1.1 These are the standard terms and conditions under which NetNames Pty Ltd (ACN 136 470 838) ("NetNames Australia") offers to supply Services from time to time.
1.2 Please read these terms and conditions carefully before requesting any Services from NetNames Australia. It is a condition of a Customer being supplied Services by NetNames Australia that the Customer agree to and comply with these terms and conditions.
1.3 The Agreement between NetNames Australia and the Customer comprises:
1.3.1 these NetNames Australia Standard Terms and Conditions;
1.3.2 any other Terms and Conditions specified to apply in a Purchase Order; and
1.3.3 a Purchase Order.
1.4 In the event of any inconsistency between the documents comprising this Agreement, the documents will be interpreted in the order of priority listed in clause 1.3.
1.5 Subject to clause 1.6, NetNames Australia may vary any of its Terms and Conditions at any time by obtaining the Customer’s consent or by placing a general notice on its website. If NetNames Australia varies Terms and Conditions under this clause 1.5, it will endeavour to provide email notification to the Customer. If the Customer does not accept the varied Terms and Conditions, it may terminate this Agreement by giving notice to NetNames Australia within 20 Business Days of the general notice being published on NetNames Australia’s website.
1.6 Clause 1.5 does not apply to variations to the Fees, which may only be made by NetNames Australia in accordance with 5.5.
2.1 This Agreement commences on the Effective Date and, unless terminated earlier in accordance with its terms, continues for the Initial Term.
2.2 Subject to the termination rights set out in this Agreement, this Agreement will automatically renew, without further notice, for the Renewal Period on expiry of the Initial Period and on expiry of each subsequent Renewal Period.
3.1 NetNames Australia will supply the Services to the Customer in accordance with this Agreement and with reasonable care and diligence as would be expected of a professional providing services of the same kind as the Services.
3.2 All Services are subject to such limitations and conditions (including limitations and conditions imposed by third parties) as are notified to the Customer by NetNames Australia from time to time.
3.3 NetNames Australia may change, modify or discontinue a Service described in a Purchase Order at any time by providing at least 20 Business Days notice to the Customer. If the Customer does not accept a change made by NetNames Australia under this clause, the Customer may terminate this Agreement by notice to NetNames Australia within 10 Business Days of receiving notice of the change from NetNames Australia.
3.4 NetNames Australia is not liable to the Customer for any delay or failure to perform its obligations under this Agreement if the delay or failure is caused or contributed to by an event that is beyond NetNames Australia’s reasonable control (including events caused or contributed to by third parties, software malfunction or the Customer’s failure to comply with this Agreement). NetNames Australia will notify the Customer if it wishes to rely on its rights under this clause.
4. Customer obligations
4.1 The Customer must:
4.1.1 comply with all laws, regulations, standards and codes applying to its use of the Services;
4.1.2 provide NetNames Australia with all consents, information, approvals, advice, materials, resources and instructions requested by NetNames Australia in a timely manner; and
4.1.3 promptly comply with any reasonable directions given by NetNames Australia in connection with supply of the Services.
4.2 The Customer acknowledges and agrees that NetNames Australia will rely on consents, information, approvals, advice, materials, resources and instructions given by the Customer and is entitled to assume that information provided by the Customer is complete, true and correct.
4.3 The Customer is fully responsible for any acts or omissions made by it in connection with any advice or information supplied by NetNames Australia (including the consequences of implementation or reliance on such advice or information).
4.4 The Customer’s receipt of Services from NetNames Australia does not grant it any rights to the Materials used by NetNames Australia to supply the Services.
4.5 NetNames Australia’s supply of the Services is subject to the Customer’s compliance with this clause 4.
5.1 The Fees payable for each Service are as specified in a Purchase Order. If no Fee is specified in in a Purchase Order for a particular Service, the hourly rates specified in a Purchase Order will be used to calculated the Fee for that Service.
5.2 NetNames Australia will invoice the Customer for the amounts payable by the Customer under this Agreement at the times specified in a Purchase Order. Invoices will be sent to the Customer contact specified in a Purchase Order (or other contact as notified by the Customer).
5.3 The Customer must:
5.3.1 pay the Fees and any applicable taxes; and
5.3.2 reimburse any third party expenses incurred by NetNames Australia to supply the Services with the approval of the Customer (on a pass through basis),
to NetNames Australia within 30 days of the date of the applicable invoice.
5.4 If the Customer fails to pay an invoice as required under this clause 5, NetNames Australia may suspend performance of its obligations under this Agreement until the invoice is paid in full. NetNames Australia will not be liable to the Customer for any Services that are not supplied during a suspension under this clause.
5.5 NetNames Australia may increase the Fees with effect from each 1 July during the Term by giving notice to the Customer. If the Customer does not accept the increased Fees, it may terminate this Agreement by giving notice to NetNames Australia within 20 Business Days of the date of the notice advising of the Fee increase.
6. Confidentiality and privacy
6.1 Each party must only use the Confidential Information of the other party for the purpose of performing its obligations under this Agreement.
6.2 Each party must not disclose the Confidential Information of the other party except:
6.2.1 with the consent of the other party;
6.2.2 to its employees, agents or contractors on a ‘needs to know’ basis for the purpose of performing obligations under this Agreement;
6.2.3 if required to do so by law or a court or tribunal;
6.2.4 as required in connection with any legal proceedings relating to this Agreement; or
6.2.5 to its professional advisors on a confidential basis.
6.3 A party may require the return of its Confidential Information at any time by giving notice to the other party.
6.4 The Customer acknowledges that the terms of this Agreement (including the Fees) are Confidential Information of NetNames Australia.
6.5 NetNames Australia will at all times comply with any privacy laws applying to it in connection with any personal information collected or received by NetNames Australia under this Agreement.
7. Intellectual property
7.1 NetNames Australia owns all rights (including all intellectual property rights) in all Developed Material on creation.
7.2 The Customer grants NetNames Australia a non-exclusive, non-transferable, royalty-free licence for the term of this Agreement to use, modify, distribute and reproduce Customer Material for the purposes of this Agreement.
7.3 The Customer warrants to NetNames Australia that it holds (and will continue to hold) the rights to use and licence the Customer Material as contemplated under this Agreement and that NetNames Australia’s use of Customer Material for the purposes of this Agreement will not infringe the rights of any third person.
7.4 The Customer acknowledges and agrees that, where NetNames Australia uses third party Material to supply the Services, NetNames Australia does not give or make any warranty or representation as to the merchantability or suitability for a particular purpose of such Material or that such Material (or the Customer’s use of such Material) will not infringe any third person’s rights.
8. Disclaimers and liability
8.1 The Services supplied under this Agreement will be performed in a professional manner. NetNames Australia does not warrant that the Services will be uninterrupted or error free or meet the Customer’s requirements or otherwise be fit for any particular purpose.
8.2 The warranties and conditions expressly stated in this Agreement are in lieu of all other warranties, conditions and other terms, express or implied, all of which are excluded to the maximum extent permitted by law.
8.3 Where any Act of Parliament (Act) implies any term, condition or warranty (implied term) into this Agreement, and that Act avoids or prohibits provisions in a contract excluding or modifying the application of, or exercise of, or liability under the implied term, that implied term is deemed to be included in this Agreement and NetNames Australia’s liability for any breach of the implied term (or any other warranty or condition given by NetNames Australia under this Agreement) is limited, at NetNames Australia’s option, to resupply of the Services or paying the cost of having the Services resupplied.
8.4 The Customer indemnifies NetNames Australia from and against any damages, loss or expenses suffered or incurred by NetNames Australia as a result of a third party claim against NetNames Australia caused or contributed to by an act or omission of the Customer or its employees, agents or contractors.
8.5 NetNames Australia’s aggregate and total liability for any and all claims arising under or out of this Agreement (including for negligence) or otherwise howsoever arising that is not already limited under this clause 8 is limited to direct damages and will not exceed the amount of Fees paid or payable by the Customer during the Initial Term.
8.6 To the maximum extent permitted by law, NetNames Australia is not liable to the Customer for any incidental, special, indirect, consequential, or punitive losses of any character, including damages for loss of business or goodwill, loss of opportunity, work stoppage, system or website disruption, loss of information or data, loss of revenue, profit or anticipated savings, any other commercial or economic loss of any kind, whether arising in contract, breach of warranty, tort (including negligence), product liability, or otherwise, even if NetNames Australia has been advised of the possibility of such damages and even if a remedy provided in this Agreement is found to have failed of its essential purpose.
9. Dispute resolution
9.1 The parties will use reasonable endeavours to resolve any disputes that arise between them in relation to this Agreement.
9.2 If the parties agree, a dispute may be referred to a mediation administered by the Australian Commercial Disputes Centre according to its mediation guidelines.
10.1 Either party may terminate this Agreement with effect from expiry of the Initial Term or the then current Renewal Period by giving notice to the other party at least 30 days before expiry of the Initial Term or Renewal Period (as applicable).
10.2 Either party may terminate this Agreement with immediate effect by notice to the other party if:
10.2.1 any insolvency event occurs in relation to the other party, if the other party is wound up, dissolved, becomes insolvent or has a liquidator, provisional liquidator, administrator, receiver, manager or receiver and manager appointed; or
10.2.2 if the other party commits a breach of this Agreement but does not remedy the breach within 30 days of receiving notice of the breach from the first party.
10.3 NetNames Australia may terminate this Agreement for convenience, without cause, by giving the Customer 30 days notice.
10.4 On termination of this Agreement:
10.4.1 the Customer must pay the Fees for all Services completed as at the effective date (on a pro rata basis if applicable) to NetNames Australia as a debt due and immediately payable;
10.4.2 the Customer must reimburse NetNames Australia for all third party expenses incurred by NetNames Australia with the Customer’s approval before the effective date of termination; and
10.4.3 any licences granted to the Customer by NetNames Australia under this Agreement are revoked with immediate effect.
10.5 Termination or expiry of this Agreement will not affect:
10.5.1 the operation of clauses 6, 7, 8, 10.4, 11, 12.1, 12.2, 12.3, 12.5, 12.7, 13, this clause 10.5 and any unfulfilled payment obligations, and any other provisions which, by their terms or nature, survive termination or expiry; or
10.5.2 any rights and remedies already accrued by either party under, or in respect of any breach of, this Agreement.
11.1 In this clause, words that are defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning as in that Act.
11.2 Unless expressly stated otherwise, all consideration payable under this Agreement in relation to any supply is exclusive of GST.
11.3 If GST is payable in respect of any supply made by a supplier under this Agreement, the recipient will pay to the supplier an amount equal to the GST payable on the supply at the same time and in the same manner as the consideration for the supply is to be provided under this Agreement, subject to the recipient receiving a tax invoice in respect of the supply.
12.1 This Agreement may only be varied or replaced by a document duly executed by the parties.
12.2 This Agreement contains the entire understanding between the parties as to the subject matter contained in it. All previous agreements, representations, warranties, explanations and commitments, expressed or implied, affecting this subject matter are superseded by this Agreement and have no effect.
12.3 A single or partial exercise or waiver of a right relating to this Agreement does not prevent any other exercise of that right or the exercise of any other right.
12.4 NetNames Australia may subcontract the performance of any of its obligations under this Agreement.
12.5 NetNames Australia may assign, novate or transfer its rights or obligations under this Agreement by giving the Customer 30 days notice. The Customer must execute such documents and do such things as the Customer reasonably requires to give effect to such assignment, novation or transfer. The Customer must not assign, novate or otherwise transfer any of its rights or obligations under this Agreement without the prior consent of NetNames Australia.
12.6 Unless otherwise provided in any applicable Terms and Conditions, no party to this Agreement has the power to obligate or bind any other party and nothing in this Agreement is to be construed or deemed to constitute a partnership, joint venture or employee, employer or representative relationship between NetNames Australia and the Customer.
12.7 All notices and communications given under this Agreement must be given in writing and directed to the recipient’s contact at the address specified in a Purchase Order (or varied by any notice).
12.8 The parties agree that they may communicate with each other electronically. The Customer acknowledges that electronic transmissions are inherently insecure, can be corrupted or intercepted, may not be delivered and may contain viruses. Neither party is responsible to the other for any loss suffered in connection with the use of email for the purposes of this Agreement.
12.9 Each party must promptly execute and deliver all documents and take all other action necessary or desirable to effect, perfect or complete the transactions contemplated by this Agreement.
In this agreement unless otherwise indicated:
Agreement means the agreement between NetNames Australia and the Customer for the supply of Services, comprising the documents specified in clause 1.3 of these terms and conditions.
Confidential Information means, in respect of a party, any information designated by that party as confidential or which the other party ought reasonably know is confidential to that party which is disclosed under this Agreement, excluding information which:
(a) is or becomes part of the public domain other than through breach of this Agreement or which the other party can demonstrate was in its possession on or before the Effective Date;
(b) was independently developed by the other party; or
(c) is lawfully obtained by the other party independently of this Agreement.
Customer means the person described as such in a Purchase Order.
Customer Material means Material provided by the Customer to NetNames Australia under this Agreement.
Developed Material means any Material developed or created by NetNames Australia under this Agreement.
Effective Date means the date described as such in a Purchase Order.
Fees means the fees specified in a Purchase Order.
Initial Term means the period described as such in a Purchase Order.
Materials means anything in a material form including equipment, hardware, computer software, data, documentation, designs, drawings, reports, notes, calculations, specifications, photographs, audio-visual materials, recordings, manuals and tools (and includes information stored in an electronic form).
Purchase Order means a purchase order signed by NetNames Australia and the Customer and forming part of this Agreement in accordance with clause 1.3.
Renewal Period means the period described as such in a Purchase Order.
Services means the services described in a Purchase Order.
Terms and Conditions means terms and conditions of NetNames Australia published from time to time at http://www.webip.com.au/terms-policies/.
14.1 This Agreement is governed by and is to be construed under the laws of Victoria.
14.2 In this Agreement (unless a contrary intention appears):
14.2.1 a person includes the legal personal representatives, successors and permitted assigns of that person;
14.2.2 a reference to this or other document includes the document as varied or replaced;
14.2.3 a reference to ‘$’ is a reference to Australian dollars;
14.2.4 a reference to an Act includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
14.2.5 a reference to a clause, Purchase Order or party is a reference to a clause, Purchase Order or party to this Agreement;
14.2.6 headings are for convenience only and do not affect the interpretation;
14.2.7 where a word is defined, its other grammatical forms have a corresponding meaning; and
14.2.8 where the expression including or includes is used it means ‘including but not limited to’ or ‘including without limitation’.
14.3 If a provision in this Agreement is held to be illegal, invalid, void, voidable or unenforceable, that provision must be read down to the extent necessary to ensure that it is not illegal, invalid, void, voidable or unenforceable. If it is not possible to read down a provision as required in this clause, that provision is severable without affecting the validity or enforceability of the remaining part of that provision or the other provisions in this Agreement.
14.4 This Agreement may be executed in a number of counterparts all of which taken together constitute one instrument.