Hosting Terms and Conditions
These Terms and Conditions are the terms on which Klyp Australia Pty Ltd ACN 603 710 274 (Klyp) provide the Hosting Services to you.
These Terms and Conditions apply to every user of the Hosting Service and it is a condition of your use that you comply with these Terms and Conditions.
1. Supply of the Hosting Services
(a) Supply – subject to you paying the Fees in accordance with clause 3, Klyp will endeavour to provide the Hosting Services to you in volumes acceptable to us.
(b) Customer requirements – you must:
- provide Klyp with such information and assistance necessary to enable us to provide the Hosting Services;
- have all resources necessary to receive the Hosting Services, including hardware, software, telecommunications resources and internet access acceptable to Klyp;
- not do or attempt to do any of the things described in clause 1(e); and
- cooperate with Klyp, act reasonably and follow our directions in connection with this agreement and receipt of the Hosting Services.
You acknowledge and agree that if you do not comply with clause 1(b) then Klyp is not obliged to supply the Hosting Services to you.
(c) Resupply – you must not resupply the Hosting Services to any third party.
(d) Service Levels – any service levels set out on the Website are non-binding targets only and Klyp is not required to meet those service levels.
(e) Suspension – Klyp may suspend your access to the Hosting Services at any time including if:
- Klyp suspects that you have performed or may perform any illegal or unlawful acts in connection with receipt or use of the Hosting Services;
- Klyp suspects that you have or may have used the Hosting Services:
- to engage in fraudulent behaviour;
- to defame any third party;
- to harass any third party;
- to gain unauthorised access to or interfere with any third party's online resources or systems including any form of hacking;
- to circumvent any security measures;
- to run an IRC or game server;
- to interfere with any third party's online resources or systems including carrying out a denial of service attack;
- to distribute, view or create any material that:
- is or may be pornographic, defamatory, offensive, obscene, illegal or unlawful; or
- infringe any third party's Intellectual Property Rights;
- to distribute unsolicited emails to third parties including bulk unsolicited emails;
- to distribute a higher volume of outgoing emails than is acceptable to Klyp;
- to use a non-existent email return address;
- to use an open email relay;
- in a way that infringes any third party's Intellectual Property Rights;
- in a way that disrupts, misuses or excessively uses the hardware, bandwidth access, storage space or other resources of Klyp or Klyp's other customers; or
- in any other manner that is unacceptable to Klyp.
- Klyp suspects that you have sent unsolicited email from another network that appears to have been sent using the Hosting Services or from hardware Klyp uses to provide the Hosting Services;
- a third party alleges that you have done or threatened to do any of the things described in this clause 1(e); or
- Klyp receives a request or notice from a third party (including any regulatory body) requiring Klyp to cease providing the Hosting Services to you or remove any content you are making available through use of the Hosting Services.
(f) Back up – you acknowledge and agree that Klyp will not back up or otherwise preserve any data or applications stored or used in connection with the Hosting Services.
(g) Availability – you acknowledge and agree that the Hosting Services may not be available from time to time and that the Hosting Services are not error free.
(a) Customer Material warranties – you warrant that:
- use of Customer Material by Klyp in accordance with this agreement will not infringe the Intellectual Property Rights of any third party; and
- if you provide Klyp with any information by which an individual may be identified in connection with this agreement or inputs that information into the Hosting Services, you have necessary consents including under the Privacy Act 1988 (Cth) to provide that information to Klyp or input it into the Hosting Services
(b) Accuracy and reliance warranties – you represent and warrant, and it is a condition of this agreement, that:
- all information provided by you or on your behalf to Klyp is accurate and is not, whether by omission of information or otherwise, misleading;
- you have not withheld from Klyp any document, information or other fact material to the decision of Klyp to enter into this agreement; and
- you did not rely upon any representation made to you by Klyp or any Related Body Corporate of Klyp (if any) prior to entry into this agreement.
- You must pay the Fees to Klyp.
- If there is a dispute about whether a Fee or other amount contemplated by this agreement is payable or available, you must not withhold the amount in dispute.
- The Fees may change during the Term.
- Klyp will invoice you from time to time for the Fees.
- You must pay an invoice issued under this clause within 14 days after the date of issue of the invoice.
(c) Deferral of performance - if you fail to pay the Fees in accordance with this agreement, without limiting any other remedies available to Klyp, we may defer performance of all Hosting Services until the outstanding Fees are paid.
4. Term and Termination
(a) Term – this agreement commences on the Commencement Date and continues for the Initial Period and each Rollover Period unless terminated earlier in accordance with this clause 4.
(b) Termination for breach – if:
- you commit a breach of this agreement; or
- an Insolvency Event occurs in relation to you,
then Klyp may terminate this agreement by written notice to you in which case this agreement will terminate on the date specified in that written notice or, if no date is specified, immediately.
(c) Termination for convenience – Klyp may terminate this agreement for convenience at any time by giving written notice to the other party in which case this agreement will terminate on the date specified in that notice or, if no date is specified, immediately.
(d) Termination by notice at end of period – either party may terminate this agreement by giving written notice to the other party prior to the expiry of the Initial Period or a Rollover Period, in which case the termination is effective immediately upon the expiry of that period.
(e) Waiver and acknowledgement:
- you expressly waive any rights you may have to terminate this agreement other than as contemplated by clause 4(d);
- you acknowledges that Klyp may terminate this agreement under this clause 4 without considering the impact of the termination on you.
(f) After termination – on termination of this agreement:
- no amount is refundable by Klyp to you including if this agreement is terminated under clauses 4(c) or 4(d);
- accrued rights or remedies of a party are not affected; and
- you must deliver to Klyp any of Klyp's Confidential Information or other property in your care, custody or control.
(g) Survival – termination of this agreement will not affect clauses 2, 4(f), 5(b), 6, 7 or 8 or any provision of this agreement which is expressly or by implication intended to come into force or continue on or after the termination.
5. Intellectual Property
(a) No assignment – Klyp Material remains the property of Klyp and nothing in this agreement grants you any Intellectual Property Rights in Klyp Material or other Intellectual Property Rights of Klyp.
(b) Licence of Customer Material:
- you grant to Klyp a non-exclusive, irrevocable, global licence to exercise the Intellectual Property Rights in any Customer Material in connection with Klyp providing Hosting Services to you.
- the licence granted under this clause 5(b) includes the right to sublicense to third parties.
(c) No use of Klyp's marks – you must not, and must ensure that your officers, employees, agents and subcontractors do not, use the trade marks or logos of Klyp except with the prior written consent of Klyp except as expressly provided in this agreement.
6. Confidential Information
(a) Obligations of confidence – you agree to keep confidential, and not to use or disclose, other than as permitted by this agreement, any Confidential Information of Klyp provided to or obtained by you prior to or after entry into this agreement.
(b) Exclusions – the obligations of confidence in clause 6(a) do not apply to Confidential Information:
- that is required to be disclosed by applicable law, or under compulsion of law by a court or Government Agency, as long as you:
- discloses the minimum amount of Confidential Information required to satisfy the law or rules; and
- before disclosing any information, give all available written notice to Klyp and take all available steps (whether required by Klyp or not) to maintain such Confidential Information in confidence;
- that is in the public domain otherwise than as a result of a breach of this agreement or other obligation of confidence; or
- that is already known, rightfully received or independently developed, by you free of any obligation of confidence.
(c) Restriction on disclosure:
- you may use and disclose Confidential Information of Klyp only with the prior written consent of Klyp.
- if you disclose Confidential Information under this clause, you must ensure that such information is kept confidential by the person to whom it is disclosed and is only used for the purpose of receiving the Hosting Services under this agreement.
7. Limitation of Liability
- Subject to clauses 7(b) and 7(d), any liability of Klyp for any loss or damage, however caused (including by the negligence of Klyp), suffered by you in connection with this agreement is limited, at the election of Klyp to:
- $50; or
- re-performance of the Hosting Services.
- The limitation set out in this clause is an aggregate limit for all claims, whenever made.
- Any claim by you against Klyp for loss or damage however caused (including by the negligence of Klyp), suffered by you in connection with this agreement must be made within one calendar month of you becoming entitled to make the claim and any claim not made within one calendar month is absolutely barred.
(b) Consequential loss
- Subject to clause 7(d), Klyp is not liable for any Consequential Loss however caused (including by the negligence of Klyp), suffered or incurred by you in connection with this agreement.
- Consequential Loss in this clause means consequential loss and:
- loss of profits;
- loss of revenues;
- loss of reputation;
- indirect loss;
- loss of bargain;
- loss of actual or anticipated savings;
- lost opportunities, including opportunities to enter into arrangements with third parties;
- loss or corruption of data, and;
- consequential loss.
(c) Seriousness or nature – for clarity, and without limiting clauses 7(a) and 7(b), the parties agree that clauses 7(a) and 7(b) are to apply in connection with a breach of this agreement, anticipated breach of this agreement and other conduct regardless of the seriousness or nature of that breach, anticipated breach or other conduct.
(d) Australian Consumer Law – if the Competition and Consumer Act 2010 (Cth) or any other legislation states that there is a guarantee in respect of goods or services supplied, and Klyp's liability for failing to comply with that guarantee may not be excluded but may be limited, clauses 7(a), 7(b) and 8(a) do not apply to that liability and instead Klyp's liability for such failure is limited to, in the case of a supply of goods, Klyp replacing the goods or supplying equivalent goods or repairing the goods, or in the case of a supply of services, Klyp supplying the services again or paying the cost of having the services supplied again.
(a) Indemnity – you are liable for, and indemnify Klyp from and against, all loss or damage (including legal costs) incurred or suffered by Klyp however caused in connection with:
- any breach of this agreement by you;
- any claim against Klyp by you or any third party in connection with Customer Material, the Hosting Services or any matter referred to in clause 1(e); or
- any alleged or actual infringement of a third party's Intellectual Property Rights or other right in connection with Customer Material or the Hosting Services.
(b) Continuing obligation – each indemnity contained in this agreement is a continuing obligation notwithstanding:
- any settlement of account; or
- the occurrence of any other thing,
and it is not necessary for Klyp to incur expense or make payment before enforcing or making a claim under an indemnity.
9. Force Majeure
(a) Klyp will not be:
- in breach of this agreement as a result of; or
- liable for,
any failure or delay in the performance of Klyp's obligations under this agreement to the extent that such failure or delay is wholly or partially caused, directly or indirectly, by a Force Majeure Event or any act or omission by you.
10. Costs and Taxes
- Each party must meet or pay its own legal costs and disbursements in respect of the preparation, negotiation and execution of this agreement.
- You must pay all stamp duty (including penalties and interest) assessed or payable in connection with this agreement.
- Subject to clause 11, you must pay all taxes, duties and government charges imposed or levied in Australia or overseas in connection with the performance of this agreement.
- In this clause 11:
- 'GST Act Supplier' means the entity making the Supply; and
- other capitalised terms used that are not defined in clause 13(a) have the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
- Except under this clause 11, the consideration for a Supply made under or in connection with this agreement does not include GST.
- If a Supply made under or in connection with this agreement is a Taxable Supply, then at or before the time the consideration for the Supply is payable:
- the Recipient must pay the GST Act Supplier an amount equal to the GST for the Supply (in addition to the consideration otherwise payable under this agreement for that Supply); and
- the GST Act Supplier must give the Recipient a Tax Invoice for the Supply.
- If either party has the right under this agreement to be reimbursed or indemnified by another party for a cost incurred in connection with this agreement, that reimbursement or indemnity excludes any GST component of that cost for which an Input Tax Credit may be claimed by the party being reimbursed or indemnified, or by its Representative Member, Joint Venture Operator or other similar person entitled to the Input Tax Credit (if any).
- The laws of Queensland, Australia govern this agreement.
- Each party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland, Australia and courts competent to hear appeals from those courts.
- You acknowledges and agrees that Klyp may amend the Terms and Conditions of this agreement by making new Terms and Conditions available on the Website from time to time and those amended Terms and Conditions apply to this agreement from the date they are made available on the Website.
- Where this agreement contemplates that Klyp may consent to, elect, determine, approve, nominate, decide or consider any matter or thing, Klyp may provide such consent or make such election, determination, approval, nomination, decision or consideration in its absolute discretion and conditionally or unconditionally without being required to give reasons or act reasonably, unless this agreement expressly requires otherwise.
- You must not assign, in whole or in part, or novate your rights and obligations under this agreement without the prior written consent of Klyp.
- Klyp may assign its interest under this agreement.
- Time is not of the essence in the performance of obligations under this agreement except in relation to performance of payment obligations.
- Unless expressly stated otherwise, this agreement does not create a relationship of employment, trust, agency or partnership between the parties.
- Each provision of this agreement will be read and construed as a separate and severable provision or part and if any provision is void or otherwise unenforceable for any reason then that provision will be severed and the remainder will be read and construed as if the severable provision had never existed.
- This agreement represents the parties' entire agreement, and supersedes all prior representations, communications, agreements, statements and understandings, whether oral or in writing, relating to its subject matter.
- Klyp may subcontract the performance of all or any part of Klyp's obligations under this agreement.
- A right under this agreement may only be waived in writing signed by the party granting the waiver, and is effective only to the extent specifically set out in the waiver.
- Without limiting any other remedies available to Klyp, if you fail to pay any amount payable under this agreement, you must pay Interest on that amount.
- You must comply with all applicable laws in connection with receipt of the Hosting Services.
- Klyp may give notice to you under this agreement by email to any email address notified by you at or after the time this agreement is entered into.
13. Definitions and Interpretation
(a) Definitions – in this agreement:
Commencement Date means the date you accept these Terms and Conditions.
Confidential Information of a party means the terms of this agreement and any information:
- relating to the business and affairs of that party;
- relating to the customers, clients, employees, sub contractors or other persons doing business with that party;
- which is by its nature confidential;
- which is designated as confidential by that party; or
- which the other party knows or ought to know, is confidential,
and includes all trade secrets, knowhow, financial information and other commercially valuable information of that party, and in the case of Klyp, includes Klyp Material and the Fees.
Consequential Loss has the meaning given in 7(b).
Corporations Act means Corporations Act 2001 (Cth).
Customer means you or the entity for which you are acting as agent.
Customer Material means any material provided by or to which access is given by you to Klyp for the purposes of this agreement including documents, equipment, reports, technical information, studies, plans, charts, drawings, calculations, tables, trade marks, logos, schedules and data stored by any means.
Fees mean the fees specified on the Website from time to time for the Hosting Services.
Force Majeure Event means any occurrence or omission outside a party's control and includes:
- a physical natural disaster including fire, flood, lightning or earthquake;
- war or other state of armed hostilities (whether war is declared or not), insurrection, riot, civil commotion, act of public enemies, national emergency (whether in fact or in law) or declaration of martial law;
- epidemic or quarantine restriction;
- ionising radiation or contamination by radioactivity from any nuclear waste or from combustion of nuclear fuel;
- confiscation, nationalisation, requisition, expropriation, prohibition, embargo, restraint or damage to property by or under the order of any government agency;
- law taking effect after the date of this agreement; and
- strike, lock-out, stoppage, labour dispute or shortage including industrial disputes that are specific to a party or the party's subcontractors.
Initial Period means the period from the Commencement Date until the date which is one calendar year after the Commencement Date.
Insolvency Event in the context of a person means:
- a liquidator, receiver, receiver and manager, administrator, official manager or other controller (as defined in the Corporations Act), trustee or controlling trustee or similar official is appointed over any of the property or undertaking of the person;
- the person or the person's property or undertaking becomes subject to a personal insolvency arrangement under part X Bankruptcy Act 1966 (Cth) or a debt agreement under part IX Bankruptcy Act 1966 (Cth);
- the person is or becomes unable to pay its debts when they are due or is or becomes unable to pay its debts within the meaning of the Corporations Act or is presumed to be insolvent under the Corporations Act;
- the person ceases to carry on business; or
- an application or order is made for the liquidation of the person or a resolution is passed or any steps are taken to liquidate or pass a resolution for the liquidation of the person, otherwise than for the purpose of an amalgamation or reconstruction.
Intellectual Property Rights means all industrial and intellectual property rights, both in Australia and throughout the world, and includes any copyright, moral right, patent, registered or unregistered trade mark, registered or unregistered design, registered or unregistered plant breeder's right, trade secret, knowhow, right in relation to semiconductors and circuit layouts, trade or business or company name, indication or source or appellation of origin or other proprietary right, or right of registration of such rights.
Interest means interest on any payment owing under this agreement calculated:
- at the rate which is 2% in excess of the published Australia and New Zealand Banking Group Limited variable interest rate for personal loans or, if lower, the maximum rate permitted by applicable law; and
- daily from the date on which such payment was due to the date on which the payment is made (both inclusive) including the relevant Interest.
Klyp means Klyp Australia Pty Ltd ACN 603 710 274.
Klyp Material means any material provided by you or to which access is given by Klyp to you for the purposes of this agreement including documents, equipment, reports, technical information, studies, plans, charts, drawings, calculations, tables, schedules and data stored by any means.
Related Body Corporate has the meaning given to that term by section 9 Corporations Act.
Rollover Period means each period a calendar year following the Initial Period or a Rollover Period.
Term means the term contemplated by clause 4(a).
Hosting Services means the virtual private server services offered by Klyp on the Website from time to time which are selected by you.
Website means the website located at www.klyp.co as modified by Klyp from time to time.
(b) Interpretation – in this agreement:
- the meaning of any general language is not restricted by any accompanying example, and the words 'includes', 'including', 'such as' or 'for example' (or similar phrases) do not limit what else might be included;
- no rule of construction applies in the interpretation of this agreement to the disadvantage of the party preparing the document on the basis that it put forward this document or any part of it;
- a reference to a party is a reference to Klyp or you, and a reference to the parties is a reference to both Klyp and you; and
- a reference to applicable law is to any relevant law (including any subordinate or delegated legislation or statutory instrument of any kind) of a jurisdiction in or out of Australia, and also to any relevant judgment, order, policy, guideline, official directive, code of conduct, authorisation or request (even if it does not have the force of law) of any Government Agency or regulatory body, such as a stock exchange, within or outside Australia.