Document Index
1. Definition of Terms
2. Contract Acceptance
3. Service Delivery
4. Price and Payment
5. Intellectual Property
6. Liability
7. Customer Content
8. Security and Charge
9. Termination
10. Default & Consequences
11. Dispute Resolution
12. Privacy
HostHero ABN: 42 612 321 436
These terms and conditions are bound to any quote or proposal that you receive from HostHero. Terms outlined in the quote document, proposal document or email correspondence from HostHero, along with the terms and conditions herein, form the legally binding Contract between you and HostHero. These terms and conditions of the Contract shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland.
1.a. “Supplier”, “our”, “we” or “us” shall mean HostHero or any person acting on behalf of and with the authority of HostHero including employees, contractors and suppliers.
1.b. “Customer” , “Customers” or “you” shall mean the person or entity who is contracting Services from the Supplier, or any person acting on behalf of and with the authority of the Customer.
1.c.. “Services” shall mean all work and offerings supplied by the Supplier to the Customer, whether charged for or delivered free of charge.
1.d. “Quote”, “Proposal” or “Email” refers to the documents from the Supplier in which the cost and inclusions of the Supplier’s Services are outlined. These documents contain additional terms and conditions specific to that type of service, which forms part of this Contract.
1.e. “Contract” shall mean the combination of the terms in the quote document, proposal document or email, as well as the terms outlined herein these terms of trade.
1.f. “Guarantor” shall mean the person, persons or entity who agrees to be liable for the debts of the Customer on a principal debtor basis.
1.g “Project” shall mean the scope of works that the Supplier is set to carry out for the Customer, including the stages of planning, design, execution, training and hand over.
1.h. “Price” shall mean the price quoted for the Services as outlined by the Supplier in the Proposal document, Quote document or by Email.
1.i. “Asset” shall mean any piece of intellectual property, software or hardware created by the Supplier.
1.j. “Customer Content” shall mean the information, designs, drawings, concepts, audio, diagrams, video or specifications that are transmitted by the Customer for use by the Supplier in any medium or format.
1.k. “Scope” shall mean an electronic or hard copy document that outlines the Customer’s requirements for the Project, whether created by the Supplier or the Customer, as long as both Supplier and Customer are aware of the existence of that document and have agreed to use the document as a point of reference for the Project.
2.a. Any of the following actions shall constitute the Customer’s acceptance of the Contract and its terms and conditions :
2.b. Upon acceptance of the Contract, the terms and conditions within the Contract are binding and can only be amended with the written consent of the Supplier.
2.c. Where more than one Customer has entered into a Contract, the Customers shall be jointly and severally liable for all payments of the Price.
2.d. The terms and conditions of this Contract override the terms contained with the Customer’s order or requested by the Customer.
2.e. If any provision within the Contract’s terms and conditions is deemed to be invalid, illegal, void or unenforceable, then the validity and enforceability of the remaining provisions shall not be prejudiced or impaired.
2.f. The Supplier reserves the right to review and change these terms and conditions at any time. Such a change would be in effect from the date on which the Supplier notifies the Customer of such change.
3.a. The Supplier accepts no liability for any deficiency in the Services resulting from incorrect information or specifications provided by the Customer.
3.b. The Supplier shall not be liable for any loss or damage whatever due to failure by the Supplier to deliver the Services (or partial service) in a timely manner or at all.
3.c. Should the Supplier fail to deliver the Service (or partial service), this shall not entitle either party to treat this Contract as annulled.
3.d. The Supplier may sub-contract all or any part of its rights and obligations without the Customer’s consent.
3.e. The Supplier shall act in accordance with the Competition and Consumer Act 2010 (Cth) (CCA) and the Fair Trading Acts of QLD.
3.f. All confidential information (including, but not limited to, trade secrets, pricing, procedures and product information) disclosed under the Contract will remain the exclusive property of the disclosing party. The receiving party shall use at least the same degree of care in protecting the confidential information as it uses with respect to its own confidential information. The receiving party will limit access to Confidential Information to its representatives, instructing them to keep the information confidential. This clause will remain in effect even after termination or expiry of this Contract.
4.a. The Supplier reserves the right to change the quoted Price of Services, in the event that a variation is required to the Services described in the Proposal document, Quote document, Email or Scope document.
4.b. GST and other applicable taxes are included in the Price, unless expressly not included in the Price.
4.c. Payment will be made by Credit card or PayPal.
4.d. The Customer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the by the Supplier to the Customer.
4.e. Payment terms shall be stated on the Supplier’s invoices. If no payment term is stated then payment shall be due seven (7) days from the date of the invoice.
4.f Time shall be of the essence for payment of the Supplier’s Services.
5.a. Payment shall not deemed to have been made until the Customer’s payment has been cleared in the Supplier’s bank.
5.b. The Supplier and the Customer agree that ownership of the work completed under the Project, including code, designs and intellectual property, shall not pass from the Supplier to the Customer until:
5.c. The Supplier owns the intellectual property of any Asset created by the Supplier (including, but not limited to, code, design, websites, video, copy and graphics) immediately from when it is created.
5.d. On receipt of full payment for the Supplier’s work, the Supplier shall assign to the Customer, the intellectual property rights of the Assets created under the Customer’s Project. Whilst the Customer is in default of payment or any other terms of this Contract, the Customer shall have no right to use the Assets created by the Supplier.
5.e. The Customer shall grant the Supplier a non-exclusive, royalty free licence to use, reproduce, modify and adapt the Asset created for promotional purposes.
5.f. The Supplier retains the right to mark or label the Asset with the Supplier’s brand in an inconspicuous manner that will not detract from the overall aesthetic presentation.
6.a. Once Services have been delivered by the Supplier to the Customer, time shall be of the essence for the Customer to report any dissatisfaction.
6.b. Within ten (10) business days of delivery the Customer shall inspect the Services delivered by the Supplier and notify the Supplier of any alleged defect, errors or failure to comply with the Project’s Scope. Should the Customer fail to notify the Supplier within ten (10) business days of delivery, the Services shall be presumed to be in accordance with the terms and conditions and free from any defect.
6.c. Alleged defects, errors or failure to comply with the Project’s Scope shall be established once the Supplier confirms so in writing.
6.d. Liability for defective or incomplete work is limited to either correcting the Services or providing a refund of the purchased services, and shall be solely at the Supplier’s discretion.
6.e. The Supplier’s liability under this Contract for any loss or damage suffered by the Customer due to an act or omission of the Supplier shall be limited to the Price paid by the Customer for the Project.
6.f. The Supplier shall not be liable to the Customer for direct or indirect damages of any kind (including without limitation, loss of profit, business interruption, loss of data or indirect costs) suffered by the Customer as a result of an act or omission of the Supplier or its representatives.
6.g. The Supplier shall not be liable for any loss or damage incurred by the Customer as a result of:
6.h. Neither party shall be liable for damages or losses resulting from an act of God, fire, flood, drought, storm, terrorism, war, lock-out, strike or any other event beyond the control of either party.
6.i. All open source software and third-party software is provided at the Customer’s own risk and is not warranted by the Supplier. The Supplier shall not be responsible for any loss or damage (including, but not limited to, loss of profit, business interruption, loss of data or indirect costs) suffered by the Customer resulting from issues with open source software or third-party software.
6.j. All risk for the Services passes to the Customer on delivery or receipt of payment from the Customer, whichever comes first.
6.k. Once the Services have been delivered by the Supplier, it is the sole responsibility of the Customer to maintain the Asset unless an on-going maintenance schedule has been agreed upon in writing by both parties. The Supplier shall not be liable for any loss or damage caused by the Customer making any changes to the Asset, and the Customer acknowledges that they do so at their own risk.
6.l. The Supplier shall not be liable for any loss or damage resulting from the theft or hacking of credit card data from a system or website developed by the Supplier. It is solely the Customer’s responsibility to ensure that the risks associated with storing or processing credit card data on the development platform chosen by the Customer is understood, and that the level of risk of doing so is acceptable to the Customer. Should the Customer request a website or system to be built that handles credit card data, the Customer acknowledges that they undertake such a project at their own risk.
7.a. The Customer warrants that all Customer Content given to the Supplier shall:
The Supplier reserves the right to refuse to accept any Customer Content which does meet the above criteria.
7.b. The Customer indemnifies the Supplier against any claims, damagers or losses that the Supplier incurs or may incur as a result of, or arising in connection with:
7.c. The Customer must:
8.a. Where the Customer and/or the Guarantor is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Supplier or the Supplier’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions.
8.b. The Customer and/or the Guarantor agree that the Supplier (or the Supplier’s nominee) shall be entitled to lodge a caveat where appropriate. The caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
8.c. Should the Supplier elect to proceed in any manner in accordance with this clause, the Customer and/or Guarantor shall indemnify the Supplier from and against all the Supplier’s costs and disbursements including legal costs.
8.d. The Customer and/or the Guarantor agree to irrevocably appoint the Supplier or the Supplier’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause.
9.a. In the event that the Customer or Supplier suffers an insolvency event, the other party may immediately terminate this Contract by providing written notice.
9.b. On termination of this Contract, both parties must return all confidential information and any other intellectual property of the other party.
9.c. On termination of this Contract the Customer must pay to the Supplier all Fees due and payable under this Contract as at the date of termination.
9.d. Cancelation occurs when either party terminates the Contract at any time, for any other reason other than as set out in 13.1 or 13.b.
9.e. The Supplier reserves the right to terminate the Contract if the Customer does not reasonably respond to requests for information or provide the necessary information for a period of more than 60 days. In this case the Supplier shall not be under obligation to refund any monies paid by the Customer and the Customer must pay to the Supplier all Fees due and payable under this Contract as at the date of termination.
9.f. In the event that the Customer wishes to terminate the Contract, the Customer shall be liable for the total Project Price due under this Contract as at the date of termination plus any loss incurred by the Supplier (including, but not limited to, loss of profits and business interruption) up to the time of termination.
9.g. The Supplier is under no obligation whatsoever to refund the Customer for a Contract that is terminated by the Customer .
10.a. If the Customer defaults in payment of any invoice;
10.b. If any account remains overdue after thirty (30) days then an accounts receivable administration fee of forty dollars ($40) shall become immediately due and payable.
10.c. In addition to the administration fee, an Interest charge of ten percent (10%) per annum, accruing monthly, will apply to the overdue amount starting from when the amount reaches thirty (30) days past its due date.
10.d. If a Customer in default has any information or files on the Supplier’s hosting servers, the Supplier shall be entitled to remove or withhold such material from the Customer. The Supplier is not responsible for any loss of data incurred due to the removal of the Service. Removal of such material does not relieve the Customer of the obligation to pay any outstanding charges assessed to the Customer’s account.
10.e. The Supplier is entitled to immediately cancel any Service being provided to the Customer, and all amounts owing to the Supplier shall become immediately payable in the event that:
10.f. Failure by the Supplier to enforce any provision of the Contract’s terms and conditions shall not be viewed as a waiver of that provision, nor shall it affect the Supplier’s right to subsequently enforce that provision.
11.a Either party must not start legal proceedings in respect of a dispute arising from this Contract unless that party has complied with the clauses in this Contract and has used all reasonable endeavors to resolve the dispute amicably with the other party.
11.b. A party claiming that a dispute has arisen in respect of this Contract must notify the other party’s key contact as soon as they are aware of the dispute.
11.c. Unless otherwise noted, the Supplier will assume that the Customer contact for notices is the person who accepts the Contract.
12.a. The Customer and/or the Guarantor/s agree for the Supplier to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and Guarantor/s.
12.b. The Customer consents to the Supplier receiving a consumer credit report, in order to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
12.c. The Customer and/or the Guarantor/s agree that the Supplier may exchange information about the Customer and the Guarantor/s with credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency to:
12.d. The Supplier may give information about the Customer to a credit reporting agency to:
12.e. The Customer agrees that personal credit information provided may be used and retained by the Supplier for :