F2 Hosting Service - Terms & Conditions.

These terms and conditions supplement and extend Foote Francis’ Standard Terms & Conditions listed on the Foote Francis web site located at http://www.f2.net.au.

Foote Francis provides hosting services to clients wishing to publish a web site or web-based application/s on the Internet.

1.0 Definitions

1.1 “F2” refers to Foote Francis, its employees, agents, resellers or any party acting on Foote Francis’ behalf or explicit instructions.

1.2 “the Licensee” or “the Customer” refers to any company, entity or person who signs a purchase order with the view to obtaining products or services from F2.

1.3 “Services” refers to any service offered by F2 including, but not limited to, domain name registration, web site hosting, e-mail hosting, web design, search engine optimisation, web development, and applications development.

1.4 “Illegal Material” includes copyrighted works, commercial audio, video or music files, and any material in violation of any Australian or International Federal, State or Local laws.

1.5 “Adult Material” refers to any and all pornography, erotic images, or otherwise lewd or obscene content. F2 reserves the right to designate and declare content that is “Adult Material”.

1.6 “Server” refers to a computer designated as the web site hosting environment or platform for the Licensee’s domain.

1.7 “Hosting” refers to the publishing of web site content or business applications on F2 or 3rd party servers.

1.8 “Content” means all information, data, images, pictures, copy, graphics, sound, video, text and animations used on or within the web site or web-based application, provided to F2 by the Licensee, including any and all modifications made from time to time.

1.9 “Web-based Applications” refers to computer software that is hosted and delivered via the Internet.

1.10 “Domain Name” means the domain name specified for the Website by the Customer from time to time. The initial Domain Names are specified in Exhibit A of this Agreement.

1.11 “Intellectual Property Rights” means any and all now known or hereafter known tangible and intangible (a) rights associated with works of authorship, including but not limited to copyrights, moral rights, and mask-works, (b) trademark and trade name rights and similar rights, (c) trade secret rights, (d) patents, designs, algorithms and other industrial property rights, (e) all other intellectual and industrial property rights (of every kind and nature and however designated) (including logos, “rental” rights and rights to remuneration), whether arising by operation of law, contract, license, or otherwise, and (f) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force (including any rights in any of the foregoing).

1.12 “F2 Tools” means any tools, both in object code and source code form, which F2 has already developed or which F2 independently develops or licenses from a third party, excluding any tools which F2 creates pursuant to this Agreement. By way of example, F2 Tools may include, without limitation, toolbars for manoeuvring between pages, search engines, Java applets, and ActiveX controls.

1.13 “Website” means the user interface, functionality and Content made available on pages under the Domain Name.

1.14 “Work Product” means all HTML files, Java files, JavaScript, PHP code, graphics files, animation files, data files, technology, scripts and programs, both in object code and source code form, all documentation and any other deliverable prepared for the Customer by F2 in accordance with the terms of this Agreement.

2.0 Term and Termination

2.1 The initial term of this Agreement shall be as specified in Exhibit A. Thereafter, this Agreement shall continue until terminated with at least 30 days written notice by either party.

2.2 Termination for Cause. Except as otherwise provided for herein, either party may terminate this Agreement upon the material breach of the other party, if such breach remains uncured or unresolved for 30 days following written notice to the breaching party.

2.3 Effect of Termination. Upon the termination of this Agreement for any reason and upon request by the Customer at any time, F2 shall promptly return, in their original form, all Content and copies thereof and deliver the originals and all copies of the Work Product in whatever stage of completion to Customer, except those applications that are provided under license to the Licensee and which are covered by a separate Software License Agreement. Subject to F2’s obligations under this Agreement, F2 shall remove all copies of the Content from servers within its control and use reasonable efforts to remove any references to the Customer or the Content from any site which caches, indexes or links to the Website.

3. 0 Web Site Content and Domain Hosting Services

3.1 Services.
Following the Customer’s acceptance of this Agreement, F2 shall provide the following web hosting services:

(a) Domain Name Registration. If requested by the Customer, F2 shall cooperate with the Customer in registering the Domain Name. The Customer shall own all right, title and interest in and to the Domain Name and all Intellectual Property Rights related thereto. Unless otherwise specified by the Customer, F2 shall list the Customer’s project liaison as the administrative, technical and billing contact.

(b) Content Control. The Customer shall have sole control over the website Content. F2 shall not supplement, modify or alter any Work Product which has been accepted by the Customer or any Content (other than modifications strictly necessary to upload the Content to the Website) except with the Customer’s prior written consent. F2 shall also permit the Customer to electronically transmit or upload Content directly to the Website via a content management system (Joomla or Mambo)

(c) Site Backup. F2 shall maintain a complete and current copy of the Website on a server located at a remote location. In the event that service is interrupted to the Website, the remote server shall be immediately activated so that public access to the Website continues.

(d) Standards. F2’s hosting standards shall conform to the following:

(i) Availability of Web Site. The Website shall be publicly available to users a minimum of 99% of the time during any 24 hour period.

(ii) Security. F2 shall endeavour to prevent unauthorized access to the Website, other restricted areas of the Website and any databases or other sensitive material generated from or used in conjunction with the Website; and F2 shall notify Customer of any known security breaches or holes.

(iii) Remedies. In addition to other applicable remedies, the Customer may immediately terminate this Agreement without a further cure period if: (x) any breach of this Section 3.1(d) is not cured within the later of the next measurable period (only if applicable) or 10 days, (y) the same subsection is breached a second time, or (z) there are 2 breaches of separate subsections (even if cured) within any one (1) month period.

3.2 Customer License.
During the period that F2 provides web hosting services pursuant to this Section 3, the Customer hereby grants to F2 a non-exclusive, non-sublicenseable, royalty-free, worldwide license to reproduce, distribute, publicly perform, publicly display and digitally perform the Content and Work Product only on or in conjunction with the Website. The Customer grants no rights other than explicitly granted herein, and F2 shall not exceed the scope of its license.

3.3 Trademarks.
Subject to the terms and conditions of this Agreement, the Customer hereby grants F2 a limited, non-exclusive, non-sublicenseable, royalty-free, worldwide license to use such party’s trademarks, service marks, trade names, logos or other commercial or product designations (collectively, “Marks”) for the purposes of creating content directories or indexes and for marketing and promoting the Website. The trademark owner may terminate the foregoing license if, in its sole discretion, use of the Marks does not conform to the owner’s standards. Title to and ownership of the owner’s Marks shall remain with the owner. The Licensee shall use the Marks exactly in the form provided and in conformance with any trademark usage policies.

3.4 Service Availability
Suspension of service. F2 shall have the right to suspend the Services at any time and for any reason, without notice to the Licensee, if it is deemed by F2 that the services are being used in a manner that contravenes or breaches the terms and conditions of this agreement. F2 assures that if the suspension of service lasts longer than 2 (two) days, the Licensee will be notified in writing as to the reason behind the suspension.

3.5 Third Party Services
The Customer acknowledges that, as part of the F2 hosting service, F2 may employ or retain the services of one or more Third Pary service providers, agents or employees to supply the necessary technology facilities, equipment and connectivity to provide the Services described in this Agreement.

3.6 Excess Bandwidth
The Customer acknowledges and understands that if excess network traffic or bandwith or storage space for the Customer’s domain’s, listed in Exhibit A, is used, F2 may charge the Customer for the additional costs.

3.7 SPAM/Virus Protection Services
F2 reserves the right to remove attachments from incoming mail messages if there is any indication that the attachment is, or might be, infected with a virus, trojan horse, easter egg or other viral software.

4.0 Content Ownership & Acceptable Use

4.1 Ownership of Work Product. F2 hereby irrevocably assigns to the Customer all right, title and interest in and to all Work Product and documentation produced pursuant to the Customer’s requests for services hereunder including, without limitation, all applicable Intellectual Property Rights thereto.

4.2 Ownership of Content and Website. As between F2 and the Customer, any Content given to F2 by the Customer under this Agreement or otherwise, and all User Content, shall at all times remain the property of the Customer. F2 shall have no rights in such Content or User Content other than the limited right to use such content for the purposes expressly set forth in this Agreement.

4.3 Employee and Subcontractor Contracts. F2 shall cause each individual or company employed by F2 in connection with the Work Product to execute a contract regarding confidentiality and assignment of rights prior to each such individual or company’s commencement of services thereunder. Such contracts shall: (a) include a full assignment of all rights to the Customer, (b) include a waiver of any moral or similar rights, (c) be freely assignable, and (d) contain restrictions on use and disclosure.

4.4 The Licensee is solely responsible for all content that appears on the hosted web site or web-based application, and indemnifies F2 fully by assuring that all content stored is legal and within the right of the Licensee to display and/or store.

4.5 The Licensee shall obtain all necessary consents and clearances required to enable the lawful use of any and all intellectual property rights through the F2 services, including but not limited to all clearances and/or consents with respect to the proposed domain name. The Licensee furthermore assures that it has the full authority to provide and use the content

4.6 The Licensee accepts and understands that, from time to time, regular maintenance of the servers may result in F2 authorised staff members accessing the Licensee’s content or information or data for administrative purposes. F2 assures that it has no interest in the content, information or data stored by the Licensee.

4.7 The Licensee understand and accepts that it does not own or hold any ownership rights to any of the applications hosted by F2 or issued or provided under a separate license to the Licensee.

5.0 Charges and Payment

5.1 Fees. Except as otherwise specified in Exhibit A, F2 shall invoice all Website hosting fees monthly, and payment is due 14 days from delivery of the invoice.

5.2 The Licensee agrees to pay the monthly Website hosting and maintenance fees set out in Exhibit A, and that agreed additional charges will be invoiced on a case-by-case basis or as incurred.

5.3 The Licensee agrees to pay all invoices in full within 14 (fourteen) days of the date of invoice. The Licensee agrees and understands that F2 reserves the right to charge a 5% administrative fee for late payment of invoices.

5.4 F2 may change the charges payable by the Licensee under this agreement for each term by giving the Licensee at least 30 days notice on or before the last day of the initial term.

6.0 Warranties and Indemnity

6.1 The Licensee warrants that F2 has the full power and authority to use the Licensee’s content as contemplated by this agreement and that the provision and use of the Licensee’s content does not, and will not, violate any copyrights, trademarks, trade secrets or other proprietary rights of any third party, nor create any liability to any third party.

6.2 Domain names. The Licensee accepts and understands that F2 may purchase domain names on behalf of the Licensee, however payment and renewal of those domain names is the responsibility of the Licensee. The loss, cancellation or otherwise of the domain brought about by non or late payment is not the responsibility of F2. The Licensee should keep a record of the due dates for payment to ensure that payment is received in time by the domain registration service.

6.3 Work Product Warranties. F2 warrants that any Work Product, F2 Tools or F2-made changes to the Content shall not: (a) infringe on the Intellectual Property Rights of any third party or any rights of publicity or privacy; (b) violate any law, statute, ordinance or regulation (including without limitation the laws and regulations governing export control, unfair competition, antidiscrimination or false advertising); (c) be defamatory, trade libellous, unlawfully threatening or unlawfully harassing; (d) be obscene, child pornographic or indecent; and (e) contain any viruses, trojan horses, trap doors, back doors, easter eggs, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.

6.4 Additional Warranties. F2 warrants that: (a) any Work Product or F2 Tools will conform to their applicable Specifications or acceptance criteria when delivered and for a period of 1 year thereafter; and (b) there is no outstanding contract, commitment or agreement to which F2 is a party or legal impediment of any kind known to F2 which conflicts with this Agreement or might limit, restrict or impair the rights granted to Customer hereunder.

6.5 Customer Covenants. During the period that F2 provides Web hosting services pursuant to Section 4, the Customer shall not distribute on the Website any Content that: (a) infringes on the Intellectual Property Rights of any third party or any rights of publicity or privacy; (b) violates any law, statute, ordinance or regulation (including without limitation the laws and regulations governing export control, unfair competition, antidiscrimination or false advertising); (c) is defamatory, trade libellous, unlawfully threatening or unlawfully harassing; (d) is obscene, child pornographic or indecent; or (e) contains any viruses, trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.

6.6 Disclaimer Of Warranties. EXCEPT AS SET FORTH HEREIN, EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THAT WHICH IS APPLICABLE, ALLOWED OR PROVIDED FOR UNDER GOVERNING LAW.

7.0 Indemnity

Customer Indemnity. The Customer will indemnify, hold harmless and shall defend F2 and all employees, agents, officers and affiliates against any and all third party claims, action, suit, demands or proceedings alleging any breach of the covenants contained within this Agreement. The Customer shall indemnify F2 for all losses, damages, liabilities and all reasonable expenses and costs incurred by F2 as a result of a final judgment entered against F2 in any such claim, action, suit or proceeding.

8.0 Confidential Information

Customer’s “Confidential Information” are any passwords used in connection with the Website, all Server Logs, all Work Product and documents related to the Work Product, any Content which Customer designates as confidential, and any other materials of the Customer which the Customer designates as confidential or which F2 should reasonably believe to be confidential. The Customer’s “Confidential Information” also includes the Website itself until such time as the Customer decides to make the Website publicly available to users. F2’s “Confidential Information” is defined as the source code of any F2 Tools. F2 understands and agrees that the Customer does not want any other Confidential Information of F2, and should the parties believe that additional confidential information of F2 needs to be disclosed to the Customer, the parties shall execute a separate non-disclosure agreement regarding such information. Each party shall hold the other party’s Confidential Information in confidence and shall not disclose such Confidential Information to third parties nor use the other party’s Confidential Information for any purpose other than as necessary to perform under this Agreement. The foregoing restrictions on disclosure shall not apply to Confidential Information which is (a) already known by the recipient, (b) becomes, through no act or fault of the recipient, publicly known, (c) received by recipient from a third party without a restriction on disclosure or use, or (d) independently developed by recipient without reference to the other party’s Confidential Information.

9.0 Limitation of Liability

IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS OR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL F2 HAVE ANY LIABILITY FOR UNAUTHORISED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF INFORMATION DISTRUBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES PROVIDED BY F2 HEREIN. THE TOTAL LIABILITY OF F2 TO THE CUSTOMER FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO F2 BY THE CUSTOMER UNDER THIS AGREEMENT DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM AROSE.

10.0 General Provisions.

10.1 Governing Law. This Agreement will be governed and construed in accordance with the laws of the State of Western Australia without giving effect to principles of conflict of laws. Both parties agree to submit to jurisdiction in Western Australia and further agree that any cause of action arising under this Agreement may be brought in a court in Perth, Western Australia.

10.2 Further Assurances. F2 shall cooperate with the Customer, both during and after the term of this Agreement, in the procurement and maintenance of Customer’s rights to intellectual property created hereunder and to execute, when requested, any other documents deemed necessary or appropriate by Customer to carry out the purpose of this Agreement.

10.3 Compliance With Laws. F2 shall ensure that its Website design and its web hosting services will comply with all applicable international, national and local laws and regulations.

10.4 Severability; Waiver. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision which most closely approximates the intent and economic effect of the invalid provision. The waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.

10.5 Headings. Headings used in this Agreement are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section or in any way affect this Agreement.

10.6 Independent Contractors. The parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. Neither party shall have the power to obligate or bind the other party. Personnel supplied by F2 shall work exclusively for F2 and shall not, for any purpose, be considered employees or agents of Customer. F2 assumes full responsibility for the acts of such personnel while performing services hereunder and shall be solely responsible for their supervision, direction and control, compensation, benefits and taxes.

10.7 Notice. Any notices required or permitted hereunder shall be given to the appropriate party at the address specified below or at such other address as the party shall specify in writing. Such notice shall be deemed given: upon personal delivery; if sent by telephone facsimile, upon confirmation of receipt; or if sent by certified or registered mail, postage prepaid, 5 days after the date of mailing.

10.8 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.

10.9 Entire Agreement. This Agreement, including the Exhibits attached hereto, sets forth the entire understanding and agreement of the parties and supersedes any and all oral or written agreements or understandings between the parties as to the subject matter of this Agreement. It may be changed only by a writing signed by both parties. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein In Witness Whereof, each of the parties hereto have executed this Agreement as of the date first written above.

EXHIBIT A

For the monthly web hosting fee, F2 shall provide the following services:

• server maintenance;
• site navigation and link testing;
• end user support for all domain hosting-related problems;
• customer technical support for email configuration;
• server log analysis;
• specification for user security provided by F2 (but no storage of passwords);
• website/domain storage space on the F2 server (as per Schedule One matrix of options below);
• secure access to website and website content management system (Joomla) to monitor performance and to allow content/product updates;
• website analysis/tracking software (AWStats)