These Terms & Conditions apply to the provision of services by the founder Md M Islam (ABN 70 595 331 747) trading as Website Design Hut (Website Design Hut, we, us, our) to you as a user and customer of our services (you, your).
In order to receive any of our products and services, you must agree to the following terms and conditions.
The following terms of business apply to any or all of our products and services including: Domain Name registration, cPanel Hosting, WordPress Hosting, SSL Certificates, VPS, Email Hosting, spam and virus protection, Logo Design, Graphic Design, Content Writing, Directory Submission, Email Marketing, downloadable files back-up software, Search Engine Optimisation, Managed Website, WordPress Website Design, Prestashop Ecommerce Website Design services to be provided by us to you from time to time. Server means the computer server equipment operated by us or any third party in connection with the provision of the Services. Web Site means the area on the Server allocated by us to you for use by you as a site on the Internet. Secure Web Page means the Web page operated and located on the Server which allows you to collect credit card details in a means that is difficult for other people to view the page when it is loaded, because the page is encrypted. Search Engine Optimisation means any service which is designed to assist your Web Site gain a higher listing in the Search Engine results.
Special terms of contracts
Domain name registration terms
1. We do not warrant or guarantee that the domain name applied for will be registered in your name or is capable of being registered by you. Accordingly, you should take no action in respect of your requested domain name(s) until you have been notified that your requested domain name has been registered.
2. If your application is deemed fraudulent through a fraud detection and prevention mechanism in the domain registration process, we may require the registering party to supply Photo Identification to verify their identity. Accepted Photo Identification methods are Passport or current Drivers License.
3. Both the registration of the domain name and its ongoing use are subject to the relevant naming authority’s terms and conditions of use and you are responsible for ensuring that you are aware of those terms and conditions and can and do comply with them. You irrevocably waive any claims you may have against us in respect of the decision of a naming authority to refuse to register a domain name and, without limitation agree that the administration charge paid by you to us shall be non-refundable in any event.
4. We accept no responsibility in respect of the use of a domain name by you and any dispute between you and any other individual or organisation regarding a domain name must be resolved between the parties concerned and we will take no part in any such dispute. We reserve the right, on our becoming aware of such a dispute, at our sole discretion and without giving any reason, to either suspend or cancel the domain name, and/or to make appropriate representations to the relevant naming authority.
5. Outbound domain transfers from Hostess.com.au to us incur a $16.50 AUD Administration charge invoiced to the gaining Account by our Accounts team. This charge is not applicable for domains transferring for the purpose of ordering our provided services.
cPanel Website hosting/WordPress Hosting/Managed Website/ Email/ SSL Certificates/ virus protection terms
6. We specifically exclude any warranty as to the accuracy or quality of information received by any person via the Server and in no event will we be liable for any loss or damage to any data stored on the Server. You are responsible for maintaining insurance cover in respect of any loss or damage to data stored on the Server. You warrant to us that you will only use your assigned Web Site for lawful purposes. In particular, you further warrant and undertake to us that:
6.1 You will not, nor will you authorise or permit any other person to, use the Server in violation of any law or regulation;
6.2 You will not knowingly or recklessly post, link to or transmit any material: i. that is unlawful, threatening, abusive, harmful, malicious, defamatory, violent or teaching violence, obscene, pornographic, profane or otherwise objectionable in any way; or ii. Containing a virus or other hostile computer program; iii. that shall constitute or encourage a criminal offence, give rise to civil liability or that violates or infringes any trade mark, copyright, other intellectual property rights or similar rights of any person under the laws of any jurisdiction; and c. you will conform to the standards made available by us from time to time and will not yourself, and will ensure that none of your end users, make excessive or wasteful use of the Server to our detriment or that of our other customers. We reserve the right to suspend your service at the time of service abuse prior notification, and to terminate post 3 events of suspension of the service as a result of ongoing lack of resolution of the issue associated.
6.3 Our shared hosting products can only be used for web hosting purpose. Any activity of file storage, application storage, on-site video hosting, on-site audio hosting or any activity that potentially affect other users or the server will result in account suspension without notice. We strongly recommend to consider our VPS solution if you need dedicated resource.
6.4 All hosting plans are subject to general resource and usage monitoring. The following usage items are expressly prohibited:
6.4.1 Any action or process that unreasonably consumes resources degrading the shared environment for other users is subject to review. This includes but is not limited to execution of scripts (PHP,ASP.NET,CGI/PERL, FTP, HTTP, database connections and the like).
6.4.2 Running standalone, automated server-side processes including, but not limited to any daemon.
6.4.3 Running any bit torrent application, tracker or client.
6.4.4 Participating in file sharing or other peer to peer sharing activity.
6.4.5 Executing any script for longer than 180 seconds.
6.4.6 Executing any database query that takes longer than 30 seconds to complete.
6.4.7 Specifying cron tasks that execute more frequently than every 300 seconds.
7. You are responsible for sending mail in accordance with any relevant legislation, including but not limited to the Commonwealth Spam Act (2003) and for sending the same in a secure manner. We will take all reasonable steps to ensure accurate and prompt routing of messages but we will not accept any liability for non-receipt or misrouting or any other failure of email. In the event of deliberate transmission of unsolicited commercial email (UCE), we reserve our right to terminate services without prior notification.
8. You warrant, undertake and agree that:
8.1 Any transactions within your Web site which are contracts for the sale of goods or services will be between you as the merchant and your end-user customer and you agree that we may include an exclusion of our liability in respect of such purchases and transactions in such form as we deem appropriate;
8.2 The information contained within your Web site will comply with all applicable law, and codes of practice governing the use of Web sites and related services, including, without limitation, those laws and/or codes of practice governing distance selling and data protection from time to time in force;
8.3 You will keep secure any identification, password and other confidential information relating to your account and you will notify us immediately of any known or suspected unauthorised use of your account, or any known or suspected breach of security, including loss, theft or unauthorised disclosure of your password information. Notwithstanding such notification you will be liable for any and all uses of your account (and Web site) notwithstanding any fraudulent or improper use of your password or any other access to any of the facilities we offer which is not unauthorised use or access by us.
9. Whilst we shall use reasonable endeavours to ensure the integrity and security of the Server, we do not guarantee that the Server will be free from unauthorised users or hackers.
10. We do not warrant whatsoever that our virus protection services will stop every virus from reaching your computer network. We make no warranty that the service will be error free or free from interruption of failure, and we expressly disclaim any express or implied warranty regarding system and/or service availability, accessibility, or performance.
11. You agree to accept additional charges for the transit of IP traffic above and beyond the amount specified in the Service. All excess data will be charged at the rate of 5.5c/MB to the nearest whole MB. These charges will fall due at the completion of the calendar month on normal trading terms of 14 days from invoice. We will provide an online interface allowing authorised users to monitor website data traffic. For hosting service plans which specify UNLIMITED data transfer, should your site exceed burst (or ongoing) data transit of greater than 5Mb/sec, or otherwise degrade the network performance for other users, the account will be subject to review and possible suspension
Web design services
12. Starter Web Design has a maximum of 3 pages limit. Business Design package is based on a 5 pages design. Custom Design has no page limit and the cost will be estimated before the project starts.
12.1 You agree that in the provision of web design services by us we may utilise the services of third party contractors, and that we may pass on to such contractors any information or materials, including design brief and content, provided to us by you.
12.2 You are responsible to keep a copy of any existing Web Site which we may replace pursuant to the provision of web design services including all databases and hosted files. We may provide an archival solution for the existing website at our standard commercial rates.
12.3 We are not responsible for the contents of any Web Site we design for you, and upon publication you must satisfy yourselves that the Web Site will comply with all applicable laws, and codes of practice governing the use of Web Sites and related services. This includes the intellectual property and copyright ownership of all material that you have provided to us. We are similarly not responsible for your subsequent use of the site and your compliance of various commonwealth and state legislation.
12.4 All website content must be provided by you within 2 weeks of invoice (project commencement). If your data is not supplied within 2 weeks, we reserve the right to place your project on administrative hold. If no data is supplied within 1 calendar month of invoice, the project will be cancelled and subject to cancellation fees. However, if you need further extension, you must obtain our authorisation in writing at the time of project commencement.
12.5 You must provide one complete feedback within 7 calendar days after we send you design concept and production review. If no feedback is provided within this time, we reserve the right to move forward with the project, assuming no changes have been requested and that work is accepted in its current form. Any changes requested past this time are subject to our standard rates of $150 per hour or part thereof.
12.6 You may request an Administrative Hold of your project for up to 3 months at a cost of $300. We will stop working on the project until you advise us that you are ready to move forward. If you exceed 3 months of the project being held, we will terminate the project and all monies paid by you to us will be forfeited, with no refunds available.
12.7 If you are unhappy with your site design, you may request additional layout concepts, at a cost of $150 per layout, with full payment required upfront.
12.8 You are responsible for the digital rights to any image that you supply to us in the course of a project.
12.9 Once your website has been published, we will review and repair any pre-existing code errors and/or bugs in the website if reported within 30 days of publishing. Any cosmetic changes or alterations, or code errors reported outside of this time period will be subject to additional charges at our standard commercial rates of $150 per hour or part thereof.
Additional conditions for Static Websites
13. 100% upfront payment is required for static website design services. If cancellation occurs before design is selected and site is put into production, a cancellation fee of $300 will apply. Once a site is placed into production, cancellation fee will be 100% of project cost and no refunds will be available.
Additional conditions for CMS (WordPress) & E-Commerce (Prestashop) Design Websites
14. 50% upfront payment is required for CMS & E-Commerce website design services, with the balance required after design selection before we place the project in production. The 50% balance must be paid within 2 weeks after presenting the design concept to the client. If no selection is made and the balance is not paid within 2 weeks, the project will be cancelled and no refund will be available. Any modification to the theme including any advertisement link to our website will incur an extra fee. If cancellation occurs before design is selected and site is put into production, a cancellation fee of $300 will apply. Once a site is placed into production, cancellation fee will be 100% of project cost and no refunds will be available.
14.1 While integrating payment gateway like Paypal or eWay for your E-Commerce store, we provide reasonable assistance in the obtaining of a merchant facility. However, we provide no guarantees that a Paypal, eWays or bank will provide a merchant facility for your online store and no refund will be available in these situations.
14.2 We use open source products like WordPress and Prestashop those are developed by developers from worldwide and undergoes continuous improvements and security upgrades. Therefore, we provide no warranty about any instability or security issues which is beyond our service scope. Same condition applies to all third party themes and plugins we use for your website. However, most premium themes, plugins and modules developers provide support on a subscription basis. While we make this process easy for you, you are responsible to maintain all communication with vendors and keep all subscription valid. However, we perform various tests and make sure that the website is fully functional at the time of delivery. Post-delivery maintenance of the security of the site is the responsibility of the client or their agent, and not of us.
14.3 Any premium plugin, module, theme, image, video, services like Logo Design, Graphic Design, Search Engine Optimisation, Content Writing, Directory Submission, Email Marketing will incur additional cost.
14.4 Our E-Commerce start up package includes a maximum of 10 product data uploaded by us. A custom quotation is required for Prestashop E-Commerce design before the project commences. Prestashop optimised hosting is available and price will be determined before the design process starts.
Additional conditions for Template Based Design
15.1 There are no refunds or credits available to Template Based Design services. Any Template Based Design service sold as part of a package deal is not transferable or redeemable for cash or other services. Nor is it able to be provided on an alternate domain name.
15.2 Template Based Design services are only available on domain names holding an active hosting service. The service level required for the product needs to be ‘Business Hosting’ or above.
15.3 You will be able to select from a range of pre-existing website templates, and provide customised content (text and images) for population within the website. No alteration or modification to the design template is available.
15.4 One round of feedback of up to 10 changes is permitted in the release process. If additional changes are requested, you are able to log in at any time to make these changes yourself via the content editing system. Alternatively, we can make these changes on your behalf at our standard commercial development rate of $150 per hour (or part thereof).
15.5 After feedback has been implemented, the website will be published “as-is”. All future changes and maintenance are the responsibility of the site owner, who can edit via the content editing system via TheConsole.
Additional conditions for WordPress Hosting
16. Our WordPress Hosting is mainly designed for our WordPress Web Design customers who want a reliable and WordPress optimised hosting for their Websites we already designed for them. It has the same features that our Managed Website service offers except that we do not add, update, change or manage your contents on request. Content management is entirely your responsibility.
16.1 Backup and restore processes are the same as Managed website except that there is a fee of $150 applies per restoration. If you want us to manage your contents, then we strongly recommend that you choose a Managed Website plan.
16.2 As WordPress Hosting is a semi-managed hosting, therefore you will be given WordPress Editor Role. No design customisation or plugin access is available. If you want complete control on your hosting or WordPress site, we recommend that you choose a cPanel Hosting plan.
Additional conditions for Managed Website
17. A minimum of two years (24 months) of subscription is required for Managed Website service. That means, the total cost of 24 months will be charged on a monthly basis. Any cancellation within the subscription period requires a payout fee of the remaining period of subscription. After 24 months, no new subscription is required and you will be billed monthly unless you want to cancel our service. However, depending on the relationship with you as a client, we may offer a loyal customer reward to encourage you to sign up for new subscription.
17.1 We use WordPress CMS to manage your website. We manage and administer your website. That means, you will be given WordPress Editor Role to add/change page/contents on request. No file access, ftp, Hosting access or WordPress Administrator access is available. However, depending on the package you choose, we will change/upload any content on a monthly quota basis on your behalf. A service fee of $150 per hour will apply once you exceed the quota. Setup fee of current amount must be paid before we start working on your website.
17.2 If you mess up with your contents and request us a site restoration, you must pay a restoration service fee of $150. We will restore your site from the previous backup.
17.3 We will give you access to choose from a range of design templates and you must provide feedback of your selection and fill up required questionnaire form within 7 calendar days. Your project will be terminated and no refund will be given if you fail to provide us with your feedback within 14 days. Design layouts, fonts, colours, images, videos or any contents are indication only and may vary. We work hard to make your website look similar to your chosen template but it may not possible in all cases. Therefore, any design made by us from your chosen template is final and no design or layout revision request will be granted. However, depending on the package you choose, we are committed to make any content changes on request on a monthly quota basis.
17.2 No customisation of design layout, development or additional functionality is available on Managed Website packages. These features are only available on our Web Design packages. If you want custom design, then you must choose either Business WordPress Design or Custom WordPress Design package. The relevant package fees must be paid as outlined in the Web Design section (the whole topic is explained from Section: 12 to 12.9). You may choose our Managed Website plan if you want us to manage your custom designed website. In this case, Managed Website bill will be charged separately on monthly basis.
17.3 We will setup up to three email addresses with your matching domain name and host them accordingly. We will provide Webmail access so that you can check your email online. We will also provide instruction so that you can setup your Desktop Oultook, your table or smartphone for email service. Although most of the modern mobile devices work fine with our email service, some devices might not work properly and we are not responsible for any device compatibility issue with our email service.
17.4 At present, there are two Managed Website plans available. If you require more flexibility, we are able to configure a Custom Managed Website plan. The monthly fee will be determine at the time of project proposal.
17.5 We do our best to keep your website up and running. We take all reasonable steps to keep your website secure. Virus scans are performed daily basis. Plugins and themes are manually updated in a safe manner specially when there is no compatibility issue found. WordPress is updated when all plugins are compatible with the new version. Backups are taken manually once a month. Every new backup replaces any old backup that means there is only one restore point and that is the last backup taken. In case of any intrusion, attack, hacking, disaster or any other means, we will restore your website with the last backup to bring your website back online. We also keep the first developed copy of your website in case you prefer that.
17.6 In spite of taking all necessary steps to keep your website smooth running, we are not responsible for any security attack nor, liable of any loss of your data, resource or business.
17.7 Any premium image or video will incur additional cost.
17.8 If you want Business WordPress Design or Custom WordPress Design website to be added to Managed Website plan, then the Design service will be billed separately and Managed Website will be billed on monthly subscription basis.
17.9 Any premium plugin, module, theme, image, video, services like Logo Design, Graphic Design, Search Engine Optimisation, Content Writing, Directory Submission, Email Marketing will incur additional cost and must be paid upfront.
18.1 All logo designs are text based and will be charged at current rate. Any custom logo design requires custom quotation before any project commences. One design revision is allowed per logo design.
18.2 It is entirely your responsibility to comply with any Intellectual Property Rights (including without limitation, copyright, trademarks, patents, design and/ or any other means) and any related legislation.
19.1 All graphic designs are done only to fit your website needs and will be charged at current rate. Our graphic design service is limited to stock photo modification only. Any custom graphic design requires custom quotation before any project commences and the fee must be paid upfront. One design revision is allowed per graphic design.
19.2 It is entirely your responsibility to comply with any Intellectual Property Rights (including without limitation, copyright, trademarks, patents, design and/ or any other means) and any related legislation.
20.1 A free basic content writing service is available for Managed Website to populate contents for your website for up to 5 pages. However, these contents are generic and may not reflect your business accurately. You must provide enough information about your business to create right contents before project begins which is outlined in Web Design Services section.
20.2 It is strongly recommended to buy our Professional Content Writing service to make your website Search Engine friendly. We will charge you at current rate unless you have special requirement which requires custom quotes. Either case, all fees must be paid upfront. Any revision round is outlined in Web Design Services section.
20.3 It is entirely your responsibility to comply with any Intellectual Property Rights (including without limitation, copyright, trademarks, patents, design and/ or any other means) and any related legislation.
21.1 We will submit your business to a maximum of 20 Australian Directories if you choose our Directory Submission service. You will be charged at current rate.
21.2 Although, this method works well to enlist any business to local search, we cannot guarantee that your business will get the same result and we take no responsibility of any negative impact of your business for local search.
22.1 We will setup and integrate Mailchimp email marketing service on your website. We will charge you a setup fee upfront. Any paid subscription with Mailchimp will cost you extra monthly or annual fee and must be paid to Mailchimp. Any service agreement or contract with Mailchimp remains between you and Mailchimp and we are not responsible for any service offered by Mailchimp.
22.2 You must comply with Commonwealth, National and State Law for any email communication with your customers. We are not responsible for sending any unsolicited email by you to your customers and you are liable of any breach of Law.
23.1 We will install SSL Certificates on your behalf at no extra cost if you order SSL before the web design project starts. However, SSL Certificates are not free and you must buy from us. We are unable to install any SSL Certificate bought from another place. You can also order Geotrust SSL for you cPanel hosting from our console anytime and install it yourself. For Managed Website and WordPress Hosting packages, you need to contact us to order SSL and we will install Trustwave SSL on your domain.
23.2 Any SSL installation request made after the project completion will be subject to additional charges at our standard commercial rates of $150 per hour. During the SSL installation process, your website will go through unstable condition for at least 48 hours and we are not liable for any damage or loss of your business or website.
23.3 We cannot guarantee that an SSL will 100% secure your website even after SSL installation. Our SSL Certificates are provided by third party vendors and you must agree with their service agreements, policy, terms and conditions. Therefore, we take no responsibility of any security vulnerability of their SSL products that may cause damage and loss of your business or website.
Virtual Servers (VPS)
24.1 You must have hard core technical knowledge to manage VPS as we are not currently offering any technical assistance for VPS products.
24.2 However, we can only escalate your issue to our wholesaler if there is any technical fault. We do not maintain any Service Agreement for our VPS products and take no responsibility for administration, management, support, security or by any means at this point.
Search engine optimisation services
25.1 Whilst we will try to improve the position of your Web Site in the Search Engine results in response to a search request, we do not warrant that this effort will be successful.
25.2 We cannot be held responsible for any changes to the position of your Web Site in the Search Engines results pursuant to the provision of search engine optimisation services by us.
25.3 By participating in the Traffic Accelerator program, your site will be updated with recommended links as part of our Link Building program. You are responsible for reviewing these changes and advising us to remove any which you deem are not suitable. We will attempt to remove any links you nominate after notification.
Search engine advertising services
26.1 Whilst we will try to meet your monthly advertising budget, we do not guarantee that this will always be possible. Any monthly advertising budget left over in any one month will be rolled over into the following month.
26.2 You will not be entitled to a refund of any remainders from your monthly budgets, nor credit it to any other service.
26.3 Whilst we will try to improve your business exposure, we cannot guarantee that search engine advertising services will increase third party traffic to your Web Site or that such traffic will increase business sales or enquiries.
26.4 All setup fees for search engine advertising/PPC services and landing pages are to be paid automatically, either by credit card or direct debit.
26.5 Ad spend and PPC management need to be paid in advance. They are not subject to payment terms and are not retrospective. Work will not commence until the ad spend invoice has been paid.
27.1 The objective of support service is to ensure smooth running of your website and fix technical issues. As we use third party products therefore some issues may fall beyond our service scope and may not be fixed.
27.2 All support requests must be relevant to your website.
27.3 cPanel clients are expected to have enough technical knowledge about cPanel hosting as we are unable to educate clients how to operate this. Also, we provide limited support to cPanel Hosting whether your website is designed by us or designed by you. Premium Support is available at our current commercial rate of $150/hour.
27.4 Support doesn’t cover any customisation, layout change or modification, plugin installation or any kind of added functionality to the website. However, you can submit this kind of requests but they requires custom quotation and must be paid upfront.
27.5 All support requests for Managed Website, WordPress Hosting or cPanel Hosting must be submitted through our Support Portal by Submitting a Ticket.
27.6 You must have a valid login user name and password to submit tickets. Refer to the instructions we sent you that contains your support login credentials. Be advised that support login credentials are different than your other service credentials like Managed Website or cPanel Hosting.
27.7 No support request through in form of email will be granted unless we instruct you to do so. Phone support is available during office hours however, we prefer Support Tickets as it is available 24/7 and any progress can be monitored by both party.
27.8 Managed Website content update requests are considered as “Support Request”. You must submit any Managed Website content update request by submitting a ticket each time. It helps both parties to be clear about the task need to be performed. These requests may take up to 48 hours to be processed.
27.9 Any support request that potentially affects other users or sever performance will not be processed.
27.10 We do our best to resolve your issue at the shortest period of time however, we are unable to give you any time frame.
28. Hosted Application means a software application or tool which is accessed and used, including the saving and retrieval of data, by logging onto the servers of the software provider via the Internet. In this section, the Supplier means the third-party supplier and host of the Hosted Application.
28.1 You acknowledge that we are not the owner of the Hosted Application, but are an authorised reseller of it. By ordering this Service from us, you have confirmed your acceptance of the End User Agreement (the EUA) that comes with and is displayed in the Hosted Application, between you (the End User) and the Supplier. Your entire rights and remedies in relation to the operation of the Hosted Application, including any errors, bugs, faults or defects are as expressed in the EUA with the Supplier and we have no liability or obligation to you apart from what is stated in the terms and conditions (agreement).
28.2 We hereby grants to you a non-exclusive, non-transferable right to use the Hosted Application for the duration of this agreement.
28.3 Your right hereunder to use the Software is also subject to the obligations related to usage set out in the EUA.
28.4 We do not represent, warrant or guarantee that the Hosted Application will be uninterrupted, continuous or error-free or that defects, errors or bugs will be corrected by the Supplier.
28.5 You acknowledge that the Hosted Application is hosted by the server of a third-party supplier. We make no representations, warranty, or guarantee as to the reliability of the Hosted Application or the ability to access the Hosted Application or retrieve data therefrom at all locations and at all times.
28.6 Apart from technical support in relation to activating the Hosted Application, we will not provide any user support on managing the internal features of the Hosted Application.
28.7 You hereby permit our disclosure to the Supplier of information necessary to identify the Hosted Application purchased, the date of purchase, the duration of your right hereunder to use the Hosted Application and the amount (s) paid by you.
29. Software means software downloadable by using the log-in details provided by us in relation to your current account with us relating to that software. In this section Supplier means the ultimate provider of the Software. Updates means new software releases made available by the Supplier containing security patches, bug fixes, enhancements or updates to Software.
29.1 You acknowledge that we are not the owner of the Software, but are an authorised reseller of it. By ordering the Service from us, you have confirmed your acceptance of the End User Agreement (EUA) that is displayed at the bottom of this page, between you (the End User) and the Supplier. Your entire rights and remedies in relation to the operation of the Software, including any errors, bugs, faults or defects are as expressed in the EUA with the Supplier and we have no liability or obligation to you apart from what is stated in the terms and conditions (agreement).
29.2 We hereby grant to you a non-exclusive, non-transferable right to use the Software for the duration of this agreement.
29.3 Your right hereunder to use the Software is also subject to the obligations related to usage set out in the EUA.
29.4 We do not represent, warrant or guarantee that the functioning of the Software will be uninterrupted, continuous or error-free or that defects, errors or bugs will be corrected by the Supplier.
29.5 You must not remove or alter any copyright, trademark or proprietory notice in the Software. Nothing in this agreement gives you any rights to the Intellectual Property Rights (including without limitation, copyright, trademarks, patents and design) subsisting in the Software or any Updates or any component elements of them. You acknowledge that under the right of usage granted to you hereunder there is no transfer of title or ownership to the Software or to any modifications, updates and new releases thereto.
29.6 Except to the extent specified to the contrary in this agreement, we shall not be obligated to support the Software, whether by providing advice, training, error-correction, modifications, new releases or enhancements or otherwise. We will however use reasonable endeavours to make available to you Updates as and when they become available from the Supplier.
29.7 You hereby permit our disclosure to the Supplier of information necessary to identify the Software purchased, the date of purchase, the duration of your right to use the Software and the amount (s) paid by you.
29.8 You acknowledge that the Software cannot be guaranteed error-free and further acknowledge that the existence of any such errors will not constitute a breach of this agreement by us. If you believe there is a defect in the Software, this must be notified and dealt with direct to the Supplier within the Warranty Period provided in the EUA.
29.9 The Software may contain technology that is not fault tolerant and is not designed, manufactured, or intended for use in environments or applications in which the failure of the Software could lead to death, personal injury, or severe physical, property or environmental damage.
29.10 We are under no obligation under this agreement to provide new releases. If new releases are offered by us it will be at the then current price but with any discount for upgrading from a previous version of the Software being passed onto you.
29.11 Without limiting any other provision of this agreement, we shall be under no liability to you in the event of loss or damage suffered as a result of your failure to download Updates as and when they become available from us.
General terms and conditions
The following terms and conditions apply to all reseller and ISP contracts and provision of all Services, including the registration of .au.com sub-domains the special terms for which are set out below:
30.1 We shall use reasonable endeavours to provide continuing availability of the Server and the Services but we shall not, in any event, be liable for Service interruptions or down time of the Server.
30.2 In no event will we be liable to you for loss of data, or the inability to retrieve data, resulting from or incidental to the use of a Service.
Intellectual property rights and other consents
You are solely responsible for obtaining any and all necessary intellectual property rights clearances and/or other consents and authorisations, including without limitation, clearances and/or consents in respect of your proposed domain name and merchant services agreements between you and the relevant financial institutions.
You agree to indemnify and keep indemnified and hold us harmless from and against any claim brought against us by a third party resulting from the provision of Services by us to you and your use of the Server, and in respect of all losses, costs, actions, proceedings, claims, damages, expenses (including reasonable legal costs and expenses), or liabilities, whatsoever suffered and howsoever incurred by us in consequence of your breach or non-observance of these terms.
31.1 We may terminate this agreement forthwith if you fail to pay any sums due to us as they fall due. We may suspend all services within an account prior to termination should any invoice in the account be outside of our trading terms.
31.2 We may terminate this agreement immediately if you breach any of these terms and conditions, or if you are a company you go into insolvent liquidation, or if you are a person you are declared bankrupt.
31.3 We may also terminate this agreement with immediate effect if you fail to comply with the End User Agreement (EUA) of a third-party supplier (Supplier) of Software or a Hosted Application.
31.4 On termination of this agreement (in relation to Website hosting) we shall be entitled immediately to block your Web Site and to remove all data located on it. We will hold such data for a period of 14 days and allow you to collect it, at your expense ($150/hr), failing which we shall be entitled to delete all such data. We shall further be entitled to post such notice in respect of the non-availability of your Web Site as we think fit.
31.5 On termination of this agreement we shall also be entitled to immediately cease any of our other Services to you (apart from Web Site hosting) without holding any backup data for retrieval by you.
31.6 Without limiting the section below on our Exclusion and limitation of liability, we will not be liable to you for any cost, expense, damage or loss whatsoever for terminating this agreement.
31.7 If the Supplier seeks to terminate your use of a Software or a Hosted Application for reasons other than your non-compliance with an EUA or these terms and conditions, we will use reasonable endeavours to honour the remaining period of any then current and existing right hereunder for you to use that Service but we will not otherwise be obligated to continue the Service if this is not possible or viable due to events beyond our reasonable control.
31.8 We shall not be liable for any delay or failure to perform its obligations pursuant to this agreement if such delay or failure is due to termination of access to the Hosted Application or to Software by the Supplier or a change by the Supplier to the conditions of supply thereof.
31.9 If you wish to terminate your account with us, you must do so by completing the online cancellation form, otherwise your account will be automatically renewed for the same subscription period and you will be liable for, and immediately invoiced upon the commencement of, such additional subscription period. Specifically, we will not accept verbal instructions to terminate an account. To submit the cancellation form, login to the console, select tab “Service Administration” then click on “Service Cancellation”. Submission of this online form will generate an automated email to the email address specified in the form, and within this email will be a unique tracking number that is the only proof of cancellation that will be accepted by us.
31.10 On receipt of your cancellation request, we will cancel your service at the first available opportunity.
31.11 There are no refunds or credits, once an invoice is generated, unless an invoice for a service is generated after a cancellation requested is submitted.
32.1 All charges payable by you to us for the Services shall be in accordance with the relevant scale of charges and rates published from time to time by us on our Web site and explicitly on the invoice shall be due and payable within thirty (30) days of receipt of our invoice for yearly subscription services therefore. Monthly subscription services require payment within 7 days of invoice issue.
32.2 The provision by us of the Services is contingent upon our having received payment in full from you in respect of the relevant Services. Without prejudice to our other rights and remedies under this agreement, if any sum payable is not paid on or before the due date, we reserve the right, forthwith and at our sole discretion, to suspend the provision of Services to you.
32.3 If you fail to make payment within the terms of this agreement, you will become liable for the cost of collection. This will include interest on any overdue amount, calculated at the daily rate of 12% per annum, from the due date of the payment.
32.4 Upon provision of a credit card account, you give us authorisation to automatically debit your credit card for all charges on issuance of a valid invoice.
32.5 Monthly fees are not refundable if your Service is terminated part way through a month.
If you nominate that the good(s) or service(s) you have purchased to be invoiced, you will be charged a $4.40 account fee per invoice issued.
Late payment fee
If you exceed our thirty (30) days credit terms, you will be charged an $11.00 late payment fee. A revised invoice will be sent to your nominated e-mail address.
Exclusion and limitation of liability
33.1 TO THE FULL EXTENT PERMITTED BY LAW WE HEREBY EXCLUDE ALL CONDITIONS AND WARRANTIES NOT EXPRESSLY SET OUT HEREIN. EXCEPT AS SPECIFICALLY SET FORTH IN ELSEWHERE IN THIS AGREEMENT, WE MAKE OR GIVE NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, WITH RESPECT TO ANY GOODS OR SERVICES PROVIDED UNDER OR INCIDENTAL TO THIS AGREEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US, OUR RESELLERS, AGENTS, REPRESENTATIVES OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE EXPRESS WARRANTIES HEREBY GIVEN, AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
33.2 Our total aggregate liability to you for any claim in contract, tort, negligence, equity or otherwise arising out of or in connection with the provision of the Services shall be limited to the charges paid by you in respect of the Services which are the subject of any such claim and provided that you notify us of any such claim within one year of it arising.
33.3 In no event shall we be liable to you for any loss of business, contracts, profits or anticipated savings or for any other indirect or consequential or economic loss whatsoever, even if advised us to the possibility thereof. Nor will we be liable in any event for any damages including, without limitation, indirect, special, incidental, consequential or exemplary damages, arising out of or in connection to this agreement or the Services.
33.4 In no event will we be liable to you for loss of data, or the inability to retrieve data, resulting from or incidental to the use of a Service.
34. In the event that this agreement constitutes a supply of goods or services to a consumer as defined in the Trade Practices Act 1974 (Cth) or any other national, State or Territory legislation (the Acts) nothing contained in this agreement excludes, restricts or modifies any condition, warranty or other obligation in relation to this agreement and the goods and you where to do so is unlawful. To the full extent permitted by law, where the benefit of any such condition, warranty or other obligation is conferred upon you pursuant to any of the Acts, our sole liability for breach of any such condition, warranty or other obligation, including any consequential loss which you may sustain or incur, shall be limited (except as otherwise specifically set forth herein) to:
34.1 in relation to goods
34.1.1 the replacement of the goods or the supply of equivalent goods or payment of the cost of replacing the goods or acquiring equivalent goods; or
34.1.2 the repair of the goods or payment of the cost of having the goods repaired;
34.2 in relation to services:
34.2.1 the supplying of the services again; or
34.2.2 The payment of the cost of having the services supplied again as in each case we may elect.
Except where expressly provided otherwise, any notice to be given by either party to the other may be sent by either email, fax, post or courier to the address of the other party as appearing in this agreement or ancillary application forms or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent or if sent by fax shall be deemed to be served on receipt of an error free transmission report, or if sent by post or courier shall be deemed to be served two days following the date of posting.
If any clause of these terms and conditions is held to be invalid or unenforceable in whole or in part, the invalid or unenforceable wording shall be deemed to be omitted.
The benefit of this agreement may be assigned by us, but not our obligations to you – to do that, you agree that we may give notice to you in writing, and your failure to respond will be deemed acceptance. You may transfer this agreement provided that you give us notice in the form we require (setting out the details of the assignee) accompanied by payment of any transfer fee specified by us. No other method of transfer by you is permitted.
Change to terms on renewal
We may change the terms and conditions of this Agreement at any time. Details of our current terms are available here. Any renewal of a Service will be in accordance with the terms and conditions in place as at that time.
These terms and conditions constitute the entire agreement between us and you, and supersede all prior agreements, understandings and representations whether oral or written. No oral explanation or oral information given by any party shall alter the interpretation of these terms and conditions. Except as provided above, no variation may be made to the contract unless it is in writing and signed by authorised representatives of you and us.
Entire agreement, governing law
You will not be able to opt-out of Critical Service Notifications, Renewal, Billing and Account Notifications, Scheduled Downtime Notifications or any other communications deemed to be an essential part of our service to you.
Please review our Privacy Statement for full details of our use of personal data.