Web Hosting Terms and Conditions
Koch Products Pty. Ltd. (trading as "eCommerce Websites") agrees to provide use of our dedicated
servers ("Service") to the Subscriber ("Customer") subject to these Terms of
Service ("ToS") outlined below and our Acceptable Use Policy ("AUP").
Use of any of the services provided by eCommerce Websites constitutes acceptance and agreement to the eCommerce
Acceptable Use Policy as well as the eCommerce Websites ToS (Terms of Service) by the Customer. We occasionally may
have promotions and make special offers available for limited time duration on a particular Service we offer, all
promotions are offered subject to this Terms of Service agreement and only differ with regards to the the
promotional or special offer Service price unless otherwise stated.
The AUP specifically prohibits the use of our service for illegal activities. Therefore, Customer agrees that
eCommerce Websites may disclose any and all Customer information including assigned IP numbers, account history,
account use, etc. to any
law enforcement agent who makes a verifiable written request without further consent or notification to the
Customer. In addition eCommerce Websites shall have the right to terminate all service set forth in this Agreement.
These ToS shall be governed by and construed in accordance with the laws of the state of Victoria. Customer and
eCommerce Websites agree to submit to the exclusive jurisdiction of the courts of the state of Victoria.
any provision(s) of these Terms and Conditions is held by a court of competent jurisdiction to be contrary to law,
then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties with the
other provisions remaining in full force and effect.
eCommerce Websites' failure to exercise or enforce any
rights or provisions of these ToS shall not constitute a waiver of such right or provision unless acknowledged and
agreed to by eCommerce Websites in writing. Customer and eCommerce Websites agree all disputes against eCommerce
Websites by Customer must first go to non-binding mediation, and attempt to resolve the dispute in good faith, in
the venue and jurisdiction of eCommerce Websites choice. Failure of Customer to attempt a good faith resolution in
non-binding mediation shall prohibit Customer from proceeding in a civil court action, any cause of action arising
out of or related to this Service which cannot be resolved by mediation must commence within one (1) year after the
cause of action arose; otherwise, such cause of action is permanently barred and you and eCommerce Websites forever
waive any such cause of action.
2. SERVICE RATES:
Customer acknowledges that the nature of the
service furnished and the initial rates and charges have been communicated to Customer. Customer is aware that
eCommerce Websites may prospectively change the specified rates and charges periodically as necessary. Any
promotional offers are contingent upon eCommerce Websites achieving and maintaining its cost of service goals
including but not limited to rates charged to eCommerce Websites by its suppliers.
3. SERVICE PAYMENT:
Establishment of Service is dependent upon receipt by eCommerce Websites of payment of stated charges. Subsequent
payments are due on the anniversary date of the month for that month's service. All accounts and services provided
by eCommerce Websites are subject to the current GST tax rate as imposed by the Australian Federal Government which
is currently 10%.
The above applies to all accounts and services provided by eCommerce Websites.
4. FEE PAYMENTS:
Credit card payments that are declined for any reason may be subject to a small
administrative payment declination charge. Service will be interrupted on accounts that reach 7 days past due.
Service interrupted for non-payment is subject to a reconnection charge, any relevant reconnection charges will be
detailed in Customer's disconnection notice.
Accounts not paid by due date may be subject to a late payment fee. Accounts that are not collectible by eCommerce
Websites may be turned over to an outside collection agency for collection. If your account is turned over for
collection, you agree to pay eCommerce Websites a "Processing and Collection" Fee of not less than $100 nor more
than $300. If you desire to cancel your account, please follow the proper procedure to do this as outlined in this
6. DISPUTES AND REFUNDS:
All valid payments to eCommerce Websites are Non-Refundable. This includes the one time initial
setup fee and subsequent charges regardless of usage. All overcharges or billing disputes must be reported within 60
days of the time the disputed charge occurred. If you dispute a charge to your credit card issuer ("Chargeback")
that, in eCommerce Websites' sole discretion is a valid charge under the provisions of the ToS and / or AUP, you
agree to pay eCommerce Websites an "Administrative Fee" of not less than $50 AUD and not more than $150 AUD.
7. PAYMENT FAILURE:
eCommerce Websites may temporarily deny Service or terminate this Agreement upon the failure of Customer to pay
charges that are due. Such termination or denial will not relieve Customer of their responsibility for the payment
of all accrued charges, plus reasonable interest and any collection fees.
8. SERVICE INTERRUPTION:
Customer acknowledges that the service provided is of such a nature that service can be interrupted for many reasons
other than the negligence of eCommerce Websites and that damages resulting from any interruption of service are
difficult to ascertain. Therefore, Client agrees that eCommerce Websites shall not be liable for any damages arising
from such causes beyond the direct and exclusive control of eCommerce Websites. Subscriber further acknowledges that
eCommerce Websites' liability for its own negligence may not in any event exceed an amount equivalent to charges
payable by subscriber for services during the period damages occurred. In no event shall eCommerce Websites be
liable for any special or consequential damages, loss or injury.
eCommerce Websites, provides technical support 9AM to 5PM, Monday to Friday (with servers and our data centre being
monitored 24 x 7 - except for few holidays and short company meetings when we close our centre.) We limit our
technical support to our area of expertise. The following is our guidelines when providing support: eCommerce
Websites provides support related to your server functioning. eCommerce Websites does not offer tech support for
non-application specific issues.
If you are able to get online and have other questions, the answers may be on our website - we encourage you to
there first. Lastly, the Help files in the program you are using may have the answer to your question so please do
investigate these resources before contacting tech support.
10. SPAM AND UCE (Unsolicited Commercial Email):
eCommerce Websites takes an absolute zero
tolerance approach to the sending of Unsolicited Commercial Email (UCE) or SPAM over our network. Very simply this
means that Customers of eCommerce Websites may not use or permit others to use our network to transact in UCE.
Customers of eCommerce Websites may not host, or permit hosting of, sites or information that is advertised by UCE
from other networks. Violations of this policy carry severe penalties, including termination of service.
PLEASE, DO NOT SPAM from your account.
Violation of eCommerce Websites' SPAM policy will result in severe penalties. Upon notification
of an alleged violation of our SPAM policy, eCommerce Websites will initiate an immediate investigation (within 48
hours of notification). During the investigation, eCommerce Websites may restrict customer access to the network to
prevent further violations. If a customer is found to be in violation of our SPAM policy, eCommerce Websites may, at
its sole discretion, restrict, suspend or terminate customer's account. Further, eCommerce Websites reserves the
right to pursue civil remedies for any costs associated with the investigation of a substantiated policy violation.
eCommerce Websites will notify law enforcement officials if the violation is believed to be a criminal offence.
First violations of this policy will result in an "Administrative Fee" of $400 AUD and your
account will be reviewed for possible immediate termination. A second violation will result in an "Administrative
Fee" of $800 AUD and immediate termination of your account. Users who violate this policy agree that in addition to
these "Administrative" penalties, they will pay "Research Fees" not to exceed $300 AUD per hour that eCommerce
Websites personnel must spend to investigate the matter.
(i) IP Address Ownership: If eCommerce Websites assigns Customer an Internet Protocol address for
Customer's use, the right to use that Internet Protocol address shall belong only to eCommerce Websites, and
Customer shall have no right to use that Internet Protocol address except as permitted by eCommerce Websites in its
sole discretion in connection with the Service, during the term of this Agreement. eCommerce Websites shall maintain
and control ownership of all Internet Protocol numbers and addresses that may be assigned to Customer by eCommerce
Websites, and eCommerce Websites reserves the right to change or remove any and all such Internet Protocol numbers
and addresses, in its sole and absolute discretion.
Our allocation of IP addresses is limited by APNIC's policies. These policies state that use of IP addresses for IP
based virtual hosts will not be accepted as justification for new IP addresses. What this means to you is that you
MUST use name-based hosting wherever possible. We will periodically review IP address usage, and if we find that
clients are using IP addresses where name-based hosting could be used, we will revoke authorization to use those IP
addresses that could be used with name-based hosting.
(ii) Bandwidth and Disk Usage: Customer agrees that bandwidth and disk usage shall not exceed the
number of megabytes per month for the Services ordered by Customer on the Order Form (the "Agreed Usage"). eCommerce
Websites will monitor Customer's bandwidth and disk usage. In relation to Bandwidth monitoring a Megabyte is
considered 1000 Kilobytes and a Gigabyte is 1000 Megabytes. eCommerce Websites shall have the right to take
corrective action if Customer's bandwidth or disk usage exceeds the Agreed Usage. Such corrective action may include
the assessment of additional charges, disconnection or discontinuance of any and all Service, or termination of this
Agreement, which actions may be taken is in eCommerce Websites' sole and absolute discretion.
If eCommerce Websites takes any corrective action under this section, Customer shall not be entitled to a refund of
any fees paid in advance prior to such action. In the event that a customer exceeds the included allocation,
eCommerce Websites may, at its sole discretion, collect a deposit, in an amount determined by eCommerce Websites,
against customer's credit card on file with eCommerce Websites.
(iii) System and Network Security: Users are prohibited from violating or attempting to violate the
security of the eCommerce Websites Network. Violations of system or network security may result in civil or criminal
liability. eCommerce Websites will investigate occurrences, which may involve such violations and may involve, and
cooperate with, law enforcement authorities in prosecuting Users who are involved in such violations.
These violations include, without limitation:<br> a. Accessing data not intended for such user or logging into a server or account, which such user is not authorized to access.<br> b. Attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization.<br> c. Attempting to interfere with Service to any user, host or network, including, without limitation, via means of overloading, "flooding", "mail bombing" or "crashing".<br> d. Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.<br> e. Taking any action in order to obtain services to which such user is not entitled.
12. VIOLATION NOTIFICATION:
(i) eCommerce Websites is under no duty to look at each Customer's or user's activities to
if a violation of the AUP has occurred, nor do we assume any responsibility through our AUP to monitor or police
(ii) First violation: Any User, which eCommerce Websites determines to have violated any element of
this Acceptable Use Policy, shall receive notification, warning them of the violation. The Service may be subject at
eCommerce Websites' discretion to a temporary suspension pending a User's agreement in writing, to refrain from any
(iii) Second Violation: Users that eCommerce Websites determines to have committed a second
violation of any element of this Acceptable Use Policy shall be subject to immediate suspension or termination of
service without further notice.
(iv) We reserve the right, to drop the section of IP space involved in Spam or Denial-of-Service
complaints if it is clear that the offending activity is causing great harm to parties on the Internet.
In particular, if open relays are on your network or a customer's network, or if denial of service attacks are
originating from your network. In certain rare cases, we may have to do this before attempting to contact you. If we
do this, we will contact you as soon as is feasible.
13. SERVICE SUSPENSION OR CANCELLATION:
eCommerce Websites reserves the right to suspend network access to any Customer if in the judgment of the eCommerce
Websites network administrators the Customer's server is the source or target of the violation of any of the other
terms of the AUP or for any other reason which eCommerce Websites chooses. If inappropriate activity is detected,
all accounts of the Customer in question will be deactivated until an investigation is complete. Prior notification
to the Customer is not assured.
In extreme cases, law enforcement will be contacted regarding the activity. The Customer will not be credited for
time the Customer's machines were suspended.
eCommerce Websites reserves the right to amend its policies at any time. All Sub-Networks, resellers and managed
servers of eCommerce Websites must adhere to the ToS and AUP. Failure to follow any term or condition will be
grounds for immediate Cancellation. You will be held responsible for the actions of your clients in the matter
described on these Terms of Service. Therefore, it is in your best interest to implement a similar or stricter Terms
eCommerce Websites wishes to emphasize that in agreeing to the eCommerce Websites AUP and ToS, Customer indemnifies
eCommerce Websites for any violation of the Acceptable Use Policy (AUP) and Terms of Service (ToS) that results in
loss to eCommerce Websites or the bringing of any claim against eCommerce Websites by any third-party.
You must provide us with, and keep current, good contact information for you. E-mail, fax, and telephone contacts
are used, in that order of preference.
(i) A waiver by eCommerce Websites of any breach of any provision of this Agreement by Customer
shall not operate as or be construed as a continuing or subsequent waiver thereof or as a waiver of any breach of
any other provision thereof.
(ii) Customer shall not transfer or assign this Agreement without the prior written consent of
eCommerce Websites. eCommerce Websites may assign Agreement at anytime without consent from or notice to Customer.
eCommerce Websites reserves right to cancel Customer's rights under this contract at anytime without further
(iii) eCommerce Websites takes no responsibility for any material input by others and not posted to
the eCommerce Websites Network by eCommerce Websites. eCommerce Websites is not responsible for the content of any
other websites linked to the eCommerce Websites Network; links are provided as Internet navigation tools only.
eCommerce Websites disclaims any responsibility for any such inappropriate use and any liability to any person or
party for any other person or party's violation of this policy.
(iv) eCommerce Websites is not responsible for any damages your business may suffer. eCommerce
Websites does not make implied or written warranties for any of our services. eCommerce Websites denies any warranty
or merchantability for a specific purpose. This includes loss of data resulting from delays, non-deliveries, wrong
delivery, and any and all service interruptions caused by eCommerce Websites.
We may vary these terms, the amount we charge for any service, or the terms of the operation of any services
provided by eCommerce Websites at any time by general notice displayed publicly on our website on the internet at
www.ecommercewebsites.com.au , the changes become effective upon
publication of the notice. Where we vary the prices for Service, we will give at least 14 days notice of the change
by the same means, and the new prices will apply at the end of that period.
If you use the Service after that publication, your use will constitute an acceptance of the amended terms. These
terms constitute the agreement in its entirety and supersede prior agreements. Customer understands that change to
the AUP or Terms of Service or any other relevant policy by eCommerce Websites shall not be grounds for early
contract termination or non-payment.
18. CONTENT RESPONSIBILITY:
Customer is solely responsible for the content stored on and served by their website.
eCommerce Websites Design & Development Agreement
The following agreement ("Agreement") contains the complete terms and conditions that will apply between you ("Customer") and "eCommerce Websites" at 170 Peel Street, Windsor VIC 3181 Australia if all of the following conditions are met: (1) you read and agree to the terms and conditions of the Agreement and indicate your acceptance of the terms and conditions of the Agreement by clicking "I Agree" at the Order Page; (2) you fully and correctly submit all information requested of you in the Order/Content Form; and (3) you submit proper payment pursuant to Section 3, of this Agreement. This Agreement shall become effective on the date (the "Effective Date") that payment is received and accepted by eCommerce Websites.
ECOMMERCE WEBSITES IS WILLING TO PROVIDE DESIGN AND DEVELOPMENT SERVICES TO YOU ONLY UPON THE CONDITION THAT
YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. PLEASE READ THIS AGREEMENT CAREFULLY. IF YOU DO NOT
TO THE TERMS HEREIN, ECOMMERCE WEBSITES IS UNWILLING TO PROVIDE SERVICES TO YOU.
WHEREAS, eCommerce Websites has developed, owns and markets proprietary, Internet-based, e-commerce solutions and
offers web site hosting services on the Internet; and
WHEREAS Customer wishes to purchase the web design and development services of eCommerce Websites;
NOW THEREFORE, in consideration of the premises and the mutual covenants and agreements herein contained, eCommerce
Websites and Customer agree as follows:
A) "Deliverables" means any work designed, created, and/or produced by eCommerce Websites in
connection with this Agreement and as further set forth in the Statement of Work.
B) "Software" means the eCommerce software, current release version, including any updates provided
by eCommerce Websites, and eCommerce Websites’s proprietary technology and source code.
C) "Statement of Work" means the information provided by Customer to eCommerce Websites in
responses to the Design Preferences Form.
D) "Development Services" means the services described in Section 2 of this Agreement.
E) "Customer’s Content" means any computer programs, designs, data, video or audio materials,
graphics or other materials provided by Customer to eCommerce Websites pursuant to this Agreement. Customer’s
Content includes, but is not limited to, end user data collected by Customer, and information regarding merchandise
or services sold by Customer through its Web Site.
F) "Custom Work Product" means all designs, discoveries, inventions, products, computer programs,
procedures, improvements, developments, drawings, notes, documents, information, and materials made, conceived, or
developed by eCommerce Websites after the Effective Date on behalf of Customer in furtherance of the Web Site or
other Services provided to Customer under the terms of this Agreement, and paid for by Customer. Custom Work Product
does not include any preexisting software owned by eCommerce Websites, or any Customer Content or any third party
software products incorporated into the Custom Work Product.
G) "Generic Modules" means discrete computer program subroutines that are not specific to the
functions of the Custom Work Product but are useful generally in eCommerce Websites’s business and that are
designated as "Generic Modules" in writing signed by both parties.
H) "eCommerce Websites Technology" means any and all existing software, technology, know how,
algorithms, procedures, techniques, and solutions associated with the use, design, development, testing, and
distribution of the Custom Work Product and improvements to such existing software and related technology, which
technology is owned by eCommerce Websites or its suppliers and used by eCommerce Websites in the development effort
I) "Intellectual Property" means intellectual property or proprietary rights, including but not
limited to copyright rights, moral rights, patent rights (including patent applications and disclosures), rights of
priority, mask work rights, and trade secret rights, recognized in any country or jurisdiction in the world.
J) "eCommerce Websites’s Content" means any and all material developed by eCommerce Websites and
made available for use by Customer, including any designing of Customer’s Web Site, and templates prepared by
eCommerce Websites for use by Customer.
K) "Web Site" means Customer’s Internet presence, identified by the domain name provided by
2. WEB SITE DEVELOPMENT SERVICES
A) Development Services. eCommerce Websites agrees to provide web site development, and related
services that substantially comply with the Statement of Work.
B) Testing. eCommerce Websites will provide Customer with a link to the Deliverables. Customer
shall have 14 days after eCommerce Websites provides the link to inspect and test the Deliverables to determine if
it conforms to the Statement of Work. If the Deliverables fail to materially conform to the specifications in the
Statement of Work, Customer shall give eCommerce Websites written notice of the failure describing the defect in the
Deliverable with sufficient specificity so as to allow eCommerce Websites to easily identify and rectify the
failure. Such specificity should include specific page, file or URL references and detailed information about the
nature of the defect.
C) Time to Cure. eCommerce Websites shall then have 30 days to remedy such failure or defect and
redeliver such Deliverables to Customer. Customer shall have 14 days after eCommerce Websites redelivers to inspect
and test the Deliverables to determine if it conforms to the Statement of Work. If the Deliverables continue to fail
to materially conform to the specifications in the Statement of Work, then: (i) either Party may terminate this
Agreement; or (ii) if both Parties agree, eCommerce Websites will be given an opportunity to cure any defects in
accordance with this section.
D) Acceptance. The Deliverables shall be deemed to be accepted (a) upon written notice by Customer
to eCommerce Websites of such acceptance or (b) upon expiration of the time period for Customer’s inspection without
written notice to eCommerce Websites that the Customer believes the Deliverables fail to conform to Specification in
the Statement of Work. Customer shall not unreasonably withhold or delay acceptance.
Fees. In consideration of the Design and Development Services, Customer will pay to eCommerce
Websites all fees due according to the prices and terms listed in the order invoice. All sales are final, and
eCommerce Websites offers no partial or full refunds.
Payment. Development and setup fees are due immediately. If a payment is returned or rejected by
eCommerce Websites’s bank, or incurs additional costs for eCommerce Websites (e.g., bank fees) for any reason, then
Customer shall pay a service fee of $40 and reimburse all such fees and costs incurred by eCommerce Websites, and
Customer shall be immediately deemed to be in default of this Agreement. All amounts in default are subject to a
late payment charge of 1.5% per month, or the maximum amount permitted by law, whichever is less, until fully paid.
If Customer defaults, Customer agrees to pay eCommerce Websites its reasonable expenses, including legal and
collection agency fees, incurred in enforcing its rights.
Taxes. All fees charged by eCommerce Websites for the Services and Deliverables are exclusive of
all taxes and similar fees now in force or enacted in the future imposed on the transaction and/or the delivery of
Deliverables, all of which Customer will be responsible for and will pay in full, except for taxes based on
eCommerce Websites’s net income. If eCommerce Websites is required to pay directly any such taxes, Customer will,
upon receipt of eCommerce Websites’s invoice, promptly reimburse eCommerce Websites for any such taxes paid by
Customer may not sublicense or resell any of eCommerce Websites’s Services to any third parties without the prior
written permission of eCommerce Websites. Any attempts to do so would be considered a material breach and grounds
for termination of this Agreement.
5. USE OF CUSTOMER’S NAME AND TRADEMARKS
Customer hereby grants eCommerce Websites a non-exclusive right and license to use Customer’s name and such of
Customer’s trade names, trademarks, and service marks (collectively, "Customer’s Marks") as are listed on Customer’s
Content or otherwise provided to eCommerce Websites in connection with this Agreement (a) on eCommerce Websites’s
own Web Sites, (b) in printed and online advertising, publicity, directories, newsletters, and updates describing
eCommerce Websites’s Services, and, (c) in applications reasonably necessary and ancillary to the foregoing.
Customer may use eCommerce Websites’s trade name, trademarks, and service marks (collectively, "eCommerce Websites’s
Marks") in advertising and publicity in conjunction with the offering of Customer’s Content via eCommerce Websites,
provided that Customer shall submit copy to eCommerce Websites for its prior written approval, and provided further
that under no circumstances shall such use imply that eCommerce Websites endorses, sponsors, certifies, approves or
is responsible for Customer’s Content. Notwithstanding the foregoing, Customer need not obtain eCommerce Websites’s
prior written approval where use of eCommerce Websites’s Marks is limited to inclusion in a list of systems via
which Customer’s Content is available.
Termination For Breach. Each Party shall have the right to terminate this Agreement upon Fifteen
(15) days prior written notice if the other Party is in material breach of any term of this Agreement, including
without limitation the payment of monies, and the breaching Party fails to remedy such breach within the fifteen day
7. CUSTOMER’S CONTENT
A) Ownership of Content. Customer acknowledges and agrees that (a) unless expressly stated
elsewhere, eCommerce Websites has no proprietary, financial, or other interest in Customer’s Content; (b) eCommerce
Websites does not, by virtue of offering or hosting Customer’s Content, edit, distribute, market, sublicense,
publish, or otherwise provide Customer’s Content to end users; and (c) Customer is solely responsible for the
information, data, graphics, text, quality, performance, and all other aspects of its Content. Customer warrants
that it owns or has the right to use and offer the Content in connection with Customer’s Marks in the manner in
which such Content is offered and will be offered by Customer during the term of this Agreement.
B) Protection of Content. Customer acknowledges and agrees that Customer is solely responsible for
ensuring the integrity of its Content. Although eCommerce Websites may, from time to time, provide data backup
services, Customer is advised that eCommerce Websites in no way is responsible for any damages resulting from the
loss of Customer’s Content, regardless of the reason for such loss. Customer is solely responsible for backing
up/archiving Customer’s Content.
8. ECOMMERCE WEBSITES’S CONTENT
Upon payment of any fees charged for the development of eCommerce Websites’s Content, eCommerce Websites hereby
provides Customer with a non-exclusive, royalty-free, irrevocable, non-supported license to use eCommerce Websites’s
Content as part of Customer’s Web Site. Customer agrees to maintain a text hyperlink to
"http://www.ecommercewebsites.com.au" in the footer of the website. The link must be standard html, contain no
9. RIGHTS IN DATA AND WORKS
A) Grant of License. Upon final and full payment of all fees associated with the Deliverables,
eCommerce Websites grants to Customer a limited, non exclusive, license to use, reproduce, display, and perform,
works based upon the Deliverables, eCommerce Websites Technology, the Generic Modules, and all Intellectual Property
rights contained in the Custom Work Product. This license shall only extend to the extent necessary for the Customer
to maintain a Web Site while hosted with eCommerce Websites.
B) eCommerce Websites’s Rights. Custom Work Product, Software, eCommerce Websites’s Content,
eCommerce Websites Technology, the Generic Modules, and all Intellectual Property rights contained therein are and
will remain the sole and exclusive property of eCommerce Websites.
C) eCommerce Websites’s Rights to Customer Content. Customer grants to eCommerce Websites a non
exclusive, worldwide, perpetual, royalty free license to reproduce, modify, display, perform, adapt, transmit,
distribute, improve, and otherwise use the Customer Content in connection with eCommerce Websites’s performance
under this Agreement.
D) eCommerce Websites’s Right to Re-Use Deliverables. Customer understands and specifically
acknowledges that eCommerce Websites may, in its sole discretion, use some or all of the Deliverables (excluding
Customer Content) in the future in commercial development projects for other customers. Nothing in this Agreement
shall be construed to limit eCommerce Websites’s right to do so or to use any information in non-tangible form
retained by eCommerce Websites as ideas, information and understandings retained in the human memories of its
employees, contractors and agents, provided that eCommerce Websites may only use information of general
applicability and not Customer’s Confidential Information. This provision shall not be construed to operate to grant
eCommerce Websites any rights under Customer’s patents or copyrights.
E) Customer to Cooperate. Customer will provide reasonable assistance and cooperation to eCommerce
Websites to acquire, transfer, maintain, perfect, and/or enforce the Intellectual Property rights in the Web Site
(excluding Customer Content) and Custom Work Product, including, but not limited to, execution of a formal
assignment or such other documents as may be reasonably requested by eCommerce Websites.
F) Security Interest. To the extent that Customer has any interest or right with respect to the
Deliverables, such interest or right shall be subject to (and Customer hereby grants to eCommerce Websites) a
security interest to the extent of the difference between the payments that are due and are actually made by the
Customer for such Deliverables and the fees set forth in Exhibit A. Upon request of eCommerce Websites, Customer
shall execute any instrument required to perfect such security interest.
10. POINT OF CONTACT
Customer shall designate a single Point of Contact. Customer’s Point of Contact shall have full authority to enter
into agreements and make binding decisions on behalf of Customer. Customer agrees that eCommerce Websites may rely
on representations made by Customer’s Point of Contact. Customer may change its Point of Contact at any time by
giving written notice to eCommerce Websites in accordance with the notice provisions of this Agreement. eCommerce
Websites is under no obligation to accept instructions from anyone other than the Point of Contact.
11. CUSTOMER’S INDEMNIFICATION
Customer shall indemnify and hold harmless eCommerce Websites from and against any and all claims, demands, actions,
causes of action, suits, proceedings, losses, damages, costs, and expenses, including reasonable legal fees, arising
from or relating to Customer’s provision, or an end user’s use, of Customer’s Content, or any act, error, or
omission of Customer in connection therewith, including but not limited to matters relating to incorrect,
incomplete, or misleading information; libel; invasion of privacy; infringement of a copyright, trade name,
trademark, service mark, or other intellectual property or other right; or violation of any applicable law.
Each party warrants and represents to the other party that it has the complete right to enter into and perform its
responsibilities under this Agreement.
13. DISCLAIMER OF WARRANTIES
THE FOREGOING WARRANTIES ARE MADE IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. THE SERVICES
AND DELIVERABLES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND ECOMMERCE WEBSITES NEITHER ASSUMES NOR
AUTHORIZES ANY OTHER PERSON TO ASSUME FOR ECOMMERCE WEBSITES ANY OTHER LIABILITY IN CONNECTION WITH ANY SERVICES
PROVIDED UNDER THIS AGREEMENT. ECOMMERCE WEBSITES DOES NOT WARRANT THAT THE SERVICES OR DELIVERABLES PROVIDED WILL
BE ERROR FREE
14. LIMITATION OF LIABILITY
ECOMMERCE WEBSITES ASSUMES NO RESPONSIBILITY WITH RESPECT TO CUSTOMER’S OR END USER’S USE OF THE SERVICES AND SHALL
NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, AND SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, BUSINESS
INTERRUPTIONS, AND LOSS OF PROFITS, OR INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF ECOMMERCE
WEBSITES IS AWARE OF THE POSSIBILITY THEREOF. ECOMMERCE WEBSITES SHALL IN NO EVENT BE LIABLE FOR MORE THAN THE TOTAL
FEES ACTUALLY RECEIVED BY IT FROM CUSTOMER FOR THE SERVICES DURING ANY 12-MONTH PERIOD.
15. NO ASSIGNMENT BY CUSTOMER
Customer may not assign this Agreement without the prior written consent of eCommerce Websites, which eCommerce
Websites may refuse in its sole discretion. Any attempt by Customer to assign this Agreement without prior written
permission shall be deemed null and void. eCommerce Websites may assign this Agreement, which shall be effective
upon written notice provided to Customer.
(i) Any notice or other communication ("Notice") required or permitted under this Agreement shall be in writing and
either delivered personally or sent by facsimile, overnight delivery, express mail, or certified or registered mail,
postage prepaid, return receipt requested, to the address listed above in this Agreement, for eCommerce Websites or
the address provided in the application form submitted with the payment for Customer;
(ii) a Notice delivered
personally shall be deemed given only if acknowledged in writing by the person to whom it is given. A Notice sent by
facsimile shall be deemed given when transmitted, provided that confirmation of that transmission was received. A
Notice sent by overnight delivery or express mail shall be deemed given twenty-four (24) hours after having been
sent. A Notice that is sent by certified mail or registered mail shall be deemed given forty eight (48) hours after
it is mailed. If any time period in this Agreement commences upon the delivery of Notice to any one or more parties,
the time period shall commence only when all of the required Notices have been deemed given;
(iii) either party may
designate, by Notice to the other, substitute addresses, addressees or facsimile numbers for Notices, and
thereafter, Notices are to be directed to those substitute addresses, addressees or facsimile numbers.
(i) The laws of the State of Victoria shall govern the validity and construction of this Agreement and any dispute
arising out of or relating to this Agreement, without regard to the principles of conflict of laws;
(ii) THE PARTIES
SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF VICTORIA;
(iii) a ruling by any court that one or more of
the provisions contained in this Agreement is invalid, illegal or unenforceable in any respect shall not affect any
other provision of this Agreement. Thereafter, this Agreement shall be construed as if the invalid, illegal, or
unenforceable provision had been amended to the extent necessary to be enforceable within the jurisdiction of the
court making the ruling and to preserve the transactions originally contemplated by this Agreement to the greatest
(iv) the section and subsection headings have been included for convenience only, are not part of
this Agreement and shall not be taken as an interpretation of any provision of this Agreement.;
(v) this Agreement
may be amended, waived, changed, modified or discharged only by an agreement in writing signed by all of the
(vi) this Agreement represents the entire understanding of the parties with respect to the subject matter
hereof, and there are no representations, promises, warranties, covenants or understandings with respect thereto
other than those contained in this Agreement. Without limiting the generality of the foregoing, it is expressly
agreed that the terms of any purchase order issued by Customer with respect to the Deliverables provided under this
Agreement shall not be applicable and that any acceptance of such purchase order by eCommerce Websites shall be for
acknowledgment purposes only;
(vii) failure to insist upon strict compliance with any of the terms, covenants or
conditions of this Agreement shall not be deemed a waiver of that term, covenant or condition or of any other term,
covenant or condition of this Agreement. Any waiver or relinquishment of any right or power hereunder at any one or
more times shall not be deemed a waiver or relinquishment of that right or power at any other time;
remedies set forth in this Agreement are cumulative and are in addition to any other remedies allowed by law. Resort
to one form of remedy shall not constitute a waiver of alternate remedies;
(ix) wherever used in this Agreement, the
singular shall include the plural, and the plural shall include the singular. The use of any gender, tense or
conjugation shall include all genders, tenses and conjugations;
(x) the Parties are independent contractors and
nothing contained herein shall constitute this arrangement to be employment, a joint venture, or a partnership; and
(xi) this Agreement is only between eCommerce Websites and Customer, and does not make any third-party a beneficiary
of this Agreement, whether known or contemplated by either party. Further, this Agreement does not make Customer a
third-party beneficiary of any agreement that eCommerce Websites may have with third parties, nor does this
Agreement make eCommerce Websites a third-party beneficiary of any agreement that Customer may have with third