Terms and Conditions

PREAMBLE

1. Preamble

• 1.1 All Services of Silvertrees Web Hosting Pty Limited, whether gratuitous or not, are supplied subject to these Conditions and:
  • (a) The provisions of Part I shall apply to the provision of all and any Services.
  • (b) The provisions of Part II shall only apply to the provision of Website Hosting Services.
  • (c) The provisions of Part III shall only apply to the provision of Web Hosting Services.

PART I - GENERAL CLAUSES

2. Definitions

• 2.1 Silvertrees: shall mean Silvertrees Web Hosting Pty Limited and its successors and assigns.
• 2.2 Client: shall mean the Client or any person acting on behalf of and with the authority of the Client.
• 2.3 Guarantor: means that person (or persons), or entity who agrees herein to be liable for the debts of the Client on a principal debtor basis.
• 2.4 Materials: shall mean all data, graphics, pictures, trade marks, software and other materials to be incorporated in the Client's Website (including, but not limited to), user data created by the operation of the Client's Website (and where the context so permits shall include any supply of Services as hereinafter defined);
• 2.5 Price: shall mean the cost of the Services as agreed between Silvertrees and the Client subject to clause 4 of this contract. The Client agrees to pay the Price in accordance with the conditions of this agreement.
• 2.6 Prohibited Content: means any content on a Website that:
  • (a) is, or could reasonably be considered to be, in breach of the Broadcast Services Amendment (Online Service) Act 1999 (Cth); the Competition and Consumer Act 2010 (Cth); or any other applicable law or applicable industry code; or
  • (b) contains, or could reasonably be considered to contain, any misrepresentations; or is, or could reasonably be considered to be, misleading or deceptive, likely to mislead or deceive or otherwise unlawful; or
  • (c) is, or could reasonably be considered to be, in breach of any person's Intellectual Property Rights.
• 2.7 Services: shall mean all services supplied by Silvertrees to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Materials as defined above) and are as described on the invoices, quotation, work authorisation or any other work commencement forms as provided by Silvertrees to the Client.
• 2.8 Website: means a location which is accessible on the Internet through the World Wide Web and which provides multimedia content via a graphical User Interface.

3. Acceptance

• 3.1 Any instructions received by Silvertrees from the Client for the supply of Services and/or the Client's acceptance of Services supplied by Silvertrees shall constitute acceptance of the terms and conditions contained herein.
• 3.2 Where more than one Client has entered into this agreement, the Client's shall be jointly and severally liable for all payments of the Price.
• 3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of Silvertrees.
• 3.4 None of Silvertrees' agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of Silvertrees in writing nor is Silvertrees bound by any such unauthorised statements.
• 3.5 The Client undertakes to give Silvertrees not less than fourteen (14) days prior written notice of any proposed change in the Client's name and/or any other change in the Client's details (including but not limited to, changes in the Client's address, facsimile number, credit or debit card details if payment is made by this method, or business practice).
• 3.6 The Client agrees to be bound by these terms and conditions for the Initial Term as selected by the Client on the Order Form. The Client understands and accepts that this agreement will be automatically renewed (the Renewal Term) at the end of the Initial Term for the same period as the Initial Term unless you provide Silvertrees with notice of termination of the agreement no less than thirty (30) days prior to the end of the Initial Term or the Renewal Term.
• 3.7 These terms and conditions are meant to be read in conjunction with Silvertrees Acceptable Use Policy posted on Silvertrees' website. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail. Silvertrees reserves the right to terminate the Client's account for any violation of the Usage Policy.
• 3.8 The Client warrants that the Client:
  • (a) at least eighteen (18) years of age or are a duly organised and validly existing entity; and
  • (b) possess the legal right and ability to enter into this Agreement; and
  • (c) will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines; and
  • (d) has acquired or will acquire all authorisation(s) necessary for hypertext links to third-party Web sites or other content; and
  • (e) has verified or will verify the accuracy of materials distributed or made available for distribution via the Services, including, without limitation, your content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and
  • (f) the website content and/or any software that the Client installs or provides does not and will not infringe or violate any right of any third party (including any intellectual property rights) or violate any applicable law, regulation or ordinance.

4. Price And Payment

• 4.1 At Silvertrees' sole discretion the Price shall be either;
  • (a) as indicated on invoices provided by Silvertrees to the Client in respect of Services supplied; or
  • (b) Silvertrees' quoted Price (subject to clause 4.2) which shall be binding upon Silvertrees provided that the Client shall accept in writing Silvertrees' quotation within sixty (60) days.
• 4.2 Any variation from the plan of scheduled works or specifications will be charged for on the basis of Silvertrees' quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
• 4.3 Silvertrees may submit a detailed payment claim at intervals not less than one month for Services performed up to the end of each month. The value of Services so performed shall include the value of any variations, whether or not the value of such variations has been finally agreed between the parties.
• 4.4 Payment for certain approved Client's shall be due at the end of the month following the date of the invoice.
• 4.5 Time for payment for the Services shall be of the essence and will be stated on the invoice, quotation or any other order forms. If no time is stated then payment shall be due fourteen (14) days following the date of the invoice.
• 4.6 Silvertrees may withhold delivery of the Services until the Client has paid for them, in which event payment shall be made before the delivery date.
• 4.7 Payment will be made by cash on delivery, or by cheque, or by bank cheque, or by credit card, or by direct credit, or by any other method as agreed to between the Client and Silvertrees.
• 4.8 The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by Silvertrees.

5. Delivery Of Services

• 5.1 The failure of Silvertrees to deliver shall not entitle either party to treat this contract as repudiated.
• 5.2 Silvertrees shall not be liable for any loss or damage whatever due to failure by Silvertrees to deliver the Services (or any of them) promptly or at all where due to circumstances beyond Silvertrees control.
• 5.3 At its sole discretion and without notice to the Client, Silvertrees may at any time suspend the supply of Services for the purposes of maintaining, repairing or upgrading its systems or networks or if continuing the supply of Services places Silvertrees general operations at risk. Silvertrees will use best efforts to notify the Client of any such Service suspension however at no time is under any obligation to inform the Client of such action.

6. Risk

• 6.1 If Silvertrees retains property in the Services nonetheless, all risk for the Services passes to the Client on delivery.

7. Errors and Omissions

• 7.1 The Client shall inspect the Services on delivery and shall within three (3) days of delivery notify Silvertrees of any alleged defect, shortage in quantity, errors, omissions or failure to comply with the description or quote. The Client shall afford Silvertrees an opportunity to inspect the Services within a reasonable time following delivery if the Client believes the Services are defective in any way. If the Client shall fail to comply with these provisions, the Services shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
• 7.2 For defective Services, which Silvertrees has agreed in writing that the Client is entitled to reject, Silvertrees' liability is limited to either (at Silvertrees' discretion) replacing the Materials or repairing the Services provided that the Client has complied with the provisions of clause 7.1, except where the Client has acquired Services as a consumer within the meaning of the Competition and Consumer Act 2010 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer's discretion either a refund of the purchase price of the Services, or repair of the Services, or replacement of the Materials.
• 7.3 For Materials not manufactured by Silvertrees, the warranty shall be the current warranty provided by the manufacturer of the Materials. Silvertrees shall be under no liability whatsoever except for the express conditions as detailed and stipulated in the manufacturers warranty.

8. Warranty

• 8.1 Silvertrees is not responsible in any manner for any non-confirming Services to the extent caused by the Client or the Client's customers. In addition, Silvertrees is not responsible for loss or corruption of data in transmission, or for failure to send or receive data due to events beyond Silvertrees' reasonable control.
• 8.2 To the extent permitted by statute, no warranty is given by Silvertrees as to the quality or suitability of the Services for any purpose and any implied warranty, is expressly excluded.
• 8.3 The Client acknowledges and agrees that silvertrees exercises no control over, and accepts no responsibility for, the content of the information passing through Silvertrees' computers, network hubs and points of presence, or the internet. Silvertrees does not warrant that the Services will be uninterrupted or error-free, or completely secure, and does not make any warranties with respect to patent, copyright, trade secret or trademark infringement. All services are performed without warranty against failure of performance including, without limitation, any failure due to computer hardware or communication systems.

9. Client's Disclaimer

• 9.1 The Client hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of Silvertrees and the Client acknowledges that he buys the Services relying solely upon his own skill and judgement.

10. Indemnification

• 10.1 The Client will defend, indemnify and hold harmless Silvertrees and its officers, directors, shareholders, employees, consultants, agents, affiliates and suppliers (an "Indemnitee") from any and all threatened or actual claims, demands, causes of action, suits, proceedings (formal or informal), losses, damages, fines, penalties, liabilities, costs and expenses of any nature, including legal fees and court costs, sustained or incurred by or asserted against any Indemnitee by any person, firm, corporation, governmental authority, partnership or other entity by reason of or arising out of or relating to:
  • (a) the Client's violation or breach of any term, condition, representation or warranty of this Agreement or any applicable policy or guideline; or
  • (b) the Client's conduct, including but not limited to the Client's negligence, gross negligence, or wilful misconduct; or
  • (c) the Client's use of the Services, including any improper or illegal uses; or
  • (d) any claim by a former employee of the Client whose employment has been or may be terminated in connection with or as a result of the execution of this Agreement and performance of the Services by Silvertrees ; or
  • (e) any claim relating to your Services, or the Client's installation and/or use of any third-party software, including but not limited to advertising, product liability claims or infringement of any trademark, copyright, patent, trade secrets or nonproprietary right of a third party (including, without limitation, defamation, libel, or violation of privacy or publicity).

11. The Commonwealth Competition and Consumer Act 2010 (CCA:) and Fair Trading Acts (FTA:)

• 11.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the CCA or the FTA in each of the States and Territories of Australia (including any substitute to those Acts or re-enactment thereof), except to the extent permitted by those Acts where applicable.
• 11.2 Where the Client purchases Services as a consumer these terms and conditions shall be subject to any laws or legislation governing the rights of consumers and shall not affect the consumer's statutory rights.

12. Intellectual Property

• 12.1 The Client warrants that all designs or instructions to Silvertrees will not cause Silvertrees to infringe any patent, registered design or trademark in the execution of the Clients order.
• 12.2 Where Silvertrees has provided photographic or graphical (digital or otherwise) images for the Client, at Silvertreess sole discretion any such images may be subject to ongoing licence payments for use of such images. The period of any such licence is determined by Silvertrees from time to time.
• 12.3 The Client hereby grants to Silvertrees a non-exclusive, worldwide, and royalty-free license for the Initial Term and any Renewal Term to use the Client's content as necessary for the purposes of rendering and operating the Services. The Client expressly;
  • (a) grants to Silvertrees a license to cache materials distributed or made available for distribution via the Services, including content supplied by third parties; and
  • (b) agrees that such caching is not an infringement of any of the Client's intellectual property rights or any third party's intellectual property rights.
• 12.4 All Materials, including but not limited to any computer software (in object code and source code form), data or information developed or provided by Silvertrees or its suppliers or agents pursuant to this Agreement, and any know-how, methodologies, equipment, or processes used by Silvertrees to provide the Services, including, without limitation, all copyrights, trademarks, patents, trade secrets and other proprietary rights are and will remain the sole and exclusive property of Silvertrees or its suppliers, including but not limited to any software programs, inventions, products and/or technology innovations and methodologies utilised, developed, or disclosed by Silvertrees during the term of this Agreement. Unauthorised copying, reverse engineering, decompiling, and creating derivative works based on the any such software is expressly forbidden except as permitted in this Agreement. The Client may be held legally responsible for violation of any patent rights, copyright or trade secret rights that is caused or encouraged by failure to abide by the terms of this Agreement.
• 12.5 The Client hereby grant to Silvertrees a limited right to use the Client's trademarks, if any, for the limited purpose of permitting Silvertrees to fulfill the Services. This is not a trademark license and no other rights relating to the trademarks are granted by this Agreement. Specifically, but without limitation, the rights granted by this Agreement do not include the right to sub-license use of your trademarks or for Silvertrees to use the trademarks with any other products or services outside the scope of the Services. The limited trademark use rights granted under this section terminate upon termination of this Agreement.

13. Default & Consequences Of Default

• 13.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% compounding per calendar month and shall accrue at such a rate after as well as before any judgement.
• 13.2 In the event that the Client's payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by Silvertrees.
• 13.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Silvertrees from and against all Silvertrees' costs and disbursements including on a solicitor and own Client basis and in addition all of Silvertrees' nominees costs of collection.
• 13.4 Without prejudice to any other remedies Silvertrees may have, if at any time the Client is in breach of any obligation (including those relating to payment), Silvertrees may suspend or terminate the supply of Services to the Client and any of its other obligations under the terms and conditions. Silvertrees will not be liable to the Client for any loss or damage the Client suffers because Silvertrees exercised its rights under this clause.
• 13.5 If any account remains unpaid at the end of the second month after supply of the Services an immediate amount of the greater of $20.00 or 10.00% of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable in addition to the interest payable under clause 13.1 hereof.
• 13.6 In the event that:
  • (a) any money payable to Silvertrees becomes overdue, or in Silvertrees' opinion the Client will be unable to meet its payments as they fall due; or
  • (b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
  • (c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client; then without prejudice to Silvertrees' other remedies at law
  • (d) Silvertrees shall be entitled to cancel all or any part of any order of the Client which remains unperformed in addition to and without prejudice to any other remedies; and
  • (e) all amounts owing to Silvertrees shall, whether or not due for payment, immediately become payable.
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14. Title

• 14.1 It is the intention of Silvertrees and agreed by the Client that property in the Materials shall not pass until:
  • (a) The Client has paid all amounts owing for the particular Materials, and
  • (b) The Client has met all other obligations due by the Client to Silvertrees in respect of all contracts between Silvertrees and the Client, and that where practicable the Materials shall be kept separate until Silvertrees shall have received payment and all other obligations of the Client are met.
• 14.2 Receipt by Silvertrees of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Silvertrees' ownership of rights in respect of the Materials shall continue.
• 14.3 It is further agreed that:
  • (a) Until such time as ownership of the Materials shall pass from Silvertrees to the Client Silvertrees may give notice in writing to the Client to return the Materials or any of them to Silvertrees. Upon such notice the rights of the Client to obtain ownership or any other interest in the Materials shall cease.
  • (b) Silvertrees shall have the right of stopping the Materials in transit whether or not delivery has been made; and
  • (c) If the Client fails to return the Materials to Silvertrees then Silvertrees or Silvertrees' agent may (as the invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Materials are situated and take possession of the Materials.
  • (d) The Client is only a bailee of the Materials and until such time as Silvertrees has received payment in full for the Materials then the Client shall hold any proceeds from the sale or disposal of the Materials on trust for Silvertrees.
  • (e) The Client shall not deal with the money of Silvertrees in any way which may be adverse to Silvertrees.
  • (f) The Client shall not charge the Materials in any way nor grant nor otherwise give any interest in the Materials while they remain the property of Silvertrees.
  • (g) Silvertrees may require payment of the Price or the balance of the Price due together with any other amounts due from the Client to Silvertrees arising out of these terms and conditions, and Silvertrees may take any lawful steps to require payment of the amounts due and the Price.
  • (h) Silvertrees can issue proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials may not have passed to the Client.
  • (i) Until such time that ownership in the Materials passes to the Client, if the Materials are so converted, the parties agree that Silvertrees will be the owner of the end products.
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15. Personal Property Securities Act 2009 (PPSA:)

• 15.1 In this clause:
  • (a) financing statement has the meaning given to it by the PPSA;
  • (b) financing change statement has the meaning given to it by the PPSA;
  • (c) security agreement means the security agreement under the PPSA created between the Client and Silvertrees by these terms and conditions; and
  • (d) security interest has the meaning given to it by the PPSA.
• 15.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions:
  • (a) constitute a security agreement for the purposes of the PPSA; and
  • (b) create a security interest in:
  • (i) all Materials previously supplied by Silvertrees to the Client (if any);
  • (ii) all Materials that will be supplied in the future by Silvertrees to the Client.
• 15.3 The Client undertakes to:
  • (a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Silvertrees may reasonably require to:
    • (i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
    • (ii) register any other document required to be registered by the PPSA; or
    • (iii) correct a defect in a statement referred to in clause 15.3(a)(i) or 15.3(a)(ii);
  • (b) indemnify, and upon demand reimburse, Silvertrees for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Materials charged thereby;
  • (c) not register a financing change statement in respect of a security interest without the prior written consent of Silvertrees;
  • (d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials in favour of a third party without the prior written consent of Silvertrees; and
  • (e) immediately advise Silvertrees of any material change in its business practices of selling the Materials which would result in a change in the nature of proceeds derived from such sales.
• 15.4 Silvertrees and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
• 15.5 The Client hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
• 15.6 The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
• 15.7 Unless otherwise agreed to in writing by Silvertrees, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.
• 15.8 The Client shall unconditionally ratify any actions taken by Silvertrees under clauses 15.3 to 15.5.

16. Security And Charge

• 16.1 Despite anything to the contrary contained herein or any other rights which Silvertrees may have howsoever:
  • (a) Where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client 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 Silvertrees or Silvertrees' nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Client and/or the Guarantor acknowledge and agree that Silvertrees (or Silvertrees' nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
  • (b) Should Silvertrees elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify Silvertrees from and against all Silvertrees' costs and disbursements including legal costs on a solicitor and own client basis.
  • (c) To give effect to the provisions of clause [16.1 (a) and (b)] inclusive hereof the Client and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint Silvertrees or Silvertrees' nominee as the Client's and/or Guarantor's true and lawful attorney to execute mortgages and charges (whether registerable or not) including such other terms and conditions as Silvertrees and/or Silvertrees' nominee shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Client and/or the Guarantor in any land, realty or asset in favour of Silvertrees and in the Client's and/or Guarantor's name as may be necessary to secure the said Client's and/or Guarantor's obligations and indebtedness to Silvertrees and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in Silvertrees' absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.

17. Cancellation

• 17.1 Silvertrees may cancel these terms and conditions or cancel delivery of Services at any time before the Services are delivered by giving thirty (30) days written notice. On giving such notice Silvertrees shall repay to the Client any sums paid in respect of the Price for Services not yet rendered (excluding setup charges). Silvertrees shall not be liable for any loss or damage whatever arising from such cancellation.
• 17.2 In the event that Silvertrees cancels the agreement under clause 13.6 then the no refunds shall apply and the Client shall be liable to immediately pay any amounts outstanding.
• 17.3 In the event that the Client cancels delivery of the Services prior to the end of their Initial Term or the Renewal Term (whichever is then applicable), then:
  • (a) Silvertrees shall not refund any Price paid in advance of such cancellation; and
  • (b) The Client shall be liable to pay the full monthly Price for each month remaining in the term unless agreed otherwise in writing by Silvertrees.
• 17.4 If the Client cancels receipt of shared hosting Services prior to the end of the first thirty (30) days of the Initial Term, then the Client shall be entitled to a refund of any Price paid in advance for the monthly shared hosting Services, excluding any setup charges.
• 17.5 At Silvertreess sole discretion the Client may cancel delivery of the Materials and/or Services. In the event that the Client cancels delivery of the Materials and/or Services the Client shall be liable for any costs incurred by Silvertrees up to the time of cancellation.

18. Privacy Act 1988

• 18.1 The Client and/or the Guarantor/s (herein referred to as the Client) agree for Silvertrees to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by Silvertrees.
• 18.2 The Client agrees that Silvertrees may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
  • (a) to assess an application by the Client; and/or
  • (b) to notify other credit providers of a default by the Client; and/or
  • (c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
  • (d) to assess the creditworthiness of the Client.
• The Client understands that the information exchanged can include anything about the Client's creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
• 18.3 The Client consents to Silvertrees being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).<