MYOB Business Web Hosting terms & conditions
1. DEFINITIONS & INTEPRETATION
1.1 Terms capitalised throughout this Agreement have the meanings set out in Clause 22.
1.2 This Agreement will be interpreted in accordance with the provisions of Clause 22.
2. PROVISION OF SERVICES
2.1 The 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, MYOB will provide the Services to the Client.
2.3 The Client acknowledges that it has independently determined that the Services to be supplied by MYOB will meet the Client's requirements.
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 MYOB Web Site or as otherwise agreed between the parties in writing.
3.2 The Charges will be based on prices specified in the price list located on the MYOB Web Site and current from time to time.
3.3 In the event that:
(a) MYOB 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 MYOB, then MYOB 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 MYOB in writing.
3.5 MYOB 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 MYOB and the Client agree otherwise in writing.
3.6 Where the Services include domain name registration:
(a) MYOB 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 MYOB to release the Client's domain name without any liability for loss suffered by the Client howsoever arising.
4. MONITORING OF BANDWIDTH
4.1 Although MYOB 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 MYOB may, in its sole discretion, apply limits on the Services or a part of them at any time. Without limiting MYOB's rights under this clause, MYOB 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 MYOB Servers from time to time when necessary; and
(c) make additional charges for usage at a prevailing rate as stated on the MYOB 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 MYOB documents sent to the Client and will notify MYOB within 24 hours of any corrections required.
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 MYOB.
5.3 The Client agrees to indemnify MYOB, 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 MYOB 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 MYOB, 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 MYOB 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 MYOB;
(c) serve information in the form of text or graphics from MYOB Servers which may:
(i) directly or indirectly lead to a contravention of any law; or
(ii) bring MYOB into disrepute or call into question any action taken by MYOB on the Client's behalf;
(d) use the MYOB 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 MYOB Servers to such bulk unsolicited e-mail; or
(e) use or attempt to use protocols, procedures or scripts which in the unfettered opinion of MYOB have the effect of degrading or the potential to degrade the Services and facilities offered by MYOB.
6.4 The Client agrees to immediately inform MYOB if it becomes aware of any unauthorised use of all or any of the Services by any person.
7. SUSPENSION OF SERVICES
7.1 MYOB 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 MYOB 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 MYOB to be intended to be used, by a Client or a customer of the Client in a manner deemed inappropriate by MYOB;
(b) the provision of the Services is likely to expose MYOB to any liability as a result of a breach of any law or any third party rights; or
(b) the Client otherwise breaches this Agreement.
7.3 Suspension of Services by MYOB will continue until the problem or breach is rectified or until otherwise agreed.
7.4 MYOB 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 MYOB.
8. LOSS OF DATA
8.1 MYOB will take all reasonable steps to safeguard the MYOB Servers and the data contained therein, however MYOB will not be responsible for any loss of Client data stored or intended to be stored on the MYOB Servers or back-up devices and the Client will not be entitled to any form of compensation from MYOB in the event of loss of data.
9. INTERRUPTIONS TO SERVICE
9.1 MYOB 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 MYOB Servers, MYOB 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 MYOB 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 MYOB with the Client Deliverables in accordance with the time frames agreed between the parties.
10.2 MYOB 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 MYOB 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.
11.1 The Client warrants that:
(a) it owns, or has a licence to use the Intellectual Property Rights in any Client Deliverables provided to MYOB, including any trade marks;
(b) MYOB's provision of Services to the Client will not infringe any third party's Intellectual Property Rights.
11.2 The Client indemnifies MYOB against all expenses, losses, damages and costs (on a solicitor and own basis and whether incurred by or awarded against MYOB) which MYOB 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 MYOB 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 MYOB for any breach of such condition or warranty will be limited, at the option of MYOB, 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 MYOB 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 MYOB 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.
13.2 The Client warrants that it has not relied on any representation made by MYOB which has not been stated expressly in this Agreement.
13.3 The Client will at all times indemnify and hold harmless MYOB 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.
15.1 The minimum contractual period for the provision of the Services by MYOB 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 MYOB with written notice to that effect one month prior to the expiry of the Initial Term.
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.
18.1 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
MYOB reserves the right to change this Agreement at any time and will post a notice on the MYOB Web Site giving notice of that change for a period of 30 days. 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 MYOB Web Site from time to time as separate notification of changes will not be made.
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.
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.
(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).
MYOB may sub-contract the performance of any of the Services but will remain primarily responsible for the performance of its obligations under this Agreement.
19.5 Entire Agreement
This Agreement forms the entire agreement between the parties in respect of the subject matter of this Agreement.
21. GOVERNING LAW
This Agreement is governed by the laws of the State of Victoria.
22. DEFINITIONS AND INTERPRETATIONS
22.1 In this Agreement, the following terms will have the following meanings:
'Acceptable Use Policy' means the policy governing acceptable use of the MYOB Services as updated from time to time and posted on or linked to the MYOB Web Site;
'Charges' means the amount payable for provision of the Services;
'Client' means the party who has entered into this Agreement for Services with MYOB;
'Client Deliverables' means all information and materials to be provided by the Client to MYOB under the terms and conditions of this Agreement as agreed between the parties or as otherwise provided by the Client to MYOB from time to time;
'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;
'MYOB' and 'MYOB Business Web Hosting' means MYOB Australia E1 Pty Ltd ACN 095 868 205 trading as MYOB Business Web Hosting;
'MYOB Servers' refers to all software processing units belonging to MYOB that are connected to the Internet;
'MYOB Web Site' means the web site maintained by MYOB and located at www.myob.com.au/webhosting or any other URL notified by MYOB to the Client from time to time;
'Intellectual Property Rights' means all intellectual property rights including, but not limited to:
(a) patents, copyright, circuit layout rights, designs, trade marks ; and
(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;
'Services' means those Services which the Client and MYOB agree are to be provided to the Client by MYOB in accordance with the package descriptions and payment details set out on the MYOB Web Site;
22.2 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.
23. COMPLAINTS HANDLING POLICY
You may download our complaints handling policy here:
24. Registrant Rights and Responsibilities
View information on the Registrant Rights and Responsibilities Under the 2009 Registrar Accreditation Agreement.