Terms & Conditions

1. Definitions
1.1 “Cyanweb” means Cyanweb Solutions Pty Ltd, its successors and assigns, or any person acting on behalf of, and with the authority of, Cyanweb Solutions Pty Ltd.

1.2 “Client” means the person/s requesting Cyanweb to provide the Services as specified in any quotation, estimate, order, invoice or other document, and if there more than one person requesting the Services is a reference to each person jointly and severally.

1.3 “Services” means all Goods (which includes any content, files, information, printed or virtual material, data, hardware, software or applications (whether supplied from a third party software development company or where custom developed or programmed for the Client), brands, designs, images, graphics, pictures, trademarks, manuals, and other associated documentation and/or goods, accessories or parts) or Services (which includes any advice or recommendations, consultancy, hosting (which includes virtual server hosting, website hosting, e-mail hosting, etc.), monitoring, data back-up or storage, design and/or website maintenance, brands, designs, project management work, brand integration, strategising and analytical services, technical service, support and training, repairs, or installation of Goods, etc.) supplied by Cyanweb to the Client, at the Client’s request, from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).

1.4 “Prohibited Content” means any content or links that:

(a) are, or could reasonably be considered to be, in breach of the Broadcasting Services Act 1992; the Fair Trading Acts of the applicable States and Territories of Australia and the Competition and Consumer Act 2010 (CCA); or any other applicable law or applicable industry code; or

(b) contains, or could reasonably be considered to contain, any misrepresentations; or is, or could reasonably be considered to be, misleading or deceptive, likely to mislead or deceive or otherwise unlawful; or

(c) are, or could reasonably be considered to be, in breach of any person’s intellectual property rights (including, but not limited to, the distribution of software or video, audio or digital files, or any other material in which the Client does not own the copyright). Cyanweb will respond to all reports of infringement that are formatted in accordance with Australian copyright laws and any other applicable copyright laws. Cyanweb will act in accordance with the law when handling infringement reports; or

(d) are, or could reasonably be considered to be, pirated software, bulk e-mail related products, pornography or nudity or adult content, hacking or cracking related websites, Warez, hosting of large scale video, audio or digital download websites, illegal material or material that is against public policy, websites containing or linking to material that may be considered detrimental to the public’s health, safety or welfare (such as, but not limited to, anarchists, Cookbook, bomb making, weapon information, etc.), or anything else that may be considered detrimental or illegal.

1.5 “Price” shall mean the cost of the Services as agreed between Cyanweb and the Client subject to clause 4 of this contract.

2. Acceptance
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts, Services provided by Cyanweb.

2.2 These terms and conditions may only be amended with Cyanweb’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Cyanweb.

2.3 None of Cyanweb’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of Cyanweb in writing nor is Cyanweb bound by any such unauthorised statements.

2.4 Once accepted by the Client, Cyanweb’s written quotation or estimate shall be deemed to interpret correctly the Client’s instructions, whether written or verbal. Where verbal instructions only are received from the Client, Cyanweb shall not be responsible for errors or omissions due to oversight or misinterpretation of those instructions.

2.5 This contract constitutes the entire agreement between Cyanweb and the Client, and the Client hereby acknowledges that no reliance is placed on any representation made by Cyanweb, but not embodied in this contract.

2.6 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2003 or any other applicable provisions of that Act or any Regulations referred to in that Act.

3. Change in Control
3.1 The Client shall give Cyanweb not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by Cyanweb as a result of the Client’s failure to comply with this clause.

4. Price and Payment
4.1 At Cyanweb’s sole discretion the Price shall be either:

(a) as indicated on any invoice provided by Cyanweb to the Client; or

(b) Cyanweb’s quoted Price (subject to clause 4.2) which will be valid for the period stated in Cyanweb’s quotation, or otherwise for a period of thirty (30) days. Hardware, system integration and other IT quotations are valid for five (5) days only due to rapid fluctuations in stock and wholesale prices. If there is any variation prior to commencement and/or delivery, Cyanweb will provide the Client with an adjusted quotation; or

(c) Cyanweb’s estimated Price (subject to clause 4.2) which shall be valid for the period stated in Cyanweb’s estimate, or otherwise for a period of fourteen (14) days, and shall not be deemed binding upon Cyanweb as the actual Price can only be determined upon completion of the Services. Cyanweb undertakes to keep the Client informed, by providing the Client an adjusted estimate for their Client’s pre-approval (which may be given verbally or via e-mail) should the actual Price look likely to exceed the original estimate.

4.2 Additional and/or Varied Services:

(a) Cyanweb agrees that there will be no charge in the preparation of the initial quotation or estimate, which may include Client discussions, project scoping and a list of Services to be provided, etc. However, in some instances the aforementioned Services may be charged to the Client additionally (at Cyanweb’s sole discretion), including where the number of work hours and/or quantity of Goods supplied exceeds, or programming differs from, the original quotation or estimate (e.g. copy writing, digital photography and stock photography, etc.).

(b) Cyanweb reserves the right to amend the Price where there is any variation to the accepted plan of scheduled Services, or instructions/specifications, which will be charged for on the basis of Cyanweb’s standard hourly rates (and double such rate for any Services provided outside Cyanweb’s normal business hours) and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.

(c) Where the performance of any contract with the Client requires Cyanweb to obtain products and/or services from a third party, the contract between Cyanweb and the Client shall incorporate, and shall be subject to, the conditions of supply of such products and/or services to Cyanweb, and the Client shall be liable for the cost in full including Cyanweb’s margin of such products and/or services.

(d) Notwithstanding clause 4.1, the Client acknowledges that additional charges may apply to certain services and support provided by Cyanweb (including, but not limited to, reconfiguration of the Client’s computer or network). Any such charges shall be shown as a variation to the original Price.

4.3 At Cyanweb’s sole discretion, the Client will be required to pay, upon entry into this contract, a non-refundable:

(a) deposit, the amount of which will be stipulated either in writing by Cyanweb, or on Cyanweb’s quotation or estimate; and/or

(b) retainer to Cyanweb for the Services, which shall be of the amount as stipulated in writing by Cyanweb, or on Cyanweb’s quotation or estimate and payable monthly in advance, commencing upon the Client’s entry into this contract. Cyanweb shall bill the Services provided firstly to the retainer, and upon depletion thereof (if applicable) the Client shall be invoiced additionally as per clause 4.4.

4.4 Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by Cyanweb, which may be:

(a) on completion of the Services, and in the case of any website development, prior to making such accessible to the public; or

(b) by way of instalments in accordance with Cyanweb’s payment schedule; or

(c) the date specified on any invoice or other form as being the date for payment; or

(d) failing any notice to the contrary, the date which is fourteen (14) days following the date of any invoice given to the Client by Cyanweb.

4.5 The Client will be invoiced via Cyanweb’s online account management system, which shall be sent via e-mail. It shall be the Client’s responsibility to ensure their SPAM filters do misallocate Cyanweb’s e-mails.

4.6 Payment may be made by cash, electronic/on-line banking, credit card, or by any other method as agreed to between the Client and Cyanweb.

4.7 GST and other taxes and duties that may be applicable shall be added to the Price, except when they are expressly included in the Price.

4.8 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Cyanweb nor to withhold payment of any invoice because part of that invoice is in dispute.

5. Contract Term
5.1 Where this contract is valid for a specific duration (“Contract Term”), the Client is required to pay a non-refundable monthly or annual fee for the Services, which is stipulated via Cyanweb’s quotation or estimate, and is due and payable as per the payment terms stated therein. This fee excludes domain registrations and SSL Certificates, and where the Client is changing from another provider, install and set-up on Cyanweb’s servers, which shall be charged to the Client in addition to the Price. Cyanweb may adjust the fee from time to time upon providing three (3) months’ written notice to the Client. Services are billed to the Client one (1) month in advance (unless otherwise specified).

5.2 The Services may be terminated by way of the Client providing Cyanweb with a minimum of one (1) month’s written notice prior to the current anniversary of the Contract Term. If no notice is given in accordance with this clause, the Client shall be liable for the full amount of the monthly fee for Services for the current Contract Term.

5.3 Cyanweb will make best efforts to ensure that the Client receives continual and uninterrupted Services (including, but not limited to, network or hosting servers, internet services, Cloud backup/storage services, etc.) during the Contract Term, however Cyanweb does not in any way warrant or otherwise guarantee the availability of the Services, which shall be subject to regularly scheduled maintenance cycles, and many events/circumstances beyond the control of Cyanweb. In no event though, shall Cyanweb be liable to the Client for damages (including loss of income) resulting from or in relation to any failure or delay (including server downtime, programming errors, lack of connection or slow connection) of Cyanweb to provide Services under this contract, or any loss of data, if such delays or failures are due to circumstances beyond Cyanweb’s control. Such a failure or delay shall not constitute a default under this contract.

6. Client’s Responsibilities
6.1 The Client will, at its sole cost and expense:

(a) provide content to Cyanweb, in such form as reasonably prescribed by Cyanweb from time to time, and hereby grants Cyanweb a non-exclusive, worldwide, irrevocable licence to use such content for incorporation in the Services; and

(b) ensure that such content supplied to Cyanweb is not Prohibited Content, or contains any viruses, trojan horses, worms, time bombs, cancel bots or any other software program or routine designed for or capable of interfering with the operation of the Services.

7. Provision of the Services
7.1 Any time specified by Cyanweb for provision of the Services is an estimate only and Cyanweb will not be liable for any loss or damage incurred by the Client as a result of provision being late. However both parties agree that they shall make every endeavour to enable the Services to be provided at the time and place as was arranged between both parties. In the event that Cyanweb is unable to provide the Services as agreed solely due to any action or inaction of the Client, then Cyanweb shall be entitled to:
(a) charge the Client additionally for re-providing the Services at a later time and date; or
(b) subject to clause 20.2(b), terminate the contract.

7.2 All materials required for the provision of the Services that are not included in Cyanweb’s quotation or estimate will be provided by the Client (including, but not limited to, copy, photographs, digital media and logos, etc.), and must be delivered to Cyanweb in electronic format for PC or additional fees may be incurred by the Client for typing, scanning and file conversion. Copy provided by the Client should already be proofread and edited prior to submission to Cyanweb, and Cyanweb is not responsible for proofreading and editing materials provided by the Client (unless specified otherwise in writing by Cyanweb).

7.3 Cyanweb does allow cron jobs to be conducted by the Client on their servers, but only if the cron job does not significantly impact on server performance.

7.4 Shell access is not provided on shared hosting accounts. Shell access is reserved for system administrators and server lessees only. The Client must contact Cyanweb if shell access is required and Cyanweb will assess the Client’s requirements and provide assistance where possible.

7.5 Cyanweb may, at their sole discretion, limit or deny access to the Services if, in the judgement of Cyanweb, such limitations or denials of access are required to assure the security of the network, the integrity of the network structure, or to prevent damage to the network. Furthermore, if Cyanweb determines that the Client’s shared hosting account is utilising an unacceptable amount of system resources, Cyanweb may temporarily deactivate the account in question. If Cyanweb deems it necessary, an eviction notice may be sent to the Client providing them with ten (10) days’ notice in which to relocate the website with a new provider.

8. Terms of Use
8.1 The Client acknowledges and agrees that:

(a) any attempt to circumvent domain parking restrictions by using selective HTTP redirects, or any other method, to send traffic from parked domains to websites other than the main website is strictly prohibited; if multiple domain names with separate content are required the appropriate account type must be used; and

(b) Cyanweb does not allow the installation of the Client’s own chat rooms on shared hosting accounts unless given express written permission by Cyanweb; these types of services tend to be large system hogs and Cyanweb cannot allow it as a default account option; and

(c) the Client is not permitted to run certain programs in the background on shared hosting servers; this tends to use a lot of system resources, and can impair service to other customers on that server. If the Client is unsure of whether or not their software falls into this category the Client should contact Cyanweb; and

(d) Cyanweb does not allow IRC or IRC bots to be operated on their servers. Any account found to be in violation of this provision will be immediately suspended and/or deactivated and no refund will be issued; and

(e) the Client must not sublease, sub-host or give away control of any portion of their internet hosting space and/or resources (including, but not limited to, e-mail accounts, space, bandwith, ftp accounts, etc.) unless otherwise given permission in writing by Cyanweb, as in the case of authorised reseller hosting accounts. Cyanweb reserves the right to:

(i) request contact details of the Client’s current website developer/webmaster in relation to the Client’s hosting account; and

(ii) know who is accessing, and maintaining files on, Cyanweb’s servers.

(f) file hosting and file storage services of any type is prohibited on all shared hosting accounts managed by Cyanweb, unless Cyanweb has given their express written permission. The Client must not use the shared hosting account as a dedicated download or file repository for use by external websites unless arranged otherwise with Cyanweb. Cyanweb’s shared hosting Services are strictly offered for websites hosted on Cyanweb’s servers only; this does not mean that the Client cannot have downloads on their website, this provision means that the Client cannot operate a website that specialises in downloads, and the Client may not use their shared hosting account as a storage repository for MP3s, games, videos, audio, music or other files not directly related to the Client’s website.

9. Backups
9.1 Cyanweb’s hosting accounts include a nightly and a fortnightly backup; these backups are for internal administrative and disaster recovery purposes only. Whilst Cyanweb maintains backups of hosted websites and e-mail, these backups are in no way guaranteed.

9.2 The Client is responsible for maintaining their own e-mail backups on their own systems; Cyanweb does not provide any sort of compensation for lost or incomplete data in the event that backups do not function properly.

9.3 Cyanweb will use their best endeavours to ensure complete and accurate backups of hosted data, but assume no responsibility for this duty. It is recommended by Cyanweb that the Client always keeps a backup of their website whenever possible. Cyanweb makes no guarantees about the availability of backups.

9.4 If the Client requires assistance in creating backups, please contact Cyanweb or view Cyanweb’s support pages.  The Client’s hosting control panel provides a backup utility and the Client should periodically download a copy of their backed up files.

10. Unsolicited E-mail (SPAM)
10.1 SPAMing, or the sending of unsolicited e-mail, from Cyanweb’s servers, or using a return e-mail address that is maintained on Cyanweb’s servers, is strictly prohibited. Using SPAM to advertise a website hosted on Cyanweb’s network is not only illegal under Australian Federal law, but also constitutes as a violation of this provision. If the Client’s account is found to have been sending SPAM, whether the Client is aware, or not aware, of the SPAM activity, Cyanweb reserves the right to limit or terminate the e-mail Services on the Client’s account at any time and without prior notification.

11. Server Abuse
11.1 Any attempts to undermine or cause harm to Cyanweb’s servers, or a customer of Cyanweb, is strictly prohibited. Cyanweb reserve the right to seek compensation for loss of business and damage done to their servers by the Client, or dedicated server lessee.

11.2 It shall be the Client’s responsibility to ensure the security and confidentiality of their account and must not allow any unauthorised use of such by any third party. The Client will be liable for any infringement of these terms and conditions in respect of the Client’s account, irrespective of whether such infringement is by the Client or any authorised or unauthorised third party.

12. Title
12.1 Cyanweb and the Client agree that the Client’s obligations to Cyanweb for the supply of Services shall not cease (and ownership of any Goods shall not pass) until:

(a) the Client has paid Cyanweb all amounts owing to Cyanweb for the Services; and

(b) the Client has met all other obligations due by the Client to Cyanweb in respect of all contracts between Cyanweb and the Client.

12.2 Receipt by Cyanweb of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised, and until then Cyanweb’s ownership or rights in respect of the Goods, and this contract, shall continue.

12.3 It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 12.1:

(a) the Client is only a bailee of the Goods and must return the Goods to Cyanweb on request; and

(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for Cyanweb and must pay to Cyanweb the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed; and

(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for Cyanweb and must pay or deliver the proceeds to Cyanweb on demand; and

(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Cyanweb and must sell, dispose of or return the resulting product to Cyanweb as it so directs; and

(e) the Client irrevocably authorises Cyanweb to enter any premises where Cyanweb believes the Goods are kept and recover possession of the Goods; and

(f) Cyanweb may recover possession of any Goods in transit whether or not delivery has occurred; and

(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Cyanweb; and

(h) Cyanweb may commence proceedings to recover the Price notwithstanding that ownership of the Goods has not passed to the Client.

13. Personal Property Securities Act 2009 (“PPSA”)
13.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

13.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods, and/or any monetary obligation of the Client to Cyanweb for Services, previously provided (if any), and to be provided in the future, by Cyanweb to the Client.

13.3 The Client undertakes to:

(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Cyanweb may reasonably require to:

(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register; or

(ii) register any other document required to be registered by the PPSA; or

(iii) correct a defect in a statement referred to in clause 13.3(a)(i) or 13.3(a)(ii).

(b) indemnify, and upon demand reimburse, Cyanweb for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any registration made thereby; and

(c) not register a financing change statement in respect of a security interest without the prior written consent of Cyanweb; and

(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of Cyanweb.

13.4 Cyanweb and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

13.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

13.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

13.7 Unless otherwise agreed to in writing by Cyanweb, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.

13.8 The Client must unconditionally ratify any actions taken by Cyanweb under clauses 13.3 to 13.5.

13.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

14. Security and Charge
14.1 In consideration of Cyanweb agreeing to supply Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

14.2 The Client indemnifies Cyanweb from and against all Cyanweb’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Cyanweb’s rights under this clause.

14.3 The Client irrevocably appoints Cyanweb (and each director of Cyanweb) as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 14 including, but not limited to, signing any document on the Client’s behalf.

15. Defects, Warranties and the Competition and Consumer Act 2010 (CCA)
15.1 Any alleged fault, defect, shortage in quantity, errors, omissions Including Cyanweb’s workmanship) or failure to comply with the description, quotation or estimate of the Services which the Client detects must be reported to Cyanweb as soon as is practically possible, but no later than seven (7) days following the provision of the Services (or detection of such defect for any Services the subject of a Contract Term), or the date of delivery of any Goods. Any emails or telephone messages which are received outside Cyanweb’s normal business hours will be processed the following business day. Upon such notification the Client must allow Cyanweb to review or inspect the Services that were provided.

15.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (“Non-Excluded Guarantees”).

15.3 Cyanweb acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

15.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Cyanweb makes no warranties or other representations under these terms and conditions including, but not limited to, the quality or suitability of the Services. Cyanweb’s liability in respect of these warranties is limited to the fullest extent permitted by law.

15.5 If the Client is a consumer within the meaning of the CCA, Cyanweb’s liability is limited to the extent permitted by section 64A of Schedule 2.

15.6 If Cyanweb is required to rectify, re-provide, or pay the cost of re-providing the Services under this clause or the CCA, but is unable to do so, then Cyanweb may refund any money the Client has paid for the Services but only to the extent that such refund shall take into account the value of Services which have been provided to the Client which were not defective.

15.7 If the Client is not a consumer within the meaning of the CCA, Cyanweb’s liability for any defective Services is:

(a) limited to the value of any express warranty, or warranty card, provided to the Client by Cyanweb (at Cyanweb’s sole discretion); or

(b) limited to any warranty to which Cyanweb is entitled, if Cyanweb did not manufacture the Goods; or

(c) otherwise negated absolutely.

15.8 Subject to this clause 15, returns will only be accepted provided that:

(a) the Client has complied with the provisions of clause 15.1; and

(b) Cyanweb has agreed that the Goods are defective; and

(c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and

(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.

15.9 Notwithstanding clauses 15.1 to 15.8, but subject to the CCA, Cyanweb shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:

(a) the Client failing to properly maintain or store the Services; or

(b) the Client using the Services for any purpose other than that for which they were designed; or

(c) the Client continuing to use the Services after any defect became apparent or should have become apparent to a reasonably prudent operator or user; or

(d) interference with the Services by the Client or any third party without Cyanweb’s prior approval; or

(e) the Client failing to follow any instructions or guidelines provided by Cyanweb; or

(f) fair wear and tear, any accident, or act of God.

15.10 In the case of second-hand Goods, unless the Client is a consumer under the CCA, the Client acknowledges that they have had full opportunity to inspect the Goods prior to delivery, and accepts them with all faults, and that, to the extent permitted by law, no warranty is given by Cyanweb as to the quality or suitability for any purpose, and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that Cyanweb has agreed to provide the Client with the Goods (and calculated the Price thereof) in reliance of this clause 15.10.

15.11 Notwithstanding anything contained in this clause, if Cyanweb is required by a law to accept a return then Cyanweb will only accept a return on the conditions imposed by that law.

16. Risk and Limitation of Liability
16.1 The Services provided by Cyanweb may only be used for lawful purposes, and the transmission, storage or presentation of any Prohibited Content, or information, data or material in violation of any Australian Federal or State law, or any international law, is strictly not permitted (including, but not limited to, copyrighted material, material Cyanweb judges to be threatening or obscene, material protected by trade secret or other statute, etc.).

16.2 The Client agrees to indemnify, and hold harmless, Cyanweb:

(a) from any claims resulting from the use of the Services which damages the Client or any other party; and

(b) if the Client’s account is found to contain Prohibited Content or any other illegal files.

16.3 The Client understands that the provision of the Services by Cyanweb is of a technical and mechanical nature, and that the possibility of technical faulty, security faults and disruption without warning is possible. Whilst Cyanweb endeavours to provide the highest possible security and quality of the Services, the Client agrees to indemnify, and hold harmless, Cyanweb from any claims resulting from the use of the Services (including, but not limited to, corruption or deletion of any website from Cyanweb’s servers, or servers under Cyanweb’s management), and Cyanweb shall not be responsible for any claimed damages, including incidental and consequential damages, which may arise from Cyanweb’s Services, or servers, going off-line or being unavailable for any reason.

16.4 The Client acknowledges and agrees that Cyanweb shall not be held responsible or liable for:

(a) any form of loss or damage of any nature whatsoever suffered, whether arising directly or indirectly, by the Client or any person related to or dealing with the Client out of, in connection with or reasonably incidental to the provision of the Services by Cyanweb to the Client; and

(b) any loss or damage incurred by any party as a consequence of any Prohibited Content incorporated into the Services, unless due to the negligence of Cyanweb; and

(c) any loss, corruption, or deletion of files or data resulting from illegal hacking of the Services. Cyanweb will endeavour to restore the Web Site, files or data (at the Client’s cost); and

(d) any loss or damage to the Client’s software or hardware caused by any ‘updates’ provided for that software. It shall be the Client’s sole responsibility to remove any removable media (including, but not limited to, diskettes, CDs, DVDs or PC Cards) from the hardware prior to submitting for repair or returning Goods for replacement under clause 15.

16.5 The Client acknowledges that any advice or recommendations by Cyanweb are provided on the basis of Cyanweb’s industry knowledge and experience only and shall not be deemed as specialist advice.

16.6 The Services (and any associated software) are provided on an “as is, as available” basis. Cyanweb specifically disclaims any other warranty, express or implied, including any warranty of merchantability or fitness for a particular purpose.

16.7 The Client understands that by placing information on a website, such information may be accessible to all internet users. Cyanweb does not (unless expressly requested by the Client) limit or restrict access to such information, nor protect such information from copyright infringement or other wrongful activity. The Client assumes full responsibility for their use of the Services, and it is the Client’s sole responsibility to evaluate the accuracy, completeness and usefulness or all opinions, advice, services, and other information, and the quality and merchantability of all Services provided by Cyanweb, or on the internet generally.

16.8 In consideration of clause 23.3, in the event that the Services provided to the Client malfunction or are disrupted for any reason, Cyanweb’s liability shall be limited to damages which under no circumstances shall exceed the amount due and payable by the Client to Cyanweb for the Services during the period of disruption or malfunction.

17. Intellectual Property
17.1 The Client warrants that all designs or instructions to Cyanweb will not cause Cyanweb to infringe any patent, registered design or trademark in the execution of the Client’s order.

17.2 Where Cyanweb has provided software (and associated documentation) and/or for any of Cyanweb’s source code, Cyanweb retains ownership thereof, but grants the Client a non-exclusive and non-transferable licence for its use (solely in relation to the operation of the Client’s own business). The Client will use any third-party software and/or source code supplied by Cyanweb, and identified as such, strictly in terms of the licence (or any other conditions imposed by Cyanweb) under which it is supplied. The Client further agrees that they shall not without Cyanweb’s prior written consent:

(a) copy the software and/or source code; or

(b) allow any third party to have access to the software and/or source code; or

(c) alter, modify, tamper with, or reverse engineer the software and/or source code; or

(d) combine the Software and/or source code with any other software and/or item, etc.

17.3 Subject to Australian copyright laws (and/or any other applicable copyright laws) and the conditions therein, the Client agrees that they shall not in any way sell, reproduce, adapt, distribute, transmit, publish, or create derivative works from, any part of the software (if supplied by Cyanweb) without Cyanweb’s prior consent in writing.

17.4 The Client hereby authorises Cyanweb to utilise images of the Services created by Cyanweb in advertising, marketing, or competition material by Cyanweb.

18. Default and Consequences of Default
18.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Cyanweb’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

18.2 If the Client owes Cyanweb any money the Client shall indemnify Cyanweb from and against all costs and disbursements incurred by Cyanweb in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Cyanweb’s contract default fee, and bank dishonour fees).

18.3 Without prejudice to any other remedies Cyanweb may have, if at any time the Client is in breach of any obligation (including those relating to payment, whether or not the payment is due to Cyanweb) Cyanweb may suspend or terminate the provision of Services to the Client, and any of its other obligations under the terms and conditions. Cyanweb will not be liable to the Client for any loss or damage the Client suffers because Cyanweb has exercised its rights under this clause.

18.4 Without prejudice to Cyanweb’s other remedies at law, Cyanweb shall be entitled to cancel all, or any part, of any order of the Client which remains unfulfilled, and all amounts owing to Cyanweb shall, whether or not due for payment, become immediately payable if:

(a) any money payable to Cyanweb becomes overdue, or in Cyanweb’s opinion the Client will be unable to make a payment when it falls due; or

(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

19. Confidentiality
19.1 Each party agrees to treat all information and ideas communicated to it by the other confidentially and agree not to divulge it to any third party, without the other party’s written consent. The parties will not copy any such information supplied, and will either return it or destroy it (together with any copies thereof) on request of the other party.

20. Cancellation, Termination, Suspension or Deactivation
20.1 Cyanweb may cancel these terms and conditions, or cancel provision of the Services at any time before the Services are provided, by giving written notice. Cyanweb shall not be liable for any loss or damage whatever arising from such cancellation.

20.2 At Cyanweb’s sole discretion, the Client may cancel provision of the Services (in accordance with these terms and conditions). In the event that the Client cancels any contract to which these terms and conditions apply, then the Client shall be liable for any and all loss incurred (whether direct or indirect) by Cyanweb as a direct result of the cancellation (including, but not limited to, any loss of profits). Furthermore, if the Client requests termination of the contract prior to the expiration of the Contract Term, then the Client shall also be liable to pay for the provision of the Services until the expiration of the Contact Term, and:

(a) Cyanweb is not obligated to refund the Client for the value of any unused portion of the Services in the event that the Client cancels the Services before the expiration of the Contract Term; and

(b) if the Client fails to give notice of intention to cancel the contract at least one (1) month before the expiration date of the Contract Term, the contract shall automatically continue on a monthly basis, and the Client shall be liable to pay all associated costs.

20.3 Should the Client, for any reason, cause the Services to be delayed for more than three (3) months after their entry into this contract, Cyanweb may (at their sole discretion) terminate this contract, and all Services completed, but not billed or paid, will be payable in full within fourteen (14) days from the date of the submitted invoice.

20.4 The Client’s failure to fully comply with these terms and conditions is grounds for Cyanweb to terminate, suspend and/or deactivate the Client’s account (with, or without, refund at Cyanweb’s sole discretion).

20.5 Cyanweb reserves the right to remove any account without prior notice. If Cyanweb deactivates the Client’s account or server for violating these terms and conditions, the Client will forfeit their right to a refund, and none will be given. Cyanweb’s normal policy is a warning first, and account or server deactivation on the second offence, but no warning is required.

20.6 Cyanweb will be the sole arbitrator as to what constitutes a violation of clauses 7.5, 10.1, 11.1 and 16.1, and reserves the right to (without, or without notice, at Cyanweb’s sole discretion):

(a) deactivate any account or server, and/or remove any website, at any time, and without refund (at Cyanweb’s sole discretion), for this reason; and/or

(b) terminate the Client’s account immediately, without notice and without refund, in the event the Client is found to be in breach of clauses 10.1 or 16.1. Additionally, Cyanweb will notify the proper authorities of the Client’s actions (including handing over all available information/evidence about such breach) and the Client may be prosecuted.

21. Privacy Act 1988
21.1 The Client agrees for Cyanweb to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by Cyanweb.

21.2 The Client agrees that Cyanweb may exchange information about the Client with those credit providers and with related body corporates for the following purposes:

(a) to assess an application by the Client; and/or

(b) to notify other credit providers of a default by the Client; and/or

(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or

(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.

21.3 The Client consents to Cyanweb being given a consumer credit report to collect overdue payment on commercial credit.

21.4 The Client agrees that personal credit information provided may be used and retained by Cyanweb for the following purposes (and for other agreed purposes or required by):

(a) the provision of Services; and/or

(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; and/or

(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or

(d) enabling the collection of amounts outstanding in relation to the Services.

21.5 Cyanweb may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report; and/or

(b) allow the CRB to create or maintain a credit information file about the Client including credit history.

21.6 The information given to the CRB may include:

(a) personal information as outlined in 21.1 above;

(b) name of the credit provider and that Cyanweb is a current credit provider to the Client; and/or

(c) whether the credit provider is a licensee; and/or

(d) type of consumer credit; and/or

(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested); and/or

(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and Cyanweb has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments); and/or

(g) information that, in the opinion of Cyanweb, the Client has committed a serious credit infringement; and/or

(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).

21.7 The Client shall have the right to request (by e-mail) from Cyanweb:

(a) a copy of the information about the Client retained by Cyanweb and the right to request that Cyanweb correct any incorrect information; and/or

(b) that Cyanweb does not disclose any personal information about the Client for the purpose of direct marketing.

21.8 Cyanweb will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this contract or is required to be maintained and/or stored in accordance with the law.

21.9 The Client can make a privacy complaint by contacting Cyanweb via e-mail. Cyanweb will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.

22. Dispute Resolution
22.1 If a dispute arises between the parties to this contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:

(a) referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and

(b) conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.

23. General
23.1 The failure by Cyanweb to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Cyanweb’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

23.2 These terms and conditions, and any contract to which they apply, shall be governed by the laws of Western Australia, the State in which Cyanweb has its principal place of business, and are subject to the jurisdiction of the Perth courts in that State.

23.3 Subject to clause 15, Cyanweb shall be under no liability whatsoever to the Client for any expenses, claims, costs (including but not limited to legal fees and commissions), damages suffered or incurred by Cyanweb, or indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Cyanweb of these terms and conditions, caused by any failure by the Client to comply with their obligations under this contract, or that arise from any claim relating to the Services by any person that the Client authorises to use the Services, or where due to server downtime or programming errors (alternatively Cyanweb’s liability shall be limited to damages which under no circumstances shall exceed the Price).

23.4 Cyanweb may license or sub-contract all or any part of its rights and obligations without the Client’s consent.

23.5 The Client agrees that Cyanweb may amend these terms and conditions at any time. If Cyanweb makes a change to these terms and conditions, then that change will take effect from the date on which Cyanweb notifies the Client of such change via email. The Client will be taken to have accepted such changes if the Client makes a further request for Cyanweb to provide Services to the Client.

23.6 Neither party shall be liable for any default due to fires, explosions, severe weather, industrial disputes, insurrection, requirements or regulations, or any civil or military authority, acts of war (whether declared or not), civil unrest, acts of God, earthquake, flood, riot, embargo, government act, strike, lock-out, storm, terrorism, DNS caching, propagation, or other DNS issues outside the reasonable control of either party, or failure or outage of any telecommunications links or other connections forming part of the Internet which are beyond the reasonable control of either party.

23.7 The Client warrants that it has the power to enter into this contract and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this contract creates binding and valid legal obligations on it.

Please contact support@cyanweb.com.au if you do not accept or agree to these terms of trade.