement the rights and remedies granted to
each party under this Agreement are cumulative and are in addition to
each party's rights provided by law or otherwise. Each party may
exercise its rights concurrently or separately and the exercise of one
remedy is not deemed an exclusive election of that remedy or preclude
the exercise of any other remedy.
Counterparts or Electronic Acceptance.
Agreement may be executed in counterparts, each of which is deemed to be
an original and all of which together are deemed to be one and the same
instrument, or may be executed by indicating assent through electronic
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