1. Terms and Amendment Procedure
| 1.1 | You agree that TRUECMS or its third party service provider (a "Supplier") will supply the Services to you on the terms set out in this agreement. |
| 1.2 | This agreement commences on the date upon which TRUECMS confirms to you by email or any other written medium that a Service has been activated ("Commencement Date"). |
| 1.3 | The parties agree that the initial period that TRUECMS or its Supplier will supply the Services/s to you for the "Initial Period" specified in the written confirmation by TRUECMS to you of receipt of payment by you of the Plan Cost applicable to the Services for the Initial Period ("Initial Period Payment Confirmation"). Thereafter, the Service/s will be automatically renewed indefinitely for the same period as the period specified in the Initial Period Payment Confirmation (each a "Renewal Period") unless you have terminated the provision of any Service/s in accordance with clause 14, upon your payment of the applicable renewal fees and charges prior to the expiry of the relevant period and subject to the terms and conditions of this agreement. |
2. Services
| 2.1 | You shall at all times keep your password and log-in details secure. You agree that TRUECMS cannot and does not know whether you have given access to your account and to the Services to other people (whether knowingly or not). You therefore agree that you are totally responsible for:
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| 2.2 | You agree that you are solely responsible for any of your content residing on the Supplier's servers. | ||||
| 2.3 | You agree that you are solely responsible for the back-up of your content and any other files (including, without limitation, email files, if applicable) unless otherwise agreed with TRUECMS. | ||||
3. Billing and Payment
| 3.1 | You must pay for the Services in accordance with the prices and charges published by TRUECMS on its website located at http://TRUECMS.net.au (as amended from time to time in accordance with clause 1.4). |
| 3.2 | You must pay all prices and charges for the Services and other amounts incurred by you or any designated users or incurred as a result of any use of the Services (whether authorised or not) in advance, and, in accordance with the billing provisions specified in the Initial Period Payment Confirmation. |
| 3.3 | Prices and charges published on TRUECMS Website are inclusive of any government taxes or charges unless otherwise stated. |
| 3.4 | |
4. Cancellation
| 4.1 | You may cancel a Service/Services in accordance with this clause 4. This clause 4 shall not apply where you terminate this agreement and cease obtaining the Services from TRUECMS pursuant to clause 14.6. | ||||
| 4.2 | You may cancel a Service/s in accordance with clause 14.3. Where you cancel a Service/s in accordance with clause 14.3, you shall be required to pay TRUECMS the following cancellation fees: | ||||
5. Acceptable Use Policy and Privacy Policy
| 5.1 | You agree to comply with TRUECMS's Acceptable Use Policy located at as varied from time to time by TRUECMS in accordance with clause 1.4 ("AUP"). If we receive notice of, or otherwise become aware that you have failed to comply with any provision of this AUP, in addition to any other rights of TRUECMS under this agreement, you agree that TRUECMS or its Supplier may immediately take corrective action, including suspension of any and all Services, or, in the case of TRUECMS, terminating this agreement. In the event that any such corrective action due to a violation of the AUP occurs, TRUECMS shall not refund to you any fees paid to TRUECMS prior to such corrective action. |
| 5.2 | You agree to comply with TRUECMS's Privacy Policy located at as varied from time to time by TRUECMS from time to time in accordance with clause 1.4 ("Privacy Policy"). |
| 5.3 | You agree that the AUP and the Privacy Policy form part of the terms and conditions of this agreement. |
6. Supplier Agreements and Licences
| 6.1 | You agree that TRUECMS or its Supplier shall maintain and control ownership of all IP numbers and addresses that may be assigned to you by TRUECMS's Supplier and TRUECMS or its Supplier may, in each's respective sole discretion, change or remove any and all such IP numbers and addresses. |
| 6.2 | You expressly grant to TRUECMS and its Supplier a licence to cache the entirety of your Website, including data and content supplied by you and/or third parties, hosted by TRUECMS's Supplier under this agreement. You agree that you shall be responsible for obtaining any agreements and/or consents required of any third party in connection with the grant of this licence to TRUECMS and its Supplier. You also agree that any such caching is not an infringement of any of your intellectual property rights or any third party's intellectual property rights. |
7. Supplier's Equipment
| 7.1 | You acknowledge that TRUECMS's Supplier is acting only as a reseller and/or provider of any hardware, software, circuit and equipment (collectively, the "Equipment") offered to you under this agreement that was manufactured by a third party. |
| 7.2 | You agree that you shall only be entitled to use any Equipment provided by TRUECMS's Supplier in connection with any permitted use of the Services as specified in this agreement or as notified to you by TRUECMS from time to time. |
| 7.3 | You shall not resell, transfer, export or re-export any Equipment, or any technical data derived from any Equipment, in violation of any law applicable to you. |
8. Your WarrantiesYou warrant that:
| 8.1 | you have not entered into this agreement or obtained any Services on the basis of, or in reliance on, any statement or representation (whether made orally or in writing and regardless of the medium used) made by either TRUECMS or its Supplier concerning this agreement or any of the Services, other than any statement or representation contained in this agreement; |
| 8.2 | you are at least 18 years of age; |
| 8.3 | you will conduct such tests and computer virus scanning as may be necessary to ensure that any data uploaded or downloaded to and from the Server of TRUECMS's Supplier by you does not contain any computer virus and will not in any way, corrupt the data or systems of any person (including, without limitation, TRUECMS or its Supplier); |
9. Our Disclaimer of Warranties
| 9.1 | You acknowledge and agree that neither TRUECMS nor its Supplier exercises any control over, and accepts no responsibility for, the content of the information passing through the Supplier's host computers, network hubs and points of presence or the Internet, nor, for any products and/or services that you may determine to offer for supply, or supply via your website, the Internet or otherwise ("Your Products and Services"). |
| 9.2 | To the extent permitted by law, neither TRUECMS nor its Supplier, nor any employees, affiliates, agents, suppliers, third-party information providers, merchants, licensors nor the like (each a "Relevant Party") of either TRUECMS or the Supplier, make any warranties of any kind, either expressed or implied, statutory or otherwise, relating in any way to the subject matter of this agreement, including, but not limited to, warranties of merchantability or fitness for a particular purpose, or non-infringement for the Services or any equipment provided, and all such warranties are hereby excluded. |
10. Indemnification
You will indemnify and defend TRUECMS and its Supplier and all directors, officers, employees, and agents of TRUECMS and its Supplier (each an "Indemnified Party") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative) and expenses (including but not limited to reasonable legal fees) incurred by any Indemnified Party arising out of, or relating to, Your Products and Services (if applicable) and/or the use of the Services by you, including the implementation of the AUP by TRUECMS, any action taken by TRUECMS or its Supplier in accordance with the AUP, or, any breach or violation of the AUP. Such claims shall include, but shall not be limited to, claims based upon trademark, service mark, trade name, copyright and patent infringement, trademark dilution, tortious interference with contract or prospective business relations, unfair competition, defamation or injury to reputation, or other injuries or damage to business.
11. Limitation of Liability
| 11.1 | You agree that neither TRUECMS nor its Supplier shall be liable for any indirect, incidental, special or consequential damages, or loss of profits, revenue, data or use, suffered by you or any third party, whether in an action in contract, tort or strict liability or other legal theory, even if TRUECMS or its Supplier (as the case may be) has been advised of the possibility of such damages. |
| 11.2 | Subject to clause 11.1, you further agree that the aggregate liability of TRUECMS and its Supplier for any damages, losses and causes of actions whether in contract or tort (including negligence or otherwise) shall not exceed the actual dollar amount paid by you for the Service which gave rise to such damages, losses and causes of actions during the 12-month period prior to the date the damage or loss occurred or the cause of action arose. |
12. Intellectual Property
| 12.1 | You acknowledge that all right, title and interest in any and all technology, including the software that is part of or provided with the Services and any trademarks or service marks of TRUECMS or its Supplier (collectively, "Our Intellectual Property") is vested in TRUECMS, its Supplier and/or the licensors of TRUECMS or its Supplier (as the context requires). |
| 12.2 | Unless otherwise specifically provided in this agreement, you agree that you shall have no right, title, claims or interest in or to Our Intellectual Property. |
13. Confidential Information
| 13.1 | You acknowledge that, in the course of the performance of this agreement, you may have access to customer information and communications, including proprietary information claimed to be unique, secret, or confidential, and which constitutes the exclusive property and trade secrets of TRUECMS or its Supplier ("Confidential Information"). You agree to maintain the confidentiality of the Confidential Information and to use the Confidential Information only to the extent necessary for legitimate business uses in connection with this agreement. Upon request of TRUECMS or on termination or expiration of this agreement, you shall return the Confidential Information of TRUECMS or its Supplier then in your possession to TRUECMS or its Supplier. Nothing in this agreement shall prohibit or limit your use of information which (a) is now, or hereafter becomes, publicly known or available through lawful means; (b) is rightfully in your possession, as evidenced by your records; (c) is disclosed to you without confidential or proprietary restriction by a third party who rightfully possesses and rightfully discloses the information; (d) is independently developed by you without any breach of this agreement; (e) is the subject of a written permission to disclose provided by TRUECMS and/or its Supplier (as the context requires); or (f) is required by law to be disclosed. |
| 13.2 | You agree that TRUECMS may disclose your account and other information in accordance with the AUP and Privacy Policy. |
14. Suspension or Termination of this agreement
| 14.1 | In addition to any other rights of suspension under this agreement, TRUECMS or its Supplier may from time to time without notice to you suspend a Service, or disconnect or deny you access to any Service: | ||||
15. Force Majeure
Neither TRUECMS nor its Supplier shall be liable for failure or delay in performing its obligations under this agreement if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Services.
16. Miscellaneous
| 16.1 | The law in force in Victoria, Australia governs this agreement and the transactions contemplated by this agreement. |
| 16.2 | In the event it is necessary for TRUECMS to enforce its rights under this agreement, you agree to pay all fees incurred by TRUECMS (including, but not limited to, legal fees and collection agency fees) |
