Coverage and Terminology
The terms and conditions contained herein (Hosting Terms of Service) are provided by Online Medical Pty Ltd (“Online Medical”) and should be read in conjunction with the Proposal, the Website Design and Development - Terms of Business and any other policy issued by Online Medical from time to time in relation to the operation of its business.
1. Application of these standard terms
1.1 A person or company that accepts a Proposal from Online Medical for provision of website development and hosting services also agrees to be bound by the terms and conditions contained in:
a) the Proposal
b) the Hosting Service Level Agreement, which can be viewed at here.
c) the Hosting removal of Customer Content Policy, which can be viewed here.
2. Provision of the services
2.1 Online Medical will commence supplying the hosting services (Services) to the Customer within seven (7) business days of the completion of the website.
2.2 Online Medical will continue to provide the Services unless suspended in accordance with paragraph 7 or until terminated in accordance with paragraph 9.
3.1 Charges for the Services (“Charges”) will be calculated according to the billing option and pricing structure for the Services provided to the Customer in the Proposal.
3.2 Charges for Services not prepaid by the Customer will be invoiced monthly.
3.3 Charges are exclusive of taxes, duties and government charges, other than income tax (“Taxes”) imposed or levied in Australia or overseas in relation to the supply of the Services. GST and other Taxes imposed on Online Medical shall be added to the Charges, and shall be paid in accordance with paragraph 4.
3.4 The Customer is liable for all Charges for Services accessed through the Customer’s identification or log-in information whether authorised by the Customer or not, other than unauthorised access resulting from the negligence or wrongful conduct of Online Medical or its employees or agents.
3.5 Charges may be modified in accordance with paragraph 11.
4.1 Online Medical provides a pre-paid service. Therefore the Customer must pay any Charges by the due date specified to the Customer (“Customer Account”) to receive the Services.
4.2 Online Medical is not required to refund any prepaid charges and will only do so at Online Medical’s discretion pursuant to paragraphs 7.1(d) and 9.
4.3 All overdue Customer Accounts will incur interest at the rate prescribed by the Supreme Court of Queensland.
4.4 Online Medical may refer Customer Accounts (which it has notified to the Customer are more than thirty (30) business days in arrears) to a debt collection agency, without further notice to the Customer.
4.5 The Customer must pay Online Medical on demand any expenses incurred by Online Medical as a result of the Customer’s failure to pay the Charges by the due date, including debt collection fees and Online Medical’s legal costs on an indemnity basis, regardless of whether Online Medical has commenced legal proceedings to recover the amount due.
4.6 If the Customer disputes the Charges payable on the Customer’s Account (“Dispute”), and has notified Online Medical of the Dispute and the reasons for it, the Customer may withhold the disputed amount of the Charges until the Dispute is resolved, but must not withhold any other part of the Charges.
4.7 The Customer must pay Online Medical the disputed amount of the Charges within sixty (60) business days of the due date for payment unless the Dispute has been resolved or referred by a party to a court, tribunal or other body with authority to resolve it.
5. Use of the services
5.1 The Customer must comply with:
- all laws and all reasonable directions from Online Medical in relation to the use of the Services; and
- any other reasonable policies Online Medical may notify to the Customer from time to time in connection with the provision or use of, or access to the Services.
5.2 If the Services include hosting services which incorporate material created by third parties, the Customer must obtain, at its own expense, all necessary authorisations for Online Medical to use or reproduce the material to the extent necessary to provide the Services.
5.3 The Customer must ensure any person who accesses the Services does not, use or attempt to use, the Services:
- to infringe the intellectual property rights of any person, including use, sale or transmission of software or other material which infringes copyright;
- to publish, distribute or issue any information or material which is obscene, defamatory, threatening or abusive, or which vilifies any group of persons;
- for any purpose or activity which is illegal, or to promote any such activity;
- to sell or offer to sell pornography or sex-related merchandise;
- to provide links to another website which contains any content referred to in paragraph (b) or is used for the purposes set out in paragraphs (c) and (d);
- to interfere with or disrupt Online Medical or its business, other Internet users or other service providers, or their computers, software or hardware, including by the utilisation of email spam techniques, propagation of computer worms and viruses; or
- to access without authorisation any other computer accessible via the Services.
5.4 The Customer will take all reasonable steps to ensure that the Customer’s hardware, software or network configuration (including IP addresses) are not used to cause any security breach or attack on Online Medical or other Customers’ hardware, software or network configurations.
5.5 The Customer may use CGI-Scripts with the Services, unless Online Medical considers a CGI Script adversely affects Online Medical Server performance or the integrity of the Online Medical computer network. The Customer may not share CGI-Scripts with domains not hosted by Online Medical.
5.6 The Customer must not run Background Daemons, other than on Virtual Private Server (VPS) accounts.
5.7 The Customer must use passwords of a least eight (16) characters, which include at least one (1) of each of a number, an uppercase letter and a lowercase letter, when accessing the Services. The Customer is responsible for all access and activities undertaken through their services. Online Medical is not responsible for any damages whatsoever arising from the disclosure of the Customer’s passwords or a third-party gaining access to the Customer’s services due to the actions or omissions of Customer, including an insecure or weak password selection by the Customer. If the Customer has reason to believe or is concerned that their Services have been compromised, or may be subject to attack, the Customer should notify Online Medical immediately.
5.8 The Customer must ensure that the information it provides to Online Medical is complete, accurate and up to date whilst Online Medical provides Services to the Customer.
5.9 The Customer must not run Game Servers or Game Server related applications on any Online Medical service.
6.1 Online Medical will perform backups of Customer Website Content to an offsite physical location. These backups are created initially with a full copy and then subsequent daily backups are created as “incremental backups”. Backups occur daily and store up to thirty (30) days of historical data.
6.2 The Customer agrees to perform any additional backups necessary to protect the Customer from incurring financial loss as a result of data loss related to the website or email services offered.
7. Suspension of services and removal of customer content
7.1 Online Medical may from time to time without notice to the Customer suspend the Services or disconnect or deny the Customer access to the Services if:
- the Customer breaches the any of the terms and conditions contained in this Terms of Service;
- the Customer provides Online Medical with false, incomplete or out of date information; or
- the Customer’s Account is more than thirty (30) business days in arrears.
- it is necessary to do so due to any technical failure of, or for the upgrading or scheduled, preventative or remedial maintenance of Online Medical’s computer systems and software;
- in Online Medical’s reasonable opinion, it is required by law to do so; and
- in Online Medical reasonable opinion, the Customer’s use of the Services adversely affects Online Medical Server performance or the integrity of the Online Medical computer network.
7.2 Services suspended under paragraph 7.1 will not be reinstated until the breach is remedied if capable of being remedied, or the account and interest is paid in full, and a fee of $75 for the administrative costs of reinstatement is paid.
7.3 The thirty (30) business day grace period outlined in 7.1c, is a privilege provided to our customers. This will not be extended under any circumstances. Online Medical reserves the right to increase the reinstatement fee in the event that there are multiple instances of non-payment by the same Customer.
7.4 Online Medical will compensate the Customer for suspension of service pursuant to paragraph 7.1(d) only, in accordance with the Service Level Agreement.
7.5 Online Medical may remove Customer Content in accordance with its Removal of Customer Content Policy available here.
8. Warranties and limitation of liability
8.1 Online Medical does not give any express warranties in relation to the Services, including warranties that:
- Customers will have continuous access to, or usage of the Services; or
- data stored on Online Medical Servers will not be lost or corrupted;
- it will be possible to restore Customer Content from Online Medical’s back up media; or
- it will be able to prevent unauthorised persons obtaining access to Customer Content.
8.2 Any term, condition, guarantee, or warranty which would otherwise be implied into this Standard Terms is excluded, to the degree permitted by applicable law.
8.3 Online Medical’s liability to the Customer in relation to the Services on any legal basis is limited, to the extent it is lawful to do so, to one or more of the following:
- the supplying of the Services again; or
- the payment of the reasonable costs of having the Services supplied again.
8.4 The Customer acknowledges that Online Medical does not and cannot control, supervise or edit any information or material accessed through the Services and that Online Medical is not responsible for any content or information accessed via the Services.
8.5 The Customer acknowledges that the Online Medical Services are not intended or authorised for use in circumstances where failsafe performance is required or where failures or errors in the operation of the Online Medical Services could lead to significant financial detriment, loss or damage, or to personal harm, and the Customer agrees not to use the Online Medical Services in such circumstances. The Customer will indemnify and keep indemnified Online Medical and its Related Persons from and against any loss, damage or liability resulting from the use of the Online Medical Services contrary to this clause.
8.6 Online Medical will not be liable to the Customer for any remote, indirect, consequential, special or incidental loss or damage, including without limitation, loss or damages resulting from loss of profit or loss of data or loss of electronic materials resulting from the Online Medical Services. The Customer will indemnify Online Medical and its Related Persons from and against any claim made against Online Medical or any of the Related Persons by a third party as a result of the Online Medical Services provided by Online Medical to the Customer.
8.7 In no event will Online Medical’s aggregate liability to the Customer for damages on any basis under this User Agreement or associated with use of Online Medical Services exceed the cost of the subscription for the month immediately preceding the date of Customer’s claim.
9.1 Either party may terminate this Agreement by giving notice to the other if the other commits a material breach of any provision of the Standard Terms which:
- can be rectified, and fails to rectify the breach within thirty (30) business days of notice being given by the party alleging the breach, describing the breach and the action which must be taken to rectify it; or
- cannot be rectified.
9.2 Online Medical may terminate a Standard Terms by giving notice to the Customer if the Customer knowingly provides false or misleading information to Online Medical, abuses or threatens staff or the relationship is not economically viable.
9.3 Online Medical at its own discretion may choose not to renew a customer's subscription. In such instances, twenty-one (21) day’s notice will be given. A copy of the website will be provided to the client upon a decision not to renew and at the conclusion of the notice period.
9.4 The Customer may terminate a Standard Terms by giving Online Medical notice at least five (5) business days before the end of any period for which the Customer has paid for provision of Services (“Paid-up Period”) with effect from the end of that Paid-up Period.
9.5 If this Agreement is terminated by Online Medical under paragraph 9.1 or 9.2,all outstanding Charges will become immediately payable by the Customer to Online Medical. Outstanding charges are due at the time the termination notice is given.
9.6 Online Medical is not required to refund any prepaid Charges, unless this agreement is terminated by the Customer under paragraph 9.1.
9.7 In the event that the Hosting agreement is terminated, a copy of the website will be provided to the client. Best efforts will be undertaken to ensure that the website copy is provided in a suitable format.
9.8 Online Medical will erase, in a timely fashion upon termination of a Online Medical Service, all data (including software, code, and backups) relating to that Service from Online Medical systems unless Online Medical and the Customer have agreed in writing the data is to be preserved for an agreed period of time. All costs associated with the storage of such data will be borne by the Customer.
10.1 Online Medical may sub-contract the performance of its obligations under this Agreement without notice to or consent from Customer.
11. Variation of Standard Terms
11.1 Online Medical may modify the Standard Terms (including by varying the Services or the Prices) by email sent to the last email address provided to Online Medical by the Customer, or by changing a renewal Proposal. Modifications shall not take effect until the later of the day following the last day of the Customer’s current Pre-paid Period, or thirty (30 business days after the Notice of Modification is given. Any use of the Services after the date on which modification takes effect will constitute acceptance of the modification.