TERMS AND CONDITIONS OF SERVICE

BETWEEN You

AND Warwick Lyons - Offering Quality Website Services

By having Your website hosted by Warwick Lyons , You agree to the following Terms and Conditions of Service.

RECITALS

This is a legal agreement between You and Warwick Lyons.

The terms and conditions outlined below are designed to protect and benefit all clients. In particular, the terms and conditions attempt to ensure that the Servers are used only for legal and appropriate purposes, and that no client uses an "unfair" proportion of system resources.

Before placing Your website on Servers operated by Warwick Lyons, You must read the Agreement and accept its terms and conditions.

If You do not wish to be bound by the terms and conditions of the Agreement, You MUST NOT place a website, or any part of a website, on Servers operated by Warwick Lyons.

Definitions

"account" means all aspects of the Service provided to you under this Agreement.

"Agreement" means these Terms and Conditions of Service.

"Claim" means any action, claim, demand, cost, loss, damage, (whether special, indirect, consequential, general or any other damage), expense or other liability (including for death and injury, and the costs of defending or settling any Claim) whether arising in contract, negligence or any other tortious action.

"Client" means any person to whom Warwick Lyons provides the Service.

"domain parking" means one or more domain names pointing to Your website, or any part of it.

"Force Majeure" means circumstances beyond the control of a party which includes (but is not limited to) acts of God, perils of the sea or air, fire, flood, drought, explosion, sabotage, accident, embargo, riot, civil commotion or civil authority, including acts of local government and parliamentary authority, materials, breakdown of equipment and labour disputes of whatever nature and for whatever cause arising including (but without prejudice to the generality of the foregoing) work to rule, overtime bars, strikes and lockouts and whether between either of the parties hereto and any or all of its employees and/or any other employer and any or all of its employees and/or between any two or more groups of employees (and whether of either of the parties hereto or any other employer), acts of war (declared or undeclared) or terrorism.

"Warwick Lyons", "we", "our" and "us" means Warwick Lyons (ABN 33 816 674 384 )

"person" includes an individual, a body corporate, office, commission, authority, committee, tribunal, board, institute, organization or other body however described.

"Servers" means all Servers owned or operated by Warwick Lyons, and which You may access or use, pursuant to the Agreement or otherwise, as a result of Warwick Lyons providing the Service.

"Service" means the hosting of Your website and related services on Servers operated by Warwick Lyons, including access to Your website by You or any other person.

"website" includes all aspects of the Service (website, mail facilities, FTP access etc).

"You" and "Your" means the person who agrees with Warwick Lyons to have a website hosted on Servers operated by Warwick Lyons.

Order Details and Processing

You acknowledge that Your domain name (the web address of Your site) is fundamental to the setup of Your site. The domain name cannot be changed. If You need to change Your site's domain name then You will need to order a new web hosting account for the new domain and additional charges will apply.

You confirm that the details You have provided to Warwick Lyons when ordering Your web hosting account are complete and correct.

We reserve the right to decline Your order. If Your order is declined then we will refund Your associated payment (if any) within seven days.

Conduct

You must not:

• access the websites of other Clients, other than in the course of ordinary, legal, business or consumer access;
• hinder the operation of our Servers in any way;
• attempt to access or list any files and/or directories that are not Your own;
• obtain, or attempt to obtain, any system information unless it is required to complete ordinary website management tasks.

Password Security

You must keep confidential, all passwords created or used in relation to the Service.

You must not:

• make any password created or used in connection with the Service, available to the public or to groups of people;
• allow the public or any other groups of people to access any of Your accounts, other than as agreed by Warwick Lyons.

Acceptable Content

Your website must not contain any material, or contain a link to any material or website, which is unlawful, pornographic, sex-industry-related, sexually explicit, gambling-related, threatening, hateful, obscene, racist, libelous, defamatory, highly controversial or which encourages unlawful behaviour.

This includes, any website or web page which contains depictions of nudity, material relating to hacking or any pirated software.

If we determine, at our sole discretion, that Your site contains any unacceptable content, or a link to any unacceptable content, we may cancel Your Service immediately, and without notice.

If a third party complains to us that Your website includes claims about that third party that are incorrect, libelous, defamatory or derogatory then we may, at our discretion, insist that the related website content be removed permanently from Your site, or we may remove such content ourselves without notice.

No Mirroring

You must not use Your website to mirror any material on any other website without the written permission of Warwick Lyons. Warwick Lyons has sole discretion to determine whether to grant permission to You to mirror another website.

No Web Cams

Your site must not contain any "Web Cam" content.

Submitting Site Details To Third Parties

You are welcome to submit Your site details to search engines, directories and other sites subject to the following restrictions:

• You must not submit the URL (web address) of any Free-For-All Link Page (or similar page or script) to automatic Free-For-All Link Page submission engines. If such an engine lists Your script or page and commences submissions to Your script or page, You must remove the script or page from Your site immediately.
• When providing Your site details to third parties you must specify the location of Your site using Your domain name only, and not Your site's IP address. For example, You may tell third parties that the location of Your site is www.you.com, or You.com, but must not specify the location of Your site using an IP-based format like: 1.2.3.4/you/ where 1.2.3.4 is Your site's IP address.

Additional Domains

You must not use any software or service to point additional domain names at Your website. This includes subdomains (such as subdomain.Yourdomain.com/) as well as standard domains (such as www.Yourdomain.com/).

If You require additional domain names to be pointed at Your website, You must obtain written permission from Warwick Lyons. Please contact us if You would like to obtain permission. If we agree to allow You to point additional domain names at Your website, a once-off setup fee is payable by You for each additional domain name parked on Your website.

You must not use the domain parking facility to host two or more different websites within a single hosting account. The domain parking facility can only be used when the additional domain name relates to exactly the same site content as the primary domain.

You must not use any script, software or service to redirect any visitor or significantly alter site content based on which domain name the visitor is accessing. For example, You cannot use a script to show visitors to a.com one set of pages or content, and show visitors to b.com a different set of pages or content.

Traffic Allowance

If, at our sole discretion, we decide that Your site has received more than 20 gigabytes of traffic in any calendar month then we may, at our sole discretion, either:

• charge You for all traffic in excess of 20 Gigabytes at a rate of AU$4.40 per 100MB or part thereof; or
• remove Your website from our Servers immediately without notice.

The 20 gigabyte monthly traffic limit does not apply if your selected hosting package (web hosting plan) does not explicitly include a 20 gigabyte monthly allowance. For example, sometimes we may provide special offer web hosting plans which include a different traffic allowance as stated on our site.

You acknowledge and agree that Warwick Lyons has the sole right to determine when and where these provisions apply. Due to time constraints Warwick Lyons cannot analyze Your traffic patterns to determine the precise cause of Your high traffic, but You have access to Your site statistics and raw web logs so in most cases will be able to analyze Your traffic patterns Yourself if You so desire. You acknowledge that Warwick Lyons has no obligation to provide You with justification or data analysis to prove that excess traffic charges apply or to prove the size of the charges.

If we decide that Your site is likely to incur excess traffic charges for a given month we may, at our sole discretion, notify You via email of the estimated excess traffic charges for the month and insist that You place a deposit with us within 24 hours of our email message being sent. The amount of the deposit will be equal to our estimate of the excess traffic charges You will incur for the month. If such deposit is not made within 24 hours then Your website may be deactivated without notice.

Use of Disk Space

Your disk space is for Your use only. You may not resell or give away disk space to any third party without written permission from Warwick Lyons. You must not place "demonstration" versions of third party web pages on Your website without written permission from Warwick Lyons. That is, third party web pages must not be housed within Your site regardless of the reason, unless You have written permission from Warwick Lyons.

Warwick Lyons reserves the right to decide whether any pages on your site are in fact hosted for third parties.

You may not consume disk space with copies of web pages that are substantially the same. For example, You cannot automatically generate multiple copies of a single page and place all the copies on Your website.

Number of Files

There is a limit to the number of files which can be stored on Your website. The limit varies depending on which hosting plan You are on. You can have up to 5,000 files on our Small Business Starter plan, up to 10,000 files on our Business Power plan, and up to 20,000 files on our Corporate Giant plan.

Large Files

Sites containing very large files, or lots of large files can consume an unfair proportion of system resources. All files on Your web site must be less than 50 MB in size.

Database Size

The combined total size of Your MySQL, flat-file and other databases must not exceed 50 MB. If more than 50 MB of disk space is used for these databases, we may, at our sole discretion, either:

• Charge You for the amount of disk space used in excess of 50MB at the usual excess disk space prices advertised on our website;
• Insist that the database size be reduced to less than 50 MB within 24 hours;
• Decline to host the database and remove it from our servers. Wherever feasible at least 24 hours notice will be provided before the database is removed.

Virus Scanning

Warwick Lyons scans incoming and outgoing messages for viruses. However Warwick Lyons does not guarantee that every message will be scanned, or that every virus will be detected and removed. Additionally, Warwick Lyons reserves the right to remove attachments from incoming and outgoing email messages if there is any indication that the attachment is, or might be, infected with a virus.

Our virus scanning facilities provide a high level of protection against viruses but you acknowledge and agree that you are solely responsible for protecting your property and email accounts from virus threats.

Backups

Warwick Lyons will backup Your website regularly. These backups are intended to provide protection in case of any failure with the Service.

Our backup facilities are not intended to enable individual clients to revert to older versions of files on their sites, but if You require data to be restored from backup then we can do that for You if we have access to suitable backup versions of the relevant files, however charges will apply.

We strongly encourage You to keep a backup of Your site on Your home or office computer.

Site Statistics

We provide regular statistical reports about traffic to Your website. You agree that we are entitled to remove historic data from these reports as we see fit. If You want to keep a full history of the traffic to your site You will need to save an offline copy of Your reports at least once every three months.

Mail Services

All mailboxes are limited to 20 MB in size. You must set Your mail software to delete each message from the server within three days of downloading it.

Warwick Lyons will remove without notice any messages that have been in Your mailbox(es) for more than 120 days.

If You set Your mail software to check or download messages automatically at specified intervals, the interval between checking or downloading messages must be greater than 15 minutes.

Warwick Lyons reserves the right to limit the size of messages accepted by our Servers. That is, messages that are deemed to be too large may be bounced by our Servers. This size limit is currently set to 10 MB but may be changed by us from time to time at our sole discretion.

Mailing Lists

If You operate at least one email-based mailing list via the Service, the total number of subscribers to all of Your mailing lists must not exceed 1,000. The total number of messages sent and received via Your mailing lists in any week must not exceed 5,000. Please note that these mailing list limits apply on a per-site basis, not a per-list basis.

Providing Mail Services for Third Parties

You must not provide mail services to Your site visitors (or other third parties) if those mail services use our mail systems to send, receive, store or access email messages on behalf of Your site's visitors (or other third parties).

Spam (Unsolicited Email)

You must not send unsolicited email messages from a Warwick Lyons server.

You must not use an email address or domain name that is hosted by Warwick Lyons to send unsolicited email messages.

If You breach these conditions we may immediately terminate the Service without notice.

Sites Advertised Through SPAM (Unsolicited Email) or Unsolicited Newsgroup Advertisements

You must not use Warwick Lyons Servers, directly or indirectly, to advertise Your website in any unsolicited email, or an unsolicited newsgroup placement. Such advertisements are usually considered unethical by the internet community.

If we determine, at our sole discretion, that You are, or have been, in breach of this clause we may cancel the Service immediately without notice.

Short Message Service (SMS) Facilities

If You decide to use our Short Message Service (SMS) facilities then You acknowledge and agree that:

• Each SMS message sent will cost You one "SMS credit". Your website will be allocated three free SMS credits. After those credits are used, You will need to purchase further SMS credits from us, at our prevailing prices, in order to use the SMS facilities we provide;
• Unless otherwise stated, SMS credits expire after 12 months. That is, from the date you purchase them, you have 12 months to use them or they will automatically expire without refund;
• We have the sole right to determine how many SMS credits You have consumed, and to determine how many SMS credits remain available to You;
• You are solely responsible for ensuring that You have sufficient SMS credits in Your account to cover the charges for any SMS messages You wish to send;
• SMS messages will not be delivered to You if You do not have sufficient SMS credits available;
• Our systems will determine whether our over-the-air transmission of each SMS is successful. If we determine that the message was sent successfully over-the-air then an SMS credit will be deducted from Your account, whether or not You actually received the message. This is necessary because it is possible for an SMS message to leave our network successfully, but fail to reach You due to problems beyond our control, such as a problem with Your phone or a problem with Your cellphone or mobile phone service. Given that we incur the expense of sending each SMS the moment it successfully leaves our network, an SMS credit will be deducted from Your account in all cases where the message exits our network successfully;
• We are not responsible in any way, shape or form, for any damage or inconvenience to You or any other party, as a result of any SMS message failing to reach its destination (usually Your phone);
• While we strive to maximize the reliability of our SMS service and provide these services in good faith, we rely on third-party providers for message delivery and therefore make no guarantee about the reliability or performance of our SMS services;
• We have a comprehensive worldwide SMS coverage area but make no guarantee that any particular network will be able to receive messages from our service. We provide three free SMS credits on each website so that You can determine whether SMS messages can be sent successfully to Your phone before needing to purchase SMS credits.

Resource-Intensive Programs

If You install and run a resource-intensive program on our Servers we may, at our sole discretion:

• Charge You an additional monthly amount; or
• Halt and/or prohibit the execution of the program.

We do not allow background processes, cron jobs or daemons to be run.

Prohibited Scripts

We reserve the right to disallow installation and/or execution of any script if the script contains at least one security fault, programming fault, or is too resource intensive.

The "Matt's Script Archive" version of "FormMail" (written by Matt Wright) is banned on our servers because it can be easily exploited by spammers. Additionally, any scripts which are based on Matt Wright's FormMail code are banned on our servers. However please note that an alternative, secure, version of FormMail can be installed easily through our Control Panel. The alternative version of FormMail is a drop-in replacement for the Matt's Script Archive version of FormMail so will work with forms written for the Matt's Script Archive version of FormMail.

Proxy scripts of any kind are prohibited.

Chat Rooms and IRC

Chat rooms tend to monopolise system resources and for that reason You must not install chat rooms, IRC-related software on our Servers.

Domain Name Registration

Domain name registration fees are not included in our prices unless we explicitly state otherwise (for example, as part of a special offer).

If Your domain name has not been registered yet, You will be responsible for handling the registration process and paying the necessary registration fees to Your registrar. Warwick Lyons will, however, be happy to provide You with the technical details required to register Your domain name.

If Your domain name has already been registered we will not submit the domain name transfer request for You, but will provide You with the name server information You need to arrange the transfer Yourself.

If You require Your domain name to be changed, additional setup fees will be charged.

We take all care but no responsibility for domain name registrations and renewals. It is Your responsibility to verify Yourself that Your domain name registration/renewal has been processed correctly and in a timely manner. You acknowledge and agree that we will not be liable in any way for any failure to register or renew Your domain name, nor for any problems caused by any processing delay, including but not limited to: loss of website traffic, loss of the domain name, applicability of redemption fees, loss of revenue, or any other damage to Your business or website.

Technical Support

We will provide technical support in relation to the Service. Please note that we are generally unable to provide assistance with site content (as opposed to web hosting) issues including, but not limited to, debugging CGI scripts and HTML code. All technical support is provided via email and/or our online Support Request Form at our discretion.

Notice

You agree to correspond with Warwick Lyons via our Support Request Form. If Warwick Lyons needs to contact You for any reason we will do so via email only.

You agree to notify us promptly of any changes to Your email address or other contact details.

Additional Conditions for Specials

If You purchase Your account in response to a special offer advertised by us (such as a discounted web hosting plan), then additional and/or alternative terms and conditions may apply. Details of such additional and/or alternative terms and conditions are disclosed on the relevant pages on our website (that is, on the pages which outline the details of the special offer You have chosen) and form part of this Agreement. If the additional and/or alternative terms and conditions are inconsistent with this document, then the affected clauses in the additional and/or alternative terms and conditions will override the conflicting clauses in this document.

Billing Cycle, Invoices and Payments

For Website Hosting Packages, initial Payment takes the form of three (3) payments billed at monthly intervals from the date of initial signup.

The first, a deposit of 50% of the total invoice fee, is due prior to any work/service/account creation being performed/started.

The second (2nd) payment, 25% of the total fee, is due one month after the signup date.

The third (3rd) payment is due 2 months after intial signup or on completion of the website/service and prior to final handover, whichever comes first.

Invoices will be sent out via email ten(10) days prior to the payment due date.

Failure to pay any of these payments ontime will result in website hosting and email account suspension and a halting of services until the outstanding amount is paid.

Our hosting billing cycle is Yearly in advance. Your initial payment is due at the time you open your account. After Your initial payment has been made, we will send You an invoice via email, approximately ten(10) days before each subsequent payment is due.

If Your payment is overdue then Your website(s) and/or Email Account(s) may be suspended and/or removed from our Servers without notice. We do not accept any responsibility or liability for any loss, fees, or fines incurred by the suspension or removal of your website and/or email account due to an overdue payment or account.

If You accidentally make an additional and unnecessary payment for our service, we will credit the additional funds to your Warwick Lyons account. At Your request, we may consider refunding the additional monies paid by You, but will deduct from the refund amount any expenses incurred by us, such as clerical expenses and finance charges.

Generally, all fees are non-refundable. If however we decide that exceptional circumstances apply then we will provide a refund, or partial refund, at our discretion.

Prices

Prices are subject to change without notice. Any change in monthly fees will apply to Your next hosting period, but will not be payable for Your current hosting period.

Goods and Services Tax (GST)

This section only applies to Australian customers.

Words or expressions used in this clause which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning in this clause.

The following items include goods and services tax (GST):

• the fees payable by you for the Service; and
• any other Taxable Supply made or provided by us to you, whether or not in accordance with this Agreement.

We will provide a Tax Invoice to you on or before the time that GST is payable in accordance with this Agreement.

GST is payable to us by you at the same time as you pay the amounts referred to above to us.

If you fail to remit GST to us as otherwise required by this Agreement, you will indemnify us for any Claim in relation to the GST that you failed to remit.

Site Suspension

Warwick Lyons may, at its sole discretion, deactivate Your website and revoke Your access to our Servers. For example, Your site may be deactivated for late payment, or Server abuse. You acknowledge that if Your site is deactivated then Warwick Lyons has no obligation to provide You with a copy of Your site content, or to restore Your server access to enable You to obtain a copy of Your site content.

Cancellation of Service

You may cancel the Agreement at any time by providing Warwick Lyons with written authorization to close Your web hosting account (the Service).

We reserve the right to cancel the Service for any reason, and at our sole discretion. If You breach any of the terms and conditions in this Agreement we may deactivate and/or remove Your website from our Servers immediately and without notice.

You acknowledge that Warwick Lyons does not keep copies of files for web sites that are no longer hosted with us, and that Warwick Lyons has the right to remove all website files at the time the Service is cancelled or discontinued.

Modifications to Service

Warwick Lyons reserves the right to modify or discontinue the Service (or any part thereof) as we see fit, with or without notice. You agree that Warwick Lyons will not be liable to You or any other party for such modifications to the Service.

Warwick Lyons reserves the right to update these Terms and Conditions from time to time. Any updates to these Terms and Conditions will apply to the Service from the time that this Agreement is updated on the Warwick Lyons site.

Right to Outsource

At our sole discretion, we may outsource the Services or the performance of any work, or part thereof, relating to the Services to any party as we see fit.

Intellectual Property

You agree to indemnify, hold harmless and defend at your own expense us from and against any and all Claims for infringement of copyright, patents, trade marks, industrial designs or other intellectual property rights issued under the laws of any country where the copyright, patents, trade marks, industrial designs or other intellectual property were provided by you, or where you represented, expressly or impliedly, that the copyright, patents, trade marks, industrial designs or other intellectual property were your intellectual property.

We undertake to give you prompt notice of any Claim described above that is made against us or any of our subsidiaries, dealers or customers and you will forthwith defend any such Claims and make settlements thereof at your own expense.

You acknowledge that any and all of the copyright, patents, trade marks, industrial designs or other intellectual property rights used or subsisting in or in connection with our business, marketing and/or support material relating to our business and all documentation and manuals relating thereto are and will remain our property and you will not, during or at any time after the expiry or termination of this Agreement, in any way question or dispute the ownership by us thereof.

You will not, during or after the expiry or termination of this Agreement, without the prior written consent of us, use or adopt any name, trade name, trading style or commercial designation that includes or is similar to or may be mistaken for the whole or any part of any trade mark, trade name, trading style or commercial designation used by us.

Severability

If any part of this Agreement is deemed to be unenforceable or otherwise invalid then that will not affect the validity nor enforceability of any other parts of this agreement.

Jurisdiction

This agreement shall be interpreted under the laws of the Australian Capital Territory (ACT), Australia, and both parties agree that any legal action or proceedings relating to this agreement shall be settled in the courts and/or tribunals in the Australian Capital Territory (ACT), Australia.

Force Majeure

Neither party will be liable to the other party in respect of anything which, apart from this provision, may constitute breach of this Agreement arising by reason of Force Majeure.

Waiver

Failure or neglect by us to enforce, at any time, any of the provisions of this Agreement will not be construed or deemed to be a waiver of our rights hereunder nor in any way affect the validity of the whole or any part of this Agreement or prejudice our rights to take subsequent action.

Headings

The headings of the terms and conditions contained in this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of any of the terms and conditions of this Agreement.

Assignment

You may not assign, attempt to assign nor otherwise transfer any right or obligation arising out of this Agreement without our written consent.

Limitation of Liability

WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PRODUCT OR SERVICE FURNISHED OR TO BE FURNISHED UNDER THIS AGREEMENT OR THE USE THEREOF (INCLUDING BUT NOT LIMITED TO DAMAGE, LOSS OR CORRUPTION OF DATA, SERVICE INTERRUPTIONS OR ERRORS, INACCURATE ADVICE PROVIDED TO YOU AND/OR YOUR CLIENTS, OR LOSS OF PROFIT, BUSINESS, REVENUE, GOODWILL OR ANTICIPATED SAVINGS), EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

THE AGGREGATE LIABILITY OF US FOR ANY CLAIMS HOWSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PRODUCTS OR SERVICES FURNISHED OR TO BE FURNISHED BY US UNDER THIS AGREEMENT WILL, IN ANY EVENT, BE ABSOLUTELY LIMITED TO THE AMOUNT PAID BY YOU TO US UNDER THIS AGREEMENT FOR THE APPLICABLE PRODUCTS AND/OR SERVICES.

YOU ACKNOWLEDGE THAT WE HAVE SET OUR PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATION OF LIABILITY SET FORTH IN THIS AGREEMENT, AND THAT THE SAME FORMS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PARTIES AGREE THAT THE LIMITATION OF LIABILITY SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF ANY LIMITATION OF REMEDIES IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED HEREIN WILL LIMIT YOUR LIABILITY FOR ITS OWN WILFUL OR WANTON CONDUCT.

NOTWITHSTANDING ANY OTHER PROVISIONS CONTAINED HEREIN, WHERE ANY ACT OF THE AUSTRALIAN PARLIAMENT IMPLIES ANY TERM INTO THIS AGREEMENT, AND THAT ACT AVOIDS OR PROHIBITS PROVISIONS IN A CONTRACT EXCLUDING OR MODIFYING SUCH TERM, THAT TERM WILL BE DEEMED TO BE INCLUDED IN THIS AGREEMENT, BUT OUR LIABILITY FOR BREACH OF THAT TERM WILL BE LIMITED IN ONE OR MORE OF THE WAYS (AT OUR OPTION) PERMITTED BY SECTION 68A(1) OF THE TRADE PRACTICES ACT 1974 (CTH).

Disclaimer

We make no statement, warranty, representation or promise not expressly set out in the Agreement, or required by law. We expressly disclaim all warranties, representations or promises in relation to the Service.