TERMS AND CONDITIONS OF ORDER
AGREEMENT
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| These are the terms and conditions upon which TPP
Internet Pty Ltd (the Company) will provide the Service to the Client.
Clients are required to acknowledge that they have read and understood
all articles in this document before service can be provided. |
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| 1 |
Definitions |
| 1.1 |
Acceptable Use Policy: A document defining the rules [if any] that
the Client is obliged to comply with when using the Service a copy of
which has been given to the Client. |
| 1.2 |
Agreement: Agreement between the Company and the Client regarding
the delivery of the Service. The Agreement consists of the Order
Agreement form, the Terms and Conditions, Acceptable Use Policy [if
any], the Privacy Policy [if any], and any other custom documents that
are drawn up to define Service to the Client by the Company. |
| 1.3 |
Commencement Date: The date specified by the Company as the day on
which the Service is first activated for the Client. |
| 1.4 |
Client: The individual or legal entity that has entered into an
Agreement with the Company, or the individual or legal entity that
makes use of the Service. |
| 1.5 |
Maintenance Times: The hours during which the computer systems of
the Company are not available due to the fact that technical
maintenance is being carried out. |
| 1.6 |
Minimum Period: The minimum period for which the Agreement is
entered into. The Minimum period is specified on the relevant Order
Agreement. |
| 1.7 |
Annual Fee: The Annual Fee paid by the Client for the use of the
Service. The fees are specified in the Order Agreement. |
| 1.8 |
Price Schedule: List of charges for any goods and services offered
by the Company including non standard add on services required to
support the Client. This schedule can be obtained on request. |
| 1.9 |
Privacy Policy: A document [if any] given to the Client outlining
the obligations of the Company to the Client in accordance with the
Commonwealth Privacy Act 1988. |
| 1.10 |
Service: The delivery of web hosting, email, domain registration,
licensed applications software, and website development services by
the Company for business use, as specified in the Order Agreement. |
| 1.11 |
Service Delivery: All work relating to establishing Client
specific services by the Company and is not limited to setting up of
equipment, networks, domains and websites. |
| 1.12 |
Service Description: Specification of products and services
delivered to the Client. |
| 1.13 |
Order Agreement: The form the Client uses to request the Company
for the provision of the Service which the Client obtains from the
Company or sales consultant representing the Company. |
| 1.14 |
Setup Fee: The one time fee charged to the Client for the delivery
of Service and/or additional services. The Setup Fee is specified in
the documents which make up the agreement at the date of signing the
Agreement. |
| 1.15 |
Terms & Conditions: A document specifying the reciprocal rights
and obligations between the Client and the Company regarding delivery
and use of the Service |
| 1.16 |
The Company: TPP Internet Pty Ltd [ABN 80 104 263 292] of Level 4, 1-3 Smail Street,
Broadway, Sydney, NSW 2007 Australia, email
sales@tppinternet.com |
| 1.17 |
Variable Fee: Fees which are not fixed and may be required to be
paid by the Client based on request of additional services and/or use
of services above normal specification of Service Description. |
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| 2 |
Subject of the Agreement |
| 2.1 |
The agreement sets out the reciprocal rights and obligations of
the Company and the Client in relation to the delivery of the Service
by the Company. |
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| 3 |
Realisation of Agreement |
| 3.1 |
The Client will supply the Company with all requested information
and details including a valid identification, a correct ABN number
and/or proof (in writing) of authorisation to enter into Agreement.
The Client guarantees that all presented information and details are
correct and complete. |
| 3.2 |
The Client can only request the Service by submitting an Order
Agreement. |
| 3.3 |
The Company reserves the right to refuse, cancel or reject any
order made by the Client without requiring to provide reason, but
notably under the following conditions: |
| 3.3.1 |
the Client does not comply with a request as intended in article
3.1 |
| 3.3.2 |
there exists reasonable doubt that the Client cannot or will not
comply with the obligations resulting from the Agreement including
those set out in the Acceptable Use Policy and Privacy Policy |
| 3.4 |
The Agreement is only realised when the Company has sent a
confirmation and acceptance to deliver service. |
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| 4 |
Obligations on the part of the Company |
| 4.1 |
The Company will make every effort to ensure that the Commencement
Date of the Service is within predefined or agreed target delivery
date. |
| 4.2 |
Outside of the Maintenance times the Company will make every
effort to ensure that the Service is available at all times. |
| 4.3 |
Given the technical structure of the Internet the Company cannot
guarantee a certain bandwidth between the Client's computer system
and any other computer system that is part of the Internet. |
| 4.4 |
The Company will make every effort to secure any Client data on
any computer systems of the Company so that it is protected from
unlawful use or distribution. In this regard, the Company accepts the
requirements of the Commonwealth Privacy Act. |
| 4.5 |
The Company will implement the appropriate technical and
organisational safety and security measures with a view to assuring an
appropriate level of security in providing the Service. The Client is
aware of the fact that the Company cannot in all fairness offer full
protection against any safety risks inherent in any device or server
connected to the Internet and that these risks are higher in the case
of shared virtual hosting servers. |
| 4.6 |
The Company reserves the right to introduce changes in the way the
Service is accessed or used which is designed to promote improved
security or use of the Service. In the event that the changes directly
affect the way in which the Client gains access to the Service, the
Company will ensure that the Client is notified sufficiently in
advance. |
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| 5 |
Obligations on the part of the Client and Use of the Service |
| 5.1 |
Unless determined otherwise in the agreement, the Client is
responsible for providing any other equipment, software and services
provided by third parties that are necessary for the Client to be able
to gain access to the Service, such as Internet Access and a computer
with up to date software. If requested to do so by the Client, the
Company will see to it that the Client is provided with information
regarding the various requirements. |
| 5.2 |
The Client undertakes only to use the Service in accordance with
the Acceptable Use Policy. In using the Service the Client undertakes
not to violate the rights of any third party, not to act indecently in
relation to any third party or in any way that is in conflict with
good morals or public order, and not to cause damage to any third
party. In particular the Client must undertake: |
| 5.2.1 |
To respect the intellectual property rights of third parties. |
| 5.2.2 |
Not to distribute data contrary to statutory regulations. |
| 5.2.3 |
Not to attempt to gain access to computer systems without being
authorised to do so. |
| 5.2.4 |
Not to alter, delete, render unusable or add data to data
belonging to a third party without the consent of the third party in
question. |
| 5.2.5 |
Not to spread computer viruses or any other computer programs or
data with a view to causing damage to computer programs or data
belonging to third parties. |
| 5.2.6 |
Not to use the Service in such a way as to obstruct the correct
functioning of the computer systems of the Company or to hinder other
users of the services provided by the Company in their use of the
services in question. |
| 5.2.7 |
Not to use the Service in such a way that IP data traffic is
obstructed as a result. |
| 5.3 |
Without thereby affecting any other rights to which it may be
entitled, the Company reserves the right to suspend the fulfilment of
its obligations in relation to the Client, among other things by
denying the Client access to the Service with immediate effect in the
event that the Client fails to act in accordance with the provisions
set out in article 5.2 and/or in the event that the Clients' sanctions
justify such a move. The Company can never be obliged to provide
compensation on account of the fact that it has suspended the
fulfilment of its obligations under the terms of the agreement. The
Client is to indemnify the Company from any claims made by third
parties as a result of the fact that the Client has failed to act in
accordance with the provisions set out in article 5.2. |
| 5.4 |
The Client is responsible for all the data contained within the
website. The Company assumes no liability for consequences resulting
from posting of unlawful content or data. |
| 5.5 |
Should it come to the knowledge of the Company that a publication
produced by the Client and published by the Client by means of the
Service is unmistakably unlawful, the Company is within its rights to
demand that the Client must remove the publication in question from
its website as soon as possible, and certainly within the immediate
twenty four (24) hour period. In the event that the Client fails to
comply with the said demand, the Company will remove the publication
from its systems itself or suspend service. The Company can never be
obliged to provide compensation on account of the fact that it has
removed an unlawful publication from its systems. |
| 5.6 |
In the event that the Client is relocating premises, the Client is
to notify the Company as soon as possible of the new address of the
Client. The Company will make every effort to ensure that its records
will be updated in accordance with this move. |
| 5.7 |
The Client agrees not to reproduce, duplicate, copy, sell, resell
or exploit for any commercial purposes, any portion of the Service.
The Client is not permitted to make the Service available to third
parties outside of the Client's organisation. |
| 5.8 |
The Client assumes responsibility for ensuring there is no excess
use of the Service such that it will degrade the performance of the
service for other Clients. Excessive use of limited resources such as,
web server CPU and bandwidth can result in temporary suspension of
service. The Company will make reasonable effort to inform the Client
of intent to suspend service in this instance so that the Client may
take necessary steps to improve the situation. However, the Company
reserves the right to intervene if necessary. |
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| 6 |
Domain Names and IP Addresses |
| 6.1 |
In the event that it has been agreed that the Company is to act on
the Client's behalf in applying for a domain name and/or IP
addresses, the provisions set out in this article apply. |
| 6.2 |
The application for and use of a domain name and/or IP addresses
are governed by the rules and procedures of the bodies in question,
which include but are not limited to the AFNIC, Network Solutions,
InterNIC, RIPE NCC, and auDA. The body in question will decide whether
or not the domain name and/or the IP addresses that have been applied
for is to be assigned. In applying for a domain name and/or IP
addresses on the Client's behalf the Company is simply acting as
an intermediary and cannot guarantee that the domain name and/or the
(class of) IP addresses that the Client wishes to apply for will
actually be assigned. |
| 6.3 |
Domain names are registered in the Client's name or in the
name of the Client's Company. The Company has absolutely no
involvement in the use of the domain name. The Client is to indemnify
the Company from any claims made by third parties regarding the use of
the domain name. The obligation to indemnify the Company from any
claims made by third parties applies regardless of the fact that the
domain name may have been acquired without the intervention of the
Company. |
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| 7 |
Support and Service |
| 7.1 |
The Company will support the Client in the use of the Service. The
Client can call upon the Company in writing, by telephone or by e
mail. The hours during which the telephone lines of the Company are
open are noted on the About Us page of the website
www.tppinternet.com. The Company is free to change the time during
which telephone contact can be made. |
| 7.2 |
As part of its undertaking to provide support, the Company will
make every effort to solve any problems that the Client may encounter
when using the Service. The Client is to provide the Company with any
assistance that may be necessary to solve the problem. |
| 7.3 |
The Company reserves the right to charge for support provided to a
Client which is deemed above and beyond a normal level of support. The
Client will be notified of any charges in advance. In the event that
the Client unnecessarily calls upon the Company for support without
merit, costs related to providing that support may be passed on to the
Client at the discretion of the Company. |
| 7.4 |
The Company will not maintain, manage or repair equipment and/or
software that is not supplied by the Company or by a party designated
by the Company. |
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| 8 |
Content Management and E-business Applications Software |
| 8.1 |
The use by the Client of any software that may be provided by the
Company is subject to the licence conditions of the software in
question. The Client undertakes to comply with the said licence
conditions. The Company assumes no responsibility for the use or
defect of this software. |
| 8.2 |
The Company will license to the Client, for the agreed period, the
use of relevant application software, such as content management and e
business solutions, provided as standard or configured specifically to
the Client's requirements. |
| 8.3 |
The Company owns the exclusive rights to all software developed
generally or expressly for the Client whether it is designed,
developed, installed, configured, modified and/or supported by the
Company for use by the Client and/or the Client's customers and/or the
general public. |
| 8.4 |
The Company may, at its sole discretion, modify, adapt, enhance,
reuse or copy any software that is designed, developed, installed,
configured, modified and/or supported by the Company, to be used for
its own purposes or that of another Client. All subsequent software
will remain exclusive property of the Company and all rights are
reserved by it. |
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| 9 |
Website Development |
| 9.1 |
Where the Client requests service which includes development of a
website, the following articles will be applicable. |
| 9.2 |
The Client authorises the Company to develop and publish a website
on behalf of the Client using a standard template developed by the
Company with its software to enable the required functionality for
content management and/or e business. The Client authorises the
Company to publicise their completed website to web search engines as
well as other web directories. |
| 9.3 |
If the Client requires the Company to develop and publish a
customised website in accordance with the specifications of the Client
not using one of the standard templates the Client will pay such
additional fees as the Company will advise by its quotation as may be
required to develop such a customised website. |
| 9.4 |
The Client must provide a full and final version of the content
for the website including text (headings and body text) and images
(photographs, illustrations, logos, drawings and designs). |
| 9.5 |
The Client will provide access to the Client's premises, staff
and documentation, domain account, and existing website, if
applicable, as might be reasonably necessary to facilitate the design,
development, transfer and/or integration of the website. |
| 9.6 |
Once a Functional Specification document has been agreed to by
both parties, any changes to the website design, content or
functionality required for the website may be subject to additional
charges. |
| 9.7 |
The Company reserves the right to charge for consultancy time and
expenses, if required, to participate in meetings with the Client
and/or third parties outside of any initial meetings and any
subsequent meetings agreed to by both parties. |
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| 10 |
Fees |
| 10.1 |
The Client will be charged a Setup Fee for connection to the
Service. There may be additional fees specified in the price schedule
for applying and/or relocating and/or maintaining domain names and/or
IP addresses. |
| 10.2 |
From the Commencement date onwards the Client is obliged to pay an
Annual Fee for the use of the Service. The Annual Fees specified in
the Price Schedule are to be paid in advance. |
| 10.3 |
If, at the Client's request, the Company provides any
additional services such as provision of additional disk space, or
additional bandwidth, or the forwarding of e mail, the Company will
charge the Client the rates that currently apply for the services in
question. The Client will be notified of the costs of the said
services in advance. |
| 10.4 |
Unless otherwise indicated, the rates and fees charged by the
Company are always specified in Australian Dollars excluding Goods and
Services Tax (GST). |
| 10.5 |
The Company is entitled to change the Annual Fee from year to
year. When this occurs the Company will make every effort to notify
the Client sufficiently in advance. |
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| 11 |
Invoicing and Payments |
| 11.1 |
The Client must pay the Setup Fees and Monthly or Annual Fees in
advance. Any additional fees such as variable or usage fees accrued
during the billing month will be invoiced and charged in arrears. |
| 11.2 |
The Company primarily charges by use of cheque, credit card or
direct deposit. The Client acknowledges this and will provide correct
and up to date information that will enable the Company to charge the
Client using these methods in a timely manner. |
| 11.3 |
Clients are responsible for the provision of sufficient funds in
their bank account and will be held responsible for any bank charges
resulting from insufficient availability of funds. |
| 11.4 |
All payments are to be made in Australian Dollars, unless
otherwise stated and agreed by both parties. |
| 11.5 |
In the event that the Client's website exceeds the maximum
storage capacity or throughput traffic as quoted to the Client the
Company reserves the right to charge the Client the fees applicable to
the actual capacity or throughput and will be due and payable within
14 days of notification. |
| 11.7 |
Fees for hosting, administration and email, payable by the Client,
the amounts quoted to the Client and any amendments advised to the
Client by the Company, are due and payable in advance. |
| 11.8 |
Licence fees for use of the Company's content management and e
business applications software, payable by the Client, will be in
accordance with the Company's quoted price to the Client and any
amendments advised to the Client by the Company, and are due and
payable in advance. |
| 11.9 |
Charges for domain name registration and renewal, payable by the
Client, will be in accordance with the Company's quoted price to
the Client and any amendments advised to the Client by the Company,
and are due and payable annually in advance. |
| 11.10 |
The Company reserves the right to amend its fees and charges at
any time, and will provide at least 30 days notice to the Client in
writing of such amendment. These will take effect from the date of
commencement of the next annual period, renewal period or specific
service. |
| 11.11 |
The Client is not entitled to offset any claim it may have against
the Company against a claim on the part of the Company. |
| 11.12 |
In the event that the Client fails to pay an outstanding amount
within the agreed term, the Client is considered to be in default from
the day on which the sum in question should have been paid. The
Company is entitled to deny the Client access to the Service until
such time as payment is received in full together with any
reinstatement fee of which the Company has notified the Client in
advance. |
| 11.13 |
In the event that the Client fails to pay an outstanding amount
within the agreed term the Company is entitled to charge the Client
all of the legal and non-legal costs incurred in the process of
recovering its claim. Non legal costs are set at a minimum of two
hundred and fifty dollars ($250) or at least ten percent (10%) of the
claim, whichever is the greater. |
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| 12 |
Force Majeure |
| 12.1 |
In the event that the Company is unable to fulfil its obligations
in relation to the Client as a result of force majeure, the
obligations in question will be suspended for the duration of the
situation of force majeure. |
| 12.2 |
In the event that the situation of force majeure has persisted for
six (6) weeks, the two Parties are entitled to cancel the Agreement
for the future only. The Client is not entitled to claim compensation
or any other reimbursement as a result of the situation of force
majeure, even if the situation of force majeure proves to be to the
advantage of the Company. |
| 12.3 |
Within the context of the agreement, force majeure is understood
to refer to any circumstance beyond the control of the Company that
makes it impossible for the Company to fulfil any or all of its
obligations in relation to the Client or as a result of which the
Company cannot reasonably be expected to fulfil its obligations in
relation to the Client, regardless of the fact that the circumstance
in question might have been foreseen at the time that the Agreement
was concluded. Circumstances considered to constitute force majeure
include but are not limited to disruption in systems that are part of
the Internet, disruptions in the telecommunication infrastructure,
including the Connection, and power failure experienced by the
Company. |
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| 13 |
Liability |
| 13.1 |
The total liability of the Company on account of attributable
shortcoming in the fulfilment of its obligations under the terms of
the Agreement is limited to the reimbursement of direct losses up to a
maximum sum equivalent to the fee actually paid to the Company by the
Client during the contract year in question. The Company cannot be
held liable for direct losses, including consequential losses, loss of
profit, lost savings and losses incurred as a result of stagnation of
business operations. |
| 13.2 |
With the exception of the cases specified in article 13.1, the
Company cannot be held liable for compensation, regardless of the
grounds on which a claim for compensation is based. |
| 13.3 |
The limitation of liability as defined in this article does not
apply to the extent that the losses in question are due to wrongful
intent or gross negligence on the part of the Company or its
managerial personnel. |
| 13.4 |
Whenever the Company uses a third party for delivery of the
Service, the liability of the Company is limited to the liability of
the third party towards the Company. Whenever other limitations on the
liability of the Company within the agreement are lower than the
earlier mentioned limitation the lowest limitation applies. This
applies specifically when a third party connection is used for the
delivery of the Service. |
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| 14 |
Duration and Termination of the Agreement |
| 14.1 |
The agreement comes into effect on the Commencement date and is
entered into for a Minimum Period calculated from the Commencement
date. Following the expiry of the Minimum Period the Agreement will be
tacitly renewed for an indefinite period, unless one of the Parties
cancels the Agreement in writing at least thirty (30) days prior to
the end of the Minimum period. |
| 14.2 |
For the renewal or termination of the Agreement in accordance with
the provisions set out in article 14.1, the Minimum Period is
considered to run through to the anniversary of the date that the
Company notifies the client that the website has been setup. |
| 14.3 |
Following the expiry of the Minimum Period either of the two
Parties can cancel the Agreement by issuing written notification to
this effect at least thirty (30) days prior to the end of a calendar
month. |
| 14.4 |
The Company is entitled to dissolve the Agreement with immediate
effect: |
| 14.4.1 |
In the event that the Client fails to fulfil any of its
obligations in relation to the Company in full and on time, unless the
nature or extent of the failure to fulfil an obligation does not
justify cancellation of the agreement and the ensuing consequences. |
| 14.4.2 |
In the event that the Client applies for a suspension of payment,
or if the Client files for, or is declared bankrupt, or files a
petition for, or goes into involuntary liquidation. |
| 14.5 |
In the event that the Agreement is dissolved in accordance with
the provisions set out in article 14.4 all claims that the Company has
against the Client are immediately due and payable in their entirety. |
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| 15 |
Miscellaneous Provisions |
| 15.1 |
The Agreement is governed by the law applying in NSW, Australia. |
| 15.2 |
All disputes ensuing from or related to the Agreement are to be
brought before the court of competent jurisdiction in NSW, Australia
exclusively. |
| 15.3 |
The Company is permitted to transfer the rights and obligations
described in the agreement to a third party. The Client is not
entitled to transfer the rights that accrue to and/or the obligations
incumbent upon the Client under the terms of the Agreement to any
third party without the prior written consent of the Company. |
| 15.4 |
General or specific terms and conditions issued by the Client do
not apply to the Agreement regardless of how the said terms and
conditions may be termed. |
| 15.5 |
The Company has the right to make changes to these terms and
conditions. A change will also apply in respect of Agreements that
became effective before the moment of change of the terms and
conditions. The Company will make every effort to inform the Client,
however the changes cannot be deemed void if the Client claims not to
have been notified. |
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| 16 |
Notices |
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Any notice to be given by either party to the other may be sent by
either email, fax, prepaid post, or delivery to the address of the
other party as appearing in any written correspondence, forms or such
other address as such party may from time to time have communicated to
the other in writing, and if sent by email, unless the contrary is
proved, be deemed to be received on the day it was sent or if sent by
fax be deemed to be served on receipt of an error free transmission
report, or if sent by prepaid post be deemed to be served two days
following the date of posting. |
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| 17 |
Headings |
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Headings are included in this Agreement for convenience only and
shall not affect the construction or interpretation of this Agreement. |
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| 18 |
Entire Agreement |
| 18.1 |
These terms and conditions together with any documents expressly
referred to in them, contain the entire Agreement between the parties
relating to the subject matter covered and supersede any previous
Agreements, arrangements, undertakings or proposals, written or oral,
between the parties in relation to such matters. No oral explanation
or oral information given by any party alter the interpretation of
these terms and conditions. In accepting these terms and conditions,
the Client has not relied on any representation other than those
expressly stated in these terms and conditions and agrees that the
Client has no remedy in respect of any misrepresentation which has not
been made expressly in this Agreement. |
| 18.2 |
In the event of any inconsistency between any of the provision(s)
of this agreement and any of the provisions of any written document(s)
forming part of this agreement, then to the extent of such
inconsistency, the provision(s) of the most recent document(s)
prevail. |
| 18.3 |
This Agreement includes all documents referred to in 18.1 and
18.2, together with any written Quotation Request(s), Content
Specification(s), Functional Specification(s), correspondence, and/or
other documented information relating to them. |
| 18.4 |
This Agreement may be varied only by way of written communication
(including email) from one party to the other that is accepted in
writing (including email) by the other party. |
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| 19 |
Acceptance |
| 19.1 |
Once any payment in respect of the Company's services has been
made by the Client, it is deemed that the Client has read the entire
Agreement and has confirmed acceptance of these terms and conditions. |
| 19.2 |
Once full payment for a service, has been made by the Client, it
is deemed that the Client has accepted that service, errors and
omissions excepted, and that any subsequent changes required by the
Client with respect to that service will attract additional fees or
charges. |
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