Agreement

Terms of Service

1. ACCEPTANCE

1.1     This Agreement THE SECRET HUB PTY LTD (trading as BLUE OCEAN WEB HOSTING
(ACN 131 193 658)) its successors and assignees, (referred to as “we”, “us”, “our” or “Company”), and the Client described in the Proposal (referred to as “you” or “your”), and collectively the Parties.

1.2     You have requested the services set out in the attached Proposal (Services). You agree and accept that these Terms and Conditions (Terms) form the agreement under which we will supply Services to you. Please read the Terms carefully. Please contact us if you have any questions.

1.3     You accept our Proposal and Terms by:
           (a)     signing and returning the Proposal;
           (b)     confirming by email that you accept the Proposal;
           (c)     making payment online;
           (d)     instructing us to proceed with the Services; or
           (e)     paying any Deposit set out in the Proposal, or making part or full payment for the Services, by the methods set out in our Proposal or our tax invoice to you (Invoice).

1.4     We will not commence performing our Services until you have paid the first instalment of our Fees.

1.5     Refunds: In the event of a refund, we reserve the right to retain an Admin Fee, or recover payment gateway charges. Domain names are non-refundable for any reason, to the extent permitted by law.

2. SERVICES

2.1     We agree to perform the Services set out in the Proposal with due care and skill.

2.2     We may provide the Services to you using our employees, contractors and third party providers and they are included in these Terms.

2.3     Third parties who are not our employee or our direct contractor (Third Parties) will be your responsibility. We are not responsible for the services provided by Third Parties.

2.4     Our Services cover the scope in the Proposal. If you request additional services, including but not limited to changes in scope (Variation), we have discretion as to whether we perform this work and whether an adjustment to the Fee may be required in respect of the same.

2.5     If we agree to perform any Variation, then we will inform you of the additional costing (Variation Fee). You need to approve, in writing, the Variation and Variation Fee, before we commence work.  We will invoice you accordingly for the Variation upon receipt of your approval.

3.  PRICE, INVOICING AND PAYMENT

3.1     You agree to pay us the Fees, for the Services that you have requested, as set out in the Proposal for the Term. All amounts are stated in Australian dollars. All purchase prices include Australian GST (where applicable). Payment may be made by way of payment methods as set out in our Proposal when purchasing our Services.

3.2     If an access audit is required this is charged out at an Hourly Rate. In some circumstances it is unknown which IP or user has edited data – our logs are not kept indefinitely. Retention times are set by the authors of any such software we license that provides logging and logs.

3.3     If applicable, you agree to pay our Invoices by the payment date set out on the Invoice. If you do not pay by the payment date, we may cease to provide the Services to you until we receive payment.

3.4     We may charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 8% per annum, calculated daily and compounding monthly, on any amounts unpaid after the payment date.

3.5     If invoices are unpaid after the payment date, we have the right to engage debt collection services for the collection of unpaid and undisputed debts, and the right to commence legal proceedings for any outstanding amounts owed to us.

3.6     We reserve the right to report bad debts to independent credit data agencies.

4.  YOUR OBLIGATIONS AND WARRANTIES

4.1     You warrant that you will not canvass, employ, induce or attempt to employ, induce, solicit or entice away from us, any employee or contractor that was employed by or contracted to us during the term that we provide Services to you or the prior twelve (12) month period.

4.2     You warrant that throughout the term of this Agreement that:
           (a)     there are no legal restrictions preventing you from agreeing to the Terms;
           (b)     you will cooperate with us and provide us with information and comply with requirements in a timely manner, as requested by us from time to time, that are reasonably necessary to enable us to perform the Services;

           (c)     the information you provide to us is true, correct and complete;
           (d)     you will not infringe any third party rights in working with us and receiving the Services;
           (e)     you will inform us if you have reasonable concerns relating to our provision of Services under the Terms, with the aim that we and you will use all reasonable efforts to resolve the concerns;
           (f)     you are responsible for ensuring you have created strong passwords in accordance with https://www.it.ucsb.edu/secure-compute-research-environment-user-guide/password-best-practices and ensuring you have implemented a password management policy which should include the adoption of Two factor authentication where provided for by us. Any password required to be set is  to follow strength guidelines;
           (g)     you are responsible for obtaining any consents, licences and permissions from other parties necessary for the Services to be provided, at your cost, and for providing us with the necessary consents, licences and permissions.

 
5.  OUR INTELLECTUAL PROPERTY

5.1     We own the Intellectual Property rights in:
           (a)     our pre-existing Intellectual Property, including but not limited to copyright which subsists in all creative and literary works incorporated into our pre-existing Intellectual Property; and
           (b)     Intellectual Property that we create during the course of the Services, including but not limited to copyright which subsists in all creative and literary works in all Intellectual Property that we create during the course of the Services;
           (c)     unless we assign or transfer this to you. This Intellectual Property is protected by Australian and international laws.

5.2     Nothing in these Terms constitutes an assignment or transfer of our Intellectual Property rights, or a right to use our Intellectual Property, whether registered or unregistered, except as stated in these Terms or with our written permission.

5.3     You must not breach our Intellectual Property rights by, including but not limited to:
           (a)     altering or modifying our Intellectual Property;
           (b)     creating derivative works from the Intellectual Property; or
           (c)     using our Intellectual Property for commercial purposes such as on-sale to third parties.

5.4     This clause will survive the termination of these Terms.

 

6.  YOUR INTELLECTUAL PROPERTY AND MORAL RIGHTS

6.1  You agree to provide information including any Intellectual Property to us to enable us to provide the Services. You:

           (a)     warrant that you have all necessary rights to provide the Intellectual Property to us;
           (b)     grant us a perpetual, non-exclusive, royalty-free, irrevocable, worldwide and transferable licence to use the Intellectual Property in any way we require to provide the Services to you; and
           (c)     consent to any act or omission which would otherwise constitute an infringement of your Moral Rights.

6.2  If you (or any employee or agent) have Moral Rights in any Intellectual Property that you provide to us, you:

           (a)     irrevocably consent to any amendment of the Intellectual Property for the purposes of us providing Services to you and to our using or applying the Intellectual Property for the purposes of providing Services to you without any attribution of authorship;
            (b)     agree that your consent extends to acts and omissions of any of our licensees and successors in title; and
           (c)     agree that your consent is a genuine consent under the Copyright Act 1968 (Cth) and has not been induced by duress or any false or misleading statements.

6.3  This clause will survive the termination of these Terms.

7.  CONFIDENTIAL INFORMATION

7.1  We, including our employees and contractors, agree not to disclose your Confidential Information to any third party; to use all reasonable endeavours to protect Confidential Information from any unauthorised disclosure; only to use the Confidential Information for the purpose for which it was disclosed by you and not for any other purpose.

7.2  You agree not to disclose our Confidential Information to any third party; to use all reasonable endeavours to protect Confidential Information from any unauthorised disclosure; and only to use the Confidential Information for the purpose for which it was disclosed or provided by us to you, and not for any other purpose.

7.3  These obligations do not apply to Confidential Information that:

           (a)     is authorised to be disclosed;
           (b)     is in the public domain and/or is no longer confidential, except as a result of breach of these Terms;
           (c)     is received from a third party, except where there has been a breach of confidence; or
           (d)     must be disclosed by law or by a regulatory authority including under subpoena.
           (e)     The obligations under this clause will survive termination of these Terms.

8.  FEEDBACK AND DISPUTE RESOLUTION

8.1  Your feedback is important to us. We seek to resolve your concerns quickly and effectively. If you have any feedback or questions about our Services, please contact us.

8.2  If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure:

           (a)     The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them (Initial Meeting). The Initial Meeting place and time is to be arranged between Parties and can be virtual.
           (b)     If the Parties cannot agree how to resolve the dispute at the Initial Meeting, any Party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, the complainant will ask the Law Society of Queensland to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute.

8.3  Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Terms, by law or in equity.

9.  TERMINATION

9.1  Either Party may terminate these Terms without cause by providing the other Party with 30 days’ notice, in writing (including by email). This excludes hosting or pre-paid Services.

9.2  Either party may terminate the Terms, if there has been a material breach of these Terms, subject to following the dispute resolution procedure.

9.3  We may terminate the Terms by providing you with 14 business days’ notice (including by email), in our sole discretion, if:
           (a)     we consider that a request for a Service is inappropriate, improper or unlawful;
           (b)     you fail to provide us with clear or timely instructions to enable us to provide the Services;
           (c)     we consider that our working relationship has broken down including a loss of confidence and trust;
           (d)     for any other reason outside our control which has the effect of compromising our ability to perform the work required within the required timeframe; or
           (e)     you fail to pay an Invoice within 10 business days of the payment date.

9.4  On termination of these Terms you agree that any Deposit or payments made are not refundable to you, and you are to pay all invoices for Services rendered to you.

9.5  If you terminate this Agreement early, you must pay for all Services provided prior to termination, including any Services which have been performed and have not yet been billed to you.

9.6  On termination of these Terms you agree to promptly return (where possible), or delete or destroy (where not possible to return), our Confidential Information and Intellectual Property, and/or documents containing or relating to our Confidential Information and Intellectual Property.

9.7  On termination of these Terms, we agree to promptly return (where possible), or delete or destroy (where not possible to return), your Confidential Information and Intellectual Property, and/or documents containing or relating to your Confidential Information and Intellectual Property.

9.7  On completion of the Services, we will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to the Terms constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on termination of these Terms.

9.8  The accrued rights, obligations and remedies of the Parties are not affected by the termination of these Terms.

10  CONSUMER LAW, LIMITATION OF LIABILITY AND DISCLAIMERS

10.1  ACL: Certain legislation including the Australian Consumer Law (ACL) in the Consumer and Competition Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of Services by us to you which cannot be excluded, restricted or modified (Statutory Rights). Our liability is governed solely by the ACL and these Terms. Nothing in these Terms excludes your Statutory Rights as a consumer under the ACL. You agree that our liability for Services provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms. We exclude all conditions and warranties implied by custom, law or statute except for your Statutory Rights.

10.2  Delay: Where the provision of Services depends on your information or response, we have no liability for a failure to perform the Services in this estimated period, which is affected by your delay in response, incomplete or incorrect information.

10.3  Referral: On request by you, we may provide you with contact details of third party specialists. This is not a recommendation by us for you to seek their advice or to use their services.  We make no representation or warranty about the third party advice or provision of services, and we disclaim all responsibility and liability for the third party advice or provision of services, or failure to advise or provide services.

10.4  Warranties: To the extent permitted by law, we exclude all express and implied warranties, and all material and work is provided to you without warranties of any kind, either express or implied. We expressly disclaim all warranties including but not limited to implied warranties of merchantability and fitness for a particular purpose.

10.5  Liability: The Company’s liability for any Liability or Claim in relation to any Services, Proposal or these Terms (whether under statute, contract, negligence or other tort, indemnity, or otherwise) will be limited to the amount of the Price paid by the Client to the Company in respect of the relevant Services.

10.6  The Company will not be liable to the Client for any Liability or Claim arising (whether under statute, contract, negligence or other tort, indemnity, or otherwise) in relation to any Consequential Loss.

10.7  The Company will not be liable to the Client for any Liability or Claim caused or contributed by:
           (a)  implied or express guarantees, representations or conditions of any kind, which are not stated in the Terms;
           (b)     our Services being unavailable;
           (c)     any issues that may be caused by a user accessing your hosting account. You have top level access of your hosting account and websites. We cannot be held responsible if we are not the only ones with top level access;
           (d)     the distribution, public release, use or communication of Electronic Data, the release of which has been caused by libel, slander, defamatory material or breaches of privacy or confidentiality;

           (e)     the corruption, deletion or changes in part or whole of the Electronic Data;
           (f)     errors in producing, altering, erasing or using Electronic Data;
           (g)     difficulties in receiving, sending, accessing or utilising Electronic Data at any time; and
           (h)     any loss, damage, costs including legal costs, or expense whether direct, indirect, incidental, special, consequential and/or incidental, including loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation, use or any indirect, remote, abnormal or unforeseeable loss, or any loss or damage relating to business interruption, or otherwise, suffered by you or claims made against you, arising out of or in connection with the inability to access or use the Services, and the late supply of Services, even if we were expressly advised of the likelihood of such loss or damage. You are ultimately responsible for having a working backup;
           (i)     our backups are not guaranteed clean versions of your data as corruption may have existed prior and then the corrupted version continue to be backed up. Our backups are only retained for a certain amount of time e.g. 2 months. You should take your own backup for utmost security of your data and should keep a clean version of the site at all times (mainly the original developed version);
           (j)     email deliverability or receipt or lack thereof;
           (k)  domain names are non-refundable for any reason, e.g. for spelling mistakes;
           (l)  plans where backups are provided, do not necessarily include restoration of those backups;
           (m)     third party plugins will not always be free on websites delivered by us. We may pay or install free versions to build your site – then in the future those third party plugins may require licensing from the vendor;
           (n)     if we identify any issues (compromise, hack, etc) with your site, it is your responsibility to fix. We can quote to assist as a Variation at an Additional Fee;
           (o)     continued spam via compromise or other can be charged as a Variation at an Additional Fee;
           (p)     Any uptime guarantee does not include downtime for regular maintenance of servers e.g. updates and reboots or circumstances beyond our control such as cable cut at data centre.

10.8  This clause will survive termination of these Terms.

11.  INDEMNITY

11.1  You are liable for and agree to indemnify, defend and hold us harmless for and against any and all claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from:
           (a)     any information that is not accurate, up to date or complete or is misleading or a misrepresentation;
           (b)     any breach of these Terms; andany misuse of the Services from or by you,
           (c)     your employees, contractors or agents.

11.2  You agree to co-operate with us (at your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of your use of our Services including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information you have given us.

11.3  The obligations under this clause will survive termination of these Terms.

12.  GENERAL

12.1  Privacy: We agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines.

12.2  Publicity: You consent to us using advertising or publically announcing that we have undertaken work for you.

12.3  Email: You acknowledge that we are able to send electronic mail to you and receive electronic mail from you. You release us from any claim you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.

12.4  GST: If and when applicable, GST payable on our Services will be set out on our Invoices. By accepting these Terms you agree to pay us an amount equivalent to the GST imposed on these charges.

12.5  Relationship of parties: The Terms are not intended to create a relationship between the parties of partnership, joint venture, or employer-employee or carer.

12.6  Assignment: The Terms are personal to the Parties. A Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent not to be unreasonably withheld).

12.7  Severance: If any provision (or part of it) of the Terms is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) of these Terms cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from these Terms and the remaining provisions (and remaining part of the provision) of the Terms are valid and enforceable.

12.8  Force Majeure: We will not be liable for any delay or failure to perform our obligations under the Terms if such delay is due to any circumstance beyond our reasonable control.

12.9  Notice: Any notice required or permitted to be given by either party to the other under these conditions will be in writing addressed to you at the address in the Proposal. Our address is set out in the Proposal. Any notice may be sent by standard post or email, and notice will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission.

12.10  Jurisdiction & Applicable Law: These terms are governed by the laws of Queensland and the Commonwealth of Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Queensland.

12.11  Entire Agreement: These Terms and any document expressly referred to in them represent the entire agreement between you and us and supersede any prior agreement, understanding or arrangement between you and us, whether oral or in writing.

13.  DEFINITIONS

13.1  Acceptance Tests means the test set out in the Proposal.

13.2  Admin Fee means as set out in the Proposal.

13.3  Claim means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise;

13.4  Confidential Information includes confidential information about the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, know-how, Intellectual Property, technology, and other information whether or not such information is reduced to a tangible form or marked in writing as “confidential”.

13.5  Consequential Loss means any loss of actual or anticipated profits, revenue, savings, production, business, opportunity, goodwill, reputation, publicity, date or use;

13.6  Electronic Data means ideas, notes and information used for communications, displays, distribution, interpretation or processing by electronic and electromechanical data processing systems or electronic equipment and includes programmes, software and other coded instructions for such equipment.

13.7  GST means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time or any replacement or other relevant legislation and regulations.

13.8  Hourly Rate means as set out in the Proposal.

13.9  Intellectual Property includes any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks, designs (whether or not registered or registrable), circuit layouts, trade names, trade secrets, business names, company names or internet domain names.

13.10  Laws means acts, ordinances, regulations, rules, code and by-laws of the Commonwealth or any state or territory;

13.11  Liability means any loss, liability, cost, payment, damages, debt or expense (including but not limited to reasonable legal fees);

13.12  Moral Rights means the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship, as defined in the Copyright Act 1968 (Cth).

13.13  Proposal means the attached proposal or the online equivalent at checkout.

Contact details:
THE SECRET HUB PTY LTD
(trading as BLUE OCEAN WEB HOSTING) ACN 131 193 658
Suite 116, 30/514 Christine Avenue
ROBINA DC QLD 4226

info@blueoceanwebhosting.com.au

Last update: July 2021