HOSTING AGREEMENT

This is an agreement between B3 Productions Pty Ltd (ACN 091 037 759) and you, whether you are a company, a registered business or an individual.  This Agreement sets out the terms and conditions upon which we provide you with our services.

Registration Information

B3’s Services are available to a company, a business, or an individual.  This Agreement can only be properly concluded in accordance with the laws and jurisdiction of the State of South Australia and with applicants who have successfully completed the registration form and by applicants who have the capacity to enter into this Agreement.  Where an application is submitted for a company or business, the person completing the registration process represents and warrants to B3 that the company or business authorises the individual to contract on its behalf and in its name and without limitation on the exercise of that  authority.  Individuals must be over the age of eighteen (18) years.

Term

The term of this Agreement commences on the date of B3’s acceptance of your application and continues until Termination.

The Services

The Services which are the subject of this Agreement are as described from time to time on our Web Site and selected by you at www.b3.com.au and as amended from time to time.  We reserve the right to amend our Services at any time and to notify of any amendment to our Services by posting the information on our Web Site.  Any Information or amendment to Agreements, forms part of the terms of this Agreement with B3.  In reserving our rights to amend or vary any information from time to time by posting the amendment or variation to our Web Site you agree that any amendment or variation automatically varies this Agreement without the need for further notice or documentation.

It is a condition precedent to receiving B3’s Services that you complete the application/registration form, that you agree to and thereafter continue to make payment of the fees as published from time to time, that you comply with any additional terms and conditions (for example in relation to domain name services) and, generally that you comply with the terms set out in this Agreement.

Traffic Allowance

There is a 250mb traffic allowance per month. Any excess will be charged at $0.25/MB (+GST) on a monthly basis.

Continuity and Access

B3 does not warrant that you will have continuous access to web services.  We shall not be liable to you or any third party in the event that the Web Site is unavailable to you due to computer downtime attributable to malfunction, upgrades or preventative or remedial maintenance activities. We will not be liable for any data loss for any reason whatsoever.

If you have required that we obtain a domain name for you we will endeavour to procure the nominated domain name but we do not warrant that any preferred domain name will be available and in any event B3 accepts no liability arising out of our inability to obtain your preferred domain name or the exercise of discretion in obtaining on your behalf an alternative and reasonably comparable domain name.  Where an alternate name requires a new application for that name you accept that you will do so.

You warrant that all information provided in the domain name application is true and correct and that the domain name sought or the alternative (if any) does not breach any legal rights of a third party including but not limited to Intellectual Property Rights.

You acknowledge that the registration of your domain name may be the subject of licence conditions with third parties and that the licensor may revoke the licence for infringement of those conditions.  You undertake to familiarise yourself with any such conditions and to indemnify B3 in respect of any liability arising, directly or indirectly, from a failure by you to comply with any such licence conditions.

Intellectual Property Rights and Title

This Agreement does not nor is to be deemed to assign to you any of B3’s Intellectual Property Rights.  You acknowledge and accept that any Intellectual Property Rights which result in any activity by B3 and/or in relation to this Agreement vest in B3 immediately on its creation without need for further documentation.

B3 acknowledges that you do not assign to B3 any rights whatsoever in your intellectual property or in your Intellectual Property Rights whether contained in the content of your site or in your trade marks, service marks, trade names and logos used by you or intended to be used by you in connection with this Site.

You are responsible for the design, development, modification, content and maintenance of your Web Site.

You undertake to ensure that your Web Site does not infringe the Intellectual Property Rights of any person, will not at any stage during the term of this Agreement contain material which is obscene, offensive, upsetting, defamatory, personally offensive or in any way unsuitable for people under the age of eighteen (18) years, and does not compromise and cannot be used for any purpose or activity of an illegal, fraudulent or defamatory nature.  You warrant that you shall use the Web Site for your own purposes and shall not sub-let space for any other individual or entity except through a specific Agreement with B3 through the Resellers’ or Affiliates program.

Confidentiality

Neither B3 nor you will without the prior written approval of the other disclose the other’s Confidential Information.  Neither party will be in breach of this clause in circumstances where it is legally compelled to disclose the other’s Confidential Information.  We shall each take all reasonable steps to ensure that our employees and agents and any sub-contractors engaged for the purposes of this Agreement do not make public or disclose the other’s Confidential Information.  Notwithstanding any other provision of this Agreement B3 may disclose the terms of this Agreement to related companies, solicitors, auditors, insurers or accountants and shall ensure that every person to whom that disclosure is made uses the information solely for the purposes of advising or reporting to B3.  Each party acknowledges that the obligations it undertakes in respect of Confidential Information survive the termination or expiry of this Agreement.

Warranties and Representations by You

In processing your application and registration form you represent and warrant to B3 that you are and will at all material times be ready willing and able to grant to B3 the rights and licences contemplated by this Agreement to use all or part of the Content and your Internet Material and that it will be free of claims or encumbrances by third parties.  You warrant that you are the true and lawful rights holder of any Intellectual Property Rights and/or that you have obtained all necessary licences and approvals and that you will throughout the term of this Agreement continue to maintain any necessary licences consents or approvals.  Furthermore, you indemnify B3 in respect of any liability arising, directly or indirectly from a failure by you to observe your obligations under this clause.

Implied Terms

Where legislation implies in this Agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty shall be deemed to be included in this Agreement.  However, B3’s liability for any breach of such condition or warranty shall be limited, at B3’s option, to no more than the value of refunding the last amount of hosting pre-payment.

Force Majeure

Neither Party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to Force Majeure.

If a delay or failure of a Party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that Party’s obligations will be suspended.

If a delay or failure by a Party to perform its obligations due to Force Majeure exceeds sixty (60) days, either party may immediately terminate the Agreement on providing notice in writing to the other Party.

If this Agreement is terminated under this clause there shall be no obligation on B3 to refund to you moneys previously paid pursuant to this Agreement for services not provided by B3 to you.

The documents comprising this Agreement shall be read in an order of precedence: firstly, the clauses of this Agreement followed by the provisions and terms of any attachment to this Agreement.  To the extent that there is any inconsistency between the operative terms of this Agreement and an attachment, the attachment prevails to the extent of any inconsistency.

General

No failure or delay by B3 in exercising any of its rights, powers or remedies under this Agreement will be or be deemed to operate as a waiver of B3’s rights, powers or remedies and any failure by B3 to enforce any clause of this Agreement, or any forbearance, delay or indulgence granted by B3 to you will not be construed as a waiver of B3’s rights under this Agreement.

You shall not assign, transfer, encumber or sub-licence your rights or obligations under this Agreement without B3’s prior written consent which it shall not unreasonably withhold.  B3 may assign all or any of its rights and obligations under this Agreement.

This Agreement represents the entire agreement between B3 and you and supersedes all and any prior agreement, statement, understanding, representation whether verbal or committed to material form.

This Agreement is governed by and construed in accordance with the laws of South Australia and B3 and you irrevocably submit to the non-exclusive jurisdiction of the courts of South Australia.

This Agreement is not to be construed against B3 solely because B3 offers this Agreement and its terms to you.  You accept and acknowledge that this Agreement is an invitation to treat and that by completing and submitting the application/registration form or process you make an offer to B3 to acquire certain of its advertised Services which B3 may accept or decline.

Any expressed statement of the right of B3 under this Agreement is without prejudice to any other right of B3 expressly stated in this Agreement or existing at law.

Subject to any provision to the contrary, this Agreement shall enure to the benefit of and be binding upon the parties and their successors, trustees, permitted assigns or receivers but shall not enure to the benefit of any other persons.

The covenants conditions and provisions of this Agreement which are capable of having effect after the expiration of the Agreement shall remain in full force and effect following the expiration or termination of the Agreement.

Termination

Either B3 or you may terminate this Agreement if the other party breaches any term of this Agreement and, where that breach is capable of remedy, the party required to remedy it fails to do so within seven (7) days after receiving Notice by the first party specifying the breach and requiring that it be remedied, or immediately by either party in the event of an Insolvency Event in respect of the other party. 

Please note that our Services are to be paid for by not less than quarterly payments in advance and if you default in any payment due to us and such default continues unremedied for seven (7) days after receipt by you of a Overdue Notice from us, B3 reserves the right to terminate both this Agreement and its Services.  In that event we will notify you of the Termination in the form of a DISCONNECTION Notice.  We will not make any refund of any fees paid in advance under any circumstances. A re-connection fee of $100 (+GST) will apply to re-activate a disconnected service.  B3 may, seven (7) days after Termination, delete all or any part of your Content without any liability whatsoever.  Any debt owed by you to B3 at the date of Termination continues to be a debt unless and until it is fully paid.  B3’s removal of Content on non-payment by you does not extinguish or otherwise affect B3’s rights to payment of any amount then due and owing howsoever arising.

You may only use the B3 Services for lawful and proper purposes.  In the event of any unlawful or improper purpose, or any suspected unlawful or improper purpose then, and without prejudice to any other remedy we or any other person may have under this Agreement or at law, we reserve the right to suspend our Services immediately and to continue such suspension unless and until the unlawful or improper activity is ceased and B3 is provided with sufficient evidence as to the discontinuance of the unlawful or improper purpose or activity.  Certain Services will be unavailable during suspension and you should be aware that access to your Site may be interrupted.  B3 accepts no responsibility for any loss or embarrassment arising out of a suspension of Services.  B3 reserves the right to retain any charges paid in advance in relation to Suspended Services regardless of whether the Services are subsequently continued or not.

Additional Services and Support by B3

B3 provides general phone support hours between the hours of 9.00 am and 5.00 pm on Monday to Friday CST excluding Public Holidays (“the Ordinary Support Hours”).  If you require assistance outside these nominated hours a consultancy rate will apply and the rate shall be as published on our Web Site from time to time.  A minimum of thirty (30) minutes shall apply to the applicable consultancy rate.  Alternatively, requests for support may be emailed to support@b3.com.au at any time.  Support requests which are referred to B3 by email shall be dealt with during the Ordinary Support Hours.

Free Trial

Where a Free Trial Site is offered and is available you accept to be bound by the terms and conditions set out in this Agreement subject only to an acknowledgment by B3 that there will be no obligation to pay a fee but B3 reserves the right to terminate the use of your Free Trial account forthwith and without further notice without any liability whatsoever in the event that B3 deems it necessary (for whatever reason) to do so.  The Free Trial Service (if any is available) is subject to limits and restrictions posted on the B3 Web Site from time to time.  Trial Sites are available for test and assessment purposes only and where you use this service in a real commercial environment you do so at your own risk and B3 accepts no responsibility or liability whatsoever for any loss, howsoever arising, as a result of your use of the Trial Site in that commercial environment.

Definitions and Interpretation

Fees means any fees payable under or in connection with this Agreement or any variation thereto including but not limited to the fees set out in the application/registration, quote or as notified and published on our Web Site from time to time.

Insolvency Event means the following events in relation to either party:

·        an insolvency administrator or controller is appointed to it;

·        it enters into or resolves to enter into a scheme of arrangement or composition with or assignment for the benefit of creditors;

·        it enters into a Deed of Company Arrangement;

·        it resolves to wind itself up or otherwise dissolve itself;

·        it suspends payments of debts generally or becomes unable to pay its debts when they are due;

·        it commits any act of bankruptcy; or

·        it ceases to carry on its business.

Intellectual Property Rights means all rights conferred under statute, common law and equity and includes inventions, designs, copyright, trade marks, trade names and business names, logos and trade get up, circuit layout rights, moral rights and any and all other rights analogous to these rights whether future or existing and whether or not registered or in a registrable form and includes any right to apply for the registration of such rights and all renewals and extensions thereof.