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Terms & Conditions

Curata Web Hosting Terms of Service

Background

A The Customer wishes for Curata to provide the Hosting Services.
B This agreement covers details relating to the Supply and Support of a web server for the hosting of the Customer’s website on the provided domain. The broad nature of the hosting agreement is that Curata will provide support for both the web server and the Live Site Application. Any costs associated with Curata’s hosting packages are independent of project build costs.

Agreed terms
1 Supply of the Hosting Services
1.1 Supply
Subject to the Customer paying the Fees in accordance with clause 3, Curata must endeavour to provide the Hosting Services to the Customer in volumes acceptable to Curata.
1.2 Customer requirements
(a) The Customer must:
(i) provide Curata with such information and assistance necessary to enable Curata to provide the Hosting Services;
(ii) have all resources necessary to receive the Hosting Services, including hardware, software, telecommunications resources and internet access acceptable to Curata;
(iii) not do or attempt to do any of the things described in clauses 1.5(a) or 1.5(b); and
(iv) cooperate with Curata, act reasonably and follow Curata’s directions in connection with this agreement and receipt of the Hosting Services.
(b) The Customer acknowledges and agrees that if the Customer does not comply with clause 1.2(a) then Curata is not obliged to supply the Hosting Services to the Customer.
1.3 Resupply
The Customer must not resupply the Hosting Services to any third party.
1.4 Service Levels
Any service levels set out on the Website or other Curata documentation are non-binding targets only and Curata is not required to meet those service levels.
1.5 Suspension
Curata may suspend the Customer’s access to the Hosting Services at any time including if:
(a) Curata suspects that the Customer has performed or may perform any illegal or unlawful acts in connection with receipt or use of the Hosting Services;
(b) Curata suspects that the Customer has or may have:
(i) used the Hosting Services:
(A) to engage in fraudulent behaviour;
(B) to defame any third party;
(C) to harass any third party;
(D) to gain unauthorised access to or interfere with any third party’s online resources or systems including by any form of hacking;
(E) to circumvent any security measures;
(F) to run an IRC or game server;
(G) to interfere with any third party’s online resources or systems including by carrying out a denial of service attack;
(H) to distribute, view or create any material that:
(I) is or may be pornographic, defamatory, offensive, obscene, illegal or unlawful; or
(II) infringes any third party’s Intellectual Property Rights;
(I) to distribute unsolicited emails to third parties including bulk unsolicited emails;
(J) to distribute a higher volume of outgoing emails than is acceptable to Curata;
(K) to use a non-existent email return address;
(L) to use an open email relay;
(M) in a way that infringes any third party’s Intellectual Property Rights;
(N) in a way that disrupts, misuses or excessively uses the hardware, bandwidth access, storage space or other resources of Curata or Curata’s other customers; or
(O) in any other manner that is unacceptable to Curata; or
(ii) sent unsolicited email from another network that appears to have been sent using the Hosting Services or from hardware Curata uses to provide the Hosting Services;
(c) a third party alleges that the Customer has done or threatened to do any of the things described in 1.5(a) or 1.5(b); or
(d) Curata receives a request or notice from a third party (including any regulatory body) requiring Curata to cease providing the Hosting Services to the Customer or remove any content the Customer is making available through use of the Hosting Services.
1.6 Back up
On termination of the contract, Curata will destroy all backup files after 30 days. Backup data can be provided to the client on request. Additional charges may apply for Time & Materials.
1.7 Availability
The Customer acknowledges and agrees that the Hosting Services may not be available from time to time and that the Hosting Services are not error free.
2 Warranties
2.1 Customer Material warranties
The Customer warrants that:
(a) use of the Customer Material by Curata in accordance with this agreement will not infringe the Intellectual Property Rights of any third party; and
(b) if the Customer provides Curata with any information by which an individual may be identified in connection with this agreement or inputs that information into the Hosting Services, the Customer has all necessary consents including under the Privacy Act 1988 (Cth) to provide that information to Curata or input it into the Hosting Services
2.2 Accuracy and reliance warranties
The Customer represents and warrants, and it is a condition of this agreement, that:
(a) all information provided by the Customer or on the Customer’s behalf to Curata is accurate and is not, whether by omission of information or otherwise, misleading;
(b) the Customer has not withheld from Curata any document, information or other fact material to the decision of Curata to enter into this agreement; and
(c) the Customer did not rely upon any representation made to the Customer by Curata or any Related Body Corporate of Curata (if any) prior to entry into this agreement.
3 Fees
3.1 Fees
(a) The Customer must pay the Fees to Curata.
(b) If there is a dispute about whether a Fee or other amount contemplated by this agreement is payable or available, the Customer must not withhold the amount in dispute.
(c) The Fees may change during the Term in the manner contemplated by the Schedule.
3.2 Invoices
(a) Curata must invoice the Customer from time to time for the Fees.
(b) The Customer must pay an invoice issued under clause 3.2(a) within 14 days after the issuance of the first invoice relating to a particular period. Should payment not be received by the end of this period, Curata reserves the right to suspend services until payment is received in full.
(c) Payment of the initial invoice for services must be received in full prior to the service being provisioned.
3.3 Deferral of performance
If the Customer fails to pay the Fees in accordance with this agreement, without limiting any other remedies available to Curata, Curata may defer performance of all Hosting Services until the outstanding Fees are paid.
4 Term and termination
4.1 Term
This agreement commences on the date on which initial payment is received and and continues for the Initial Period and each Rollover Period unless terminated earlier in accordance with this clause 4.
4.2 Termination for breach
If:
(a) the Customer commits a breach of this agreement; or
(b) an Insolvency Event occurs in relation to the Customer,
then Curata may terminate this agreement by written notice to the Customer in which case this agreement will terminate on the date specified in that written notice or, if no date is specified, immediately.
4.3 Termination for convenience
Curata may terminate this agreement for convenience at any time by giving written notice to the other party in which case this agreement will terminate on the date specified in that notice or, if no date is specified, immediately.
4.4 Early Termination
Either party may terminate this agreement by giving written notice to the other party prior to the expiry of the Minimum Term period. Should the client wish to terminate the contract prior to the end of the minimum term, payment in accordance with the minimum term is required. Once all outstanding invoices are finalised, Curata will provided full access to the server so the client can migrate the site to the new host. Should the client require Curata’s assistance to manage the migration, this will be charged on a T&M basis in accordance with our “Fees & Charges” section.
4.5 Waiver and acknowledgement
(a) The Customer expressly waives any rights it may have to terminate this agreement other than as contemplated by clause 4.4.
(b) The Customer acknowledges that Curata may terminate this agreement under this clause 4 without considering the impact of the termination on the Customer.
4.6 After termination
On termination of this agreement:
(a) no amount is refundable by Curata to the Customer including if this agreement is terminated under clauses 4.3 or 4.4;
(b) accrued rights or remedies of a party are not affected; and
(c) the Customer must deliver to Curata any of Curata’s Confidential Information or other property in the Customer’s care, custody or control.
4.7 Survival
Termination of this agreement will not affect clauses 2, 4.6, 5.2, 6, 7 or 8 or any provision of this agreement which is expressly or by implication intended to come into force or continue on or after the termination.

5 Intellectual property
5.1 No assignment
Curata Material remains the property of Curata and nothing in this agreement grants the Customer any Intellectual Property Rights in Curata Material or other Intellectual Property Rights of Curata.
5.2 Licence of customer material
(a) The Customer grants to Curata a non-exclusive, irrevocable, global licence to exercise the Intellectual Property Rights in any Customer Material in connection with Curata providing Hosting Services to the Customer.
(b) The licence granted under clause 5.2(a) includes the right to sublicense to third parties.
5.3 No use of Curata’s marks
The Customer must not, and must ensure that its officers, employees, agents and subcontractors do not, use the trade marks or logos of Curata except with the prior written consent of Curata except as expressly provided in this agreement.
6 Confidential information
6.1 Obligations of confidence
The Customer agrees to keep confidential, and not to use or disclose, other than as permitted by this agreement, any Confidential Information of Curata provided to or obtained by the Customer prior to or after entry into this agreement.
6.2 Exclusions
The obligations of confidence in clause 6.1 do not apply to Confidential Information:
(a) that is required to be disclosed by applicable law, or under compulsion of law by a court or Government Agency, as long as the Customer:
(i) discloses the minimum amount of Confidential Information required to satisfy the law or rules; and
(ii) before disclosing any information, gives all available written notice to Curata and takes all available steps (whether required by Curata or not) to maintain such Confidential Information in confidence;
(b) that is in the public domain otherwise than as a result of a breach of this agreement or other obligation of confidence; or
(c) that is already known, rightfully received or independently developed, by the Customer free of any obligation of confidence.
6.3 Restriction on disclosure
(a) The Customer may use and disclose Confidential Information of Curata only with the prior written consent of Curata.
(b) If the Customer discloses Confidential Information under clause 6.3(a), the Customer must ensure that such information is kept confidential by the person to whom it is disclosed and is only used for the purpose of receiving the Hosting Services under this agreement.
7 Limitation of liability
7.1 Limitation
(a) Subject to clauses 7.2 and 7.4, any liability of Curata for any loss or damage, however caused (including by the negligence of Curata), suffered by the Customer in connection with this agreement is limited, at the election of Curata to:
(i) $50; or
(ii) re-performance of the Hosting Services.
(b) The limitation set out in clause 7.1(a) is an aggregate limit for all claims, whenever made.
(c) Any claim by the Customer against Curata for loss or damage however caused (including by the negligence of Curata), suffered by the Customer in connection with this agreement must be made within one calendar month of the Customer becoming entitled to make the claim and any claim not made within one calendar month is absolutely barred.
7.2 Consequential loss
(a) Subject to clause 7.4, Curata is not liable for any Consequential Loss however caused (including by the negligence of Curata), suffered or incurred by the Customer in connection with this agreement.
(b) Consequential Loss in clause 7.2 means consequential loss and:
(i) loss of profits;
(ii) loss of revenues;
(iii) loss of reputation;
(iv) indirect loss;
(v) loss of bargain;
(vi) loss of actual or anticipated savings;
(vii) lost opportunities, including opportunities to enter into arrangements with third parties;
(viii) loss or corruption of data, and;
(ix) consequential loss.
7.3 Seriousness or nature
For clarity, and without limiting clauses 7.1 and 7.2, the parties agree that clauses 7.1 and 7.2 are to apply in connection with a breach of this agreement, anticipated breach of this agreement and other conduct regardless of the seriousness or nature of that breach, anticipated breach or other conduct.
7.4 Australian Consumer Law
If the Competition and Consumer Act 2010 (Cth) or any other legislation states that there is a guarantee in respect of goods or services supplied, and Curata’s liability for failing to comply with that guarantee may not be excluded but may be limited, clauses 7.1, 7.2 and 8.1 do not apply to that liability and instead Curata’s liability for such failure is limited to, in the case of a supply of goods, Curata replacing the goods or supplying equivalent goods or repairing the goods, or in the case of a supply of services, Curata supplying the services again or paying the cost of having the services supplied again.
8 Indemnity
8.1 Indemnity
The Customer is liable for, and indemnifies Curata from and against, all loss or damage (including legal costs) incurred or suffered by Curata however caused in connection with:
(a) any breach of this agreement by the Customer;
(b) any claim against Curata by the Customer or any third party in connection with the Customer Material, the Hosting Services or any matter referred to in clause 1.5; or
(c) any alleged or actual infringement of a third party’s Intellectual Property Rights or other right in connection with the Customer Material or the Hosting Services.
8.2 Continuing obligation
Each indemnity contained in this agreement is a continuing obligation notwithstanding:
(a) any settlement of account; or
(b) the occurrence of any other thing,
and it is not necessary for Curata to incur expense or make payment before enforcing or making a claim under an indemnity.
9 Force majeure
Curata will not be:
(a) in breach of this agreement as a result of; or
(b) liable for,
any failure or delay in the performance of Curata’s obligations under this agreement to the extent that such failure or delay is wholly or partially caused, directly or indirectly, by a Force Majeure Event or any act or omission of the Customer.
10 Costs and taxes
(a) Each party must meet or pay its own legal costs and disbursements in respect of the preparation, negotiation and execution of this agreement.
(b) The Customer must pay all stamp duty (including penalties and interest) assessed or payable in connection with this agreement.
(c) Subject to clause 11, the Customer must pay all taxes, duties and government charges imposed or levied in Australia or overseas in connection with the performance of this agreement.
11 GST
(a) In this clause 11:
(i) ‘GST Act Supplier’ means the entity making the Supply; and
(ii) other capitalised terms used that are not defined in clause 13.1 have the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(b) Except under this clause 11, the consideration for a Supply made under or in connection with this agreement does not include GST.
(c) If a Supply made under or in connection with this agreement is a Taxable Supply, then at or before the time the consideration for the Supply is payable:
(i) the Recipient must pay the GST Act Supplier an amount equal to the GST for the Supply (in addition to the consideration otherwise payable under this agreement for that Supply); and
(ii) the GST Act Supplier must give the Recipient a Tax Invoice for the Supply.
(d) If either party has the right under this agreement to be reimbursed or indemnified by another party for a cost incurred in connection with this agreement, that reimbursement or indemnity excludes any GST component of that cost for which an Input Tax Credit may be claimed by the party being reimbursed or indemnified, or by its Representative Member, Joint Venture Operator or other similar person entitled to the Input Tax Credit (if any).
12 General
(a) The laws of Queensland, Australia govern this agreement.
(b) Each party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland, Australia and courts competent to hear appeals from those courts.
(c) The Customer acknowledges and agrees that Curata may amend the terms and conditions of this agreement by making new terms and conditions available from time to time and those amended terms and conditions apply to this agreement from the date they are made available to the client.
(d) Where this agreement contemplates that Curata may consent to, elect, determine, approve, nominate, decide or consider any matter or thing, Curata may provide such consent or make such election, determination, approval, nomination, decision or consideration in its absolute discretion and conditionally or unconditionally without being required to give reasons or act reasonably, unless this agreement expressly requires otherwise.
(e) The Customer must not assign, in whole or in part, or novate the Customer’s rights and obligations under this agreement without the prior written consent of Curata.
(f) Curata may assign its interest under this agreement.
(g) Time is not of the essence in the performance of obligations under this agreement except in relation to performance of payment obligations.
(h) Unless expressly stated otherwise, this agreement does not create a relationship of employment, trust, agency or partnership between the parties.
(i) Each provision of this agreement will be read and construed as a separate and severable provision or part and if any provision is void or otherwise unenforceable for any reason then that provision will be severed and the remainder will be read and construed as if the severable provision had never existed.
(j) This agreement represents the parties’ entire agreement, and supersedes all prior representations, communications, agreements, statements and understandings, whether oral or in writing, relating to its subject matter.
(k) Curata may subcontract the performance of all or any part of Curata’s obligations under this agreement.
(l) A right under this agreement may only be waived in writing signed by the party granting the waiver, and is effective only to the extent specifically set out in the waiver.
(m) Without limiting any other remedies available to Curata, if the Customer fails to pay any amount payable under this agreement, the Customer must pay Interest on that amount.
(n) The Customer must comply with all applicable laws in connection with receipt of the Hosting Services.
(o) Curata may give notice to the Customer under this agreement by email to any email address notified by the Customer at or after the time this agreement is entered into.
13 Definitions and interpretation
13.1 Definitions
In this agreement:
Commence-
ment Date
means the date on which payment is received for the initial invoice.
Confidential Information
of a party means the terms of this agreement and any information:
(a) relating to the business and affairs of that party;
(b) relating to the customers, clients, employees, sub contractors or other persons doing business with that party;
(c) which is by its nature confidential;
(d) which is designated as confidential by that party; or
(e) which the other party knows or ought to know, is confidential,
and includes all trade secrets, knowhow, financial information and other commercially valuable information of that party, and in the case of Curata, includes Curata Material and the Fees.
Consequential Loss
has the meaning given in 7.2(b).
Corporations Act
means Corporations Act 2001 (Cth).
Customer
means you or the entity for which you are acting as agent.
Customer Material
means any material provided by or to which access is given by the Customer to Curata for the purposes of this agreement including documents, equipment, reports, technical information, studies, plans, charts, drawings, calculations, tables, trade marks, logos, schedules and data stored by any means.
Fees
mean the fees specified under the hosting agreement.
Force Majeure Event
means any occurrence or omission outside a party’s control and includes:
(a) a physical natural disaster including fire, flood, lightning or earthquake;
(b) war or other state of armed hostilities (whether war is declared or not), insurrection, riot, civil commotion, act of public enemies, national emergency (whether in fact or in law) or declaration of martial law;
(c) epidemic or quarantine restriction;
(d) ionising radiation or contamination by radioactivity from any nuclear waste or from combustion of nuclear fuel;
(e) confiscation, nationalisation, requisition, expropriation, prohibition, embargo, restraint or damage to property by or under the order of any government agency;
(f) law taking effect after the date of this agreement; and
(g) strike, lock-out, stoppage, labour dispute or shortage including industrial disputes that are specific to a party or the party’s subcontractors.
Initial Period
means the period from the Commencement Date until the date which is one period after the Commencement Date (being either one month or one year).
Insolvency Event
in the context of a person means:
(a) a liquidator, receiver, receiver and manager, administrator, official manager or other controller (as defined in the Corporations Act), trustee or controlling trustee or similar official is appointed over any of the property or undertaking of the person;
(b) the person or the person’s property or undertaking becomes subject to a personal insolvency arrangement under part X Bankruptcy Act 1966 (Cth) or a debt agreement under part IX Bankruptcy Act 1966 (Cth);
(c) the person is or becomes unable to pay its debts when they are due or is or becomes unable to pay its debts within the meaning of the Corporations Act or is presumed to be insolvent under the Corporations Act;
(d) the person ceases to carry on business; or
(e) an application or order is made for the liquidation of the person or a resolution is passed or any steps are taken to liquidate or pass a resolution for the liquidation of the person, otherwise than for the purpose of an amalgamation or reconstruction.
Intellectual Property Rights
means all industrial and intellectual property rights, both in Australia and throughout the world, and includes any copyright, moral right, patent, registered or unregistered trade mark, registered or unregistered design, registered or unregistered plant breeder’s right, trade secret, knowhow, right in relation to semiconductors and circuit layouts, trade or business or company name, indication or source or appellation of origin or other proprietary right, or right of registration of such rights.
Interest
means interest on any payment owing under this agreement calculated:
(a) at the rate which is 2% in excess of the published Australia and New Zealand Banking Group Limited variable interest rate for personal loans or, if lower, the maximum rate permitted by applicable law; and
(a) daily from the date on which such payment was due to the date on which the payment is made (both inclusive) including the relevant Interest.
Curata
HOLLMIRO PTY LTD, ABN 90 161 780 276
Curata Material
means any material provided by or to which access is given by Curata to the Customer for the purposes of this agreement including documents, equipment, reports, technical information, studies, plans, charts, drawings, calculations, tables, schedules and data stored by any means.
Related Body Corporate
has the meaning given to that term by section 9 Corporations Act.
Rollover Period
means each period of one calendar month or one year (as determined by the invoicing option selected by the client on the inital order form) following the Initial Period or a Rollover Period.
Term
means the term contemplated by clause 4.1.
Hosting Services and Support
means the services offered by Curata from time to time which are selected by the Customer. Hosting Support means emergency situations which prevent the site being accessible to the end user (site down). This covers both scenarios where either the web server and/or the application is the root cause of the issue.

Non-emergency work (including bugs/new features) is not covered under the scope of this agreement. Please refer to relevant terms and conditions in the development contract.
Live Site Application
means a single instance of the primary application (E.g. Magento or WordPress) running on the live web server and is limited to one application per web server.
Minimum Term
means 6 months from the Commencement Date
Website
means the website located at www.curata.com.au as modified by Curata from time to time.

13.2 Interpretation
In this agreement:
(a) the meaning of any general language is not restricted by any accompanying example, and the words ‘includes’, ‘including’, ‘such as’ or ‘for example’ (or similar phrases) do not limit what else might be included;
(b) no rule of construction applies in the interpretation of this agreement to the disadvantage of the party preparing the document on the basis that it put forward this document or any part of it;
(c) a reference to a party is a reference to Curata or the Customer, and a reference to the parties is a reference to both Curata and the Customer; and
(d) a reference to applicable law is to any relevant law (including any subordinate or delegated legislation or statutory instrument of any kind) of a jurisdiction in or out of Australia, and also to any relevant judgment, order, policy, guideline, official directive, code of conduct, authorisation or request (even if it does not have the force of law) of any Government Agency or regulatory body, such as a stock exchange, within or outside Australia.

14 Site Management & Deployment
14.1 Deployment (Go Live for New Site)
Deployment refers to the movement of site assets to/from the live server. Responsibility for deployment is dependent on who the developer is, as noted below.

(a) Curata is the Developer – In situations where Curata is the developer, Curata will be responsible for all deployments until delivery of the project to the live server.

(b) Curata is not the developer. – In situations where Curata is NOT the developer (the client has engaged a third party developer to develop site), the third party developer will be responsible for all deployments until delivery of the project to the live server. However, should Curata be required to deploy, this work will be changed on a T&M basis.
14.2 Deployment (Ongoing/ad-hoc work on an existing site)
For ongoing deployments after the Go Live of a new website:

(a) Curata is the Developer – In situations where Curata is the developer, Curata will be responsible for all deployments until delivery of the project to the live server.

(b) Curata is not the developer. – In situations where Curata is NOT the developer (the client has engaged a third party developer to develop site), the third party developer will be responsible for all deployments until delivery of the project to the live server. However, should Curata be required to deploy, this work will be changed on a T&M basis.
14.3 Resource & Scale
The web server will be built in such a way that an increase in resource (an upgrade) can take place with minimum to no impact on the business.

If the amount of web traffic increases within the 12 months covered under the terms of this agreement, to the point where the existing infrastructure needs to be upgraded (scaled up), additional charges for the upgraded service may apply. Additional charges for a server upgrade will cover any additional spend required for AWS resource and to T&M for infrastructure design and implementation to the vendor.


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