Terms of Service

This is an agreement formed between you (being the company, or registered business as set out in the Registration Form) (you) and Zen115 Hosting  (Zen115 Hosting). This Terms of Use Agreement does not apply if you obtained the Zen115 Hosting Services through one of our Zen115 Hosting Resellers. In such circumstances, the terms upon which the Zen115 Hosting Services are supplied to you will be governed by the terms of the agreement between you and the Zen115 Hosting Reseller. This Terms of Use Agreement describes the terms and conditions upon which Zen115 Hosting may provide to you and your customers (Users) the use of certain Services (Zen115 Hosting Services). Additional terms and conditions may apply to certain specific services and such additional terms and conditions form a part of this Terms of Use Agreement. 

If you have any questions about this Terms of Use Agreement please contact admin@Zen115hosting.com
Zen115 Hosting may amend this Terms of Use Agreement at any time by posting the amended terms on the site Zen115 Hosting.com.au. The amended terms will automatically be effective from the date that they then appear. This Terms of Use Agreement may not be otherwise amended. This Terms of Use Agreement was last revised on [20th] March 2002.

1. ELIGIBILITY TO USE Zen115 Hosting SERVICES
Zen115 Hosting Services are available only to companies, and registered businesses who can form legally binding contracts under the law of their jurisdiction and who have properly authorised Zen115 Hosting to charge any relevant Fees against their nominated credit card in relation to use of the Zen115 Hosting Services. Applicants for Zen115 Hosting Services are required to submit a valid ACN, ABN or ARBN. when applicable

Zen115 Hosting uses third parties for some of it's  registration services and also for some design and coding work.

If you are a company or an entity other than an individual, by completing and submitting the Registration form you represent and warrant to Zen115 Hosting that the person completing and submitting the Registration form is fully authorised to contract on your behalf and in your name. 

2. TERM
The term of this Terms of Use Agreement commences on the date on which Zen115 Hosting accepts your application to receive the relevant Zen115 Hosting Services (Acceptance Date) and continues until terminated under this Terms of Use Agreement or otherwise. Clauses 7, 8, 9, 10, 12, 13 and 14 will survive the termination or expiry of this Terms of Use Agreement.

3. Zen115 Hosting SERVICES

The Zen115 Hosting Services are those services which are described on the Zen115 Hosting Website from time to time. This Terms of Use Agreement governs the terms on which any Zen115 Hosting Service provided to you by Zen115 Hosting is supplied.

Zen115 Hosting reserves the right to change the nature, type and/or extent of the Zen115 Hosting Services it offers without notice, at any time. Zen115 Hosting will notify you of any such changed by posting information on the Zen115 Hosting Website.

Any information provided by Zen115 Hosting on its Website about the Zen115 Hosting Services (including, without limitation, information about eligibility criteria, duration of offers, liability for fees, amount of fees, extent of services, limitations on availability) forms part of the this Terms of Use Agreement. Zen115 Hosting reserves the right to amend or vary such information by posting such amended or varied information on the Zen115 Hosting Website and you agree that any such amendment or variation so posted on the Website is effective to vary this Terms of Use Agreement. In order to receive Zen115 Hosting Services you must:
- apply to Zen115 Hosting using the Registration Form; 
- pay or agree to pay any relevant Fees; and
- comply with any additional terms and conditions in relation to those services, including:
· in relation to Domain Name Services any policy, rules, procedures and terms applicable to top level domain name registrations (TLD Policy);
· in relation to free trials additional free trial terms [link to Attachment B].

Without limiting the provisions of clause 10, in relation to any Internet Access provided to you by Zen115 Hosting:
- You acknowledge and agree that other persons may also be responsible for the provision of Internet Access. The service is not guaranteed against faults, delays or outages which occur beyond Zen115 Hosting's control. 
- Zen115 Hosting will endeavour to make any Internet Access service available 24 hours a day 7 days a week, except for downtime which is necessitated through upgrades or remedial or preventative maintenance or undetermined faults which occur and are outside Zen115 Hosting's control.

In relation to any Domain Name Services provided to you by Zen115 Hosting:
- Zen115 Hosting will use its best endeavours to register for you on the TLD registry of your choice, the domain name requested in the Registration Form. Each domain name registration (if procured) is subject to any relevant TLD Policy.

For a number of reasons, it may not be possible for Zen115 Hosting to register your preferred domain name, including where the domain name is already registered or where such a registration is prohibited by the governing domain name registration authority in a jurisdiction. In these circumstances, you will have to choose an alternate domain name.

You may not subscribe for more than one package, either at the same time or sequentially, which is stated to be an introductory, trial or free offer, including without limitation Free Packages or free trials,

4. CONTENT
You must ensure that all information and material supplied by you to Zen115 Hosting (Content), its technical quality and any activity contemplated by this Terms of Use Agreement complies with all Applicable Laws (as defined in clause 15 below) and does not infringe or breach the rights (including Intellectual Property Rights) of any other person. You must also ensure that all of Your Information (as defined in clause 15 below) contained in the Content is accurate and up-to-date.
If Zen115 Hosting becomes aware that any Content stored by you using Zen115 Hosting Technology may contravene this Terms of Use Agreement, Zen115 Hosting may in its absolute discretion, and without any liability to you, exercise any of its rights under clause 13, or remove that information or any part of the Content from the Zen115 Hosting Technology without giving you Notice (as defined in clause 6(g)). Zen115 Hosting will use its reasonable endeavours to notify you if this involves any alteration or deletion of any of your Content. However, if Zen115 Hosting does not notify you, this will not affect Zen115 Hosting's right to remove that Content or any part of it.

5. FEES
You must pay the applicable Fees to Zen115 Hosting. By submitting the Registration Form, you authorise Zen115 Hosting to charge the applicable Fees in advance against your credit card as specified in the Registration Form. 

All prices are GST inclusive unless indicated to the contrary in which circumstances, the GST owed is payable by you to Zen115 Hosting in addition to all other amounts owed under this Terms of Use Agreement.

6. YOUR OBLIGATIONS AND REPRESENTATIONS
The use of Zen115 Hosting Services is limited to you, your employees, agents and contractors and you agree not to re-sell these services without the prior written consent of Zen115 Hosting. You agree to pay all Fees incurred by you, your employees, agents and contractors and any other person to whom you grant access or to whom you disclose your password or other access details.

You are responsible for ensuring that your activities in relation to the Zen115 Hosting Services are lawful. You must also use your best endeavours to ensure that Users of your Site abide by the obligations which you accept under this Terms of Use Agreement.
You must not:
- use the Zen115 Hosting Services in any way which is misleading or deceptive or likely to mislead and deceive or which is unlawful under Applicable Laws. This includes, for example, not reproducing, redistributing, retransmitting, republishing, communicating or commercial dealing with material without authorisation, which could be considered pornographic, obscene, defamatory, constitutes an illegal threat or violates export control laws or infringes the Intellectual Property Rights of others;
- spam, download material which is considered to be illegal or use the Internet Access service to intentionally or recklessly distribute viruses.
Unless otherwise agreed by Zen115 Hosting in writing, you must not in any way indicate or imply that Zen115 Hosting approves or guarantees the performance, description or quality of any of your Content, or any good, service or web site of yours or of any other person.

You hereby grant to Zen115 Hosting (and warrant that you have obtained) all authorisations, licences and consents necessary for Zen115 Hosting to perform its obligations and exercise its rights under this Terms of Use Agreement.

You acknowledge and agree that:
- Hosting & Email Packages must be hosted at a single domain or sub domain;
- Zen115 Hosting may temporarily deactivate or disconnect any of the Zen115 Hosting Services to carry out system maintenance, upgrading, testing or repairs, and you agree to provide all necessary assistance to Zen115 Hosting in relation to any such maintenance, upgrading, testing or repairs;
- Zen115 Hosting makes no representation as to the operation of the Site or Zen115 Hosting Technology or whether they will be uninterrupted or error free, that any information obtained from Zen115 Hosting is accurate, as to the title, fitness for a particular purpose, merchantability or standard of quality of any Zen115 Hosting websites or Zen115 Hosting Technology; 
- Zen115 Hosting does not supply any good or service to Users other than you and in your agreements with Users for the supply of goods or services by you, you must not include any provision that is inconsistent with this Terms of Use Agreement and must include provisions in such Terms of Use Agreements that exclude all responsibility and liability of Zen115 Hosting in relation to such supply; 
- in exercising any right under this Terms of Use Agreement, Zen115 Hosting will routinely assess whether the Content complies with this Terms of Use Agreement. However, you are solely responsible for ensuring that your Content complies; 
- an eligible company or registered business .

- Zen115 Hosting will archive your data on to backup mechanisms on a regular basis for the purposes of disaster recovery. In the event of equipment failure or data corruption, we will restore from the last recoverable archive. In the event of corruption of all our archives, or in the event that an old archive is used to restore your data, you should be prepared to upload your current data from your own back-up. This process requires that you maintain a recent copy of your data at your premises at all times as Zen115 Hosting does not warrant or represent that its last recoverable archive will contain your most recent data; and
- notices to and from either party (Notices) must be via email. Notices to Zen115 Hosting must be emailed to admin@Zen115 Hosting.com.au. Notices to you will be sent to the contact email address you may specify from time to time. Notice will be deemed to be given 24 hours after an email is sent, unless the sending party is notified that the email address is invalid.

7. INTELLECTUAL PROPERTY RIGHTS
You acknowledge that this Terms of Use Agreement does not assign to you any of Zen115 Hosting's Intellectual Property Rights (as defined in clause 15 below) in the Zen115 Hosting Technology, or in any material created by or provided by Zen115 Hosting on its web site in connection with the Zen115 Hosting Services or generated by the Zen115 Hosting Technology, unless otherwise stated.

You acknowledge and agree that all Intellectual Property Rights which arise as a result of any activity of Zen115 Hosting, or its employees, agents, suppliers or contractors under or in relation to this Terms of Use Agreement or as a result of the operation of any Zen115 Hosting Technology, vest in Zen115 Hosting on creation unless otherwise stated. 

Zen115 Hosting acknowledges that this Terms of Use Agreement does not assign to Zen115 Hosting any of your Intellectual Property Rights in any of your Content or trade marks, service marks, trade names and logos of you or your company or other entity, used or intended by you in connection with the site (Your Internet Marks).

You agree to grant to Zen115 Hosting the Internet Rights in relation to the Content and any part of it for the purpose of fulfilling its rights and obligations under this Terms of Use Agreement.

8. YOUR WARRANTIES AND REPRESENTATIONS
You represent and warrant to Zen115 Hosting that:
- you are and at all times will be able to grant to Zen115 Hosting the Internet Rights, licences and other rights contemplated by this Terms of Use Agreement to use all or part of the Content and Your Internet Marks free of all third party liens, claims and encumbrances;
- you are the true and lawful owner of the Intellectual Property Rights in the Content and the Your Internet Marks or you have obtained all necessary licences and approvals; and
- you have disclosed and will disclose to Zen115 Hosting any actual, threatened or potential litigation in which you have become or may be involved, which relates to the Content or Your Internet Marks, which may materially affect your ability to perform any of your obligations.

Nothing in this clause limits the generality of any other warranty or representation in this Terms of Use Agreement.

9. INDEMNITY
You must indemnify Zen115 Hosting against any action, liability, claim, loss, damage, proceeding, expense (including legal costs) (Claim) suffered or incurred by Zen115 Hosting arising from, or which is directly or indirectly, related to:
- your breach or non-observance of any term of this Terms of Use Agreement; 
- any breach or inaccuracy in any of your representations or warranties; or
- any action or claim brought by a third party which relates to all or any part of the Content or Your Internet Marks.

In relation to a Claim, Zen115 Hosting may require you to conduct the defence, including negotiations for settlement or compromise prior to the institution of legal proceedings or modify, alter or substitute any potentially infringing part of the Content or Your Internet Marks at your own expense, to render the Site or Zen115 Hosting Technology non-infringing. You must comply with any requirement notified to you in accordance with this clause. 

10. EXCLUSIONS AND LIMITATIONS OF LIABILITY
To the full extent permitted by law, Zen115 Hosting expressly disclaims and excludes any representation or warranty implied under or in relation to this Terms of Use Agreement, the performance of this Terms of Use Agreement or any activity contemplated by this Terms of Use Agreement.

In respect of its liability under or in relation to any Zen115 Hosting Services provided under this Terms of Use Agreement, the performance of this Terms of Use Agreement or any activity contemplated by this Terms of Use Agreement whether for breach of contract, tort or under any statute or otherwise, Zen115 Hosting:
- excludes its liability for any indirect, special, economic or consequential loss or damage or loss of revenue, profits, goodwill, bargain or opportunities or loss or corruption of data or loss of anticipated savings incurred or suffered by you;
- expressly limits its liability for breach of a condition or warranty implied by virtue of any legislation to the following remedies (the choice of which is to be at Zen115 Hosting's sole discretion):
- in the case of goods - any one or more of the replacement of the goods or supply of equivalent goods, the repair of the goods, the payment of the costs of replacing the goods or of acquiring equivalent goods or the payment of the costs of having the goods repaired; or
- in the case of services - the supply of the services again or the payment of the cost of having the services supplied again.

Nothing in this Terms of Use Agreement is intended to limit or exclude any liability on the part of Zen115 Hosting where and to the extent that an Applicable Law prohibits such exclusion or limitation. If any part of this clause 10 would be void or unenforceable but may be read down or severed in order to render it or the rest of the Terms of Use Agreement enforceable then it will be so read down to the extent necessary.

In relation to any Internet Access:
- Zen115 Hosting is not liable for the loss of any Content or data, any delays, misdeliveries or service interruptions arising from the loss of Internet Access or something which is within your control; 
- Zen115 Hosting does not make any representations, warranties give any undertakings other than those expressly set out in this Terms of Use Agreement; and
- Zen115 Hosting is not responsible or liable for:
- the cost, loss or liability arising from Zen115 Hosting's supply, or failure to supply or delay in the supply of any Internet Access Service; or
- the content, context or confidentiality of any information or material created, made available or communicated using the Internet Access service.

11. FORCE MAJEURE
Notwithstanding any other provision of this Terms of Use Agreement, neither party will be liable for any failure to fulfil any term of this Terms of Use Agreement where that fulfilment is delayed, prevented, restricted or interfered with for any reason outside that party's control (Force Majeure Event). The party which is unable to perform its obligations must notify the other party promptly of any such delay and use its best efforts to resume performance in accordance with this Terms of Use Agreement as soon as possible. Upon receipt of the notification, the parties must discuss in good faith how to take account of any Force Majeure Event and to resume performance in accordance with this Terms of Use Agreement.

12. PRIVATE INFORMATION
Zen115 Hosting has a detailed Privacy Policy (Zen115 Hosting Privacy Policy) which forms part of this Terms of Use Agreement. The Privacy Policy details the information which Zen115 Hosting will gather about you through your use of Zen115 Hosting Services and its web site, the way in which Zen115 Hosting will use that information and the persons to whom Zen115 Hosting may disclose this information. Please read and consider the Privacy Policy before accepting (or declining) the terms and conditions in this Terms of Use Agreement.

You agree to be bound by the Zen115 Hosting Privacy Policy and when using any of the Zen115 Hosting Services, you consent to:
- collection of a variety of personal information; 
- use of the your personal information for certain purposes; and
- disclosure of your personal information in certain circumstances, as specified in the Privacy Policy.

13. SUSPENSION AND TERMINATION 
A. Suspension
Without limiting its rights under paragraph B below, Zen115 Hosting may immediately suspend the provision of any or all of the Zen115 Hosting Services as follows:

- If Zen115 Hosting considers in its absolute discretion that you are using the Sites or Zen115 Hosting Technology for any unlawful or improper purpose then, without prejudice to any other remedy Zen115 Hosting or any other person may have under this Terms of Use Agreement, any other agreement or at law, Zen115 Hosting reserves the right to suspend services immediately, prior to notifying you that services have been suspended, and to continue such suspension until you have satisfied Zen115 Hosting that you have ceased the unlawful or improper activity; or
- If Zen115 Hosting is unable to charge the relevant fees to your nominated credit card; or
- If you are otherwise in breach of this Terms of Use Agreement. 

In each case, we will notify you of the suspension of the Zen115 Hosting Services and what needs to be done to lift the suspension. 
Suspension of Zen115 Hosting Services may limit or exclude your ability to use or access any of the Zen115 Hosting Services. If a Hosting & Email Package is suspended under this clause, Users may be unable to access your Site and you may be unable to amend the Content. If Zen115 Hosting limits or excludes Users' ability to access the Site, Zen115 Hosting will take all reasonable steps to post a notice indicating that the Site is no longer available.

Zen115 Hosting reserves the right not to refund any charges paid in advance in relation to suspended Zen115 Hosting Services. 

B. Termination
Either party may terminate this Terms of Use Agreement:
- if the other party breaches any term of this Terms of Use Agreement and, in the case of a breach that can be remedied, it fails to remedy that breach within 7 days after being given written Notice by the first party specifying the breach and requiring that it be remedied; 
- immediately by giving written Notice to the other party if an Insolvency Event (as defined in clause 10 below) occurs in respect of the other party; or
- in circumstances other than those described in the two paragraphs above, by giving 14 days Notice to the other party.

If this Terms of Use Agreement is terminated then Zen115 Hosting will notify you of such termination and will deny Users access to Zen115 Hosting Services. Zen115 Hosting reserves the right not to refund any charges paid in advance in relation to terminated contracts.

At any time prior to termination, you may remove your Content at your own expense. If you have not removed your Content by the time you have terminated, Zen115 Hosting will continue to hold your Content on Zen115 Hosting Technology for 7 days after termination. During such time you may request a copy of your Content from Zen115 Hosting Technology, at your expense. 
After 7 days from termination, you acknowledge and agree that Zen115 Hosting may delete any or all of your Content from Zen115 Hosting Technology without any liability whatsoever. If this happens, Zen115 Hosting will post a notice at the Site indicating that the Site is no longer available.

The licences and rights you have granted to Zen115 Hosting in respect of Content you have delivered to Zen115 Hosting survive termination of this Terms of Use Agreement.
All representations, warranties and indemnities will survive the termination or expiration of this Terms of Use Agreement. This clause 13 (and clauses 10, 12 and 14)survive termination or expiry of this Terms of Use Agreement. 

14. GENERAL
No failure or delay by Zen115 Hosting in exercising any right, power or remedy under this Terms of Use Agreement will operate as a waiver of that right, power or remedy, and no single or partial exercise of such right, power or remedy will preclude any further exercise or the exercise of any other right, power or remedy. Without limitation, no waiver by Zen115 Hosting of any breach will be deemed to be a waiver of any subsequent breach.

You must not assign, transfer, charge or sub-licence your rights or obligations under this Terms of Use Agreement without the prior written consent of Zen115 Hosting. Zen115 Hosting may assign any or all of its rights and obligations under this Terms of Use Agreement so long as it gives you notice.
The parties must do all things (including signing any document) necessary to give effect to this Terms of Use Agreement and the transactions contemplated by this Terms of Use Agreement.

Any termination or expiration of this Terms of Use Agreement does not affect the accrued rights or remedies of either party. 
You acknowledge and agree that nothing in this Terms of Use Agreement constitutes a relationship of employer and employee, principal and agent, partnership or joint venture between Zen115 Hosting and you and you have no right to bind Zen115 Hosting in contract or otherwise at law.

This Terms of Use Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all such prior agreement and any representations. 

This Terms of Use Agreement is governed by and must be construed in accordance with the laws of New South Wales. The parties irrevocably submit to the non-exclusive jurisdiction of the courts of New South Wales.

This Terms of Use Agreement may not be construed adversely to Zen115 Hosting solely because it prepared this Terms of Use Agreement. You acknowledge and agree that this Terms of Use Agreement constitutes an invitation to treat and that by submitting the Registration form associated with this Terms of Use Agreement you are making an offer to Zen115 Hosting to acquire certain Zen115 Hosting Services, which it may accept or decline.

If there is any inconsistency between the main body of this Terms of Use Agreement and an attachment to this Terms of Use Agreement, the attachment prevails to the extent of the inconsistency.

15. DEFINITIONS AND INTERPRETATION
The defined terms below have the following meanings in the Terms of Use Agreement:

Applicable Law means the following in relation a certain person, action or thing:
- any law, rule or regulation of any country (or political sub-division of a country);
- any obligation under any licence in any country (or political sub-division of a country); and
- any lawful and binding determination, decision or direction of a regulator in any country (or political sub-division of a country).


Customer Bank means the bank with which a customer has established or intends to establish a Merchant Service Agreement.

Fees means any fees payable under or in connection with this Terms of Use Agreement or the Merchant Access Agreement, including but not limited to the fees set out in the registration form, quote or notified to you by Zen115 Hosting from time to time.


Hosting & Email Packages means a combination of services provided by Zen115 Hosting using Zen115 Hosting Technology (as defined below), so that your web Site (Site) and email is capable of being accessed over the Internet. These packages include a certain capacity of traffic, disk space, and email.

Insolvency Event means the following events in relation to a party:

- any insolvency administrator or controllor is appointed to it;
- it enters into, or resolves to enter into, a scheme of arrangement or composition with or assignment for the benefit of creditors;
- it enters into a deed of company arrangement;
- it resolves to wind itself up or otherwise dissolve itself;
- it suspends payments of its debts generally or becomes unable to pay its debts when they are due; 
- it commits any act of bankruptcy; or
- it ceases to carry on its business.

Intellectual Property Rights means all rights conferred under statute, common law and equity in and in relation to inventions, designs, trade marks, trade names, logos and get up, circuit layouts, copyright moral rights and any other intellectual property rights and analogous rights whether or not now existing and whether or not registered or registrable and includes any right to apply for the registration of such rights and includes all renewals and extensions.

Internet Rights means the perpetual, royalty free, non-exclusive, sub-licensable (through multiple tiers) right throughout the world:

- to adapt the Content, to convert it or incorporate it with other materials for display on the Internet;
- to publish, copy, use, display, download, distribute, transmit, frame, hyperlink, mirror, cache or make the Content available for access:
- on the Internet; and
- in relation to, or for the purpose of, doing any of those things on the Internet;
- to sublicense users of the Internet to do any of the things referred to in paragraph (b);
- if the Content includes any downloadable software to sublicense any user of the Internet to, download, copy and use that downloadable software;
- to do anything necessary for Zen115 Hosting to perform any of its obligations or enjoy any of its rights under this Terms of Use Agreement; and
- to authorise or licence a third party to exercise any of the rights granted under this clause, for any of the purposes specified in paragraphs (a) to (e).

Zen115 Hosting Services means the services identified in clause 3.

Zen115 Hosting Technology means any software, hardware or materials which Zen115 Hosting uses to support the Site and any Hosting & Email Packages or other services including without limitation:

- any Internet server;
- any software which enables Users to:
access the Site; or
- execute commands and receive responses in relation to any material on the Site; and
- any graphical user interface for the Site.

Zen115 Hosting Website means the website at url www.Zen115hosting.com and all web pages that sit below that website.

Primary Contact means the nominated main contact for a company or registered business on the customer registration form for Zen115 Hosting Services.

Your Information means the private information relating to you or your company or other entity provided to us under this Terms of Use Agreement or through use of the Zen115 Hosting Services or any service offered by Zen115 Hosting at Zen115hosting.com.au or Zen115hosting.com


ATTACHMENT A
Free trials-when offered...
1. In relation to any Zen115 Hosting free trial service you agree to be bound by the terms and conditions applicable to the Zen115 Hosting Services, with the modification that:
(a) you will have no obligation to pay, or authorise Zen115 Hosting to charge your nominated credit card with, the Fees;
(b) Zen115 Hosting has the right to suspend your right to use the account in the event of Excess Usage;
(c) Zen115 Hosting reserves the right to terminate your use of the account immediately and without notice and, to the extent permitted by law, without any liability whatsoever if Zen115 Hosting believes in its absolute discretion that termination of your account is necessary for any reason whatsoever;
(d) the consequences of termination are set out on the Zen115 Hosting Website;
(e) Free trial services are subject to the limits and restrictions detailed on the Zen115 Hosting Website from time to time.

"Excess Usage" in this context means use of the relevant account by you in excess of the usage limits for hosting ]]