Connect Global Australia Pty Ltd Customer Agreement
The following agreement is between Connect Global Australia Pty Ltd ("Provider"), and You ("Customer").
It is hereby agreed as follows.
1.1 In this Agreement, unless the contrary intention appears:
"Agreement" means this Agreement for the supply of products and services;
"Provider" means the company Connect Global Australia Pty Ltd;
"Customer" means an end user, be it a business, organization or individual who is utilizing or seeking to utilize products and or services provided by Connect Global Australia Pty Ltd;
"Commencement Date" means the date that you agree to this Agreement;
"Confidential Information" means the confidential information of a Party which relates to the subject matter of this Agreement and includes:
(a) confidential information relating to Services provided by the Provider;
(b) information relating to the personnel, policies or business strategies of the Provider;
(c) information relating to the terms upon which the Services have been supplied pursuant to this Agreement;
"Developed Website" means the website which is to be developed by the Provider as a consequence of the Website Development;
"Documentation" means operating manuals and other material including users' manuals, programming manuals, modification manuals, flow charts, drawings and software listings which are designed to assist or supplement the understanding or application of the Services;
"Force Majeure" means a circumstance beyond the reasonable control of the Parties which results in a Party being unable to observe or perform on time an obligation under this Agreement. Such circumstances shall include but shall not be limited to:
(d) acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster;
(e) acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage,
sabotage and revolution; and
Terms & Conditions (continued)
"Hosting" means the housing and maintenance of services which allow for the Developed Website to be accessible from the internet;
"Website Traffic" means the volume of data that is transferred to or from the Developed Website
"Intellectual Property Rights" means copyright, trade mark, design or patent;
"Internet" means the world wide connection of computer networks providing for the transmittal of electronic mail, on-line information, information retrieval and file transfer protocol;
"Party" means either the Provider or the Customer as the context dictates;
"User" means a person other than the Parties who seeks access over the Internet;
"Website Development" means the services supplied pursuant to this Agreement in order to create the Developed Website;
"Content" means any information, text or images contributed by the Customer for use in their website. This may include text on the pages of the website, product information such as stock codes, prices, descriptions and other data of the like;
"Back-end" means the technology and background technology, hardware, computer systems, software, programming code and services required to provide functionality within a website;
"Database Data" means any data stored in a website's database that has been either added by the Customer or Users of the website. This may include mailing lists, member lists and other data of the like;
"Dynamic" is a term used in relation to websites whereby the website has functionality which is made possible by a Back-end;
"Static" is a term used in relation to websites whereby the website has no functionality that requires a Back-end;
"Account" means a unit of financial recordkeeping to record the financial transactions related to fees charged to the Customer by the Provider, payments paid to the Provider by or on behalf of the Customer and other credits and debits as outlined in this agreement;
"Service" means a product, service, work, or consultation provided by the Provider to the
Customer. This may include, but is not limited to; electronic mail, website hosting, database hosting, website design and or development, graphic design, internet marketing, search engine submission, consultancy, alteration of websites, alteration of content contained within websites;
"Content Managed Website" means a website which has been developed and provided by the Terms & Conditions (continued)
Provider where the Customer can add, alter, edit, remove and update content contained within the website;
"Website Administration Control Panel" means the control panel provided by the Provider that allows the Customer to add, alter, edit and remove content contained within the Developed Website.
2.1 In this Agreement, unless the contrary intention appears:
(a) the clause headings are for ease of reference only and shall not be relevant to interpretation;
(b) a reference to a clause number is a reference to its subclauses;
(c) words in the singular number include the plural and vice versa;
(d) words importing a gender include any other gender;
(e) a reference to a person includes bodies corporate and unincorporated associations and partnerships;
(f) a reference to a clause is a reference to a clause or subclause of this Agreement;
(g) a reference to a subclause is a reference to a subclause of the clause in which that reference is made;
(h) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
(i) a Schedule includes a reference to any party of that Schedule which is incorporated by reference;
(j) the recitals to this Agreement do not form part of the Agreement;
(k) monetary reference are references to Australian currency.
2.2 No provision of this Agreement will be interpreted as attempting to exclude or limit, or having the effect of excluding or limiting, the operation of subsection 47B(3) or section 47C, 47D, 47E or 47F, of the Copyright Act 1968 (Cth). Any provision which is inconsistent with any such subsection or section will be read down or otherwise deemed to be varied to the extent necessary to preserve the operation of each subsection, section or sections.
3. Website Development
3.1 Section 3 is applicable if the Customer requests that the Provider provides a website to the Customer either by contacting the provider directly or by contacting an agent of the Provider.
3.2 The Provider shall develop, test and publish the Developed Website to the Internet.
4. Title, Use, Hosting and Content
4.1 A content managed website provided by the Provider must at all times be hosted by the Provider. This is to ensure that the correct technology is available to keep the website functioning and that the integrity of the Back-end is kept secure.
4.2 If a Customer wishes to move their website to another hosting provider, the customer can request, and will be given a Static copy of the website. The Static copy of the website will be in HTML and will contain all Content provided by the Customer and will possess similar visual design and layout to the Dynamic original. The static website will however no longer possess Dynamic functionality. This means that many aspects of the website will not function if the website is moved to another hosting provider unless the Dynamic aspects of the website are redeveloped by another developer. Any costs arising from moving or redevelopment of a website in whole or part or any other costs directly or indirectly arising as a result of the website being moved from the Provider's hosting services are the responsibility of the Customer.
4.3 The Back-end required to make the website Dynamic and the Website Administration Control Panel required to edit and maintain the website will always exclusively remain the property of the Provider.
4.4 The customer will not have access to and shall not gain access to the Back-end. This includes, but is not limited to; programming code, databases, database schemas, PHP code and server software.
4.5 The Customer is solely responsible for all content contained within the Website. All content in Terms & Conditions (continued)
the Website is provided by the customer and the Provider takes no responsibility for any
infringement of any laws relating to illegal content or the illegal use of any content in any Website or other service provided by the Provider.
4.6 The Provider does not and will not monitor or control the Content in a website.
4.7 The Customer is responsible for all modifications made to the website.
4.8 The Customer shall be responsible for all employees and other authorised users of the Developed Website under its direction or control, advising such persons of the Customer's obligations under this Agreement and also advising of the possible civil and criminal consequences of a breach of this Agreement.
4.9 It is Prohibited under the terms of this Agreement to transmit, store, post, display or otherwise
make available child pornography, other offensive sexual content or materials, or, any other obscene speech or material including, without limitation, material containing detailed instruction in crime, violence or drug use; bestiality; real depictions of sexual activity; material containing excessive violence or sexual violence. You agree that where required by law, the Provider may notify law enforcement agencies when it becomes aware of the presence of such obscene or illegal material on or being transmitted through the network of the Provider and/or take any other action permitted by this Agreement.
5. Warranties and Liabilities
5.1 The Provider does not warrant that:-
A the Services provided under this agreement will be uninterrupted or error free;
B the Services will meet your requirements, other than as expressly set out in this Agreement; or
C the Services will be free from external intruders (hackers), virus or worm attack, denial of service attack, or other persons having unauthorised access to the services or systems of the Provider.
5.2 Except as expressly provided to the contrary in this Agreement, all warranties whether Terms & Conditions (continued)
express, implied, statutory or otherwise, relating in any way to the subject matter of this
Agreement, are excluded. Where any statute implies any term into this Agreement, and that statute avoids or prohibits provisions in a contract excluding or modifying the application of or liability under such a term, then the term will be taken to be included in this Agreement. However, our liability for any breach of the term will, if permitted by that statute, be limited, at our option, to the resupply of the Services again; or payment of reasonable cost of having the Services supplied again.
5.3 Except as provided under clause 5.2, the Provider, its subsidiaries, officers, directors, employees, partners or suppliers will not be liable to you or any third party for:-
a) any special, punitive, incidental, indirect or consequential damages of any kind;
b) any damages whatsoever, including, without limitation, those resulting from:
i loss of use, data or profits, on any theory of liability, arising out of or in connection with the use of or the inability to use the Services;
ii the statements or actions of any employee or agent of the Provider;
iii any unauthorised access to or alteration of your website, transmissions or data;
iv any information that is sent or received or not sent or received;
v any failure to store or loss of data, files or other content;
vi your fraudulent, negligent or otherwise unlawful behaviour;
vii information, data or other material provided to the Provider by you or on your behalf, or the use
of such information, data or other material by the Provider;
viii cost, loss or liability (including loss of profit or other consequential damage) arising from the supply or failure or delay in supplying the Service;
ix the content, context or confidentiality of any communications made using the Service;
x loss or damage caused by third party software applications forming part of the Service; xi any loss or damage arising out of an unauthorised attack on or other breach of security of the Services or client data; or
xii any Services that are delayed or interrupted.
5.4 You warrant that:-
a) at the time of entering into this agreement you are not relying on any representation made by the Provider which has not been stated expressly in this Agreement, or on any descriptions or Terms & Conditions (continued)
specifications contained in any other document, including any catalogues or publicity material
which we have produced;
b) you will conduct such tests and computer virus scanning as may be necessary to ensure that data uploaded by you onto or downloaded by you from the Server does not contain any computer virus and will not in any way, corrupt the data or systems of any person;
c) you will keep secure any passwords used to upload data to the Server, or otherwise supplied to you by the Provider in relation to the Services; and,
5.5 You accept responsibility for all information and material you issue over any Service, and indemnify the Provider, and hold the Provider harmless against any liability in relation to such information and material. In particular you undertake that you shall not publish or issue any information which is illegal or defamatory. You also acknowledge that the Provider does not vet or approve any information or material available through the Service. The Provider does not accept any liability for any loss, claim or damages arising from or relating to information and material made available by you through the Services, to the full extent permitted by law. You acknowledge that you make available, access and use such information and material at your own risk.
5.7 You acknowledge that you are solely responsible for dealing with persons who access the Content, and will not refer complaints or inquiries in relation to such data to the Provider.
6. Accounts and Payment
6.1 The fees payable for each Service is agreed upon at the time of your account application.
6.2 The fees payable for each Service may change at any time and notification of any change will be made by general notice.
6.3 The Provider will provide the Customer with an account for billing purposes.
6.4 The Provider will issue a statement/invoice to the customer at the end of each billing period, itemising all debits and credits recorded on the Customer's account during the specified billing period.
6.6 The length of the billing period may vary at any time at the discretion of the Provider.
6.7 The billing period for a statement/invoice is stated on the statement/invoice.
6.8 The issued statement/invoice will itemise all charges, payments and other credits recorded to the Customer's account during the specified billing period.
6.9 The date of issue of a statement/invoice is the date the statement/invoice is generated by the accounting system at the Provider. The date of issue of a statement/invoice will be shown on the statement/invoice.
6.10 You agree that you will pay the Provider, within 28 days of the date of issue of a statement/invoice, for any fees charged to you for services provided to you by the Provider as well as any other fees as outlined in this agreement.
6.11 Invoices/Statements are issued to you electronically via email and are in PDF format. They will be sent to the billing email address as specified by you in your account application unless you have changed, or requested to have changed, your billing email address. It is your obligation to ensure that your billing email address is kept up-to-date and is correct at all times.
6.12 It is deemed that once a statement/invoice has been transmitted from our systems to your billing email address that you have received it.
6.13 It is your responsibility to ensure that you have the ability to read documents sent to you in PDF format.
6.14 You may request to have an additional hardcopy statement/invoice mailed to you by post for a fee of $2.00 AUD per statement/invoice.
6.15 Even if you request to have an additional hardcopy statement/invoice mailed to you by post
Terms & Conditions (continued)
you are still required to finalise payment within 28 days of the date of issue of the
6.16 If the Customer disputes the whole or any portion of the amount claimed in an invoice submitted by the Provider, the Customer shall pay the portion of the amount stated in the invoice which is not in dispute and shall notify the Provider in writing (within seven (7) days of receipt of the invoice) of the reasons for disputing the remainder of the invoice. If it is resolved that some or all of the amount in dispute ought properly to have been paid at the time it was first invoiced, then the Customer shall pay the amount finally resolved together with interest on that amount in accordance with the terms of payment set out in this Agreement.
6.17 If a payment is received by the Provider in the form of a cheque the cheque will be cashed within 30 days of the cheque being received by the Provider.
6.18 If a payment is made by cheque and the cheque is not honoured a dishonour fee of $30.00 AUD may be charged to the account.
6.19 The Provider may appoint a collection agency to collect any outstanding debts. You indemnify the Provider in relation to any costs incurred in collecting overdue fees under this Agreement.
7 Overdue Accounts, Suspensions and other fees
7.1 If payment of a statement/invoice is not finalised within 30 days of the date of issue of the statement/invoice a late fee of $10.00 AUD may be charged to the account.
7.2 For each additional 30 days that the account is not finalised a further $15.00 AUD late fee may be charged to the account.
7.3 If payment of the account is not finalised within 50 days all services attached to the account may be suspended and a reactivation fee of $20.00 AUD may be charged to have the services Terms & Conditions (continued)
8. Liability of Provider
8.1 Except in relation to liability for personal injury (including sickness and death), the Provider shall be under no liability to the Customer in respect of any loss or damage (including consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of goods or services supplied pursuant to this Agreement or in respect of a failure or omission on the part of the Provider to comply with its obligations under this Agreement.
8.2 The Customer warrants that it has not relied on any representation made by the Provider which has not been stated expressly in this Agreement or upon any descriptions, illustrations or specifications contained in any document including catalogues or publicity material produced by the Provider.
8.3 The Customer acknowledges that to the extent the Provider has made any representation which is not otherwise expressly stated in this Agreement, the Customer has been provided with an opportunity to independently verify the accuracy of that representation.
8.4 The Customer shall at all times indemnify and hold harmless the Provider and its officers, employees and agents ("those indemnified") from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of those indemnified arising from any proceedings against those indemnified where such loss or liability was caused by:
(a) A breach by the Customer of its obligations under this Agreement; or
(b) Any wilful, unlawful or negligent act or omission of the Customer.
9.1 Without limiting the generality of any other clause in this Agreement, the Provider may terminate this Agreement immediately by notice if:-
(a) The Customer is in breach of any term of this Agreement and such breach is not remedied within fourteen (14) days of the Customer being notified of the breach by the Provider;
(b) The Customer becomes, threatens or resolves to become or is in jeopardy of becoming Terms & Conditions (continued)
subject to any form of insolvency administration;
(c) The Customer, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;
(d) The Customer, being a natural person, dies; or
(e) The Customer ceases or threatens to cease conducting its business in the normal manner.
9.2 The Customer may terminate this Agreement by giving thirty (30) days notice in accordance with clause 15 to the Provider.
9.3 The Provider may continue to charge the Customer for services provided to the Customer until termniation is finalised. Once Termination is finalised a final statement/invoice will be issued to the Customer.
9.4 If notice is given to the Customer pursuant to subclause 1 or 2, the Provider may, in addition to terminating the Agreement:
(a) Repossess any of its property in the possession, custody or control of the Customer;
(b) Retain any moneys paid;
(c) Charge a reasonable sum for work performed in respect of which work no sum has been previously charged;
(d) Be regarded as discharged from any further obligations under this Agreement; and
(e) Pursue any additional or alternative remedies provided by law.
10. Force Majeure
10.1 Neither Party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to Force Majeure.
10.2 If a delay or failure of a Party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that Party's obligations will be suspended.
10.3 If a delay or failure by a Party to perform its obligations due to Force Majeure exceeds sixty Terms & Conditions (continued)
(60) days, either Party may immediately terminate the Agreement on providing notice to the other Party.
10.4 If this Agreement is terminated pursuant to subclause 3, the Provider shall refund moneys previously paid by the Customer pursuant to this Agreement for goods or services not provided by the Provider to the Customer.
11.1 The Provider may Sub-Contract for the performance of this Agreement or any part of this Agreement without the need for the Customer's consent.
12. Entire Agreement
12.1 This Agreement constitute the entire agreement between the Parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.
13.1 The documents comprising this Agreement shall be read in the following order of precedence:
(a) The clauses of this Agreement;
13.2 Where any conflict occurs between the provisions contained in two or more of the documents forming this Agreement, the document lower in the order of precedence shall where possible be read down to resolve such conflict. If the conflict remains incapable of resolution by reading down, the conflicting provisions shall be severed from the document lower in the order of precedence without otherwise diminishing the enforceability of the remaining provisions of that document.
14. Assignment and Novation
14.1 The benefit of this Agreement shall not be assigned by the Customer without the Provider's written consent.
14.2 The Provider may consent to the assignment or novation of this Agreement by the Customer subject to such conditions as it chooses to impose.
15.1 Notices from the Provider to the Customer may be in the form of electronic mail. Notice will be deemed given when the notice has been transmitted from the Provider's systems to the
Customer's primary contact email address. It is the Customer's obligation that the Customer's primary contact email address is kept up-to-date and is correct at all times. For billing and accounting purposes, notice will be deemed given when the notice has been transmitted from the Provider's systems to the Customer's billing email address. It is the Customer's obligation to ensure that the Customer's billing email address is kept up-to-date and is correct at all times.
15.2 You agree and acknowledge that the Provider's record of having sent a notice to you by electronic mail is, of itself, conclusive proof of you having received that notice.
15.3 Notices from the Customer to the Provider must be delivered to the Provider in the form of written postal mail and addressed to:
CONNECTGLOBAL AUSTRALIA PTY LTD
PO BOX 6903
UPPER MT GRAVATT
BRISBANE QLD 4122
16. Terms and Amendment Procedure
16.1 The Provider may vary this Agreement at any time and the current Agreement can be found
on the Provider's website at http://www.connectglobal.com/terms-and-conditions.html. Changes to this Agreement will become effective upon publication of the new Terms and Conditions.
16.2 If you use any service after publication of any change to this Agreement accordance with clause 16.1, your use will constitute acceptance of the amended terms.
17.1 If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, the
Agreement shall remain otherwise in full force apart from such provisions which shall deemed deleted.
18. Provider's Rights
18.1 Any express statement of the right of the Provider under this Agreement is without prejudice to any other right of the Provider expressly stated in this Agreement or existing at law.
19. Survival of Agreement
19.1 Subject to any provision to the contrary, this Agreement shall enure to the benefit of and be binding upon the Parties and their successors, trustees, permitted assigns or receivers but shall not enure to the benefit of any other persons.
19.2 The covenants, conditions and provisions of this Agreement which are capable of having effect after the expiration of the Agreement shall remain in full force and effect following the expiration of the Agreement.
20. Governing Law
20.1 This Agreement will be governed by and construed according to the law of Queensland, Australia and the parties shall submit to the jurisdiction of the courts in that jurisdiction.
21.1 No right under this Agreement shall be deemed to be waived except by notice in writing signed by each Party.
21.2 A waiver made by the Provider pursuant to subclause 1 will not prejudice its rights in respect of any subsequent breach of the Agreement by the Customer.
21.3 Subject to subclause 1, any failure by the Provider to enforce any clause of this Agreement,
or any forbearance, delay or indulgence granted by the Provider to the Customer, will not be construed as a waiver of the Provider's rights under this Agreement.
22. Acceptable Use
22.1 In the context of Website Traffic, Acceptable Use is a level of data transfer that is considered to be reasonable for the normal operation of the Developed Website and the amount of Website Traffic that is considered reasonable is at the discretion of the Provider. If the Provider deems that the amount of Website Traffic is not reasonable, the Provider will offer alternative pricing for providing the Service. The Customer agrees that any new pricing offered by the Provider is not negotiable and failure to accept the new pricing offered may result in Termination of the Service at the discretion of the Provider.
23.1 This Agreement may be executed when the Customer agrees to the Agreement.