HOSTING

1. AGREEMENT. In this Web Hosting Service Agreement ("Agreement") "you" and "your" refer to each customer, "we", us" and "our" refer to Harley Young Media or  HYM. "Services" refers to the services provided by us, including our web hosting services. This Agreement explains our obligations to you, and explains your obligations to us for various Services. By selecting our Services you have agreed to establish an account with us for such Services. By using the Services under this Agreement, you acknowledge that you have read and agree to be bound by all terms and conditions of this Agreement and any pertinent rules or policies that are or may be published by us.

2. FEES, PAYMENT AND TERM. As consideration for the services you have selected, you agree to pay us the applicable service(s) fees. All fees payable hereunder are non-refundable. As further consideration for the Services, you agree to: (1) provide certain current, complete and accurate information about you as required by the registration process and (2) maintain and update this information as needed to keep it current, complete and accurate. All such information shall be referred to as account information ("Account Information"). You hereby grant us the right to disclose to third parties as needed to maintain your services. By submitting to this Agreement, you represent that the statements you have made in are true and you will not use our Services for any unlawful purpose.

2a. BILLING. If you have purchased a package that is billed monthly you will receive an invoice monthly issued on the day of your first purchase of ANY products. If you have purchased a package that is billed yearly you will receive an invoice every year issued on the day of your first purchase of ANY products.

2b. CANCELLATION. If you do not wish to renew your Monthly or Annual Service agreement you must cancel your account in writing. Canceling an account does not equal "refunding" an account. A cancellation refers to the removal of user materials from our systems and the deactivation of services. You will be required to pay any outstanding charges owed. Domain Name Registrations CANNOT be cancelled. As the purchaser of the Domain Name you are the Domain Name's owner until the term of the Domain Name's registration has expired.

2c. BANK FEES. All bank fees incurred by us due to uncovered cheques will be passed on to you.

2d. SERVICE CHANGES. You are allowed to change your Web Site Hosting package once for free. Changing your Package means moving from an FTP account to a FrontPage account or from Monthly billing to Yearly billing. After moving once you will be charged $49.95 per alteration.

3. BILLING FOR ADDITIONAL FILE TRANSFERS. HYM automatically bills customers for excess file transfer ("bandwidth") usage. Customers are allocated a set amount of file transfer with their hosting service depending on the package level purchased. If you exceed the amount of file transfer you receive as part of your package you will be billed $4.95 per 100MB. This charge is incurred without notification. The overage is calculated by monitoring the amount and size of the files transferred from your account. These charges are made at the sole discretion of HYM and are non disputable.

4. ILLEGAL USE. HYM servers may be used for lawful purposes only. Transmission, storage, or distribution of any information, data, or material in violation of any applicable law or regulation is prohibited. This includes, but is not limited to: copyrighted material; trademarks; trade secrets or other intellectual property rights used without proper authorization; material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws.

5. SECURITY. Violations of system or network security are prohibited and may result in criminal and civil liability. Examples include but are not limited to the following: unauthorized access, use, probing, or scanning of systems security or authentication measures, data, or traffic; interference with service to any user, host, or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system, broadcast attacks; forging of any TCP-IP packet header or any part of the header information in an email or a newsgroup posting.

6. SERVER ABUSE. Any attempts to undermine or cause harm to a HYM server or customers are strictly prohibited. This includes the abusive sending of unsolicited email, also known as "Spam."

7. CUSTOMER CONDUCT. You are solely responsible for the contents of your transmissions through HYM CD. Your use of the HYM service(s) is subject to all applicable local, state, national and international laws and regulations. You agree: (1) to comply with AUSTRALIAN law regarding the transmission of technical data exported from the AUSTRALIA through HYM; (2) not to use HYM for illegal purposes; (3) not to interfere or disrupt networks connected to the HYM; and (4) to comply with all regulations, policies and procedures of networks connected to HYM. You agree not to transmit through HYM service(s) any unlawful, harassing, libelous, abusive, threatening, harmful, or otherwise legally objectionable material of any kind or nature. You further agree not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. Attempts to gain unauthorized access to other computer systems are prohibited. You shall not interfere with another customer's use and enjoyment of the HYM service(s) or another entity's use and enjoyment of similar services. HYM may, at its sole discretion, immediately terminate your service or any agreement with us should your conduct fail to conform to these terms and conditions.

8. COPYRIGHT VIOLATIONS & INTELLECTUAL PROPERTY VIOLATIONS. You agree not to engage in any activity that infringes or misappropriates the intellectual property rights of others, including copyrights, trademarks, service marks, trade secrets, software piracy, and patents held by individuals, corporations, or other entities. Also, you agree to not engage in activity that violates privacy, publicity, or other personal rights of others. HYM is required by law to remove or block access to customer content upon receipt of a proper notice of copyright infringement. It is also HYM policy to terminate the privileges of customers who commit repeat violations of copyright laws.

9. ACTIONS TAKEN BY HYM. Your failure to meet or follow any of the Terms and Conditions set forth by HYM is grounds for account deactivation. HYM will be the sole arbiter as to what constitutes a violation of its Terms and Conditions. HYM reserves the right to remove any account without prior notice. When HYM becomes aware of an alleged violation of its Terms and Conditions, HYM will initiate an investigation. During the investigation, HYM may restrict a customer's access in order to prevent further potentially unauthorized activity. Depending on the severity of the violation, HYM may, at its sole discretion, restrict, suspend, or terminate a customer's web hosting account and/or pursue other civil remedies. If such violation is a criminal offense, HYM will notify the appropriate law enforcement authorities of such violation.

10. MODIFICATIONS TO AGREEMENT. You agree, during the period of this Agreement, that we may: (1) revise the terms and conditions of this Agreement; and (2) change the services provided under this Agreement. Any such revision or change will be binding and effective immediately on notification to you by e-mail or regular mail as per the Notices section of this agreement, Section 19. If you do not agree with any revision to the Agreement, you may terminate this Agreement at any time by providing us with notice by e-mail or regular mail as per the Notices section of this agreement, Section 19. Notice of your termination will be effective on receipt and processing by us. You agree that, by continuing to use the Services following notice of any revision to this Agreement or change in service(s), you abide by any such revisions or changes.

11. MODIFICATIONS TO YOUR ACCOUNT. In order to change any of your account information with us, you must email mail us with the details of the modifications.

12. ANNOUNCEMENTS. We reserve the right to distribute information to you that is pertinent to the quality or operation of our services and those of our service partners. These announcements will be predominately informative in nature and may include notices describing changes, upgrades, new products and services offered by HYM or 3rd Parties or other information to add security or to enhance your identity on the Internet.

13. LIMITATION OF LIABILITY. You agree that our entire liability, and your exclusive remedy, with respect to any Services(s) provided under this Agreement and any breach of this Agreement is solely limited to the amount you paid for such Service(s). We and our contractors shall not be liable for any direct, indirect, incidental, special or consequential damages resulting from the use or inability to use any of the Services or for the cost of procurement of substitute services. We disclaim any and all loss or liability resulting from, but not limited to: (1) loss or liability resulting from access delays or access interruptions; (2) loss or liability resulting from data non-delivery or data mis-delivery; (3) loss or liability resulting from errors, omissions, or misstatements in any and all information or services(s) provided under this Agreement; (6) loss or liability resulting from the development or interruption of your Web site or email service. You agree that we will not be liable for interruption of business, or any indirect, special, incidental, or consequential damages of any kind (including lost profits) regardless of the form of action whether in contract, tort (including negligence), or otherwise, even if we have been advised of the possibility of such damages. In no event shall our maximum liability exceed one hundred ($100.00) dollars.

14. NO GUARANTY. You agree that, by registration or reservation of your chosen domain name, such registration or reservation does not confer immunity from objection to the registration, reservation, or use of the domain name.

15. DISCLAIMER OF WARRANTIES. You agree and warrant that the information that you provide to us to register for our Services is, to the best of your knowledge and belief, accurate and complete, and that any future changes to this information will be provided to us in a timely manner according to the modification procedures in place at that time. You agree that your use of our Services is solely at your own risk. You agree that such Service(s) is provided on an "as is," "as available" basis. We expressly disclaim all warranties of any kind, whether express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement. We make no warranty that the Services will meet your requirements, or that the Service(s) will be uninterrupted, timely, secure, or error free; nor do we make any warranty as to the results that may be obtained from the use of the Service(s) or as to the accuracy or reliability of any information obtained through the our e-mail service or that defects in the Services software will be corrected. You understand and agree that any material and/or data downloaded or otherwise obtained through the use of the our e-mail service is done at your own discretion and risk and that you will be solely responsible for any damage to your computer system or loss of data that results from the download of such material and/or data. We make no warranty regarding any goods or services purchased or obtained through the e-mail service or any transactions entered into through the e-mail service. No advice or information, whether oral or written, obtained by you from us or through the e-mail service shall create any warranty not expressly made herein. Some jurisdictions do not allow the exclusion of certain warranties, so some of the above exclusions may not apply to you.

16. REVOCATION. You agree that we may terminate your right to use our Services if the information that you provided to register for our Services, or subsequently to modify it, contains false or misleading information, or conceals or omits any information we would likely consider material.

17. RIGHT OF REFUSAL. We, in our sole discretion, reserve the right to refuse to host your website or register you for other Services, or to terminate the Services we provide you within thirty (30) calendar days from receipt of your payment for such services. In the event we do not host your website or register you for other Services within such thirty (30) calendar day period, we agree to refund your applicable fee(s). You agree that we shall not be liable to you for loss or damages that may result from our refusal to host your website or register you for other Services.

18. NON-AGENCY . Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties.

19 . NOTICES. Any notice, direction or other communication given under this Agreement shall be in writing and given by sending it via e-mail or via regular mail. In the case of e-mail, valid notice shall only have been deemed to be given when the sender has obtained an electronic confirmation of delivery. E-mail notice shall be sent to you at the e-mail address you have provided in your registration application or as updated from time to time. Mail shall be sent to us at HYM; 21 Cairns Street , Red Hill QLD 4059, and mail shall be sent to you at the mailing address you have provided in your registration application or as updated from time to time.

20. ENTIRETY. You agree that this Agreement and the rules and policies published by us are the complete and exclusive agreement between you and us regarding our Services. This Agreement supersedes all prior agreements and understandings, whether established by custom, practice, policy or precedent.

27. DOMAIN NAMES. Individual Top Level Domains carry their own Terms and Conditions from the Domain Servicing Company. If you are buying a .biz, .info, or .uk domain please read the following:

28. DIGITAL DESIGN SERVICES. HYM designed web sites are the sole property of HYM. By purchasing such service you are purchasing a limited license to use the Web Site Designs for the purpose of displaying a single web site on the HYM Web Hosting infrastructure. You may not sub-license, assign, sell or transfer this license to anyone else without prior written consent from HYM.

29. ACCEPTANCE OF AGREEMENT. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS.

DESIGN SERVICES

All services provided by Harley Young Media are subject to the following terms and conditions. Please read them carefully as they, together with your purchase order and quotation or proposal, form the agreement between you and HYM. These terms and conditions may change from time to time, and the most up-to-date version can be found online at www.hym.com.au/terms.php.

 1. PROVISION OF SERVICES
(a)(i) Quotations and proposals provided by HYM are valid for seven (7) days from date of issue only. Older quotations and proposals are subject to review and change.
(a)(ii) Any purchase order issued by HYM will only be valid when the quotation or proposal is accepted in accordance with these terms and conditions.
(b) Services will be provided as itemised in the quote and purchase order. Any changes, including changes to agreed content, artwork, scheduling or any other terms must be agreed in writing only by letter, fax or email correspondence.
(c) Quotations and proposals remain the property of HYM at all times and it is a condition of their provision that their contents, including any costings, concepts, strategies, solutions or recommendations, may not be disclosed to third parties at any time prior to HYM receiving written acceptance of the quotation or proposal accompanied by a deposit.
(d) HYM will use any resources it deems fit to fulfill a quotation or proposal. This includes, but is not limited to, discretion as to choice of software, materials, and contractors.
(e)(i) Any fees, costs and charges quoted for graphic design work by HYM are fees, costs and charges for conceptualisation and/or design of concepts only. Fees, costs and charges for amendments to delivered concepts do not form part of the fees, costs or charges as communicated by HYM in any written quotation or any price list.
(e)(ii) The first two rounds of amendments to delivered design concepts will always be carried out by HYM free of charge, unless otherwise noted. Any further changes will be invoiced at an hourly rate of $60.00 (+GST). This excludes errors made by HYM, which will be corrected free of charge up to and including the final proof stage (see Section 6A herein).
(f) All prices listed in any printed, published or electronic/online price list are subject to change without notice.

2. PAYMENT TERMS
(a)(i) Quotations and proposals must be accepted strictly by signing the quotation or proposal and returning it by fax or mail to HYM only. Acceptance of the quotation or proposal must be accompanied by a 50% deposit unless otherwise agreed in writing.
(a)(ii) Notwithstanding clause (a)(i) of this section, acceptance of a quotation or proposal must be accompanied by full payment where the total value of the quotation is less than seven hundred and fifty dollars ($750.00), unless otherwise agreed in writing.
(b)(i) Payments, including deposits, may be made by cash, cheque, direct bank transfer or credit card (Mastercard and Visa only, 5% surcharge applies).
(c) Design work will not commence until the deposit has been received and cleared.
(d) Final payment is due and payable prior to delivery of the final amended designs and/or artwork and/or related printwork, websites or any electronic files. Websites will not be published on the Internet until final payment is received.
(e) Credit terms will not apply unless agreed in writing prior.
(f)(i) Completion of an account form is required for open billings design work. By completing and returning the account form, you agree to be bound by these terms and conditions.
(f)(ii) Open billings design work will be billed at an hourly rate of $60.00 (+ GST) and will be invoiced at weekly intervals. Open billings invoices are due and payable immediately.
(g) Where any amounts due and payable, including amounts due and payable under credit terms or circumstances covered by clause (h) of this section, become overdue, a late payment penalty will be payable at 5.00% per day.
(h)(i) Where progress payments are stipulated in a quotation or proposal, they will fall due and payable as specified in the quotation or proposal.
(h)(ii) HYM reserves the right to request progress payments where parts or components of a job or project in progress have been completed and no instructions have been received in relation to the outstanding parts or components of the job or project for more than ten working days since the completion of the completed parts or components. The progress payment will be due and payable immediately.
(h)(iii)Overdue progress payments may result in suspension of design works in progress until such time as all amounts in arrears including interest are paid in full.
(i) All fees and charges incurred by HYM on your behalf will become due and payable where services are discontinued or suspended as a result of your failure to comply with these terms and conditions (see Part 3 herein).
(j) All fees and charges are payable in full and without any offsets or deductions unless otherwise agreed in writing.
(k) GST is payable on all services provided by HYM. If you are GST exempt, you must provide HYM with a notice of exemption from the ATO.
(l)(i) HYM reserves the right to recover monies due on unpaid invoices, plus all associated recovery costs, including legal and administrative costs, by any means it sees fit.
(l)(ii) HYM reserves the right to recover intellectual property in cases of non-payment by any means it sees fit.

 3. PROGRESS, CANCELLATION AND TERMINATION
(a)(i) Upon delivery of design concepts by HYM to you, you have ten working days to review the concepts and communicate in writing to HYM your preferred concept, and, in addition, any desired changes or corrections in respect of the preferred concept.
(a)(ii) Where you have not communicated your preferred concept and changes and/or corrections within ten working days, HYM will send you a written reminder by email, letter or fax. If you do not communicate your preferred concept and changes and/or corrections within a further five working days of this reminder, HYM will send you a final reminder notice in writing by email, letter or fax, to which you have five working days to respond.
(a)(iii) Where you do not advise HYM of your preferred concept and changes and/or corrections in accordance with clauses (a)(i) and (a)(ii) of this section, HYM reserves the right to terminate the project immediately and issue a final invoice, payable immediately.
(b) Cancellation of an accepted quotation or proposal by you must be communicated to HYM both by telephone and in writing (letter, fax or email).
(c) Once design work has commenced, the deposit is not refundable. Where the project is cancelled at your request, any costs accrued by HYM over and above the deposit will be invoiced to you and will be due and payable immediately.
(d) Where design work has been agreed to and the project is cancelled at your request and where the design work has not yet commenced, a termination fee of 25% of the agreed quotation or proposal or the total of costs accrued by HYM to date will apply (whichever is greater).
(e)(i) Projects in progress can be postponed for a maximum of thirty days at your request in writing. All outstanding costs to date will be invoiced to you and be payable immediately.
(e)(ii) Where you postpone a project in progress in accordance with clause (e)(i) of this section, work will be restarted and completed at your instruction in accordance with the specifications of the original quotation.
(e)(iii) Notwithstanding clause (e)(ii) of this section, work resumed after postponement will be subject to cost revision. Work will not restart until revised costing (if any) has been agreed to in writing.
(e)(iv) Where works in progress have been postponed in accordance with clause e(i) of this section and work has not be restarted within thirty days of such postponement, HYM reserves the right to cancel the project, and any accrued costs will be invoiced to you and be payable immediately.
(f) HYM reserves the right to terminate a project and/or services where (i) there are outstanding invoices, or (ii) there is a material breach of these terms and conditions.
(g) HYM will be entitled to cancel any agreement with you where you become insolvent, enter into voluntary arrangements with creditors, enter receivership or cease trading for any reason. This will be done without prejudice to any other rights or remedies available to HYM. Amounts owing will be invoiced, due and payable immediately.

 4. SERVICE TERMS
A. General Conditions
(a) You agree to electronically supply all text, documentation, images, artwork or any other necessary material for HYM to complete agreed work, within one working week of acceptance of the quotation or proposal unless otherwise agreed in writing. HYM will not be responsible for delays to agreed scheduling and/or failure to meet deadlines where you fail to adhere to this condition. Costs incurred by HYM arising out of delays caused by breach of this condition will be charged to you.
(b) You must ensure all artwork and any other material HYM is asked to use meets all relevant Australian legal requirements, including but not limited to compliance with intellectual property rights legislation and/or statutory or common law personal rights or proprietary rights.
(c)(i) Compliance with intellectual property rights legislation means you will obtain all necessary permissions, licenses or any other authorisation to use copy, artwork, graphics, registered names, trademarks, patents, logos or any other material you provide to HYM so that their use by HYM does not constitute an unauthorised dealing within the meaning of the Copyright Act 1968 (as amended).
(c)(ii) Compliance with clause (c)(i) of this section will be implied by your supply of any material mentioned in clause (c)(i) to HYM. It will be construed in the form of a guarantee to HYM that material complies with clause (c)(i) of this section.
(c)(iii) HYM will be indemnified against any claims and/or costs arising from your failure to comply with any part of clause (c) of this section.

B. Other graphic design conditions, print conditions
(a)(i) Unless otherwise agreed, any required liaison with a printer other than one nominated by HYM will be charged at a per hour rate of $60.00 (+GST).
(a)(ii) Where printing of a design or designs is organised through HYM, this service will be subject to any additional terms and conditions as set out on the printing quotation provided to you by HYM.
(a)(iii) Printing organised through HYM must be paid for upfront and in full prior to upload to print.
(b)(i) HYM will always supply a final proof to you for review and approval prior to delivery and/or printing and/or publication. You must examine the final proof carefully for errors. When you are satisfied with the final proof, you must sign in the area provided (if hardcopy), or convey explicit approval of electronically supplied proofs in writing (email, fax or mail). Any errors or exceptions must be noted in writing and returned with the proof to HYM for correction in accordance with these terms and conditions.
(b)(ii) Alterations to previously approved work will be invoiced at $60.00 per hour (+GST).

C. Other web design conditions
(a) “Web design” refers to the design and/or development of any one or combination of the following: (i) HTML or flash websites, (ii) online e-Commerce modules, applications or components, (iii) website content management systems, (iv) web or electronic applications, (v) electronic animations.
(b) Web design quotations and proposals are for design and upload to a host server only unless otherwise agreed in writing. On-site installation or setup, website maintenance and any other ongoing support services are subject to separate quotations and proposals unless otherwise agreed in writing.
(c) Web design maintenance and/or updating (including additions and deletions) will be performed in accordance with a separate purchase order for such services.
(d) HYM will not be held responsible for any alterations whatsoever to web designs performed by you or any third party.
(e)(i) HYM reserves the right to exclude offensive or illegal material you ask to be included in your web design.
(e)(ii) Notwithstanding clause (e)(i) of this section, HYM will be indemnified by you against any claims and/or costs arising from material incorporated at your request.
(f) All care will be taken to provide reliable goods to you, but HYM accepts no responsibility or liability for any losses arising out of the operation of the web design, either by you or your clients. This includes loss of data, profits, interruption to service, and any damage or consequential loss.
(g)(i) You will be given an opportunity to fully test and review your web design(s) prior to them being uploaded and published on the Internet or implemented in accordance with your purchase order. All errors, including any failures to meet specification, must be brought to HYM’s attention for correction at this stage. Once the test version is approved, any further changes will be charged at cost.
(g)(ii) Approval of web design(s) must be provided to HYM in writing, stating that you have thoroughly reviewed the web design(s) and found the web design(s) to be free from error and completed to specification, and that, as such, you approve the web design(s) for final upload and/or implementation.

5. INTELLECTUAL PROPERTY
(a) Working files and concept/design development files remain the property of HYM at all times unless otherwise agreed in the quotation or proposal or in writing.
(b) Ownership and intellectual property rights in any works created by HYM remains with HYM until payment has been received and cleared. When payment has been received and cleared, ownership and intellectual property rights in the delivered work becomes yours. Works for the purpose of this clause refers to any literary, artistic or dramatic work as defined in the Copyright Act 1968 (as amended).
(c) Notwithstanding clause (b) of this section, moral rights to works are retained by and remain with HYM at all times.
(d) Pursuant to clause (c) of this section, HYM explicitly retains the right to use, publish, reproduce, display, distribute or create derivative works from any designs, artwork, copy, concepts, or web designs to promote or publicise HYM and/or foster recognition of HYM as the author of the material.

6. GENERAL TERMS, INDEMNITY, LIMITATION OF LIABILITY
A. Errors
(a) HYM will exercise all care to ensure design work is free from error. HYM will correct any and all errors made by HYM up to and including the proofing and/or testing stages of a design project free of charge. Once the final proof or version is signed off by you, the cost of correcting any errors will be charged to you at the hourly rate of $60.00 (+GST).
(b) HYM will not be held responsible for any errors contained in artwork, copy or any other materials supplied by you. HYM does not proof any material in the absence of agreement in writing to the contrary. You must ensure supplied material is correct and up-to-date.

B. Indemnities and limitation of liability
(a) HYM makes no warranties or representations about the fitness or suitability of a proposed design solution. It is your responsibility to ensure that any service or solution proposed by HYM meets your requirements.
(b) Any express or implied statutory or otherwise terms, conditions, warranties, representations not included in these terms and conditions, including those of the client’s, are excluded.
(c) HYM and its employees and agents will not be liable for any losses, losses to profit or damage to goodwill, nor any direct, indirect, incidental, special, consequential or punitive damages incurred directly or indirectly out of services provided by HYM.
(d) Where any part of these terms and conditions is excluded, modified or voided under any legislation, the legislative provision will be deemed incorporated in these terms and conditions. Where more than one term, condition, warranty or remedy is available to you, HYM reserves the right to select the means by which any breach of such legislative provisions will be remedied, including, specifically, supplying the agreed service again where permitted.
(e) Notwithstanding clause (B)(d) of this section, no terms excluded, modified or voided by legislation voids these terms and conditions in their entirety. Terms and conditions not affected by legislation remain in full force and effect.
(f) All property supplied to HYM to carry out design work is at your own risk. If your material is valuable or irreplaceable, you should ensure materials are insured or, in the case of electronic material, securely backed up. All property will be returned to you at the completion of the project.