Managed Website Hosting Terms

1. Application of these Terms

1.1 Managed Hosting Only

These Managed Website Hosting Terms (“Hosting Terms”) apply to website hosting and associated managed website services supplied by Sydney Web Experts Pty Ltd (“Sydney Web Experts”, “we”, “us” or “our”).

Our hosting service is a managed hosting service and is not offered as a general-purpose or self-managed hosting product.

Unless we agree otherwise in writing:

1. hosting is available only for websites developed, supplied or expressly approved by Sydney Web Experts;
2. the hosting environment is configured, administered and managed by us;
3. the Client does not acquire an unrestricted hosting account, server environment, file repository or general-purpose storage service;
4. the hosting environment may only be used for the live production website and functions reasonably required for that website; and
5. we may impose technical, security and operational controls reasonably necessary to maintain the integrity, performance and security of our infrastructure and other websites hosted on it.

The managed nature of the Service is a material part of these Hosting Terms. It enables us to control software versions, security practices, resource use and other matters affecting the reliability and security of our hosting environment.

1.2 Incorporated Documents

These Hosting Terms should be read together with:

• our general Terms and Conditions;
• the applicable proposal, quotation, service order or hosting plan;
• the Managed Hosting, Backup and Security Schedule;
• the Production Server and Acceptable Use Policy;
• our Privacy Policy; and
• any third-party terms that necessarily apply to products or services supplied through third-party providers.

If there is an inconsistency, the applicable proposal or service order prevails in relation to expressly negotiated commercial terms, followed by these Hosting Terms, the applicable schedules and policies, and then general website representations.

No statement on our website, in promotional material or in informal correspondence expands the scope of the Service unless expressly incorporated into a proposal, service order or other written agreement issued or approved by us.

2. Nature and Scope of Managed Hosting

2.1 Managed Service

Subject to the Client maintaining a current paid hosting plan, our managed hosting service may include:

1. provision of production website hosting;
2. management of hosting-level software and infrastructure under our control;
3. management and updating of supported website plugins, themes, frameworks or similar software components where those components fall within our agreed management responsibility;
4. operation of website security tools or controls selected by us;
5. website backups in accordance with the applicable plan and the Managed Hosting, Backup and Security Schedule;
6. reasonable monitoring and maintenance; and
7. technical intervention where we consider it reasonably necessary to protect the website, our infrastructure, our systems or other customers.

The precise inclusions depend on the hosting plan and any written arrangements agreed with the Client.

2.2 No Guarantee That Software Will Always Be on the Latest Version

Where plugin, theme, CMS, framework or other software maintenance is included, we use reasonable efforts to keep supported components appropriately maintained and updated.

The Client acknowledges that it may not always be appropriate or possible to install an update immediately after release.

We may delay, stage, test, defer, replace, disable, remove or roll back an update where we reasonably consider this necessary because of compatibility, stability, security, licensing, operational or other technical considerations.

Accordingly, a reference to software being “managed”, “maintained” or “kept up to date” does not constitute a warranty that every component will at all times be running the most recently released version.

2.3 Unsupported Components

We are not responsible for maintaining any plugin, theme, code, API, integration, extension or other component that:

1. is abandoned or no longer maintained by its developer;
2. has reached end of life;
3. cannot reasonably be updated without breaking material functionality;
4. is incompatible with the hosting environment;
5. creates a security or stability risk;
6. requires a licence that the Client has failed to maintain;
7. has been installed or modified without our approval; or
8. we otherwise reasonably determine should no longer be supported.

We may require an unsupported component to be replaced, removed or redeveloped. Unless covered by an existing maintenance agreement, that work may be separately chargeable.

3. Production Website Environment Only

3.1 Live Website Use

Our hosting servers are production environments intended for the operation of live websites.

They are not:

• archival storage systems;
• cloud drives;
• document repositories;
• long-term file storage systems;
• backup repositories;
• backup-of-backup repositories;
• software distribution servers;
• media archives unrelated to the operation of the live website; or
• general-purpose server space.

3.2 Prohibited Stored Material

The Client must not store on the production hosting environment any material that is not reasonably required for the current operation of the live website.

Without limitation, this includes:

1. .zip, .tar, .gz, .sql or similar backup archives;
2. copies of historical websites;
3. old website backups;
4. server backups;
5. exported backup packages generated by WordPress plugins or other software;
6. redundant database exports;
7. local computer backups;
8. email archives;
9. unrelated video, image or document archives;
10. development projects that are not part of the production website; or
11. duplicate copies of files retained merely for safekeeping.

3.3 Removal of Non-Production Files

Where we identify material described above, we may remove it where reasonably necessary to protect server capacity, security, backup integrity or system performance.

Where reasonably practicable and where there is no urgent technical or security reason for immediate removal, we may notify the Client before removal.

However, the Client acknowledges that production server space is not an archival service and that we do not accept responsibility for maintaining prohibited or non-production files as stored assets.

The Client must maintain any archive it wishes to preserve outside our production hosting environment.

3.4 Backups of Backups

Files that are themselves backups, archives, snapshots, exports or redundant copies may be:

1. excluded from our managed backup processes;
2. automatically removed by server maintenance or storage-management processes; and/or
3. deleted by us where reasonably required to operate the Service.

We are not required to use server capacity to repeatedly make backups of files whose purpose is themselves to constitute a backup.

4. Managed Backups

4.1 Backup Service

Where included in the Client’s plan, we arrange backups of the production website as an operational disaster-recovery measure.

Backup frequency and retention vary according to the hosting plan and technical configuration.

Depending on the applicable Service, backups may be retained for approximately 1 to 14 days.

Daily backups apply only where included in the particular plan or specifically arranged with us in writing.

4.2 Backup Retention Is Not Permanent Storage

Backup retention is rolling. Older restore points may therefore be automatically overwritten, rotated or deleted as new backups are created.

A stated retention period describes the intended backup configuration and is not a promise that a particular individual restore point will remain available indefinitely.

4.3 No Backup System Is Infallible

We use reasonable care in providing the managed backup service, but backup systems can fail or become unusable due to matters including:

• corruption;
• malware or malicious activity;
• software defects;
• infrastructure failures;
• third-party provider failures;
• storage failures;
• incomplete backup jobs;
• database corruption;
• configuration issues;
• encryption or credential issues;
• failures occurring between backup intervals; and
• events outside our reasonable control.

Except to the extent required by law, we do not warrant that every backup job will complete successfully or that every backup will contain every file, be free from corruption or be capable of successful restoration.

4.4 Client's Important Records

Our managed backup system is designed principally to assist us in operating and recovering the hosted website.

It should not be treated as the Client's sole permanent archive of irreplaceable business information.

Where the website contains information that the Client is legally, commercially or operationally required to preserve independently, the Client must maintain an appropriate independent copy or retention system for that information.

4.5 Restoration

Restoration from an available managed backup is subject to:

1. an appropriate restore point being available;
2. the restore point being technically usable;
3. the relevant backup containing the required information; and
4. reasonable restoration time.

Restoration may cause information generated after the selected backup point to be lost.

We may require the Client to approve a restoration where restoring the website could overwrite newer information.

Extensive, repeated or Client-requested restorations arising from matters outside our management responsibility may be charged separately.

5. Security

5.1 Managed Security

We use reasonable technical and operational measures intended to reduce website security risks, which may include security software, malware scanning, firewalls, access controls, patching and other measures selected by us.

Security tools and processes form part of risk management. They do not make a website immune from attack.

5.2 No Guarantee Against Cyber Incidents

The Client acknowledges that no internet-connected website, server, plugin, application or security product can be guaranteed to be completely secure.

Except to the extent required by law, we do not warrant that:

1. a website cannot be hacked;
2. malware cannot be introduced;
3. credentials cannot be compromised;
4. an unknown or zero-day vulnerability will not be exploited;
5. a denial-of-service attack will not affect availability;
6. a third-party service will remain secure; or
7. a security product will detect or prevent every threat.

5.3 Our Right to Protect the Environment

Where we reasonably believe that a website, account, file, plugin, script, credential or integration presents a security risk, we may take proportionate steps to protect the affected website and hosting infrastructure, including:

• blocking traffic;
• resetting credentials;
• disabling access;
• disabling or removing a plugin;
• isolating a website;
• temporarily placing a website into maintenance mode;
• applying emergency updates;
• restricting administrative access;
• restoring from backup; or
• temporarily suspending the Service.

Where circumstances permit, we will use reasonable efforts to minimise unnecessary disruption.

5.4 Client Interference

The Client must not intentionally disable, circumvent or interfere with security, update, backup, monitoring or access-control systems installed or configured by us.

If the Client or a third party engaged by the Client is given administrative access and makes changes contrary to our recommendations or without our approval, we may:

1. require those changes to be reversed;
2. charge for investigation or remediation;
3. exclude affected components from our management obligations; and/or
4. suspend access where reasonably necessary to protect the Service.

6. Availability, Maintenance and Service Interruptions

6.1 No Continuous-Availability Warranty

Unless a separate written service level agreement expressly states otherwise, we do not guarantee 100% uptime or uninterrupted access to the website.

The Service may from time to time be unavailable because of planned maintenance, emergency maintenance, upgrades, software failures, hardware failures, telecommunications problems, internet routing issues, DNS failures, cyberattacks, third-party provider incidents or other events.

6.2 Maintenance

We may perform maintenance, upgrades, migrations, security work or infrastructure changes where reasonably required.

Where practical, planned work that is expected to materially affect a website will be scheduled to minimise disruption.

Urgent security or technical maintenance may be performed without advance notice.

6.3 Third-Party Infrastructure

We may use third-party data centres, cloud providers, networks, DNS providers, security providers, software vendors, control panels, backup providers and other suppliers.

Our Service is therefore dependent in part upon systems and services that are not entirely within our direct control.

We are not responsible for a third-party provider's acts or omissions except to the extent that responsibility cannot lawfully be excluded or limited.

6.4 Reporting Problems

The Client must notify us within a reasonable period after becoming aware of a material hosting problem.

We must be given reasonable access and a reasonable opportunity to investigate and remedy the issue.

7. Resource Use and Platform Protection

7.1 Fair and Reasonable Use

Hosting resources must be used for the normal operation of the Client's approved live website.

A website must not consume resources at a level that materially threatens the stability, security or reasonable operation of our infrastructure or other hosted websites.

7.2 Excessive Resource Use

Where a website generates materially excessive CPU, memory, disk, database, bandwidth, email, process or other resource usage, we may reasonably:

1. investigate the cause;
2. apply temporary technical restrictions;
3. require optimisation;
4. require removal or replacement of problematic software;
5. migrate the website to a more appropriate environment;
6. propose a higher-capacity service; or
7. suspend the affected functionality where necessary to protect the platform.

Where practicable, we will give the Client an opportunity to remedy persistent resource issues before terminating the Service.

8. Client Responsibilities

The Client is responsible for:

1. providing accurate and current contact details;
2. maintaining control over authorised email addresses, domain names and third-party accounts;
3. using strong passwords and appropriate multi-factor authentication where available;
4. ensuring that persons given website access are trustworthy and appropriately trained;
5. promptly informing us of suspected security incidents;
6. maintaining all licences for Client-supplied software, fonts, photographs, plugins, APIs and other materials;
7. ensuring that website content and business activities comply with applicable law;
8. ensuring that the Client has the necessary rights to all material it instructs us to host;
9. maintaining legally or commercially required records independently of the production hosting server; and
10. not using the Service in breach of the Production Server and Acceptable Use Policy.

9. Customer Content

9.1 Ownership

As between us and the Client, ownership of Client-supplied content remains with the Client or its applicable owner.

9.2 Necessary Licence

The Client grants us a non-exclusive, worldwide, royalty-free licence for the duration of the Service to host, copy, reproduce, transmit, cache, backup, restore, modify where technically necessary and otherwise process Client content solely to the extent reasonably required to provide, maintain, secure, migrate and support the Service.

9.3 Client Warranty

The Client warrants that it has all rights, authorities and permissions required for us to host and process the Client content in accordance with these Hosting Terms.

10. Suspension

We may temporarily suspend or restrict all or part of the Service where reasonably necessary because:

1. an amount due to us remains unpaid after its due date;
2. the Client materially breaches these Hosting Terms or an incorporated policy;
3. the website creates a material security threat;
4. the website materially threatens the operation of our infrastructure or another customer's service;
5. we reasonably suspect unlawful, fraudulent or malicious use;
6. we receive a binding legal, regulatory or court requirement;
7. a third-party infrastructure provider requires us to act;
8. continued operation creates an immediate and material risk of legal liability; or
9. emergency maintenance or remediation is required.

Where the circumstances reasonably permit, we will notify the Client and provide an opportunity to remedy a remediable breach before permanent termination.

Immediate suspension may occur where delay would reasonably increase a security, legal, infrastructure or third-party risk.

11. Termination and Data Following Termination

11.1 Termination by Client

The Client may cancel the hosting service in accordance with its applicable service term and cancellation arrangements.

Amounts already accrued remain payable.

11.2 Termination by Us

We may terminate the Service:

1. for a material breach that remains unremedied after reasonable notice;
2. immediately for serious unlawful, fraudulent or malicious activity;
3. where continued hosting presents a material and continuing security or infrastructure risk that cannot reasonably be remedied;
4. where a third-party provider permanently withdraws a service necessary for us to provide the hosting and a reasonable alternative is not commercially available;
5. following persistent non-payment; or
6. otherwise in accordance with an agreed service term.

11.3 Removal of Website After Termination

Hosting is not permanent storage.

Following expiry or termination of the hosting Service, we may disable access to the website and delete website data from active hosting infrastructure after a reasonable operational period.

Unless we have expressly agreed otherwise in writing, we are not required to retain a former Client's website indefinitely following termination.

Any managed backups associated with a terminated account may also expire, rotate or be deleted.

The Client should request any required handover or export before termination takes effect.

11.4 Emergency Termination

Where termination results from malware, unlawful content, deliberate abuse, fraud, a serious security incident or conduct creating an immediate material risk, access may be restricted before a copy of the website is supplied.

12. Website Migration and Transfer

12.1 No Guaranteed Migration Outcome

Where we agree to migrate a website or related services from another provider, migration is undertaken on a reasonable-efforts basis.

Different hosting systems, database versions, DNS configurations, email systems, software versions, proprietary platforms and security controls may prevent complete or error-free migration.

We do not guarantee that every component can be transferred or that the migrated website will behave identically to the previous environment.

12.2 Source Provider

We are not responsible for:

• incomplete source backups;
• inaccessible source accounts;
• restrictions imposed by the previous provider;
• corrupt source data;
• incompatible software;
• missing credentials;
• licensing restrictions; or
• information already lost before the migration begins.

12.3 Testing

The Client must promptly review any migrated website and notify us of material discrepancies within a reasonable period.

13. Third-Party Products and Services

The website may rely upon third-party products including plugins, payment gateways, APIs, DNS systems, domain registries, email systems, security services, analytics systems, social media platforms and other external services.

We do not control those providers.

A third-party provider may change, restrict, discontinue, suspend or alter its products, terms, APIs, prices or functionality.

Where such a change affects the website, additional work may be required and may be chargeable unless included within an existing support arrangement.

14. Warranties and Australian Consumer Law

Nothing in these Hosting Terms excludes, restricts or modifies any consumer guarantee, right or remedy that cannot lawfully be excluded, restricted or modified.

Subject to those non-excludable rights, and to the maximum extent permitted by law:

1. the Service is supplied on an “as available” basis;
2. we do not warrant uninterrupted, error-free or completely secure operation;
3. we do not warrant that every software defect, vulnerability, third-party failure or compatibility issue can be identified or corrected;
4. we do not guarantee a particular commercial result, search-engine ranking, sales outcome or website traffic level from hosting the website; and
5. warranties or conditions not expressly stated in the agreement are excluded to the extent permitted by law.

Where the Australian Consumer Law permits us to limit our liability for a failure to comply with an applicable consumer guarantee in relation to services not ordinarily acquired for personal, domestic or household use or consumption, our liability is limited, at our option and to the extent permitted by law, to:

1. supplying the affected services again; or
2. paying the reasonable cost of having the affected services supplied again.

15. Limitation of Liability

15.1 Excluded Loss

To the maximum extent permitted by law, neither party is liable to the other for indirect or consequential loss arising from the Service.

Without limiting the foregoing and subject to applicable law, we are not liable for loss of profit, loss of revenue, loss of opportunity, loss of anticipated savings, loss of goodwill or business interruption to the extent that such loss is indirect or consequential.

15.2 Matters Outside Our Reasonable Control

Subject to applicable law, we are not liable to the extent loss is caused or contributed to by:

1. acts or omissions of the Client or its personnel;
2. Client-supplied software or credentials;
3. unauthorised Client modifications;
4. a third-party provider outside our reasonable control;
5. cyberattacks that could not reasonably have been prevented through the agreed Service;
6. force majeure or telecommunications failure;
7. information or files that the Client was required to maintain independently;
8. prohibited backups or archives stored on production servers;
9. software that is unsupported, abandoned or end-of-life;
10. the Client declining recommended remediation, upgrades or replacement work; or
11. conduct outside the agreed scope of the managed hosting Service.

15.3 Liability Cap

Subject to clause 14 and any liability that cannot lawfully be excluded or limited, our aggregate liability arising out of or in connection with the hosting Service during any twelve-month period is limited to the total hosting and managed-service fees actually paid to us for the affected website during the twelve months immediately preceding the event giving rise to the claim.

Where the Service has been supplied for less than twelve months, the cap is the amount actually paid for the affected Service during that shorter period.

This limitation does not apply to the extent it would be unlawful or unenforceable in the particular circumstances.

15.4 Contributory Responsibility

Our liability will be reduced to the extent that an act or omission of the Client, its personnel, its contractors, or a third party under the Client's control caused or contributed to the relevant loss.

16. Client Indemnity

To the extent permitted by law, the Client indemnifies us against third-party claims, losses and reasonable external costs arising directly from:

1. content supplied or authorised by the Client that infringes another person's intellectual property or other rights;
2. unlawful content or activities undertaken through the website at the Client's direction;
3. the Client's material breach of these Hosting Terms;
4. the Client's unauthorised use of third-party software or data; or
5. acts of a person to whom the Client has provided website or account access.

The indemnity does not apply to the extent that the relevant liability was caused by our negligence, wilful misconduct or breach of law.

17. Charges for Remediation Outside Managed Scope

The managed hosting fee does not necessarily include substantial remediation or redevelopment work resulting from:

• Client or third-party modifications;
• compromise of credentials outside our systems;
• unsupported software;
• abandoned plugins;
• external API changes;
• Client-requested custom functionality;
• major malware remediation resulting from matters outside our reasonable control;
• data import or reconstruction;
• recovery of files the Client was required to retain independently; or
• work required because the Client rejected our previous technical recommendations.

Where reasonably practicable, we will advise the Client before undertaking material separately chargeable work.

18. Changes to Hosting Technology

Technology, security threats and third-party infrastructure change over time.

We may make reasonable technical or operational changes to the hosting platform where necessary to maintain security, performance, compatibility or service continuity.

A change that materially reduces the principal functionality of the Client's paid Service will not be made merely for convenience without reasonable notice where notice is practicable.

19. Notices

The Client must keep its primary contact and billing details current.

Operational and contractual notices may be sent to the Client's most recently nominated email address.

The Client is responsible for monitoring that address.

20. No Partnership or Fiduciary Relationship

Nothing in the hosting relationship creates a partnership, joint venture, employment, fiduciary or agency relationship between the parties.

21. Severability

If a provision of these Hosting Terms is invalid or unenforceable, it is to be read down to the minimum extent necessary where possible.

If it cannot be read down, it is severed and the remaining provisions continue to operate.

22. No Waiver

A failure or delay by either party to exercise a right does not constitute a waiver of that right.

A waiver in one instance does not constitute a continuing waiver.

23. Entire Hosting Agreement

These Hosting Terms, the relevant service order or proposal and the documents expressly incorporated into them constitute the agreement relating to the managed hosting Service and supersede prior representations relating to the scope of that Service.

24. Governing Law

These Hosting Terms are governed by the laws of New South Wales, Australia.

The parties submit to the courts of New South Wales and courts having appellate jurisdiction from them, subject to any law that requires otherwise.

25. Interpretation in Favour of Lawful Operation

Any exclusion, limitation, suspension right, indemnity or other protective provision in these Hosting Terms applies only to the maximum extent permitted by applicable law.

Nothing in these Hosting Terms is intended to exclude a right or remedy that cannot lawfully be excluded.