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SERVICE AGREEMENT - Terms and Conditions
This Service Agreement (the "Agreement") is made between Jacked In Pty Ltd T/A Endeavour Connect (ABN 68 108 126 512) ("ENDEAVOUR CONNECT"), and the party identified in the signature section of the Agreement as Client ("Client"). For good and valuable consideration, ENDEAVOUR CONNECT and Client agree as follows: |
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1. SERVICES AND ORDER
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1.1 Services
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(a) ENDEAVOUR CONNECT shall provide to Client and Client shall accept from ENDEAVOUR CONNECT, subject to the terms and conditions of this Agreement, services identified in the plan selected by Client ("Service") from ENDEAVOUR CONNECT's list of services in the Customer Service Order Form.
(b) The parties acknowledge that the process to establish this Agreement is: |
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(i) completion by Client of a Customer Service Order Form;
(ii) presentation to Client of a Service Level Agreement;
(iii) issue by ENDEAVOUR CONNECT to Client of an Order Confirmation; and
(iv) payment by Client to ENDEAVOUR CONNECT of the Initial Payment (see clause 4.1 hereof). |
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(c) The parties agree that, until the Initial Payment is received by ENDEAVOUR CONNECT there will be no binding legal agreement between ENDEAVOUR CONNECT and Client for the provision of the Services to Client by ENDEAVOUR CONNECT.
(d) Upon entry into the legal binding agreement between the parties, the process referred to in clauses (b)(i) to (iii) shall be referred to in this Agreement as "the Order". |
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1.2 Change in Services.
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(a) Following the initial selection of the Services by Client through the Order, Client may request ENDEAVOUR CONNECT to change the Order by giving ENDEAVOUR CONNECT a 30-day prior written notice of the requested change.
(b) ENDEAVOUR CONNECT shall have the sole and absolute discretion whether or not to accept the request from Client for the change in Services.
(c) Until such request has been accepted in writing by ENDEAVOUR CONNECT, the Order in effect immediately prior to such request shall remain in full force and effect.
(d) If such request is accepted by ENDEAVOUR CONNECT, the Customer Service Order Form shall become amended to reflect the change.
(e) Depending upon the extent of changes in the Service, ENDEAVOUR CONNECT reserves the right to vary its fees or to charge Miscellaneous Charges as referred to in clause 3.2(c) hereof. |
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2. USE OF SYSTEM AND WEB SERVICES
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2.1 Right to Use and Limitation.
During the term of this Agreement, Client will have a non-transferable non-exclusive license to use the operating system and Services provided by ENDEAVOUR CONNECT, but solely for Client's internal needs in connection with the Services and only on the equipment provided or agreed upon by ENDEAVOUR CONNECT.
2.2 Additional Limitations.
Other than with the express written consent of ENDEAVOUR CONNECT, Client shall not directly or indirectly, and shall not allow any third party directly or indirectly to: |
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(a) copy (except only to the extent necessary to install on the equipment provided by ENDEAVOUR CONNECT), sell, license or otherwise transfer, in whole or in part, any right to the operating system and/or server provided by ENDEAVOUR CONNECT,
(b) modify or attempt to derive source code from such system or server, or otherwise attempt to develop any derivative or other programs based in whole or in part upon such system or server, and
(c) otherwise infringe upon any propriety right or confidential information of ENDEAVOUR CONNECT or its licensor (if any) of such system or server, or use such system or server for any purpose other than for the sole purpose of using the Services in accordance with the provisions of this Agreement, the Order and any of ENDEAVOUR CONNECT's usage policies otherwise disclosed to Client. |
2.3 No Transfer of Propriety Rights.
Except for the right to use solely in connection with the Services during the term of the Order or the Agreement, whichever is shorter, Client shall not have or obtain any right or other interest in any of the equipment, operating system, web service, or any other property or information made available by ENDEAVOUR CONNECT, or in any intellectual property rights such as trademark or copyright relating to such equipment, system, server, property or information.
2.4 Acknowledgement of Wholesale Supplier. |
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(a) ENDEAVOUR CONNECT is a supplier of certain internet services.
(b) The Client acknowledges that it is bound by the general terms and conditions of the wholesaler as published in the wholesaler’s web site.
(c) The identity of the wholesaler is stated in the Order and may be subject to change at the discretion of ENDEAVOUR CONNECT. |
3. PRICING TERMS
3.1 Fees |
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(a) All fees for Services ("Fees") provided by ENDEAVOUR CONNECT shall be as set out in the Customer Service Order Form and as confirmed in the Order Confirmation issued by ENDEAVOUR CONNECT.
(b) If there is any discrepancy between the Fees set out in the Customer Service Order Form and the Fees set out in the Order Confirmation, then the Fees set out in the Order Confirmation shall prevail.
(c) Unless otherwise provided for in this Agreement, the Fees shall remain unchanged during the Initial Term (as defined in clause 9.1) of this Agreement.
(d) For the purpose of this Agreement, Fees includes those fees set out in the Order Confirmation and those additional fees as referred to in clause 3.2 hereof, (including Miscellaneous Charges). |
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3.2 Additional Fees.
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(a) Client agrees that ENDEAVOUR CONNECT's standard fees are for limited use of Services.
(b) Client shall pay for overages of use of any part of the Services as set out in the Order Confirmation.
(c) Client agrees to pay additionally for any telephony services as set out in the Order Confirmation with off-net termination charged at the rates set out on ENDEAVOUR CONNECT’s website.
(d) Similarly, Client agrees to pay additionally for any changes to Services, add-on features, technical support beyond those covered by ENDEAVOUR CONNECT's standard features, support and for any services provided by ENDEAVOUR CONNECT to Client not specifically identified in the Order Confirmation at the rate as more fully set forth in ENDEAVOUR CONNECT's description of Miscellaneous Charges referred to on ENDEAVOUR CONNECT's website ("Miscellaneous Charges"). |
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4. PAYMENT AND BILLING TERMS
4.1 Payment and Billing Cycle
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(a) An initial payment covering the Fees for setup, installation, supply and establishment of the necessary hardware and software for the Services is due and payable to ENDEAVOUR CONNECT upon its issue of the Order Confirmation (the “Initial Payment”).
(b) If the Initial Payment is not made to ENDEAVOUR CONNECT prior to installation of the Services, then |
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(i) the Order is suspended; and
(ii) the Service Activation Lead Time as referred to in Service Level Agreement shall not commence until the Initial Payment has been made. |
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(c) If Client cancels the Order after Order Confirmation and prior to the installation and establishment of Services, then the setup, installation and establishment fees will be due in full to ENDEAVOUR CONNECT.
(d) If Client cancels the Order after delivery of hardware and software has been accepted, then the hardware and software fees will be due in full to ENDEAVOUR CONNECT.
(e) Following satisfaction of the Initial Payment, Client will pay in advance all of the Fees for each billing period, except for the Fees for overages in the use of Services, Off-net charges and Miscellaneous Charges.
(f) Fees for overages in the use of Services, Off-net charges and Miscellaneous Charges are due on the last day of the month in which such overages, Off-net charges or Miscellaneous Charges were incurred.
(g) Billing cycles will begin on the first business day of each successive month after the Initial Payment and end on the day immediately prior to the beginning of the next billing cycle.
(h) Bills including telephony charges will be accompanied by a list of calls made by the Customer during the month.
(i) All amounts due to ENDEAVOUR CONNECT pursuant to this Agreement will be payable on the 15th of the month of invoice as issued by ENDEAVOUR CONNECT.
(j) Unless Client has made special arrangements with ENDEAVOUR CONNECT to the contrary, all notifications of billing will occur through e-mail or by posted invoices only. |
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4.2 Prepaid Account
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(a) For any prepaid account of Client, ENDEAVOUR CONNECT will notify Client by e-mail at the end of each billing cycle for that account as to the status of such account, including any additional charges for overages in the use of Services and any Miscellaneous Charges.
(b) Upon expiration of the Initial term of this Agreement, Client's account will automatically be converted to a pre-paid month-to-month account, unless Client has requested in writing an alternative payment plan and ENDEAVOUR CONNECT has accepted Client's request for such renewal.
(c) Any renewal of a prepayment plan shall be subject to all of the other terms and conditions of this Agreement and the Order, and any other documents attached to either of those documents as incorporated herein by reference. |
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4.3 Payment Methods and Purchases
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(a) Any payment under this Agreement may are to be made by credit card except as otherwise set forth herein.
(b) All amounts due shall be computed, established and paid in Australian currency unless stated otherwise.
(c) All payments by Client shall be made in full for the entire amount of the billing from ENDEAVOUR CONNECT without reduction, offset or charge back, unless and only to the extent such reduction, offset or charge back has been approved in writing by ENDEAVOUR CONNECT. |
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4.4 Payment by Credit Card
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(a) ENDEAVOUR CONNECT will accept those credit cards as noted in the Customer Service Order Form.
(b) When making payment by credit card, the Client authorizes ENDEAVOUR CONNECT to charge the credit card supplied by Client for the full amount of all Fees due from Client from time to time, and any other payments owed by Client to ENDEAVOUR CONNECT under this Agreement (including, but not limited to, additional charges for overages in the use of Services and Miscellaneous Charges).
(c) ENDEAVOUR CONNECT shall have the right to charge credit card payments automatically and without prior notice to Client on the fifteenth day of each billing cycle, or as soon thereafter as the Client's credit card charge can be effected.
(d) Client shall ensure that the credit card provided by Client has sufficient balance available to accept all charges by ENDEAVOUR CONNECT pursuant to this Agreement.
(e) Should Client’s credit card fail to authorise payment for a billing cycle, the Services may be suspended within 14 days of the start of the billing cycle or, at the discretion of ENDEAVOUR CONNECT, terminated without waiving ENDEAVOUR CONNECT's rights for payment of the Fees for the Services provided and as otherwise provided under clause 9.3 hereof. |
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5. DEFAULT & CONSEQUENCES OF DEFAULT
5.1 Interest for Late Payment
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(a) Without prejudice to the rights and powers of ENDEAVOUR CONNECT under this Agreement, Client shall pay to ENDEAVOUR CONNECT interest on any amounts due to ENDEAVOUR CONNECT but unpaid for 14 days on any account whatsoever chargeable from the date of invoice until full payment of such amounts is made by cleared funds.
(b) The rate of interest for the purpose of this clause shall be the rate per annum of four percent (4%) of monthly account.
(c) Without prejudice to the rights of ENDEAVOUR CONNECT otherwise under this Agreement, if any amounts due to ENDEAVOUR CONNECT pursuant to this Agreement remain unpaid for more than 2 months from the date of the invoice issued by ENDEAVOUR CONNECT, then ENDEAVOUR CONNECT shall be entitled to charge Client an administration fee being the greater of $20.00 or 10% of the amounts so due and payable, which sum shall be added to the invoice and become due and payable immediately. |
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5.2 Indemnity by Client
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(a) If Client defaults in payment of any invoice when due, Client shall indemnify ENDEAVOUR CONNECT from and against all ENDEAVOUR CONNECT’s costs and disbursements incurred as a result of such default.
(b) For the purpose of clause 5.2(a), ENDEAVOUR CONNECT's costs and disbursements includes fees paid to ENDEAVOUR CONNECT's debt collection agency and legal costs (on a solicitor client basis). |
5.3 Suspension of Services |
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(a) Without prejudice to any other remedies ENDEAVOUR CONNECT may have, if at any time Client is in breach of any obligation under this Agreement, ENDEAVOUR CONNECT may suspend or terminate the provision of Services to Client and any of its other obligations under this Agreement.
(b) ENDEAVOUR CONNECT will not be liable to Client for any loss or damage Client suffers because ENDEAVOUR CONNECT exercised its rights under this clause. |
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5.4 Reactivation of Services to Client
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(a) If the provision of Services to Client have been suspended or terminated, Client may reactivate this Agreement only with the written consent of ENDEAVOUR CONNECT (including by email) and provided that Client pays any outstanding amounts owed to ENDEAVOUR CONNECT.
(b) If, following a suspension or termination of Services, Client's information has been purged from ENDEAVOUR CONNECT's database, then Client is responsible for paying to ENDEAVOUR CONNECT the Setup fees.
(c) If the suspension or termination was due to credit card authorization failure ENDEAVOUR CONNECT must approve the reactivation of the credit card account.
(d) Client acknowledges and agrees that, following a suspension or termination, if the Services are reactivated, then |
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(i) ENDEAVOUR CONNECT cannot warrant that Client will be issued with the same Internet Protocol Address ("IP Address") as previously issued;
(ii) Client is responsible for re-uploading Client's web site files;
(iii) ENDEAVOUR CONNECT is not responsible for any lost files, information or data;
(iv) Reactivation will only be performed during ENDEAVOUR CONNECT's regular business hours. |
5.5 No Set Offs
The Client shall not set off against any amounts due to ENDEAVOUR CONNECT, amounts due to Client by ENDEAVOUR CONNECT. |
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6. INTERNET PROTOCOL ADDRESSES
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(a) ENDEAVOUR CONNECT may designate for Client's use on a temporary basis one or more IP Addresses from the address space assigned to ENDEAVOUR CONNECT by the internic.
(b) Client acknowledges that such IP Addresses are the sole property of ENDEAVOUR CONNECT, and are temporarily designated for Client's use as part of the Services, and are not portable as such term by the internic.
(c) ENDEAVOUR CONNECT reserves the right to change the IP Address designations at any time.
(d) ENDEAVOUR CONNECT shall use reasonable efforts to minimize inconvenience to Client resulting from such changes, and shall give Client reasonable notice of changes.
(e) Client agrees that it will have no right to use IP Addresses assigned to ENDEAVOUR CONNECT upon suspension of Client's account or termination of this Agreement, and that any change in IP Addresses that Client may need to make after suspension of Client's account or termination of this Agreement shall be the sole responsibility of Client.
(f) Client agrees that Internic fees are separate and in addition to ENDEAVOUR CONNECT's Fees, and that Client may be billed directly by the domain owner.
(g) Client shall pay all internic fees to internic.
(h) Client acknowledges that a failure to pay internic fees promptly shall constitute a breach of this Agreement.
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7. WEB SITE CONTENT AND DEVELOPMENT
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(a) Client is responsible for programming and for uploading Client's web site to ENDEAVOUR CONNECT's web servers.
(b) ENDEAVOUR CONNECT will not provide free web site development, consulting, programming, or debugging services.
(c) Client is responsible for keeping a complete and current copy of Client's web site files as backup on a remote system (not on ENDEAVOUR CONNECT servers).
(d) ENDEAVOUR CONNECT is not responsible for any lost files, information or data.
(e) Client acknowledges and agrees that ENDEAVOUR CONNECT's backup media are for backing up ENDEAVOUR CONNECT's system configurations and databases and are not for keeping backups of Client's web sites unless agreed to, as a part of the Services.
(f) ENDEAVOUR CONNECT makes no assurance that it will have the most current copy of Client's web site.
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8. TECHNICAL SUPPORT
8.1 Scope of Support
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(a) ENDEAVOUR CONNECT may provide Client with maintenance and technical support services only to the extent such services are specified in the Order.
(b) Without limiting the generality of the foregoing, maintenance and technical support services shall not include services for problems arising out of |
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(i) tampering, modification, alteration or addition, which is undertaken by persons other than ENDEAVOUR CONNECT or its authorized representatives,
(ii) programs or hardware supplied by Client, or
(iii) Client's misuse or incorrect use of Services. |
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(c) Client shall document and promptly report all errors and malfunctions to ENDEAVOUR CONNECT.
(d) Client shall take all steps necessary to carry out the procedures for the correction of errors or malfunctions within a reasonable time after such procedures have been received from ENDEAVOUR CONNECT.
(e) Client shall maintain a current archive copy of all software and data.
(f) Client shall properly train its personnel in the use of the Services. |
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8.2 Hours of Support
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(a) Endeavour Connect shall use reasonable endeavours to provide technical support during normal business hours.
(b) Normal Business hours are defined as being 9:00 AM to 5:00 PM Monday to Friday (excluding Public Holidays)
(c) Support may be provided by telephone or by e-mail.
(d) For Clients with extended support, a national Toll telephone number with answering service is available.
(e) Support outside Normal Business hours or on-site support will be charged at additional cost at the rate as published on the ENDEAVOUR CONNECT website under the heading "Miscellaneous Charges". |
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8.3 Certain Procedures
When the first contact with ENDEAVOUR CONNECT is through e-mail, the reply to the e-mail will contain a case number, which is necessary to identify the case should a follow-up telephone call be necessary.
8.4 Technical Support Charges
In respect of maintenance and technical support services provided for those problems set out in clause 8.1(b), ENDEAVOUR CONNECT may charge Client fees for such services at the rate as published on the ENDEAVOUR CONNECT website under the heading "Miscellaneous Charges".
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9. TERM AND TERMINATION
9.1 Term
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(a) The term of this Agreement shall commence on the date ENDEAVOUR CONNECT issues to Client an Order Confirmation ("Effective Date") and shall continue for 12 months (“Initial Term”).
(b) The term of an Order shall automatically renew on a month-to-month basis unless |
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(i) either party provides the other with written notice of termination one month prior to the end of the then term of the Order, in which event the term of the Order shall terminate upon expiration of such term, or
(ii) either party provides the other with one month's written notice of termination at any time after the Initial Term in which event the term of the Order shall terminate upon expiration of such one month period.
(iii) both parties agree in writing to renew the term for a specified longer period of time, in which event the renewal shall be for such longer period of time. |
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9.2 Termination
This Agreement may be terminated prior to the expiration of its then term, as follows:
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(a) By ENDEAVOUR CONNECT in the event of non-payment by Client of any amount due to be paid by Client to ENDEAVOUR CONNECT under this Agreement or the Order.
(b) By ENDEAVOUR CONNECT, at any time and without notice, if, in ENDEAVOUR CONNECT's sole and absolute judgment, Client has violated any terms and conditions of ENDEAVOUR CONNECT's usage policy set forth in this Agreement or the Order, or in any existing or later adopted usage policy of ENDEAVOUR CONNECT's set forth separately from the Agreement or the Order to the extent disclosed to Client, which usage policy is incorporated herein by reference, or if any claim or lawsuit is threatened or asserted against ENDEAVOUR CONNECT or any of its representatives or affiliates by reason of Client's use of Services or Client's other acts or omissions.
(c) By ENDEAVOUR CONNECT, at any time upon giving Client 14 days prior written notice, if, in the sole and absolute judgment of ENDEAVOUR CONNECT, Client has breached any other terms of this Agreement and has not cured the breach within such 14 day period.
(d) By either party, at the end of the term of the Order or any extension thereof, by giving the other party a one month prior written notice of termination. Such notice shall be served in accordance with clause 15.5 hereof.
(e) In any event notice to terminate any services must be served in conjunction with a completed Endeavour Connect Service Cancellation form. |
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9.3 Effect of Termination
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(a) Upon termination of the Agreement for any reason, Client shall immediately remove all of Client's web site files and e-mails from ENDEAVOUR CONNECT's servers, and shall immediately cease use of any of the Services.
(b) If Client fails to immediately remove such files and e-mails, ENDEAVOUR CONNECT shall have the right to delete all of them without notice.
(c) ENDEAVOUR CONNECT shall also have the right to disable and terminate all control panel access and Client's use of any of the Services effective upon termination.
(d) Notwithstanding termination of the Agreement, ENDEAVOUR CONNECT shall be entitled to payment in full of all amounts which may be due from Client, and to such other rights and remedies to the fullest extent permitted by law for any breach of this Agreement by Client. All other rights and obligations of the parties shall cease upon termination of this Agreement.
(e) Any property in the possession of ENDEAVOUR CONNECT but owned by the client (such as web hosting, co-located machines, router etc.) will be sent via courier service to Client, together with any access details to any hardware owned by Client, upon payment in full of all amounts then due to ENDEAVOUR CONNECT and any other moneys due to ENDEAVOUR CONNECT following termination of this Agreement. |
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10. REFUNDS
10.1 General
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(a) Refunds are issued under the following circumstances: |
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(i) An account is terminated and has a credit balance with ENDEAVOUR CONNECT.
(ii) An account is prepaid but has terminated during the prepayment period, or an account changes payment frequency to monthly and has a credit balance with ENDEAVOUR CONNECT following such change. |
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(b) If an account is terminated for any reason and such termination is effected during any month, there will be no pro rata refund due for unused Services during that particular month.
(c) If payment to ENDEAVOUR CONNECT has been made by credit card, a refund will only occur through that credit card.
(d) If payment to ENDEAVOUR CONNECT has been made by cheque, electronic funds transfer, internet banking or wire transfer, a refund of those funds will occur by cheque.
(e) All refunds shall be calculated and paid in Australian currency.
(f) If a client has referral credits, if any, then there will be no refund for that credit.
(g) Referral credits are allowed, if at all, to be applied to Fees for Services and are not redeemable for cash.
(h) Refunds will be processed only once a month, being at the end of each month. |
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10.2 Exception
Notwithstanding any provision to the contrary, if the Agreement is terminated by reason of Client's breach of any terms of the Agreement, the Order or any applicable policy of ENDEAVOUR CONNECT, or if any such breach shall exist on the effective date of such termination or thereafter, ENDEAVOUR CONNECT shall have the right to withhold any and all amounts which would otherwise be refundable to Client and offset any loss, damage or expense incurred by ENDEAVOUR CONNECT by reason of such breach, and to deduct all amounts due from Client to ENDEAVOUR CONNECT hereunder.
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11. ACCEPTABLE USE POLICIES
11.1 General
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(a) Client shall use the Services only in compliance with all applicable legal requirements, as well as the terms and conditions set forth in this Agreement, in the Order, or in any other usage policy disclosed by ENDEAVOUR CONNECT to Client.
(b) Client shall be solely responsible for the content of any postings, data or information, and any other use of the Services by Client or anyone else other than ENDEAVOUR CONNECT.
(c) ENDEAVOUR CONNECT shall have no duty to monitor or censor any such content or use; however, ENDEAVOUR CONNECT shall have the right to enforce the terms and provisions of this Agreement, the applicable Order and any other usage policy of ENDEAVOUR CONNECT. |
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11.2 Representations and Warranties
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(a) Client represents, warrants and covenants that neither it nor anyone else using the Services will use any of the Services for any unlawful purposes or means, or for any other purposes or means prohibited herein.
(b) Unlawful or prohibited purposes or means shall include, but not be limited to: |
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(i) infringement of any copyright, trademark, trade secret, patent, or other proprietary rights of others, or violation of any laws regarding unfair competition,
(ii) wire fraud,
(iii) invasion of privacy,
(iv) pornography or obscenity,
(v) defamation or libel,
(vi) distribution or publication of "hate" materials,
(vii) unlawful use, transport or sale of tobacco, controlled substances, firearms, explosive or other illicit products or materials.
(viii) interference with or disruption of other network users, services or equipment, including without limitation, |
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A. distribution of unsolicited advertising or chain letters,
B. harassment of other network users,
C. impersonating another user or falsifying own network identity,
D. propagation of a computer virus,
E. sending unsolicited mass e-mailing or "spamming," or mass news group postings,
F. distribution of mass e-mailing programs,
G. posting inflammatory messages,
H. threatening other Internet users,
I. mailbombing Internet users,
J. subscribing other Internet users to list server or mailing lists,
K. running packet sniffers or post scanners,
L. spamming ENDEAVOUR CONNECT's personnel or staff,
M. propagating Denial of Service Attacks, and
N. making unauthorised entry to other machine accessible locations, or attempting to gain access to root and other user's accounts, i.e., hacking. |
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11.3 Suspension or Termination
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(a) ENDEAVOUR CONNECT shall have the right to implement traffic shaping or rate limiting or suspend or terminate the Services immediately without prior notice to Client if ENDEAVOUR CONNECT believes in its sole and absolute discretion that Client or any other user of Services has used or is using any of the Services for any such unlawful or prohibited purposes or means,
(b) Client will be held responsible for any damages or injuries to ENDEAVOUR CONNECT's business, system, servers, connectivity, reputation, service, network, operations, or equipment resulting from, or relating to, Client's or such user's actions, including, but not limited to, government actions, retaliation, and claims of libel, unfair competition, infringement of patent, copyright, trademark, or other intellectual property rights, and violation of privacy. |
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11.4 Public Information
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(a) Due to the public nature of the Internet, all material submitted by Client for publication will be considered publicly accessible.
(b) ENDEAVOUR CONNECT shall have no duty to screen in advance Client's material submitted to ENDEAVOUR CONNECT for publication.
(c) ENDEAVOUR CONNECT's publication of material submitted by Client does not create any express or implied approval by ENDEAVOUR CONNECT of such material, nor does it indicate that such material complies with the terms of this Agreement. |
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12. PRIVACY
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(a) ENDEAVOUR CONNECT will use reasonable efforts to protect Client's right to privacy.
(b) ENDEAVOUR CONNECT's systems do store personally identifiable information on ENDEAVOUR CONNECT's clients.
(c) Such information is only to be used by ENDEAVOUR CONNECT for facilitating ENDEAVOUR CONNECT's services, which use may include charging credit cards and contacting ENDEAVOUR CONNECT's clients.
(d) In no way shall ENDEAVOUR CONNECT sell Client's personal information.
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13. DISCLAIMERS AND LIMITATION OF LIABILITY
13.1 Disclaimers
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(a) The performance of our Services may be affected by the levels of use of the other users and of facilities related to providing the Service, we do not warrant that Services will be free of blockages; delays or faults and we will not be responsible for any loss or damage, which may result.
(b) ENDEAVOUR CONNECT's web site properties may contain technical inaccuracies and typographical and other errors, and ENDEAVOUR CONNECT may periodically make changes to its web site properties without notice.
(c) Client accepts, and will hold harmless ENDEAVOUR CONNECT from, any such interruption of Services, or any such inaccuracy, error, or change.
(d) Without limiting the generality of the foregoing, in no event shall ENDEAVOUR CONNECT be liable to Client for any damages resulting from or relating to any failure or delay of ENDEAVOUR CONNECT to provide the Services if such delay or failure is due to any strike, riot, fire, inclement weather, act of God, theft or vandalism, power outage or interruption, or any other cause beyond ENDEAVOUR CONNECT's actual control, as defined by standard practices in the industry.
(e) ENDEAVOUR CONNECT shall not be liable for protection or privacy of e-mail or other information transferred through the Internet or otherwise. |
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13.2 Disclaimer of Warranties
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(a) ENDEAVOUR CONNECT'S Services are provided on an "as is, as available" basis.
(b) ENDEAVOUR CONNECT disclaims any other warranty, express or implied, including any warranty of merchantability or fitness for a particular purpose.
(c) Client agrees with ENDEAVOUR CONNECT, acting on its own behalf and as agents for its members, employees, contractors and affiliates that in no event shall ENDEAVOUR CONNECT, its members, employees, contactors or affiliates be liable for any consequential, indirect, special or incidental damages, even if ENDEAVOUR CONNECT has been advised by client of the possibility of such potential loss or damage.
(d) If ENDEAVOUR CONNECT's Services to client is disrupted or malfunctions for any reason, ENDEAVOUR CONNECT shall not be responsible for losses of income due to disruption of the Services, beyond the Fees paid by client to ENDEAVOUR CONNECT for those Services, during the period of disruption or malfunction.
(e) In no circumstance shall ENDEAVOUR CONNECT or its members, employees, contractors or affiliates be liable for any claim, any action (whether direct, indirect, special, incidental, or consequential), or any punitive damages relating to: |
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(i) the inability to use ENDEAVOUR CONNECT's Services,
(ii) service interruptions, errors or problems with Internet connectivity,
(iii) unauthorized access to ENDEAVOUR CONNECT servers,
(iv) communication failures,
(v) bandwidth congestion or interruptions, or
(vi) acts of God. |
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(f) Notwithstanding the terms of this clause 13.2, if ENDEAVOUR CONNECT provides to Client a Service Level Agreement then to the extent that the terms of the Service Level Agreement conflict with the terms of clause 13.2, the terms contained in the Service Level Agreement and the rebates attributable thereto shall prevail. |
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14. INDEMNIFICATION
14.1 Indemnity
Client agrees with ENDEAVOUR CONNECT, acting on its own behalf and as agents for its members, employees, contractors and affiliates that the Client shall indemnify, hold harmless and defend ENDEAVOUR CONNECT and its members, employees, contractors and affiliates, with counsel reasonably satisfactory to ENDEAVOUR CONNECT, from and against all claims, losses, liabilities and expenses (including legal costs on a solicitor client basis) related to or arising out of the Services provided by ENDEAVOUR CONNECT to Client under this Agreement, including without limitation claims made by third parties (including customers of Client), including, but no limited to, claims such as false advertising claims, liability claims regarding products or services sold by Client, claims of patent, copyright, trademark or other intellectual property right infringement, claims due to disruption or malfunction of Services provided hereunder, or claims regarding any content submitted by Client for publication by ENDEAVOUR CONNECT.
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15. MISCELLANEOUS PROVISIONS
15.1 Cookies
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(a) ENDEAVOUR CONNECT may use "cookies" in ENDEAVOUR CONNECT's web site properties.
(b) The cookies that ENDEAVOUR CONNECT uses will not store any personal information.
(c) ENDEAVOUR CONNECT reserves the right to perform statistical analysis of visitor behaviour and characteristics in order to measure the interest level and web site usage of the different areas of the site.
(d) Client consents to ENDEAVOUR CONNECT's use of cookies. |
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15.2 Revisions to Policies and Services
ENDEAVOUR CONNECT reserves the right to revise, amend or supplement from time to time in ENDEAVOUR CONNECT's sole and absolute discretion, its policies regarding use of Services, its pricing as described elsewhere in this Agreement, and the scope, nature or content of the Services.
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15.3 Variation to Terms and Conditions
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(a) ENDEAVOUR CONNECT reserves the right to amend these Terms and Conditions by way of addition, deletion or variation from time to time and at any time during the currency of this Agreement.
(b) Should ENDEAVOUR CONNECT determine to amend these Terms and Conditions then ENDEAVOUR CONNECT shall give to Client not less than 30 days notice in writing of its intention to so amend, detailing in such notice the amendments applying and the date upon which such amendments are to commence.
(c) Client shall be entitled, by notice in writing served on ENDEAVOUR CONNECT within 14 days of any such notice being given by ENDEAVOUR CONNECT to Client pursuant to clause 15.3(b) hereof, to notify ENDEAVOUR CONNECT that Client will terminate the Agreement at the date proposed as the date of commencement of the amendments, whereupon the provisions of clause 9.3 shall take effect.
(d) Nothing in this clause 15.3 shall be construed as permitting ENDEAVOUR CONNECT to amend any of the Terms and Conditions relating to the amount of Fees payable to ENDEAVOUR CONNECT for the Services provided under this Agreement during the Initial Term, but ENDEAVOUR CONNECT is permitted to amend the Terms and Conditions relating to the amount of Fees payable to ENDEAVOUR CONNECT for the Services on and from the conclusion of the Initial Term. |
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15.4 Independent Contractor
The relationship of ENDEAVOUR CONNECT and Client under this Agreement shall be and remain that of independent contractors and neither party shall have any authority to contract for or bind the other.
15.5 Notices
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(a) Any notice hereunder shall be in writing and shall be given by registered, certified, Express mail, or reliable overnight courier addressed to the addresses in this Agreement, or by facsimile.
(b) Any notice serviced in accordance with clause 15.5(a) shall be deemed to be given upon the earlier of actual receipt or three (3) days after it has been sent, properly addressed to the party to be notified at its address.
(c) Notwithstanding the foregoing, notice may be sent by e-mail to the extent authorised or permitted under this Agreement, and shall be deemed to be given when receipt thereof by the intended party is confirmed.
(d) Either party may change its address for notice by means of notice to the other party given in accordance with this clause. |
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15.6 Assignment
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(a) Client may not assign or otherwise transfer this Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so shall constitute a breach of this Agreement.
(b) ENDEAVOUR CONNECT may assign this Agreement at any time without the consent of Client. |
| 15.7 Governing Law and Forum |
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(a) This Agreement shall be governed by and interpreted according to the laws of New South Wales, Australia.
(b) For all disputes arising out of or relating to this Agreement, Order or any other document attached hereto or incorporated herein by reference, the parties irrevocably consent to the exclusive jurisdiction of any court having jurisdiction in and for the State of NSW, Australia. |
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15.8 Advertising
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(a) ENDEAVOUR CONNECT may include Client's name and contact information in directories of ENDEAVOUR CONNECT service subscribers for the purposes of promoting the use of the Services by ENDEAVOUR CONNECT's existing or potential clients generally.
(b) ENDEAVOUR CONNECT will not use Client's name or other identifying information in any other advertising or promotion materials, without the prior written consent of Client. |
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15.9 Entire Agreement and Waiver
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(a) This Agreement, together with the Order and any technical support attachment or usage policy incorporated herein, constitutes the entire agreement between ENDEAVOUR CONNECT and Client with respect to the subject matter hereof.
(b) All prior agreements, representations, and statements with respect to any of such subject matters are superseded.
(c) Any failure of either party to exercise or enforce its rights shall not act as a waiver of subsequent breaches. |
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15.10 Severability
In the event that any provision of this Agreement is determined to be unenforceable in full, that provision will be enforced to the maximum extent permissible under applicable law, and the other provisions of this Agreement will remain in full force and effect.
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