Terms and Conditions for all Website Design, Development and Hosting Services.
These are the standard terms and conditions ("Terms and Conditions") of supply of the Hotspace Website Design, development, redesign, redevelopment,
Hosting Services and associated services including hosting, email and newsletter promotion tools (the "Services", each individually a "Service") offered
from time to time via Hotspace Partners or directly via Hotspace's web site at http://www.Hotspace.com.au/
("Hotspace Web Site").
Please read these Terms and Conditions carefully. It is a condition of your use of the Services that you ("you" and "your") comply with these Terms and
Conditions.
1.
Terms and Amendment Procedure
1.1
This agreement comprises:
1.1.1
the Terms and Conditions of this agreement;
1.1.2
the Acceptable Use Policy and the Privacy Policy (as each is respectively referred to in clause 4);
1.1.3
the Hotspace Quote for Service, if sent to you (the "Quote"); and
1.1.4
if you purchased the Services directly from Hotspace, written confirmation by Hotspace to you of receipt of payment by you of the charges applicable to the
Services ("Payment Confirmation")
1.2
This agreement commences on the date upon which Hotspace confirms to you by email or any other written medium that a Service has been commenced
("Commencement Date").
1.3
We may vary these terms or the terms of the operation of any Service, at any time by a general notice on a page of the Internet referred to on the home
page of the Hotspace Web Site at http://www.Hotspace.com.au/policies/. Changes other than price changes
will become effective upon publication of the notice.
If you purchased the Service directly from Hotspace, we may vary the charges for any Service and we will notify you of these variations either by a general
notice on a page of the Internet referred to on the home page of the Hotspace Web Site at http://www.Hotspace.com.au/policies/, or, by written notice to you. Where we vary any charges for the
Services, we will give at least 30 days notice of the change by either of the preceding means, and the new prices will apply at the end of that period.
We may at any time and without prior notice or liability to the Customer alter the Services in the course of the Service's ongoing development.
1.4
If you use a Service after publication of any change in accordance with clause 1.3, your use will constitute acceptance of the amended terms.
1.5
These terms constitute the agreement in its entirety and supersede all prior agreements.
1.6
Any reference in this agreement to Hotspace's "Supplier" is a reference to any third party service provider of Hotspace (a "Supplier"), if and to the
extent a Supplier is supplying any part of the Services to you on behalf of Hotspace.
2. Services
2.1
Hotspace will use commercially reasonable efforts to provide to you the Services described on the Hotspace Website in relation to the relevant Services you
have purchased .
2.2
You agree to provide Hotspace or its Global Partner with such contact information as Hotspace or its Supplier may reasonably require in order to provide
the Services to you ("Service Contact Information"). You further agree to provide Hotspace with any updates to such Service Contact Information, as may be
required from time to time.
2.3
You shall at all times keep your password and log-in details ("Password Details") secure. That Hotspace cannot and does not know whether you have given
access to your account and to the Services to other people (whether knowingly or not). You therefore agree that you are entirely responsible for:
2.3.1
when and how your account with Hotspace is used (including, without limitation, if your accounts and/or the Services are terminated pursuant to clause 12
(if applicable)); and
2.3.2
the actions of the people (if any) you allow to access, or transmit information through the systems of Hotspace or its Supplier, or otherwise utilise the
Services.
2.4
You agree that Hotspace may from time to time require you to provide your Password Details to Hotspace. You acknowledge that if you fail to provide such
Password Details to Hotspace if requested by Hotspace, Hotspace reserves the right not to provide any assistance to you in connection with the Services.
2.5
You agree that you are solely responsible for any of your data and content, as supplied by you and/or third parties ("Your Content") and for any other
files (including, without limitation, email files, if applicable), residing on Hotspace or its Supplier's servers.
2.6
You agree that you are solely responsible for the back-up of Your Content and any other files (including, without limitation, email files, if applicable)
unless otherwise agreed with Hotspace.
2.7
The Services provided to you under this agreement are subject to an email data volume limit of an average of 200MB per mail box in any calendar month. If
your email data volumes average in excess of 200MB per mail box per calendar month you will be charged additionally at a rate of AUD $0.11 (inc GST) per
extra MB used. The Services are also subject to data transfer bandwidth limits and/or disk space limits, as published on the Hotspace Web Site from time to
time or where not published, then with such reasonable limits as would otherwise apply ("Agreed Megabytes"). Hotspace may monitor your usage of the
Services to ensure that you are complying with the Agreed Megabytes. If data transfer bandwidth usage and/or disk space usage exceeds the Agreed Megabytes,
you agree that Hotspace may require you to purchase any additional data transfer bandwidth and/or disk space and your failure to do so may result in the
Services ceasing to operate or function. In addition you agree that if at any time your email data volume, data transfer bandwidth usage and/or disk space
usage exceeds the limit set out above, Hotspace or its Supplier may suspend any and all Services, or, in the case of Hotspace, terminate this agreement. In
the event that any such action is taken by Hotspace or its Supplier (as the context requires), you agree that you shall not be entitled to a refund of any
fees paid in advance of such corrective action.
2.8
You agree that Hotspace or its Supplier may be required to perform maintenance to maintain the continuous operation of the Supplier's servers, which
maintenance may affect the operation or functioning of the Services. We will attempt to provide you with notice of the maintenance downtime, except when
circumstances beyond the control of Hotspace or its Supplier prevent either Hotspace or its Supplier (as the context requires) from doing so. You also
agree that Hotspace or its Supplier may also be required to suspend the Services, or disconnect or deny you access to the Services, in accordance with
clause 12.1.2.
2.9
You agree that Hotspace or its Supplier shall maintain and control ownership of all IP numbers and addresses that may be assigned to you by Hotspace's
Supplier, and you further agree that Hotspace or its Supplier may, at their sole discretion, change or remove any and all such IP numbers and addresses.
2.10
You expressly grant to Hotspace and its Supplier a licence to cache the entirety of your Web Site, including Your Content, hosted by Hotspace or its
Supplier under this agreement. You agree that you shall be responsible for obtaining any agreements and/or consents required of any third party in
connection with the grant of this licence to Hotspace and its Supplier. You also agree that any such caching is not an infringement of any of your
intellectual property rights or any third party's intellectual property rights.
2.11
You agree that Hotspace's Supplier may from time to time add, remove or vary any software with respect to the Service/s, or otherwise add, remove or vary
any functionality with respect to the Service/s ("Services Change"). You hereby consent to any Services Change that may be undertaken by Hotspace's
Supplier from time to time. Hotspace will use all reasonable commercial endeavours to provide you with 60 days' notice of any Services Change that would
constitute a non-backwards compatible change.
2.12
You may from time to time request Hotspace to provide you with Your Content, where Your Content has been provided by you to Hotspace in hard copy, and
where you provided Your Content to Hotspace together with a stamped, self-addressed envelope. You agree that neither Hotspace or its Supplier will
otherwise be required to provide you with copies of Your Content. For the purposes of this clause, Your Content does not include any content which you may
import, receive, upload or download onto your Website, via a third party application or link.
2.13
You agree to take all necessary or desirable steps to ensure that any content (including, without limitation, any content pertaining to the Services that
is or could be unsuitable for children is labelled appropriately and is presented in a way that complies with all relevant laws and industry policy.
2.14
The following terms and conditions ("Additional Terms and Conditions") apply to any social media component of the Services:
2.14.1
These Additional Terms and Conditions apply in addition to your other obligations under the Terms and Conditions
2.14.2
Definitions:
Social Media means various online technologies allowing for communication through social interaction via the internet.
Social Media Provider means any provider of Social Media, such as Facebook, Twitter, Flickr, YouTube etc.
Social Media API means any application programming interface provided by a Social Media Provider.
2.14.2
You agree that you will keep any Social Media Provider user account details secure, for example password or account log-in, and not provide any other party
with these account details and that any such details entered into any Social Media API by you will only be yours, and you will not enter any other parties
Social Media account details into any Social Media API integrated with your Website.
2.14.4
You acknowledge that Hotspace has no control or relationship with any Social Media Provider or any Social Media API, and that any maintenance performed by
Hotspace may affect the functionality of any Social Media API plugin. You accept that any Social Media API plugin may not function on your Website.
2.14.5
You agree that:
i) You accept that you are responsible for all content displayed on your website, including any content displayed by any Social Media API plugin you have
integrated into your Website;
ii) You will not post any content for which you are not the owner;
iii) You are responsible for everything that happens on your Website;
iv) You are responsible for determining whether you integrate any Social Media API into your Website and whether such integration and use is in accordance
with the Social Media Policies of the relevant Social Media Provider. You also agree that you have reviewed all relevant Social Media Policies, and
acknowledge that if you choose to integrate a Social Media API, that Social Media API may access information on the Social Media Provider's service related
to you and the account you hold with Social Media Provider;
v) integration and/or use of Social Media API is at Your own risk, and is in no way endorsed by Hotspace. You acknowledge that You alone are responsible
for any content displayed on Your Website, and that Hotspace has no connection or responsibility, other than as a provider of the Service, either to you or
any third party for any content displayed;
vi) if at any time you elect to integrate any Social Media API into your Website, your use of that Social Media Provider's service must be in accordance
with any and all relevant terms and conditions, terms of service, guidelines, policies and agreements of the relevant Social Media Provider (collectively,
the "Social Media Policies"), and you will indemnify Hotspace in relation to any third party claim arising from your use of the Website service or Social
Media Provider's service;
vii) any warranties, representations, consents, affirms, indemnities, agreements, undertakings or otherwise, given by You to the Social Media Provider
pursuant to Social Media Policies, are also given by You to Hotspace;
viii) any modifications to Social Media API by Social Media Provider which results in any loss of functionality on your Website, is beyond Hotspace's
control and is an issue between You and Social Media Provider;
ix) if Social Media Provider suspends, terminates or otherwise disables your account for any reason, any Social Media API functionality for that Social
Media Provider will cease on your Website.
x) Hotspace will not be responsible for any loss of functionality of any Social Media API integrated to your Website.
2.14.7
Hotspace may disable any Social Media API functionality in Your Website if Hotspace determines in its sole discretion that any content displayed on your
Website via any Social Media API violates the AUP or infringes upon any other party's rights in any manner.
3. Billing and Payment
If you purchased the Services via one of our Global Partners, this clause 3 does not apply to you.
3.1
If you purchased the Service directly from Hotspace then you must pay for the Services in accordance with the prices and charges contained in the Quote or
as set out on the Hotspace Website (as applicable, and as amended from time to time in accordance with clause 1.3). Those fees and charges may include one
or more of:
3.1.1
a fixed non-refundable build fee, payable in advance;
3.1.2
a monthly or annual recurring fee, payable in advance;
3.1.3
custom build fees, payable in accordance with the Quote, one third non-refundable in advance, one third at 50% completion and one third on completion;
3.1.4
other customisation and optional service fees, payable on a time and materials basis in arrears;
3.1.5
excess email data volume charges payable in arrears; and
3.1.6
newsletter mail out fees payable in advance.
3.2
You must pay all prices and charges for the Services and other amounts incurred by you or any designated users or incurred as a result of any use of the
Services (whether authorised or not) in accordance with the billing provisions specified in the Payment Confirmation. You agree to keep your billing and
account information up to date and to notify Hotspace of any changes to such information from time to time.
3.3
Prices and charges published on Hotspace's Web Site or set out in the Quote are inclusive of any government taxes or charges unless otherwise stated.
3.4
You consent to Hotspace or its Supplier obtaining a credit reporting agency report containing personal information about you (as well as information
concerning commercial creditworthiness and activities) for the purpose of assessment by Hotspace of an application for credit (whether commercial or
personal) or for the purpose of the collection of payments that are overdue.
3.5
If we have invoiced you in arrears for any Services, and you fail to pay the charges in any invoice by the due date specified in any applicable billing
provisions (as referred to in clause 3.2 above) or the invoice ("Unpaid Charges"), in addition to any other rights under this agreement Hotspace may:
3.5.1
charge you interest and you agree to pay, on demand by Hotspace, interest on the Unpaid Charges at the Applicable Rate from the date the Unpaid Charges
became due until those Unpaid Charges are paid to Hotspace in full.
3.5.2
suspend or terminate the Service.
For the purposes of this clause, "Applicable Rate" means the Reserve Bank's Official Cash Rate (as published in the Australian Financial review at the time
the Unpaid Charges become due)
3.6
You agree that in the event of any action being taken by Hotspace to recover any overdue amount due to it under this agreement or the Proposal, as
evidenced for example by, without limitation, your credit card company notifying Hotspace of you disputing the payment of, or refusing to pay such charge,
or where your credit card payment has been declined or reversed, any costs incurred by Hotspace in recovering the debt (including, without limitation, any
legal expenses (on a solicitor/client basis), collection agency charges or any other reasonable associated costs incurred by Hotspace) are payable by you
to Hotspace and shall be recoverable by Hotspace as a separate debt.
4. Acceptable Use and Privacy Policy
4.1
You agree to comply with Hotspace's Acceptable Use Policy, as varied from time to time by Hotspace in accordance with clause 1.3 ("AUP"). In addition, you
agree that neither you, nor any other person whom you permit to use the Services either undertakes, or attempts to undertake, any of the following
additional prohibited activities:
4.1.1
use or access any websites, or include in Your Content, any pornography, nudity and sex-related merchandising ("Adult Material") of any sort, including by
means of creating or maintaining any links to websites containing any Adult Material;
4.1.2
create, use or maintain, or access any MP3 files or any MP3 websites, unless expressly permitted by Hotspace and/or its Supplier;
4.1.3
create, use or maintain, or access websites that promote illegal activities (including, without limitation, warez, hacking, serial numbers, cracks or
information that violates any law whatsoever);
4.1.4
create, use or maintain, or access any website whose primary purpose is file distribution or mirroring another website;
4.1.5
promote a website hosted by the Supplier through unsolicited email or spamming, irrespective of whether the unsolicited email or spam is sent through the
Supplier's email servers or not;
4.1.6
distribute copyrighted software, warez (also known as pirated software), MP3 files or Emulators/ROMs. (each an "Additional Prohibited Activity")
4.2
If we receive notice of, or otherwise become aware that you have failed to comply with any provision of this AUP, or undertake or attempt to undertake any
Additional Prohibited Activity, in addition to any other rights of Hotspace under this agreement, you agree that Hotspace or its Supplier may immediately
take corrective action, including suspension of any and all Services, or, in the case of Hotspace, terminating this agreement. In the event that any such
corrective action due to a violation of the AUP occurs, or, due to you or any other person whom you permit to use the Services undertaking or attempting to
undertake any Additional Prohibited Activity, Hotspace shall not refund to you any fees paid to Hotspace prior to such corrective action.
4.3
You agree to comply with all applicable privacy and spam legislation and Hotspace's Privacy Policy, as varied from time to time by Hotspace from time to
time in accordance with clause 1.3 ("Privacy Policy").
4.4
You agree that Hotspace may disclose your account and other information in accordance with the AUP and Privacy Policy.
5. Your Warranties
You warrant that:
5.1
you have not entered into this agreement or obtained any Services on the basis of, or in reliance on, any statement or representation (whether made orally
or in writing and regardless of the medium used) made by either Hotspace, its Global Partners or its Suppliers concerning this agreement or any of the
Services, other than any statement or representation contained in this agreement;
5.2
you are at least 18 years of age;
5.3
your use of the Services will not at the Commencement Date or thereafter, infringe the intellectual property or other proprietary rights of Hotspace, its
Supplier or any third party;
5.4
you will conduct such tests and computer virus scanning as may be necessary to ensure that any data uploaded or downloaded to and from the Server of
Hotspace's Supplier by you does not contain any computer virus and will not in any way, corrupt the data or systems of any person (including, without
limitation, Hotspace or its Supplier); and
5.5
you will otherwise at all times use the Services in accordance with this agreement (including, for the avoidance of doubt, the AUP or the Privacy Policy).
6. Our General Disclaimer of Warranties
6.1
To the extent permitted by law, neither Hotspace, its Global Partners nor its Supplier, nor any employees, affiliates, agents, suppliers, third-party
information providers, merchants, licensors nor the like (each a "Relevant Party") of Hotspace, its Global Partner or its Supplier, make any warranties of
any kind, either expressed or implied, statutory or otherwise, relating in any way to the subject matter of this agreement, including, but not limited to,
warranties of merchantability or fitness for a particular purpose, or non-infringement for the Services or any equipment provided, and all such warranties
are hereby excluded.
6.2
Hotspace agrees to use all reasonable efforts to provide the Services to you. However, you acknowledge to, and agree with, Hotspace, that nothing in this
agreement shall constitute an express or implied warranty or guarantee by any Relevant Party of Hotspace, its Global Partners or its Supplier:
6.2.1
that the Services will be uninterrupted, error free or not subject to delays (technical or otherwise);
6.2.2
that 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 Hotspace or its Supplier;
6.2.3
concerning the results or success that may be obtained from the use of the Services;
6.2.4
concerning any increase in revenue, profit or goodwill that may be obtained as a consequence of you using the Services (including, for the avoidance of
doubt, any increase in revenue, profit or goodwill in connection with any products and/or services that you may determine to offer for supply, or supply
via your web site, the Internet or otherwise ("Your Products and Services"));
6.2.5
as to the accuracy, reliability, completeness or content of the Services, any information services or merchandise contained in or provided through the
Services, or, for the avoidance of doubt, any information provided by Hotspace or its Supplier in any advice, report or communication to you or any other
party.
6.3
You acknowledge and agree that no Relevant Party exercises any control over, and accepts no responsibility for, the content of the information (including,
without limitation, Your Content) passing through the Supplier's host computers, network hubs and points of presence or the Internet, nor, for any of Your
Products and Services (if applicable).
6.4
You further agree that no Relevant Party shall be liable for:
6.4.1
Your Content or loss of any of Your Content or files (including, without limitation, email files, if applicable) transferred either to or from you or
stored or backed-up by you or any of your customers via the Services; and/or
6.4.2
any damage to or loss to Your Content as a result of any request by you pursuant to clause 2.11.
7. Indemnity
You will indemnify and defend Hotspace , its subsidiaries and its Supplier and all directors, officers, employees, and agents of Hotspace , its
subsidiaries and its Supplier (each an "Indemnified Party") from and against any and all claims, damages, losses, liabilities, suits, actions, demands,
proceedings (whether legal or administrative) and expenses (including but not limited to reasonable legal fees) incurred by any Indemnified Party arising
out of, or directly or indirectly relating to:
7.1
Your Products and Services (if applicable); and/or
7.2
any breach of this agreement by you; and/or
7.3
the use of the Services by you; and/or
7.4
any Services Change (as contemplated by clause 2.10); and/or
7.5
the implementation of the AUP by Hotspace, any action taken by Hotspace in accordance with the AUP, or, any breach or violation of the AUP; and/or
7.6
any action taken by Hotspace or its Supplier in connection with you undertaking or attempting to undertake any Additional Prohibited Activity.
Such claims shall include, but shall not be limited to, claims based upon trademark, service mark, trade name, copyright and patent infringement, trademark
dilution, tortious interference with contract or prospective business relations, unfair competition, restrictive trade practices, misleading statement,
misleading or deceptive conduct, breach of contract, defamation or injury to reputation, or other injuries or damage to business.
8. Limitation of Liability
8.1
You agree that neither Hotspace nor its Supplier shall be liable for any indirect, incidental, special or consequential damages, or loss of profits,
revenue, data or use, suffered by you or any third party, whether in an action in contract, tort or strict liability or other legal theory, even if
Hotspace or its Supplier (as the case may be) has been advised of the possibility of such damages.
8.2
Subject to clause 8.1, you further agree that the aggregate liability of Hotspace and its Supplier for any damages, losses and causes of actions whether in
contract or tort (including negligence or otherwise) shall not exceed the actual dollar amount paid by you for the Service which gave rise to such damages,
losses and causes of actions.
8.3
You agree that 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, the liability of Hotspace and its
Supplier for any breach of the term will, if permitted by that statute, be limited, at our option, to the re-supply of the services again; or payment of
the cost of having the services supplied again.
8.4
We acknowledge that some jurisdictions do not allow the exclusion or limitation of warranties or incidental or consequential damages, so that the above
limitations or exclusions may not apply to you. In such jurisdictions, the liability of Hotspace and its Supplier (and the liability of any director,
officer, employee, agent, affiliate, content provider or service provider of Hotspace and its Supplier) shall be limited to the greatest extent permitted
by applicable law.
9. Intellectual Property
9.1
You acknowledge that all right, title and interest in any and all:
9.1.1
technology, including the software;
9.1.2
any documentation and material that is part of or provided with the Services; and
9.1.3
any know-how, trademarks or service marks of Hotspace or its Supplier, (collectively, "Our Intellectual Property") is vested in Hotspace, its Supplier
and/or the licensors of Hotspace or its Supplier (as the context requires).
9.2
Unless otherwise specifically provided in this agreement, you agree that you shall have no right, title, claims or interest in or to Our Intellectual
Property.
9.3
You may not copy, modify or translate any of Our Intellectual Property or related documentation, or decompile, disassemble or reverse engineer any of Our
Intellectual Property, to use it other than in connection with the Services, or grant any other person or entity the right to do so.
9.4
Unless otherwise specifically permitted by this agreement, you are not authorised to distribute or to authorise others to distribute any of Our
Intellectual Property in any manner without the prior written consent of Hotspace and/or its Supplier (as the context requires); provided, however, that
nothing in this clause 9.4 shall preclude you from using Our Intellectual Property as incorporated in the Services. This clause 9.4 shall not operate to
extinguish, restrict, vary, waive or affect in any manner whatsoever any right, title or interest which you may now have or hereafter acquire in, or in
relation to, the third-party software that is part of or provided with the Services solely to the extent such third-party licensors publicly provide such
rights, title or interest in the third-party software to you.
10. Confidential Information
You acknowledge that, in the course of the performance of this agreement, you may have access to customer information and communications, including
proprietary information claimed to be unique, secret, or confidential, and which constitutes the exclusive property and trade secrets of Hotspace or its
Supplier ("Confidential Information"). You agree to maintain the confidentiality of the Confidential Information and to use the Confidential Information
only to the extent necessary for legitimate business uses in connection with this agreement. Upon request of Hotspace or on termination or expiration of
this agreement, you shall return the Confidential Information of Hotspace or its Supplier then in your possession to Hotspace or its Supplier. Nothing in
this agreement shall prohibit or limit your use of information which (a) is now, or hereafter becomes, publicly known or available through lawful means;
(b) is rightfully in your possession, as evidenced by your records; (c) is disclosed to you without confidential or proprietary restriction by a third
party who rightfully possesses and rightfully discloses the information; (d) is independently developed by you without any breach of this agreement; (e) is
the subject of a written permission to disclose provided by Hotspace and/or its Supplier (as the context requires); or (f) is required by law to be
disclosed.
11. Force Majeure
Neither Hotspace nor its Supplier shall be liable for failure or delay in performing its obligations under this agreement if such failure or delay is due
to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire,
flood, strike or other labour disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or
third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of
the Services.
12. Suspension or Termination of this agreement
12.1
In addition to any other rights of suspension under this agreement, Hotspace, its Global Partner its Supplier may from time to time without notice to you
suspend a Service, or disconnect or deny you access to any Service:
12.1.1
if you fail to comply with any provision in this agreement (including failure to pay charges due, or, for the avoidance of doubt, any provision in the AUP
or Privacy Policy), or do, or allow to be done, anything which in our opinion may have the effect of jeopardising the operation of the Service, until the
breach (if capable of remedy) is remedied to the satisfaction of Hotspace or its Supplier (as the context requires);
12.1.2
during any technical failure, modification or maintenance involved in the Service provided that we will use reasonable endeavours to procure the resumption
of the Services as soon as reasonably practicable.
Notwithstanding any suspension of any Service under this clause 12.1, you shall remain liable for all charges due at the commencement of the suspension
period throughout the period of suspension.
12.2
In addition to any other rights under this agreement, you agree that Hotspace may without notice to you remove, amend or alter your data upon being made
aware of:
12.2.1
any court order, judgment, determination or other finding of a court or other competent body, that the data is illegal, defamatory, offensive or in breach
of a third party's rights;
12.2.2
if directed to do so by the Australian Broadcasting Authority under a "take down notice", in accordance with the Broadcasting Services Amendment (Online
Services) Act 1999 (as amended or replaced from time to time) if we determine (acting reasonably) that such Act applies to you; or
12.2.3
an outside party or outside device disrupting or attempting to disrupt the Services.
12.3
In addition to any other rights of termination under this agreement. Hotspace may terminate this agreement and cease providing the Services to you at any
time on 30 days written notice to you. You may terminate this agreement and cease obtaining any Services from Hotspace, or, terminate any Service/s being
provided by Hotspace to you, on 30 days' written notice to Hotspace in accordance with the process specified by Hotspace from time to time.
12.4
In addition to clause 12.3, and, in addition to any other rights of termination under this agreement, Hotspace may terminate this agreement and cease
providing the Services to you at any time on written notice to you if Hotspace has at any time suspended any Service or disconnected or denied access to
any Service under clause 12.1.1.
12.5
Where Hotspace supplies a Service to you through a Supplier, Hotspace may terminate and replace such Supplier at any time without notice to you. Hotspace
will, however, endeavour to replace such Supplier:
12.5.1
with no or minimal disruption to the supply of the Services; and
12.5.2
on substantially the same terms as are set out in this agreement.
12.6
Where Hotspace is unable to comply with clause 12.5.2, you may terminate your agreement with Hotspace and cease obtaining any Service/s from Hotspace
within 30 days' of being notified of the new terms on which Hotspace intends to supply the relevant Service/s to you. Where you terminate your agreement
with Hotspace under this clause 12.6, Hotspace will refund you any fees previously paid by you on a pro rata basis.
12.7
In addition to any other obligation under this agreement, if you terminate any Service or, either Hotspace or you terminate this agreement:
12.7.1
you must pay all outstanding charges (including, without limitation, data transfer bandwidth over-usage charges and/or disk space over-usage charges) to
Hotspace immediately;
12.7.2
other than if the termination occurs under clause 12.6, you must pay any charges that Hotspace incurs from its Supplier in relation to any charges that
Hotspace's Supplier incurs in connection with migrating your data or retrieving any of your emails following termination of this agreement;
12.7.3
any licence issued to or by you in relation to the Services will cease from the date of termination; and
12.7.4
Hotspace or its Supplier may delete all data, including Your Content or files (including, without limitation, email files, if applicable) from any storage
media without any liability to you whatsoever.
13. Cancellation
13.1
You may cancel a Service/Services in accordance with this clause 13. This clause 13 shall not apply where you terminate this agreement and cease obtaining
the Services from Hotspace pursuant to clause 12.6.
13.2
You may cancel a Service/s in accordance with clause 12.3. Where you cancel a Service/s in accordance with clause 12.3, you will be required to pay
Hotspace a cancellation fee equal to an administrative fee which shall be either a fee of AUD$25, or, a fee equivalent to the Plan Cost payable with
respect to the Services for two months, whichever is greater, which Hotspace may deduct from any payments you have previously paid Hotspace with respect to
the Service/s.
13.3
Where you have cancelled any Service/s pursuant to clause 13.2, subject to your payment of the applicable cancellation fee as specified in clause 13.2, and
any payments required by clause 12.7, Hotspace will refund you for any other payments you have previously paid to Hotspace with respect to the Service/s
being cancelled unless otherwise expressed to the contrary in this agreement (including, without limitation, pursuant to clauses 2.6 or 4.1).
14. Miscellaneous
14.1
The law in force in Victoria, Australia governs this agreement and the transactions contemplated by this agreement.
14.2
In the event it is necessary for Hotspace to enforce its rights under this agreement, you agree to pay all fees incurred by Hotspace (including, but not
limited to, legal fees and collection agency fees).
14.3
This agreement shall be binding upon and inure to the benefit of you, your respective successors and assigns. You may not resell any Services or assign
your rights and obligations under this agreement without the prior written consent of Hotspace.
14.4
A provision of, or a right created under this agreement, may not be waived except in writing signed by the party granting the waiver, or varied except in
writing signed by the parties.
14.5
If any provision of this agreement is held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this agreement
shall remain in full force and effect.
