Terms of Service

1.1 In these Service Terms and Conditions:

“Effective Date” means the date upon which we activate your Hosting Account;

“General Terms and Conditions” means our General Terms and Conditions available at https://knd.au/terms-conditions/;

“Hosted Data” means all data, works and materials:

(a) uploaded to or stored on the Hosting Platform by you, or by any third party using any software made available by means of the Hosting Platform;

(b) transmitted by the Hosting Platform at your instigation, or at the instigation of any third party using any software made available by means of the Hosting Platform; or

(c) supplied by you to us for uploading to, transmission by or storage on the Hosting Platform;

“Hosting Account” means an online account enabling a person to configure and manage the Hosting Services;

“Hosting Platform” means the platform managed by us and used by us to provide the Hosting Services, including the application, database, system and server software used to provide the Hosting Services, and the computer hardware on which that application, database, system and server software is installed;

“Hosting Services” means those web hosting services specified in the Order which will be made available by us to you as a service via the internet in accordance with the Terms and Conditions;

“Service Level Agreement” or “SLA” means the Service Legal Agreement located at https://knd.au/terms-conditions/, as amended from time to time in accordance with Clause 25 of the General Terms and Conditions;

“Service Level Credits” means service level credits provided for in the SLA;

“Third Party Software” means software, widgets or other applications developed, owned or licensed by a third party.

2. Hosting Services

2.1 On the Effective Date, either:

(a) the Hosting Platform will automatically generate a Hosting Account for you and will provide you with or confirm your login details for that Hosting Account; or

(b) we will create a Hosting Account for you and will provide you with or confirm your login details for that Hosting Account

2.2 We hereby grant to you a right to use the Hosting Services for the purposes of your business in accordance with any relevant documentation supplied by us to you during the Term. 2.3 The right granted to you under Clause 2.2 is subject to the following limitations:

(a) the Hosting Account may only be used by your officers, employees, agents and subcontractors or your Affiliates;

(b) the Hosting Account may only be used by the named users nominated by you in the Hosting Account or notified to us by email sent from the nominated email address for the Hosting Account to our email address in Clause 18 of the General Terms and Conditions (or as otherwise notified).

2.4 Except to the extent expressly permitted in the Contract or required by law on a non-excludable basis, the licence granted to you under Clause 2.2 is subject to the following prohibitions:

(a) you must not sub-license your right to access and use the Hosting Account;

(b) you must not permit any unauthorised person to access or use the Hosting Account; and

(c) you must not make any alteration to the Hosting Platform, except as expressly permitted by the documentation supplied by us to you.

2.5 You shall use reasonable endeavours, including reasonable security measures relating to Hosting Account access details, to ensure that no unauthorised person may gain access to the Hosting Account or any element of the Hosting Services that is accessible using the Hosting Account.

2.6 You must notify us immediately if any unauthorised person gains access to the Hosting Account or any element of the Hosting Services that is accessible using the Hosting Account.

2.7 We will not be liable to you in respect of any losses arising out of any unauthorised person gaining access to the Hosting Account or any element of the Hosting Services that is accessible using the Hosting Account.

2.8 You shall have no administrative access or administration rights in relation to the Hosting Platform.

2.9 The parties acknowledge and agree that the SLA shall govern the availability of the Hosting Services.

2.10 You must comply with the AUP, and must ensure that all persons you authorise to use the Hosting Services comply with the AUP.

2.11 For the avoidance of doubt, you have no right to access the software code (including object code, intermediate code and source code) of the Hosting Platform, either during or after the Term.

3. Hosted Data

3.1 You hereby grant to us, our Affiliates, our subcontractors, our Affiliates’ subcontractors, and providers of Third Party Software a non-exclusive, fully-paid, royalty-free, fully sub-licensable, transferable, worldwide licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Hosted Data to the extent reasonably required for the performance of our obligations and the exercise of our rights under the Contract.

3.2 You warrant to us that the Hosted Data will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.

3.3 If we reasonably suspect that any element of the Hosted Data breaches Clause 3.2, or breaches any provision of the AUP, we may edit or delete the relevant Hosted Data to the extent reasonably necessary to ensure that it no longer breaches that provision (but we are under no obligation to do so).

4. Back-Ups

4.1 If the Order expressly includes the creation of back-up copies of the Hosted Data:

(a) We will create a back-up copy of the Hosted Data at least daily, will ensure that each such copy is sufficient to enable us to restore the Hosting Services to the state they were in at the time the back-up was taken, and will retain and securely store each such copy for a minimum period of 14 days.

(b) Within the period of 1 Business Day following receipt of a written request from you, we shall use all reasonable endeavours to restore to the Hosting Platform the Hosted Data stored in any back-up copy created and stored by us in accordance with Clause 4.1(a). You acknowledge that this process will overwrite the Hosted Data stored on the Hosting Platform prior to the restoration.

(c) Save to the extent expressly provided otherwise in these Terms and Conditions, you shall be responsible for creating and maintaining back-ups of the Hosted Data and any other relevant data relating to the Hosting Services, and if necessary for restoring such data to the Hosting Platform.

(d) Upon the date of effective termination of the Contract, we will make available to you for download an electronic copy of the Hosted Data (as constituted upon that date). We will however have no obligations under this Clause 4.1(d) to make available such Hosted Data if any amounts payable by you to us under the Contract are due but unpaid upon that date. You acknowledge that whilst we may delete the Hosted Data from our computer systems following termination, we may also retain such Hosted Data after termination for legal compliance and/or technical reasons, subject in each case to the other provisions of the Contract.

4.2 In all other circumstances:

(a) You shall be responsible for creating and maintaining back-ups of the Hosted Data and any other relevant data relating to the Hosting Services, and if necessary for restoring such data to the Hosting Platform.

(b) Upon request from you, we will use commercially reasonable efforts to provide support to you and to troubleshoot issues relating to your back-ups and you agree to pay for such services at our then current hourly rate, but you acknowledge we do not guarantee that we will be able to resolve those issues.

(c) We may, in our discretion, create and maintain back-ups of the Hosted Data. You acknowledge that whilst we may delete the Hosted Data from our computer systems following termination, we may also retain such Hosted Data after termination for legal compliance and/or technical reasons, subject in each case to the other provisions of the Contract.

5. Bandwidth and Disk Usage

5.1 You agree that bandwidth and disk usage shall not exceed the data usage per month for the Hosting Services the subject of the Contract (the ‘Contracted Usage’).

5.2 If your bandwidth and disk usage exceeds the Contracted Usage, we may:

(a) increase the Charges to the minimum charges currently charged by us for the usage you have used; and

(b) suspend the Hosting Services if in our opinion your usage puts at risk continued service provision to other customers.

6. Third Party Software

6.1 As part of the Hosting Services, you may be allowed to use Third Party Software. The Third Party Software is neither sold nor distributed to you, and you may use the Third Party Software solely as part of the Hosting Services. You may not use the Third Party Software outside the Hosting Services.

6.2 Your use of the Third Party Software may be subject to additional terms. If the Third Party Software is accompanied by or requires a licence agreement from the third party provider, your use of the Third Party Software is subject to that licence agreement, in addition to the Contract, and if necessary for us to provide the Hosting Services you authorise us to accept the terms of that licence agreement on your behalf.

6.3 We may provide your personal information to third party providers as required to provide the Third Party Software.

6.4 We reserve the right to modify, change or discontinue any Third Party Software at any time, and you agree to cooperate in performing such steps as may be necessary to install any updates to the Third Party Software.

6.5 We make no representation or warranties whatsoever about any Third Party Software offered in connection with the Hosting Services.

7. IP addresses

7.1 If we assign to you an Internet Protocol (IP) address, you accept that the IP address is licensed to you, is not your property and is not portable if and when the Contract ends.

7.2 We reserve the right to change or remove any IP address assigned to you in our sole discretion.

8. SSH access

8.1 You shall have no SSH access in relation to your Hosting Account.

9. Interruption to Hosting Services

9.1 Where possible we will notify you of any interruption to the Hosting Services by posting a notice on our Performance Hosting website.

9.2 You are responsible for subscribing to our Performance Hosting website and informing yourself of any interruptions notified to you using that service.

9.3 Other than as expressly provided for in the SLA, we will not be liable to you in respect of any losses arising out of any interruption to the Hosting Services or any failure to give you notice of any interruption to the Hosting Services or your failure to subscribe to Performance Hosting Online and inform yourself of any interruption to the Hosting Services.

10. Charges and Payments

10.1 Subject to Clause 10.2, we shall issue invoices for the Charges to you:

(a) for Charges relating to the provision of Hosting Services to you – on the Effective Date and then monthly thereafter; and

(b) for Charges relating to excess traffic or additional services – on the last day of the calendar month for that calendar month.

10.2 If our provision of Hosting Services to you includes the use of certain Third Party Software, we shall issue invoices for the Charges to you:

(a) on the Effective Date for the provision of Hosting Services during the period from the Effective Date to the last day of the calendar month;

(b) thereafter, on the last day of the calendar month for the provision of Hosting Services during the immediately following month; and

(c) for Charges relating to excess traffic or additional services, on the last day of the calendar month for that calendar month.

10.3 You must pay the Charges to us:

(a) upon issue of any invoices issued in accordance with Clause 10.1(a) or 10.2(a);

(b) on the first day of the immediately following month for an invoice issued in accordance with Clause 10.2(b); and

(c) within the period of 30 days following the issue of any other invoice.

11. Service Level Credits

11.1 Service Level Credits must be claimed and will be applied in accordance with the SLA.

11.2 Service Level Credits are your sole remedies for downtime, unavailability or other SLA failures.

12. Survival

For the purposes of Clause 16.1 of the General Terms and Conditions, the following provisions of these Service Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 2.7, 2.11, 3.1, 4(d) and 12.