Terms & Conditions

PREAMBLE

1. Preamble
1.1 All Services of Hosti, trading as Oceania Business Solutions Pty Ltd, whether gratuitous or not, are supplied subject to these Conditions and
 
(a) The provisions of Part I shall apply to the provision of all and any Services.
(b) The provisions of Part II shall only apply to the provision of Web Site Hosting Services.
(c) The provisions of Part III shall only apply to the provision of Web Development Services.

PART I - GENERAL CLAUSES

2. Definitions

2.1 "Seller" shall mean Oceania Business Solutions Pty Ltd, trading as Hosti and its successors and assigns.

2.2 "Buyer" shall mean the Buyer or any person acting on behalf of and with the authority of the Buyer.

2.3 "Guarantor" means that person (or persons), or entity who agrees herein to be liable for the debts of the Buyer on a principal debtor basis.

2.4 "Materials" shall mean all data, graphics, pictures, trade marks, software and other materials to be incorporated in the Buyer's web site (including, but not limited to), user data created by the operation of the Buyer's web site;

2.5 "Price" shall mean the cost of the Services as agreed between the Seller and the Buyer subject to clause 5 of this contract.

2.6 "Prohibited Content" means any content on a Web Site that:
(a) is, or could reasonably be considered to be, in breach of the Broadcast Services Amendment (Online Service) Act 1999 (Cth); the Trade Practices Act 1974 (Cth); or any other applicable law or applicable industry code; or
(b) contains, or could reasonably be considered to contain, any misrepresentations; or is, or could reasonably be considered to be, misleading or deceptive, likely to mislead or deceive or otherwise unlawful; or
(c) is, or could reasonably be considered to be, in breach of any person's Intellectual Property Rights.

2.7 "Services" shall mean all services supplied by the Seller to the Buyer and includes any advice or recommendations.
2.8 "Web Site" means a location which is accessible on the Internet through the World Wide Web and which provides multimedia content via a graphical User Interface.

3. Acceptance
 
3.1 Any instructions received by the Seller from the Buyer for the supply of Services and/or the Buyer's acceptance of Services supplied by the Seller shall constitute acceptance of the terms and conditions contained herein.

3.2 Where more than one Buyer has entered into this agreement, the Buyer's shall be jointly and severally liable for all payments of the Price.

3.3 Upon acceptance of these terms and conditions by the Buyer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Seller.

3.4 None of the Seller's agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Seller in writing nor is the Seller bound by any such unauthorised statements.

3.5 The Buyer undertakes to give the Seller not less than fourteen (14) days prior written notice of any proposed change in the Buyer's name and/or any other change in the Buyer's details (including but not limited to, changes in the Buyer's address, facsimile number, or business practice).
 
4. Services
 
4.1 The Services are as described on the invoices, quotation, work authorisation or any other work commencement forms as provided by the Seller to the Buyer.
 
5. Price And Payment
 
5.1 At the Seller's sole discretion the Price shall be either:
(a) as indicated on invoices provided by the Seller to the Buyer in respect of Services supplied; or
(b) the Seller's quoted Price (subject to clause 4.2) which shall be binding upon the Seller provided that the Buyer shall accept in writing the Seller's quotation within thirty (30) days.

5.2 Any variation from the plan of scheduled works or specifications will be charged for on the basis of the Seller's quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
5.3 The Seller may submit a detailed payment claim at intervals not less than one month for Services performed up to the end of each month. The value of Services so performed shall include the value of any variations, whether or not the value of such variations has been finally agreed between the parties.

5.4 Time for payment for the Services shall be of the essence and will be stated on the invoice, quotation or any other order forms. If no time is stated then payment shall be due thirty (30) days following the date of the invoice.

5.5 The Seller may withhold delivery of the Services until the Buyer has paid for them, in which event payment shall be made before the delivery date.

5.6 Payment will be made by cheque, or by bank cheque, or by credit card, or by direct credit, or by any other method as agreed to between the Buyer and the Seller.

5.7 The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Seller.

6. Delivery Of Services
 
6.1 The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.

6.2 The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Services (or any of them) promptly or at all.
 
7. Risk
 
7.1 If the Seller retains property in the Services nonetheless, all risk for the Services passes to the Buyer on delivery.
 
8. Errors and Omissions
 
8.1 The Buyer shall inspect the Services on delivery and shall within seven (7) days of delivery notify the Seller of any alleged defect, shortage in quantity, errors, omissions or failure to comply with the description or quote. The Buyer shall afford the Seller an opportunity to inspect the Services within a reasonable time following delivery if the Buyer believes the Services are defective in any way. If the Buyer shall fail to comply with these provisions, the Services shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.

8.2 For defective Services, which the Seller has agreed in writing that the Buyer is entitled to reject, the Seller's liability is limited to either (at the Seller's discretion) replacing the Services or repairing the Services provided that the Buyer has complied with the provisions of clause 8.1, except where the Buyer has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer's discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.

8.3 For Materials not manufactured by the Seller, the warranty shall be the current warranty provided by the manufacturer of the Materials. The Seller shall be under no liability whatsoever except for the express conditions as detailed and stipulated in the manufacturers warranty.
 
9. Buyer's Disclaimer
 
9.1 The Buyer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Seller and the Buyer acknowledges that he buys the Services relying solely upon his own skill and judgement.
 
10. The Commonwealth Trade Practices Act 1974 ("TPA") and Fair Trading Acts ("FTA")
 
10.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
 
11. Intellectual Property
 
11.1 Notwithstanding anything herein, the Intellectual Property Rights in the Seller's Materials and the Seller's Routines do not vest in the Buyer and there is no assignment of the Intellectual Property Rights in the Seller's Materials or the Seller's Routines to the Buyer. The Seller hereby grants to the Buyer an irrevocable, non-exclusive and non-transferable licence to use and reproduce the Seller's Materials and Seller's Routines for the purposes of this agreement only.

11.2 The Buyer warrants that all designs or instructions to the Seller will not cause the Seller to infringe any patent, registered design or trademark in the execution of the Buyers order.

11.3 Where the Seller has provided photographic or graphical (digital or otherwise) images for the Buyer, at the Sellers sole discretion any such images may be subject to ongoing licence payments for use of such images. The period of any such licence is determined by the Seller from time to time.
 
12. Default & Consequences of Default
 
12.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.

12.2 If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in pursuing the debt including legal costs on a solicitor and own client basis and the Seller's collection agency costs.

12.3 Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Buyer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller has exercised its rights under this clause.

12.4 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.

12.5 Without prejudice to the Seller's other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Buyer which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to the Seller becomes overdue, or in the Seller's opinion the Buyer will be unable to meet its payments as they fall due; or
(b) the Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer.

13. Title
 
13.1 It is the intention of the seller and agreed by the Buyer that property in the Services shall not pass until:
(a) the Buyer has paid all amounts owing for the particular Services, and
(b) the Buyer has met all other obligations due by the Buyer to the Seller in respect of all contracts between the Seller and the Buyer, and that where practicable the Services shall be kept separate until the Seller shall have received payment and all other obligations of the Buyer are met.
 
13.2 Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Seller's ownership of rights in respect of the Services shall continue.

13.3 It is further agreed that:
(a) until such time as ownership of the Services shall pass from the Seller to the Buyer the Seller may give notice in writing to the Buyer to return the Services or any of them to the Seller. Upon such notice the rights of the Buyer to obtain ownership or any other interest in the Services shall cease.
(b) the Seller shall have the right of stopping the Services in transit whether or not delivery has been made; and
(c) if the Buyer fails to return the Services to the Seller then the Seller or the Seller's agent may enter upon and into land and premises owned, occupied or used by the Buyer, or any premises as the invitee of the Buyer, where the Services are situated and take possession of the Services.
(d) the Buyer is only a bailee of the Services and until such time as the Seller has received payment in full for the Services then the Buyer shall hold any proceeds from the sale or disposal of the Services on trust for the Seller. (e) the Buyer shall not deal with the money of the Seller in any way which may be adverse to the Seller.
(f) the Buyer shall not charge the Services in any way nor grant nor otherwise give any interest in the Services while they remain the property of the Seller.
(g) the Seller may require payment of the Price or the balance of the Price due together with any other amounts due from the Buyer to the Seller arising out of these terms and conditions, and the Seller may take any lawful steps to require payment of the amounts due and the Price.
(h) the Seller can issue proceedings to recover the Price of the Services sold notwithstanding that ownership of the Services may not have passed to the Buyer.
(i) until such time that ownership in the Services passes to the Buyer, if the Services are so converted, the parties agree that the Seller will be the owner of the end products.

14. Security And Charge
 
14.1 Despite anything to the contrary contained herein or any other rights which the Seller may have howsoever:
(a) where the Buyer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Buyer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Seller or the Seller's nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Buyer and/or the Guarantor acknowledge and agree that the Seller (or the Seller's nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should the Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Buyer and/or Guarantor shall indemnify the Seller from and against all the Seller's costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Buyer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Seller or the Seller's nominee as the Buyer's and/or Guarantor's true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause

15. Cancellation
 
15.1 The Seller may cancel these terms and conditions or cancel delivery of Services at any time before the Services are delivered by giving written notice. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.

15.2 At the Sellers sole discretion the Buyer may cancel delivery of the Goods and/or Services. In the event that the Buyer cancels delivery of the Goods and/or Services the Buyer shall be liable for any costs incurred by the Seller up to the time of cancellation.
 
16. Privacy Act 1988
 
16.1 The Buyer and/or the Guarantor/s agree for the Seller to obtain from a credit-reporting agency a credit report containing personal credit information about the Buyer and Guarantor/s in relation to credit provided by the Seller.

16.2 The Buyer and/or the Guarantor/s agree that the Seller may exchange information about Buyer and Guarantor/s with those credit providers named in the Application for Credit account or named in a consumer credit report issued by a reporting agency for the following purposes:
(a) to assess an application by Buyer;
(b) to notify other credit providers of a default by the Buyer;
(c) to exchange information with other credit providers as to the status of this credit account, where the Buyer is in default with other credit providers; and
(d) to assess the credit worthiness of Buyer and/or Guarantor/s.

16.3 The Buyer consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
16.4 The Buyer agrees that Personal Data provided may be used and retained by the Seller for the following purposes and for other purposes as shall be agreed between the Buyer and Seller or required by law from time to time:
(a) provision of Services;
(b) marketing of Services by the Seller, its agents or distributors in relation to the Services;
(c) analysing, verifying and/or checking the Buyer's credit, payment and/or status in relation to provision of Services;
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Buyer; and
(e) enabling the daily operation of Buyer's account and/or the collection of amounts outstanding in the Buyer's account in relation to the Services.

16.5 The Seller may give information about the Buyer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Buyer; and or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Buyer.

17. General
 
17.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

17.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the District Court of Mullumbimby.

17.3 The Seller shall be under no liability whatever to the Buyer for any indirect loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by the Seller of these terms and conditions.

17.4 In the event of any breach of this contract by the Seller the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Services.

17.5 The Buyer shall not set off against the Price amounts due from the Seller.

17.6 The Seller may license or sub-contract all or any part of its rights and obligations without the Buyer's consent.

17.7 The Seller reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the Seller notifies the Buyer of such change.

17.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.

17.9 The failure by the Seller to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Seller's right to subsequently enforce that provision.

PART II: WEB SITE HOSTING
 
18. Acceptance
 
18.1 Unless expressly included in the agreement Hosting Services does not include the building or development of a web site.

18.2 Third party applications installed via Cpanel are provided:
(a) free with Hosting Services; and
(b) as is with no warranty; and
(c) with no technical support (this can be purchased on an ad hoc basis).

19. What The Seller Will Do
 
19.1 The Seller will, at its sole cost and expense:
(a) host the Buyer Web Site on the Seller's webserver; (b) ensure that from the Live Date:
(i) sufficient capacity is maintained on the Seller's webserver to enable Users access to the Buyer Web Site in a timely manner;
(ii) the Buyer Web Site is accessible to Users in accordance with the Service Levels (subject to reasonable downtime for server maintenance which has been notified to the Buyer prior to the commencement of the downtime or Web Site Maintenance in accordance with Clause 18.1(c));
(c) provide the Buyer with reasonable electronic access to the Buyer Web Site to perform maintenance services.

20. What The Seller Will Not Do
 
20.1 The Seller will not:
(a) alter or amend, or permit any person to alter or amend the Buyer's Web Site without the written consent of the Buyer;
(b) post or display on the Buyer's Web Site any advertisement, sponsorship or promotion without the written consent of the Buyer;
(c) use any user data for marketing, referral or other purposes except as expressly authorised by this agreement;
(d) sub-licence, rent, time-share, lease, lend or grant any rights to use the Buyer's Web Site; or
(e) assign, transfer or authorise anyone else to exercise the rights in any licence granted pursuant to this agreement.

21. What The Buyer Will Do
 
21.1 The Buyer will, at its sole cost and expense:
(a) develop and maintain the Buyer's Web Site;
(b) provide the Buyer's Materials to the Seller, in such form as reasonably prescribed by the Seller from time to time, and hereby grants the Seller a non-exclusive, world wide, irrevocable licence to use the Buyer's Materials for the purposes of hosting the Buyer's Web Site;
(c) do all things reasonably necessary to enable the Seller to host the Buyer's Web Site on the Seller's webserver;
(d) ensure that the Buyer's Materials supplied to the Seller do not contain:
(i) prohibited Content;
(ii) a Link to any Web Site that contains Prohibited Content; or
(iii) any viruses, trojan horses, worms, time bombs or any other software program or routine designed for or capable of interfering with the operation of the Hosting Services.

22. What The Buyer Will Not Do

22.1 The Buyer will not do anything that prevents or hinders the Seller from providing hosting services to any other person.

PART III: DEVELOPMENT OF THE WEB SITE
 
23. What The Seller Will Do
 
23.1 Upon approval of the specifications and quotation in accordance with this agreement, the Seller will:
(a) use its best endeavours to develop the Web Site in accordance with the development stages; and
(b) to the extent specified in the specifications, negotiate and procure third party agreements on behalf of the Buyer.

24. What The Buyer Will Do
 
24.1 The Buyer will, in addition to any other obligations expressed in this agreement, have the following responsibilities:
(a) provision of all data to be incorporated into the Web Site;
(b) provision of logos, designs, graphic and related materials to be incorporated into the Web Site; and
(c) provision of any other information, ideas or suggestions which are to be expressly considered by the Seller in developing the Web Site.

24.2 The Buyer will ensure that the Seller is given such information and assistance as the Seller reasonably requires to enable it to construct and maintain the Web Site.

24.3 The Seller will not be responsible for, and accepts no liability for, any deficiency or alleged deficiency in the Web Site which is attributable to:
(a) incorrect information provided by the Buyer, either pursuant to this clause or otherwise; or
(b) failure by the Buyer to provide relevant information, either pursuant to this clause or otherwise; or
(c) any third party Materials used by the Seller in creation of the Web Site.

25. Maintenance
 
25.1 Subject to Clause 25.2, the Seller will provide the maintenance services in accordance with the maintenance terms set out in the Seller's maintenance schedule.

25.2 The Buyer will procure all necessary authorisations, licences and consents to enable the Seller to have access to the Web Site in order to provide the maintenance services.
 
Please call 1300 307 661 if you have any questions.