End User Licence and Hosting Agreement (EULAHA)
Hicaliber Pty Ltd ACN 11 600 537 433 (Hicaliber) operates the My Digital Partner (Software) and provides access to End Users on the Terms and Conditions of this End User Licence and Hosting Agreement (EULAHA).
The End User would like to use the selected Packages of the Software to manage and host its Website. Hicaliber and the End User are referred to as a Party or the Parties to this EULAHA as the case may be.
The terms and conditions contained in this EULAHA govern the relationship between the Parties.
- Definitions that apply to this EULAHA
1.1 Defined terms
Agreement means the Terms and Conditions contained in this End User Licence and Hosting Agreement (EULAHA).
Content means text, data, speech, music or other sounds, visual images (animated or otherwise) in any form, or in any combination of forms as defined in Schedule 7 of Broadcasting Services Act 1992 (Cth).
Designated Agent means the person appointed by the Site owner to respond to allegations of Copyright breaches of Content that appears on the Website.
Documentation means any user operating manual, explanatory notes or memoranda that may or may not be supplied with the Software provided by Hicaliber as updated from time to time on its Website.
Hosting means the provision of a virtual host for the End User to serve data of its website using the Software provided by Hicaliber.
End User means a person that purchases a Licence to use the Software and the Hosting Account pursuant to the terms and conditions of this Licence Agreement.
Excessive Use Site means an End Users Website that is consuming more usage (including but not limited to bandwidth, disk, e-mail accounts, e-mail sends or CPU utilisation) as classified at the sole discretion of Hicaliber in accordance with the limits provided at: http://blackpepperdigital.com.au/pricing
Force Majeure means an act of God, fire, lightning, explosions, flood or other natural disaster, subsidence, act of terrorism, insurrection, civil disorder or military operations, power or gas shortage, government or quasi-government restraint, expropriation, prohibition, intervention, direction or embargo, inability or delay in obtaining governmental or quasi-governmental approvals, consents, permits, licences or authorities, strikes, lock-outs or other industrial disputes of any kind and any other cause, whether similar or not to the foregoing, outside of the affected Party’s control.
EULAHA means this End User Licence and Hosting Agreement.
Intellectual Property Rights (IP) means all copyright, patents, design rights, trademarks and service marks and Softwares for any of the foregoing, together with all trade secrets, know-how, database rights, rights to confidentiality, intellectual and industrial property rights and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration in all parts of the world.
Licence Fee means the amount of money paid on acceptance of this Agreement by an End User in exchange for the right to use the Software and the Hosting services for the Licence Term.
Licence Term means the period(s) during which the End User is licenced to use the Software for the selected Package.
Packages means any of the packages available with the Software described on My Digital Partner website.
Software means the My Digital Partner website management system used as a software solution to enable users to edit, promote and host websites.
My Digital Partner website means the website that the End User may be able to access Documentation from as the case may be located at http://blackpepperdigital.com.au
Upgrades means any modifications, new or revised versions of the source code that the Software requires to operate more efficiently or effectively as determined by Hicaliber at its sole discretion.
End User’s Website means the End User’s website which uses one installation of the Software hosted on My Digital Partner servers.
Works means the source code embedded in the software that contains all algorithms, source code, and system logic relating to the Software that is subject to this End User Licence and Hosting Agreement which Hicaliber licences for the My Digital Partner software platform.
(a) one gender includes the others;
(b) the singular includes the plural and the plural includes the singular;
(c) a person includes a body corporate;
(d) a Party includes the Party’s executors, administrators, successors and permitted assigns;
(e) to an amount of money, to $, $A or dollar is a reference to the currency of Australia;
(f) a statute, regulation or provision of a statute or regulation (a Statutory Provision) includes:
(i) that Statutory Provision as amended or re-enacted from time to time; and
(ii) a statute, regulation or provision enacted in replacement of that Statutory Provision.
(g) including and similar expressions are not words of limitation.
(h) where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
(i) headings and the table of contents are for convenience only and do not form part of this Agreement or affect its interpretation.
(j) a provision of this Agreement must not be construed to the disadvantage of a Party merely because that Party was responsible for the preparation of this Agreement or the inclusion of the provision in it.
- Licence to use the Software
2.1 Limited Licence
Hicaliber grants the End User a non-exclusive, non-transferable, limited Licence to use the Software combined with the Hosting for the Term in exchange for the Licence Fee paid by the End User. The End User agrees that:
(a) only one End-User’s Website per Licence to use the Software is to be used on My Digital Partner Servers;
(b) any Documentation that may or may not be provided (as the case may be) with the Software must only for the purpose of which it is provided.
2.2 Ownership of the Software
(a) Hicaliber retains all right, title and interest in and to all Intellectual Property in the Works embodied in the Software.
(b) End Users acknowledge that they do not acquire any Intellectual Property Rights, either express or implied in the Software or the Hosting and the Documentation beyond the terms contained in this EULAHA.
2.3 Ownership and control of Data
(a) Hicaliber acknowledges that it does not own the data uploaded to its My Digital Partner Servers by End Users.
(b) End Users acknowledge that if Hicaliber is notified that any information appearing on an End User’s Website represents a breach of copyright or other intellectual property infringement, then Hicaliber may, at its sole elect to remove and take the End User’s Website offline and immediately remove the infringing material without notice to the End User.
End Users agree to pay Licence Fee applicable to the Packages they have selected for the Licence Term in advance by credit card or direct debit. End Users agree to pay for all excess data charges and any other charges as described at My Digital Partner Website: http://blackpepperdigital.com.au/pricing
Any such excess data charges will be billed to the End Users nominated credit card or direct debit account at the end of each Licence Term.
2.5 Third Party Licences
The Software may incorporate third party open source or proprietary software. Copyright information and open source licence information, as applicable, for any incorporated software can be sourced online.
- Service levels
3.1 Support obligations
Provided that the Software functions and is fit for purpose, Hicaliber has no obligation to provide support, maintenance, upgrades, modifications or new releases of the Software.
Data limits are provided at http://blackpepperdigital.com.au/pricing
Hicaliber will ensure that the Software performs according to the Service Levels.
Without limiting this Hicaliber will, to the extent required by this Agreement:
(a) provide such support as is necessary to ensure the Software performs in accordance with the Service Levels;
(b) provide the End User with FTP access to its End User’s Website on request;
(c) consult as necessary with the End User in order to provide such information relevant to the Software as the End User reasonably requires concerning the current performance of the Software;
(d) cooperate with any service review procedures reasonably implemented by the End User and described in the schedule; and
(e) implement such recommendations as may reasonably be required in order to ensure the Services continue to comply with the requirements of this agreement.
3.2 Responsibility for Viruses
Hicaliber will use reasonable endeavours to ensure that no viruses or similar Software faults are coded or introduced into the system as a direct result of the provision of the Services or as the direct result of an act or omission of it’s Officers or Agents.
- Specific prohibitions on Use of the Software
End Users agree that they must not:
(a) use the Software for any purpose or in any manner other than as provided in this EULAHA;
(b) use the Software in any way that could damage the reputation of Hicaliber or the goodwill or other rights enjoyed by Hicaliber;
(c) permit any third party to obtain access to the Software;
(d) reproduce, make error corrections to or otherwise modify or adapt the Works as provided in the Software or create any derivative works based on the Software;
(e) de-compile, disassemble, decrypt, or otherwise reverse engineer the Software or permit any third party to do so; or
(f) transfer, sublicence, rent, lease or lend the Software or use it for commercial time sharing or service bureau use;
(g) modify or remove any copyright or proprietary notices associated with the Software;
(h) cause email to be sent using the Software that is not compliant with the Spam Act 2003 (Cth). Any such emails must include a functioning email unsubscribe facility; and
(i) comply with all local laws in using the Software in their jurisdiction.
- Hicaliber take down procedure for End Users Infringing Content
Hicaliber does not monitor Content uploaded to its Servers by End Users using the Software. Hicaliber commits to remove all Content as soon as practical after being notified that Content may be a breach of copyright or other Intellectual Property rights, is defamatory or otherwise claimed to be illegal.
End Users consent to Hicaliber using the take down procedure which is provided on Hicaliber’s Website, should it be notified of a breach of Copyright or other Intellectual Property Rights in relation to Content uploaded to its Servers by an End Users.
- Warranty disclaimer
(a) To the fullest extent permissible by law, the Software and the Documentation are provided to the End User without any representations or warranties. End Users agree to use the Software and the Hosting services at their sole risk.
(b) Nothing in this EULAHA excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition implied or imposed by legislation which cannot be lawfully excluded or limited. Such legislation includes the Australian Consumer Law which contains guarantees that protect the purchasers of goods or services in certain circumstances, each a non-excludable provision.
(c) Subject to Hicaliber’s obligations under the non-excludable provisions, and to the fullest extent permissible by law, Hicaliber expressly disclaims all warranties of any kind with respect to the Software and the Hosting Services, whether express, implied, statutory, or arising out of the course of performance, course of dealing or usage of trade including any warranties or merchantability, fitness for a particular purpose, satisfactory quality, accuracy, title of non-infringement.
6.2 Limitation of liability
Subject to Hicaliber’s compliance with the non-excludable provisions and to the fullest extent permissible by law, Hicaliber is not liable (whether in Contract or Tort) for anything the End User does to a third party as a result of using the Software:
(a) for any inability to access to data the End User’s Website;
(b) for loss or corruption of data, loss of business, loss of profits, loss of revenue and anticipated savings, business interruption of the like regardless of whether the loss is direct or indirectly caused by use of the Software.
(c) for any indirect, incidental, punitive, special, or consequential loss or damage whatsoever, in each case, arising out of the use or inability to use the Software or Documentation , even if Hicaliber has been advised of the possibility of such damages or if such damages are foreseeable. Subject to the obligations of Hicaliber under the Non-excludable Provisions and to the fullest extent permissible by law, in no event will Hicaliber’s liability for all damages exceed the amounts actually paid by End Users to Hicaliber for the Software.
(d) To the fullest extent permitted by law, the liability of Hicaliber for a breach of a non-excludable condition is limited to:
(i) in the case of the supply of goods:
I. replacement of the goods;
II. supply of equivalent goods;
III. repair of the goods;
IV. payment of the cost of replacing the goods or of acquiring equivalent goods; or
V. the payment of the cost of having the goods repaired.
(ii) in the case of the provision of services:
I. the supplying of the services again; or
II. payment of the cost of having the services supplied again.
(e) Notwithstanding this clause 6.2 or anything else contained in this EULAHA, neither Party’s liability for death or personal injury resulting from its own negligence will be limited.
End Users indemnify, defend and hold harmless Hicaliber in respect of all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal fees on a full indemnity basis), in connection with any of the following:
(a) any breach of this Agreement
(b) End Users negligent acts or omissions; or
(c) End Users use of the Software, including any third party claims made in connection with, or arising out of, Your use of the Software and Documentation.
7.1 Termination by Hicaliber
(a) Hicaliber can terminate this Agreement without notice if:
(i) it no longer has the right to provide the Software or provide the Hosting service to End Users for any reason whats oever;
(ii) its agreement is terminated for any reason whatsoever;
(iii) the Licence from Hicaliber is terminated for any reason;
(iv) the End Users Account’s nominated credit card or direct debit account is unable to be charged the Licence Fee on two successive attempts.
(v) the End User commits a breach of any of the material terms and conditions of this Agreement.
7.2 Termination for non-payment
Hicaliber may terminate this EULAHA at any time for non-payment if the Licence Fee is not paid within fourteen (14) days of the End Users credit card or account failing to be debited by Hicaliber.
7.3 Termination by End User
The End User may terminate this Agreement by providing thirty (30) days notice in writing to Hicaliber.
7.4 Effect of Termination
(a) If this EULAHA is terminated for any reason whatsoever, then Hicaliber may on the provision of a reasonable period of notice, remove the End User’s Website after providing the End User with the opportunity of migrating its data.
(b) Although export and backup mechanisms exist in the Software, the End User ’s Content is stored on the server using a proprietary system and so consequently no guarantees are given that the End User ’s Content can be migrated to any other system.
- Terms and conditions of Hosting
8.1 Third Party Software
Hicaliber may at its sole discretion allow the End User to run third party software on its server. Each Software to run a third-party Software will be considered on a case-by-case basis and an extra charge may be incurred based on system resources used and any operational maintenance needed. No support for third party software will be provided unless otherwise agreed by both parties in writing.
8.2 Technical support
Hicaliber does not provide technical support on non-server issues. Hicaliber will not respond to emails pertaining to such requests. This includes but is not limited to, all 3rd party software, PHP, Java, CGI, scripts, Real Audio/Video, HTML, MySQL, Telnet, FTP, and Email clients.
8.3 Excessive Use
Any End User’s Website that is deemed as impairing the performance of Hicaliber’s servers either by high storage utilisation, high bandwidth usage, or high CPU usage will be deemed to be an Excessive Use Site. Excessive Use Sites are classified at the sole discretion of Hicaliber, although they will always be in excess of the daily average of the established limits described at http://blackpepperdigital.com.au/pricing
(a) All the End User’s files, information and mail stored on Hicaliber’s servers will be preserved for 14 days from the date of default. If full payment is not received within 14 days of default, all the End User’s files, information and mail stored on the Hicaliber’s servers may be deleted.
(b) If the End User wishes to use the service again, the End User must re-apply as a new End User. In this case, an activation fee will be required.
8.5 Consent to the provision of information to third Parties
End Users acknowledge that:
(a) their personal information may be provided to third parties in order for the Software to operate effectively.
(b) information about them may be sent between countries to other entities that Hicaliber has commercial contracts with.
(c) Any information provided to third parties or sent offshore will be confidential and all reasonable efforts to keep the data confidential will be made by Hicaliber.
(a) Hicaliber will make back-up copies of the End Users data daily. Hicaliber will retain back-up copies for a minimum period of seven (7) days.
(b) If the End Users stored data is lost or altered, the End User will bear the direct and indirect costs of restoring the data.
8.7 Permitted Down Times
Hicaliber may suspend or interrupt End Users access to the Software and the Hosting services, and will not be liable to any extent if:
(a) it provides reasonable notice of not less than five (5) days to End Users of a period of outage, which must be scheduled to create minimal interference with End Users’ Websites.
(b) the suspension or interruption is caused by any act or omission of the End User or the (including where a circuit breaker is activated);
(c) the suspension or interruption is caused by any act or omission of any third party, or any event, which is out of the reasonable control of the Company including any ISP or local problems (such as Browser or DNS caching), DoS, DDoS attacks, exploits or hacking;
(d) the Hicaliber is prevented from reinstating the Services due to any act or omission of the End Users Representatives or any third party whom is out of the reasonable control of Hicaliber;
(e) the interruption continues for five (5) minutes or less in any calendar month period;
(f) the suspension or interruption is an agreed period of shut-down or outage;
(g) the interruption is due to any requirement of any Authority or Government Body with jurisdiction over the EULAHA; or
(h) a period of shut-down, including any refusal, suspension or termination of the Supply, pursuant to and notified in accordance with, the terms of this Agreement.
Without limiting the generality of this clause and for the avoidance of doubt, this clause applies to interruptions to the Services caused by power, temperature and humidity control interruptions and failures.
8.8 Service Level
Hicaliber will provide a service level of 99.982% network uptime per month excluding Permitted Down Times.
In the event that the Service Level is not met for any given month, upon request by the End User a pro-rata rebate will be applied against the Licence Fee payable at the commencement of the next term. No rebate applies nor is payable if the Licence is terminated.
- Miscellaneous provisions
Hicaliber may assign this Agreement by notifying the End User of the Assignment. The End User cannot assign the terms and conditions contained in this Agreement without the express consent of Hicaliber.
This Agreement may only be altered in writing signed by each Party. Writing in this case include electronic mail sent by an authorised Office of Hicaliber.
9.3 Entire Agreement
This Agreement contains the entire Agreement between the Parties in connection with its subject matter and supersedes all previous agreements or understandings between the Parties.
9.4 Governing law and jurisdiction
This Agreement is governed by the law applicable in the State of Queensland, Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the Courts of Queensland, Australia.
9.5 Intellectual Property Rights
Nothing in this Agreement constitutes a transfer of any Intellectual Property Rights from Hicaliber to the End User.
Part or all of a provision of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining parts of the provision or provisions of this Agreement continue in force.
The following clauses survive termination of this Agreement clause 4, 6, 9.4, 9.5 and 9.7 survive termination of this Agreement.
By using the Software the End User agrees to the terms and conditions contained in this EULAHA.