Effective 16 July 2004
Domain Hosting Shop Pty Limited (ABN 14 110 134 248)
These are the standard terms and conditions of supply of the Domain Hosting Shop web hosting and other products and services offered from time to time on the Domain Hosting Shop web site at http://www.domainhostingshop.com.au ("the Service"). These terms apply to you as a user of the Service ("Customer" or "you"). Please read these terms and conditions carefully.
1. Terms and Amendment Procedure
1.1 These are the terms upon which we agree to provide the Service to the Customer. In addition to these terms, you must also comply with:
(a) Any conditions contained in the notes to the product description for products or services you acquire;
(b) Any additional terms which apply to the products or services you acquire (which follow these Terms and Conditions);
(c) Our Acceptable Use Policy (which follows these Terms and Conditions);
(d) Our Privacy Policy which is located at http://www.domainhostingshop.com.au/privacy/
1.2 The agreement made between us on these terms commences on the date listed in the Site Administrator Control panel when your order for Services was accepted by Domain Hosting Shop.
1.3 We may vary these terms, the amount we charge for any Service, or the terms of the operation of the Service, at any time by notice via the Billing System Control panel, by email or in writing. The changes will become effective upon publication of the notice. Where we vary the prices for Services, we will give at least 14 days notice of the change by the same means, and the new prices will apply at the end of that period. If you use the Service after that publication, your use will constitute an acceptance of the amended terms.
1.4 These terms constitute the agreement in its entirety and supersede prior agreements.
1.5 We may from time to time run promotions and make special offers of limited time duration ("Promotions"). All Promotions are offered subject to their terms and may be withdrawn or altered at Domain Hosting Shop's discretion. The terms of a promotion will override these terms to the extent of any inconsistency.
2. Service
2.1 We will assign the Customer a logon name and password which will provide you with access to the Site Administrator Control panel (which is used by you to configure various features of your web site/email service). We will provide the Customer with Web and Email Services as per the hosting level or product(s) you have ordered.
2.2 We must perform scheduled maintenance to servers from time to time. We will attempt to perform all scheduled maintenance at times which will affect the fewest customers. If scheduled maintenance requires the service to be offline for more than 30 minutes we will notify Customers of the scheduled maintenance by email, or by posting the details in the Billing System News Area at least 48 hours in advance of the maintenance.
2.3 We may need to perform unscheduled maintenance. If unscheduled maintenance requires the Service to be offline for more than 30 minutes, we will post details of the event to the Billing System News Area after the maintenance has been completed.
2.4 Unless specifically included as part of your hosting plan, we do not archive your data. In the event of equipment failure or data corruption, we will restore from the last known good archive if one exists for your site. In the event of corruption of all of our archives, or in the event that an old archive is used to restore data, you should be prepared to upload your data to your web site.
You must maintain a recent copy of your data at your premises at all times. We will not be liable for incomplete, out-of-date, corrupt or otherwise deficient Customer data recovered from our backups.
2.5 You agree to Domain Hosting Shop's use of spam and virus filters which may require us to use third party equipment or services to monitor and filter email traffic between our equipment and the Internet. You agree that we will not be liable for any loss or damage resulting from the use of spam or virus filters.
2.6 The Service is provided by Domain Hosting Shop from its data centres in Australia. Domain Hosting Shop will determine in its absolute discretion from time to time the data centre location from which your Service is provided. Domain Hosting Shop reserves the right to migrate your web site to a new operating system platform if our operating system supplier ceases to provide support for the legacy operating system, or if the server from which the service is provided fails or, in Domain Hosting Shop's opinion becomes unreliable. Domain Hosting Shop will use reasonable endeavours to notify you via the contact details in our database but does not take any responsibility for web site failure if you have failed to keep your contact details up-to-date or if you have not checked the operation of your web site post-migration and notified us of any required changes to the web site configuration.
2.7 In contracting with Domain Hosting Shop for the Services, the Customer obtains no rights to the hardware and other infrastructure and facilities used by Domain Hosting Shop to deliver the Service.
3. Payment
3.1 You must pay for the Service as notified to you by Domain Hosting Shop in accordance with Domain Hosting Shop's published prices for Services from time to time. Your Service contract is renewable and your account will be automatically rolled over for a further contract period at the end of the term. You must give us notice before the end of the term if you wish to cancel or alter your Service. If you elect to pay your fees on a basis other than monthly, and fail to make payment within 30 days of your first invoice, you will not be entitled to receive any advance payment discounts.
3.2 You must pay all Service charges, traffic and/or storage charges and other amounts incurred by you or any designated users or incurred as a result of any use of your password (whether authorised or not) in accordance with the billing option selected and in advance. Where a billing option does not specify otherwise, all Service charges are payable within 14 days of the date of invoice (whether online or paper invoice).
3.3 Prices published on our web site are inclusive of any government taxes or charges unless otherwise noted, and exclusive of any registration or delegation charges imposed by domain name authorities.
3.4 In addition you must provide and pay for:
(a) the installation and use of telephone lines and all other equipment needed to access the Service; and
(b) all government taxes, duties and levies (if any) imposed on either you or us in respect of the Services or any other service or goods supplied.
3.5 You must pay all amounts billed in accordance with your billing option. No credit terms are given to credit card accounts. Upon registration of a credit card account, you give us authorisation to debit your credit card for all renewal or overage charges. The billing period can be either on a monthly, quarterly, annual or bi-annual cycle beginning on the date you register.
3.6 You consent to us obtaining a credit reporting agency report containing personal information about you (as well as information concerning commercial creditworthiness and activities) for the purpose of assessment by us of an application for credit (whether commercial or personal) or for the purpose of the collection of payments which are overdue.
3.7 You agree that if you opt for payment by cheque or direct deposit, you will be charged an account keeping fee of AUD$3.50 per month. The account keeping fee will not be charged if you elect to make payment by auto debit credit card. The account keeping fee will be charged per customer account identified with a unique username. If a customer has multiple accounts with Domain Hosting Shop, the account keeping fee will be charged on each account for which monthly invoices are issued.
3.8 No refunds will be given for unused portions of payments in advance (including payment of all contracts other than monthly) unless the account has been terminated due to Domain Hosting Shop's breach of these terms and conditions. Contracts which have been automatically rolled over in accordance with clause 3.1 will only be refundable if notice of cancellation is given during the 7 day cooling-off period at the beginning of the rollover term. When a refund is issued within the cooling off period or as part of the 30-day money back guarantee, we will refund the full amount charged to your credit card (excluding any domain fees) less a fee of 2.5% of the total transaction charge or $25.00 (whichever is greater) to cover our merchant and administration costs. Refunds are not available on any discounted products orderer under our reseller discount scheme, but we can add a full credit for the amount to the account if it is requested during the 7 day cooling-off period. Any refunds or credits are given at the discretion of Domain Hosting Shop.
3.9 If a credit card payment is declined by the authorizing financial institution, you will be charged a declined credit card processing fee of AUD$2.00 for each failed attempt to cover bank fees and other charges associated with the dishonoured payment.
3.10 Excess usage charges apply if the plan limits for disk usage and bandwidth are exceeded, calculated on a monthly calendar basis. Excess disk usage is calculated at $0.05 per MB and excess bandwidth is calculated at $0.0025 per MB.
4. Customer Warranties and Indemnities
4.1 You warrant that:
(a) if you are not the Customer, you have the power and authority to enter into this agreement on behalf of the Customer and will indemnify Domain Hosting Shop for any breach of this agreement by the Customer;
(b) at the time of entering into this agreement you are not relying on any representation made by us which has not been stated expressly in this agreement, or on any descriptions or specifications contained in any other document, including any catalogues or publicity material which we have produced;
(c) you will conduct such tests and computer virus scanning as may be necessary to ensure that data uploaded by you onto or downloaded by you from the Server does not contain any computer virus and will not in any way, corrupt the data or systems of any person;
(d) you will keep secure any passwords used with the Service; and,
(e) you hold and will continue to hold the copyright in the Customer Data or that you are licensed and will continue to be licensed to use the Customer Data.
4.2 You are solely responsible for dealing with persons who access the Customer Data, and must not refer complaints or inquiries in relation to such data to us.
4.3 You indemnify us against all costs, expenses, loss or liability that we may suffer (directly or indirectly) resulting from:
(a) your breach of these terms;
(b) your use or misuse of the Service;
(c) the use or misuse of the Service by any person using your account; and,
(d) publication of defamatory, offensive or otherwise unlawful material on any web site forming part of your service.
5. Domain Hosting Shop's Warranties and Liabilities
5.1 We accept liability for the supply of the Services but only to the extent provided in this clause 5.
5.2 We do not warrant that:
(a) the services provided under this agreement will be uninterrupted or error free;
(b) the services will meet your requirements, other than as expressly set out in this agreement; or
(c) the Services will be free from external intruders (hackers), virus or worm attack, denial of service attack, or other persons having unauthorised access to the services or systems of Domain Hosting Shop.
5.3 Where the Customer is a Consumer (as that word is defined by the Trade Practices Act), we accept liability where: the Service is not supplied with due care and skill; any material supplied in connection with the Service is not reasonably fit for the purpose for which it was supplied; and we are otherwise required to do so by the Trade Practices Act.
5.4 To the extent that the Service is not of a kind ordinarily acquired for personal, domestic or household use, our liability is limited to, at our option, to the re-supply of the services again; or re-imbursement of the cost of the services provided.
5.5 Except as expressly provided to the contrary in this agreement, we exclude all liability for indirect and consequential loss or damage of any kind, loss or corruption of data, loss of revenue, loss of profits, failure to realise expected profits or savings and any other commercial or economic loss of any kind, in contract, tort (including negligence), under any statute or otherwise arising from or relating in any way to this agreement and/or its subject matter.
5.6 Other than liability accepted by us in clause 5.3, our total liability for loss or damage of any kind not excluded by clause 5.5, however caused, in contract, tort (including negligence), under any statute or otherwise arising from or relating in any way to this agreement is limited in aggregate for any and all claims to re-imbursement of the cost of the services provided. In the case of web site hosting packages, our liability is limited to re-imbursement of the price paid for the remainder of the hosting period.
6. Suspension and Termination of Service
6.1 We may from time to time without notice suspend the Service or disconnect or deny your access to the Service:
(a) during any technical failure, modification or maintenance involved in the Service provided that we will use reasonable endeavours to procure the resumption of the Services as soon as reasonably practicable; or
(b) if you fail to comply with any provision in this agreement (including failure to pay charges due), or do, or allow to be done, anything which in our opinion may have the effect of jeopardising the operation of the Service, until the breach (if capable of remedy) is remedied. Notwithstanding any suspension of any Service under this clause you shall remain liable for all charges due throughout the period of suspension.
6.2 If your account has been suspended or terminated due to your breach, reactivation of your account will be completely at our discretion. If we agree to reactivate your account, we will require:
(a) payment in full of all outstanding amounts; and
(b) payment of a reactivation fee.
6.3 Domain Hosting Shop reserves the right to refuse to supply services to a potential customer who has previously had its account with Domain Hosting Shop terminated for breach. In this clause, "potential customer" includes:
(a) (if the potential customer is a corporation) its Related Entity or Related Party (as those phrases are defined in the Corporations Law); and
(b) (if the potential customer is an individual) any corporation in which the potential customer was at the relevant time an officer or shareholder, or a Related Party of a shareholder.
6.4 Domain Hosting Shop may without notice to you remove, amend or alter your data upon being made aware of:
(a) any claim or allegation; or
(b) any court order, judgment, determination or other finding of a court or other competent body, that the data is illegal, defamatory, offensive or in breach of a third party's rights; or
(c) any malware or viruses that have been installed in your site, or any known vulnerabilities that are found in your site's software.
6.5 We may end our agreement with you and cease providing Services for any reason, on 30 days written notice to you. You may close your account with Domain Hosting Shop on 30 days written notice to Domain Hosting Shop.
6.6 If your account is closed you must pay all outstanding charges immediately and we may delete all Customer Data from any storage media.
6.7 We are under no obligation to provide you with a copy of the Customer Data if we have suspended or terminated your access to the Service for your breach. If we provide you with a copy of Customer Data, we are entitled to charge a fee for service.
7. Miscellaneous
7.1 The Customer grants to Domain Hosting Shop a license to use and reproduce all Customer Data in order to fulfil its obligations under this agreement. In this agreement "Customer Data" means all information, data, text, logos, images, audio, movie clips and/or content in any form that forms part of the Customer's web sites or emails.
7.2 A provision of, or a right created under this agreement, may not be waived except in writing signed by the party granting the waiver, or varied except in writing signed by the parties.
7.3 The law in force in New South Wales governs this agreement and the transactions contemplated by this agreement.
7.4 You may not resell Services or assign your rights and obligations under this agreement without our prior written consent.
If you request Domain Hosting Shop to register a domain name on your behalf, these additional terms will apply.
Domain Names
1. If you have requested that Domain Hosting Shop register a .com, .net, .org, .biz, or .info domain name (TLDs or Top Level Domains) on your behalf, you agree that you have read and accept the TLD Policy applicable to .com, .net, .org, .biz and .info domain names issued by the registrar GoDaddy Software, Inc located at http://www.godaddy.com/gdshop/legal_agreements/show_doc.asp?se=%2B&pageid=REG%5FSA
2. You agree that in the event of a dispute about a TLD, you will submit to and are bound by the Uniform Domain Name Dispute Resolution Policy (UDNDRP) located at https://www.godaddy.com/gdshop/agreements.asp?se=%2B&ci=291 and the Rules for UDNDRP located at https://www.godaddy.com/gdshop/agreements.asp?se=%2B&ci=291
3. If you have requested that Domain Hosting Shop register a .com.au, .id.au, .net.au or .org.au domain name (2LDs or Second Level Domains) on your behalf, you agree that you have read and accept the published policies applicable to 2LDs issued by the registrar TPP INTERNET located at http://domainname.tppinternet.com.au/pub/dotau/terms.php
4. You agree that in the event of a dispute in registering a 2LD or about a 2LD after registration you will submit to and are bound by the .au Dispute Resolution Policy (auDRP) and any variations to it from time to time bind Domain Hosting Shop. The auDRP can be viewed at http://www.auda.org.au/policy/.
5. In registering or renewing a domain on your behalf, Domain Hosting Shop is acting as a reseller of the registrar.
6. You agree that by maintaining the registration of a domain name after changes or modifications to the applicable policies become effective, you are confirming your continued acceptance of these changes and modifications.
7. You agree that you must pay for any registration or delegation charges in advance at Domain Hosting Shop's list price. You understand that you cannot register a domain name without paying for it in advance. Domain Hosting Shop is not obliged to provide you with information or assistance in respect of the domain name until we have received payment of our domain name charges.
8. Domain Hosting Shop makes no representation and gives no warranty about your chosen domain name being available for registration or use by you.
9. You expressly authorise and direct Domain Hosting Shop to:
(a) be nominated as authorised billing contact for your domain name with the domain name registrar;
(b) renew your domain name registration upon receipt of renewal notification from the domain name registrar and invoice you for the relevant charge in accordance with Domain Hosting Shop's list price from time to time.
10. In respect of 2LDs, you acknowledge that Domain Hosting Shop is not liable for any loss or damage resulting from non-renewal of your domain name if you have failed to provide the appropriate warranty in respect of your continued eligibility to hold the domain name.
11. You indemnify Domain Hosting Shop against all claims arising out of your registration and use and renewal of registration of your chosen domain name, unless and to the extent that the claim arises out of Domain Hosting Shop's breach of this contract, or its negligent act or oSite Administrator.
If you acquire E-commerce Services from Domain Hosting Shop, these additional terms will apply.
E-commerce Services
1. E-commerce Services means OS Commerce or any Online Payment Proxy Server and all upgrades and additional products provided by their respective companies.
2. Domain Hosting Shop provides the E-commerce Services software 'as-is' and without warranty of any kind, either express or implied.
3. Domain Hosting Shop will not be liable for acts of Site Administrators of third party e-commerce payment gateway providers such as Camtech, NewsConnect SafePay, WorldPay, and any other provider who may provide those services as part of the E-commerce Services. You will deal with those providers at your own risk.
4. You accept full responsibility for all online transactions you originate or execute using the E-commerce Services with or without credit and/or debit cards.
5. You are responsible for and indemnify Domain Hosting Shop in respect of legal obligations you have to end-users of the E-commerce Services under any legislation, including without limitation the Privacy Act (Cth) 1998 as amended.
6. You indemnify Domain Hosting Shop and hold us harmless against any liability in relation to all transactions undertaken using the E-commerce Services, including in respect of claims by or in respect of services provided by payment gateway providers.
7. You acknowledge that Domain Hosting Shop is acting as a reseller of E-commerce Services and is not the agent, partner or joint venturer of the supplier of the E-commerce Services to Domain Hosting Shop.
If you acquire SQL database services from Domain Hosting Shop, these additional terms will apply.
Standard SQL and Premier SQL Database Services
1. All new databases requested will be created on an SQL 2000 server. Existing SQL 7.0 databases will continue to be supported but no new requests for SQL 7.0 databases will be accepted.
2. Customers whose databases exceed the number of user connections permitted for their level will have their excess connections terminated without notice. Domain Hosting Shop takes no responsibility for loss of data or any other problems caused by the termination of excessive user connections.
3. Customers must adhere to the SQL Policy which also include recommended best practices guidelines. Domain Hosting Shop takes no responsibility for any problems caused by failure to observe the SQL Policy.
If you purchase Virtual Dedicated Hosting Services (VDS Services), these additional terms will apply.
Virtual Dedicated Hosting (VDS)
1. Product Features
1.1 We will provide you with separate IP addresses which will revert to Domain Hosting Shop when this agreement is terminated.
1.2 The Virtual Dedicated Server Services cannot be resold by you as shared services.
1.3 You acknowledge that Domain Hosting Shop will not provide any reports in respect of the Virtual Dedicated Server Services.
1.4 Domain Hosting Shop gives no warranty and makes no representation about the applications or other functionality able to be supported by the Virtual Dedicated Server Services. You agree that you will make your own enquiries and satisfy yourself as to the suitability of the Virtual Dedicated Server Services for your purposes.
1.5 We will perform backup of a specified directory notified to you. Without limiting the Standard Terms & Conditions, we take no responsibility for failure to backup any files that you have not included in that directory.
2. Security
2.1 It is your responsibility to maintain the security for the Virtual Dedicated Server Services including patching for any exploits or vulnerabilities.
2.2 We reserve the right to access the server used to supply the Virtual Dedicated Server Services without notice to you in order to apply urgent hotfix patching to prevent damage reasonably anticipated as likely to be caused to our systems and operations if such a patch is not immediately applied.
2.3 We will not be liable to you for any interruption of service or loss of data or functionality in such circumstances provided that we have acted with reasonable care.
3. Support Services
3.1 You are responsible for the care and maintenance of your operating system. Domain Hosting Shop will provide additional support services on a consultancy basis at our standard rates (listed in the Site Administrator Control or on request). Additional support services must be requested by you via a Trouble Ticket. You will be invoiced upon completion of each service request.
3.2 You can vary the scope of a service request during its life, by logged job. If you do so, we are not responsible for any impact on the deliverables and the timetable set out in the service request. You agree to pay any additional costs we incur as a result of the variation.
3.3 In performing each service request we will follow generally accepted industry standards and practices in carrying out the services. We warrant that the services will be provided with due skill and care but we do not warrant that they will meet a certain standard, or will be suitable and fit for your purposes.
3.4 If we are not able to carry out a service request because of an event beyond our reasonable control, you can seek to have your needs met through others without incurring any liability under this agreement.
3.5 You agree to provide to us, within the timeframe reasonably required by us, access to: your premises; employees and contractors; source code and object code; data and databases; legacy systems; and documents, as we reasonably require in order to carry out the services. We are not responsible for any loss suffered by you if you do not provide us with this access, and we will be entitled to stop work if your failure to provide access means that we cannot reasonably complete the work you have asked us to do in the service request. If we stop work under this clause before completing the work, you will still be obliged to pay us the full fee for the work as agreed in the service request.
3.6 We retain ownership of any bug fixes, workarounds, patches, beta fixes and builds, and other software that we make available in the course of providing the services and only give you a license to use them. You must use any of the software in accordance with:
(a) The end user license agreement or other license agreement governing the product for which the software is provided; or
(b) The end user license agreement packaged with the software or any terms expressly set out in writing by us; or
(c) The following restrictions if no license agreement is packaged with the software:
(i) The software may not be reverse engineered, de-compiled or disassembled to the extent this restriction is permitted by law; and
(ii) The software may not be loaned, leased, sold, sublicensed or otherwise distributed to another user; and
(iii) To the maximum extent permitted by law the software is provided 'as-is' without warranty of any kind; and
(iv) We may terminate your use of the software if you do not comply with these restrictions.
(v) The advice we may give you in performing the service request is personal to you and is not to be shared with others unless with our prior written agreement.
(vi) You give us perSite Administrator to use your technical identification in a non-identifying format for problem resolution, internal troubleshooting, product functionality enhancements and fixes, and in any descriptions of problems or solutions to problems, which we record in our systems. We will not identify you or publish your confidential information in any item we record in our systems.
(vii) You and we remain free to develop products independently without the use of the other's confidential information. Neither of us will be required to restrict the future work assignments of people who have had access to confidential information. These people are free to use the information they remember related to information technology, including ideas, concepts, know-how or techniques, so long as they do not disclose confidential information of the other party in violation of this agreement. This use does not give any rights under the other's copyrights or patents; or require payment of royalties or a separate license.