Definitions
“Acceptable Use Policy” means the Service Provider’s Acceptable Use Policy set out in Clause 23.
“Additional Services” means web-based services that are not included in our normal web hosting, app and server maintenance services.
“Agent of the User” means a person who acts on behalf of another, namely, someone who acts on behalf of the User of the Service with consent of the User and subsequently uses the Service or the Service Provider.
“Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
“Client Data” means all information, files or data uploaded by the User and/or Agent of the User via the Service to the Service Provider’s servers.
“Consumer” has the same meaning as Section 3 of the Australian Consumer Law.
“Consumer Goods” has the same meaning as Section 3 of the Australian Consumer Law.
“Consumer Guarantee” has the same meaning as Section 2(1) of the Australian Consumer Law.
“Consumer Services” has the same meaning as Section 3 of the Australian Consumer Law.
“Customer” means any person, User and/or Agent of the person or User who has entered into an Agreement with the Service Provider and Gopha Pty Ltd for supply of Services whether via website or otherwise and includes but is not limited to a Consumer.
“Fair or Reasonable” means ‘fair or reasonable’ as defined at Section 64A of the Australian Consumer Law.
“Intellectual Property” means all patents, trademarks, business names, copyright, design, logos, slogans, memberships, software and other products created, trade secrets, records and data in whatever form and however described used in or associated with Gopha Pty Ltd, specifications, drawings, notes, characteristics and processes of Gopha Pty Ltd whether existing at the date of this Agreement or brought into existence subsequent to this Agreement.
“Laws” means all laws including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by – laws, rules, regulatory principles and requirements, mandatory codes of conduct, writs, orders, injunctions, judgments, determinations and statutory licence conditions.
“Plan” means the licensing and support plan described in the quotation that is selected in accordance with Clause 10.
“Professional Rates” means the Service Provider and Gopha Pty Ltd’s fees for performing web-based services as set out in the Users quotation or as otherwise advised at the time for request of Additional Services.
“Gopha” means the Gopha Pty Ltd product and/or Service paid for by the User and/or Agent of the User.
“Gopha Pty Ltd” means Gopha Pty Ltd ABN 52 031 960 563 of Suffolk Park, in the state of New South Wales, Australia.
“Service” means hosting and domain registration services offered by the Service Provider and Gopha Pty Ltd that the User and/or Agent of the Users use. The Service is further detailed in the original quotation obtained by the user prior to the commencement of the agreement.
“Service Provider” means the organisation that provides website hosting and domain registration services that the User and/or Agent of the User uses via the Service.
“User(s)” means a person and/or Agent of the User who uses the Service with the Users knowledge, authorisation or permission.
1. Agreement
1.1 These Terms and Conditions are the terms on which the Service is provided.
1.2 The terms apply to all persons and all Users and/or Agents of User of the service.
1.3 It is a condition for use of the service that:
- These Terms and Conditions are complied with by every User and/or Agent of the User;
- Every User is made aware of these Terms and Conditions;
- Every User provides any Agent of the User a copy of the Terms and Conditions;
- Every User ensures other Users and/or Agents of the User comply with these Terms and Conditions.
2. Changes to these Terms and Conditions
2.1 These Terms and Conditions are subject to change from time to time.
2.2 Gopha Pty Ltd will provide reasonable notice if changes to these Terms and Conditions occur.
2.3 In accordance with Clauses 2.1 and 2.2 above, once the requisite notice has provided, the User and/or Agent of the User are bound by the amended Terms and Conditions.
2.4 If any User and/or Agent of the User of the Service does not agree or comply with the amended Terms and Conditions, the User and/or Agent of the User is to cease using the Service immediately thereafter and must notify the Service Provider 14 days notice of ceasing to use the Service.
3. Duration
3.1 These Terms and Conditions commence on the date on which the User signs up for the Service; or
3.2 By the User emailing their approval to commence the trial to Gopha Pty Ltd.
3.3 This Agreement continues until either party terminates by 14 days written notice to the other party.
3.4 On termination or expiry of this Agreement for any reason:
- Gopha Pty Ltd is no longer obliged to provide the Service to the User and/or Agent of the User ceases;
- The User and/or Agent of the User must not attempt to use or access the Service after the date of termination;
- Each party’s rights and obligations accrued prior to termination are not affected;
- Gopha Pty Ltd may delete all of the User and/or Agent of the Users data contained on any storage media;
- Clauses in relation to liability and indemnity continue; and
- Gopha Pty Ltd is released and is indemnified from any claim, suit or action that may arise from any person in relation to this Agreement.
If the Service Provider and/or Gopha Pty Ltd terminate the Service for any reason, then this Agreement will terminate automatically. In that case, unless the Service Provider and/or Gopha Pty Ltd terminated this Agreement due to failure by the User and/or Agent of the User to comply with these Terms and Conditions, the User and/or Agent of the User will be entitled to a pro-rata refund of any pre-paid fees within 14 days of termination.
Server/Network Maintenance
4. Scheduled Maintenance
4.1 In order to keep its servers up to date, the Service Provider and/or Gopha Pty Ltd will perform scheduled maintenance to servers from time to time.
4.2 The Service Provider and Gopha Pty Ltd reserve the right to suspend access to the server during the time required for the scheduled maintenance.
4.3 The Service Provider and Gopha Pty Ltd will attempt to perform all scheduled maintenance at off-peak time.
4.4 If the maintenance period is expected to last for more than 30 minutes the Service Provider and/or Gopha Pty Ltd will post a public notice regarding the maintenance.
5. Unscheduled Maintenance
5.1 Unscheduled maintenance may need to be performed from time to time.
5.2 During this time the server may be off-line.
5.3 In accordance with Clauses 5.1 and 5.2, a public notice regarding the maintenance will be posted after the unscheduled maintenance is complete.
Client Data and Data Backup
6.Uploading Client Data
6.1 Except for Intellectual Property rights in the Client Data, the Service Provider and Gopha Pty Ltd will own all Intellectual Property rights created during the course of providing the Service.
6.2 Subject to Clause 6.3 and the Acceptable Use Policy the User and/or Agent of the User may upload content that the User and/or Agent of the User wishes to be part of their website, in the manner and form and at all times directed by Gopha Pty Ltd and the Service Provider from time to time.
6.3 The User and/or Agent of the User must ensure that all Client Data:
- Complies with any content standards set by the Service Provider or Gopha Pty Ltd;
- Complies with the Acceptable Use Policy;
- Complies with all Laws Governing New South Wales and Australia;
- Does not infringe the Intellectual Property rights of any person.
6.4 The Service Provider and/or Gopha Pty Ltd reserves its right to remove any Client Data it considers unsuitable.
6.5 The User and/or Agent of the User indemnifies the Service Provider and/or Gopha Pty Ltd against any claim, suit or action by any person who alleges that their Intellectual Property rights have been infringed by information on Gopha.
7. Data Backup
7.1 The User and/or Agent of the User acknowledge that it is the User and/or Agent’s responsibility to maintain local copies/backups of the Users web content and information.
7.2 The User and/or Agent of the User acknowledge that the User and/or Agent of the User should keep their own recent copy of the Users site for any unforeseen event.
7.3 The Service Provider advises that in the event of equipment failure or data corruption, the User should be prepared to re-upload the Users data to their account.
7.4 The User and/or Agent of the user acknowledge that the Service Provider and/or Gopha Pty Ltd shall not be held liable for any loss of data, and the User and/or Agent of the User irrevocably indemnify the Service Provider and/or Gopha Pty Ltd against any claims, suits or actions brought by any person for loss or damage resulting from loss of data stored on Gopha.
8. Updates of website software
8.1 From time to time, the Service Provider and/or Gopha Pty Ltd may provide updates to the website software used to run the Users website.
8.2 The User acknowledges that it is their responsibility to update their website to the new version of the software.
8.3 The User acknowledges that, pursuant to Clauses 8.1 and 8.2, if the User fails to update to the new version of software, the security of the Users website and Client Data may be compromised.
9. Sub-domains and Account Rights
9.1 All sub-domains associated with Gopha Pty Ltd domain names (and all sub-domains of these domains) will remain the property of Gopha Pty Ltd.
9.2 The domain names (and all sub-domains of those domains) of the Service are provided at Gopha Pty Ltd’s discretion.
9.3 The Service Provider and/or Gopha Pty Ltd make no guarantee that:
- The User will be provided with a sub-domain by Gopha Pty Ltd;
- Any particular sub-domain name is or will continue to be available for the User; or
- No domain name is or will be registered which conflicts with the Users preferred domain name or otherwise affects use of the Users domain name.
9.4 If any dispute arises in relation to a sub-domain name provided by Gopha Pty Ltd, then Gopha Pty Ltd may withhold, suspend or cancel the sub-domain name.
9.5 The Service Provider and/or Gopha Pty Ltd are not liable to the User and/or Agent of the User or any other person for any cost, loss or liability (including loss of profit or other consequential damage) arising from the Service Provider’s supply or failure or delay in supplying these sub-domains.
10. Service Plan
10.1 At the time that the User signs up for the service, the User must select a service plan from those offered in the Users quotation.
10.2 The User acknowledges that each plan comes at a different cost and offers a different level of service.
10.3 The User acknowledges that the plan selected will determine the:
- Disk space (including but not limited to: web files, email and database);
- Maximum monthly level of traffic usage before incurring extra traffic costs;
- Level of support that is included in the Services.
11. No Resale
11.1 The User and/or Agent of the User acknowledge that they must not resell the Services without written express permission from the Service Provider and/or Gopha Pty Ltd.
11.2 The User and/or Agent of the User acknowledge that reselling of the services without the written permission referred to in Clause 11.1 will bring the User and/or Agent of the User into breach of this agreement and subsequently, Gopha Pty Ltd reserve their right to suspend or terminate the Users account effective immediately.
12. Access to Account
12.1 The User and/or Agent of the Users has access to:
- The Users site; and
- Files stored on the site account.
12.2 The Service does not include access to the Gopha Pty Ltd’s or the Service Provider’s hosting account.
12.3 The User can obtain access to their account through the username and password assigned.
12.4 It is the User and/or Agent of the Users responsibility to maintain the confidentiality of their username, password and other account information.
13. Technical Support and other Additional Services
13.1 The fees include the provision of normal web hosting and server maintenance services, as well as updates and maintenance of the Application.
13.2 At the request of the User, the Service Provider and/or Gopha Pty Ltd may carry out Additional Services for the User, including but not limited to technical support for application specific issues, such as PHP, html or script installation;
13.3 The User and/or Agent of the User must pay for all Additional Services that they request at the Service Provider and/or Gopha Pty Ltd’s Professional Rates.
14. Suspension and Termination of Account
14.1 The Service Provider and/or Gopha Pty Ltd may monitor any Users account to determine whether all Users and/or Agents of the User are complying with this agreement.
14.2 The Service Provider and/or Gopha Pty Ltd reserve the right to suspend or terminate any Users account with immediate effect and without notice if:
- The User and/or Agent of the Users use of the Service is found to be in breach of any law;
- The User and/or Agent of the User has committed a breach of this agreement;
- The User and/or Agent of the Users use of the Service may compromise or have an adverse effect on our systems or networks, or the Service Provider’s system or networks; or
- The User fails to meet any payment requirements under these Terms and Conditions or as otherwise agreed with the Service Provider.
15. Payment – Invoicing
15.1 Billing is implemented from the commencement of this agreement as arranged between the parties.
15.2 Billing is annually for the annual licence and support fees applicable to the selected plan.
15.3 The User must pay all Service charges, minimum charges and other amounts incurred by the User and/or Agent of the User or incurred as a result of any use of the Users password (whether authorised or not) in accordance with the billing option selected.
15.4 The User will be invoiced at the time payment is due.
15.5 In accordance with Clause 15.1,15.2 and 15.3, the User and/or Agent of the User must pay as indicated on the invoice by Gopha Pty Ltd or 21 days after the date of the invoice, whichever is earlier.
15.6 Gopha Pty Ltd reserves the right to immediately suspend or terminate the Service if payment is not received on time pursuant to Clause 15.4.
16. Disbursements
16.1 The User and/or Agent of the User is liable to pay the following disbursements:
- Any applicable setup fee that is advised at the commencement of the agreement;
- Any applicable fees for Additional Services that are requested for Gopha Pty Ltd to perform, including but not limited to: support, customisation, hosting etc.
- Licence and support fees are charged in advance.
- All fees are exclusive of any fees imposed by the User and/or Agent of the Users web service provider and/or host.
- All fees for Additional Services are charged at the end of the month for the previous month, unless other arrangements are made in writing with Gopha Pty Ltd.
- At the time of purchase, the User will pay the setup fee (if applicable) and prepay a recurring amount for the selected period. Charges for Additional Services will be billed retrospectively for the previous month.
17. Changes to Fees
17.1 Gopha Pty Ltd’s current Service Fees are set out in the Users original quotation and apply for the duration of the billing period.
17.2 Gopha Pty Ltd reserves the right to adjust their Service Fees.
17.3 If Service fees are changed, Gopha Pty Ltd will provide the User with reasonable notice of the changed Service Fees through the Gopha Pty Ltd website, by email or otherwise.
17.4 The change of Service Fees will be applicable from the date on which the Users pre-paid billing period expires.
18. GST
18.1 Unless Gopha Pty Ltd state otherwise, all fees and charges are exclusive of GST.
19. Limitation of Service
19.1 The User and/or Agent of the User acknowledges that, due to the inherent risks of the internet, and of computer-based networks and systems:
- The Services provided under this Agreement may be subject to interruptions or system errors from time to time;
- The Services may not meet the User and/or Agent of the Users requirements; and
- The User and/or Agent of the Users data may not be secure or protected from loss or corruption, and data loss or corruption may occur due to delays, Service interruptions or other reasons.
19.2 The User and/or Agent of the User agrees that interruptions and/or any event referred to in Clause 19.1 shall not amount to a breach of these terms and that the events referred to in Clause 19.1 are expected.
20. Liability Disclaimer
20.1 The Goods and/or Services provided by the Service Provider and/or Gopha Pty Ltd come with guarantees which cannot be excluded under the Australian Consumer Law.
21. Indemnity
21.1 The User and/or Agent of the User agrees to indemnify and hold harmless the Service Provider and Gopha Pty Ltd and the employees and Agents of the Service Provider and Gopha Pty Ltd (together, “Indemnified Parties”) against any losses, claims, damages, liabilities, penalties, actions, proceedings or judgments (collectively, ”Losses”) to which an Indemnified Party may become subject and which Losses arise out of, or relate to this Agreement or Customer’s use of the Service and Products, and will reimburse each Indemnified Party for all legal and other expenses, including reasonable Solicitors’ fees incurred by such Indemnified Party in connection with investigating, defending or settling any Loss whether or not in connection with pending or threatened litigation in which such Indemnified Party is a party.
22. Governing Law
22.1 This Agreement and the transactions contemplated by this Agreement are governed by the law of New South Wales in the Commonwealth of Australia, and the parties submit to the Courts of those jurisdictions.
23. Acceptable Use Policy
23.1 The Acceptable Use Policy applies as amended from time to time to all Customers and all Users and/or Agents of the User.
23.2 The Acceptable Use Policy shall be published on the Gopha Pty Ltd website.
23.3 Breach of the Acceptable Use Policy amounts to a substantial breach of these terms and entitled Gopha Pty Ltd to terminate the Services immediately without penalty.
24. Account uses
24.1 The User and/or Agent of the User may use the Service for the purpose of website hosting provided that such use is legal and does not constitute an unacceptable use.
24.2 The Service Provider does not allow adult material of any kind. Adult material includes but is not limited to nudity, porn and explicit content and is solely based on the discretion of the Service Provider.
24.3 The Service Provider reserves full right to suspend any account that does not comply with this guideline.
24.4 The Service must not be used for any purpose that violates any law, whether local, state, federal. International or otherwise.
24.5 The Service must not be used for spamming, that is, sending unsolicited advertising to those with which the Customer has no existing business relationship, posting off-topic advertising in newsgroups.
24.6 The Service must not be used for spoofing, that is, using a return email address which is not the valid reply address of the sender or sending an email message which does not contain enough information to enable the recipient to identify the party who is really sending the message.
24.7 The Service must not be used for generating extremely high volumes of outgoing mail than a normal User, and subscribing someone else to an electronic mailing list without that person’s permission.
24.8 The Service Provider’s services must not be used as a conduit of spam, or for transit of spam, or for activities relating to the propagation of spam or benefiting thereof. The Service Provider remains the final arbitrator of what is or is not considered spam on the Service Provider’s network.
24.9 The User and/or Agent of the User must not distribute mass emailing programs. All recipients on a mailing list must have personally subscribed.
24.10 Mailing lists must not be used to distribute unsolicited email.
24.11 The User and/or Agent of the User must not abuse Server resources which includes but is not limited to running programs in the background of the Service Providers server without prior written authorisation, running of chat rooms, Internet Relay Chat and IRC bots.
24.12 The User and/or Agent of the User acknowledge that any domain that exceeds reasonable bandwidth usage can be terminated without prior notice. ‘
24.13 The User and/or Agent of the user must not use the Service Provider’s servers for development purposes. The Users web site must be fully developed and tested before it can be moved to the Service Provider’s server.
24.14 If The Service Provider and/or Gopha Pty Ltd find excessive errors in the web log files of the Users account, Gopha Pty Ltd reserves the right to suspend the account of the User with the excessive errors without prior notice until the website is debugged.
24.15 The User and/or Agent of the User must not use the Service Provider hosting account as a download repository.
24.16 If the User and/or Agent of the User plans to offer files other than webpage files, including but not limited to music and video files, then the User and/or Agent of the User must negotiate the terms with the Service Provider. The Service Provider reserves the right to suspend such accounts without prior notice.
24.17 The User and/or Agent of the User must not use their account for hacking and/or cracking. The Service Provider reserves the right to suspend such accounts without prior notice and further, to report such illegal activities to the relevant authorities.
24.18 The User and/or Agent of the User is responsible for all activity originating from the account of the User unless otherwise proven to be a hacking or address forgery.
24.19 The User and/or Agent of the User acknowledge that their account may be monitored from time to time to determine whether this policy is being followed.
24.20 Pursuant to and in conjunction with Clause 25.19 above, the Service Provider and Gopha Pty Ltd provide that they will respect the privacy of all Users.
24.21 The Service Provider and/or Gopha Pty Ltd may suspend or terminate a Users account and/or notify the relevant authorities if it is believed that the use of the Service may break the law.
24.22 If the User and/or Agent of the User has not complied with this policy, the Service Provider and/or Gopha Pty Ltd may:
- Send an email warning; or
- Suspend access to the Service; or
- Terminate the account without notice; and/or
- Provide such information as necessary to the relevant authorities.
25. Advertising
25.1 For all intents and purposes, Gopha Pty Ltd allows the Service Provider and only the Service Provider the right to advertise on the server.
26. General
26.1 Any notice given under this Agreement must be in writing, addressed to the other party’s contact persons as notified by the other party.
26.2 This Agreement does not create a relationship of employment, agency or partnership between the parties.
26.3 The Service Provider and/or Gopha Pty Ltd may subcontract their obligations under this Agreement.
26.4 The failure of a party at any time to insist on performance by the other party of an obligation under this Agreement is not a waiver of any of its rights.
26.5 If part or all of any of the provisions of this Agreement is illegal or unenforceable, it will be severed from this Agreement and will not affect the continued operation of the remaining provisions.
26.6 The Service Provider and/or Gopha Pty Ltd are not responsible for the content of traffic.
26.7 The User and/or Agent of the User accept that:
- The Service Provider and/or Gopha Pty Ltd exercise no supervision or control whatsoever over the content of the information passing through the Service Provider and/or Gopha Pty Ltd’s network;
- The Service Provider and/or Gopha Pty Ltd accept no responsibility for the consequences of unauthorised breach of the Service Provider and/or Gopha Pty Ltd’s system security including but not limited to hacking or denial of service attacks.
26.8 The User is responsible for the use of the Users account, whether that use is by them or an Agent of the User.
26.9 If the User and/or Agent of the User permits others to use the Service, the User and/or Agent of the User is responsible for making that User aware of this policy and ensuring their compliance with this policy.
26.10 The User and/or Agent of the User agrees as an essential term of this agreement to act in good faith and honestly and in furtherance of the commercial efficacy intended by these Terms and Conditions.
26.11 The invalidity or unenforceability of any provision shall not affect any other part of these Terms and Conditions.
26.12 The relevant parties acknowledge that the Contra-proferentem rule is abrogated in this Agreement in its entirety.