Hosting Services Agreement
eFirst Group Terms and Conditions as at May 18, 2011. This Agreement represents the complete Agreement and understanding between eFirst Group and the account holder and supersedes any other written or oral Agreement. Upon notice published on-line via eFirst Group, eFirst Group may subsequently modify these terms and conditions, clarify them, and/or modify the fees and charges, as well as discontinue or change the services offered in any way.
If you do not agree to these terms and conditions, please notify our accounting department at via our iManage support system, or at PO Box 2745, Cheltenham, Vic 3192 to arrange finalization of your account.
Agreement Term & Definitions
The term "eFirst Group" refers to Vallez Pty Ltd t/a Global eFirst (ABN 86 073 001 078). The "Client" is any person nominated by the Customer who is authorised to operate the Account. The "account" means the Customer and the Designated Customers rights to use the services offered by eFirst.
This Agreement commences on the date the application is approved by eFirst and continues until expiry of the Term, or until earlier termination in accordance with the terms of this Agreement. Where no term has been set, the term shall be 2 years.
eFirst Group will assign the Client a logon name ("username") and password which will provide the Client with access to the services agreed to by the Client and eFirst Group. eFirst Group will provide the Client with Web and Email Services as per the Web Host service level they have selected.
eFirst Group will advise the Client of correct operational procedures as displayed via the support web pages located on the eFirst Group iManage website http://iManage.efirst.com.au/
The Client must pay to eFirst Group the Hosting Setup Fee and monthly Hosting Fee in advance. The Hosting Fee is exclusive of any government taxes or charges and exclusive of any registration or delegation charges imposed by domain name authorities where new domain names are registered or transferred.
Scheduled Maintenance - eFirst Group must perform scheduled maintenance to servers from time to time to ensure optimal performance of services. eFirst Group will endeavour to perform all scheduled maintenance services at times that will affect the least number of Clients. If the scheduled maintenance requires the services to be off-line for more than 30 minutes at any single event, eFirst Group will post details of the scheduled maintenance and expected duration of the event to the eFirst Group website at least 24 hours before the scheduled maintenance commences.
Unscheduled maintenance may need to be performed due to hardware failure, software corruption, communication failure or data corruption. If unscheduled maintenance requires the service to be off-line for more than 30 minutes, eFirst Group will post details of the event to the eFirst Group website after the maintenance has been completed and services are returned to normal.
Archiving of Data - eFirst Group will archive Client's data onto backup mechanisms without acceptance of direct, indirect or consequential liability to eFirst on a regular basis for the purposes of disaster recovery. In the event of equipment failure or data corruption, eFirst Group will restore from the last known good archive. In the event of corruption of all eFirst archives, or in the event that an old archive is used to restore data, the Client should be in a position to upload their last saved good data to their Web Site or repository at eFirst. This procedure requires that the Client maintains a regular download and backup policy and a recent copy of their data at their premises at all times.
Warranties and Liabilities
eFirst Group does not warrant that:
the services provided under this Agreement will be uninterrupted or error free; or
the services will meet the Client's requirements, other than as expressly set out in this Agreement .
Except as expressly provided to the contrary in this Agreement, and to the extent permitted by law, all warranties whether express, implied, statutory or otherwise, relating in any way to the subject matter of this Agreement, are excluded. Where any statute implies in this Agreement any term, and that statute avoids or prohibits provisions in a contract that exclude or modifying the application of or liability under such a term, then the term will be taken to be included in this Agreement. However, the liability of eFirst Group for any breach of the term will, if permitted by that statute be limited, at the option of eFirst Group, to any one or more of the following:-
the supply of the services again at no additional charge; or
payment of the cost of having the services supplied again on a reasonable basis
The Client warrants that at the time of entering into this Agreement that it is not relying on any representation made by eFirst Group which has not been stated expressly detailed in this Agreement, or on any descriptions or specifications contained in any other document, including any catalogues or publicity material produced by eFirst Group.
The Client warrants that it will conduct such tests and computer virus scanning as may be necessary to ensure that data uploaded by it onto or downloaded by it from the Server does not contain any harmful computer virus and will not, in any way, corrupt the data or systems of any person. The client will not attempt to hack or assist any other party in the hacking of equipment or services of the eFirst Group.
The Client warrants that it will keep secure any passwords provided to them by eFirst and used to upload data to the Server.The Client will advise eFirst immediately upon becoming known that any passwords or account details have been compromised in any way.
The Client warrants that all data uploaded onto the Server under this Agreement will not expose eFirst Group to the risk of any claim, legal or administrative action or persecution, and the Client will indemnify and hold harmless eFirst against any legal actions and claims including damages for copyright, illegal or pornographic content or the illegal or unauthorized use of services in any way. Where eFirst is required by any authorized State or Federal agency to remove any content from eFirst hardware and services, this shall be done without any liability to eFirst until Client obtains from any such Agency or Court written permission or judgement to re-upload any such data or content. Client agrees that it will not make any claim against eFirst under these or similar circumstances.
eFirst Group reserves the right (but is under no obligation) to "Remove from Internet Access" any part of the Client Data that, in eFirsts’ opinion, infringes any of the warranties set out in this Agreement or is illegal or immoral. Client agrees not to use services for the transmission, sending or relaying of SPAM or any other illegal content and acknowledges that services will be immediately terminated where such activity is detected.
eFirst Group has no obligation to review or edit content of the Client Data that has been uploaded to eFirst equipment and services.
The Client is solely responsible for support of and dealing with persons who access the Client Data, and must not refer any complaints or inquiries in relation to the Client Data to eFirst Group.
If there is any claim against eFirst Group due to a breach of the Client's warranties and responsibilities, or otherwise attributable to the Client Data, the Client agrees and must indemnify and hold eFirst Group harmless against all liabilities, losses, damages, costs and expenses (including legal fees and expenses) associated with, or arising out of, any such claim.
Either party may terminate this Agreement by 30 days notice in writing (email, written or fax) to the other party at the address for service of notices. Where the client has paid a Yearly fee and terminates the Agreement prior to the expiration of the term, then the contract shall revert back to a monthly Agreement. eFirst Group will calculate any refund to the Client based on Yearly Fees paid less the monthly payment Agreement multiplied by the number of months the contact has operated, with a termination fee of up to 3 months payable. Client accepts that there is no refund available where the expiration term is 3 months or less remaining on the original Agreement.
On termination or expiry of this Agreement for any reason, eFirst Group may delete all Client Data from any storage media.
The Client grants to eFirst Group a license to use and reproduce all Client Data on eFirst equipment in order to fulfill its obligations under this service Agreement.
A provision of, or a right created under this Agreement , may not be waived except in writing signed by the party granting the waiver, or varied except in writing signed by the parties.
This Agreement and the transactions contemplated by this Agreement are governed by the laws in force in Australia. All parties submit to the jurisdiction of the State of Victoria.
The Client may not assign its rights and obligations under this Agreement without the prior written consent of eFirst Group.
Where any hosting, service or other fees or charges owing by the Client remain unpaid after 14 days beyond the due date for payment, eFirst may, at it discretion, and without notice to the Client, remove all client data and service provision from all eFirst equipment, or suspend client access to the services until all amounts owing are paid. eFirst may require the payment of a reconnection fee of up to one months services fees or an amount determined by eFirst to cover the cost of the interruption to restore services to the Client. After the expiration of one month past the due date for payment of the account, eFirst may permanently remove or delete any Client data held on eFirst equipment, and permanently terminate all service provision.