Dedicated Servers

“Internet Network” shall mean a communications network running the TCP/IP and other Internet protocols.
“Dedicated Server” and “server” shall mean the machine configuration requested by Customer.


2. Payment

All payments under this Agreement are subject to Hostway’s billing policy located at http://www.hostway.com.au/support/billingpolicy.htm

3. Term and Termination

This Agreement begins the day Hostway services are provided to Customer. Thereafter, this Agreement is automatically renewed each successive calendar month unless this Agreement is terminated by Customer upon thirty (30) days written notice via fax only. This Agreement may be terminated by Hostway at any time for violation of the terms set forth in this Agreement or any other reason, at Hostway’s sole discretion.

4. Customer Relations

Each party will be responsible for communicating with its own customers and its customers’ customers with respect to its Internet Network. Each party will independently establish the charges to its own customers for the services provided in connection with this Agreement. Customer is responsible for the activities of its customer base or end-users and, by accepting service from Hostway, is agreeing to ensure that both Customer and its customers abide by the terms of Operational Safeguards. Complaints about customers or end-users of Customer will be forwarded to Customer for action. If irresponsible or illegal activity continues, then Customer may be subject to termination or other action as Hostway may deem appropriate without notice.

Any activity that potentially could harm Hostway’s network, its customers’ networks or other networks is strictly prohibited. Customer and its customer base shall not nor shall they permit or assist others to abuse or fraudulently use Hostway services, including but not limited to the following:

1. Customer shall make every reasonable effort to ensure the security of the Internet Network.

2. Customer is prohibited from hindering administrative access to the server by Hostway.

3. Hostway servers may be used for lawful purposes only. Transmission, storage, or distribution of any information, data, or material in violation of any applicable law or regulation is prohibited. This includes, but is not limited to: copyrighted material; trademarks; trade secrets or other intellectual property rights used without proper authorization; material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws. Examples of unacceptable content or links include: pirated software, hacker programs or archives, Warez sites, and IRC bots. Additionally, in purchasing Hostway services, all Hostway customers certify that they and/or the organization they represent in procuring services from Hostway are not, nor have been designated, a suspected terrorist as defined in Executive Order 13224; are not owned or controlled by a 'suspected terrorist' as defined in Executive Order 13224; and are not on, are not a member of, related to, associated with, or controlled by any organizations on the list contained in the Annex to Executive Order 13224 and all updates thereto.

4. Due to the special system and network requirements of adult-oriented sites, pornography and sex-related merchandising are prohibited on Managed (Advantage) servers. This includes sites that may infer sexual content or provide links to adult content elsewhere. This is also true for sites that promote any illegal activity or content that may be damaging to our servers or any other server on the Internet, or provide links to such sites.

5. Violations of system or network security are prohibited and may result in criminal and civil liability. Examples include but are not limited to the following: unauthorized access, use, probing, or scanning of systems security or authentication measures, data, or traffic; interference with service to any user, host, or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system, broadcast attacks; forging of any TCP-IP packet header or any part of the header information in an email or a newsgroup posting.

6. Hostway does not allow IRC or IRC bots to be operated on its servers.

7.Spamming, the sending of unsolicited mass email from or through a Hostway server or using an email address that is maintained on a Hostway machine is STRICTLY prohibited. Hostway will be the sole arbiter as to what constitutes a violation of this provision. Customers are also in violation of this provision if they engage in spamming using the service of another ISP or IPP, but reference in the spam a web site hosted on a Hostway server. Violators will be assessed a minimum fine of $200 and will face immediate suspension.

8. Engaging in any of the forgoing activities using the service of another provider, but channeling such activities through the Hostway network.

9. The Digital Millennium Copyright Act ("DMCA") sets forth the terms by which copyrights are to abide on the Internet. Notification to Hostway of a copyright infringement is handled as follows:

Neither party shall be entitled or required to carry traffic hereunder if doing so would conflict with any condition imposed by an agreement between the other party and any third party with whom the other party connects.

2. Liability

Hostway shall not be liable for any loss or damage arising from:

a. any failure in or breakdown of any facilities or services hereunder, whatsoever the cause and however long it shall last;
b. any interruption of service, whatsoever the cause and however long it shall last;
c. such party’s submitting traffic to or accepting traffic from the other party hereunder,
d. any other circumstances relating to this Agreement.
Customer shall be responsible for any and all screening, filtering, or other means to comply with federal, state, or local laws and regulations regarding content passing to and from customer’s network.

3. Indemnification

Customer agrees to indemnify and hold harmless Hostway from any claims resulting from the use of our services that damages them or any other party. The Hostway service is provided on an as is, as available basis without warranties of any kind, either express or implied, including, but not limited to, warranties of merchantability, fitness for a particular purpose or non-infringement. Hostway expressly disclaims any representation or warranty that the Hostway service will be error-free, secure or uninterrupted. No oral advice or written information given by Hostway, its employees, licensors or the like, will create a warranty; nor may Customer rely on any such information or advice. Hostway and its partners and suppliers will not be liable for any cost or damage arising either directly or indirectly from any transaction or use of the service.

4. Authorizations

All undertakings and obligations assumed hereunder by either party are subject to all applicable existing and future laws, rules and regulations, and are further subject tot he issuance and continuance of all necessary governmental licenses, waivers, consents, registrations, permissions and approvals.

5. Force Majeure

No failure or omission by either party to carry out or observe any of the terms and conditions of this agreement shall give rise to any claim against the party in question or be deemed to be a breach of this Agreement if such failure or omission arises from any cause reasonably beyond the control of that party (a “Force Majeure Event”). Each party shall give the other notice in the event it experiences a failure or delay due to a Force Majeure Event. Upon such notice, the party affected by the Force Majeure Event may delay performance hereunder during the pendency of such Force Majeure Event, and shall have no liability for such delays.

6. Relationship of Parties

In their performance hereunder the parties are acting as independent contractors, and nothing contained herein shall be construed to create a partnership, joint venture or other agency relationship between the parties.

7. Notices

All notices between the parties required or permitted hereunder shall be effective if hand delivered or sent by post or courier, postage or fees paid, or by facsimile or electronic mail to the addresses specified as below:

Hostway Corporation,
QVB Chambers. Level 5, 143 York Street, Sydney, NSW 2000 Australia
Email: sales@hostway.com.au
Telephone: 1800 33 9999

8. Entire Agreement

This Agreement represents the entire understanding between the parties regarding the subject matter hereof and supersedes all other prior and contemporaneous agreements, understandings, negotiations, and discussions between the parties with respect to such subject matter. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, USA, without regard to the conflicts principles thereof.

9. Severability

If any provision of this agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement will remain in full force and effect.

10. Amendment

This Agreement may be modified by a written amendment signed by both parties.

11. No Third Party Beneficiaries

Nothing contained in this Agreement shall be deemed to confer any rights in any third party not a signatory to this Agreement.

12. Disputes

This Agreement shall be governed by and interpreted in accordance with the laws of the State of Illinois, United States of America, and the courts of the judicial district of county of Cook shall have exclusive jurisdiction in respect of any proceeding in connection with this Agreement.