This
Master Services Agreement (the "Agreement") between re_fresh Pty Ltd ABN 62 101
951 482 ("re_fresh") and the customer is made effective
on the Customer’s acceptance of the TERMS AND CONDITIONS
by clicking “Yes” to the”Accept Terms and Conditions” on
the Order Form submitted by Customer and accepted by re_fresh.
1. Overview
This Agreement states the terms and conditions by which
re_fresh will deliver and Customer will receive any or all of
the services provided by re_fresh, including bandwidth, managed
services, professional/support services and content delivery.
Each Order Form submitted, accepted and executed by both parties
is hereby incorporated by reference herein. This Agreement is
intended to cover any and all Services ordered by Customer and
provided by re_fresh. Capitalised terms shall have the meanings
assigned to them herein or as defined in Section 10.
2. Delivery
Of Services & Terms
2.1 Delivery of Services
By submitting an Order Form(s), Customer agrees to take and pay
for the Service(s) during the Initial Term and for any Renewal
Term.
2.2 Term
(a) Term Commencement. The term for each Service will commence
on the Service Commencement Date.
(b) Renewal Term(s). Upon expiration of the Initial Term, the
term shall be extended automatically for a period of one (1)
month ("Renewal Term"), unless and until either party
gives the other no less than thirty (30) days' written notice
of a termination. The termination of any Service will not affect
Customer's obligations to pay for other Service(s).
3. Fees And Payment Terms
3.1 Fees and Expenses
Customer will pay all fees due according to the prices and terms
listed in the Order Form(s) and all other fees incurred by Customer
related to reinstatement of service fees and fees for switching
or upgrading services, all in accordance with then current re_fresh
prices and policies.
3.2 Payment Terms
On the Service Commencement Date for each Service, Customer will
be billed (the "Initial Bill") an amount equal to (i)
all non-recurring charges indicated in the Order Form(s) and (ii)
the monthly recurring charges for the first month of the term.
Subsequent monthly billing will occur on the anniversary day of
each calendar Period of the term. The periodical recurring charges
for all Periods will be billed (the "Recurring Bill")
in advance of the provision of Services. All other charges for
Services received and expenses incurred for Supplemental during
a Period (e.g., bandwidth usage fees) will either be billed immediately
or at the end of the Period in which the Services were provided.
Payment for all fees is due upon receipt of each re_fresh invoice.
All payments will be made in Australian Dollars. Notwithstanding
anything to the contrary in this Agreement, re_fresh expressly
reserves the right to alter, change or amend its billing practices
in its sole discretion, including, but not limited to, the date
on which such billing will occur and the types of charges that
will be included in such bills.
3.3 Overdue accounts
Any payment not received by the due date will result in suspension
of service without further notice
3.4 Late Payments
Any payment not received within fifteen (15) days of the invoice
date of the Initial Bill and thirty (30) days of the invoice
date of a Recurring Bill (respectively, a "Payment Default")
will accrue interest at a rate of one and one-half percent (1-1/2%)
per month, or the highest rate allowed by applicable law, whichever
is lower. Customer also shall pay to re_fresh all expenses incurred by
re_fresh in exercising any of its rights under this Agreement or applicable
law with respect to a Payment Default or other breach by Customer, including,
but not limited to, reasonable attorneys' fees and the fees of any collection
agency retained by re_fresh.
3.5 Taxes
Customer will be responsible for and will pay in full, all taxes
and similar fees now in force or enacted in the future imposed
on the transaction and/or the delivery of Services.
3.6 You must pay all amounts
billed in accordance with your billing option. No credit terms
are given to credit card accounts. Upon registration of a credit
card account, you give us authorisation to debit your credit card
for all charges.
3.7 You consent to us 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 us of an application
for credit (whether commercial or personal) or for the purpose
of the collection of payments which are overdue.
4. Intellectual Property Ownership
This Agreement does not transfer from re_fresh to Customer
any re_fresh Technology, and all right, title and interest in
and to re_fresh Technology will remain solely with re_fresh. This
Agreement does not transfer from Customer to re_fresh any Customer
Technology, and all right, title and interest in and to Customer
Technology will remain solely with Customer. re_fresh and Customer
each agree that it will not, directly or indirectly, reverse engineer,
decompile, disassemble or otherwise attempt to derive source code
or other trade secrets from the other party and/or its third party
vendors.
5. Limited Warranties
5.1 Limitation
Each of the guarantees in the Order Form(s) is null and void if
Customer fails to follow re_fresh's Rules and Regulations and
other policies or otherwise breaches the Agreement in any respect.
5.2 No Other Warranty
re_fresh does not monitor or exercise control over the content
of the information transmitted through its facilities. Use of
the services or any information that may be obtained therefore is at customer's
own risk. The services are provided on an "as
is" basis, and customer's use of the services is at its
own risk. Except as provided in the order form(s), re_fresh does
not make, and hereby disclaims, any and all other express and/or
implied warranties, including, but not limited to, warranties
of merchantability, fitness for a particular purpose, noninfringement
and title, and any warranties arising from a course of dealing,
usage, or trade practice. re_fresh does not warrant that the
services will be uninterrupted, error-free, or completely secure.
5.3 Disclaimer of Actions Caused
by and/or Under the Control of Third Parties
re_fresh Does not and cannot control the flow of information to
or from re_fresh's network and other portions of the internet.
Such flow depends in large part on the performance of internet
services provided or controlled by third parties. At times, actions
or inactions of such third parties can impair or disrupt customer's
connections to the internet (or portions thereof). re_fresh cannot
guarantee that such events will not occur. Accordingly re_fresh
disclaims any and all liability resulting from or related to such
events.
6. Customer Obligations
6.1 Warranties of Customer
(a) General. Customer represents and warrants that (i) Customer
is at least eighteen (18) years of age; (ii) Customer possesses
the legal right and ability to enter into this Agreement, and
(iii) the performance of its obligations and use of the Services
(by Customer, its customers and users) will not violate any applicable
laws, regulations or the Rules and Regulations or cause a breach
of any agreements with any third parties or unreasonably interfere
with other re_fresh customers' use of re_fresh services. Customer
assumes all risks related to processing of transactions related
to electronic commerce.
(b) Breach of Warranties. In the event of any breach of any of
the foregoing warranties, in addition to any other remedies available
at law or in equity, re_fresh will have the right, in its sole
discretion, to suspend or terminate immediately any Services.
6.2 Compliance with Law and
Rules and Regulations
Customer agrees that it will use the Service(s) only for lawful
purposes and in accordance with this Agreement. Customer will
comply at all times with all applicable laws and regulations and
the Rules and Regulations, as updated by re_fresh from time to
time. The Rules and Regulations are incorporated herein and made
a part hereof by this reference. re_fresh may change the Rules
and Regulations upon fifteen (15) days' notice to Customer, which
notice may be provided by posting such new Rules and Regulations
at the re_fresh Site http:/www.re-fresh.ws/webhosting_aup.html.
Customer may request a current copy of the Rules and Regulations
by sending or faxing a request to re_fresh. Customer agrees that
it has received, read and understands the current version of the
Rules and Regulations.
6.3 Third Party Rights
Customer shall not (i) remove, modify or obscure any copyright,
trademark or other proprietary rights notices that appear on any
Third Party Product (as defined in Section 7.4) or that appear
during use of any Third Party Product; or (ii) reverse engineer,
decompile, or disassemble any Third Party Product, except and
only to the extent that such activity is expressly permitted by
applicable law notwithstanding this limitation.
7. Limitations Of Liability
7.1 Delays and Interruptions
re_fresh shall not be liable for any loss of data resulting from
delays, corruption of data, nondeliveries, misdeliveries or service
interruptions. Customer shall be solely responsible for the selection,
use and suitability of the services, and re_fresh shall have no
liability therefore. Except to the extent of re_fresh's gross
negligence or willful misconduct, neither re_fresh nor its network
services supplier will be liable for unauthorised access to re_fresh's
or customer's transmission facilities or premise equipment or
for unauthorised access to or alteration, theft or destruction
of customer's data files, programs, procedures or information
through accident, fraudulent means or devices, or any other method,
regardless of whether such damage occurs as a result of re_fresh's
or its network service supplier's negligence.
7.2 Consequential Damages
Except for the parties' indemnity obligations in section 8, in
no event will either party be liable or responsible to the other
for any type of incidental, punitive, indirect or consequential
damages, including, but not limited to, lost revenue, lost profits,
replacement goods, loss of technology, rights or services, loss
of data, or interruption or loss of use of service or equipment,
even if advised of the possibility of such damages, whether arising
under theory of contract, tort (including negligence), product
liability, strict liability or otherwise.
7.3 Notwithstanding anything
else to the contrary contained in this Agreement, re_fresh's maximum
aggregate liability to Customer for any claim related to, or in
connection with, this Agreement, whether in contract, tort or
otherwise, shall be limited to the total amount of fees actually
paid by Customer to re_fresh for the prior three (3) months.
7.4 re_fresh
may provide Customer access to other third party software and/or
services ("Third
Party Products") through reseller relationships re_fresh
has established with certain commercial vendors.. Unless otherwise
notified, Customer understands that product support for Third
Party Products is provided by re_fresh and not by the Third Party
Vendor. Neither re_fresh nor any Third Party Vendor makes any
representations or warranties, express or implied, regarding
any Third Party Products.
Customer expressly acknowledges
and agrees that use of third party products is at customer's
sole risk and such third party products are provided "as is" and
without representation or warranty of any kind from re_fresh
or any third party vendor, including without limitation, any
implied warranty of merchantability, fitness for a particular
purpose, lack of viruses, accuracy or completeness of responses
or results, correspondence to description, or non-infringement
of third party rights. To the maximum extent permitted by applicable
law, neither re_fresh nor any third party vendor will be legally
responsible for any damages, whether direct, indirect, or consequential,
arising from the use or inability to use any third party product.
Customer agrees to observe the terms of any license and/or
applicable end user subscriber agreement for third party products
and that customer shall be fully liable to third party vendors
and re_fresh with respect to any improper use of such third
party products or violation of license agreements with them
and/or applicable end user subscriber agreements.
8. Indemnification
Each party agrees to indemnify and hold the other harmless
against any losses, costs, expenses (including, but not limited
to, reasonable attorneys' fees), claims, damages, liabilities,
penalties, actions, proceedings or judgments (collectively, "Losses")
resulting from any claim, suit, action, or proceeding brought
by any third party against the other or its affiliates related
to or arising out of (i) any infringement or misappropriation
or alleged infringement or misappropriation of any copyright,
trade secret, patent, trademark, or other proprietary right related
to any hardware or software utilized in connection with any of
the Services (but excluding any infringement contributorily caused
by the other party) and (ii) any violation of or failure to comply
with the Rules and Regulations. Customer further agrees to indemnify
re_fresh and its affiliates against any Losses which arise out
of, or relate to any content provided by Customer or the customers/clients
of Customer, and Customer will reimburse re_fresh and its affiliates
for all legal expenses, including reasonable attorneys' fees,
incurred by re_fresh and its affiliates in connection with any
such Losses.
9. Termination
9.1 Termination Without Cause During
Renewal Term
This Agreement may be terminated by either party at any time during
any Renewal Term for any or no reason upon either party giving
to the other no less than thirty (30) days' prior written notice
of termination. No matter which party terminates the Agreement
pursuant to this Section 9.1, any and all payment obligations
of Customer under this Agreement for Service(s) provided through
the date of termination will immediately become due, and Customer
shall be required to prepay for any portion of the Services that
have not been paid for and are to be rendered during such thirty
(30) day period.
- (a) Web Hosting Accounts paid for on a Yearly
basis are cancellable; however no refunds for any remainder
of the current payment term shall be issued. The Yearly Payment
Plans are a discounted service we choose to provide to our customers
in exchange for the elimination of monthly billing procedures.
- (b) Yearly Payment Plan Accounts must be
cancelled within 30 (thirty) days of current term expiration
by notifying us by written notice. (i.e. if your bill is due
on July 10th, you must cancel by June 10th)
- (c) Any account not cancelled in this manner
will be subject to one additional month's Web Hosting fees at
the applicable Web Hosting Plan rate.
9.2 Termination For Cause
In addition to any other rights it may have under this Agreement
or applicable law, re_fresh may immediately terminate this Agreement
or suspend service, effective without notice, in the event of
(i) a Payment Default, or (ii) Customer's breach or failure to
comply with any other obligation of Customer under this Agreement
including, but not limited to, its failure to comply with any
of the terms of the Rules and Regulations or other policies of
re_fresh. Customer may terminate this Agreement if re_fresh breaches
any material term or condition of this Agreement and fails to
cure such breach within ten (10) days after receipt of written
notice of same. If this Agreement is terminated by re_fresh under
this Section 9.2, all remaining monthly recurring and other charges
specified on the applicable Order Form(s) for the balance of the
then current term shall immediately become due and payable. In
addition to the foregoing, re_fresh reserves the right to prohibit
any conduct or to remove any materials or content in violation
of the Rules and Regulations or which re_fresh believes in its
sole discretion to be illegal or potentially harmful to others
or may expose re_fresh to harm or liability.
9.3 No Liability for Termination
Neither party will be liable to the other for any termination
or expiration of any Service or this Agreement in accordance with
its terms.
9.4 Survival
The following provisions will survive any expiration or termination
of the Agreement: Sections 3, 4, 5, 7, 8, 9, 10 and 11.
9.5 IP Addresses
Upon expiration, cancellation or termination of this Agreement,
Customer shall relinquish any Internet protocol ("IP")
numbers, addresses or address blocks assigned to Customer by
re_fresh or its network services supplier (but not the URL or
top level domain connected therewith). re_fresh reserves, in
its sole discretion, the right to change or remove any and all
such IP numbers, addresses or address blocks.
10. Definitions
- (a) "Customer Technology" means
Customer's proprietary technology, including Customer's
Internet operations design, content, software tools, hardware
designs, algorithms, software (in source and object forms),
user interface designs, architecture, class libraries,
objects and documentation (both printed and electronic),
know-how, trade secrets and any related intellectual property
rights throughout the world (whether owned by Customer
or licensed to Customer from a third party) and also including
any derivatives, improvements, enhancements or extensions
of Customer Technology conceived, reduced to practice,
or developed during the term of this Agreement by Customer.
- (b) "Initial Term" means
the minimum term for which re_fresh will provide the
Service(s) to Customer, as indicated on the Order Form(s).
- (c) "Period" means
the Billing Period specified on the Order Form(s).
- (d) "re_fresh Technology" means
re_fresh's proprietary technology, including re_fresh
Services, software tools, hardware designs, algorithms,
software (in source and object forms), user interface designs,
architecture, class libraries, objects and documentation
(both printed and electronic), network designs, know-how,
trade secrets and any related intellectual property rights
throughout the world (whether owned by re_fresh or licensed
to re_fresh from a third party) and also including any
derivatives, improvements, enhancements or extensions of
re_fresh Technology conceived, reduced to practice, or
developed during the term of this Agreement by either party
that are not uniquely applicable to Customer or that have
general applicability in the art.
- (e) "Renewal Term" means
any service term following the Initial Term, as specified
in Section 2.2.
- (f) "Rules and Regulations" means
the re_fresh general rules and regulations governing
Customer's use of Services, including, but not limited
to, online conduct and re_fresh's Acceptable Use Policy,
which can be found at http://www.re-fresh.ws/webhosting_aup.html.
- (g) "Service(s)" means
the specific service(s) provided by re_fresh pursuant
to this Agreement.
- (h) "Service Commencement Date" means
the date re_fresh will begin providing the Service(s)
to Customer as indicated on the Order Form(s).
11. Use Of Customers Name For Marketing
and Promotion
With express permission from the Customer, during the
term of this Agreement re_fresh may publicly refer to Customer,
orally and in writing, as a Customer of re_fresh in testimonials,
client lists and in other promotional materials and communications,
including, but not limited to, press releases, brochures, reports,
letters and electronic media such as e-mail or Web pages.
12. Miscellaneous Provisions
re_fresh shall not be deemed to be in default of any
provision of this Agreement or be liable for any delay, failure
of performance or interruption of the provision of Services to
Customer resulting, directly or indirectly, from any unforeseen
or force majeure event. re_fresh and Customer agree that, except
as otherwise expressly provided in this Agreement, the Order Form(s)
or the terms and conditions of use of any third party software
products, there shall be no third party beneficiaries to this
Agreement, including but not limited to the insurance providers
for either party or the customers of Customer.
This Agreement Is Made Under And Will Be Governed
By And Construed In Accordance With The Laws Of The State Of Victoria
Australia And Specifically Excluding From Application To This
Agreement That Law Known As The United Nations Convention On The
International Sale Of Goods. Exclusive Venue For All Disputes
Arising Out Of Or Relating To This Agreement Shall Be The State
And Federal Courts In Victoria Australia, And Each Party Irrevocably
Consents To Such Personal Jurisdictions And Waives All Objections
Thereto.
In the event any provision
of this Agreement is held by a tribunal of competent jurisdiction
to be contrary to the law, the remaining provisions of this
Agreement will remain in full force and effect. The waiver
of any breach or default of this Agreement will not constitute
a waiver of any subsequent breach or default, and will not
act to amend or negate the rights of the waiving party. Customer
may not sell, assign or transfer its rights or delegate its
duties under this Agreement either in whole or in part without
the prior written consent of re_fresh, and any attempted assignment
or delegation without such consent will be void. re_fresh may
assign this Agreement in whole or part. re_fresh also may delegate
the performance of certain Services to third parties, including
re_fresh's wholly owned subsidiaries. All notices, demands,
requests or other communications required or permitted under
this Agreement shall be deemed given when delivered personally,
sent by facsimile upon confirmation, sent and received by return
receipt email, or upon receipt of delivery of overnight mail.
re_fresh and Customer are independent contractors and this
Agreement will not establish any relationship of partnership,
joint venture, employment, franchise or agency between re_fresh
and Customer. Neither re_fresh nor Customer will have the power
to bind the other or incur obligations on the other's behalf
without the other's prior written consent, except as otherwise
expressly provided herein. This Agreement, including all documents
incorporated herein by reference, constitutes the complete
and exclusive agreement between the parties with respect to
the subject matter hereof, and supersedes and replaces any
and all prior or contemporaneous discussions, negotiations,
understandings and agreements, written and oral, regarding
such subject matter. This Agreement may be executed in one
or more counterparts, each of which will be deemed an original,
but all of which together shall constitute one and the same
instrument. Once accepted, any reproduction of this Agreement
made by reliable means (e.g., photocopy, facsimile) is considered
an original. Except as expressly provided in this Agreement,
this Agreement may be changed only by a written document signed
by authorised representatives of re_fresh and Customer in accordance
with this Section 11.
Authorised representatives
of Customer and re_fresh have read the foregoing and all
documents incorporated therein and, by executing the Order
Form(s), agree and accept that it is made effective on the
Customer’s acceptance of
the TERMS AND CONDITIONS by clicking “Yes” the the”Accept
Terms and Conditions” on the Order Form submitted by Customer
and accepted by re_fresh.
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