Last Modified: May 8th, 2018
Please read this Terms of Service Agreement carefully, as it contains important information regarding your legal rights and remedies.
This Terms of Service Agreement (“Agreement”) is entered into by Local Hosting Services Pty Ltd (“Pitch Hosting”) and you (“Client”). This Agreement is made effective as of the date of your use of this website (“Site”) or the date of electronic acceptance or use of the platform.
- Fees. The Customer agrees to pay Pitch Hosting monthly or periodically, as specified their selected plan. This amount is subject to change in accordance with normal annual CPI index.
- Early Termination. In the event that Customer terminates the agreement, the fee of up to four months charges is applicable.
- Default Accounts. Unpaid invoices for any fees or services payable to Pitch Hosting under the Agreement will be considered in default if not paid by due date. If the Customer in default maintains any information or files on its webspace, Pitch Hosting may, at its discretion, remove all such material from its Web space. Removal of such material does not relieve the Customer of its obligation to pay any outstanding charges owing by the Customer. Customers with accounts in default agree to indemnify Pitch Hosting for Pitch Hosting’s reasonable expenses, including but not limited to debt collection fees, legal fees on a party-party basis, and court costs, incurred in enforcing payment of fees under the Agreement.
- Taxes. Current Pitch Hosting is not registered nor required to collect GST. Should that change in the future, the Customer shall remit to Pitch Hosting all GST imposed on the provision of the Services, regardless of whether Pitch Hosting fails to collect the tax at the time the related Services are provided.
- Additional Services. Any additional Services provided by Pitch Hosting, including but not limited to site development, email management, or any other technical services, will be charged at $150 per hour unless otherwise agreed by both parties in writing. These charges are subject to change in accordance with normal annual CPI index.
Bandwidth & Backup
Bandwidth monitors HTTP, HTTPS & SMTP.
Customer Obligations. The Customer agrees to do all of the following at the Customer’s expense:
- Security Precautions. Use reasonable security precautions in connection with its use of the Services ;
- Data Back Up. The Customer agrees to create and maintain a current copy of all Customer’s content stored on Pitch Hosting servers. Pitch Hosting agrees to keep a daily copy of all Customer’s content.
- The Customer must indemnify and hold Pitch Hosting harmless from and against all claims and losses arising from loss, damage, liability, injury to Pitch Hosting, its employees and third parties, infringement of third party intellectual property, or third party losses by reason of or arising out of any incomplete, inaccurate or incorrect Data Back Up.
- Compliance with Laws. The Customer must comply, and not violate any right of another person, entity, law or contractual duty, including and without limitation, the laws of Australia, the United State, and any other applicable jurisdiction in which Pitch Hosting data is used, store or accessible.
- Suspension of Service. The Customer agrees that Pitch Hosting may suspend Services to the Customer without notice and without liability if:
- there is a denial of service attack on the Customer’s content or other events for which Pitch Hosting reasonably believes that the suspension of Services is necessary to protect its network or its other customers; or
- as requested by a law enforcement or government agency. Information on Pitch Hosting’s servers will be unavailable during a suspension of Services.
- Reciprocal. Pitch Hosting represents and warrants to the Customer, and if the Customer is not an individual, the Customer represents and warrants to Pitch Hosting, that:
- it has the power and authority and the legal right to enter into the Agreement and to perform its obligations under the Agreement;
- it has taken all necessary action on its part to authorise the execution and delivery of the Agreement; and,
- the execution and delivery of the Agreement and the performance of its obligations hereunder do not conflict with or violate applicable laws or regulations, and do not conflict with or constitute a default under its charter documents. If the Customer is an individual, the Customer represents and warrants to Pitch Hosting that he or she is at least 18 years of age.
- Customer. The Customer represents and warrants to Pitch Hosting that:
- the information the Customer has provided and will provide to Pitch Hosting for the purposes of establishing and maintaining the Service is accurate;
- Customer will not use the Services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, and
- Customer shall not provide access to the Service to any person (including any natural person or government or private entity) that is located in or is a national of any embargoed or highly restricted country under Australia Export Regulations.
Unauthorized Use of Service. The Customer shall be responsible for any unauthorised use of the Services by any person, and shall pay all fees incurred for its account by any person using the Services, unless such unauthorised use results from Pitch Hosting’s failure to perform its obligations under the Agreement.
Indemnification. The parties agree that the indemnification obligations defined in this Section where possible shall be in lieu of and supersede any indemnification obligations that may otherwise exist by law.
- Customer. The Customer agrees to indemnify and hold harmless Pitch Hosting, Pitch Hosting’s affiliates, and each of their respective officers, directors, attorneys, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys’ fees) brought by a third party under any theory of legal liability arising out of or related to:
- the actual or alleged use of the Services in violation of: (A) the Agreement or (B) applicable law, by any person regardless of whether such person has been authorized to use the Services by the Customer, except for unauthorized use that results from Pitch Hosting’s failure to perform its obligations under the Agreement, or
- any dispute regarding the control of Customer’s account with Pitch Hosting.
- Reciprocal. Each party agrees to indemnify and hold harmless the other party, the other party’s affiliates, and each of their respective officers, directors, attorneys, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys’ fees) brought by a third party arising out of or related to the indemnifying party’s actual or alleged infringement or misappropriation of a third party’s copyright, trade secret, patent, trademark, or other proprietary right.
- Procedures. A party seeking indemnification under this Section shall provide prompt notice of its claim for indemnification to the indemnifying party; however, failure to give prompt notice shall not affect the indemnifying party’s obligations under this Section unless and to the extent that the failure materially prejudices the defence of the matter. The indemnified party will have the right to select their legal representatives to defend it in respect of any indemnified matter under this Section; provided, however, that the legal representatives selected must be reasonably satisfactory to the indemnifying party. The indemnified party will keep the indemnifying party informed of the status of any litigation or dispute resolution procedure, will give reasonable consideration to the suggestions and requests of the indemnifying party with respect to the conduct of the litigation or dispute resolution procedure, and will not settle any matter covered by this Section without the prior consent of the indemnifying party, which shall not be unreasonably withheld. Notwithstanding anything in this Section to the contrary, if the indemnifying party is indemnifying multiple persons related to the subject matter of the indemnification, the indemnifying party shall have the right to seek consolidation of all such actions and to select counsel to defend the actions. Amounts due under this Section shall be paid as incurred and may be offset against other amounts due under the Agreement
Disclaimer of Warranties
Pitch Hosting does not warrant or represent that the services will be uninterrupted, error-free, or completely secure. The customer acknowledges that there are risks inherent in internet connectivity that could result in the loss of customer’s privacy, confidential information, and property.
To the extent permitted by applicable law, Pitch Hosting disclaims any and all warranties not expressly stated in the agreement including implied warranties of merchantability, fitness for a purpose, and non-infringement. The customer is solely responsible for the suitability of the services chosen. All goods and services are provided on an “as is” basis, except as expressly stated in the service level agreement or other portion of the agreement.
Limitation of Damages. The parties agree that the allocations of risk made in this Section are reasonable and that they would not enter into the Agreement without these limitations on liability.
To the extent permissible by law, the credits described in the agreement are the Customer’s sole remedies for Pitch Hosting’s failure to meet a guarantee and/or warranty, however, this provision does not limit the customer’s right to terminate this agreement as provided in section “Termination” if such failure(s) constitute a material breach of this agreement.
Except as described in the agreement, Pitch Hosting shall not be liable to the Customer for harm caused by or related to Customer’s use of the services or inability to use the services unless the harm was caused by Pitch Hosting’s negligence or misconduct.
Pitch Hosting and the Customer shall not be liable to each other for any lost profits, or any indirect, special, incidental, consequential or punitive loss or damage of any kind, or for damages that could have been avoided by the use of reasonable diligence, arising in connection with the agreement, even if the party has been advised or should be aware of the possibility of such damages.
Notwithstanding anything else in the agreement to the contrary, the maximum aggregate liability of Pitch Hosting and any of its employees, agents or affiliates, under any theory of law (including breach of contract, tort, strict liability, and infringement) shall be a payment of money not to exceed the amount paid by customer for the Website Hosting Service for the three months prior to the occurrence of the event(s) giving rise to the claim.
- Confidential Information. Confidential Information is:
- with respect to Pitch Hosting, Pitch Hosting’s unpublished prices for services, audit and security reports, server configuration designs and other proprietary technology,
- with respect to the Customer, content transmitted to or from, or stored by Customer on, Pitch Hosting’s servers, and
- with respect to both parties, other information that is conspicuously marked as “confidential” or if disclosed in non-tangible form, is verbally designated as “confidential” at the time of disclosure and confirmed as confidential in a written notice given within one (1) day of disclosure; but excluding any information which is independently developed by a non-disclosing party as shown by such party’s written business records, is or becomes generally available to the non-disclosing party or the public other than through violation of the Agreement, or is required to be disclosed by law or regulation. Each party agrees not to disclose the other’s confidential information to any third party except to its service providers, agents and representatives who need to know the information to represent or advise it with respect to the subject matter of the Agreement; and provided that such service providers, agents and representatives are bound by confidentiality restrictions at least as stringent as those stated in the Agreement.
- Pitch Hosting’s Use of Customer’s Name. The Customer agrees that Pitch Hosting may publicly disclose that Pitch Hosting is providing services to the Customer and may include the Customer’s name in promotional materials, including press releases and on Pitch Hosting’s Web site. Neither party may publicly use the other party’s logo or other trade or service mark without that party’s permission.
- Requests for Customer Information. Notwithstanding anything to the contrary above, the Customer agrees that Pitch Hosting may, without notice to the Customer,
- report to the appropriate authorities any conduct by Customer or any of Customer’s customers or end users that Pitch Hosting believes violates applicable law, and
- provide any information, including Confidential Information, it has about Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or government agency. Pitch Hosting may provide any information, including Confidential Information, it has about Customer or its customers or end users in response to a formal request in a civil action that on its face meets the requirements for such a request
Software. The Customer agrees not to remove, modify or obscure any copyright, trademark or other proprietary rights notices that appears on any software provided by Pitch Hosting. Customer may not reverse engineer, decompile, or disassemble any Pitch Hosting provided software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation, or is permitted by the terms of any “open source” license that governs the use of the software.
Third Party Products. As a convenience to the Customer, Pitch Hosting may from time to time arrange for the Customer’s purchase or license of third-party software, services, and other products not included as part of the Service, and/or may provide support to Customer in relation to those products. Pitch Hosting makes no representations or warranty whatsoever regarding such third party products and related support services and they are provided “as is.” Customer’s use of third-party software, services, and other products is governed by the terms of any license or other agreement between the Customer and the third party.
Notices. Notices to Pitch Hosting under the Agreement shall be given in writing via email: email@example.com. Notices to the Customer shall be given via electronic mail to the individual designated as the Contact on the Service Order Form or by means reasonable under the circumstances, including an e-mail to a known contact. Notices are deemed received on the day delivered, or if that day is not a Business Day, on the first Business Day following the day delivered.
Termination and Transition
The term of service shall be determined by either Client’s selection on the order form during the order process or by Client’s request to Pitch Hosting to change to a different term. The term shall begin upon the processing of Client’s order, or upon completion of requested changes by Pitch Hosting. Upon completion of the term, Client acknowledges and agrees that the term will renew automatically for successive terms of length equal to the prior term unless Client notifies Pitch Hosting of its intent to not renew the Hosting Services.
- Customer. The Agreement may be terminated by the Customer thirty (30) days prior to the expiration of the Initial Term, any Renewal Term, or Extended Term without liability (except for amounts due for Services through the effective date of termination) as follows:
- Pitch Hosting fails in a material way to provide the Website Hosting Service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Customer’s written notice describing the failure in reasonable detail;
- Pitch Hosting materially violates any other provision of the Agreement and fails to cure the violation within thirty (30) days of Customer’s written notice describing the violation in reasonable detail; or
- as provided in Section 6 (AUP) upon thirty (30) days advance written notice, in which case there is no refund prorated or otherwise of the Annual Renewal Fee already remitted.
- This Agreement will be automatically renewed at the end of the initial term for the same term specified by you unless you provide thirty (30) days written notice to Pitch Hosting of termination of this Agreement.
- Pitch Hosting. The Agreement may be terminated by Pitch Hosting prior to the expiration of the Initial Term, any Renewal Term, or Extended Term, without liability as follows:
- if Customer is overdue on the payment of any amount due under the Hosting Agreement;
- Customer materially violates any other provision of the Agreement, and fails to cure the violation within thirty (30) days of a written notice from Pitch Hosting describing the violation in reasonable detail; or
- upon reasonable notice, if Pitch Hosting is threatened with a legal claim for copyright or patent infringement related to the provision of the Service and is unable to modify the Service in a way that avoids an ongoing risk of liability.
- Account Removal / Transition. Where the Customer has deleted or removed Pitch Hosting, the Customer acknowledges that this will be considered termination of this Agreement. Pitch Hosting shall keep the Website files publicly accessible for a period of thirty (30) days following the date of expiration or earlier termination of this Agreement and if requested by Client, Pitch Hosting may provide Client with transition services, at its then current rates, including Hosting Services and assistance in transitioning the Website to an alternate provider.
- Solicitation of Pitch Hosting Employees. The Customer agrees that it shall not solicit any Pitch Hosting employee with whom the Customer has had direct contact in connection with this Agreement for employment with the Customer or any other person during the term of this Agreement and for twelve (12) months following termination of this Agreement. Notwithstanding the foregoing, Customer shall not be precluded from:
- hiring an employee of Pitch Hosting who independently approaches the Customer, or
- conducting general recruiting activities, such as participation in job fairs or publishing advertisements in publications or on Web sites for general circulation. Pitch Hosting and the Customer acknowledge that this restriction on the Customer’s ability to solicit staff is reasonable in the circumstances in order to protect the viability of Pitch Hosting’s business. In the event of a violation of this provision, in addition to any other right Pitch Hosting may have at law or in equity, the Customer shall make a one-time payment to Pitch Hosting in the amount of fifty percent (50%) of the employee’s base salary for one year.
- Ownership. Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trade secrets, inventions, trademarks, copyrights, and other intellectual property, and that Pitch Hosting shall own any intellectual property that it may develop in the course of performing in connection with the Services. The Customer does not acquire any ownership interest or rights to possess Pitch Hosting’s server(s) or other hardware, and has no right of physical access to the hardware. Upon termination of the Agreement, the Customer agrees to promptly release any Internet protocol numbers, addresses or address blocks assigned to the Customer in connection with the Service (but not any URL or top level domain or domain name) and agrees that PPitch Hosting may take steps to change or remove any such IP addresses.
- Governing Law, Jurisdiction, Venue. The Agreement shall be governed by the laws of the State of Queensland, and the laws of Australia, as applicable, exclusive of its choice of law principles. The parties agree that any litigation arising out of the Agreement should be commenced in courts situated in Queensland.
- Non-Waiver. A party’s failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party’s rights with respect to that provision or any other provision of the Agreement. A party’s waiver of any of its rights under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not.
- Headings and Captions. The headings and captions in the Agreement are not part of the Agreement, but are for the convenience of the parties.
- Counterparts. Any documents signed in connection with the Agreement may be signed in multiple counterparts, which taken together will constitute one original.
- Survival. The following provisions will survive expiration or termination of the Agreement: fees, indemnity obligations, confidentiality obligations, and provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement.
- Force Majeure. Neither party shall be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond that party’s control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labour action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
- No Third Party Beneficiaries. There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement.
- Severability. In the event any term of this Agreement is held unenforceable by a court having jurisdiction, the remaining portion of the Agreement will remain in full force and effect, provided that the Agreement without the unenforceable provision(s) is consistent with the material economic incentives of the parties leading to the Agreement.
- Relationship Between the Parties. The parties are independent contractors and not partners or joint venturers. Neither party is the agent of the other and neither party may represent to any person that it has the power to bind the other on any agreement. The Agreement is non-exclusive. Pitch Hosting may provide service to any person, including a competitor of the Customer.
- Assignment. The Customer may not transfer the Agreement without Pitch Hosting’s prior written consent. Pitch Hosting’s approval for assignment is contingent on the assignee meeting Pitch Hosting’s credit approval criteria. Pitch Hosting may assign the Agreement in whole or in part.
- Agreement. The Service Level Agreement, the AUP, and any Pitch Hosting Addendum to this Master Services Agreement accepted by Customer are hereby incorporated in this Master Services Agreement by reference and together collectively constitute the Agreement. The Agreement is the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replaces any prior agreement, understanding or communication, written or oral. The terms on either party’s purchase order or other business forms are not binding on the other party unless they are expressly incorporated into a formal written agreement signed by both parties.