Application Service Provision and Hosting Agreement

The provider, Synergy Eight Pty Ltd, is registered in Queensland as a company under the Corporation Act 2001. (ACN: 116 347 909).

The subscriber is the individual, partnership or company seeking the provision of the Synergy 8 application and the hosting of a web site by the provider.

1. Terms and Acceptance: These Terms and Conditions supersede all previous representations, understandings or agreements including oral statements and shall prevail. Use of the provider ’s service constitutes acceptance of these Terms and Conditions by the subscriber .

2. Minimum Age: The subscriber certifies that at least one director/partner of the subscriber company/partnership is at least 18 years of age OR if the subscriber is an individual they certify to be at least 18 years of age.

3. Content Control: The provider exercises no control whatsoever over the subscriber ’s online content. The subscriber must comply with the Non-Allowable Activities and Indemnity outlined below.

Non-Allowable Activities and Indemnity:

All services provided by provider may be used for lawful purposes only. Transmission or storage of any information, data or material in violation of any law or administrative regulation is prohibited, including without limitation copyrighted material, material legally judged to be threatening or obscene, or material protected by trade secret and statute.

The subscriber agrees to indemnify and hold harmless the provider from any claims resulting from the use of the service that damages the subscriber or any other parties. The following is strictly prohibited, including links thereto, on the provider 's server, and provider shall be the sole arbiter as to what constitutes a violation of this provision:

Pornography and sex-related merchandising; Excessive profanity; Violence, racial intolerance, hate, or advocate against any individual, group, or organization; Hacking/cracking content; Illicit drugs and drug paraphernalia; Any other content that promotes illegal activity or infringes on the legal rights of others. The provider reserves the right to remove such illegal material from its server immediately.

The sending of unsolicited emails, and/or using an email address or domain name on the provider 's servers to facilitate unsolicited emails, is strictly prohibited. The subscriber agrees to pay the costs of actual damages relating to any unsolicited e-mails transmitted.

4. Payment: The agreed monthly fee for the provision of the Synergy 8 Application and the hosting of the subscriber 's web site is to be paid in advance and is due and payable on the 1st day of every month. Unless otherwise agreed this payment will be debited from the subscriber 's nominated credit card. A Tax Invoice will be provided on receipt of this fee.

The subscriber is responsible for providing up-to-date payment information. The provider will not be held responsible should the subscriber 's credit card details or other payment information become out-of-date and subsequently the provider terminates the service for non-payment.

All and any set-up fees are non-refundable once set-up has been completed.

4.1. Payment by Credit Card: If payment is by credit card, the subscriber authorises the provider to charge the credit card nominated for all accrued charges for the provider services including any past-due balances. Credit card payments will be charged automatically, and provider may charge the amount due to the nominated credit card at any time.

4.2. Default of Payment: Accounts are in default if payment is not received on the due date.

The subscriber ’s account will be immediately deemed to be in default if for any reason the subscriber ’s bank returns a cheque tendered for payment by the subscriber . The subscriber will be liable for all related bank fees and charges.

The subscriber ’s account will be immediately deemed to be in default if, in the provider ’s sole discretion, any disputed charges reported by the subscriber to the subscriber ’s credit card issuer are invalid under the terms and conditions of this Agreement.

Accounts in default for 14 days may have their service interrupted. Such interruption does not relieve the subscriber from the obligation to pay any outstanding or ongoing fees. If the subscriber defaults, the subscriber agrees to pay the provider its reasonable expenses, including legal and other related collection costs, incurred in enforcing its rights under these Terms and Conditions.

4.3. Subscriber Data: All the subscriber ’s files, information and mail stored on the provider ’s servers will be preserved for 14 days from the date of default. If full payment is not received within 14 days of default, all the subscriber ’s files, information and mail stored on the provider ’s servers may be deleted. If the subscriber wishes to use the service again, the subscriber must re-apply as a new subscriber . For this, an activation fee will be required.

The subscriber ’s content is stored on the server using a proprietary system and so consequently no guarantees are given that the subscriber ’s content can easily migrate to any other content management system.

5. Cancellation of Service: The subscriber may cancel their service anytime within the first 30 days and receive a full refund on the provision of the Synergy 8 application and the hosting of the subscriber’s web site. After the first 30 days the subscriber may cancel their service without penalty, provided a written request is made to the provider giving a minimum of 30 days advanced notice. Any amounts outstanding, including and up to the date of cancellation, will be due and payable on the date the notice to cancel is received by the provider .

6. Refunds and Disputes: IMPORTANT NOTICE: EXCEPT AS EXPLICITLY PROVIDED IN THIS AGREEMENT, ALL PAYMENTS TO THE PROVIDER ARE NON-REFUNDABLE.
All payments to provider are non-refundable. This includes any set-up fees and monthly fees regardless of usage. The subscriber must report all billing disputes within 30 days of the time the dispute occurred.

7. Suspension or Refusal of Service: The provider shall have the right to refuse, suspend or cancel service to the subscriber at any time, and for any reason, without notice. Cancellation of service by the provider does not relieve the subscriber from the obligation to pay any outstanding fees including and up to the date of cancellation.

8. Termination of Service: The subscriber agrees that the provider has the right to delete the entire subscriber ’s data, files or other information that is stored on the provider ’s servers if either the provider or the subscriber terminates the subscriber ’s account for any reason.

9. Transfer of Service: In the event a subscriber wishes to transfer their web site to another party, the new party must make an application and agree to same terms and conditions the subscriber has agreed to. It is at the sole discretion of the provider to accept the new party as a new subscriber .

10. Other Services: If the subscriber requests that the provider provide services beyond the provision of the application and web hosting, then the subscriber agrees to pay the provider 's price for such services promptly on completion, along with any preliminary deposits that may be required.

11. Third party Applications:   The provider may allow the subscriber to run third party applications on the server. These will be considered on a case-by-case basis and an extra charge may be incurred based on system resources used and any operational maintenance needed. No support for third party applications will be provided unless otherwise agreed by both parties in writing.

12. Intellectual Property: The subscriber agrees not to remove, modify or obscure any copyright, trademark or other proprietary rights notices. The subscriber further agrees not to reverse engineer, de-compile, or disassemble the Synergy 8 Application.

13. Technical Support: The provider does not provide technical support on non-server issues. The provider WILL NOT respond to emails pertaining to such requests. This includes but is not limited to, all 3rd party software, PHP, Java, CGI, scripts, Real Audio/Video, HTML, MySQL, Telnet, FTP, and Email Clients.

14. Currency: All monetary amounts to which this Agreement refers shall be in Australian (AUD) dollars.

15. Goods and Services Tax (GST): In accordance with the Australian Federal Government Legislation, all fees, charges and costs quoted by the provider are inclusive of GST. A tax invoice will be provided by email to the subscriber in each instance where payment has been made to the provider .

16. Traffic and Storage: The provider specifies the traffic bandwidth and storage maximums to be observed by the subscriber . The standard limits are established by the plan or package that the subscriber has chosen. If the subscriber exceeds the established amount of storage or traffic bandwidth the provider reserves the right to charge the subscriber overage fees as specified by the package the subscriber has chosen.

17. Excessive Use: Any site that is deemed as impairing the performance of the provider ’s servers either by high storage utilisation, high bandwidth usage, or high CPU usage will be deemed to be an "Excessive Use” site. “Excessive Use” sites are classified at the sole discretion of the provider , although they will always be in excess of the daily average of the established limits.

A subscriber who have been deemed as an "Excessive Use" site will be subject to the following:

• The subscriber will be charged a $250 security deposit.
• The subscriber will be offered a migration program including associated fees and charges to move to a more suitable server configuration. Time is of the essence as the overall performance of the shared server will be compromised and all sites sharing the server will be affected.
• If the subscriber does not accept the migration program and associated fees they may be given 14 days notice of suspension. In extreme circumstances they may be suspended without notice if the provider deems that other clients will be adversely affected.

18. Abuse of Server: Any attempt to undermine or cause harm to the provider ’s server, or to any of the hosted sites on the provider ’s server is strictly prohibited.

19. Warranty and Disclaimer: The provider makes no warranties of any kind, whether expressed or implied, for the service it is providing. The provider also disclaims, within the limits of the law, any warranty of merchantability or fitness for a particular purpose. The provider will not be responsible for any damage or consequential damage suffered. This includes but is not limited to any loss of data, delays, non-deliveries, misdeliveries, or service interruptions caused by provider .

20. Limit of Liability: ANY LIABILITY INCURRED BY THE PROVIDER , INCLUDING WITHOUT LIMITATION ANY LIABILITY FOR DAMAGES CAUSED OR ALLEGEDLY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OF OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORDS, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION, SHALL BE STRICTLY LIMITED TO THE AMOUNT PAID BY OR ON BEHALF OF THE SUBSCRIBER TO THE PROVIDER FOR THE CURRENT MONTH.

21. Severability: Should any provision of this agreement be held to be illegal, invalid, or unenforceable by a court law, the legality, validity and enforceability of the remaining provisions of this agreement shall remain unaffected.

22. Independent Contractor Status: Nothing in this agreement or in the course of dealing between the provider and the subscriber shall be deemed to create between the provider and the subscriber (including their respective directors, officers, employees and agents) a partnership, joint venture, association, employment relationship or any other relationship other than that of independent contractors with respect to each other.

23. Notice of changes: The provider retains the right to change any or all of the above Terms, Conditions and Disclaimers without notification. The provider retains the right to vary pricing and fee structures by giving the subscriber 30 days notice of intention to do so.

24. Contact Details: The subscriber must advise the provider of any changes to contact details including E-mail, fax and telephone numbers.

25. Time to claim: Any claims arising in relation to this agreement must be claimed no later than one year after it has been incurred.

26. Governing Law: This Agreement shall be governed by and construed in accordance with the laws of Queensland, Australia, without regard to choice of law provisions that would cause the application of the law of another jurisdiction.

27. Headings: The section and subsection headings have been used in this Agreement as a matter of convenience only and shall not be used in the interpretation of any provision of this Agreement.

28. Waiver and Amendments: Failure by the provider to enforce any of the provisions or rights of this agreement shall in no way be considered to be waiver of such provisions or rights. No modification or amendments of this agreement shall be effective or enforceable unless in writing and signed by both parties, unless provided within these terms.