These terms and conditions (Agreement) apply to the provision of any services by Net Promotions Pty Ltd (we, us, our) to you (you, your, yourself) from time to time (individually, a Service, collectively, the Services).
By purchasing any service or product, you are deemed to have accepted the terms and policies.
1. DEFINITIONS
Registrar means an entity accredited by the Registry to offer registration services for a particular domain space. We use different Registrars when processing certain domain name registrations.
Registration Agreement means the agreement or agreements to be entered into between the registrant and the Registrar, the relevant Registry or other authority to register, renew or transfer a domain name.
Registrant means the applicant for, and on registration, the licence holder of a domain name.
Registry or Naming Authority means the entity authorised to administer the registry for a domain name.
auDA means the .au domain names administrator.
Domain Name means the domain name which is the subject of your application, and if successful, the Domain Name Licence.
Domain Name Licence means your licence to use the Domain Name which is the subject of your application.
auDA Published Policies means those specifications and policies established and published by auDA from time to time at http://www.auda.org.au.
2. TERMS AND SERVICES
2.1 This Agreement commences on the date you accept the terms (as noted above), and terminates on the day notified by either party in accordance with the terms of this Agreement.
2.2 Services will be automatically invoiced for renewal for further periods. Failure to pay the invoice before the service expires will result in the service being suspended. Suspended services may be cancelled once an unpaid invoice is 28 days passed its due date. Cancelled services will incur a re-activation fee which will be quoted and require payment before the service is re-activated. Not all services are possible to be re-activated as we may have deleted all associated data once the service has been cancelled.
2.3 If you wish to cancel an individual Service, you must notify us in writing before the renewal date.
2.4 No refunds are issued for services that have been paid for.
3. WARRANTIES / DISCLAIMERS
3.1 You represent and warrant that:
you are authorised to enter into this Agreement, act on behalf of your end-customers in respect of the Services, and provide any required consents, clearances and authorisations under this Agreement to us;
you will comply with all applicable laws relating to your performance under this Agreement (including without limitation, your use of our Services), and will not be involved in any activity which may directly or indirectly bring us or any Registry or third party supplier into disrepute; and
you will act in good faith when dealing with us and utilising our systems and/or Services, and will promptly do, or arrange for others to do, all things reasonably required to give full effect to the provisions of this Agreements (and the transactions contemplated by it).
3.2 We shall use reasonable commercial endeavours to provide continuing availability of this website, all applicable online management systems and our services. We will minimise any downtime or interruptions to the availability this website, all applicable online management systems and our services.
3.3 To the maximum extent permitted by law, all other conditions, warranties and guarantees expressed or implied by any legislation, the common law, equity, trade, usage or otherwise in relation to the supply of services under this Agreement or otherwise in connection with this Agreement, are expressly excluded. We make no warranty, express or implied, that (i) the Services, access and use of our systems, or information received by any party through use of our Services or systems, will be uninterrupted, error-free, virus-free, timely, secure, accurate, reliable or of any particular quality or standard, or (ii) any terms and conditions made available to you (or your end-customers) through our systems or our website Client Area are valid, enforceable or comply with all applicable laws. 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 or access to our systems.
3.4 Certain provisions of the Competition and Consumer Act 2010 (Cth) and other statutes, rules and regulations in Australia may imply certain non-excludable warranties or conditions or mandate certain statutory guarantees. To the extent that they are not permitted to be excluded, our liability for breach of such conditions, warranties or guarantees and your sole and exclusive remedy in relation to such breaches shall be limited to:
– in the case of software or other goods under this Agreement, at our option: (i) replacing or repairing that software or those goods, or supplying of equivalent software or goods; or (ii) paying the cost of replacing or repairing software or goods or of acquiring equivalent software or goods; and
– in the case of Services under Agreement, at our option: (i) supplying the Services again; or (ii) paying the cost of having the services supplied again.
3.5 We specifically disclaim any and all warranties, representations, terms and conditions related to or in connection with the products, services and performance of third parties, regardless of whether you are aware that any such product, service or performance is provided by a third party.
4. LIABILITY AND INDEMNITY
4.1 To the maximum extent permitted by law and subject to clause 4.4, you agree that 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.
4.2 Other than liability accepted by us in clause 3.4, our total liability for loss or damage of any kind not excluded by clause 4.1, however caused, in contract, tort (including negligence), under any statute or otherwise arising from or relating in any way to this Agreement shall not exceed an amount equal to the Fees paid by you to us in the preceding six (6) months for that Service.
4.3 You agree to indemnify, keep indemnified and hold us harmless from and against any and all actions, claims, proceedings, losses, damages, costs and expenses (including legal fees and expenses on a solicitor/client basis) and other liabilities of whatever nature, whether foreseeable or not, and whether direct or indirect, incurred by us in respect of any claim (i) by a third party arising in connection with this Agreement (except to the extent such a third party claim arises as a direct result of our breach of this Agreement), and/or (ii) arising in connection with your breach of this Agreement.
4.4 The damages payable by one party to the other party under or in connection with this Agreement will be reduced to the extent that the act or omission giving rise to liability to pay those damages was caused or contributed to by that other party.
5. SUSPENSION
5.1 We may immediately suspend your Account, or the provision of Services, where you fail to comply with any term(s) of this Agreement (including without limitation, complying with payment terms and any Service Terms and/or Domain Terms (as applicable)).
5.2 We will not be liable in any way for suspension of your Account or the provision of Services (including any non-performance of Services).
6. TERMINATION
6.1 We may terminate this Agreement immediately and without prior notification if:
– you are in breach of any term(s), conditions or obligations in this Agreement and (if the breach is capable of remedy) the breach has not been remedied within fourteen (14) days of notification from us setting out the breach and requiring it to be remedied;
– you are hosting Services that are deemed to be illegal, have illegal intent, or in breach of local and international law.
– you dispose of the whole or part of your assets, operations or business other than in the normal course of business (except for purposes of a re-organisation or reconstruction);
– you cease to be able to pay your debts as they become due, have an administrator appointed or cease to carry on business; or
– you are subject to an event of force majeure in excess of sixty (60) days.
6.2 On termination of this Agreement:
– all outstanding Fees become immediately due and payable by you. Subject to the preceding sentence, clause 4.4 or any claim we have, you will be entitled to repayment of any unused prepaid balance in your Account. There are no refunds or credits for recently purchased Services in the event of termination of the Agreement; and
end-customers with active services will be transferred into direct retail accounts with us.
6.3 In the event a third party supplier ceases its supply of any services to us (which are, or form part of, a Service to you), we will use reasonable commercial endeavours to honour the remaining period of your then-current Service term. However, to the extent any Service is detrimentally affected as a result of any third party supplier ceasing or varying its services, we will not be liable for any resulting delays, faults or inability to perform our obligations to you under this Agreement in respect of any such impacted Service. We will endeavour to notify you of any anticipated impacts as soon as practicable.
7. COMMUNICATIONS
In addition to general Account, Billing and Service communications, we may, from time to time, issue email notifications relating to our Services, including, but not limited to Newsletters, Announcements, Promotional and Seasonal offers, and Surveys. By entering into this Agreement, you consent to us sending you email communications. You may unsubscribe from these communications at any time by notifying us in writing or by clicking the unsubscribe link provided within the communications. 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.
8. DATA PROTECTION
8.1 We shall ensure that when storing and processing personal data (Data) we shall at all times comply with the provisions and obligations of the Australian Privacy Act 1988 (Cth)(Privacy Law) and will only store or process Data in relation to the Services in accordance with our Privacy Policy.
8.2 You acknowledge that Data will be processed by us or our suppliers, subcontractors, related corporations or agents; and may be transferred outside the jurisdiction of Australia (or in which you are based). By providing or giving access to Data, you warrant that you have complied with (i) the Privacy Law, or (ii) the applicable rules and legislation in the jurisdiction you operate in, and that you have obtained the necessary consent of any employees or third parties (including without limitation, any end-customer) that you may be acting on behalf of.
8.3 We will not keep Data longer than is necessary for the purposes for which the Data was collected or for which it is further processed. The Data collected by us will not be processed in a manner that is incompatible with the purposes for which it was obtained. You may at any time request to see the Data and amend same if required.
8.4 We agree we will take reasonable precautions to protect Data from loss, misuse, unauthorised access or disclosure, alteration, or destruction.
8.5 If you provide third party login details to allow us to configure said third party services on your behalf, we will take all precautions but are not responsible for any misconfiguration, data error or fault caused.
9. GENERAL
9.1 This Agreement contains the entire agreement between the parties with respect to its subject matter and supersedes all other representations, negotiations, arrangements, understandings or agreements and other communications.
9.2 We may update the terms of this Agreement at any time with new versions online. The nature of the change could be if:
– the change will benefit you or have a neutral impact on you, we may make the change effective immediately and without advance notice;
– the change is required to comply with any law or requirement of any regulatory body (including ICANN, auDA or any other domain name regulatory body);
– the change is required to preserve or safeguard the security or integrity of any network or system we use to provide services to our customers or to maintain any accreditation we are required to have, we will make the change effective immediately; and
– any other changes.
9.3 Where a party exercises all due care and diligence, that party will not be liable for any delay or failure to perform obligations under this Agreement if the delay or failure is due to any cause beyond its reasonable control.
9.4 The relationship of the parties is that of independent contracting parties. Nothing in this Agreement may be considered or interpreted as constituting the relationship of the parties as that of partners, channel partners, joint ventures or principal and agent.
9.5 No failure to exercise and no delay in exercising any right, power or remedy under this Agreement will operate as a waiver.
9.6 This Agreement is governed by, and construed in accordance with, the laws of the state of Victoria, Australia, and the parties submit to the exclusive jurisdiction of the courts of that State.
10. DOMAIN NAMES
The below clauses 10.1-10.4 form the registration agreement applicable to your domain name (Registration Agreement)
10.1. Registration Agreement
(a) This Registration Agreement is submitted by you (being an individual or entity), the applicant for (and on registration) the licence holder of a domain name, for the purpose of becoming the licensee of a particular domain name.
(b) This Registration Agreement sets out the applicable terms and conditions governing all domain name registrations, pre-registrations, renewals or otherwise. You agree you have read, understand, acknowledge and agree to be bound by this Registration Agreement.
10.2. Rules of registration
– A registration or reservation of a domain name does not grant any legal rights of ownership of the relevant domain name, nor does it confer immunity from objection to the registration or use of the domain name.
– We do not warrant or guarantee that any domain name applied for will be registered or is capable of being registered by you (or your end-customer). No action should be taken in respect of a requested domain name until notification has been provided of successful registration. You irrevocably waive any claims you may have against us in respect of the decision of a Registry to refuse to register a domain name and, without limitation, agree that any administration charges paid by you to us shall be non-refundable in any such event.
– 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.
– We accept no responsibility for the use of a domain name by any party, and any disputes regarding a domain name must be resolved between the parties concerned. We will take no part in any such dispute. We reserve the right to, in our sole discretion and without providing any reason, on our becoming aware of such a dispute, either suspend or cancel the domain name, and/or to make appropriate representations and disclosures to the relevant Registry.
– You agree that should this Registration Agreement be terminated by any party, or if the domain name expired or transferred to another registrar, any other services that may be associated with the domain name will remain active. The customer of these other services will continue to be billed in accordance with the relevant terms and conditions.
– We may require the applicant of a domain name (who upon registration, would become the Registrant) to supply accepted identification to verify their identity.
– You agree to indemnify and hold harmless ICANN and the relevant Registry, and each parties officers, employees and agents from and against all liability to any third parties (including without limitation, any Registrants of yours) and associated costs in defending any action, claim, proceeding or demand by a third party to the extent to which liability or the claim arises from or in connection with access to our systems or use of our Services under the Agreement.
10.3. TLD Specific Terms
The following provision apply to this Registration Agreement depending on the TLD space of the domain name:
.com.au and .net.au domains can only be registered by an Australian registered company, or business with a registered business number (ABN, BRN, BN). You will need to supply this number during the order process. The domain name you order will need to be an exact match, acronym or abbreviation of the supplied business registration, or it should bear a close and substantial connection to the domain name. Domains can be two to 63 letters in length. Words can be separated by hyphens but not spaces.
.org.au and .asn.au can only be registered by a “non-commercial organisation”. The domain name you register needs to have a solid relationship to the organisation to which it represents.
.id.au is intended for individuals who reside in Australia. It can be an exact match, abbreviation or acronym of registrant’s personal name or otherwise closely connected to the registrant.
.com and .net domain names are not restricted and can be registered by anyone.
.biz, .org and .info domain names are not restricted and can be registered by anyone.
New gTLD domain names include a number of generic spaces (.photography, .technology, .club etc.) and certain geographical names (.kiwi, .melbourne etc.). Eligibility restrictions may apply to each space.
.nz domains are intended for people in, or with ties to, New Zealand.
.uk domains are intended for people in, or with ties to, the United Kingdom.
Other restrictions may apply and you should check with the relevant Registrar before registering your domain.
10.4. ICANN Mandated Terms and Materials
We use accredited registrars approved by ICANN to provide registrar services for gTLD domain name spaces. As part of that service when you submit an application to register a gTLD domain name with us, you are stating that you have read and understood the following documents, and you agree to be bound by them:
– Mandated Provisions for gTLD Domain Name Registrations
– Registrants Benefits and Responsibilities
11. WEB HOSTING AND EMAIL HOSTING
11.1. You agree to accept additional charges for the transit of IP traffic above and beyond the amount specified as a limit in any Service plan. 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.
11.2. The hosting service plans disk space pertains only to files required for the normal operation of your website, and which are linked to in that website. Our website hosting plans are expressly prohibited from use as an online file repository.
11.3. Any site that uses greater than 89,000 inodes (every file on your hosting account uses 1 inode), or that create file system damage by the rapid creation of large volumes of files, will be subject to review and possible suspension.
11.4. Your site should not 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.
11.5. For any service plan which allows email accounts, should the mail boxes associated with your account exceed more than 10,000 aggregate messages, the account will be subject to review and possible suspension.
11.6. All hosting plans are subject to general resource and usage monitoring. Any action or process that consumes resources beyond a reasonable level and thus degrading the shared environment for other users is expressly prohibited: This includes but is not limited to:
11.6.1. Running standalone, automated server-side processes including, but not limited to any daemon:
– running any bit torrent application, tracker or client;
– participating in file sharing or other peer to peer sharing activity;
– executing any script for longer than 180 seconds;
– executing any database query that takes longer than 30 seconds to complete;
– specifying cron tasks that execute more frequently than every 300 seconds.
– Any action or process that unreasonably consumes resources and degrades the shared environment for other users including but not limited to execution of scripts;
– Running standalone, automated server-side processes including but not limited to any daemon;
– to engage in fraudulent behaviour
– to defame or harass any third party
– to gain unauthorised access to or interfere with any third partys online resources or systems including by any form of hacking
– to circumvent any security measures
-to run an IRC or game server
-to interfere with any third party’s online resources or systems including by carrying out a denial of service attack
– to distribute, view or create any material that is or may be pornographic, defamatory, offensive, obscene, illegal or unlawful; or infringes any third party’s Intellectual Property Rights
– to distribute unsolicited emails to third parties including bulk unsolicited emails
– to distribute a higher volume of outgoing emails than is acceptable to our Hosting
– to use a non-existent email return address
– to use an open email relay
– in a way that infringes any third parties Intellectual Property Rights
– in a way that disrupts, misuses or excessively uses the hardware, bandwidth access, storage space or other resources or other customers; or
– in any other manner that is unacceptable to us.
12. WEB DESIGN, DEVELOPMENT AND SOFTWARE DEVELOPMENT
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 for keeping 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.
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 legislations.
Additional Terms for Tailored Websites
12.4. All website content must be provided by you within 1 calendar month of invoice (project commencement). If your data is not supplied within 1 month, we reserve the right to place your project on administrative hold. If no data is supplied within 2 months of invoice, the project will be cancelled and subject to cancellation fees.
12.5. You must provide complete feedback within 7 calendar days during 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 current quoted hourly rate per hour or part thereof.
12.6. You may request an Administrative Hold of your project for up to 6 months at a cost of $100. We will stop working on the project until you advise us that you are ready to move forward. If the project is placed on hold for more than 6 months, 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 current quoted hourly rate per layout, with full payment required upfront.
12.8. 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 our current quoted hourly rate per hour or part thereof.
12.9. For website builds including open source third party CMS applications (such as WordPress, Joomla or OS Commerce), website owners agree to pro-actively monitor available releases of upgrades and/or patches to secure their applications from hackers and malicious scripts. We will provide an on-demand upgrade service for any such application at our current quoted hourly rate per upgrade.
12.10. We warrant that the website functions to the level agreed upon at point of sale only for the server configuration where development takes place. We cannot be held responsible for errors or functionality loss if the website is published and hosted on a server environment that does not match the development server specifications.
Additional conditions for Template based websites.
12.11. 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. It cannot be provided on an alternate domain name.
12.12. 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.
Additional terms for Website Transfers.
12.14. At our discretion we may offer to transfer your website and email content from your previous host to our server or other parties. Transfers are not guaranteed to be fault free and you should check all data and configuration has transferred correctly.
12.15. When transferring your website additional configuration may be required for domain name servers and DNS. We will assist where possible but it is your responsibility to ensure that these are configured correctly.
12.16. Transferring your website does not automatically include code updates or website configuration changes required to ensure your website works on our hosting platform. Any required changes should be checked and made by your web developer. Any cosmetic changes or code changes can optionally be charged at our standard commercial rates of our current quoted hourly rate per hour or part thereof.