Terms and Conditions
In these conditions:
“Conditions” means these Conditions of Provision of Goods and Services;
“Customer” means a person, firm or corporation jointly and severally if there is more than one, acquiring goods or services from eNerds;
“goods” means goods supplied by eNerds to the customer;
“On-Call Service” means eNerds standard on-site service;
“GPO” means the Sydney Post Office in George Street;
“services” means services supplied by eNerds to the Customer; and “eNerds” means the trading name of eNerds Pty Ltd (A.C.N 066 544 643).
2. BASIS OF CONTRACT
2.1 Unless otherwise agreed by eNerds in writing, these Conditions apply exclusively to every contract for the sale of goods and services by eNerds to the customer and cannot be varied or supplanted by any other conditions without the prior written consent of eNerds.
2.2 Any written quotation written by eNerds to the customer concerning the proposed supply of goods or services is valid for 14 days and is an invitation only to the Customer to place an order based on the quotation. The conditions may include the additional terms in eNerds’ quotation which are not inconsistent with the Conditions.
3 CHARGES AND PAYMENT
3.1 Payment of Goods and Services must be made by cash or cheque on or prior to the completion of the provision of goods and services unless the customer has a credit account with eNerds.
3.2 The charges for On-Call service are (all charges do not include a GST of 10%):
(a)for Standard Service, $150 per hour, with a minimum charge of $150.
(b)for Same-Day Service, $250 for first hour, and Standard service rates thereafter, with a minimum charge of $250.
3.3 After the minimum charge of $150, eNerds visits are charged in half hour units. Any part thereof is chargeable at the same rate as a full half hour.
3.4 All goods supplied by eNerds are charged separately from the service.
3.5 Where there is any change in the costs incurred by eNerds in relation to the goods or services, eNerds may vary its price for goods or services in order to take account of any such change, without giving notice to the Customer.
3.7 Where eNerds is required to pick up or deliver within 20km of the GPO, a charge of $150 applies. Where pick up or delivery is outside this area, an extra charge will be made.
3.8 When an eNerds engineer travels to the Customer’s premises, a charge of $150 per hour travelled applies. Any other cost incurred relating to travel expenses will be charged to the Customer.
4. PAYMENT DEFAULT & REFUNDS
4.1 If the customer defaults on payment by the due date of any amount payable to eNerds, or if any cheque drawn by the Customer is dishonoured, then all money that would become payable by the Customer to eNerds at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and eNerds may, without prejudice of any other remedy available to it:-
(a) charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty interest Rates Act 1983 plus 4 per cent for the period from the due date until the date of payment in full;
(b) charge the Customer for all expenses and costs (including legal costs on a solicitor/own client basis and dishonoured cheque fees) incurred by it resulting in the default and in taking what ever action it deems appropriate to recover any sum due;
(c) cease or suspend for such period as eNerds thinks fit, supply of any further goods or services to the Customer;
(d) by notice in writing to the customer, terminate any contract with the customer so far as unperformed by eNerds;
without effect on the accrued rights of eNerds under any contract.
4.2 Clauses 4.1(c) and 4.1(d) may also be relied upon, at the option of eNerds:
(a) where the Customer is an individual and becomes bankrupt or enters into any scheme of arrangement or any assignment of composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or
(b) where the Customer is a corporation and, it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, provisional liquidator, administrator, receiver or receiver and manager appointed, or any action is taken, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Customer.
4.3 All charges are non-refundable and non-negotiable.
4.4 Accounts terminated due to a violation of these Terms of Service are not eligible for refunds.
5. PASSING OF PROPERTY
Until full payment in cleared funds is received by eNerds for all goods supplied by it to the Customer, as well as other amounts owing to eNerds by the customer:-
(a) title and property in all goods remain vested in eNerds and do not pass to the Customer;
(b) the Customer must hold the goods as fiduciary bailee and agent for eNerds;
(c) the Customer must keep the goods separate from its goods and maintain the labelling and packaging of the goods;
(d) the Customer is required to hold the proceeds of any sale of the goods on trust for eNerds in a separate account however failure to do so will not affect the Customer’s obligation to deal with the proceeds as trustee;
(e) eNerds may without notice, enter any premises where it suspects goods may be and remove them, notwithstanding that they may have been attached to other goods not the property of eNerds, and for this purpose the Customer irrevocably licences eNerds to enter such premises and also indemnifies eNerds from and against all costs, claims, demands or actions by any party arising from such action.
6. RISK INSURANCE
The risk in the goods and all the insurance responsibility for theft, damage or otherwise in respect of the goods will pass to the Customer immediately upon delivery of the goods to the premises nominated by the Customer.
7. PERFORMANCE OF CONTRACT
7.1 Any period or date for delivery of goods and provision of services stated by eNerds is intended as an estimate only and is not a contractual commitment.
7.2 eNerds will use its best reasonable endeavours to meet any estimated dates for delivery of the goods or completion of the services.
7.3 If eNerds is not able to diagnose the cause of any hardware or software problem, then no charge will apply to the Customer. eNerds does not warrant that it will be able to fix all problems which it diagnoses.
7.4 Nothing in clause 7.2 is to be taken to mean that a solution will be provided in any particular time, or for any particular amount of money.
7.5 eNerds may be required to make more than one visit to client’s premises to correctly diagnose any problem. If more than one visit is required, any visit after the first will be chargeable.
7.6 The decision as to whether a solution has been diagnosed is in the reasonable discretion of eNerds.
8. ENERDS WARRANTIES
8.1 All goods and services supplied shall be free from defects in materials and workmanship for a period of 30 days from the date of delivery.
8.2 This warrantee does not apply in circumstances where:
(a) the goods or services are not defective;
(b) the goods were used or services required for a purpose other than which they were intended;
(c) the goods were repaired, modified or altered by any person other than eNerds;
(d) the defect has arisen due to misuse, neglect or accident;
(e) the defect has arisen due to normal wear and tear on the goods;
(f) the goods have not been stored or maintained as recommended by eNerds or the manufacturer;
(g) the Customer is in breach of the Conditions;
(h) the Customer has altered the hardware or software configuration of the Customer’s computer after the completion of the services; or
(i) the Customer has terminated the services of eNerds before, in the reasonable opinion of eNerds, the services have been completed.
9.1 Except as specifically set out herein, any term, condition or warranty in respect of the quality, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods or services, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded.
9.2 Replacement or repair of the goods or resupply of the services is the absolute limit of eNerds’ liability howsoever arising under or in connection with the description, quality, condition, performance, assembly, manufacture, design, merchantability or fitness for the purpose of the goods or services or alternatively the sale, use of, storage or any other dealings with the goods or services by the Customer or any third party.
9.3 eNerds is not liable for any program or data loss or damage by any Customer arising directly or indirectly from the provision of goods and services.
9.4 Any replacement of parts under warranty will be carried out at the premises nominated by eNerds. The cost and risk of transport of any defective part to the nominated premises is the responsibility of the Customer.
9.5 eNerds is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party.
9.6 eNerds will not be liable for any loss or damage suffered by the Customer where eNerds has failed to meet any delivery date or cancels or suspends the supply of goods or services.
9.7 Nothing in the Conditions is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be excluded, restricted or modified.
10. COPYRIGHT IN SOFTWARE
10.1 eNerds will not be responsible to the customer or any third party for any breach of any software licence in respect to software provided to eNerds by the Customer to be installed on a Customer’s computer.
10.2 The Customer hereby indemnifies eNerds against any loss, damage, costs, harm or other expense whatsoever arising either directly or indirectly as a result of eNerds installing software at the request o the Customer.
11.1 If, through circumstances beyond the control of eNerds, eNerds is unable to effect delivery or provision of goods or services, then eNerds may cancel the Customer’s order (even if it has already been accepted) by notice in writing to the Customer.
11.2 If the Customer gives less than 2 hours notice to eNerds to cancel any order for goods or services, then eNerds may charge a cancellation fee of at least $20 for the loss and damage caused if the Customer’s premises are within 20km of the GPO. If the Customer’s premises are more than 20km from the GPO, then the cancellation fee will be the full quoted call out fee.
eNerds Pty Ltd (ABN 27 066 544 643)(“eNerds”) respects your privacy and is committed to its protection. We are bound by the Australian Privacy Principals of the Privacy Act 1988(Cth).
• Why and when eNerds collects your information
• How eNerds uses your information
• Disclosure of your information to third parties
• Accuracy / Access
WHY AND WHEN ENERDS COLLECTS YOUR INFORMATION
eNerds collects the information you give us either online or by email, post, facsimile, face to face, over the phone or through our ticketing system. In most cases, the personal information eNerds will collect from you is the personal information required in order to provide services to you, and also for ongoing management and support of those services. This information includes your full name, mailing address, phone number, email address, ABN and facsimile number. We also collect your payment details such as your credit card number or bank account details and details about your network.
Our website uses Google Analytics, a service which transmits website traffic data to Google servers in the United States. Google Analytics does not identify individual users or associate your IP address with any other data held by Google. We use reports provided by Google Analytics to help us understand website traffic and webpage usage. We also store this information, along with any detail collected via surveys, questionnaires and the like on the website to provide personalisation services for returning users.
HOW ENERDS USES YOUR INFORMATION
We collect and use your personal information to deliver our services to you. This will include provision to you of sales and technical support, billing and credit control, renewal notices, system changes and other functions relevant to your services with us.
We may use your information to contact you for marketing purposes including but not limited to new products, services, promotions, give-aways, via email and telephone. If you do not wish to receive any marketing communications from eNerds, you may opt-out and stop the delivery of future promotional material from eNerds by following the special instructions in the email you receive. These instructions will tell you how to remove your name from our promotional list.
We may monitor telephone conversations with you in order to facilitate staff training and to maintain our high levels of customer service. We will always inform you prior to any telephone conversation which is monitored in this way to obtain your prior approval.
Where you purchase hardware or software through us, we are required by the provider to collect personal information from you, including end user name and address, to pass back to that provider (we do not release your payment details externally).
DISCLOSURE OF YOUR INFORMATION TO THIRD PARTIES
We may supply your personal information to third parties to perform services on our behalf, such as:
• the distribution of marketing information to you (except where you have chosen to opt out of receiving this information from us);
• onsite support outside of Sydney metropolitan area
• warranty and hardware technicians required to attend site to perform maintenance or break/fix work
Our relationships with such third party service providers are governed by our contracts with them. Those service contracts contain privacy and confidentiality provisions which are consistent with the Australian Privacy Law obligations.
ACCURACY / ACCESS
If you believe that eNerds may hold personal information about you which is inaccurate, or you wish to change or update any of the personal information you have provided, please contact us by emailing our client services team at email@example.com
The transfer of information across any media may involve a certain degree of risk, and the Internet is no different. However, helping you to keep your information secure is very important to eNerds.
In order to protect the security of personal information transmitted to eNerds online, our Web servers support the use of the Secure Socket Layer (SSL) Protocol where appropriate. Using this protocol, information transferred between our systems is encrypted. When interacting with you in a web browser based environment we use Secure Socket Layer (SSL) Protocol to encrypt data where applicable to enhance the protection of personal information transmitted to eNerds.
You can also use simple precautions to help protect your security, such as protecting against the unauthorised use of your username or password or other authentication id.
Hosting Terms and Conditions
The following terms and conditions (this “Agreement”) are a legally binding agreement entered into between eNerds Pty Ltd (ACN 066 544 643) of Level 14, 80 Mount Street, North Sydney NSW 2060, in the State of New South Wales, Australia (“eNerds”, “we”, “us” or “our”) and the person purchasing, accessing or using our Service (“Customer”, “you”, or “your”).
You and we agree that:
1. ACCESS AND USE
1.1 Your access to and use of the Service is conditional on your acceptance of this Agreement. If you do not accept the terms and conditions of this Agreement then you must not access or use or must immediately cease all access or use of the Service.
1.2 By accessing, or by continuing to access, the Service you are agreeing to be bound by this Agreement.
2. ADDITIONAL TERMS
2.1 You agree and acknowledge that the following expressions:
(b) Service; and
(c) Service Duration,
are determined by reference to the Website and we may vary the Website at our sole discretion from time to time.
2.2 You agree and acknowledge that:
2.4 In the event that you purchase other goods or services from us that are subject to the terms and conditions of another agreement, and those terms and conditions conflict with this Agreement, the terms of that other agreement shall prevail over the terms and conditions of this Agreement, to the extent of that conflict.
3.1 You may select from a range of services specified on the Website for a range of durations. The fees and charges associated with our services correspond to the category, type and duration of service that you select. You agree that different fees and charges apply depending on levels of storage space used on our System and Internet traffic to and from our System.
3.2 You agree that:
(a) we may alter, suspend, vary or cancel the services offered on the Website; and
(b) in the event that we alter, suspend, vary or cancel a service or services after the Effective Date, the Service referred to in this Agreement remains unchanged.
3.3 We may engage agents, contractors or other third parties to supply the Service on our behalf.
4. OUR OBLIGATIONS
4.1 In consideration for your payment, in full and cleared funds, of the Fees we agree to supply you with the Service. You agree that our obligation to supply you with the Service is limited to the category, type and duration of services that correspond to the Fees you have paid us.
5. YOUR OBLIGATIONS
(a) Subject to the payment of the Fees, the Service may include a service under which we will host on our System your data, files, material, software code and applications (“Hosted Content”).
(b) You must develop, install and maintain the Hosted Content at your own cost.
(c) You must have appropriate and compatible equipment, software, telecommunications systems and Internet access, that you must provide at your own costs, to upload the Hosted Content to the Service.
(d) You must ensure that the Hosted Content is compatible with the operating system and other software on our System.
5.2 End Users
You agree that:
(a) any access and use of the System by any End Users is subject to and on the terms and conditions of this Agreement;
(b) you are liable for any access and use of the System by any End User; and
(c) before you authorise or allow any End User to access or use the System, you shall ensure that the terms and conditions of this Agreement relating to the access and use of the System by any End User are included in, or included by reference in, a binding agreement between you and each End User.
(a) In the event that you resell, attempt to resell or offer to resell the Service to any person, you shall agree to be bound by the terms and conditions of our Reseller Agreement.
(a) You warrant and represent that you shall provide us with the accurate information that we request:
(i) when entering into this Agreement;
(ii) when setting up your account with us;
(iii) when corresponding with us; and
(iv) during the term of this Agreement.
(b) You agree to provide us with, and maintain, a working e-mail address that is checked daily (“Your Email Address”).
(c) You agree that we may provide notices to you under this Agreement by sending an e-mail to Your Email Address.
(d) You agree that we have no responsibility, or liability, for interruptions in the Service, or damages, losses, costs, fees, expenses of any kind whatsoever, as a result of your failure or refusal to comply with this clause 5.4.
6.1 This Agreement commences on the Effective Date and continues for the Service Duration unless terminated earlier in accordance with this Agreement (“Initial Term”).
6.2 After the expiration of the Initial Term, this Agreement will renew for successive periods of equal length unless terminated earlier in accordance with this Agreement (“Renewal Term”).
6.3 In the event that there is no Service Duration associated with or corresponding to the Fee that you have paid for the Service, you agree that the Service Duration shall be deemed to be thirty (30) days.
7.1 You agree that:
(a) you must pay the Fees to us on the dates or within the time specified for those Fees on the Website (“Due Date”);
(b) we may charge you seven (7) days prior to the dates or times specified for the Fees on the Website;
(c) you shall pay the Fees without set off or deduction;
(d) it is your responsibility to ensure that we receive payment of the Fees and you agree that you have not paid us the Fees until we have received the payment of the Fees from you or from your agent;
(e) in the event that the Service is suspended or interrupted, for any reason, the Fees remain due and payable to us; and
(f) Fees relating to the set up and registration of domain names are not refundable.
7.2 In the event that the Fees are not received by us on or before the Due Date, your account may be suspended or cancelled at our sole discretion. To reinstate your account, you agree to pay us:
(a) all unpaid Fees that are due and payable;
(b) interest on unpaid Fees at the prevailing commercial bank overdraft rates in Australia; and
(c) any costs incurred by us to collect the unpaid Fees including, without limitation:
(i) collection charges;
(ii) legal costs;
(iii) fees and charges levied or demanded by our financial institutions on us; and
(iv) reasonable administration costs.
7.3 In the event that you agree to purchase products or services, other than the Services, from us or a third party you agree and acknowledge that additional terms and conditions may apply to those products and services.
8. BILL DISPUTES
8.1 If you believe there is an error on your bill you must contact us in writing. We each agree to work together to resolve any billing disputes. You agree to provide us with sufficient facts for us to investigate your claims that must be received by us at least five (5) days prior to the Due Date (“Dispute Deadline”). You agree that you have waived your right to dispute any charges or Fees if you fail or refuse to comply with this clause 8.1.
8.2 If we determine, at our sole discretion, that your claim or dispute is valid, we will credit the amount that is the subject of the dispute to your next bill.
8.3 In the event that you contact your credit card company, prior to notifying us of the dispute, and initiate a ‘charge back’ based on this dispute, and your charge back claim is past the Dispute Deadline, you will be charged a $200 investigation and administration fee. You agree that this fee compensates us for our costs incurred in resolving the charge back matter.
9.1 Money Back Guarantee
In the event that you are not satisfied with the Service within thirty (30) days’ of entering into this Agreement, we agree to refund to you any Fees that that we have received from you for that Service. In order to cancel the Service and receive a refund from us, you agree to notify us no later than thirty (30) days after the Effective Date. If you wish to retain your domain name, the cost of your domain name will be deducted from your refund at our regular, undiscounted, domain name price. If you paid us by credit card we will credit the card on file, otherwise we will send you a check for your refund.
9.2 Termination prior to Renewal
Either party may terminate this Agreement by providing written notice to the other no later than 10 days before the expiration of the Initial Term or Renewal Term.
9.3 Termination for material breach
Either party may terminate this Agreement upon the occurrence of a material breach by the other party, if this breach has not been cured by the other party within 30 days of their receipt of written notice of the breach. Notices of material breach must contain sufficient detail for the party against whom the assertion of material breach is directed to identify the breach and attempt to take corrective action. The parties agree that a decision by us to cease offering third party services will not be a breach of this Agreement.
9.4 Termination for your violation of our policies
We reserve the right to immediately suspend the Service or terminate this Agreement:
(a) for a violation of any of our policies, including those incorporated by reference; or
(b) your failure to pay any amounts due.
This right of termination is without prejudice to any other rights we may have. You agree that you are not entitled to receive, and shall not receive, a refund of any Fees in the event of termination of the Agreement under this clause.
9.5 Closure of account following termination
Upon termination or expiration, your account will be closed. Upon closure of your account we will permanently delete the Hosted Content from our System. We have no responsibility to forward e-mail, or other communications, to or for you once your account is closed. You are encouraged to keep the Service active during a transition period should you seek to forward your e-mail or other communications.
10. REASONABLE USE OF THE SERVICES
10.1 Without limiting the terms and conditions of this Agreement, you agree that your access to and use of the Service shall be subject to and in accordance with the terms and conditions of the Acceptable Use Policy.
10.2 Notwithstanding any other provision of this Agreement you agree that your use of the Services must be reasonable and must not place an unreasonable burden on our System. In the event that we determine, at our sole discretion, that your use of the Services is unreasonable then you agree that we may place restrictions on your use of the Service, and charge you excess bandwidth fees.
10.3 You agree to cooperate with us to facilitate your use of the Service. This cooperation includes, but is not limited to, providing us with correct contact and billing information, designing material that is “server ready” and ensuring that you, your employees or agents have sufficient technical expertise to understand how to implement the Service.
11. LICENSES AND INTELLECTUAL PROPERTY
11.1 Subject to the terms and conditions of this Agreement and in consideration for the payment of the Fees in full, we grant you a non-exclusive, non-transferable, licence to access and use the Service. This license is revoked and terminates on the expiration or termination of this Agreement.
11.2 You acknowledge and agree that any and all Intellectual Property Rights, title and interest arising in and in relation to any and all Works created by us or accessed on the Website remains with or vests in us or third parties.
11.3 If we, or any person, makes available or introduces to you or any End User any of our intellectual property then all Intellectual Property Rights relating to or associated with that intellectual property will remain our sole property.
11.4 You agree to take all actions and do all things reasonably necessary or desirable to protect our Intellectual Property Rights, title and interest to any and all Works accessed on the Website by you or by any End User.
11.5 You agree that you shall not circumvent any devices designed to protect our, or our licensor’s, ownership interests in any Works or materials provided to you.
11.6 You must not:
(a) decompile, reverse engineer, disassemble, rent, lease, loan, sell, sublicense, or create derivative works from our Website or the content of or materials on our Website;
(b) use any network monitoring or discovery software to determine the site architecture, or extract information about usage, individual identities or users;
(c) use any software, device, or manual process to monitor or copy our Website or the content of our Website without our prior written permission and, without limiting the generality of this clause, you must not cache the content of our Website without our consent;
(d) use our Website in a manner that is not expressly authorised by us;
(e) use our Website to cause harm, damage or loss of any kind whatsoever to us or to any other person; or
(f) modify or copy:
(i) the layout of our Website; or
(ii) any computer software or code contained in our Website.
11.7 You agree that we may use and disclose information you provide to us to enable us to perform our obligations under this Agreement and agree that any and all Intellectual Property Rights, title and interest arising in and in relation to any and all Works created by us using that information remains with or vests in us.
11.8 You grant us and our agents and contractors a non-exclusive, non-transferable, worldwide, royalty free license to use, disseminate, transmit and cache content, technology and information provided by you and, if applicable, End Users, in connection with the Service. This license terminates on the expiration or termination of this Agreement. All right, title and interest in Hosted Content shall remain with you, your End Users, or your licensors.
12. REPRESENTATIONS AND WARRANTIES
Each party warrants to the other party that:
(a) the party has the power, authority and legal right to enter into this Agreement; and
(b) the party has the power, authority and legal right to perform its obligations under this Agreement and all incorporated provisions.
12.2 Your Representations and Warranty
You represent and warrant to us that:
(a) you have the experience and knowledge necessary to use the Service;
(b) you understand, appreciate and accept the risks inherent to you, your business and your person, that come from accessing the Internet;
(c) you will provide us with material that may be implemented by us to provide the Service without extra effort or cost on our part;
(d) you have sufficient knowledge about administering, designing and operating the functions facilitated by the Service to take advantage of the Service;
(e) you understand that you may not be able to access location based services, such as emergency calls, using the Service;
(f) in entering into this Agreement, and performing the obligations set out in it, you will not violate or breach any applicable laws or regulations;
(g) you will make back up copies of your data even if you purchase ‘back up’ services from us;
(h) any use by End Users of the Service shall be subject to and in accordance with the terms of our Acceptable Use Policy;
(i) the Hosted Content is free of any virus, Trojan Horse, worm or malicious code;
(j) any and all Hosted Content fully complies with and does not breach:
(i) the terms and conditions of the Acceptable Use Policy;
(ii) any laws in your jurisdiction;
(iii) any laws in Australia; or
(iv) any laws in the jurisdiction in which the Hosted Content is stored, displayed or published; and
(k) you have not and shall not breach or infringe any right of any individual or any entity in any way whatsoever by accessing or using the Service.
12.3 You expressly warrant that you own the entire right, title and interest to, or have an appropriate license to use, any and all materials including, without limitation, any Hosted Content provided to us by you, or which may be accessed or transmitted using the Service. You also warrant that, to the extent you do business with other parties using the Service, those parties have the same ownership interests in the materials provided to you, or accessed by you, that are set out in this clause.
13.1 You agree that, to the fullest extent permitted by law:
(a) the Service is provided on an ‘as is’ and ‘where is’ basis without warranty of any kind, express or implied;
(b) we exclude all conditions and warranties relating to the Service or the Website;
(c) we exclude all conditions and warranties relating to any goods or services provided by any third party irrespective of whether or not those goods or services are purported to be supplied by us; and
(d) we do not warrant or guarantee the accuracy, completeness, merchantability, or fitness for purpose of the Service, the Website or any Works on the Website.
13.2 Without limiting the generality of clause 13.1, we do not make any representations or warranties that the Service will be uninterrupted, error free, secure or free from viruses or malicious programs.
13.3 To the extent that our liability for breach of any implied warranty or conditions cannot be excluded by law our liability will be limited, at our sole discretion, to:
(a) in the case of services supplied or offered by us, the re-supply of those services or the payment of the cost of having those services resupplied; or
(b) in the case of goods supplied or offered by us, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of having the goods replaced or the payment of the cost of having the goods repaired.
14. LIMITATION OF LIABILITY
14.1 You agree that we have no liability, whatsoever, for:
(a) content that you or an End User access from the Internet;
(b) unauthorized access to, or any corruption, erasure, theft, destruction, alteration or inadvertent disclosure of, data, information or content, transmitted, received, or stored on our system; or
(c) your inability to access the publicly switched telephone network or the Internet.
14.2 To the fullest extent permitted by law, in no circumstances will we or our employees, officers, agents, directors or licensors be liable to you for any indirect, incidental, special, consequential or punitive losses or damages including, without limitation, loss of profits, loss of goodwill, loss of data or loss of opportunity howsoever arising.
14.3 To the fullest extent permitted by law our liability to you for goods or services supplied by us to you shall be the lesser of the amount determined under clause 13.3 or the aggregate amounts paid by you in respect of those goods or services to us in the three month period immediately preceding the event giving rise to such liability.
15.1 You agree to at all times indemnify, defend and hold harmless eNerds and its parent, subsidiary and affiliated or related companies, third party service providers and each of their respective officers, directors, employees, shareholders and agents (in this clause each an “indemnified party” and, collectively, “indemnified parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable legal costs) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to:
(a) your use or the use by an End User of the Service;
(b) any violation by you or an End User of any of our policies;
(c) any breach of any of your representations, warranties or covenants contained in this Agreement; or
(d) any acts, omissions, negligence or misconduct by you or an End User.
15.2 You agree that, to the fullest extent permitted by law, any statutory provision that limits, or purports to limit, our rights under clause 15.1, is excluded in relation to any and all rights, obligations or liabilities of either party under this Agreement whether such rights, obligations or liabilities are sought to be enforced in contract, tort or otherwise.
15.3 The provisions of this clause 15 shall survive any termination of this Agreement.
16.1 You agree to obtain or procure the consent of each End User to the collection, use and disclosure of that End User’s personal information in accordance with this clause 16.
16.2 You agree that we may disclose personal information relating to you or any End User, that you or that End User provides to us, to:
(a) any person that, at our sole discretion, has a valid reason for requesting that information; and
(b) our business associates.
16.3 You agree that we may collect, use and disclose the personal information relating to you any End User, that you or that End User provide to us, for the following purposes:
(a) to enable us to perform our obligations under this Agreement;
(b) to recover any money owing to us; and
(c) to provide, or arrange for a third party to provide, you or an End User with information regarding goods or services that we believe may be of interest to you or that End User.
16.4 Any personal information, including personal financial information, that relates to you or an End User and is collected, used or disclosed by us will be only be collected, used or disclosed:
(a) in accordance with this Agreement or the terms displayed on the Website, if any; and
and in compliance with the requirements of privacy legislation in force at the time being in Australia.
17. GENERAL PROVISIONS
We will send notices to you at Your Email Address. It is your obligation to ensure that we have the most current e-mail address for you in our records. You must send notices regarding this Agreement to:
eNerds Pty Ltd
Level 14, 80 Mount Street
North Sydney NSW 2060
Facsimile: +61 2 9922 5270
17.2 Force Majure
Except for the obligation to pay the Fees, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including without limitation acts of God, earthquake, labour disputes, shortages of supplies, riots, war, fire, epidemics, failures of telecommunication carriers, delays of common carriers, or other circumstances beyond its reasonable control. The obligations and rights of the excused party shall be extended on a day-to-day basis for the time period equal to the period of the excusable delay. The party affected by such an occurrence shall notify the other party as soon as possible, but in no event less than ten days from the beginning of the event.
17.3 This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the Service.
17.4 You must not assign, whether in whole or part, the benefit of this Agreement or any rights or obligations hereunder, without our prior written consent. We may assign this Agreement upon notice to you.
17.5 These Terms shall be governed by and construed in accordance with the laws for the time being in force in the State of New South Wales, Australia and the parties agree to submit to the non-exclusive jurisdiction of the courts and tribunals of that State. The parties agree that they shall not contest notice from the Courts of New South Wales. The United Nations Convention on Contracts for International Sale of Goods shall not apply.
17.6 No forbearance, delay or indulgence by a party in enforcing the provisions of these Terms shall prejudice or restrict the rights of that party, nor shall any waiver or those rights operate as a waiver of any subsequent breach.
17.7 Should any part of these Terms be or become invalid or unenforceable, that part shall be severed from these Terms. Such invalidity or unenforceability shall not affect the validity of the remaining provisions of the Agreement.
17.8 This Agreement does not create any agency, partnership, joint venture, or franchise relationship. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
17.9 Clauses 8, 13, 14 and 15 shall survive the expiration or termination of this Agreement.
18.1 In this Agreement:
(a) “Acceptable Use Policy” means the terms and conditions referred to in Schedule One to this Agreement;
(b) “Effective Date” means the earlier of the date on which this Agreement is made or the date on which you first access or use the Service, as the case may be.
(c) “End User” means those persons who you authorise or allow to access any website or Internet portal that you may create or have created on your behalf using the Service;
(d) “Fees” means the fees and charges specified on the Website that correspond to:
(i) the category or type of services; and
(ii) the duration for which the services are to be supplied,
that you have chosen;
(e) “Intellectual Property Rights” means any of our intellectual property and industrial property rights throughout the world including rights in respect of or in connection with any copyright (including future copyright and rights in the nature of or analogous to copyright), inventions (including patents), designs, and circuit layouts whether or not now existing and whether or not registered or registrable and includes any right to apply for the registration of such rights and includes all renewals and extensions and any other intellectual property rights as defined in Article 2 of the World Intellectual Property Organisation Convention of 1967;
(g) “Service” means those services specified on the Website, on the Effective Date, corresponding to the category, type and duration of services that you have selected for the corresponding Fee;
(h) “Service Duration” means the duration of the services that you have selected that corresponds to the relevant Fee;
(i) “System” means the computers and data processing equipment that we use to provide the Service;
(j) “Website” means the pages on the World Wide Web that resolve at the eNerdshosting.com.au domain name and any locations on the Internet that we own or operate; and
(k) “Works” means any documents, software, programs, images, works or any other materials whatsoever.
Hosting Acceptable Use Policy
This Acceptable Use Policy (“AUP”) must be read in conjunction with, and is incorporated into, the Agreement. The expressions used in this AUP have the same meaning given to those expressions in the Agreement. Any use whatsoever of the Services is subject to and, must be in accordance with, the terms and conditions of this AUP. Your entry into the Agreement, or use of or access to the Service, constitutes your acceptance of the terms and conditions of this AUP. You agree that you must ensure that any access to our use of the Service by your End Users is subject to and in accordance with this AUP.
We reserve the right to refuse to provide the Service to you or your End Users at our sole discretion for any reason. You expressly acknowledge and agree that we have the right to vary the terms of this AUP from time to time without notice to you. In the event that we vary the terms of this AUP we will display or publish the AUP on the Website. Notwithstanding any term or condition of this AUP or the Agreement, we reserve the right to determine, in our sole discretion, what constitutes acceptable use of the Service.
Third parties who wish to inform us of violations of this AUP are required to read it, abide by its terms, and send notices to the address set out below in this AUP. Notices sent to the wrong address will not be considered. We do not consider anonymous complaints.
If you believe that our AUP has been violated you may send your inquiry or complaint to, in the first instance, the address in the relevant paragraph below or, alternatively to firstname.lastname@example.org. Your notice must contain, at a minimum, your first and last name, and either a working, monitored e-mail address, or a working, monitored, telephone number.
We do not review, edit, censor, or take responsibility for any information you or and End Users may create, display or publish using the Service. To the fullest extent permitted by law, we do not accept any liability for inaccurate, unsuitable, offensive, or illegal content or transactions. We specifically reserve the right to refuse to provide the Service to you, End Users or any third parties engaged in the display, publication, transmission or communication of material that may cause us harm, be offensive, breach our policies or be determined, in our sole discretion, to be inappropriate.
Without limiting the foregoing, you must ensure that the Hosted Content does not:
1. contain any material is defamatory, racist, pornographic, or that depicts acts of violence or unlawful acts, or that may spread hatred against any person or group, or that vilifies any person, people or religion, or that may cause offence or harm;
2. encourage or involve the collection or harvesting of screen names or email addresses of others for any purpose including, without limitation, the purpose of sending unsolicited emails;
3. infringe any other person’s intellectual property rights, or other rights;
4. misuse or lead to the misuse of another person’s confidential information; or
5. breach any law or aid, abet, solicit or procure the breach of any law in any country.
Your Conduct and Use of Service
Without limiting the foregoing, the transmission, storage, or presentation of any information, data or material in violation of any applicable law, regulation, this AUP, or our Agreement, is prohibited. You may not use the Service to directly or indirectly cause or allow the violation of any law or regulation.
You must use good business judgment and appropriate ethical standards in your conduct. Without limiting the foregoing, you must not and you must not allow any End User or other person to engage or participate in:
1. forging, misrepresenting, omitting or deleting message headers, return mailing information, and/or internet protocol addresses, to conceal or misidentify the origin of a message;
2. creating or sending Internet viruses, worms or Trojan horses, flood or mail bombs, or engaging in denial of service attacks;
3. hacking or subverting, or assisting others in hacking or subverting, the security or integrity of our products or systems;
4. soliciting or procuring the performance of any illegal activity, even if the activity itself is not performed; or
acting in any manner that might subject us to unfavourable regulatory action, subject us to any liability for any reason, or adversely affect our public image, reputation or goodwill, as determined by us in our sole and exclusive discretion.
Other Acceptable Use Policies may apply to you.
Your use of our Service or our Systems is subject to the terms and conditions of third party suppliers of goods and services to us. We will provide you with information about these policies on request.
You are required to provide us with accurate information.
Any person who contacts us about this AUP, the behaviour of our customers, or for other purposes, must provide us with accurate information to enable us to contact them and respond to their requests. We will refer any person who deliberately attempts to mislead us regarding their identity, or the basis for their complaints, to appropriate law enforcement officials.
U.S. Export Controls.
Your, or an End User’s, use of the Service may be governed by the export control laws of the United State of America or other countries. These laws apply regardless of whether you, or an End User, actually reside in that country. More information about U.S. export laws may be found at: http://www.export.gov/regulation/index.asp. You must rely on your own independent enquiries in relation to these export control laws and other relevant laws. For information purposes only, to assist you with your enquiries, we note that export control laws generally prohibit:
1. selling certain products and services outside the country, though you may be allowed to sell those products and services inside the country; and
2. doing business with individuals or entities with whom citizens of that country may not do business.
You must notify us if you believe that any person or End User using the Service is engaging in copyright infringement. Our address for receipt of copyright complaints or infringement notifications is:
eNerds Pty Ltd
Attention: Web Services Manager
Level 14, 80 Mount Street
North Sydney NSW 2060
Facsimile: +61 2 9922 5270
You must also comply with laws regulating trademarks, patents and other laws governing the use and dissemination of intellectual property. Complaints about abuse of intellectual property rights may be directed to email@example.com
You may not send unsolicited commercial e-mail, or SPAM.
We define unsolicited commercial e-mail as e-mail that has not been requested by the recipient, is not compliant with relevant legislation, or that, even if requested, or compliant with relevant legislation, causes other entities to block our IP Addresses (“SPAM”). You must not use the Service to host a site that is advertised by means of SPAM, even if you are not the person responsible for the SPAM advertisements.
If you are purchasing a service for legitimate mass-mailing services and/or plan to send legitimate mass mail you will require at least a VPS or Dedicated server plan as our Shared Hosting packages do not support mass mailing and have a restriction to sending more than 50 emails per hour in order to help prevent the servers being blacklisted, this unfortunately will not be adjusted in any circumstance.
If we determine that you or an End User is sending SPAM, we will suspend or terminate your account, at our discretion. To report violations of this paragraph, please send an e-mail to: firstname.lastname@example.org
Hardware Resource Control
We have hardware resource limiting in place on our platform to ensure the fair share usage of server resources between customers on our servers. In the cases where these limits can be overridden, doing so will be in breach of the UAP. If you require more hardware resources please talk to our sales team who can offer other product ranges that deliver more resources per customer.
We filter your e-mail for SPAM
We use industry standard methods to filter outbound e-mail for SPAM. We will use commercially reasonable efforts to notify you that your outbound mail has been marked as SPAM and blocked. Please review your outbound e-mail to determine whether your e-mail has been blocked. You have the option of using a SPAM filter to scan inbound e-mail. Please familiarize yourself with this technology and its use.
Requests for Information about End Users and Privacy
We may disclose information, including information that you may consider confidential, in order to comply with a court order, subpoena, summons, discovery request, warrant, regulation, or governmental request which appears to be valid. We may also disclose such information when it is necessary for us to protect our business, or others, from harm. We accept no liability or duty to notify you that we have provided this type of information unless we have expressly agreed to do so. In some cases we may be prohibited by law from giving such notice.
Law enforcement agencies who seek information about customers, End Users, and third parties or their use of the Service, must submit a subpoena, or other similar document, pursuant to which we are required by law to produce this information (“Subpoena”). Unless specifically prohibited by law we reserve the right to notify the Subpoena to the customer, End User, or third party.
Civil demands for information, such as discovery requests and demands for the production of documents (“Civil Demands”), must be part of proceedings. To the fullest extent permitted by law, responses to Civil Demands are at our sole discretion and are subject to a response fee of $275 per hour. We do agree limit or to pre-approve our expenses for Civil Demands. Civil litigants should contact us prior to serving Civil Demands in order to minimize their expense.
Address for Subpoenas and Civil Demands:
eNerds Pty Ltd
Attention: Web Services Manager
Level 14, 80 Mount Street
North Sydney NSW 2060
Facsimile: +61 2 9922 5270
How we administer the network on which the Service is provided.
It is your obligation to ensure that you have thoroughly considered how the Service is deployed, and our network configured, prior to using the Service. In particular, you are responsible for ensuring that any material you place on our servers, or transmit using our network, does not adversely impact our ability to provide the Service to other customers. We reserve the right to suspend or terminate the Service, in our sole discretion, should your use of the Service cause instability in our System.
You cannot use IP addresses which were not assigned to you by us. If we determine that you are using an IP address which was not officially assigned by us, the Service will be suspended until such time as the IP address overlap can be corrected. We own the IP numbers and addresses that may be assigned to you by us. These addresses may not be assigned or transferred, and are recycled by us on termination of your use of the Service. We may, in our sole discretion, change these addresses.
The Internet is no more secure than other means of communication. You should make your own independent enquiries to determine the security of the Internet and otherwise assume that all on-line communications are insecure. We are not responsible for the security of any information posted to, transmitted over, our Systems. We reserve the right to take immediate action to suspend or terminate your account if, in our sole discretion, you are engaging in activities that jeopardize our security, the security of other customers, or of the Internet in general. You may not be provided with advance notice that we are taking such action.
We make tools available to you that are designed to make your use of the Internet more secure. These tools are made available to you, to the fullest extent permitted by law, without any warranty or guarantee on an ‘as is, where is’ basis and may only be used at your own risk.
Suspension or Termination of Service.
If you violate this AUP, and we suspend or terminate the Service, you will not receive a refund of any fees paid to us. Your failure to abide by any of the terms or conditions set out in this AUP may result in the suspension or termination of the Service. Any termination or suspension may be undertaken with, or without, notice to you.
What is personal information?
Personal information is any information that can be used to identify you. Sensitive information is a special category of personal information and includes financial information such as your credit card details. We will not disclose your sensitive information without your consent unless there is a need to disclose such information in accordance with relevant privacy laws.
Information that we collect
Customer Record :– When Users become customers we collect their address, email, phone number, and credit card details. Users may also provide us with their fax number and company affiliation (together “Customer Record”).
Inquiries :– When Users contact us we may ask for information that allows us to contact them, validate the seriousness of their inquiry and request specific information related to the reason they have contacted us (“User Inquiry Information”).
Surveys :– Users may be offered the opportunity to respond to surveys, questionnaires and other requests for information (“Survey Information”). The information that Users provide to us varies depending on the survey and is set out in the survey request.
Statistical Information :– All of our servers collect statistical information such as Users’ IP addresses, the dates Users visit, the computers Users are using, and their operating system, among other data (“Statistical Information”).
Tracking Software :– We may use software designed to track responses to our advertisements, other promotional activity as well as a Users’ movement through our site (“Tracking Software”). Tracking Software includes software such as web beacons and software used by our advertising partners.
How we use information that we collect.
Subpoenas and Other Demands for Information :- eNerds Pty Ltd may be required to comply with demands for information from various law enforcement bodies. Examples of these demands include subpoenas, warrants, and civil discovery demands. We may need to disclose the information we collect following such a request if we determine, in our sole discretion, that such a disclosure is necessary or desirable. We may also disclose this information if doing so is necessary or desirable to protect our interests, the interests of our customers, or in connection with the sale of our business.
Customer Record :– We use the Customer Record to identify Users personally. The Customer Record is used throughout our business to provide services to Users. Information in your Customer Record will only be shared with third parties if it is necessary to provide Third Party products to you. However, information in the Customer Record related to payments, such as a Users’ credit card number, is only used to ensure we receive payment for services rendered.
Customer Inquiries :– We use Customer Inquiry Information to identify Users personally. Customer Inquiry Information is used throughout our business to provide services to Users. Customer Inquiry Information is shared with third parties to identify and fix problems with the Service when we are not capable of doing so ourselves.
Survey Information :– We use Survey Information to identify Users personally. We use Survey Information throughout our business to market new products and services to Users. Survey Information is not shared with third parties in ways that identify Users personally.
Statistical Information :– We do not use Statistical Information to identify Users personally. We use Statistical Information to operate our Systems, diagnose problems and administer our Website. We may use Statistical Information to modify the products and services we offer based on who is visiting our website, and what they are purchasing.
Tracking Software :– We do not use Tracking Software to identify Users personally. We use the information provided by Tracking Software to determine the effectiveness of our marketing programs; improve the functionality of our website; and to collect demographic data about where Users go on our website and how they behave.
Data Retention and Security
Do we send information overseas?
We may do so. We are located in Australia, however, our Systems may be located in the United States of America or other countries. In order for us to provide our Services or to comply with appropriate laws, it may be necessary to send personal information overseas. If we are required to send personal information overseas we will take measures to protect your personal information. We will protect your personal information either by ensuring that the country of destination has similar protections in relation to privacy or that we enter into contractual arrangements with the recipient of your personal information that safeguards your privacy.
Access to and Correction of your personal information
You have a right to access and copy your personal information, subject to certain exceptions provided for in relevant privacy legislation. If you would like to access your personal information please contact us. For security reasons, you will be required to put your request in writing and provide proof of your identity. If you are able to establish that personal information we hold about you is not accurate, complete or up to date we will take all reasonable steps to correct our records.
We will listen to and consider your privacy complaints. Any person that has a complaint with the way their personal information is collected, used, disclosed, stored and administered may lodge a complaint with us. All complaints will be treated seriously and dealt with reasonably promptly.