Terms & conditions

Terms and Conditions

and

Hosting Terms and Conditions

Applicable to Applications for Hosting Services or other services

provided by BIZ-LYNX Technology Pty Ltd (“BIZ-LYNX”)

 

 

 

The services and fees

 

1.1       In making and signing the associated BIZ-LYNX Application for Hosting Services or Services Agreement you acknowledge that these terms and conditions set out below are referred to as the “Terms and Conditions” in and form part of your Application which upon acceptance by BIZ-LYNX will form a binding contract between you, the customer named in the Application (the “Customer”) and BIZ-LYNX and the agreement on which BIZ-LYNX will provide you with services specified in your Application and as further described and qualified below (the “services”) in return for payment from you as set out in the Application and below.

 

1.2       Subject to the other terms of this agreement, in providing the services, BIZ-LYNX will use reasonable endeavours to administer, ensure the availability of and maintain the security, confidentiality and safety of computer hardware, data and systems associated with the provision of services to the Customer and in good working order but providing it has used such reasonable endeavours, the liability of BIZ-LYNX is limited to the replacement value of any computer hardware and BIZ-LYNX shall not be liable to the Customer for any damages, Customer down time or associated losses provided BIZ-LYNX uses reasonable endeavours to replace the hardware and associated systems without undue delay in the event of fire, theft, natural disaster, storm, war, terrorist, malicious or external attack to BIZ-LYNX servers or operating systems or other cessation of the services due to cause beyond BIZ-LYNX reasonable control.

 

1.3       The services do not include technical support except as provided for and set out in the in your Application.  BIZ-LYNX technical support obligation under this agreement does not include Application specific issues unless specifically included in the Application.  Unless otherwise agreed, any technical support provided shall be charged and paid for by the Customer at the rate of AUD $180.00 per hour plus GST (the “hourly technical support rate”) unless BIZ-LYNX has given a quote for technical support work to be done or the Customer has entered into a separate technical support agreement with BIZ-LYNX.  The services do not include web site design, additions or changes to the Customer’s virtual site or server’s operation and physical functioning or any other work which is not specifically specified in the Application.

 

1.4       The Customer’s bandwidth and disk usage shall not exceed the number of bytes set out in the Application but if it does, excess will be paid at the excess rate set out in the Application.  Excess amounts are rounded up to the nearest megabyte amount for calculation of the amount to be paid for.

 

1.5       By 30 days written notice to the Customer, BIZ-LYNX may specify and require the Customer to pay an increased amount of any fee or cost set out in the Application or in these Terms and Conditions where such increase is relates to an increase in costs of software, hardware, third party equipment services, any upstream internet provider, carrier, data centre, electricity, water or licensing which BIZ-LYNX pays subsequent to formation of this contract and where such increase is calculated using the same profit margin employed before the contract was entered into.

 

1.6       Upon 60 days notice from BIZ-LYNX given in the month before 1 July of every year and before the contract anniversary, the price for the services specified in the Application and in these Terms and Conditions may be decreased or increased by the greatest of 15% or the nearest Consumer Price Index then available for the last 12 months.

1.7       The Customer appoints BIZ-LYNX to be the Customer’s agent to do all things (including executing all documents) necessary or desirable to enable BIZ-LYNX to provide the services, including without limit the exercise of any Customer authorisation necessary to port, transfer, cancel or otherwise deal with a telephone number or a service supplied in whole or part by another supplier. In acting as your agent, we will act in a manner as we reasonably consider to be in the Customer’s interests.

Service Availability & limitation on transfer of rights

2.1       The Customer agrees that BIZ-LYNX may suspend its provision of services at any time for breach of the terms of this agreement and without notice.

2.2 The Customer will not sell, transfer, licence, assign or otherwise create any legal or equitable rights or interests in any third party whatsoever, in relation to the services, Customer’s rights under this agreement or the associated hardware or software being administered.

2.3 Any breach of clause 2.2 by a Customer or others will constitute a material breach and repudiation of this agreement by the Customer. Upon such breach, BIZ-LYNX shall have the right to terminate the services and this agreement immediately without further notice to the Customer. Upon such an event, all monies owed by the Customer to BIZ-LYNX shall immediately become due and owing.

Hosted data content, ownership and associated responsibilities

3.1       The Customer assumes sole responsibility for obtaining any and all necessary licenses, consents, authorisations and approvals to enable it to lawfully use any and all intellectual property, name and other rights through the services, including without limitation, clearance and/or consents in respect of any proposed domain name or other intellectual property, name or other rights being used by the Customer.

3.2       All information and data stored on any server by BIZ-LYNX for the Customer or by the Customer or its agents is the property of the Customer.  BIZ-LYNX claims no ownership and assumes no responsibility whatsoever over, in or in respect of, any Customer information or data, except as expressly agreed herein.

3.3       The Customer agrees that BIZ-LYNX may access Customer information and data at any time and for any reason.

3.4       If BIZ-LYNX assigns the Customer an internet protocol address for the Customer’s use, the right to use the internet protocol address shall belong solely to BIZ-LYNX.  The Customer shall have no right to use the internet protocol address except as permitted by BIZ-LYNX in provision of the services.  BIZ-LYNX shall maintain and control ownership of all internet protocol numbers and addresses that may be assigned to the Customer by BIZ-LYNX.  BIZ-LYNX reserves the right to change or remove any and all such internet protocol numbers and addresses, in its sole and absolute discretion or as required by any wholesale provider.  BIZ-LYNX allocation of IP addresses is limited by the policies its wholesale provider, upstream suppliers and of others involved.

3.5       The Customer agrees not to use the services for pornography, breach of any copyright, any unlawful or illegal purpose or activity which BIZ-LYNX may disclose to any law enforcement agency along with associated materials, Customer details including assigned IP numbers, account history and usage upon written request of such agency and without notification to the Customer.  A Customer breach of this and the following sub paragraph is deemed a material breach entitling BIZ-LYNX to immediately terminate this agreement.

3.6       The Customer may not use or permit any person to use the services, any BIZ-LYNX network, system or hardware, to send unsolicited commercial email, spam, for address harvesting or to otherwise breach or contravene any provision of the Spam Act 2003 (WA), Broadcasting Services Act 1992, Copyright Act 1968, Interactive Gambling Act 2001, Privacy Act 1988, Racial Discrimination Act 1975, Telecommunications Act 1997 or other law of Australia.  The Customer may not host or permit hosting of sites or information that is advertised by unsolicited commercial email or spam.  The Customer agrees not to violate or attempt to violate or breach the security of any BIZ-LYNX system or network.  The Customer acknowledges that any such violation or breach may result in civil or criminal liability and that such violations include without limitation accessing data not intended for use by the Customer, logging into or accessing an account or server which the Customer is not authorised to log into or access, attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization, attempting to interfere with service to any user, host or network, including, without limitation, via means of overloading, flooding, mail bombing or crashing, forging any TCP/IP packet header or any part of the header information in any email or newsgroup posting or taking any action in order to obtain services to which the Customer is not entitled.  The Customer shall pay BIZ-LYNX for investigating and rectifying any matter or issue associated with a Customer’s breach of this clause and at the hourly technical support rate.

 

3.7       The Customer agrees to respect, observe and be bound by the terms, conditions and policies imposed on BIZ-LYNX by Primus Telecommunications Pty Ltd, Vocus Pty Ltd, AAPT Limited, Telstra Corporation Limited, NEXTDC Limited, and or any other wholesale provider, carrier supplier or other upstream entity, as if such terms, conditions and policies were incorporated into this agreement but excluding such terms which are inconsistent with the fundamental terms of this agreement and to the intent that the Customer is bound by the other obligations imposed on BIZ-LYNX.  A Customer breach or cause of BIZ-LYNX breach of any term, condition or policy of any up line entity including those set out in this clause 3.7 shall constitute a material breach of this agreement.

 

3.8       The Customer must comply with the terms and conditions imposed by any third party or software licensor incidental to or associated with the services and or equipment provided to the Customer and any breach of such terms and conditions shall constitute a breach of this contract.  In the event of such breach, without limiting the extent of the Customer’s liability, the Customer shall be liable for and pay BIZ-LYNX for all work done and time spent at the rate of AUD $180.00 per hour plus GST (the “hourly service rate”) together with all costs, fees, fines and disbursements incurred incidental to or associated with any third party or software licensor investigation or audit.

 

3.9       The Customer shall pay BIZ-LYNX for all work done and time spent at the hourly service rate together with all costs, fees and disbursements incurred by BIZ-LYNX incidental to or associated with the Customer’s breach of law, mandatory data breach reporting, the requirement of any third party, any government or government related organisation or agency, any professional regulatory body, court or tribunal, the police or other law enforcement agency including obtaining approvals and compliance with any investigation or security audit.

 

3.10     The Customer shall keep and maintain all hardware and equipment received by the Customer incidental to or associated with this contract, whether from BIZ-LYNX or a third party, in good working order and condition.  The Customer shall be responsible for and pay BIZ-LYNX the full replacement cost of any such hardware or other equipment which is damaged, stops working or destroyed.

Limits of Liability

4.1 To the maximum extent permissible at law any potential statutory liability of BIZ-LYNX is excluded and shall not apply and the Customer will not, under any circumstances, seek to hold BIZ-LYNX responsible or liable for any loss or damage whatsoever either under this agreement or in relation to the provision of the services or equipment, including but not limited to:

(a) loss of profits arising out of, or in connection with, this agreement;

(b) use, misuse, suspension and or loss of any domain registration;

(c) interruption to the business and operations of the Customer;

(d) access delays or interruptions to any service including email, websites and domains;

(e) non-delivery, mis-delivery, corruption, loss, destruction, encryption or modification of data and or information;

(f) events beyond the control of BIZ-LYNX;

(g) processing of an Application for domain name registration; or

(h) costs, charges, expenses and or damages associated with any toll fraud, hacking into or any other unlawful or fraudulent use of the services, the Customer’s systems or goods  and any incidental or associated hardware, software, equipment or goods whether belonging to BIZ-LYNX or the Customer; and

(i) where any costs, charges, expenses and or damages referred to in the preceding subclause 4.1(h) are borne, payable or paid by BIZ-LYNX, those costs, charges, expenses and or damages shall be paid by the Customer to BIZ-LYNX.

4.2       BIZ-LYNX shall not, under any circumstances, be liable or responsible for any acts, omissions or errors, whether negligent or otherwise by a registry administrator or any other third party arising out of or related to, any domain name administration, Application or renewal, including the receipt of, or failure to receive, a domain name registration by the Customer or any third party.

4.3       In the event, BIZ-LYNX is held liable for any loss or damage whatsoever and howsoever arising under this agreement, the parties agree that, as a precise pre-estimate of damage cannot be properly ascertained, for the purpose of determining liquidated damages, the maximum aggregate liability of BIZ-LYNX to the Customer shall not exceed the total amount paid by the Customer to BIZ-LYNX for hosting services (maximum 1 months or minimum permissible by law) and any hardware replacement value (if hardware has been supplied by the Customer and has been damaged or destroyed).  Liability of BIZ-LYNX is limited to such liquidated damages.  In any event BIZ-LYNX liability for damages relating to or associated with the services shall not exceed and is limited to the supplying of the services again or the cost of supplying the services again if BIZ-LYNX so nominates a preference to pay such cost.

Indemnity

5.1       The Customer agrees to indemnify and hold harmless BIZ-LYNX and its employees, contractors, agents and directors in full against any and all liabilities, claims, losses, damages, penalties, actions, judgments, suits, costs or expenses of any kind arising under this agreement, including from the use by the Customer of any intellectual property rights of any third party and the registration or use of any business and domain names by the Customer.

Termination

6.1       BIZ-LYNX may terminate this contract and may suspend or terminate provision of and access to the services without notice to the Customer if the Customer has not paid an amount due to BIZ-LYNX, is in breach of this agreement, is utilising the services for any unlawful or illegal purpose or on the further grounds specified in clause 6.2.  BIZ-LYNX will not be responsible for any loss or damage to the Customer or any other party as a result of such suspension or termination.

6.2       The further grounds referred to in clause 6.1 are: the Customer is responsible for the transmission of a computer virus, malware, spyware, ransomware, trojan, phishing or any other data, code, packet or transmission with malicious intent; BIZ-LYNX reasonably suspects fraud in the use of the services; the Customer dies or becomes insolvent or bankrupt or has a receiver, manager, administrator or liquidator appointed over the Customer’s estate, and we have a reasonable belief that payment for our services is unlikely to be paid or received; the Customer has given to us material information which we reasonably believe is not true; the Customer permanently vacates a site to which a service is supplied, without giving notice to us; we have reasonable grounds for believing that, by reason of anything relating to the services, a threat or risk exists to us, our system or any third party system; we reasonably suspect that the Customer Service is being used so as to expose us to the risk of legal action, or in breach of any Law.  In the event of termination or suspension for one or more of these further grounds, BIZ-LYNX will give the Customer 14 days notice unless that is impossible, unlawful in the circumstances or in BIZ-LYNX’s reasonable opinion there are urgent or grave circumstances which make it inappropriate.

6.3       BIZ-LYNX may request the Customer to rectify any breach of this agreement. In addition to the other rights in this agreement, if the Customer fails to rectify any such breach within 7 days from the issuing of such a request by BIZ-LYNX, BIZ-LYNX is entitled to treat the Customer as having committed a material breach and repudiated his, her or its obligations under this agreement.  BIZ-LYNX may then treat such repudiation as termination of this agreement without giving further notice. Upon such or any termination of this agreement, all monies owing by the Customer to BIZ-LYNX will immediately become due and payable together with the cost of decommissioning the services and any associated or Customer equipment together with the costs of recovering any monies owed by the Customer to BIZ-LYNX.

6.4       In the event of BIZ-LYNX suspending or terminating provision of services, the Customer agrees that BIZ-LYNX shall be entitled to:

(a) disable or block the Customer website;

(b) remove all data and or information located on it;

(c) disable or block any access to email hosted by BIZ-LYNX or its providers;

(d) disable or block any access to data, software and systems;

(e) disable or block any access to internet;

(f) disable or block any network access; and

(g) disable or block any phone system, voice communications services, SIP trunk or other communications network, mobile phone network or telecommunications device.

6.5       BIZ-LYNX shall retain the sole discretion as to whether any data and/or information removed is:

(a) deleted from existence in its entirety after 45 days and destroyed; or

(b) held for such longer period to enable the Customer, at its expense and subject to payment of all monies owing to BIZ-LYNX, to collect the data and or information.

6.6       In the event of a termination or suspension, BIZ-LYNX may post such notice in respect of the non-availability of the Customer website as it deems fit.

Decommissioning costs

7.1A    Subject to clause 7.1B and irrespective of any reasons for termination of this contract and when BIZ-LYNX ceases to provide the services, the Customer shall be responsible for and pay BIZ-LYNX  for all work done and time spent at the hourly service rate together with all costs, fees, disbursements and charges incurred or payable by BIZ-LYNX, incidental to or associated with cessation of the services, including but not limited to decommissioning hardware, software, networks, removal of network configurations, security policies, internet protocol addresses and configurations, back up policies, websites, domains, equipment, third party associations and any hardware or equipment removal or transport, including such work, time spent, costs, fees, disbursements and charges related to, incidental to or associated with  restoring or putting anything back to the state it was in before this contract was entered into and handing over to or enabling a third party to provide services in substitution of the services.

7.1B    If the decommissioning previously referred to in clause 7.1A is required by the Customer to be done during hours between 5 pm and 8 pm on Monday to Friday or during the hours between 9am and 5pm on Saturday, the Customer shall pay BIZ-LYNX double the hourly service rate for such decommissioning work.  If such decommissioning work is required during the hours between 8pm and 9am on Monday to Friday, between 8pm Friday and 9am Saturday or during the hours between 5 pm Saturday and 9 am on Monday, the Customer shall pay BIZ-LYNX triple the hourly service rate for such decommissioning work.

7.2       The Customer shall pay BIZ-LYNX half of the BIZ-LYNX estimated costs of any decommissioning referred to in clause 7.1A and 7.1B upon receipt of such estimate and before commencement of any decommissioning work and the balance on completion of such decommissioning work.

7.3       The Customer must give BIZ-LYNX 90 days notice of any request to decommission the services and or to return hardware, software and or data.  The return of Customer hardware, software and or data shall only be required and occur during ordinary business hours and shall not include the set up and installation at any alternative site unless specifically agreed.

Payment and other obligations and rights

7.4       The Customer grants BIZ-LYNX a lien and charge over all the Customer’s hardware, software, equipment, data and property in the possession of BIZ-LYNX under this agreement in respect of all amounts owing to BIZ-LYNX under this agreement.  BIZ-LYNX shall have the right to retain possession of such property until all amounts owing under this agreement have been paid in full.  In the event of any amount owed by the Customer to BIZ-LYNX for more than 60 days, the Customer hereby authorises BIZ-LYNX to sell and BIZ-LYNX may sell such property and recover the amount owed from the proceeds of such sale.

7.5       The Customer shall pay BIZ-LYNX interest at the rate of 10% pa on all amounts owed to BIZ-LYNX and not duly and punctually paid in accordance with this agreement, compounded calendar monthly together with any bank dishonour fees, administration costs, debt collectors’, solicitors’ and any other costs, fees and charges associated with recovering any outstanding amount.

7.6       The Customer must:

(a)        take reasonable steps to prevent anyone using the services without the Customer’s authority and must not authorise or allow anyone to do an act that would breach this agreement;

(b)        not use the services or our associated system other than in accordance with this agreement or otherwise as authorised by us;

(c)        not use the services or our associated system fraudulently, or in the course of any fraud or any other unlawful activity;

(d)        not do or allow anything in relation to the services or our associated system which is contrary to any law, or which causes us to reasonably suspect that the Customer or another person are doing any of those things;

(e)        must not do or allow anything in relation to the services or our associated system which may expose BIZ-LYNX to the risk of legal action;

(f)         must comply with any reasonable directions from BIZ-LYNX;

(g)        provide to us timely and safe access to each site and all relevant equipment and any reasonable assistance and facilities that we may require for the purpose of inspection, maintenance, repair, or removal of equipment or services.

7.7       If the Customer chooses not to purchase or use equipment supplied by us, the Customer will ensure that all equipment meets the standards that are from time to time reasonably specified by us and that all equipment that the Customer owns or uses is in working order at all times.

7.8       The Customer must not resupply to another person the services except to the extent expressly permitted with our written consent.

7.9       The Customer must not permit another person to do anything that, if done by the Customer, would breach this agreement.

7.10     For the benefit of other suppliers as well as us, the Customer agrees in respect of each of the services, to comply with (and not to permit any other person who uses the services not to comply with) the following obligations:

(a)        not publish, copy or distribute material that is defamatory, offensive, abusive, obscene, menacing, threatening, harassing or illegal under any law at any place where transmissions are sent from, viewed or received;

(b)       not publish, copy or distribute material if there is no right to do so (for example, someone else’s copyrighted works or confidential information);

(c)        not do anything that may expose us or the Customer or any other supplier to civil or criminal liability;

(d)       not do anything that may damage, interfere with or make unsafe our system or any third party system;

(e)        obtain any necessary consents and provide safe and lawful access to us and other suppliers on any site;

(f)        where the Customer is reasonably capable of doing so without incurring any associated expenses, if BIZ-LYNX or any other supplier requires modifications to any equipment under the Customer control, to avoid danger or interference, to make those modifications;

(g)       not to use any equipment which does not meet any applicable standards; and

(h)       such other lawful requirements of BIZ-LYNX or ther suppliers as notified to the Customer by BIZ-LYNX.

7.11     The Customer must immediately report to BIZ-LYNX any faults which the Customer becomes aware of including in relation to the services, equipment or BIZ-LYNX operating systems.

Severance

8.1       To fullest extent possible, any term in, provision of, phrase, words or word in this agreement which is or are contrary to any law or have the effect of rendering void or voidable this agreement or any part thereof, shall be read and construed as if such term, provision, phrase, words or word is or are deleted from and not applicable to the intent that such remaining part or parts of this agreement will not be affected and shall remain enforceable and binding on the parties.

Entire Understanding

9.1       Subject to the terms of this agreement this document embodies the entire understanding and agreement between the parties to this agreement as to the subject matter of this document.  Subject to the terms of this agreement all previous negotiations, understandings, representations, warranties, memoranda or commitments in relation to, or in any way affecting, the subject matter of this document are merged in and superseded by this document and shall be of no force or effect whatever and no party to this agreement shall be liable to any other party to this agreement in respect of those matters.  No oral explanation or information provided by any party to this agreement to another shall affect the meaning or interpretation of this document or constitute any collateral agreement, warranty or understanding between any of the parties to this agreement.

Relevant jurisdiction

10.1     Any dispute between the parties to this agreement shall be determined                                                                                                                                                                                                                                                                                                                                                                           by and in any Court in Western Australia having jurisdiction.

Notices and Communications

11.1     Any notice, consent or other communication required or permitted by this agreement shall be in writing and shall be deemed sufficiently served:

(a)        if sent to the Customer by email to the Customer’s email address specified in the Application (and to which all statements, invoices and correspondence will be sent); or

(b) if sent by registered mail to the Customer’s registered business address; or

(c) if sent to the Customer by email to the Customer’s email address that is usually used for billing communications; or

(d)       if received by BIZ-LYNX by registered mail to Unit 10, 14 Merino Entrance Cockburn Central WA 6164.

Each party shall promptly notify any change of such details to the other.

Interpretation and Definitions

12.1     In this contract, save for where defined above or below, words shall carry the meaning ascribed to them in the Macquarie Dictionary and in respect of any word not so defined or relating to information technology, computers, computer networks or the internet, such word shall carry the meaning most commonly known and ascribed to such word.

12.2     “data centre” means the network of computer systems, data storage, communication and associated facilities maintained by NEXTDC Limited including the facility known as P1 at 101 Malaga Drive, Malaga, Western Australia or such other substitute facility used by BIZ-LYNX from time to time.