Terms and Conditions - Web Site Hosting

THESE ARE THE STANDARD TERMS AND CONDITIONS REFERRED TO IN THE FOREGOING CONTRACT BETWEEN VADA COMPUTING PTY LTD AND ALL CLIENTS. UNLESS AGREED OTHERWISE, THE FOLLOWING TERMS AND CONDITIONS APPLY TO ALL VADA COMPUTING PTY LTD WEB SITE HOSTING PACKAGES.

1. Definitions

a) Vada Computing Pty Ltd ("Vada"), ABN 75 120 180 510, PO Box 242, Blackburn South Victoria 3128, aforesaid.
b) The 'Agreement" means Terms and Conditions and the details on the Application for Vada Account
c) The 'Customer' refers to all other persons, companies, or other entities identified on the Application for Vada Account
d) The 'Service' means the computing and communication service known as the Vada Internet Service, hosted on 3rd party servers, as modified from time to time.

2. Application and Variation of these Terms

These terms and conditions are the terms on which Vada provides hosting services to its customers, modified by any written contract between Vada and it's Customers in any particular case. The terms so modified constitute the agreement in its entirety and supersede prior agreements, excluding specific term contracts and contracts with Service Level Agreements. Vada may modify these terms as applying to any agreement, the pricing structure for any Service (excluding term contracts) or the terms of the operation by email to the last email address provided to Vada by the Customer. The Customer is required to keep their contact details with Vada current. Any use of Service more than 30 days after joining or 30 days after modification of these terms will constitute acceptance of these terms.

3. Charges

The service is a subscription service payable in advance. The customer must pay for all goods and services by the due date. In particular the Customer must pay for all service data charges and other amounts incurred by the Customer or its Users or incurred as a result of any use of the Customer Account and services (whether authorised or not) in accordance with the billing option selected. In addition, the Customer may be liable for all charges and expenses incurred by Vada resulting from any security breach or attack or customer error that involves Customer hardware, software, or network configuration, including IP addresses.

4. Customer Costs

In addition the Customer must provide and pay for: a) the installation and use of telephone lines and all other equipment needed to access the Service at their own cost; b) all government taxes, duties and levies (if any) imposed on the customer or Vada in respect of any Services or goods supplied excluding income tax.

5. Payment of Accounts

a) Payment for all service is due upon the order due date. The Customer must pay all amounts billed in accordance with the billing option they are on. Any questions regarding the charges on an account must be addressed within 60 days of the billing date. Where a charge is in dispute the Customer may withhold the disputed portion whilst it is investigated but non-disputed charges may not be withheld.
b) No credit terms are given. If payment is not received after the due date a finance fee of 2% (minimum $1) per month will be payable on all overdue amounts.
c) Accounts with a balance more than 15 days overdue may be suspended without further warning. Suspended accounts may not be altered or closed until full payment is received.
d) Suspended accounts may be sent to Vada’s debt collection agency without further notice. Any expenses incurred in the recovery of debt, including but not limited to legal and debt collection costs, shall be claimed on the customer.

6. Security Deposit

Vada may require the payment of a security deposit before providing the service, or as a condition of continuing any Service, and may use the security deposit to meet any costs, loss or liability incurred by the Customer. When the Customer has fully performed his or her obligations, Vada shall return the outstanding balance of the security deposit, without interest.

7. Credit Checks Privacy Consent

The Customer consents to Vada obtaining credit reports and information containing personal information (as well as information concerning commercial credit worthiness and activities) for the purpose of assessment by Vada of an application for credit (whether commercial or personal) or for the purpose of the collection of payments that are overdue.

8. Privacy

Vada will not reveal, sell, or in any way divulge information about the Customer or the Internet usage of the Customer to any individual, business, marketing, or research group without prior consent of the customer or without legal warrant.

9. Publication at Customers Risk

The Customer accepts responsibility for all information and material issued by the Customer over any Service, and indemnifies Vada against any liability in relation thereto. In particular the Customer undertakes that it shall not publish, distribute or issue any information that is illegal, including copyrighted materials. The Customer also acknowledges that Vada does not vet or approve any information or material available through any service and that Vada does not accept any liability. To the full extent permitted by law the Customer accesses and uses such information and material at his or her own risk.

10. Provision of Service

Vada endeavours to provide continuous uninterrupted service at all times; however the Service provided to the Customer is not fault free and relies on factors outside the control of Vada. The Service is provided to the Customer at such times and means as Vada decides.

11. Exclusion of Liability

Except as provided in clause 12 Vada is not liable to the Customer or any other person for:
a) any cost, loss or liability (including loss of profit or other consequential damage) arising from Vada's supply or failure or delay in supplying Service. b)the content, context, or confidentiality of any communications made using the Service. Vada does not provide support for third party software, including software downloaded from the Internet.

12. Limitation of Liability

Except as provided below all terms, warranties, undertakings, inducements and representations relating to the provision of any Service or goods are excluded and Vada will not be liable for any loss or damage (including consequential loss or damage) however caused (whether by negligence or otherwise) in respect of any Service or goods inclusive of any software material hosted or designed by Vada. However, Vada’s liability for any breach of such implied term or warranty will be limited at Vada's option or in any way permitted by the legislation including where so permitted:
a)If the breach relates to goods: the replacement or repair of the goods; or the payment of the costs of replacing or repairing the goods.
b)If the breach relates to services: the supplying of those services again; or the payment of the costs of having those services supplied again.

13. Breaches

The Customer shall indemnify Vada against any loss (including any loss of profit) incurred by Vada as a result of any breach of the terms of any agreement with Vada including damages in respect of any period up to and including the date of actual termination (including termination under clause 16).

14. Indemnity

The Customer shall indemnify Vada against all claims, expenses, damages, or other liabilities arising directly or indirectly from accessing of obscene, defamatory, or offensive material via Vada Internet service.

15. Termination

Either party may terminate a non-fixed term agreement with 30 days written notice. Any balance owing on an account must be paid prior to closure. After reasonable notice is given Vada may terminate any agreement of the provision of any Service if:-
a). the customer breaches any term of any agreement
b). Vada forms the opinion in good faith that the Customer is or may be insolvent.
Refunds will be given at the discretion of the Company Management. All outstanding charges become immediately payable on giving of such notice and in no circumstances shall the Customer be entitled to any refund of payments made under this Agreement.

16. Suspension of Service

Vada may from time to time without notice, for reasons other than payment (reasonable notice will be given when possible) suspend any Service or disconnect or deny the Customer access to any Service:
a)During any technical failure, modification or maintenance involved in the Service provided that Vada will endeavour to procure the resumption of the Services as reasonably practicable; or
b)If the Customer fails to comply with any agreement (including failure to pay charges due, having been notified of the overdue amount) until the breach (if capable of remedy) is remedied, or does, or allows to be done anything which in Vada's opinion may have the effect of jeopardising the operation of any Service.
Notwithstanding any suspension of any Service under this clause the Customer shall remain liable for all charges due through the period of suspension. An account that is suspended may not be altered or closed until full payment on any outstanding balance is received.

17. Information Received

Except as otherwise expressly permitted in writing, no person may reproduce, redistribute, retransmit, publish or otherwise transfer or exploit any information which they receive regarding Vada's Service in any way which is to be used for competitive purposes in relation to the Service.

18. Assignment

The Customer cannot assign its rights under any agreement with Vada without the prior written consent of Vada. Vada may transfer your rights and responsibilities under this assignment to another party with 30 days written notice to you.

19. Governing Law

This Agreement is governed by the laws of Australia and the parties submit to the jurisdiction of the Australian Courts. It is illegal to view certain types of information (notably types of pornographic material) in Australia . Users of Vada may not break any laws while using the system. The availability of such material on the Internet is beyond Vada’s control.

20. Acceptable Use

While hacking, spamming and port scanning are not currently illegal activities in Australia, Vada does not support or condone these activities without the expressed consent of the recipient or administrator of that system.
The Vada 3rd party servers may be used only for lawful purposes. Users may not use the Vada's 3rd party network in order to transmit, distribute or store material
(a) in violation of any applicable law,
(b) in a manner that will infringe the copyright, trademark, trade secret or other intellectual property rights of others or the privacy, publicity or other personal rights of others, or
(c) that is obscene, threatening, abusive or hateful.

Note: Pornography and sex-related merchandising are prohibited on all servers. This includes sites that may infer sexual content, or link to adult content elsewhere. This is also true for sites that promote any illegal activity or content that may be damaging to our servers or any other server on the Internet. Links to such materials are also prohibited.
In addition any site selling or promoting Bulk email services is not allowed.
Examples of non-acceptable content or links:
Pirated software
Hackers programs or archives
Warez Sites
Irc Bots
Mp3
We will be the sole arbiter as to what constitutes a violation of this provision.

21. Server Abuse

Any attempts to undermine or cause harm to a server is strictly prohibited.

22. CGI Scripts

Customers are free to use any CGI-Scripts provided with their account or add any additional ones they require. Any CGI-Scripts deemed to be adversely affecting the Server performance or the Network integrity may be shut down without prior notice. CGI-Script sharing with Domains not hosted by Vada is not allowed.

23. Background Running Programs

Background Daemons in general are prohibited. Virtual Private Servers (VPS) accounts are not prohibited from running Background Daemons.

24. Commercial Advertising - Email:

Vada's servers may not be the source, intermediary, or destination address involved in the transmission of spam, flames, or mail bombs. Your domain may not be referenced as originator, intermediary, or reply-to address in any of the above. We consider spam any mass unsolicited message in the mediums of Newsgroups and Email. If you are found to have spammed, then we will immediately, without warning, disable your domain. We reserve the right to refuse or cancel service to known spammers. Lastly, we reserve the right to determine what violates this policy. As such, any violation will result in immediate deactivation of services without refund.

25. Client Content, Backups and Data Loss

Backups of Shared Hosting Server (Standard Hosting and Reseller Plans) content are performed on a daily basis. Every effort is made to insure that these backups are valid. Vada assumes no liability for any information published to any server including all customer web site content, related files, backup files, databases or mail belonging to any customer hosted at Vada. Backup arrangements for client content for any frequency other than the standard backup frequency must be made by written contract and acceptance by Vada and any such contract will be subject to premium monthly charges. Vada assumes no liability for lost content in the event a hardware or system failure occurs and data maintained on the effected servers cannot be recovered from the most recent backups. Access to client content is provided to all customers at any time. It is the sole responsibility of account owner to insure that they maintain their own backup copy of any materials placed on Vada's 3rd party servers, or of any database maintained on any server managed by Vada in the event Vada is unable to restore customer content from backup. AT NO TIME SHALL VADA ASSUME ANY LIABILITY FOR LOST CUSTOMER CONTENT.