Y Media

James Yeates & Sons Pty Ltd ABN 80 004 145 288 T/A YMEDIA (“Y MEDIA”, “We” or “Us”), is the owner, developer and distributor of the services associated with the building, management and hosting of web pages, including access to software which allows you the customer (“You”) to build and manage your (“Your”) website, and from time-to-time include additional features and upgrades and enhancements and such other services as agreed (“Services”).

1. Application and Variation of these Terms

   These terms and conditions are the terms on which Y MEDIA will provide the Services to You. These terms constitute the agreement between You and Us (“the Agreement”) in its entirety and supersede any prior agreements between You and Us in respect of the Services. We may modify these terms and conditions, (including without limitation the pricing for any of the Services), or give You notice under this Agreement, by notice on our website and/or by email. Such modifications will take effect 7 days after such notice has been provided. By accepting these terms and conditions, You also agree to accept and be bound by any changes made by Y MEDIA under this clause.

2. Copyright

   The copyright in all reports and associated website designs, text, graphics, the selection and arrangement thereof, and all software is owned or licensed by Y MEDIA. All of Y MEDIA's rights in this regard are reserved. Copyright in the material contained on this website and in any report subsists under the Copyright Act 1968 (Cth) Australia and, through international treaties, under the laws of many other countries.

3. Provision of Services

   Y MEDIA will use all reasonable efforts to provide You with the products and Services that are relevant to the Services purchased, as described on the Y MEDIA website.

   1. Design Services

      Design services sold by Y MEDIA are as detailed on the Y MEDIA website at the time of sale. This includes Website Design, Graphic Design, Website Maintenance Packages, Flash Animation and Y MEDIA promotions.

   2. Domain Names

      You agree to read and abide by the domain registration policies, available at:

      1. http://www.auda.org.au/policy/policy-overview/ for .au domain names; and
      2. http://www.austdomains.com.au/terms_gtld.html for all other domain names.

      You authorise Y MEDIA to communicate Your contact details to the relevant domain registry to be made available to the general public, upon request of the relevant domain registry.

      Y MEDIA does not represent nor guarantee that You or Y MEDIA have rights to ownership of any domain name purchased. You should refrain from taking any action to register or renew a domain name prior to confirm of registration or renewal from Y MEDIA. Y MEDIA does not guarantee successful registration or renewal of a domain name.

      Failure by You to pay any fee (including, but not limited to, any renewal fee) for any domain name by the stipulated due date may result in the domain name being deactivated or deleted by the relevant domain name registry. Under no circumstances will Y MEDIA refund any fees paid by You to Y MEDIA in relation to any domain name.

      Y MEDIA reserves the right to deactivate or cancel a domain name the use of which is illegal, fraudulent, infringes the intellectual property rights or other legal rights of a third party, or is defamatory to or disparaging of a third party. You will indemnify and keep Y MEDIA fully indemnified in respect of any claim, loss, cost or damage suffered or incurred by Y MEDIA as consequence of Your use of a domain name.

   3. Search Engine Marketing & Optimisation

      Y MEDIA offers search engine marketing, search engine optimization and Google Map optimisation Services (collectively, the “Search Services”). Search Engine Services sold by Y MEDIA are as detailed on the Y MEDIA website (www.ymedia.com.au) at the time of sale. This includes; Search Engine Optimisation (SEO) packages, Search Engine Marketing (SEM) packages and Google Maps optimisation packages. Y MEDIA, at their sole discretion, may use 3rd party suppliers to deliver all or any part of the Search Services.

4. Term

   1. All Services (excluding Domain Names)

      For all Services (other than Domain Names, which are dealt with separately below), the initial term of this Agreement will commence on the date of activation of software products or the date the relevant services are first provided by Y MEDIA (as applicable). After the conclusion of the initial term, the term shall automatically renew for a further term of the same period (eg a 1 month term will renew for a further 1 month). Unless notice is provided to Y MEDIA by You more than 10 working days prior to expiry of the initial or any subsequent term, this Agreement will automatically be extended by a further terms of the same period on Y MEDIA's then current terms and conditions. Your failure to give a notice cancelling the Services prior to the commencement of this 10 working day period will constitute acceptance by You of the next renewal. Y MEDIA may cancel or elect not to renew the Services at any time by delivering to You a written notice of non-renewal at least 10 working days prior to the expiry of the initial term or any subsequent term.

   2. Domain Names

      The term of the domain name license (ie that period of time for which the license is granted to You) will be:

      1. 2 years for a .au domain name; and
      2. 1 - 10 years for a .com, .net, .org, .biz or .info domain name; and
      3. The period of agreement for a subdomain.

      When You purchase a domain name from Y MEDIA You will be purchasing the use of the domain name for the specified term, unless otherwise agreed with Y MEDIA. Upon expiration of the initial term for the domain name licence, the domain name licence may be renewed for a further period equal to the period of the initial term.

      It is Your sole responsibility to ensure that registration of a domain name is renewed when necessary and Y MEDIA takes no responsibility for losses or expenses arising out of any failure by You as the Licensee of any domain name to renew the registration of a domain name.

5. Payment

   The applicable prices and charges for a particular product or Service are as stipulated in a quote provided to You by Y MEDIA or, if We have not provided a quote to You, as stipulated on the Y MEDIA website. All prices and charges published on the Y MEDIA website are inclusive of GST, unless otherwise stated. These prices and charges may include:

   1. a one off non-refundable set-up or design services fee, which requires 50% payment upfront before the Services will commence, and final balance upon completion;
   2. a monthly or annual reoccurring fee, payable in advance of the commencement of the relevant period; and
   3. other fees, prices and charges payable on a time, materials or usage basis, as applicable.

   You are responsible for all prices and charges for Services and any other amounts (such as excess storage and bandwidth coverage) incurred by Yourself or Your authorized representative or as a result of any use of a product or Service, in accordance with the billing provisions specified in the payment confirmation.
   Y MEDIA reserves the right to contact a credit reporting agency to obtain personal information about You for the purpose of validating an application for credit made by You to Y MEDIA.
   In the event that Y MEDIA issues You an invoice in arrears for any service or product, You fail to pay for any Service or product by the set due date or You fail to pay any other amount owing under this clause, Y MEDIA reserves the right to, in addition to any other right:

   1. charge interest to You at an applicable rate until the relevant amount owing is paid;
   2. suspend or terminate any Services or products provided to You by Y MEDIA; and
   3. not renew or register any Services or products provided to You by Y MEDIA to a third party.

   Any suspension does not relieve You of Your obligation to make payments under this Agreement including circumstances where a credit card transaction declined. If this occurs an email will be sent to the primary email address that You have provided for us. Failure to provide us with changes to Your primary email address will not result in any extension.
   You agree, in the event of default, to pay Y MEDIA our reasonable expenses, including legal and collection agency fees, incurred in enforcing our rights under this Agreement. Fees are exclusive of any taxes which may be levied or assessed. Any such taxes shall be paid by You. If the whole or any part of a payment is the consideration for a Taxable Supply for GST purposes, You must pay to Y MEDIA an additional amount equal to the applicable GST amount with that payment and Y MEDIA will provide You a GST tax invoice.
   Y MEDIA reserves the right to sell any moneys owed by You to Y MEDIA under this agreement to a debt collector.

6. Warranties

   Certain legislation (including the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1999 (Vic)) may imply terms, warranties or conditions that cannot be excluded, restricted or modified (“Statutory Warranties”). Subject to the Statutory Warranties and to any other warranties specifically given by Y MEDIA:

   1. all conditions, warranties and other provisions which might otherwise have been implied into this Agreement or otherwise in relation to the Services, are excluded; and
   2. You acknowledge that all software (including that used to provide the Services) may have errors, and that it is therefore Your responsibility to monitor and verify the use of the Services.

7. Limitation of Liability

   Where the Services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, the liability of Y MEDIA to You is limited, at the option of Y MEDIA, to:

   1. for a claim relating to goods liability is limited to the repair or replacement of the goods or payment of the cost of having the goods replaced or repaired; and
   2. for a claim relating to services liability is limited to the supplying the services again or payment of the cost of having the services supplied again.

   To the extent permitted by law, the liability of Y MEDIA to You or any other person, whether in contract, tort (including negligence), under statute or otherwise, arising out of or in any way relating to this Agreement:

   1. except as expressly stated in this Agreement, is excluded;
   2. where it cannot be excluded, is limited in total to the fees payable by You for the Services in the previous 12 months; and
   3. excludes liability for any indirect, secondary or consequential loss or damage or for loss of income, profits or anticipated savings or loss of opportunity.

   To the extent permitted by law, You indemnify and agree to keep Y MEDIA indemnified against any loss or claim arising out of Your use of the Services

8. Content of Your Website

   You will take all reasonable steps to ensure that Your website will contain warnings if all or part of its content is not suitable for children and complies with all applicable laws and industry policies.

9. Your Data and Content

   You are responsible for all data, content, materials and files supplied by You to Y MEDIA. It is solely Your responsibility to store back up of all data, content, materials and files supplied by You to Y MEDIA on Your own server.

10. Internet Protocol (“IP”) Addresses

    You agree that Y MEDIA will maintain and control ownership of all IP numbers and addresses that are assigned to You. Y MEDIA reserves the right to change or remove any IP numbers or addresses assigned to You at our discretion.

11. Correspondence

    Correspondence from Y MEDIA will be sent to You via the primary contact email address that You provided during the sign up process. Y MEDIA waives any responsibility for correspondence not being received at this address. It is Your responsibility to immediately advise Us of any change to Your primary contact email address.

12. Links and Publicity

    By entering into this Agreement You acknowledge and agree that Y MEDIA may use Your name, and logo for the express and sole purpose of identifying You as a client of Y MEDIA in its marketing material, both print and electronic and that Y MEDIA may place on Your website a hyperlink to Y MEDIA's website labeled “designed by Y MEDIA” or words to similar effect. You may elect to withdraw Your permission for the use of Your name and logo in Y MEDIA's marketing material, but must do so in writing with 30 days notification for withdrawal of any material from the commercial domain. Y MEDIA accepts no liability for, nor warrants the accuracy of any content associated with any of its customer's websites.

13. CMS Licencing

    Y MEDIA provides the Joomla Content Management System (CMS) free under the GPL Licence.

    1. http://opensourcematters.org/license-trademark-and-copyright.html
    2. http://www.gnu.org/licenses/old-licenses/gpl-2.0.html

14. Acceptable Use

    You will ensure that Your website content (and anything relating to Your website or to the Services) is not illegal; deceptive; inaccurate; defamatory; pornographic, obscene or sexually explicit; discriminatory to any race, ethnic group, religion, or sect; discriminatory or offensive to the disabled or any physically, socially or economically disadvantaged sector of the community; discriminatory against any persons of a particular gender or sexual persuasion; discriminatory against any professional or trade group; offensive, or derogatory to any person or persons; or likely to in any way interfere with or harm the business of any person or entity or to interfere in any way with the natural course of business.
    You will also ensure that Your website is not used for any "spamming" activity or any misleading or deceptive conduct or other illegal or unethical marketing practice. You further warrant that nothing on Your site will breach copyright or other Intellectual Property Rights; or will be contrary to the terms of any binding confidentiality or other agreement nor breach the Privacy Act or equivalent or any other laws or legal requirement.
    Y MEDIA may, but shall not be obligated to, immediately and without notice, terminate the provision of Services to You and remove Your website or Your access to it, if We are of the reasonable opinion that You may be in breach of this clause of this Agreement and such termination may take place immediately on detection of such conduct and without notice to You. You acknowledge that You shall have no remedy or recourse against Y MEDIA.
    Upon termination under this clause, Y MEDIA shall have the right to delete and/or destroy any and all of the content of Your website and Your information, without accounting to You for such destruction.
    You shall have no redress against Y MEDIA in respect of any loss or claimed loss arising out of anything done under this clause.
    Notwithstanding termination under this clause, Y MEDIA shall be entitled to receive payment from You for the Services for the term of this Agreement currently in force at the time of such termination. Y MEDIA does not accept liability for anything on Your website or which in any way relates to it and if any claim is made or threatened against Y MEDIA in respect of Your website or any use of Your website, and You will indemnify and keep Y MEDIA fully indemnified in respect of any claim, loss, cost or damage suffered or incurred by Y MEDIA as consequence of Your website or any content or link on Your website.

15. Bandwidth allowance

    You are allocated a data transfer bandwidth limit and/or disks space limits, as prescribed on the Y MEDIA website. Should Your account pass this allocated amount You will be charged a rate of 0.10 cents per megabyte of bandwidth that is exceeded. Should Your account exceed the allocated amount for two consecutive months or more, You will be required to purchase additional storage. We reserve the right to suspend Your account until the start of the next allocation, suspend Your account or terminate Your account for failure to pay costs under this clause.

16. Notice

    You agree to promptly inform Y MEDIA of any breach by You of these terms and conditions and of any conduct of any other person which You think may be a breach of these terms and conditions, whether the conduct has ceased, is continuing, or may occur in the future.

17. Customer Information

    You will need to supply Y MEDIA with accurate, complete and up-to-date personal information, including billing and account information, so as to be supplied with products, Services and payment confirmation. You shall notify Y MEDIA of any changes to Your contact information.
    Y MEDIA will not be responsible if You do not receive important notifications (such as renewal notices) due to inaccurate personal information or Your failure to notify Y MEDIA of changes to Your personal details.

18. Use of Customer Information

    You grant to Y MEDIA the right to disclose your personal information to other parties, including customer enquiries, mailing operations and billing and debt-recovery entities, in order to ensure that Y MEDIA is able to effectively provide its Services to You.
    You acknowledge and consent to the disclosure by Y MEDIA to any law enforcement agency in any jurisdiction that is investigating any breach or suspected breach of any law in any jurisdiction of Your identity or other personal information provided by You to Y MEDIA, upon Y MEDIA being requested to do so by that law enforcement agency.
    You should review the Y MEDIA Privacy Policy for further information concerning the collection and usage of your personal information.

19. Access

    Y MEDIA cannot and does not know or control whether You have given access to Your Y MEDIA account to other people and recommends that You keep password and login in details confidential. You are totally responsible for when and how Your account with Y MEDIA is used and the actions of the people (if any) You allow to access, or transmit information through, Y MEDIA's computer systems and network resources or otherwise utilise the Services (whether or not You have given them Your login and password details or not).

20. Reliance on Services

    Whether You are using the Services for private or commercial purposes, or both, You agree and understand that the quality, and continuity, of Y MEDIA's Services depends on factors over which Y MEDIA has no control and cannot seek to control. Y MEDIA may be required to perform maintenance, which also may effect the quality, and continuity, of Y MEDIA's Services. Y MEDIA will take all reasonable steps to notify You of such maintenance when permitted by the circumstances. Whilst Y MEDIA will endeavour to maintain ongoing access, it is probable in such an operating environment that disruptions and failures of any or all computer systems, network resources, and the Services may occur. Recognising this, You agree that:

    1. Y MEDIA cannot and does not guarantee, warrant or otherwise imply that You will receive constant and uninterrupted access;
    2. Y MEDIA will provide You with access at any given time only as the circumstances allow; and
    3. Y MEDIA cannot always ensure that it's computer systems and network resources will be fully or continually protected from unlawful access by others, including the infection of data or other information by viruses, or the alteration, misuse, or stealing of data or other information or that any of these activities will be detected.

21. Breach of Copyright

    Y MEDIA does not condone activities and actions that breach the rights of copyright owners. It is Your responsibility to obey all laws governing copyright.

22. Website Licence

    You hereby grant Y MEDIA a licence to cache Your website. You also agree that caching of Your website by Y MEDIA is not a breach of Your or any other parties' intellectual property rights.

23. Cancellation of Services

    You are entitled to cancel a product or Service provided by Y MEDIA before the end of its Service term. Notification of cancellation must be provided to Y MEDIA in writing at least 30 days prior to the date at which You seek the product or Service to terminate. You agree that, should You chose to cancel a product or Service before the end of its Service term, You may be required to pay a cancellation fee to Y MEDIA equal to the fees for two months of Service.

24. Trade and Business Obligations

    You agree to comply with all requirements for the conduct of business applicable to persons conducting business both in Australia and in Your country of residence, and in particular not to breach any export law or trade restriction by the sale or supply of goods or services on Your website.

25. Applicable Law

    The laws of Victoria, Australia, govern this Agreement, and You submit to the exclusive jurisdiction of the courts of Victoria.

26. Force Majeure

    We will not be liable for any act, omission, or failure to fulfil our obligations under this Agreement to the extent that such act, omission, or failure arises from any cause reasonably beyond our control including, but not limited to, acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental action, fire, server and communication line failures, power failures, earthquakes or other similar disasters (called "Force Majeure"). However, We will take reasonable steps to inform You of any such cause and to continue to perform our obligations under this Agreement.