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The following are the Terms & Conditions that must be agreed to before listing your site on the Community Link. If you agree with the below, you can continue at the bottom of the page.
Community Web Hosting and Email Services
Terms and Conditions
as of 19 May 2006
1 Our Agreement
1.1 In these Terms and Conditions the expressions “we”, “us”, and “our” are a reference to the Ballarat City Council ABN 37 601 599 422.
1.2 These Terms and Conditions apply to your use of our Community Web and Email Server (Community Server).
1.3 These Terms and Conditions commence on the day stated in the letter of agreement between us and you with regard to your use of the Community Server.
1.4 These Terms and Conditions constitute the entire agreement between us and you relating to the subject matter of these Terms and Conditions, and all prior representations, warranties, arrangements, understandings and agreements between us and you relating to such subject matter are superseded.
1.5 You must ensure that your officers, employees, members, affiliates, participants, agents and contractors comply with these Terms and Conditions when using the Community Server.
1.6 We may vary these Terms and Conditions by notice to you from time to time. You will be deemed to have agreed to any such variation unless you notify us to the contrary within 30 days of receiving notice of such variation.
2 Community Server Access and Use
2.1 Content Hosting
2.1.1 We will provide you with space on the Community Server for hosting your website as agreed in writing between us and you. Unless otherwise agreed, you will be responsible for the design, development, modification, content and maintenance of your website including ensuring that the content the space is accurate, complete and up to date.
2.1.2 We will use reasonable endeavors to allow you to access your website on the Community Server provided that we will not be liable to you or any other person for any loss or damage suffered by any person as a result of any denial of access to, or use of, your website including denial of such access or use due to malfunction, upgrade or preventative or remedial maintenance activities.
2.2 .Email Services
2.2.1 We will provide you with real, virtual and aliased email addresses as agreed in writing between us and you.
2.2.2 You must provide to us an authorised list of email users and a nominated contact person with authority to verify the authority of those users to utilise those real, virtual and aliased email addresses. Unless otherwise agreed, we will not enter into any communications relating to modification, addition or deletion of such email addresses except with that nominated contact person.
2.3 Permitted Uses
You may only use the Community Server for the purpose of promoting and supporting your organisation or group and providing the same with the online facilities agreed to be provided and any other purpose for which you have obtained our prior written approval.
2.4 Inability to Access or Use Community Server
You must immediately notify us if you are unable to access or use the Community Server unless we are already aware that you are unable to do so.
2.5 Directions
You must comply with all directions given by us relating to your access and use of the Community Server.
3 Software and Systems Used on the Community Server
3.1 Unless we notify you to the contrary, we will use Linux based open source software on the Community Server which is subject to the Generic Public Licence (including variants) (GPU), the details of which can be found at http://www.opensource.org/licenses/.
3.2 You must comply with the GPU when using the Community Server.
3.3 You must not use any software or scripts of any kind on the Community Server without our prior written approval.
4 Maintenance, Downtime and Backups.
4.1 As the Community Server is a community based resource we do not give any assurance, guarantee or warranty as to the availability or accessibility of the Community Server or any content, data or other information stored on the Community Server.
4.2 We will use reasonable endeavors to ensure that maintenance is performed at times which provide minimal or no interruption to your use of the Community Server.
4.3 We will endeavor to provide you with prior notice of any maintenance required to be performed where such maintenance will affect your use of the Community Server.
4.4 .You are responsible for maintaining and keeping regular backups and copies of all content, data and other information which you store on, or transmit using, the Community Server.
4.5 the City of Ballarat will not be responsible for maintaining or have a policy or practice of keeping any backups or copies of any content, data or other information which you store on, or transmit using, the Community Server except in relation to the operating system of the server for disaster recovery purposes.
5 Payment for Services
We reserve the right to vary these Terms and Conditions under clause 1.6 to impose a charge for your use of the Community Server.
6 Your Warranties, Indemnities and Responsibilities
6.1 Warranties
You warrant that:
6.1.1 You will at all times comply with the Community Web and Email Server Acceptable Usage Policy as amended from time to time;
6.1.2 You will take reasonable steps to ensure that all content, data and other information which you store on, or transmit using, the Community Server does not contain any computer viruses, worms or trojans or other malicious programs;
6.1.3 You will take reasonable steps to protect your computer and other information technology systems to prevent the transmission of computer viruses, worms, trojans and other malicious programs and to prevent denial of service attacks being made against the Community Server;Lateral Plains' systems
6.1.4 You will ensure that all usernames and passwords provided to you for access to the Community Server are maintained in a safe and secure way and that only your nominated and authorised persons have access to such usernames and passwords;
6.1.5 You will ensure that all content, data and other information which you store on, or transmit using, the Community Web Server:
6.1.5.1 does not breach any obligation of confidentiality or infringe any copyright, trade mark, patent, design, semiconductor or circuit layout right, or other intellectual property right of any person;
6.1.5.2 does not contain any material which is obscene, abusive, offensive, discriminatory, vilifying, denigrating, harassing, threatening, upsetting, defamatory, pornographic or unsuitable for persons under 18 years of age;
6.1.5.3 does not contain any material of an illegal or fraudulent nature or which can be used for an illegal or fraudulent purpose or activity; and
6.1.5.4 does not breach the Information Privacy Act 2000 (Vic), Health Records Act 2001 (Vic), Privacy Act 1988 (Cth), Spam Act 2003 (Cth) or any other applicable legislation;
6.1.6 You will not use the Community Server to gain unauthorised access to any information technology or communications system of a third party;
6.1.7 You will comply with all applicable laws when using the Community Server; and
6.1.8 or transmitted through it You have not relied upon any representation made by us which has not been expressly stated in these Terms and Conditions.
6.2 Indemnity
6.2.1 You will at all times indemnify and hold harmless us and our officers, employees, agents and contractors (Indemnified Persons) from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of the Indemnified Persons arising from any proceedings against the Indemnified Persons where such loss or liability was caused by:
6.2.1.1 a breach by you or your officers, employees, members, affiliates, participants, agents or contractors of your obligations under these Terms and Conditions;
6.2.1.2 any willful, unlawful or negligent act or omission by you or your officers, employees, members, affiliates, participants, agents or contractors; or
6.2.1.3 any misuse or abuse of the Community Server by you or your officers, employees, members, affiliates, participants, agents or contractors.
6.2.2 This clause 6.2 shall survive termination of these Terms and Conditions.
6.3 Responsibilities
You are solely responsible for dealing with all queries, complaints and disputes involving any person who uses or accesses your content, data and other information stored on, or transmitted by, the Community Server and you must not refer any such query, complaint or dispute to us without our prior written approval.
7 Our Warranties and Liabilities
7.1 Subject to clause 7.2, any condition or warranty which would otherwise be implied in these Terms and Conditions is hereby excluded.
7.2 Where legislation implies in these Terms and Conditions any condition or warranty and that legislation avoids or prohibits provisions in a contact 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 these Terms and Conditions. However, our liability for any breach of such condition or warranty shall be limited, at our option, to one or more of the following:
7.2.1 if the breach relates to goods — replacement of the goods or the supply of equivalent goods, repair of such goods, payment of the cost of replacing the goods or of acquiring equivalent goods, or payment of the cost of having the goods repaired; and
7.2.2 if the breach relates to services — supplying of the services again or payment of the cost of having the services supplied again.
7.3 Subject to clause 7.2, we will be under no liability to you or any other person in respect of any direct or indirect loss or damage which may be suffered or incurred by you or any other person or which may arise directly or indirectly in respect of goods or services supplied under these Terms and Conditions.
7.4 We give no assurance, guarantee or warranty that:
7.4.1 We make no guarantees or undertakings that the facilities provided on the Community Web Server will be uninterrupted or problem free We make no guarantees that any of the software or systems that we use on the Community Web Server will be bug or error free;
7.4.2 the Community Server will be free from viruses, worms, trojans and other malicious programs; or
7.4.3 the Community Server will be free from attacks by hackers and other persons not authorised to access the Community Server.
7.5 We may install spam filtering facilities for use with the email service we provide to you using the Community Server but we do not give any assurance, guarantee or warranty as to the effectiveness or such facilities or that legitimate email will not be blocked.
7.6 We will use reasonable endeavors to ensure the security of the Community Server but do not guarantee that it will be free from computer viruses, worms, trojans and other malicious programs.
7.7 We reserve the right to temporarily suspend your access to the Community Server to protect it against computer viruses, worms, trojans and other malicious programs.
8 Suspension and Termination of Access to Community Server
8.1 We may by notice to you immediately suspend your access to the Community Server if you or your officers, employees, members, affiliates, participants, agents or contractors breach any of these Terms and Conditions.
8.2 We may by notice to you immediately terminate these Terms and Conditions and withdraw your access to the Community Server if:
8.2.1 you or your officers, employees, members, affiliates, participants, agents or contractors breach any of these Terms and Conditions and such breach is not remedied within 14 days of receiving notice from us requiring you to remedy such breach;
8.2.2 you become, threaten or resolve to become or are in jeopardy of becoming subject to any form of insolvency administration or dissolution; or
8.2.3 you cease or threaten to cease conducting your normal activities.
8.3 We may without notice to you:
8.3.1 immediately suspend your access to the Community Server; or
8.3.2 immediately terminate these Terms and Conditions and withdraw your access to the Community Server,
without being required to pay any compensation or other monies to you where:
8.3.3 you or your officers, employees, members, affiliates, participants, agents or contractors breach clause 6.1.5 of these Terms and Conditions and we may pursue any remedies provided by law; or
8.3.4 there is a security or integrity threat to the Community Server.
8.4 Notwithstanding any other provision of these Terms and Conditions, we may at any time by notice to you terminate these Terms and Conditions and withdraw your access to the Community Server without being required to pay any compensation or other monies to you except a pro rata refund of any charges paid by you under these Terms and Conditions for any period after the date of termination.
9 Confidentiality
9.1 Subject to clauses 9.2 and 9.3, a party shall not, without the prior written approval of the other party, disclose the other party’s confidential information relating to the subject matter of these Terms and Conditions (Confidential Information).
9.2 A party may disclose the other party’s Confidential Information where required by law.
9.3 A party may disclose these Terms and Conditions to its solicitors, auditors, insurers or accountants solely for the purpose of advising or reporting.
9.4 This clause 9 shall survive the termination of these Terms and Conditions.
10 Notices
10.1 Notices under these Terms and Conditions may be delivered by hand, post or facsimile to the address of a party specified in the letter of agreement between us and you with regard to your use of the Community Server or such other address notified by the party to the other party from time to time.
10.2 A notice will be deemed given under these Terms and Conditions:
10.2.1 if delivered by hand — on the same day if it is a day which is not a Saturday, Sunday or public holiday in Victoria (Business Day) or otherwise on the next Business Day;
10.2.2 if sent by facsimile and a transmission report is received by the sender stating that it has been received in full — on the same day if it is a Business Day or otherwise on the next Business Day; and
10.2.3 if sent by post — the third Business Day after posting.
11 Other Terms
11.1 Force Majeure - We shall not be liable for any delay or failure to perform our obligations under these Terms and Conditions if such delay or failure is due to circumstances beyond our reasonable control.
11.2 Disputes - The parties undertake to use all reasonable efforts in good faith to resolve any disputes which arise between them in connection with these Terms and Conditions.
11.3 Governing Law - These Terms and Conditions shall be governed by and construed in accordance with the laws of Victoria, and each party agrees to submit to the jurisdiction of the courts of Victoria and any courts hearing appeals from those courts.
11.4 Severance - If any provision of these Terms and Conditions is found to be invalid or unenforceable then that provision will be read down or severed and that invalidity or unenforceability will not affect the validity or enforceability of the other provisions.
11.5 Waiver and Exercise of Rights
11.5.1 A single or partial exercise or waiver of a right relating to these Terms and Conditions does not prevent any other exercise of that right or the exercise of any other right.
11.5.2 No party will be liable for any loss or expense incurred by the other party caused or contributed to by the waiver, exercise, attempted exercise, failure to exercise or delay in the exercise of a right relating to these Terms and Conditions.
11.6 No Relationship - No party has the power to obligate or bind the other party. Nothing in these Terms and Conditions will be construed or deemed to constitute a partnership, joint venture or employee, employer or representative relationship between the parties. Nothing in these Terms and Conditions will be deemed to authorise or empower a party to act as agent for the other party.
11.7 Survival of Terms and Conditions - The provisions of these Terms and Conditions which are capable of having effect after the termination of these Terms and Conditions will remain in full force and effect following such termination.
11.8 Assignment and Transfer - You must not assign these Terms and Conditions without our prior written approval. We may transfer our rights and obligations under these Terms and Conditions to a third party without your approval provided that we notify you as soon as practicable after such transfer.
11.9 Precedence - Where any conflict occurs between these Terms and Conditions and the Community Web and Email Server Acceptable Usage Policy as amended from time to time, these Terms and Conditions will prevail to the extent of the inconsistency.
11.10 Interpretation - In these Terms and Conditions, unless the contrary intention appears:
11.10.1 clause headings are for ease of reference only and do not affect the interpretation of these Terms and Conditions;
11.10.2 a reference to a clause is a reference to a clause of these Terms and Conditions;
11.10.3 words in the singular include the plural and vice versa;
11.10.4 a reference to an individual or person includes a partnership, body corporate, government authority or agency and vice versa;
11.10.5 a reference to a party includes that party’s executors, administrators, successors, substitutes and permitted assigns; and
11.10.6 a reference to a statute, code or other law includes regulations and other instruments made under it and includes consolidations, amendments, re-enactments and replacements of any of them.
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