1              Agreed Terms & Interpretation

Unless the context requires otherwise, the following phrases and capitalised words must be interpreted as follows:

1.1           Acceptable Use Policy means Anchor’s policy for access to the Network and the Hosted Environment that applies equally to all of Anchor’s customers for the Services, as is available on the Website.

1.2           Agreement means the information and the documents listed in clause 2.2.

1.3           Anchor means Anchor Systems Pty Ltd, ABN 46 093 848 278.

1.4           Australian Consumer Law means the Competition and Consumer Act 2010 (Cth).

1.5           Back Up Services means the back up services that are described in the Contract Details.

1.6           Business Day means a week day that is not public holiday in every place in Australia.

1.7           Change in Law means any present or future law, regulation, treaty, order or official directive or request (which, if not having the force of law, would be complied with by a responsible provider of services similar to the Services) commences, is introduced, or changes, after the Effective Date.

1.8           Confidential Information means all non-trivial information concerning, or held by, a Party’s business, including information marked as confidential, that the discloser treats as confidential or which the recipient knows or ought to know is confidential, but does not include information that:

(a)             is in the public domain (except through unauthorised disclosure);

(b)             the recipient already possesses at the time of disclosure (unless the information was received through unauthorised disclosure or is subject to prior confidentiality obligations); or

(c)             is independently developed or acquired by the recipient (except through unauthorised disclosure).

Anchor’s Confidential Information includes all business plans, marketing information, market strategies, business practices, financial information, budgets, product roadmaps and details of future developments, products or strategies, details relating to customers, prospects, channel partners, including Anchor partner compensation plans, contractors, suppliers and advisers, Anchor’s intellectual property rights, this Agreement, product and service pricing and business models.

1.9           Consequential Loss means:

(a)             loss of revenues;

(b)             loss of reputation or goodwill;

(c)             consequential loss;

(d)             any pure economic loss;

(e)             loss of profits;

(f)              indirect loss;

(g)             loss of bargain;

(h)             loss of actual or anticipated savings;

(i)              lost opportunities, including opportunities to enter into arrangements with third parties; and

(j)              loss or corruption of data.

1.10         Contract Details means the information on the web pages on the Website that describes the Services, Support Pack, Service Levels, Fees and other operational details of the Agreement, that are displayed on the Website on the Effective Date.

1.11         Data Centre means Anchor’s, its Related Bodies’ Corporate or their respective contractors’ premises where the Hosted Environment is located, and includes the building, power, power back up, cooling, fire prevention equipment, core network, racks, cabinets and the fixtures at the Data Centre.  The term Data Centre specifically excludes the Hosted Environment and the Network.

1.12         Effective Date means the date when You click “I Agree” to this Agreement as part of the sign up process on the Website.

1.13         Emergency means any event or circumstance which in the reasonable opinion of Anchor endangers or threatens to endanger the safety or health of any person or destroys or damages or threatens to destroy or damage any part of the Hosted Environment, Network or the Data Centre.

1.14         Fee means the amount payable for the whole or part of a Service, any item or usage, exclusive of GST and all other Taxes, as set out in the Contract Details.

1.15         Force Majeure includes:

(a)             any consequence of a virus, Trojan horse or any malicious code, denial of service attack or other malicious activity;

(b)             an Emergency;

(c)             a physical natural disaster including fire, flood lightning or earthquake;

(d)             a war or other state of armed hostilities (whether war is declared or not), insurrection, riot, civil commotion, act of public enemies, national emergency (whether in fact or in law) or declaration of martial law;

(e)             an epidemic or quarantine restriction;

(f)              any ionizing radiation or contamination by radioactivity from any nuclear waste or from combustion of nuclear fuel;

(g)             any confiscation, nationalisation, requisition, expropriation, prohibition, embargo, restraint or damage to property by or under the order of any government agency;

(h)             any legally binding requirement placed on Anchor, its Related Bodies Corporate or their respective contractors by a government, regulator or other authority;

(i)              any law taking effect after the date of this Agreement;

(j)              any strike, lock-out, stoppage, labour dispute or shortage including industrial disputes that are specific to a Party or the Party’s contractors;

(k)             damage to any part of the Hosted Environment, Network or the Data Centre caused by any event out of Anchor’s control;

(l)              unauthorised or illegal access by any person to any part of the Hosted Environment, Network or the Data Centre; or

(m)           any circumstance beyond the reasonable control of a Party (other than the inability to pay).

1.16         GST means the Goods and Services Tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

1.17         Hosted Environment means the server and/or processing capacity (whether using shared, virtual, cloud or dedicated servers), storage systems, operating system, web server, email server or database server or other equipment provided as part of the Services, as set out in the Contract Details.  The Hosted Environment excludes the Network.

1.18         Insolvency Event in the context of a Party means:

(a)             a liquidator, receiver, receiver and manager, administrator, official manager or other controller (as defined in the Corporations Act 2001 (Cth)), trustee or controlling trustee or similar official is appointed over any of the property or undertaking of the person;

(b)             the person or the person’s property or undertaking becomes subject to a personal insolvency arrangement under Part X Bankruptcy Act 1966 (Cth) or a debt agreement under Part IX Bankruptcy Act 1966 (Cth);

(c)             the person is or becomes unable to pay its debts when they are due or is or becomes unable to pay its debts within the meaning of the Corporations Act or is presumed to be insolvent under the Corporations Act;

(d)             the person ceases to, or threatens to cease to, carry on business; or

(e)             an application or order is made for the liquidation of the person or a resolution is passed or any steps are taken to liquidate or pass a resolution for the liquidation of the person, otherwise than for the purpose of an amalgamation or reconstruction.

1.19         Minimum Service Period means minimum period for which You may acquire a particular Service, which is 12 months from the Production Date, unless stated otherwise in the Contract Details.

1.20         Network means the telecommunications network comprised of equipment, wiring and circuits within and between the upstream provider’s network backbone nodes (points of presence) and the servers in the Hosted Environment. The term Network does not include any:

(a)             circuits to a backbone node, Your Premises or any network or equipment not owned or controlled by Anchor; or

(b)             third party networks or equipment not owned or maintained by Anchor, including connections to peer networks and the internet.

1.21         Party means each of Anchor and You.

1.22         Personal Information has the meaning given to it by the Privacy Act 1998 (Cth).

1.23         PPSA means the Personal Property Securities Act 2009 (Cth).

1.24         Privacy Policy means the document that sets out how Anchor deals with Personal Information and which is available from the Website.

1.25         Production Date means that date when Anchor advises You that the Service is ready to be accessed and used by You, as described in clause 3.2.

1.26         Professional Services includes services that are described in the Contract Details (or other ordering document signed by Anchor) as Professional Services and may include set up, installation, data migration, advice or other consulting services that are provided by Anchor.

1.27         Related Bodies Corporate has the meaning given it by the Corporations Act 2001 (Cth).

1.28         Scheduled Maintenance means the routine maintenance for any part of the Hosted Environment, Network or the Data Centre that is recommended by the manufacturer or supplier of that item that is designed to be undertaken at regular intervals to prevent failures or defects, and includes implementing updates or new releases of any software and any engineering changes to hardware.

1.29         Service includes the provision of Anchor’s:

(a)             Dedicated Servers as set out in clause 3.4;

(b)             Virtual Private Servers (VPS Service), as set out in clause 3.4;

(c)             Cloud Servers, as set out in clause 3.5;

(d)             Shared Web Hosting, as set out in clause 3.6;

(e)             Back Up Services;

(f)              Support Services;

(g)             Professional Services.

1.30         Service Credit means the pre-agreed recourse that may be available to You if there is a failure to meet a Service Level as described in the Service Level Agreement.

1.31         Security Policy means document that sets out the security arrangements for certain Services and which is available from the Website.

1.32         Service Level means a standard that is specified for a particular Service in the Contract Details.

1.33         Service Level Agreement means the document that sets out the Service Levels for certain Services and which is available from the Website.

1.34         Service Period means the period during which the Services will be provided and is calculated in accordance with clauses 2.3 and 2.4.

1.35         Support Pack means the relevant level of Support Service, as set out in the Contract Details.

1.36         Support Services means:

(a)             Access to Anchor’s hosting support teams during the hours of operation set out in the Contract Details for the Service; and

(b)             dashboard, monitoring, alerts and incident logging and resolution set out in the Contract Details for the Service.

1.37         Tax Invoice means an invoice that is in a form that complies with A New Tax System (Goods and Services Tax) Act 1999 (Cth).

1.38         Taxes includes any sales tax, GST, duties, withholding taxes, levies, tariffs, imposts or other charges levied by any federal, state or local government in Australia or elsewhere, that arise out of or in connection with any Service or this Agreement, and any interest, penalties or liabilities incurred on such amounts, but excludes taxes based on the net income of Anchor.

1.39         Website means Anchor’s website, currently at www.anchor.com.au .

1.40         You (Your) means the person, organisation or entity that has been entered into the Contract Details as part of the sign on process, or if that person, organisation or entity has not been described with sufficient accuracy in the Contract Details, the person, organisation or entity that pays the first invoice.

1.41         Your Content and Software means all content, software and data in any form, (whether permanent or temporary, whether generated by humans or computers,) that You or any person other than Anchor, its Related Bodies Corporate or their respective contractors, installs, stores, loads, edits, uses, transfers to/from or operates on the Hosted Environment or the Network, including software, applets, servlets, scripts, HTML files, materials, code, information, data, text (whether or not perceptible by users), metatags, multimedia information (including sound, music, data, audio, video, graphics, photographs, or artwork), customer domain name(s), e-mail, chat room content, bulletin board postings.

1.42         Your Representative means the person You nominate to be authorised to act on behalf of You to manage Your account, including ordering of additional (or varying the amount of) Services, including any options, and starting and terminating any Service.

1.43         The words “includes”, “including”, “for example“ and “e.g.” are not words of limitation.

1.44         Headings are for convenience only and do not affect interpretation.

2              Formation of Contract

2.1           The person who clicks “I Agree” on the sign up page warrants to Anchor that he/she has legal authority to act on Your behalf in entering into this Agreement.  You warrant and affirm to Anchor that You are bound by this Agreement when You first make use of any Service.

2.2           The Agreement in respect of any Service comprises the following documents and information:

(a)             the Contract Details or any other ordering document signed by the Parties setting out the details of the transaction;

(b)             clauses 1 to 15 of these Terms and Conditions;

(c)             the Service Level Agreement (if stated in the Contract Details that this applies to Your Service);

(d)             the Acceptable Use Policy;

(e)             the Privacy Policy;

(f)              the Security Policy,

as amended from time to time in accordance with the Agreement.

2.3           If there is any inconsistency between the documents in clause 2.2 then to the extent of that inconsistency, the item that is higher in the list above shall prevail.

2.4           If Your Service includes any open source software that open source software is subject to the terms of its open source license.

Service Period

2.5           The Agreement is binding on the Parties from the Effective Date. The Service Period for each Service (other than Professional Services) commences on the Production Date and continues indefinitely until it is terminated in accordance with this Agreement.  Professional Services may be provided prior to the start of the Service Period or during the Service Period, as set out the Contract Details or other ordering document signed by Anchor.

2.6           You may terminate the Service Period for any Service by Your Representative giving 30 days written notice of termination, such notice may be given at any time.

2.7           Where the Contract Details provides that the particular Service has a Minimum Service Period then if Your Representative gives written notice to be effective prior to the end of the Minimum Service Period then:

(a)             where You have not paid for all the Services for the full Minimum Service Period in advance, You must immediately pay Anchor an amount equal to:

(i)              any outstanding amounts;

(ii)             any amounts that are due up to the end of the notice period; and

(iii)            60% of the minimum amount that would have been payable during the period from the end of the notice period until the end of the Minimum Service Period.

(b)             where You have paid for the Services for the full Minimum Service Period in advance:

(i)              You must pay Anchor all amounts that are due and payable for Services up to end of the notice period; and

(ii)             Anchor will refund You any amount equal to 40% of the minimum amounts payable during the period from the end of the notice period until the end of the Minimum Service Period.

(c)             Anchor will calculate the amounts due under this clause 2.7 and such calculation is binding on the Parties in absence of manifest error.

Your Changes

2.8           If You wish to:

(a)             enter into a new agreement for other Services;

(b)             acquire any optional items or Services;

(c)             increase, decrease or otherwise vary any Service, including any Support Pack;

(d)             terminate any Service, including any option,

in accordance with this Agreement, then that change must be made either by written agreement signed by both Parties.  All changes will be subject to the provisions of this Agreement.

Changes to the Agreement

2.9           Anchor may seek to vary any part of the Agreement at any time during the Service Period of any Service by giving You at least 60 days’ notice (Proposed Change).  Subject to clause 2.10, any variation will be effective at the end of the 60 day notice period.

2.10         If the Proposed Change will deprive You of more than an insubstantial benefit of the Service then You may give Anchor notice of that fact within 15 days of Anchor’s notice of Proposed Change.  If Anchor receives such a notice from You and is unable to agree with You an acceptable alternative within 30 days of the date that Anchor issued the notice of Proposed Change then:

(a)             Anchor may give You notice that Anchor elects not to make the Proposed Change; or

(b)             if Anchor does not issue You with notice that it elects not to make the Proposed Change within 40 days of the date when Anchor issued the notice of Proposed Change, You may:

(i)              continue to use the Service and the Proposed Change will be effective 60 days after Anchor issued the notice of Proposed Change; or

(ii)             You may terminate the Agreement immediately by giving Anchor notice prior to the date which is 60 days from the date of issue of the Proposed Change.  In this case Anchor will provide You with a pro-rate refund of any Fees that have been paid in advance for Services that will not be provided (after deducting any monies owed by You to Anchor), and such payment will be Anchor’s entire liability and Your sole remedy in connection with such Proposed Change and/or termination.

3              Services

3.1           Subject to the receipt of the Fees and Taxes:

(a)             Anchor will provide You the Services described in the Contract Details during the periods set out in the Contract Details;

(b)             You may acquire additional or varied Services for the relevant Service Period of that additional or varied Service in accordance with clause 2.8.

All such Services are provided on the provisions of this Agreement.

3.2           Promptly following the Effective Date, Anchor will set up the Hosting Environment and perform any other Professional Services set out in the Contract Details that have to be performed in order to provide You with access and use of the Hosted Environment and Network.  Anchor will give You written notice of when the Hosting Environment and Network are ready for You to use.

3.3           Where Anchor is providing any data migration Services, You are responsible for ensuring that the data that is to be migrated is accurate, up to date and correctly formatted prior to migration.  You are responsible for loss, damage or expense incurred by Anchor (or any other person) as a result of any errors caused by inaccurate, out of date or incorrectly formatted data.

3.4           Where Anchor is providing Virtual Private Server Services:

(a)             Anchor grants You non-transferable, limited, revocable, non-exclusive right to remotely access Your Content and Software operating on Hosted Environment via the Network during the Service Period in accordance with the Contract Details;

(b)             Anchor will provide the other re-occurring Services and other items in accordance with the Contract Details;

(c)             throughout the Service Period (and subject to any Minimum Service Period) You will pay Anchor a fixed fee for access to the Hosting Environment via the Network and for the re-occurring Services monthly in advance, with any additional use charges paid in arrears.

The Virtual Private Server Service will be provided from a multi tenanted (or other shared technology) environment, unless it is stated in the Contract Details that a Dedicated Server Service is being provided, in which case the Hosted Environment will be a Hosted Environment dedicated solely to Your Services.

3.5           Where Anchor is providing Cloud Servers Services:

(a)             Anchor grants You a non-transferable, limited, revocable, non-exclusive right to remotely access Your Content and Software operating on a multi tenanted (or other shared technology environment) Hosted Environment via the Network during the Service Period in accordance with the Contract Details;

(b)             Anchor will provide the other re-occurring Services and other items in accordance with the Contract Details;

(c)             throughout the Service Period (and subject to any Minimum Service Period) You will pay Anchor a fee for access to the multi-tenanted (or other shared technology Hosting Environment via the Network, re-occurring Services and any other charges, all based on Your usage of the Services, monthly in arrears.

3.6           Where Anchor is providing Shared Web Hosting Services:

(a)             Anchor grants You non-transferable, limited, revocable, non-exclusive right to remotely access Your Content and Software operating on Hosted Environment via the Network during the Service Period in accordance with the Contract Details;

(b)             Anchor will provide the other re-occurring Services and other items in accordance with the Contract Details;

(c)             throughout the Service Period You will pay Anchor a fixed fee for access to the Hosting Environment via the Network and for the re-occurring Services monthly in advance, with any additional use charges paid in arrears.

The Shared Web Hosting Service will be provided from a multi tenanted (or other shared technology) environment.

4              Back Ups

4.1           Anchor provides You with the right and ability to take back ups of Your Content and Software at any time during the Service Period whether or not You have acquired Anchor Back Up Services.  This right and ability to take back ups terminates at the end of the Service Period.  You agree that immediately following the end of the Service Period Anchor may permanently delete all Your Content and Software in respect of the terminated Service without reference to You and without liability to You.

4.2           If the Contract Details state that Anchor is providing Back Up Services then:

(a)             Anchor will take back ups of the agreed Your Content and Software at the intervals, in the manner described and will retain the back ups for the periods, all as stated in the Contract Details.  Any superseded back up may be destroyed.

(b)             Anchor will use its best efforts (but will not be liable for any failure to) to ensure that it can restore Your Content and Software from the back up within 48 hours of being notified that a restoration is required;

(c)             Anchor is not responsible for any failure to restore data if the back up process fails to take a back up and such failure could not have been discovered by the standard verification test;

(d)             as Anchor does not know what Your Content and Software is hosted in the Hosted Environment You must ensure that the back ups that are taken are complete and accurate.

4.3           If Anchor is not providing Back Up Services as part of the Services then You must take all necessary back ups of Your Content and Software.

5              Operational Issues

5.1           Anchor must use its best efforts to ensure that Scheduled Maintenance will not exceed the periods stated in the Contract Details.  Anchor must use its best efforts to minimise any disruption or inconvenience to You caused by Scheduled Maintenance.

5.2           In order to access Your Content and Software each user must have its own device with a web browser which is compatible with Your Content and Software.  You acknowledge and agree that it is the user’s responsibility to acquire, maintain and properly use any device, communications link and software and to update any device, communications link or software if these access requirements change during the Service Period.  You acknowledge and agree that all capital and on-going costs for such items are the responsibility of the user.

5.3           Anchor retains the sole right and control over all aspects of the programming, composition, management, support and operation of the Hosted Environment, Network and the Data Centre.  Anchor retains all intellectual property rights in any information, software or other item provided to You in connection with this Agreement, and to any adaptations, translation or derivatives thereof.

5.4           You acknowledge and agree that nothing in this Agreement transfers title to any part of the Hosted Environment, Network or Data Centre to You at any time.

5.5           Anchor may allocate IP addresses to You as part of the Services provided under this Agreement.  Any IP addresses or other network numbers allocated to You are and remain the property of Anchor.

5.6           You must not to register any security interest (as defined under the PPSA) against Anchor, its Related Bodies Corporate or their respective contractors in respect of any of Your Content and Software and/or in connection with this Agreement.

5.7           No Services may be used for any high risk activities, including any application or situation where the failure of any part of the Service could lead to death or serious bodily injury of any person, or to severe physical or environmental damage.

6              Your Content and Software

Security of Your Content

6.1           Anchor must provide security for Your Content and Software in accordance with the Security Policy.

6.2           Anchor must not move Your Content and Software from Data Centers in the countries that are stated in the Contract Details without notifying You, unless required to do so by law or a request from a government entity.

6.3           You acknowledge and agree that You are solely responsible for all aspects of Your Content and Software, including:

(a)             its selection, design, creation, posting, use, licensing, updating, maintenance, technical operation (including ensuring APIs are compatible with any requirements of the Service) and testing;

(b)             managing, renewing, creating, deleting, editing, maintaining and otherwise controlling its editorial content;

(c)             ensuring that any Personal Information that is included in Your Content and Software is stored, used, handled and transmitted in accordance with the law;

(d)             properly handling and processing of any legal notices (including those required by privacy and copyright laws);

(e)             determining the appropriate procedures and controls regarding the security of Your Content and Software, and for implementing those procedures and controls.

6.4           You must provide Anchor with access to any password or other item that is needed by Anchor to provide the Services.

6.5           Anchor will not access, delete, edit or vary any of Your Content and Software except as:

(a)             specified in this Agreement;

(b)             is necessary to comply with any applicable laws, including the Telecommunications Act 1997 and the Telecommunications (Interception) Act 1979 (Cth).

6.6           Anchor may in its discretion prevent, intercept, access, remove, alter or change the access of any person who breaches the Acceptable Use Policy (including suspending access to the entire Hosted Environment and/or Your Content and Software if determined by Anchor to be prudent or necessary).  Provided Anchor acts in good faith, You may not dispute Anchor’s decision to intercept, remove, alter or prevent access to any Your Content and Software, even if You have paid all the applicable Fees and Taxes.

6.7           Anchor may follow any proscribed notice (or similar) regarding the interception, removal, alteration or prevention of access to Your Content and Software, or any person, and/or provide any information requested by a government, regulator or other authority, without any liability to You.  You must, at Your own cost, provide all reasonable assistance to Anchor in complying with a request for information relating to Your Content or Software by a government, regulator, other authority or any person who asserts any right of ownership or intellectual property, right of confidence or privacy in any of Your Content or Software or who alleges any breach of the Acceptable Use Policy.

Intellectual Property

6.8           As between You and Anchor, You and Your licensors own all the intellectual property rights in Your Content and Software.

6.9           You grant Anchor, its Related Bodies Corporate and their respective contractors a non-exclusive, royalty-free licence to host, cache, copy, transmit, adapt, edit, change, publish or otherwise use or access any Your Content and Software in connection with the performance of the Services under this Agreement and any legal requirements.  You warrant that none of Your Content and Software is subject to any export control law or other law that would prevent access by Anchor, its Related Bodies Corporate, their respective contractors.

6.10         You warrant that possession, use or access to Your Content and Software by Anchor, its Related Bodies Corporate and their respective contractors, in accordance with this Agreement will not infringe the intellectual property rights or other rights of any third party.

7              Guarantees and Warranties

Warranty Against Defects

7.1           Where You are exercising Your rights in respect of a “Warranty Against Defects” (as defined by Regulation 90, issued under the Australian Consumer Law) then, in accordance with that Regulation:

  • You may report any defect in the Service to Anchor via Anchor’s website at www.anchor.com.au/about-us/contact-us/ during the Service Period.  Anchor must use its best efforts to remedy material defects in the Service within a reasonable period.
  • The services are provided by Anchor Systems Pty Ltd ABN 46 093 848 278 of 201 Elizabeth St, Sydney NSW 2000 Australia, telephone: +61 (0)2 8296 5111 email address: contact@anchor.com.au
  • The costs for the service that Anchor provides as a Warranty Against Defects are included within the Fees.  No additional fees are payable by You for this service.  You are responsible for any expenses You incur in using this service.
  • The statement in italics below is required to be included in these terms and conditions under Regulation 90.

“Our goods come with guarantees that cannot be excluded under the Australian Consumer Law.  You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage.  You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.”

  • The benefits that Anchor provides to consumers under this Warranty Against Defects are in addition to any other rights or remedies the consumer may have in respect of these goods or services under the Australian Consumer Law.

Warranties for Consumers

7.2           To the extent that You are entitled to any statutory guarantee under sections 54 – 59 of the Australian Consumer Law, then to the extent that Anchor fails to comply with such statutory guarantee in respect of goods which are not goods of a kind that are ordinarily acquired for personal, domestic or household use or consumption, Anchor’s liability is limited to one or more of the following, at Anchor’s option:

(a)             the replacement of the goods or the supply of equivalent goods;

(b)             the repair of the goods;

(c)             the payment of the cost of replacing the goods or of acquiring equivalent goods;

(d)             the payment of the cost of having the goods repaired,

unless it is not fair or reasonable for Anchor to rely on this term of this Agreement.

7.3           To the extent that You are entitled to any statutory guarantee under sections 60 – 62 of the Australian Consumer Law, then to the extent that Anchor fails to comply with such statutory guarantee, in respect of services which are not services of a kind that are ordinarily acquired for personal, domestic or household use or consumption, Anchor’s liability for a failure to comply with such statutory guarantee is limited to one of the following, at Anchor’s option:

(a)             supplying the services again; or

(b)             payment of the cost of having the services supplied again,

unless it is not fair or reasonable for Anchor to rely on this term of this Agreement.

Express Warranties

7.4           Anchor warrants that:

(a)             it will provide the Services in accordance with the Contract Details;

(b)             where the Contract Details state that the particular Service will be performed in accordance with the Service Level Agreement, then Anchor warrants that it will provide those Services in accordance with the Service Level Agreement; and

(c)             the Services will be performed with due skill and care.

Exclusions from Warranty

7.5           It is acknowledged and agreed by both Parties that given the nature of the Services:

(a)             it is not possible for Anchor to guarantee that any Service is fit for a particular purpose or that any particular outcome will be achieved as a result of any Service, or any product that results from the Service;

(b)             it is not reasonable for You to rely on Anchor’s skill and judgment to guarantee that any Service is fit for a particular purpose or that any particular outcome will be achieved as a result of any Service, or any product that results from the Service.

7.6           Anchor does not warrant that:

(a)             uninterrupted, secure access or error free operation of the Hosted Environment, Network or Your Content and Software; or

(b)             Anchor can prevent any third party disruptions to the Services or that Anchor will correct all defects.

8              Payment and Invoicing

Payment

8.1           All Fees, Taxes or other amounts due by You to Anchor under this Agreement must be paid to Anchor in accordance with this Agreement without any set-off, counter-claim, deduction or withholding. Anchor may set-off any amount that it owes to You against any amount that You owe to Anchor under this Agreement.

8.2           Unless stated otherwise in the Contract Details, You must pay Anchor:

(a)             where You have acquired Dedicated Servers, Virtual Private Server Services or Shared Web Hosting Services:

(i)              the re-occurring Fees for the Services (including Fees for the Hosting Environment, Network, storage space, network ports, power, bandwidth, firewalls, IP addresses, VLANs, operating systems, open source code, storage, data transfers, security, firewalls, networks, licenses, Back Up Service or other items described in the Contract Details), monthly in advance, with the first payment due on the Production Date and thereafter on the same date each month during the Service Period;

(ii)             any Fees for additional use of any item or Service (e.g. if You use more than the agreed amount of Your back up disc space in a particular month), the applicable additional usage Fees will be due on the first day of the month following the month in which the additional use occurred;

(b)             where You have acquired Cloud Servers Services: for all Services provided monthly in arrears, with the first payment due at the end of the first month that included the Production Date;

(c)             for any one-off Fees, including set up Fees or Fees for other Professional Services or other items; such Fees are due at the end of the month in which the Service or item was provided.

8.3           The Fees for any Professional Services are set out in the Contract Details or other ordering document signed by Anchor, or if they are not set out in either of those places, the Fees are charged for all work done to perform the Professional Services at Anchor’s then current hourly rates and are charged on a time and materials basis in 15 minute increments.

Invoicing

8.4           You must pay Anchor the Fees and related Taxes within 14 days from the date of the applicable Tax Invoice, unless stated otherwise in the Contract Details.  Anchor will send the Tax Invoice:

(a)             for Fees that are payable monthly in advance; in the month prior the Services being provided or at the beginning of the month in which the Services are to be provided;

(b)             for Fees that are payable in arrears; at the beginning of the month after the month in which the Services were provided.

8.5           Anchor may:

(a)             pro rate invoices so that they are billed to coincide with the first or last day of calendar months and/or provide a single billing date for multiple Services;

(b)             round up small amounts to the nearest 5c, and/or delay billing of small amounts until subsequent invoices.

8.6           Any Tax Invoice that has not been disputed by You in writing within 3 months of date of issue is deemed to be accurate in absence of fraud or manifest error.

Late Payment

8.7           Anchor reserves the right to require You to pay a late charge for any failure to make any payment by the date required under this Agreement, calculated daily using a rate that is 4% over the Reserve Bank of Australia’s Cash Rate, from the date that the payment first becomes overdue, to the date that the payment is received by Anchor, both dates inclusive.

9              Taxes

Payment of GST

9.1           The Fees exclude GST.  You must pay any applicable GST in addition to the Fees at the same time as You pay the relevant Fees.

Indemnity and reimbursement payments

9.2           Where one Party must indemnify or reimburse the other Party (Payee) for any loss or expense incurred by the Payee, the required payment does not include any amount which the Payee (or an entity that is in the same GST group as the Payee) is entitled to claim as an input tax credit, but the payment will be increased if it is consideration for a taxable supply.

Adjustment event

9.3           You must pay any GST without set-off or deduction regardless of any entitlement You may have to a credit or offset.  However, if:

(a)             the GST paid or payable by You in respect of the supply is different from the amount of GST payable at law; and

(b)             an adjustment of that GST is made between Anchor and the relevant taxing authority,

then Anchor and You must make the same adjustment to the GST which You have paid or are otherwise required to pay in accordance with this Agreement.

Other Taxes

9.4           All payments under this Agreement must be made free and clear and without deduction for any and all present and future Taxes.  Payments due to Anchor under the Agreement must be increased so that amounts received by Anchor, after provisions for Taxes and all Taxes on such increase, will be equal to the Australian dollar amounts required under the Agreement, as if no Taxes were due on such payments.

10           Information

Confidentiality

10.1         Subject to clause 10.3, each Party agrees that it will not permit the use of the other Party’s Confidential Information by, nor disclose the other Party’s Confidential Information to, any third person, other than:

(a)             Anchor may disclose Your Confidential Information to its Related Bodies Corporate, and any contractors and employees of Anchor or its Related Bodies Corporate;

(b)             Anchor may disclose Your Confidential Information to any person in response to a request of any government or regulatory entity (including subpoenas and court orders);

(c)             where You have been introduced to the Services by a channel partner of Anchor then Anchor may disclose such details of Your use of the Services and this Agreement to the relevant channel partner as is necessary identify the amounts that Anchor must pay to the relevant channel partner and to comply with its agreement with that channel partner;

(d)             either Party may disclose the other Party’s Confidential Information to their professional advisers,

unless such use or disclosure is specifically authorised in writing by the other Party or by law.

10.2         Each Party must only use the other Party’s Confidential Information for the purpose of performing the obligations under this Agreement, or if the recipient is a professional adviser, the professional adviser may use the Confidential Information for purposes connected with advising on or reporting on this Agreement.

Privacy

10.3         Each Party must use any Personal Information of which it becomes aware in connection with this Agreement in accordance with the law.

10.4         You warrant that:

(a)             You will obtain or have obtained each informed consent of Your employees’ and contractors’ and from any person whose Personal Information is in Your Content and Software, for Anchor, its Related Bodies Corporate and their respective contractors to use, store, manipulate or otherwise deal with those individuals’ Personal Information for any purpose connected with this Agreement and that such usage may include transferring the data overseas to any of Anchor’s Related Bodies Corporate or their respective contractors for any use, storage, manipulation or dealing for any purpose connected with this Agreement;

(b)             You have reviewed the security features and responsibilities in this Agreement and have determined that they meet Your needs.

Marketing

10.5         Each Party agrees to allow reference to the other and the relationship under this Agreement in its marketing presentations, marketing materials, lists of customers or suppliers (as applicable), and websites as well as in discussion with prospective resellers, channel partners and customers, and industry/financial analysts.

10.6         Neither Party may use the other Party’s trademarks, logos, get up or other branding without the other Party’s prior written consent, such consent not to be unreasonably withheld.

11           Liability

11.1         To the extent permitted by law, and subject to any applicable Service level Agreement, clauses 7.1-7.3, 11.2 and 11.3, Anchor is not liable to You in contract (including under an indemnity), tort, breach of statutory duty or otherwise in respect of any loss, damage, cost or expense arising out of or in connection with the Services, this Agreement or the relationship between the Parties that:

(a)             is for any Consequential Loss, even if Anchor has been advised of, knows of, or should have known of the possibility of such loss, damage or expense, and irrespective of whether the loss, damage or expense arises naturally, was in the contemplation of the Parties or was reasonably foreseeable;

(b)             is for an amount that exceeds the Fee paid for that Service in the 12 months prior to the date that the claim arose unless clause 11.2 applies.

11.2         Where Anchor’s liability arises from:

(a)             death or bodily injury (including sickness) caused by the willful, unlawful or negligent act or omission of Anchor, its Related Bodies Corporate or their respective contractors;

(b)             loss of, or damage to, tangible property caused by the willful, unlawful or negligent act or omission of Anchor, its Related Bodies Corporate or their respective contractors, or

(c)             breach of Anchor’s obligations of confidence in clause 10.1 or 10.2 or privacy in clause 10.3,

then, for the purpose of clause 11.1(b), Anchor’s liability is limited to $1,000,000.

11.3         Anchor is not liable to You for any loss suffered by You due to Anchor’s inability to comply with its obligations under this Agreement as a result of any Force Majeure event.

11.4         Each Party shall make every effort to mitigate any loss, damage, cost or expense that it may suffer arising out of or in connection with the Services, this Agreement or the relationship between the Parties.

12           Indemnity

12.1         You must indemnify, hold harmless and defend Anchor from and against all losses, damages, costs and expenses (including legal costs and expenses on an indemnity basis), that may arise directly or indirectly out of or in connection with:

(a)             any use of the Hosted Environment, the Network or Your Content and Software, including where the access to Your Content and Software has been obtained through use of any password or other security mechanism issued to You or created by You whether or not You have authorised such use or access;

(b)             a dispute between You and any of the users of Your Content and Software;

(c)             any failure to ensure that Your Content and Software is free, and at all times remains free, from any virus, worm, Trojan horse, zombie, keylogger or other form of malicious code;

(d)             the enforcement of Anchor’s rights in connection with any of its rights under this Agreement or any alleged or actual breach of this Agreement by You;

(e)             any claim or allegation arising in connection with the exercise of the rights contemplated by clauses 6.6, 6.7 or 14.1;

(f)              any unlawful, willful or negligent act or omission of You, Your agents, contractors or invitees,

except to the extent that such loss, damage, cost or expense has been caused by:

(g)             a breach of this Agreement by Anchor; or

(h)             an unlawful, wilful or negligent act or omission of Anchor, its Related Bodies Corporate or their respective contractors.

12.2         Each indemnity contained in this Agreement is a continuing obligation notwithstanding:

(a)             any settlement of account; or

(b)             the occurrence of any other thing,

and it is not necessary for Anchor to incur expense or make payment before enforcing or making a claim under an indemnity.

13           Dispute Resolution

13.1         If any bona fide dispute arises between the Parties under or in relation to this Agreement, before commencing any action or court proceeding, the Party raising the dispute must give the other Party written notice of the dispute setting out the details of the dispute and the required remedy (Dispute Notice).  Each Party must then nominate a senior representative with authority to resolve the dispute and those representatives must meet within 10 days of receipt of the date of the Dispute Notice to attempt to resolve the dispute in good faith.

13.2         If the dispute is not resolved within 20 days from the date of receipt of the Dispute Notice, either Party may commence any action or court proceeding in relation to the dispute.

13.3         Nothing in this clause prevents either Party from commencing any action or proceeding at any time for urgent interlocutory relief in any court or tribunal having jurisdiction over such action or proceeding.

13.4         Each Party must bear its own costs of complying with this clause 13.

14           Termination and Suspension

Suspension

14.1         Anchor may suspend access to the Hosted Environment and/or Your Content and Software if:

(a)             any amount payable under this Agreement is not paid within 14 days of its due date;

(b)             Anchor reasonably believes that You are in breach, or anticipated breach, of the Acceptable Use Policy in a material way;

(c)             Anchor reasonably believes that Your use of the Services is detrimental to other users of the Hosted Environment, Network or the Data Centre;

(d)             there is an Emergency.

14.2         Where Anchor suspends the Services it will provide You with written notice advising You of the suspension, the reason for the suspension and the steps that You are required to take prior to the Service being resumed (if applicable).

14.3         You acknowledge and agree that:

(a)             during any period of suspension the Fees remain due and payable;

(b)             there may be a re-activation Fee payable by You prior to Anchor allowing the Services to be resumed.

Termination

14.4         Anchor may, without liability to You, terminate this Agreement, in part or whole, (including terminating the Service Period for any one or more Services) by giving You at least 60 days’ notice (provided that such notice may not be given so that the date of termination is during a Minimum Service Period).

14.5         Anchor may immediately terminate this Agreement, in part or whole, (including terminating the Service Period for any particular Service) by giving You written notice if:

(a)             You breach any of the provisions of clauses 5.6, 5.7, 10 or 15.7;

(b)             You breach any other provision of this Agreement and the breach has not been remedied within 14 days of written notice from Anchor specifying the breach;

(c)             You have not complied with any notice issued under clause 14.2;

(d)             You suffer any Insolvency Event;

(e)             there is a merger, sale of substantially all of the assets, or change of control, of You.  A “change of control” is deemed to occur when an entity acquires 50% or more of the voting shares or equity interest in You or 50% or more of the assets of You, in the event of a change of a majority of the Board of Directors (or majority of the partners if a partnership) of You or if there is a change of effective control of You;

(f)              a Force Majeure event prevents Anchor from performing all or substantially all of its obligations under this Agreement for a period exceeding 60 days; or

(g)             a Change in Law makes it commercial unviable (in the reasonable opinion of Anchor), or illegal, for Anchor to continue to provide the Services;

(h)             our agreement with a contractor ends for any reason and as a consequence Anchor cannot continue to supply all or part of the Service.

14.6         You may immediately terminate this Agreement, (including terminating all the Service Periods of all Services), it by giving Anchor written notice if:

(a)             Anchor breaches any provision of this Agreement and the breach has not remedied within 30 days of written notice from You specifying the breach;

(b)             You are entitled to under the provisions of the Service Level Agreement;

(c)             Anchor suffers an Insolvency Event; or

(d)             a Force Majeure event prevents Anchor from performing all or substantially all of its obligations under this Agreement for a period exceeding 60 days.

14.7         Where this Agreement may be terminated under the provisions of the Australian Consumer Law, You may also terminate this Agreement in accordance with those provisions in the Australian Consumer Law.

14.8         Anchor may use any technological means to enforce its rights under this Agreement, including preventing access to the Hosted Environment, Network or any of Your Content and Software.

Consequences of Termination

14.9         Termination of this Agreement for any reason does not:

(a)             release You from the obligation to pay any monies to Anchor whether payable before or after termination of this Agreement; or

(b)             discharge either Party from any liability which has been incurred by that Party prior to termination of this Agreement.

14.10      If this Agreement is terminated or the Service Period for a particular Service expires:

(a)             You must immediately pay to Anchor all monies that are outstanding under the Service that has been terminated or that are payable in respect of the Service that has been terminated, including any unbilled additional use Fees;

(b)             Anchor may re-assign, re-configure or re-use any IP addresses or other network numbers without any liability to You;

(c)             subject to any provision in this Agreement to the contrary, each Party must immediately return to the other Party or certify in writing to the other Party that it has destroyed, all copies and partial copies of the other Party’s Confidential Information or any material that includes the other Party’s intellectual property rights.

15           General

Notices

15.1         Any notice that is to be given under this Agreement:

(a)             must be in writing and signed by the person giving the notice; or

(b)             Anchor may give any notice (including a written notice) to You by sending You an email and such notice does not require a signature.

15.2         Any notice must be hand delivered to the address, sent by prepaid mail to the address, sent to the facsimile number of the recipient as set out in this Agreement and any notice provided by Anchor by email may be sent to any email address that Anchor uses to communicate with You, including an email address of Your Representative or of personnel in Your accounts or finance department.

15.3         Each Party must promptly notify the other of any change of address or contact details, and such details shall be incorporated into this Agreement from the date following the date of receipt.

15.4         Any notice sent in accordance with this Agreement is deemed to have been received:

(a)             if hand delivered; on the date of delivery;

(b)             if mailing; 3 Business Days after the date of mailing; or

(c)             if sent by facsimile; at the time set out on a transmission report from the machine from which the facsimile was sent which states that the facsimile was sent in its entirety to the facsimile number of the recipient;

(d)             if sent by Anchor to an email address of You; at the time that the email was sent, provided that Anchor does not receive a system generated notice of non-delivery within 1 hour of the time of sending the email.

Electronic Communication

15.5         The Parties consent to the use of electronic means to communicate and otherwise deal under this Agreement.

Variation

15.6         Except as otherwise stated in this Agreement, the terms and conditions of this Agreement can only be varied by written document signed by both Parties.

Subcontracting, Assignment and Novation

15.7         You must not transfer, assign or novate the whole or any part of this Agreement without the prior written consent of Anchor.

15.8         Anchor may subcontract, transfer, assign or novate the whole or any part of this Agreement, including the right to receive any amount payable under this Agreement without the prior written consent of You.  Notwithstanding any other provision in this Agreement, Anchor may disclose any of Your Confidential Information that is reasonably necessary to affect any transfer, assignment or novation.  You must promptly sign any documents reasonably requested by Anchor to affect such transfer, assignment or novation or effect any of Anchor’s other rights under this Agreement.

Waiver

15.9         No provision of this Agreement shall be deemed waived, amended or modified by either Party, unless the waiver, amendment or modification is in writing and signed by both Parties, unless stated otherwise in this Agreement.

Severability

15.10      If any provision of this Agreement is for any reason declared invalid or unenforceable the validity of the remaining portion of this Agreement will not be affected and the remaining portion will remain in force.

Rights are Cumulative

15.11      Except as expressly provided otherwise in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and there is no obligation to exercise a particular remedy.  If a Party is in breach of this Agreement, the non-breaching Party may avail itself of all other rights, remedies and causes of action available at law, in equity or otherwise, unless stated otherwise in this Agreement.

Entire Agreement

15.12      To the extent permitted by law:

(a)             this Agreement records the entire agreement between the Parties in relation to its subject matter.  The Agreement supersedes all previous negotiations, understandings or agreements in relation to the subject matter and expressly excludes the pre-printed terms and conditions of Your purchase order (if any);

(b)             all conditions, warranties, guarantees or rights, including any implied by custom or other circumstance, that are not expressly specified in this Agreement, are excluded.

Relationship of Parties

15.13      Nothing in this Agreement is to constitute or be deemed to constitute a partnership among the Parties, joint venture, fiduciary relationship or franchise arrangement.

15.14      Except as specifically set out in this Agreement, neither Party is authorised to act as agent for the other.

Applicable Law

15.15      The Agreement is governed by the laws of New South Wales, and both Parties agree to submit to the exclusive jurisdiction of the courts in New South Wales.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.