SOUTH WEST eCOMMERCE STRAGEGIES HOSTING

Terms Of Service

Upon signup and/or use of hosting services from South West eCommerce Strategies, the Customer hereby agrees to the following conditions:

1. Services. 
   
   Subject to the terms of this Agreement, South West eCommerce Strategies agrees to provide web hosting services for the fees stated on their website www.southwestecommerce.net.au.
   
   
2. Term. 
   
   The service term of the Agreement shall begin on the date that South West eCommerce Strategies generates an e-mail message to the Customer announcing the activation of the Customer’s account (the "Service Commencement Date") and shall continue until either South West eCommerce Strategies or the Customer provides the other with written notice (e-mail) of cancellation, with at least thirty (30) days notice.
   
   
3. Payments.
   
   (a)        Fees. 
   
   Customer’s billing cycle shall be monthly, quartely, or annually as indicated at signup, beginning on the Service Commencement Date.  South West eCommerce Strategies may require payment for the first billing cycle before beginning service.  South West eCommerce Strategies will invoice the Customer via electronic mail.  Invoiced fees may be issued on, before, or after the 1st day of each billing cycle, and the fees shall be due on the 14th day following invoice date, but in no event earlier than the first day of each billing cycle. 
   
   Payments must be made in Australian dollars. The Customer is responsible for providing South West eCommerce Strategies with changes to billing information (such as change in billing address).  At its option, South West eCommerce Strategies may charge interest on overdue amounts at the lesser of 1.5% per month or the maximum rate under applicable law.  South West eCommerce Strategies may suspend the service without notice if payment for the service is overdue.  Fees not disputed within sixty (60) days of due date are conclusively deemed accurate.  The Customer agrees to pay South West eCommerce Strategies’s  reasonable reinstatement fees following a suspension of service for non-payment, and to pay South West eCommerce Strategies’s reasonable costs of collection of overdue amounts, including collection agency fees, legal fees and court costs. 
   
   (b)        Fee Increases.         
   
   South West eCommerce Strategies may increase its fees for services by giving at least forty five (45) days notice to the Customer of the new fees, and if the Customer does not give a notice of cancellation as provided in Section 2 above, the Customer shall be deemed to have accepted the new fees.
   
   (c)        Early Termination.
   
   The Customer acknowledges that the amount of the fee for the service is based on the Customer’s agreement to pay the fee for the entire billing cycle.  In the event South West eCommerce Strategies terminates the Agreement for Customer’s breach of the Agreement in accordance with Section 9 (Termination), or Customer terminates the service other than in accordance with Section 9 (Termination) for South West eCommerce Strategies’s breach, the unpaid fees for each billing cycle, are due on the business day following termination of the Agreement. 
   
   
4. Law/AUP.
   
   The Customer agrees to use the service in compliance with applicable law and South West eCommerce Strategies’ Acceptable Use Policy posted at http://www.southwestecommerce.net.au/aup.htm (the “AUP”), which is hereby incorporated by reference in this Agreement.  The Customer agrees that South West eCommerce Strategies may, in its reasonable commercial judgment consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on the Customer’s use of the Services.  Amendments to the AUP are effective on the earlier of South West eCommerce Strategies’s notice to the Customer that an amendment has been made, or the first day of any billing cycle that begins subsequent to the amendment.  The Customer agrees to cooperate with South West eCommerce Strategies’s reasonable investigation of any suspected violation of the AUP.  In the event of a dispute between South West eCommerce Strategies and the Customer regarding the interpretation of the AUP, South West eCommerce Strategies’s commercially reasonable interpretation of the AUP shall govern.
   
   
5. Customer Information.
   
   The Customer represents and warrants to South West eCommerce Strategies that the information he, she or it has provided and will provide to South West eCommerce Strategies for purposes of establishing and maintaining the service is accurate.  If the Customer is an individual, the Customer represents and warrants to South West eCommerce Strategies that he or she is at least 18 years of age.  South West eCommerce Strategies may rely on the instructions of the person listed as the Primary Contact with regard to the Customer’s account until the Customer has provided a written notice changing the Primary Contract.
   
   
6. Indemnification.
   
   The Customer agrees to indemnify and hold harmless South West eCommerce Strategies, South West eCommerce Strategies’s affiliates, and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable legal fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of Customer’s services in violation of applicable law or the AUP  by the Customer or any person using the Customer’s log on information, regardless of whether such person has been authorized to use the services by the Customer.
   
   
7. Disclaimer of Warranties. 
   
   South West eCommerce Strategies DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.   TO THE EXTENT PERMITTED BY APPLICABLE LAW, SOUTH WEST eCOMMERCE STRATEGIES DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.  TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN “AS IS” BASIS.
   
   
8. Limitation of Damages.
   
   NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES. 
    
   NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF SOUTH WEST eCOMMERCE STRATEGIES AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR THREE MONTHS OF SERVICE.
   
   
9. Suspension/Termination. 
   
   (a)        Suspension of Service.
   
   The Customer agrees that South West eCommerce Strategies may suspend services to the Customer without notice and without liability if: (i) South West eCommerce Strategies reasonably believes that the services are being used in violation of the AUP;  (ii)  The Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP; (iii) South West eCommerce Strategies reasonably believes that the suspension of service is necessary to protect its network or its other customers, or (iv) as requested by a law enforcement or regulatory agency.  The Customer shall pay South West eCommerce Strategies’s reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection. 
   
   (b)        Termination. 
   
   The Agreement may be terminated by the Customer without further notice and without liability if South West eCommerce Strategies fails in a material way to provide the service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of the Customer’s written notice describing the failure in reasonable detail.  The Agreement may be terminated by South West eCommerce Strategies without further notice and without liability as follows:  (i)  upon ten (10) days notice if the Customer is overdue on the payment of any amount due under the Agreement;  (ii)  the Customer materially violates any other provision of the Agreement, including the AUP, and fails to cure the violation within thirty (30) days of a written notice from South West eCommerce Strategies describing the violation in reasonable detail; (iii) upon one (1) days notice if the Customer’s Service is used in violation of a material term of the AUP more than once, or (iv) upon one (1) days notice if the Customer violates Section 5 (Customer Information) of this Agreement.  Either party may terminate this agreement upon ten (10) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.
   
   
10. Requests for Customer Information.  
    
    The Customer agrees that South West eCommerce Strategies may, without notice to the Customer, (i)  report to the appropriate authorities any conduct by the Customer or any of the Customer’s customers or end users that South West eCommerce Strategies believes violates applicable law, and (ii)  provide any information that it has about the Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.
    
    
11. Back Up Copy. 
    
    The Customer agrees to maintain a current copy of all content hosted by South West eCommerce Strategies nothwithstanding any agreement by South West eCommerce Strategies to provide back up services. South West eCommerce Strategies is not obliged to keep a backup copy of the Customer's website content, and will not be held liable in any way if data is lost and the Customer does not have a current copy of their content.
    
    
12. Changes to South West eCommerce Strategies’s Network. 
    
    Upgrades and other changes in South West eCommerce Strategies’s network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of the Customer’s hosted content and/or applications.  South West eCommerce Strategies reserves the right to change its network in its commercially reasonable discretion, and South West eCommerce Strategies shall not be liable for any resulting harm to the Customer.
    
    
13. Notices. 
    
    Notices to South West eCommerce Strategies under the Agreement shall be given via electronic mail to the e-mail address posted  for customer support on www.southwestecommerce.net.au. Notices to the Customer shall be given via electronic mail to the individual listed as the Primary Contact.  Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered.  The Customer may change his, her or its notice address by a notice given in accordance with this Section.
    
    
14. Force Majeure. 
    
    South West eCommerce Strategies shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond South West eCommerce Strategies’s control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
    
    
15. Governing Law/Disputes.  The Agreement shall be governed by the laws Australia, as applicable.   The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods.   EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN AUSTRALIA, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.
    
    
16. Miscellaneous.
    
    Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trademarks, service marks, trade secrets, inventions, copyrights, and other intellectual property.  Neither party may use the other party’s name or trade mark without the other party’s prior written consent.  The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer/employee.  Neither party will represent itself to be agent of the other.  Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority. This Agreement may be amended only by a formal written agreement signed by both parties.  The terms on the Customer’s purchase order or other business forms are not binding on South West eCommerce Strategies unless they are expressly incorporated into a formal written agreement signed by both parties.  A party’s failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party’s rights with respect to that provision or any other provision of the Agreement.  A party’s waiver of any of its right under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not.    The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties.   The following provisions will survive expiration or termination of the Agreement:  Fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement.  There are no third party beneficiaries to the Agreement.  Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement.  The Customer may not transfer the Agreement without South West eCommerce Strategies’s prior written consent.  South West eCommerce Strategies’s approval for assignment is contingent on the assignee meeting South West eCommerce Strategies’s credit approval criteria.  South West eCommerce Strategies may assign the Agreement in whole or in part.

This Agreement together with the AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supercedes and replace any prior understanding or communication, written or oral.