1.Definitions

agreed term means the period of time that BluGekko will maintain a Website for the customer as stipulated in a written agreement, invoice or renewal notice, as the case may be.

agreed rate is the amount specified in in a written agreement, invoice or renewal notice, as the case may be.

customer (sometimes referred to as ‘the customer’ or ‘you’) means the party with whom BluGekko has contracted and shall include their legal representatives, administrators, successors and/or permitted assignees

content includes, but is not limited to, data, text or information, graphics or images, and the arrangement of such material.

expiry date means the last day of the agreed term.

hosting means the place on the web where the customer’s web site resides for public access.

in writing means by letter, facsimile or e-mail to the email address specified in paragraph 9 of these terms and conditions.

Internet refers to the entire worldwide connection of computer networks providing for the transmittal and receival of all electronic data.

BluGekko (sometimes referred to as ‘us’ or ‘we’) means Blugekko Pty Ltd as trustee for Blugekko Unit Trust trading as BluGekko Web (ABN 56 190 314 415), and includes its servants and agents.

monthly instalment means periodical payment by electronic fund transfer or direct debit to the nominated account, cheque or cash or credit card payment at the rate determined stipulated in a written agreement, invoice or renewal notice, as the case may be.

payment date – means 30 days from the date stipulated in a written agreement or printed on an invoice or renewal notice, irrespective on when the invoice or renewal notice is actually received by the customer

renewal notice – means the notice provided to the customer setting out a further agreed term.

Web design service means the creation of a website, including design, layout and artwork as specified in a written agreement. Other than as specified in a written Agreement, this excludes the insertion, uploading or otherwise transfer of content to the website

Hosting service means the hosting of the website including the storage of data on our server in the form of artwork, text and web pages as set out in these terms and conditions..

Website means the area on our server allocated by BluGekko to you for use as a site on the Internet

World Wide Web refers to one facet of the Internet usually referring to the transfer of graphical data and text data linking the server to the customer’s computer.

2.Interpretation

Unless otherwise expressly agreed in writing, BluGekko shall not provides any goods or services on any other terms and conditions other than those set out herein

3.Customer obligations and responsibilities

Fees and Charges

(a)The provision of web design service or hosting service is contingent on BluGekko having received full payment of all fees and charges owed.

(b)The customer further acknowledges that as a result of a failure to pay the agreed rate and any fees and charges by the Payment date, BluGekko, at its discretion, may do any and all of the following until payment is made:

(i)impose a late payment of 1.5% of the outstanding amount for every thirty days or part thereof;

(ii)cease to provide hosting.

(c)If the Customer opts to pay the account by monthly instalments, the customer agrees to pay monthly service fee of $5 or 5% of the total amount owing divided by twelve (12), whichever is greater.

(d)If a customer pays an account by credit card, the customer agrees to pay a merchant service fee of 3.5% of the transaction amount.

Financial Transactions

(e)You agree that any contract of sale of goods or services via your website are between you and your customer and that BluGekko is not liable for any loss whatsoever arising out of said contract.

Security

(f)You acknowledge that it is your responsibility to keep secure any password or identification protocol relating your account or website and will notify BluGekko of any suspected unauthorised use. Notwithstanding such notification, you agree to release and indemnify us in connection with any use (whether authorised or unauthorised) of your account or password.

Use of your website

(g)You warrant that you will use your website for lawful purposes. In particular you warrant that the information contained in your website complies with applicable laws and is not otherwise objectionable

(h)You further warrant that you will not authorise or permit another person to use the Server to transmit data that is unlawful in any way or otherwise objectionable, or contains a virus or other hostile computer program or infringes any other person legal rights.

(i)You acknowledge that BluGekko at its discretion and without notice may remove any material which it deems to be offensive.

Display of website

(j)You acknowledge that your website is designed to be viewed at a native resolution of 1024 x 768 using a Mozilla based web browser (see http://www.mozilla.org/products/firefox/central.html)

(k)You further acknowledge that use of alternative web browsers or the display of your website in a different resolution will alter the appearance of the site.

4.BluGekko obligations and responsibilities:

Hosting

(a)BluGekko agrees to provide hosting for the agreed term.

(b)BluGekko shall endeavour to provide hosting on a continuous and uninterrupted basis. However, the customer expressly acknowledges that access to your website may be limited or unavailable due to server failure or due to server maintenance which occurs from time to time or any other unforseen event.

(c)BluGekko does not accept responsibility for failure to maintain continuous, uninterrupted or error-free hosting of the customer’ website, including email transmitted or stored on the Server and is not liable for any loss or damage whatsoever suffered by the customer due to the unavailability of the service. In no event will we be liable for any loss of, or damage to, any data, including email transmitted, stored on the Server.

(d)Unless expressly agreed in writing, Blugekko is not responsible for maintaining the content of the hosted website, including any electronic filing structures that can be accessed by the customer or making back-up files of any description, including email transmitted or stored on the Server.

Security

(e)While we endeavour to ensure the security of the Server we do not warrant that:

(i)the server shall be free from unauthorised users

(ii)our virus protection services will stop any or all virus from reaching your computer

(f)We will endeavour to ensure that all email is promptly re-routed but will not accept any liability whatsoever for failure to transmit such emails or misrouting.

(g)BluGekko agrees to use its best endeavours to:

(i)provide the ‘web engine’ that allows the customer to insert, upload or otherwise transmit content to the customer’s website.

(ii)provide the necessary instructions that allow the customer to access the web engine and administration ‘back-end’ of the customer’s website

(iii)provide an on-line help service at our web site containing up to date information regarding the ‘instructions’ for site maintenance. Updates and enhancements will be provided on an ongoing basis.

(h)We do not warrant or otherwise guarantee any result or position of your website in any internet search engine result and cannot be held responsible for any change in your position in response to a search internet search engine.

5.Exclusion and limitation of Liability

(a)Subject to subparagraph (b), any condition or warranty which would otherwise be implied in this Agreement is hereby excluded.

(b)Where legislation implies in this Agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty shall be deemed to be included in this Agreement. However, the liability of BluGekko for any breach of such condition or warranty shall be limited, at the option of BluGekko, to:

(i)in relation to goods;

a.the replacement of the goods or the supply of equivalent goods;

b.the repair of such goods;

c.the payment of the cost of replacing the goods or of acquiring equivalent goods; or

d.the payment of the cost of having the goods repaired;

(ii)in relation to Services:

a.the supply of the Services again; or

b.the payment of the cost of having the Services supplied again.

(c)Our total aggregate liability for any claim in contract or tort or otherwise arsing out our provision of services shall be limited to fees and charges paid by you in respect of said services.

(d)In no event shall we be liable to you for any loss of business, sales, contracts, profits or anticipated savings or any other indirect or consequential or loss or damages (including consequential loss or damage) whatsoever which may be suffered or incurred or which may arise directly or indirectly in relation to this Agreement or in respect of a failure or omission by BluGekko to comply with its obligations under this Agreement.

6.Indemnity

The customer releases and indemnifies BluGekko, its servants and agents against all actions, claims and demands which may be instituted against BluGekko arising out of a breach of this Agreement by the customer or of any other person for whose acts or omissions the customer is vicariously liable.

7.Intellectual property rights

(a)All design and layout produced by BluGekko for the customer is copyrighted to BluGekko, and must not be used by the customer for any purpose other than in relation to the customer’s website or to promote the customer’s website.

(b)The customer may seek permission to use BluGekko design and layout for other purposes.

(i)In all cases a written request must be submitted to BluGekko for consideration of the use of the material and for its purpose.

(ii)Only once a written permission is issued, can the material be used, and only then for the purpose requested.

(iii)Any additional use requires further written permission.

(c)The customers acknowledges that all artwork, graphic material or any other material is accepted by BluGekko in good faith on the understanding that the customer owns the copyright in such material or otherwise has the right to use such said material.

(d)The customer is solely responsible for obtaining all necessary intellectual property rights and licenses or other permissions.

(e)BluGekko shall not be held responsible or otherwise liable for any copyright breach from materials supplied by the customer.

8.Termination

(a)BluGekko may by written notice terminate this Agreement if the customer breaches any obligation in this Agreement. In such cases:

(i)BluGekko is entitled to retain all monies paid under this Agreement;

(ii)BluGekko is entitled to seek any outstanding amounts to the full value of this Agreement

(iii)BluGekko may immediately block your website and 14 days thereafter remove all data located on it

(iv)You may retrieve any such data at your expense which will be charged at the rate specified on the BluGekko website under “Fees and Charges” as amended from time to time.

(b)You may in writing terminate your account with BluGekko at anytime to take effect after the agreed term, otherwise your account will be automatically renewed on the day after the expiry date for a further agreed term of twelve (12) months and you will and become immediately liable for the amount specified in the renewal notice.

(c)Nothing in subparagraph 8(b) prevents BluGekko and the Customer to agree in writing to a further agreed term other twelve (12) months.

(d)On receipt of a written termination BluGekko will cease to provide all service within 14 days.

9.Notices

(a)All notices to BluGekko are to be directed as follows:

posted to: BluGekko, PO Box 218, ERINDALE ACT 2903

faxed to: BluGekko, 02 6231 9968

e-mail to: This e-mail address is being protected from spambots, you need JavaScript enabled to view it or;

(b)Subject to subparagraph 9(d), all notices to the customer may be posted, faxed or sent by electronic mail in accordance with the information provided by the customer in clause 3 of this Agreement.

(c)A notice will be deemed to be served:

(i)48 hours after posting;

(ii)on transmission by the sender (if faxed); or

(iii)on transmission by the sender (if e-mailed).

(d)The Customer is solely responsible for notifying BluGekko of change to the information specified in clause 3 of this Agreement

10.Assignment

The customer must not assign the benefit of this Agreement to any person without the written consent of BluGekko.

11.Dispute Settlement

All customer complaints or grievances will be considered by BluGekko with due haste. However any dispute or difference arising between the customer and BluGekko in connection with this Agreement which cannot be settled by direct negotiation shall be referred to arbitration.

12.Severability

If any provision of these Terms and Conditions is found to be invalid or unenforceable by a court of law, such provision is severable and will not affect the remainder of these Terms and Conditions which will continue in full force and effect as if they had been executed without the invalid provisions appearing therein.

13.Applicable Law

This Agreement is subject to the laws of the Australian Capital Territory, Australia. Any disputes arising in relation to access or use of this site are exclusively subject to the jurisdiction of the courts of the Australian Capital Territory, Australia.

14.Variation

We may vary any of these Terms and Conditions but will give you at least 30 days' notice in writing of any variation which:

(a)imposes or increases charges relating to services provided by us; or

(b)increases your liability for losses (subject to paragraph 5).

15.Entire Agreement

Unless otherwise agreed in writing, these terms and conditions constitutes the entire agreement between the parties and supersedes any prior agreements, undertakings and arrangements. Nothing in this Agreement constitutes either of us an agent, partner or employee of the other and neither party has a right or authority to bind the other party.

16.Waiver

A waiver of BluGekko’s rights under this Agreement must be in writing.