FastDesign Web Hosting and Domain Name Services
This is an important document. It sets out the Terms and Conditions on which Bilt Estate Pty Ltd trading as Fastdesign Hosting [ABN 43 159 286 987] (“FastDesign”) provides Shared Web Hosting and/or Domain Names Services to you, the Customer. You are required to accept these Terms and Conditions when you agree to a FastDesign Plan. When you have accepted a Plan these Terms and Conditions become a legal agreement between you and FastDesign Pty Ltd. Please read it carefully. You can always access and review these Terms and Conditions through the web site www.fastdesign.com.au. The web site www.fastdesign.com.au and its contents are owned and operated by Bilt Estate Pty Ltd (“FastDesign”).
1.1. These Terms and Conditions cover the Plan, Shared Web Hosting Services and (if appropriate) Domain Name Services (together or separately referred to as “Services”). Shared Web Hosting means that the Customer’s website is hosted with other websites belonging to other customers on a web server connected to the Internet.
1.2. Shared Web Hosting Services: includes:
a) internet connectivity services (“Bandwidth”),
b) use of equipment including the server and other equipment used in internet connectivity services (“Hardware”), and
c) licensing of the associated operating system and web server applications (“Software”), all as detailed and for the Fees set out in the Online Plan which Customer has selected.
1.3. Shared Web Hosting Service Levels: FastDesign will provide the Services in accordance with the Service Level Agreement applicable to the Plan selected by Customer.
1.4. Domain Name Services: includes the registration and maintenance of domain names through FastDesign’s preferred domain name registrar in the following top level domains (“TLDs”):
a) au (Australia)
b) uk (United Kingdom)
c) nz (New Zealand); and
d) gTLD Global (com net org biz info)
2. Domain Name Regulation
2.1. The registration and administration of domain names is conducted pursuant to general policies determined and promulgated by the Internet Corporation for Assigned Names and Numbers (”ICANN”).
2.2. ICANN has delegated the registration and administration of particular TLDs (au, uk etc) to accredited Domain Name Registrars who conduct the registration and administration of domain names in those TLDs according to general ICANN policies, as interpreted by each Domain Name Registrar. There may accordingly be significant differences in administration of domain names for particular TLDs.
2.3. In order to purchase a domain name, Customer enters into a registration agreement with FastDesign’s domain name registrar relating to the relevant TLD and its administration of that TLD. As there may be significant differences between agreements relating to each TLD, Customer must carefully review and agree to, and accept sole responsibility for agreeing to, each particular registration agreement.
3. Domain Names
3.1. Registration: FastDesign accepts no responsibility for the refusal of a domain name registrar to register a particular domain name, and Customer irrevocably waives any rights of any kind whatsoever against FastDesign arising out of the refusal of a domain name registrar to register a particular domain name.
3.2. Renewal: ICANN policies do not permit domain name registrars to solicit nor pay fees on behalf of Customers for renewal of domain names. It is Customer’s sole responsibility, on receiving a notice for renewal of a domain name, to promptly pay all fees for renewal or risk loss of the domain name. Neither FastDesign nor domain name registrar accepts liability for any failure, for any reason whatsoever, to renew a domain name on a timely basis.
3.3. Cancellation: ICANN policies require cancellation of domain names in certain circumstances, including fraud, provision of false registration details, interference with the rights of third parties and other grounds. A Customer is not entitled to a refund of registration fees, in whole or in part, on any such cancellation. FastDesign does not, under any circumstances, refund any registration fees, in whole or in part, on any cancellation of a domain name by a domain name registrar. It is the sole responsibility of Customer to review and adhere to the terms and conditions of the agreement for each domain name, including without limitation the terms and conditions which may lead to cancellation of domain names.
4. Project Timelines
4.1. FastDesign estimates that your site can be created in under 28 days, unless otherwise specified prior to commencing the project.
4.2. The above time frame is an estimation only and projects can be delayed by a number of factors including (but not limited to) non compliance by the Customer with the instructions to or requests from FastDesign, incorrect content being supplied to FastDesign and FastDesign being unable to contact the Customer for prolonged periods of time. The Customer must ensure that FastDesign has accurate contact details for them.
4.3. The Customer must make every effort to follow the instructions provided by FastDesign and provide the required information to FastDesign in order to facilitate delivery times and correct specifications.
4.4. Delays in providing the required information to FastDesign may result in delays in product delivery and also may result in the Customer incurring additional charges for administration time.
4.5. FastDesign will make all reasonable efforts to provide the product by the estimated date but does not accept liability for any costs incurred, loss or damage (including consequential loss or damage) compensation or loss of earnings due to any failure to meet agreed deadlines.
4.6. In order to enable FastDesign to complete the project within a reasonable time frame, FastDesign may move the Customer site to the next stage of development in circumstances Where:
a) FastDesign does not receive any feedback or changes from the Customer within requested; or 14 days of such items being
b) FastDesign does not receive content from the Customer within 14 days of it being requested.
4.7. FastDesign, in its sole discretion, reserves the right to develop the Customer site without first receiving their progress payment in the event that FastDesign does not receive your content or payment within 14 days of having requested it. In these circumstances, such progress payment will then become due and payable upon the Customer receiving from FastDesign their site preview link. If FastDesign elects to build the Customer site without first receiving content from them, standard template content will be used which can be changed by the Customer using the Content Management System once the site is handed over to you.
4.8. In the event that FastDesign does not receive any final changes to be made to the site from you within 14 days of having requested such details from the Customer, then FastDesign reserves the right to hand over the site to the Customer, at which time final payment will become immediately due and payable.
5. Content, Design and Package Restrictions
5.1. Each Plan has certain design and functionality restrictions. It is the Customers responsibility to understand these restrictions prior to commencing any project. The Customer should discuss any queries they may have with their consultant and also refer to the examples FastDesign has provided to them which fall within their budget range, and refer to any documentation that FastDesign has provided to the Customer.
5.2. During various stages of the design process FastDesign will request from the Customer certain information and content. The Customer should ensure that the information and content that they provide to FastDesign is correct and is their final version. FastDesign cannot accept any revised content once the Customer has submitted their content. Any revisions to content may result in you incurring additional costs.
5.3. Where pages of content are specified, a "Page" consists of up to 1 A4 page of text and up to 5 images. If the Customer requires more content than this on any one page, they should advise FastDesign accordingly so that FastDesign can provide you with a quote for the extra content
5.4. Where a gallery of images is used, up to 20 images can be entered by FastDesign for the Customer. Additional images may incur additional costs. The Customer should note that a gallery counts as 1 page.
5.5. When FastDesign provides the Customer with design layouts for approval, these design layouts represent the suggested design for the home page of the site. The Customer must understand that the inner pages of the site will follow a simpler design as there is more information to be presented. The Customer should ensure that they ask their consultant for more information if they are unclear on this.
5.6. FastDesign uses the content in the form that is provided to FastDesign by the Customer and does not conduct spelling or grammar checks. FastDesign will not write the Customer content for them unless the Customer has requested that this be provided as a separate service which will incur additional costs. The Customer is solely responsible for the content of the site and accordingly FastDesign will treat the submitted content as the final version of that content If the Customer finds they have mistakes in their submitted content, the Customer is able to change the content through the Content Management System if there is one attached to their Plan.
5.7. FastDesign includes a set number of rounds of changes during its site production process. The standard number of rounds of changes is 3. Any extra changes required by the Customer may incur additional costs and such extra changes can be purchased during the sales process. FastDesign accepts no responsibility for ensuring that such changes are error free.
5.8. Changes must be submitted in one email and one email of changes (within the scope of the project) is considered one round of changes. In the event that FastDesign makes any mistakes or omissions in implementing the changes that you have requested, FastDesign will rectify this at its own expense.
5.9. The Customer ensure that they limit their changes to comply with the agreed specifications. Failure to do this may result in you incurring additional costs.
5.10.FastDesign may include a link to its own website at the footer of the Customer site and, where such link is so included, the Customer must not take any steps to remove this link. FastDesign reserves the right to change any such links from time to time.
6.1. the Customer is expected to test fully any application or programming relating to the site developed by FastDesign for them before making such site generally available for use. Where "bugs", errors or other issues are found after the site is live, FastDesign shall endeavour (but is not obliged to) to correct these issues to meet the standards of function outlined in these terms and conditions.
7. Fees and Payment Terms
7.1. The total cost of the Customer Plan and any fees are set out in the quote provided to them by FastDesign, the scope of work and any ad hoc quotes that may be provided to the Customer by FastDesign from time to time. Details regarding costs can also be obtained from the Customer sales consultant by request. The Customer must ensure that they are aware of any costs and ongoing fees before they elect to proceed.
7.2. Any monthly fees attached to the Customer Plan must be paid in full in order to ensure service continuity. the Customer site may be suspended or discontinued if your fees fall overdue outside of FastDesign payment terms.
7.3. The Customer initial website consultations are included in your quoted project cost and form part of their deposit. If the Customer does not decide to proceed with FastDesign, they will not be liable for this cost
7.4. FastDesign standard payment terms for any project are as follows:
a) 50% of the total project cost will be required as an upfront deposit in order to get your project started. This also includes the cost of your initial website consultations.
b) A progress payment equal to 25% of the total project cost must be made once you have approved your design layout and have provided the content for your site.
c) The balance of the total project costs shall be payable once your project is finished and prior to FastDesign making the site live.
7.5. FastDesign requires final payment and credit card authority forms to be provided in respect of any ongoing fees and such forms are to be returned to FastDesign before FastDesign will make the Customer site live. The final balance payment and credit card authority form must be returned to FastDesign upon completion of the Customer site (before going live) or within 28 days from the date that your initial deposit was made - whichever occurs first.
7.6. Content Management System fees and other monthly fees are to be paid by way of monthly credit card payments only. The Plan monthly fees will start on the day which is 28 days after the date on which the Customer has paid the upfront deposit.
7.7. Any extras requested during the process shall be added to the total project costs and will be payable at the stages outlined above. Please note that extras outside the Plan specifications will incur additional charges which FastDesign will inform the Customer of before proceeding.
7.8. If the Customer requires FastDesign to make changes to your site after your site is handed over to them, the Customer will be required to pay for this work at the hourly rate or in accordance with FastDesign standard prices as quoted. All work must be paid for upfront and will be quoted for on request.
7.9. If FastDesign has difficulties contacting the Customer for prolonged periods of time or does not receive required feedback of information from them, the Customer may incur additional charges and delays in delivery of your project if you are un-contactable for more than 14 days, FastDesign may suspend the project indefinitely or end the Customer project without further notice to them. If your project is suspended or ended, then the final payment will be due and payable immediately to FastDesign. To resume the project the Customer will need to pay a $99 re-instatement fee and the decision regarding whether the project will be resumed shall rest solely with FastDesign.
7.10.If the Customer wishes to take the site and host elsewhere, they may still need to pay FastDesign the monthly service fee or pay a release fee of $150 in order to waive the monthly fees.
7.11.FastDesign can put the Customer project on hold if your circumstances change, in which case the Customer will be required to make the next payment due and then the project will be placed on hold until such time as you are ready for it to proceed. The Customer will not be charged any additional costs to resume your project in these circumstances.
7.12.Please note that paying the deposit on any project shall signify the Customer agreement and commitment to complete the project with FastDesign and the Customer agreement to make lull payment to FastDesign. Payment in full of the total Plan costs will be required in the event that the Customer does not wish to proceed with the project after such time as they have paid the deposit and are outside the refund period.
7.13.The Customer shall remain liable for all fees incurred by FastDesign during any period when their site has been suspended or discontinued due to their failure to comply with these terms and conditions. In addition, the Customer must pay all costs in full without any set off, counter claim or deduction unless first agreed to in writing by FastDesign.
7.14.Please note that interest at the rate of 15% per annum shall accrue on any amounts outstanding in excess of FastDesign payment terms from time to time.
7.15.If accounts are not settled and FastDesign has not been contacted regarding the delay, access to the Customer site may be denied and the web page may be removed.
7.16.Usage Charges: Where applicable, Usage Charges for Bandwidth are measured by the billing data collection devices that measure data traffic at the FastDesign router interface at the edge of the FastDesign network, and are calculated according to the Plan selected by Customer. In the event of a billing dispute, Customer acknowledges and agrees that it will accept these data traffic records as accurate and final records of the data traffic to which they relate.
7.17.Payment of Domain Names Fees: FastDesign will notify Customer of fees for registration and/or renewal of domain names. Under ICANN policies Registrars are not permitted to solicit nor pay fees on behalf of Customers for renewal of Domain names. It is Customer’s sole responsibility, on receiving a notice for renewal of a Domain name, to promptly pay all fees for renewal or risk loss of the Domain name. Neither FastDesign nor Domain Name Registrar accepts liability for any failure, for any reason whatsoever, to renew a Domain name on a timely basis.
7.18.Delays in Payment of Domain Name Fees: FastDesign cannot take action to register or renew Domain names until in each instance it has received payment for the particular service. Customers must allow 3 business days to elapse after making payment and issuing instructions to FastDesign to register or renew a Domain name before FastDesign is able to process the application or renewal. Neither FastDesign nor Domain Name Registrar accepts liability for failure to register or renew a Domain name through delays of Customer in making payments and/or arising out of administrative delays, acts or omissions of Customers or third parties or out of automated systems failures.
7.19.Refund of Initial Fees: Customer is solely responsible for selecting the Online Plan appropriate to its requirements. Once a Plan has been ordered, FastDesign will not issue a refund of the initial payment of fees unless:
a) Customer makes a request for a refund within 24 hours of the initial payment of fees; and
b) FastDesign has not irrevocably committed itself to expenses associated with the supply of services, including without limitation ordering of domain names and activation of services covered by the Online Plan selected by Customer.
7.20.An administration fee of S99 will apply to all refunds.
7.21.Invoices: FastDesign will issue and post and/or email invoices in accordance with its billing cycle, as from time to time notified to Customer:
a) For fixed or recurring charges, in advance;
b) For variable charges including Usage Charges and excess Usage Charges, in arrears;
c) Otherwise as notified by FastDesign from time to time.
7.22.Payment Authorities: Customer hereby authorises FastDesign to debit all fees under any invoices rendered by it under this Agreement, as the Customer chooses, to its nominated Bank Account or to Customer’s nominated credit card and all subsequent renewals of that credit card.
7.23.Account Maintenance Fee: where Customer’s authority to FastDesign to debit invoiced fees and charges against a nominated bank Account, debit card or credit card expires or is otherwise terminated, FastDesign may charge, and Customer agrees to pay, an account maintenance fee of $3.50 on each monthly or quarterly invoice rendered by FastDesign to Customer, including, where Customer has multiple services, on each invoice rendered for each of those services.
7.24.Downgrade Fee: where Customer requests a change to the specifications for its Services which results in lower monthly fees, and FastDesign agrees to such request, FastDesign may charge Customer a Downgrade Fee of $100.
7.25.Credit Information: The Customer hereby agrees and consents to FastDesign acquiring a credit report from any credit reporting agency containing personal information (as well as information concerning commercial creditworthiness and activities) for purpose of assessment by FastDesign of an application for credit (whether commercial or private) or for the collection of payments which are overdue. The Customer also agrees and consents to FastDesign reporting information to any credit reporting agency that the Customer is in default of the trading terms of this Agreement or that it has handed over collection of the Customer’s account to a collection agency.
8.1. Sole Warranties: FastDesign warrants that the Services will be supplied with due care and skill in accordance with the applicable Service Level Agreement and that any material supplied in connection with the Service is reasonably fit for the purposes for which it is supplied.
8.2. Exclusion of All Other Warranties: With the exception of the warranties set out in clause 8.1 and to the full extent permitted by law, all other express or implied warranties, representations, terms and conditions regarding Services, Hardware and/or Software and their use or regarding the Agreement are hereby expressly excluded.
8.3. Limitation of Liability: FastDesign’s liability for breach of the warranties set out in clause 8.1 is limited at its option to the resupply of Services, or payment of the cost of having the Services supplied again. In no event shall FastDesign be liable for any loss of data, loss of profits, cost of cover, or any other special, incidental, consequential, indirect or punitive damages, however caused and regardless of theory or liability, notwithstanding that FastDesign has been made aware or advised of the possibility of such damages.
9. Proprietary Rights in Hardware and Software
9.1. Customer shall have no right, title, or interest of any kind whatsoever in the Software, Hardware, documentation, or any copyrights, patents or trademarks, embodied or used in connection therewith, except for the limited licence to use the Hardware and Software provided in this Agreement.
10. Maintenance of Hardware and Network
10.1.FastDesign Hardware: FastDesign will maintain and support Hardware in accordance with best industry practice or, where applicable, vendor specifications.
10.2.Scheduled Maintenance: FastDesign will perform all regularly scheduled maintenance to maintain Hardware and the FastDesign network outside Business Hours. FastDesign will give Customers notice by email at least 48 hours in advance if scheduled maintenance requires interruption to Services for more than 30 minutes.
10.3.Replacement of Hardware: FastDesign may substitute, change or modify the Hardware at any time, but shall not thereby substantially alter the technical parameters of the Services without the prior approval of Customer unless the effect of the substitution, change or modification is to enhance the capacity or specifications of the Hardware.
10.4.Technical Support: FastDesign will provide technical support by enabling Customer access through the Website Management Console to correct operational procedures for tools and modules specified in this Agreement and to links to operational resources on the FastDesign Website. Customer acknowledges that technical support is limited to hardware/network failures and utilities provided by FastDesign.
11.1.Operating System and Web Server Software License: During the Term FastDesign grants the Customer a non-transferable, non-exclusive license to use and install the Software specified in the Cover Sheet on the Hardware specified in the Cover Sheet for purposes of the Services. FastDesign warrants that it has full right, title and interest in the Software to grant sublicenses by virtue of a license granted by the vendor of the Software (“Vendor License”) to FastDesign to use and sub-license the Software. FastDesign does not warrant third party Vendor Software in any way whatsoever, but undertakes to pass onto Customer the benefit of all warranties and indemnities relating to use of the Software under the Vendor License.
11.2.Software License Restrictions: Customer agrees that it will not, directly or indirectly (and it will not allow others to):
a) copy the Software, except as necessary to install on Hardware and for internal, archival purposes. In the event Customer makes authorised copies of the Software, Customer shall reproduce all proprietary notices on such copies;
b) sell, lease, license, transfer, give possession of, or sub-license the Software to others, other than as permitted in the Vendor License; and/or
c) write or develop any derivative or other software programs, based, in whole or in part, upon the Software or any Confidential Information.
11.3.Exclusions: Customer acknowledges that breach of clause 11.2 may result in invalidation of warranties relating to Software, including the benefit of third party Vendor warranties.
11.4.Software Provided by Customer: Where Customer provides or uses other software on or in connection with its website, Customer warrants that it has full right title and interest under a valid license to use that software and to grant a valid sub-license to FastDesign to install and run that software during the Term solely in connection with providing Services under this Agreement.
11.5.Browser Support Policy: We try to ensure our websites work flawlessly on all modern and standards compliant browsers. In particular, our core browser support includes the following:
a) Internet Explorer *+
b) Firefox 3+
c) Safari 4+
11.6.We test each release of the FastDesign CMS software against these browsers, and these browsers are officially supported. Since we follow a standards--based approach to developing websites (with specific browser-- specific code to deal with flaws in particular browsers isolated from other browsers), our websites should work with other less widely used browsers provided they are reasonably up to date, however we cannot guarantee that where these browser deviate from web-standards that we will work around all of their flaws and bugs.
Due to the continually changing nature of the internet, without limiting the features available to the majority of web users FastDesign cannot support browsers that are no longer supported by their manufacturers: in particular this includes:
* Internet Explorer 5.2 on Apple computers (Microsoft ceased development of IE for Mac in 2000 and stopped offering it for download in 2006 and recommends use of Safari)
* Internet Explorer 6 on Windows -- (Microsoft has now pushed out the update to Internet Explorer 7 to all computers including pirated copies of windows)
* Netscape 6 or below
* Opera 8 or below
We do not support development beta releases of browsers-- eg Internet Explorer 10 Beta or release candidates, since these may contain bugs that we have no way of fixing or working around.
12. Acceptable Use Policy and Use of Services
12.1.Acceptable Use Policy: Customer agrees and acknowledges that it has read FastDesign’s Acceptable Use Policy published on the FastDesign Website at: http://www.fastdesign.com.au/acceptable-usage-policy, and agrees and undertakes that it will at all times observe and comply with that Acceptable Use Policy, as may be amended from time to time by publishing of amendments on the FastDesign Website.
12.2.Sole Responsibility: Customer acknowledges and agrees that it is solely responsible for all information, material, content or data (“Content”) of any postings, data or transmissions utilising the Services or any other use of the Services by Customer or User.
12.3.Removal of Offending Content: Customer acknowledges that FastDesign has the right to remove Content in accordance with the terms of the Acceptable Use Policy, including without limitation and without notice to Customer any Content deemed by it in its sole opinion to breach or offend its Acceptable Use Policy, or to suspend Services or disconnect or deny access to Services if in its sole opinion it deems Content to breach or offend its Acceptable Use Policies.
12.4.Excessive Use: Customer covenants and agrees that it will at all times observe and comply with and not breach usage limitations, including bandwidth, traffic (inbound, outbound and aggregated), data storage and backup, server resources and mailboxes, applicable to the Plan chosen by the Customer. Customer also agrees and covenants that it will not use the Services in an excessive or unusual way.
12.5.Suspension: Customer acknowledges that FastDesign is entitled to suspend or cancel Services, permanently or temporarily, if Customer breaches clause 12.4, and that if at any time FastDesign does suspend or cancel the Services, the Customer remains liable for any charges incurred:
a) through excessive or unusual usage; and
b) where the suspension is temporary, during such suspension.
12.6.Indemnity: Customer agrees to and shall hold harmless and indemnify FastDesign against any loss, expenses, liability, damages or claim made against it by any party whatsoever (including without limitation Customer, a User or any party claiming through Customer) which FastDesign may suffer, directly or indirectly, resulting from or arising out of Customer’s or User’s breach of the Acceptable Use Policy or the misuse or abuse of the Services in any way whatsoever by Customer or any User.
13. Release of Information to Authorised Agencies
13.1.Monitoring Use of Services. In order to comply with, and subject to, any applicable laws, including without limitation the Telecommunications Act 1997 and the Telecommunications (Interception) Act 1979, FastDesign may at any time:
a) When required by a warrant issued by a Regulatory Agency or an authorised law enforcement agency or court, intercept or monitor Services, or enable another person authorised by a warrant issued by a Regulatory Agency or an authorised law enforcement agency or court, to intercept or monitor Services, including data hosted on or being transmitted through Services;
b) Monitor and/or examine use of Services, including email, records and other data in the course of installation, connection or routine maintenance of the Services, but only to the extent permitted by legislation;
c) Suspend Services; and/or
d) Release information obtained by any of these actions to any Regulatory Agency.
13.2.Indemnity. Customer agrees to and shall hold harmless and indemnify FastDesign against any loss, expenses, liability, damages or claim made against it by any party whatsoever (including without limitation Customer, a User or any party claiming through Customer or a User) which FastDesign may suffer, directly or indirectly, resulting from or arising out of any actions taken by it pursuant to clause 13.1.
14. Term and Termination
14.1. Term: This Agreement shall be effective for the term (“Term”) of the Plan selected by Customer. Unless Customer gives at least 30 days written notice of termination prior to the expiration of the Term, this Agreement shall automatically be extended for a further period identical to the period of the initial Term, which further period shall be referred to as “the Term” or “Subsequent Term”, and where appropriate any reference in this Agreement to Term shall be deemed to include a reference to a Subsequent Term.
14.2.Mutual Termination: This Agreement shall be terminated prior to the expiration of the Term in the following circumstances:
a) either party gives written notice of a material breach of this Agreement, and the breach is not remedied within 30 days after receipt of the notice; or
b) if either party goes into administration or liquidation either compulsorily or voluntarily (save for the purpose of reconstruction or amalgamation) or if a receiver is appointed in respect of the whole or any part of its assets or if either party makes an assignment for the benefit of or composition with its creditors generally or threatens to do any of these things, and in either event the other Party gives notice that it elects to terminate the Agreement which notice shall be effective immediately.
14.3.Other Termination: FastDesign may terminate this Agreement by giving reasonable notice to the Customer prior to the expiration of the Term set out in the Cover Sheet if:
a) a Regulatory Authority directs it to do so; or
b) a Supplier terminates an agreement to supply services to FastDesign, and as a consequence FastDesign is unable to supply Service(s) to Customer through an alternative Supplier on reasonable commercial terms.
15. Consequences of Termination
15.1.In the event of termination of the Agreement prior to the expiration of the Term by reason of a default by Customer under clause 14.2(a) or by reason of actions by or on behalf of Customer under clause 11.2(b), all amounts which would have become due and payable under the Agreement had it continued in effect until the expiration of the Term shall immediately become due and payable, and Customer shall immediately pay all amounts so becoming due and payable. If Customer has made a payment for services in advance, FastDesign will apply the balance of any such payment remaining (calculated on a pro rata basis) against any amounts due and payable by the Customer, but in no other case shall Customer be entitled to a refund of such payment.
15.2.In the event of termination of the Agreement prior to the expiration of the Term under clause 14.2, and on the expiration of the Term, FastDesign will bill Customer for all services up to date of termination, and Customer will immediately pay that invoice and any other outstanding invoices.
15.3.On the expiration of the Term or on termination of the Agreement pursuant to clause 14, FastDesign will immediately cancel Services, and Customer will immediately cease using Services and any Software and Hardware provided under this Agreement.
16. Suspension of Services
16.1.Events of Suspension. FastDesign may, in its sole discretion and without derogating from its right to terminate this Agreement pursuant to clause 14, at any time suspend, restrict or disconnect the supply of Services to the Customer and/or any of its customers or Users on the occurrence of any of the following events:
a) Customer fails to pay any outstanding invoices within 7 days of written demand by FastDesign;
b) Customer breaches FastDesign’s Acceptable Use Policy and fails to rectify that breach immediately on written demand by FastDesign;
c) FastDesign is directed by any Regulatory Agency and/or authorised law enforcement agency to do so;
d) During any technical failure, modification or maintenance of the Service, provided that FastDesign will use its reasonable endeavours to ensure that the Service are resumed as soon as practicable; and/or (e) FastDesign deems it necessary for purposes of scheduled or unscheduled maintenance.
16.2.Consequences of Suspension. FastDesign will not reconnect or re-activate Services suspended pursuant to clause 16.1(a), (b) and (c) until Customer has paid any re-connection or re-activation fee then in effect for each Service. Customer will remain liable under this Agreement for all payments falling due within the period for suspension of Services, including without limitation for all fees accruing and accrued during the suspension.
16.3.Indemnity. Customer agrees to and shall hold harmless and indemnify FastDesign against any loss, expenses, liability, damages or claim made against it by any party whatsoever (including without limitation Customer, a User or any party claiming through Customer) which FastDesign may suffer, directly or indirectly, resulting from or arising out of any actions taken by it pursuant to clause 16.1.
17. Amendment of these Terms and Conditions
17.1. Amendment of Agreement: This Agreement may be amended or varied as follows:
a) If this Agreement is automatically extended pursuant to clause 14.1, FastDesign may, during the Subsequent Term or Terms, amend or vary the Fees charged for Services and terms relating to the operation of Services, by posting the amendments or variations in the Control Panel. Such amendment or variation shall become effective 14 days after the date of posting, and the Customer shall be deemed to have accepted such amendment if it continues to use the Services after the amendments become effective.
19.1.Subject to clause 19.2, any notice to be served on either of the parties by the other shall be sent by prepaid recorded delivery or registered post or by facsimile or by electronic mail and shall be deemed to have been received by the addressee within 72 hours of posting, within 24 hours if sent by facsimile to the correct facsimile number (with correct answerback), or within 24 hours if sent by electronic mail to the correct electronic mail address of the addressee.
19.2.Any notice to be served by FastDesign in relation to the variation or amendment of the terms set out in the Plan selected by Customer, including prices for Services and terms relating to the operation of Services, during Subsequent Terms may be served by posting the amendment or variation on the Customer’s Control Panel, and such notice shall be deemed effective 14 days after the date of posting of the notice.
20. Governing Law
20.1.This Agreement shall be governed by the law in effect in the State of Victoria, and the parties submit to the jurisdiction of the Supreme Court of Victoria.
21. General Provisions
21.1.Assignment: The Customer may not transfer its rights or obligations under this agreement to, or share them with, anyone without prior written consent of FastDesign. FastDesign may transfer its rights or obligations under this agreement to, or share them with, anyone on notice to the Customer.
21.2.Severability: If any provision or portion of this Agreement is held to be unenforceable, it shall be enforced to the maximum extent permissible consistent with the terms hereof, and the remainder of this Agreement shall continue in full force and effect.
21.3.Entire Agreement: This Agreement represents the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior and/or contemporaneous agreements and understandings between the Parties with respect to the subject.
Acceptable Use Policy means the policy set out at URL http://www.fastdesign.com.au/acceptable-usage-policy which defines acceptable and unacceptable use of the Services by the Customer.
FastDesign or FASTDESIGN means FastDesign Pty Ltd.
FastDesign Network or FastDesign IP Network means the data communications network (based on TCP/IP and other Internet protocols) between the FastDesign IP routers owned and operated by FastDesign.
FastDesign Website means the website located at the URL, http://www.fastdesign.com.au.
Business Hours means the hours between 9 am and 5 pm on normal business days in the State of Victoria, Australia.
Customer means the end user of Services to whom FastDesign sell Services, or to whom it’s authorised Resellers resell Services.
Order Form means the FastDesign contract signed by or on behalf of the Customer, which specifies the Services and Plan the Customer requires from FastDesign.
Plan or Online Plan means the particular business solution selected online by Customer from the range of solutions offered by FastDesign on the FastDesign website and printed promotional material, and specifies each of the components of that solution, including disc space, data traffic volumes, mail box sizes and fees relating to the Plan.
Privacy Law means and includes the Privacy Act (Cth) 1988, and any other law, statute or code in Australia that regulates the dissemination and use of information about or concerning an individual person or corporation.
Provisioning in relation to services provided under the Plan selected by Customer means FastDesign doing everything necessary to set up and manage those services, and includes configuring and programming its equipment, networks and databases to enable all options selected by Customer.
Regulatory Authority means and includes the Australian Communications and Media Authority, the Australian Competition and Consumer Commission, the Australian Communications Industry Forum Limited, the Telecommunications Industry Ombudsman, the Internet Industry Association, the Asia Pacific Network Information Centre, authorised domain name registrars, and any other competent government or statutory body or authority having jurisdiction over FastDesign.
Service or Services means the service or Services set out in the Plan selected by Customer and any related Hardware, Software and additional services which FastDesign supplies in connection with the Service or Services.
Service Level Agreement means the agreement set out at the URL http://www.fastdesign.com.au/service-level-agreement
Supplier means any supplier of goods or services (including without limitation interconnection services) used directly or indirectly by FastDesign to supply Services under this Agreement.
Term means the period of the online Plan selected by Customer and Subsequent Term means any further period for which this Agreement is automatically extended pursuant to clause 14.1.
Usage Charges means any charges for services which are measured, calculated or determined by reference to use of the Services by Customer.
User means any person or entity authorised by Customer to access and/or use the Services, and includes any person accessing any Customer website.