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Terms and Conditions
Version No.1
My Business Web Site terms & conditions
IMPORTANT NOTICE: These are the terms and conditions ('Agreement') on which My Business Web Site ('My Business Web Site'), an operating division of Red Erb Pty Ltd provides and permits use of the Services. Your use of the Services is subject to this Agreement and the Privacy Policy. If you do not agree to the terms of this Agreement and the Privacy Policy, you must not use the Services.

1. DEFINITIONS & INTEPRETATION 

1.1 In this Agreement, the following terms will have the following meanings: 

'Acceptable Use of Services' means the terms governing acceptable use of the My Business Web Site Services as updated from time to time and posted on or linked to the Company Web Site; 

'Agreement' means this agreement, including the Privacy Policy, governing the provision of the Services by My Business Web Site to the Client as may be varied from time to time; 

'Charges' means the amount payable for provision of the Services; 

'Client' means the party who has entered into this Agreement for Services with My Business Web Site; 

'Client Deliverables' means all information and materials to be provided by the Client to My Business Web Site under the terms and conditions of this Agreement as agreed between the parties or as otherwise provided by the Client to My Business Web Site from time to time;

'Company' means the party My Business Web Site, who is a operating division of Red Erb Pty Ltd.

'Company Services' means those Services which are limited to authorised Clients who provide an Australian Business Number (ABN) and My Business Web Site agree are to be provided to the Client by My Business Web Site in accordance with the package descriptions and payment details set out on the Company Web Site;

'Confidential Information' of a party means all information disclosed by a party to the other party and nominated as confidential (including, but not limited to, confidential information in machine readable form) but does not include information which is already in the public domain;

'GST' means any goods or services tax, charge, impost or duty payable in respect of this Agreement or the supply of any goods or services made under or in respect of this Agreement;

'My Business Web Site' is an operating division of the Australian registered company "Red Erb Pty Ltd", ABN 60 115 922 364.

'My Business Web Site Servers' refers to all software processing units that are connected to the Internet belonging to My Business Web Site or belonging to another party that are used for the purpose of the delivery of the services;

'Company Web Site' means the web site maintained by My Business Web Site and located at www.mybusinesswebsite.com.au or any other URL notified by the Company to the Client from time to time;

'Inline Content Editor' means the 3rd party TinyMCE Javascript WYSIWYG Editor owned and developed by Moxiecode Systems.

'Intellectual Property Rights' means all intellectual property rights including, but not limited to:

(a) patents, copyright, circuit layout rights, designs, trade marks ; and 

(b) software used

(b) any application or right to apply for any of the rights referred to in paragraph (a); 

'Internet' means the world wide connection of computer networks providing for the transmittal of electronic mail, on-line information, information retrieval and file transfer protocol;

'Privacy Policy' means the My Business Web Site privacy policy for the Services as updated from time to time and posted on or linked to the Company Web Site;

'Services' means those Services which the Client and My Business Web Site agree are to be provided to the Client by My Business Web Site in accordance with the package descriptions and payment details set out on the Company Web Site;

'Solution' means the Client web site created and hosted on the Company Web Site.

1.2 In this Agreement: 

(a) reference to a Clause is to a clause of this Agreement. Clause headings have been inserted for convenience only and will not be taken into account in interpreting the Agreement;

(b) words importing the singular will include the plural and vice versa;

(c) words importing natural persons will include firms and corporate bodies or other legal persons and vice versa;

(d) reference to a party to this Agreement includes reference to that party's permitted successors and assigns.

2. PROVISION OF SERVICES

2.1 The Company Services can only be applied for or used by applicants who provide an Australian Business Number (ABN).

2.2 In consideration of the payment by the Client of the Charges, My Business Web Site will provide the Services to the Client.

2.3 The Client acknowledges that it has independently determined that the Services to be supplied by My Business Web Site will meet the Client's requirements.

2.4 The Inline Content Editor is provided as-is and is licensed via the GNU LGPL agreement with Moxiecode Systems AB. 

3. CHARGES AND PAYMENT

3.1 The Client will pay the Charges for the provision of the Services at the rate and in the manner specified on the Web Site My Business Web Site or as otherwise agreed between the parties in writing.

3.2 The Charges will be based on prices specified and located on the Web Site My Business Web Site and may change from time to time.

3.3 In the event that: 

(a) My Business Web Site is required to perform the Services in circumstances other than those expressly or reasonably anticipated; or 

(b) there is a change in the timing or complexity of the Services; 

and such circumstances are not the result of a breach of this Agreement by My Business Web Site, then My Business Web Site will notify the Client of any additional fees payable by the Client as a result of such changes.

3.4 Payment of the Charges will be due in advance of provision of the Services unless otherwise agreed by My Business Web Site in writing.

3.5 My Business Web Site reserves the right to charge the Client a late fee on any outstanding amounts under this Agreement. This fee is calculated at the Commonwealth Bank prime commercial lending rate plus 2% per annum on any amount overdue for payment from the due date for payment until payment, unless My Business Web Site and the Client agree otherwise in writing.

3.6 Where the Services include domain name registration:

(a) My Business Web Site will raise an invoice for payment to the appropriate naming authority for the hosting of that name specifying the date by which payment by the Client must be made; and

(b) failure for any reason by the Client to make payment before the specified date will entitle My Business Web Site to release the Client's domain name without any liability for loss suffered by the Client howsoever arising.

4. MONITORING OF BANDWIDTH

4.1 As part of the Services provided by My Business Web Site an monthly bandwidth limit may be enfored in order to protect all Services using the My Business Web Site Server.

4.2 Although My Business Web Site does not apply a notional upper limit on the amount of storage space used by a Client or the number of transmissions that are sent or received by a Client through the Services, the Client acknowledges and agrees that My Business Web Site may, in its sole discretion, apply limits on the Services or a part of them at any time. Without limiting My Business Web Site's rights under this clause, My Business Web Site reserves the right to: 

(a) monitor the Client's monthly bandwidth usage; 

(b) implement restrictions on available bandwidth in order to protect all Services using the My Business Web Site Servers from time to time when necessary; and 

(c) make additional charges for usage at a prevailing rate as stated on the Web Site My Business Web Site. 

5. DOMAIN NAME REGISTRATION 

5.1 The Client is responsible for checking the accuracy and correct spelling of the Client's domain name and its ownership entitlement as identified on My Business Web Site documents sent to the Client.

5.2 Upon registration of the Client's domain name, the Client shall at all times comply with the terms and conditions for the registration of domain names published by the relevant naming authority and generally to the terms and conditions of any such authority having similar force and to which the Client may become subject as a result of the provision of the Services by My Business Web Site. 

5.3 The Client agrees to indemnify My Business Web Site, its employees and agents and shall hold them harmless from and against all loss, penalties, damages, liability, claims or expenses whatsoever arising from any claims by third parties as to ownership or other rights to use a domain name where one has been registered by or transferred to My Business Web Site or arising in any way by the Client infringing (whether innocently or knowingly) third party rights.

6. UNAUTHORISED USE BY CLIENT

6.1 The Client must comply with any directions regarding the Services given to the Client from time to time by My Business Web Site, including, but not limited to procedures imposed from time to time to prevent unauthorised use of or access to the Services. 

6.2 The Client must not engage in or otherwise permit, any unauthorised use of My Business Web Site facilities or Services by the Client, its employees, contractors, customers or third parties and in particular, the Client must not:

(a) serve more than one discrete destination website from a single hosting package;

(b) permit any third party to use or to access any of the Services for any purpose without the prior written consent of My Business Web Site; 

(c) serve information in the form of text or graphics from My Business Web Site Servers which may: 

(i) directly or indirectly lead to a contravention of any law; or 

(ii) bring My Business Web Site into disrepute or call into question any action taken by My Business Web Site on the Client's behalf; 

(d) use the My Business Web Site Servers to either send bulk unsolicited e-mail, or append a domain name or e-mail address which has its mx record or DNS pointing to the My Business Web Site Servers to such bulk unsolicited e-mail; or 

(e) use or attempt to use protocols, procedures or scripts which in the unfettered opinion of My Business Web Site have the effect of degrading or the potential to degrade the Services and facilities offered by My Business Web Site.

6.3 The Client agrees to immediately inform My Business Web Site if it becomes aware of any unauthorised use of all or any of the Services by any person.

7. SUSPENSION OF SERVICES 

7.1 My Business Web Site may suspend access to the Services: 

(a) to preserve data and integrity of the Services; 

(b) if there is a security breach; or 

(c) if there is a malfunction in the Services. 

7.2 My Business Web Site reserves the right to terminate or suspend the Services to the Client indefinitely and without refund or payment in the event that:

(a) the Services are used, or appear to My Business Web Site to be intended to be used, by a Client or a customer of the Client in a manner deemed inappropriate by My Business Web Site;

(b) the provision of the Services is likely to expose My Business Web Site to any liability as a result of a breach of any law or any third party rights; or

(c) the Client otherwise breaches this Agreement.

7.3 Suspension of Services by My Business Web Site will continue until the problem or breach is rectified or until otherwise agreed. 

7.4 My Business Web Site will not be liable to the Client, its employees, contractors, customers or agents as a result of taking the action referred to in this Clause 7 where such action is taken on a view which is formed on a reasonable basis by My Business Web Site.

8. LOSS OF DATA

8.1 My Business Web Site will take all reasonable steps to safeguard the My Business Web Site Servers and the data contained therein, however My Business Web Site will not be responsible for any loss of Client data stored or intended to be stored on the My Business Web Site Servers or back-up devices and the Client will not be entitled to any form of compensation from My Business Web Site in the event of loss of data.

9. INTERRUPTIONS TO SERVICE

9.1 My Business Web Site takes no responsibility for any delay, malfunction, non performance, or other degradation of performance of any of the Services caused by or resulting from any alteration, modifications or amendments due to changes and specifications requested or implemented by the Client whether or not beyond the Services already supplied.

9.2 In the event of total systems failure resulting in the disruption of service to the Internet from My Business Web Site Servers, My Business Web Site will endeavour to repair and reinstate the service within 24 hours of detection depending on the severity of the failure.

9.3 If failure is caused by the Client or any agent or customer of the Client to whom access to My Business Web Site Servers was given, the Client shall pay all costs to reinstate and/or repair the Client server.

10. CLIENT DELIVERABLES

10.1 The Client will provide My Business Web Site with the Client Deliverables in accordance with the time frames agreed between the parties.

10.2 My Business Web Site will not be responsible for any deficiency or alleged deficiency in the Services which is attributable to:

(a) incorrect information provided by the Client; or 

(b) failure by the Client to provide the Client Deliverables or other relevant information. 

10.3 The Client will have no remedy against My Business Web Site in relation to any delay or failure to complete the Services, where such delay or failure is the direct or indirect result of any act or omission of the Client or a breach by the Client of this Agreement.

11. INDEMNITY

11.1 The Client warrants that:

(a) it owns, or has a licence to use the Intellectual Property Rights in any Client Deliverables provided to My Business Web Site, including any trade marks, images, logos and text;

(b) My Business Web Site's provision of Services to the Client will not infringe any third party's Intellectual Property Rights.

11.2 The Client indemnifies My Business Web Site against all expenses, losses, damages and costs (on a solicitor and own basis and whether incurred by or awarded against My Business Web Site) which My Business Web Site may sustain or incur as a result, whether directly or indirectly, of:

(a) any breach of this Agreement or the warranties contained herein by the Client including, but not limited to, a breach, in respect of which My Business Web Site exercises an express right to terminate this Agreement; and

(b) any claim by any person arising out of a breach of any of the warranties contained in Clause 11.1.

12. IMPLIED TERMS

12.1 Subject to Clause 12.2, any condition or warranty which would otherwise be implied in this Agreement is hereby excluded.

12.2 In the event that a condition or warranty cannot be excluded by law, the liability of My Business Web Site for any breach of such condition or warranty will be limited, at the option of My Business Web Site, to:

(a) the supplying of the Services again; or

(b) the payment of the cost of having the Services supplied again.

13. LIMITATION OF LIABILITY

13.1 My Business Web Site will be under no liability to the Client, or any customers of the Client, in respect of any loss of profits or data, consequential loss or damage which may be suffered or incurred or which may arise directly or indirectly in respect of:

(a) goods or Services supplied pursuant to this Agreement;

(b) failure or omission on the part of My Business Web Site to comply with its obligations under this Agreement; or

(c) supply of Client Deliverables by the Client which are incomplete, inaccurate, illegible, out of sequence, in the wrong form or arising from late arrival or non-arrival or any other fault by the Client; or

(d) error or malfunction of the software providing the Services to the Client.

13.2 The Client warrants that it has not relied on any representation made by My Business Web Site which has not been stated expressly in this Agreement.

13.3 The Client will at all times indemnify and hold harmless My Business Web Site and its officers, employees and agents ('those indemnified') from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of those indemnified arising from any proceedings against those indemnified where such loss or liability was caused by:

(a) a breach by the Client of its obligations under this Agreement; or

(b) any wilful, unlawful or negligent act or omission of the Client.

14. CONFIDENTIAL INFORMATION 

14.1 Each party will use the Confidential Information of the other party only for the purposes of this Agreement.

14.2 Neither party to this agreement will disclose to any third party (other than its employees or contractors in their capacities are such) any Confidential Information of the other party which information is not lawfully in the public domain.

14.3 Any lawfully required disclosure of Confidential Information to any governmental or other controlling body will be limited to essential information only and, if possible, made subject to a confidentiality order.

14.4 The software used to provide the Services to the Client is considered confidential and is the intellectual property of My Business Web Site, a division of Red Erb Pty Ltd.

15. TERM 

15.1 The minimum contractual period for the provision of the Services by My Business Web Site is 12 months from the first day that the Services are made available to the Client ('Initial Term'). 

15.2 Subject to Clause 15.3, following the expiry of the Initial Term, this Agreement will continue until terminated by either party by giving 30 days notice or pursuant to Clause 16.

15.3 The Client may elect to terminate this Agreement after the Initial Term by providing My Business Web Site with written notice to that effect one month prior to the expiry of the Initial Term.

16. TERMINATION

16.1 Either party may terminate this Agreement with immediate effect by giving notice to the other party if:

(a) the other party breaches any of its obligations under this Agreement and fails to remedy that breach within 14 days after receiving notice requiring it to do so; or

(b) any event referred to in Clause 16.2 occurs.

16.2 Each party will notify the other immediately if:

(a) it ceases to carry on business;

(b) it disposes of the whole or any part of its assets, operations or business other than in the ordinary course of business;

(c) any step is taken to enter into any arrangement between that party and its creditors;

(d) any step is taken by a mortgagee to enter into possession or dispose of the whole or any part of its assets or business; or

(e) any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator or other like person of the whole or any part of its assets or business.

16.3 Termination of this Agreement will not affect the accrued rights or remedies of either party.

17. FORCE MAJEURE

17.1 Neither party will be in default under this Agreement by reason of its delay in performance of or failure to perform any of its obligations, if such delay or failure is caused by declaration of war, strikes, Acts of God or the public enemy, riots, interference by civil or military authorities, compliance with Governmental laws, rules and regulations, delays in transit or delivery, inability to secure necessary governmental priorities or any fault beyond its control and without its fault or negligence.

18. DISPUTES

18.1 In the event of any dispute between the parties arising out of or in connection with this Agreement ('Dispute'), the parties will use their best endeavours to settle such Dispute amicably by negotiation after issuing a 'Dispute Notice' indicating that there is a serious dispute to be resolved.

19. CHANGES TO AGREEMENT

My Business Web Site reserves the right to change this Agreement at any time and will post the notice on the Company Web Site Terms and Conditions under a new revision number. Any subsequent use of the Services immediately following the change will constitute acceptance of those modifications to the Agreement. Clients are responsible for checking the Company Web Site from time to time as separate notification of changes will not be made.

20. GENERAL

20.1 Severance

If any part of this Agreement is deemed unenforceable then:

(a) if the provision would not be illegal or unenforceable if a word or words were omitted, that word or those words are severed; or

(b) in any other case the provision is severed,

then the rest of this Agreement will continue to be legal and enforceable.

20.2 Waiver

The failure of a party at any time to insist on performance of any obligation under this Agreement of the other party is not a waiver of its right:

(a) to insist on performance of, or claim damages for breach of, that obligation unless that party acknowledges in writing that the failure is a waiver; and

(b) at any other time to insist on performance of that or any other obligation of the other party under this Agreement.

20.3 Notices

(a) Each party notifying or giving notice under this Agreement will do so:

(i) in writing;

(ii) addressed to the address of the recipient; and

(iii) hand delivered or sent by prepaid post to that address or sent by e-mail or facsimile transmission to the other party's e-mail address or facsimile number.

(b) A notice given in accordance with Clause 19.3(a) is deemed received:

(i) if hand delivered, on the date of delivery;

(ii) if sent by prepaid post, 4 days after the date of posting within Australia and 7 days after the date of posting outside Australia; and

(iii) if sent by facsimile transmission, on the day the transmission is sent (but only if the sender has a confirmation report specifying a facsimile number of the recipient, the number of pages sent and the date of transmission).

20.4 Sub-Contracting

My Business Web Site may sub-contract the performance of any of the Services but will remain primarily responsible for the performance of its obligations under this Agreement.

20.5 Entire Agreement

This Agreement forms the entire agreement between the parties in respect of the subject matter of this Agreement.

21. ACCEPTABLE USE OF SERVICES

My Business Web Site reserves the right to halt or cease providing the Services to the Client should the Clients use of the Services be deemed inappropriate:

(i) due to defamatory, damaging or derogatory content or;

(ii) due to offensive, illicit or illegal material or behaviour or;

(iii) due to extremist points of view or behaviours or;

(iv) due to terrorist or other inappropriate activities against the good of mankind.

22. GOVERNING LAW

This Agreement is governed by the laws of the State of New South Wales, Australia.
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