Terms of Service

Preamble

This document (this “Agreement”) is a legal agreement between you (the “Customer”) and Edge Trend Pty Ltd (the “Supplier”) for the services identified below (the “Services”).

If you do not agree to the terms of this Agreement, the Supplier is unwilling to provide the Services to you. In such event, you may not access or use the Services.

1. Interpretation

1.1. Definitions

The following definitions apply in this document:-

“Supplier” means Edge Trend Pty Ltd (ABN: 23 132 234 345)

“Content Management System” means a software system that allows users to manage a website and dynamically generates the website. Also known as a CMS.

“Licensed Software” shall have the meaning set forth in Section 2.5.

“Hosted Service” shall have the meaning set forth in Section 2.3.

“Service” means the licensed software known as PlatformCMS and supplied as a hosted service pursuant to this Agreement.

“Customer” means the entity who the Supplier is to provide the Service to. The Customer may be:

(i.) an entity that is a Reseller of the services
(ii.) an entity that is a Client of the services

“Reseller” means a professional design business, or other similar business, that uses a CMS to implement websites for their Clients.

“Client” means a company, organisation or individual that has engaged a Reseller to help set-up their website.

“Account” means associated logins, data and expenses for services provided to a Customer.

“Control Panel” means the portal where Customers can manage and pay for their Account.

“Dashboard” means the PlatformCMS administrative area/management interface for the Client website(s) configured under their Account

“Client Data” means all data, information, text, visual or graphic representations and other materials in any medium or electronic format, tangible or otherwise that are uploaded to the Account and that are used, copied, stored, transmitted, processed or displayed by the Supplier or Subcontractors in connection with the provision of the Services and the performance of the Supplier’s obligations under this Agreement. Client Data does not include any of the Supplier's Confidential Information or components of the Service that exist prior to Customer interacting with the Service.

“Confidential Information” means (i) the source code, object code, and business methodology related to the Services and its components and (ii) all information marked as confidential or the like, or which, from the circumstances, should be treated as confidential by the receiving party. Confidential Information does not include information which (a) is known by the receiving party at the time of disclosure free of any obligation to keep it confidential, (b) is or becomes publicly available through authorized disclosure by the owner of such information, (c) is rightfully obtained by the receiving party from a third party who has no obligation to maintain it in confidence, (d) is independently developed by employees or agents of the receiving party without reference to or use of the Confidential Information of the other party, (e) is disclosed by the receiving party pursuant to written permission from the disclosing party or (f) is required to be disclosed by the receiving party by legal process.

“Intellectual Property Rights” means all rights in inventions, patents, trademarks, service marks, trade names, rights in designs, copyrights, rights in know-how, moral rights, rights in confidential information and trade secrets, rights in databases, compilation rights and topography rights and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world (whether or not any of these is registered and including applications for registration of any of the same).

“Failure” means a failure of the Services, or any portion thereof, to conform to, operate, function or perform in accordance with the applicable representations, warranties and covenants set forth herein.

“Subcontractor” means a third party in a contractual relationship with the Supplier providing certain services which are material and necessary to the delivery of the Services.

1.2. Understanding

In this document, unless the contrary intention appears or the context otherwise requires:-

a) the singular includes the plural and vice versa;

b) use of the word "include" or any of its derivative forms does not limit what else might be included;

c) a reference to a thing includes all or any part of it;

d) where a word or phrase is defined, its other grammatical forms have a corresponding meaning;

e) a reference to a person or entity includes a natural person, partnership, corporation, trust, association, unincorporated body, authority or other entity;

f) a reference to a statute, ordinance, code or other law includes regulations and other instruments issued under it and consolidations amendments, re-enactments or replacements of any of them; and

g) headings are inserted in this document for convenience only and are not intended to affect its interpretation.

2. Service

2.1. Reseller Responsibilities

To allow the Supplier to correctly provide the Service to the Client with minimal levels of Failure, the Reseller must maintain the Client Account. The Reseller is responsible, pursuant to the instructions provided by the Supplier, for:

a) Supplying the correct billing address and contact details of both the Reseller themselves and all assigned Clients.

b) Providing valid credit card details if the Reseller themselves are paying for Client expenses on the Clients behalf; or if the Client is paying for the Account directly, the Reseller must provide sufficient support to allow the Client to log-in to the Control Panel to provide their own valid credit card details.

c) Understanding the concept of a “Site”/Website, and configuring each Site per Client as necessary.

d) Correct assignment of Domain Names to the Client Account to enable access to each configured “Site” or Website, using the Control Panel.

e) Configuration of all DNS records if DNS is hosted using the PlatformCMS name servers, using the Control Panel.

f) Purchasing and maintaining appropriate SSL certificate(s) for each Website as required. The Reseller must install/update the SSL certificate(s) using the Control Panel in order to be used by the Services.

g) Maintaining a minimum list of FTP users for access to each Client Account.

h) Configuring a valid “template” for each Client “Site”/Website, so that the Content Management System can generate and output all data as intended.

2.2. Client Responsibilities

To allow Supplier to correctly provide the Service to the Client with minimal levels of Failure, the Client must maintain the Client Account for any access delegated to them by associated Reseller.

If Client notices and Failures in Service, they must immediately notify associated Reseller.

The Client shall be solely responsible for the integrity, accuracy and content of the Client Website.

2.3. Hosted Service

Supplier delivers the PlatformCMS software as a service (SaaS). Referred to as a “Hosted Service”, as Supplier is responsible for the “hosting” of the software and resulting generated Websites. The software is not distributed to the Customer, rather it is made available to the Customer via the Internet. For information regarding licensing of the software, see section 2.5.

2.4. Business Continuity

In providing the Services, the Supplier will have in place appropriate backup, disaster recovery and business continuity measures in accordance with reasonable commercial standards. Notwithstanding the foregoing, the Supplier will not provide back-up, disaster recovery and business continuity services to Customer for the Client Data or the provisioning of the Client Website.

2.5. Software Licenses

Subject to the terms and conditions of this Agreement, Supplier hereby grants to Customer during the entire term of this Agreement a non-exclusive world-wide right and license to access and use the Services over the Internet including related software as described in the this Agreement (“Licensed Software”) for Client’s purposes.

3. Fees

The Customer will pay to the Supplier the appropriate fees as specified by the Supplier and agreed to by the Customer as compensation for provision of the Services. When a new Account is created by a Reseller, the Reseller must specify who the Account will be billed to. The options available are:

a) Reseller – All fees associated with the Client Account will be billed to the associated Reseller Account.
b) Client – All fees associated with the Client Account will be billed directly to the Client themselves.

Service Fees

Prior to activation of a new Account, ongoing Services fees for the Account will be displayed for the amount due per billing cycle (with the billing cycle also displayed).

Services fees may vary per billing cycle. Supplier will notify Customer of any changes to service fees no less than 28 days prior to the changes taking effect.

Service Upgrades

Prior to upgrading an Account, fees associated with upgrading Account as well as new ongoing service fees (per billing cycle) will be display to the Customer (with billing cycle also displayed).

Fees associated with upgrading an Account are calculated as a pro-rated amount on the difference between the upgraded ongoing service fees and the current Account ongoing service fees, plus one month of ongoing service fees for the upgraded Account.

Once Customer agrees to upgrade Account, fees associated with upgrade will be invoiced immediately and payable as per Customer payment options (see below). Once an Account has been upgraded, it cannot be “downgraded” or changed back to original “plan”.

IP Addresses

IP addresses will be charged at AUD $2.00 inc GST per month per IP address required.

Overage Charges and Bandwidth Usage

Services are provided with a specified amount of included Bandwidth usage, based on the selected "Plan". Once the included Bandwidth amount is exceeded, the Customer Account will be charged overage fees per GB (Gigabyte), in blocks of one GB (Gigabyte). The price charged per GB (Gigabyte) is based on the Account "Server Location", as specified in the below table:

Server Location: Cost (AUD):
Australia $5.00 / GB inc GST
United States $1.00 / GB inc GST

Reseller Payment Options

Supplier accept payment for Services billed to the Reseller via credit card (Visa or MasterCard). You (Reseller) agree that Supplier is permitted to automatically charge your credit card on a period basis, in advanced or in arrears, for Services and for overage charge related to Services.

Resellers may complete an “Application to pay via EFT” where if approved, the Reseller will be invoiced for Services billed to Reseller on 7-day terms. If Reseller fails to pay within terms of invoice, the Supplier maintains the right to automatically charge the Reseller credit card for the full amount outstanding.

Client Payment Options

Supplier only accepts payment for Services billed to the Client via credit card (Visa or MasterCard). You (Client) agree that Supplier is permitted to automatically charge your credit card on a period basis, in advanced or in arrears, for Services and for overage charge related to Services.

Billing Cycle

Most Services are billed monthly, although they may be billed in periods of other lengths as shown at the time of signing up for that service. Your account will be assigned a monthly renewal day. Adding, changing, or removing Services may result in charges or credits being prorated in such a way as to align with the nearest instance of that monthly renewal day. Selecting a different monthly renewal day may also trigger prorated renewal periods and charges. Service renewals may be shifted to the 28th or 1st if they would have started on the 29th, 30th, or 31st. Some usage-based Services are billed in arrears. You agree to pay any and all accumulated charges for such services. Additionally we reserve the right to require advance payment for usage-based Services.

Account Suspension

Payment is due upon invoicing. Services may be interrupted/suspended on Accounts that are 3 or more days past due. Accounts that are past due may also be assessed a late fee and/or a reactivation fee.

It is the responsibility of the Customer to ensure their credit card details are valid and up-to-date. If our system detects an expired card, Supplier will attempt to contact Customer to notify of such event. In the event of a credit card failure, an invoice will remain outstanding, and Customer will have 72 hours to notify Supplier of a valid credit card details or Services may be suspended.

Bank Charges and other fees

The Supplier is not responsible for any additional bank fees, interest charges, finance charges, over draft charges, or other fees resulting from charges billed by the Supplier. Currency exchange settlements will be based on agreements between you and your credit card provider.

Trial Period

Supplier will occasionally make available a trial period for new Customers to assess the service for free for a specified length of time, to enable the Customer to fairly assess the service. Use of the service during this period is covered by the terms set out in this document. Any overage charges still apply during the trial period, and the Customer will be responsible for paying associated overage charges.

4. Refunds

Customer will be refunded fees charged if deemed by the Supplier to be incorrect or inaccurate.

Refunds may also be available to Customer, assessed on case-by-case basis by the Supplier, if the Customer:

a) is unhappy about the Services provided, and;
b) has been utilising the Services for a period less than one billing month, and;
c) has not accumulated any overage charges in association with the Services provided.

Refunds will only be issued/paid onto the originating credit card that was charged.

To request a refund on Services, please Contact Us.

5. Acceptable Use

Services may only be used for lawful purposes. Transmission, storage or displaying any information, data or other material in violation of any Australia, State of Victoria, or relevant local law (to us) is strictly prohibited. Further, your use of this service must be in full compliance of any laws which Customer is also subject to. Prohibited use includes, but is not limited to:


Any activity which disrupts or otherwise negatively impacts our Services, servers, or networks is prohibited. This includes, but is not limited to: excessive CPU use, excessive use of network capacity, or excessive disk IO.

Sending spam or unsolicited email is prohibited. All addresses used in email must exist and otherwise be legitimate, and you must have a right to use them. All mailing lists must be confirmed opt-in. As we may be assessed a fee by our upstream providers for unsolicited email, we will pass any such fees on to you with an additional handling fee. Sending out any unsolicited email from another source with any kind of reference or other pointer to Supplier provided Services is prohibited.

Reseller is responsible for ALL use of associated Account(s), including use of account(s) by Clients and others. While expressly disclaiming any responsibility to do so, Supplier reserves the right to monitor or otherwise evaluate any content, materials, or other use of account(s).

Supplier also reserves the right, in our sole discretion, to notify and/or forward suspect materials to law enforcement agencies.

6. Confidentiality

Each party will keep in confidence all Confidential Information of the other party and will not directly or indirectly disclose to any third party or use for any purpose other than the performance of its obligations under this Agreement any Confidential Information it receives from the other party.

Each party will use reasonable care to protect the other party’s Confidential Information, but in no event less than the same degree of care it would employ with respect to its own information of like character. Supplier agrees to prohibit access to Client’s Confidential Information to any Subcontractor who has not in advance agreed to confidentiality terms and conditions substantially conforming to those in this section.

7. Subcontractors

Supplier may subcontract specific obligations of Supplier hereunder. Personnel used or supplied by Supplier to perform the work hereunder are employees or subcontractors of Supplier. Under no circumstances are such personnel to be considered employees or subcontractors of Customer.

Supplier will remain responsible for performance by its Subcontractors (and all acts and omissions in connection therewith) to the same extent as for Supplier and its employees. Any references to “Supplier personnel” or similar language in this Agreement will be deemed to include such Subcontractors and all Supplier employees.

8. Ownership

8.1. Customer acquires only the right to use and access the Services set forth in this Agreement and does not acquire title or any ownership rights to Licensed Software. Client agrees not to reverse-engineer the Licensed Software. Client agrees not to remove any copyright notices and other proprietary legends appearing on Licensed Software and Supplier’s proprietary material.

8.2. All Intellectual Property Rights in the Client Data shall be owned by Client.

8.3. Subject to the terms and conditions of this Agreement and while it remains in effect, Customer grants to Supplier the non-exclusive, world-wide right to use, copy, store, transmit, process and display Client Data and other portions or the entirety of the Client Website solely for the purposes of this Agreement. This license shall terminate automatically upon expiration or any termination of this Agreement.

8.4. Any IP addresses assigned for your use remain under the ownership and/or control of PlatformCMS. Your right to use them will always terminate with the cancellation of the associated Service. IP address assignments are subject to ARIN's policies, as changed from time to time.

9. Limitation of Liability

9.1. Disclaimer of Warranties; Limitation of Liability. Except as expressly provided herein, Supplier makes no warranties, express, implied or statutory, including, without limitation, the implied warranties of merchantability, non-infringement and fitness for a particular purposes, with respect to any matter arising under this Agreement, including, without limitation, Services, except as expressly provided herein, Customer acknowledges that Supplier does not warrant access to the Client Website(s) will be uninterrupted, without defect and error, absolutely secure, or without infiltration or compromise of security systems.

9.2. Third-Party Hardware, Software and Other Materials. Supplier will have no liability to Customer, arising from or relating to (and does make any express or implied warranties with regard to) any hardware, software or materials supplied to Customer other than pursuant to this Agreement (“Third-Party Materials”), including, but not limited to, the selection thereof or failure of such Third-Party Materials to perform in accordance with specifications, or any defects therein.

9.3. No Special Damages. Neither party shall be liable under this Agreement for any indirect, special, incidental, exemplary or consequential damages, including, without limitation, compensatory damages for loss of present or prospective profits or revenues, loss of actual or anticipated royalties or other compensation, with respect to sales or anticipated sales or expenditures, investments or commitments, lost business opportunities, of substitute services, loss of records or data, irrespective of the form of action and irrespective of whether Supplier has been informed of the possibility of such damages, in connection with the establishment, development or maintenance of the relationship created by this Agreement or in connection with the performance of obligations hereunder.

9.4. Customer Indemnity. Customer hereby indemnifies and agrees to protect, defend, save and hold Supplier, its officers, directors, employees, representatives and vendors harmless from and against any and all claims, losses, damages, liabilities and expenses of whatever nature (including attorney’s fees), that are incurred or asserted by any party as a result of the Services.

9.5. Maximum Liability. In no event will Supplier’s maximum aggregate liability for damages, arising out of or related to this Agreement, exceed an amount equal to the fees paid by Customer to Supplier during the six (6) months prior to the event allegedly giving rise to the claim, even if such limited remedy is found to have failed of its essential purpose.

10. Severability

If anything in this Agreement is unenforceable, illegal or void then it is severed and the rest of this Agreement remains in force.

11. Full Agreement

This Terms of Service (including the Exhibits, attachments and/or addenda, if any) represents the full and complete agreement of the parties and supersedes all prior agreements or understandings, written or oral between the parties.

12. Changes

This Terms of Service and Privacy Policy may be changed at any time and posting them on our website shall be considered sufficient notice of doing so. Continued usage of Services after a change to this Terms of Service or after a new policy is implemented and posted on our website constitutes your acceptance of such change or policy. We encourage you to regularly check our website for any changes or additions.