terms and conditions

This document sets out our terms and conditions of your use of web hosting and email hosting services provided by us. Your Order for Hosting Services constitutes an offer by you to acquire the Hosting Services on these Terms and Conditions and the terms of your Order, subject to acceptance by us. Upon acceptance by us of your Order, you agree to be bound by these Terms and Conditions and the Order (Agreement). If you do not agree to these Terms and Conditions, do not order our web hosting or email hosting services.

Definitions and Interpretation

1.1

Definitions

In these Terms and Conditions, unless the context otherwise requires:
(1)	ACMA means the Australian Communications and Media Authority, and any successor or replacement body;
(2)	Activation Date means the date that we confirm to you in writing (including by email or other written electronic medium) that the Hosting Services have been activated;
(3)	Business Day means a day that is not a Saturday, Sunday or any other day which is a public holiday or a bank holiday in the place where an act is to be performed or a payment is to be made;
(4)	Confidential Information means any information of a confidential nature which is the property of, concerns or is in any way connected with a party (including, without limitation, any trade secrets, confidential or proprietary technical information, trading and financial details and any other information of commercial value) and which is disclosed to or otherwise learnt by the other party under or in connection with this Agreement;
(5)	Content includes any data, text, emails, files, names, likenesses, logos, artwork, graphics, video, audio, HTML or other web design code, image maps or software applications uploaded, sent or communicated by you or on your behalf or your customers to the Hosting Services, the Website or the Domain Name;
(6)	Domain Name means the domain name purchased and registered by you for the purposes of the Hosting Services;
(7)	Fees means the fees for the Hosting Services as set out on the O'Neill Design website at the time of you placing your Order, as may be amended or increased from time to time in accordance with this Agreement;
(8)	Hosting Services means the web-hosting or email hosting services offered by us from time to time on the O'Neill Design website at www.oneilldesign.com.au (which URL may be varied by us from time to time), as specified in your Order;
(9)	Intellectual Property Rights includes any:
	(a)	copyright;
	(b)	design, patent, trade mark, service mark, logo, semiconductor or circuit layout rights (whether registered, unregistered or applied for);
	(c)	trade, business, company or domain name;
	(d)	moral right;
	(e)	know how, inventions, processes, trade secret; confidential information (whether in writing or recorded in any form); and
	(f)	any other proprietary, licence or personal rights arising from intellectual activity in the business, industrial, scientific or artistic fields;
(10)	Internet means the world wide connection of computer networks providing for (inter alia) the transmittal of electronic mail and on-line information utilising TCP/IP;
(11)	IP Address means an Internet Protocol address;
(12)	Laws means any applicable laws, statutes, regulations, by-laws, ordinances or subordinate legislation in force from time to time, binding codes, standards, determinations, orders, or rulings of any State, Territory, Commonwealth or local government department, agency or authority or any industry body (including the ACMA, ACIF, TISSC and the TIO), and the Internet Industry Association Code of Conduct;
(13)	Order means your web-based order for Hosting Services;
(14)	Term means the period for which you have requested and paid for the Hosting Services as specified in an Order;
(15)	Terms and Conditions means the terms and conditions set out in this document, and any schedule or annexure to it; and
(16)	We, our and us refer to O'Neill Design, ABN 60 836 735 220.
(17)	Website means web pages linked to the Domain Name containing the Content and other materials which may be uploaded and designed by you using the Hosting Services; and
(18)	You and your refer to the person who Orders the Hosting Services.

1.2

Interpretation

(1)	Reference to:
	(a)	one gender includes the others;
	(b)	the singular includes the plural and the plural includes the singular;
	(c)	a person includes a body corporate;
	(d)	a party includes the party's executors, administrators, successors and permitted assigns;
	(e)	a statute, regulation or provision of a statute or regulation (Statutory Provision) includes:
		(i)	that Statutory Provision as amended or re-enacted from time to time; and
		(ii)	a statute, regulation or provision enacted in replacement of that Statutory Provision; and
	(f)	money is to Australian dollars, unless otherwise stated.
(2)	“Including” and similar expressions are not words of limitation.
(3)	Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
(4)	Headings and any table of contents or index are for convenience only and do not form part of this Agreement or affect its interpretation.
(5)	A provision of this Agreement must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Agreement or the inclusion of the provision in the Agreement.
(6)	If an act must be done on a specified day which is not a Business Day, it must be done instead on the next Business Day.

Hosting Services

2.1

We will provide the Hosting Services for the Website in accordance with your Order and these Terms and Conditions from the Activation Date for the Term. From the Activation Date you are granted a non-exclusive, non-transferable right and licence for the Term to access and use the Hosting Services in accordance with this Agreement.

2.2

A standard Internet browser and Internet access are required in order for you to be able to access and use the Hosting Services pursuant to this Agreement. You acknowledge and agree that we are not responsible for providing you with such browser or internet access, or any hardware or equipment required to access the Hosting Services.

2.3

It may be appropriate or necessary to use third party software as part of the Hosting Services. Any such third party software is licensed to you on and subject to the third party licence terms and conditions applicable to such software. You agree to comply with any such terms and conditions as notified by us from time to time.

2.4

The Hosting Services are subject to the bandwidth, memory and disk space, and CPU time/usage limitations set out from time to time on the O'Neill Design website and/or in your Order. Each Hosting Services account has an agreed bandwidth limit of 10GB per month unless otherwise specified. Bandwidth is the amount of data transmitted to and from your account (E-mail, Shell, Website, FTP). We will make available the bandwidth utilization of each Website via your control panel. In the event that:

(1)	your bandwidth, memory or disk space or CPU usage exceeds those limitations, or
(2)	those limitations are not specified, but we consider in our sole discretion that your bandwidth, memory or disk space or CPU usage is excessive, we may at out option:
(3)	suspend or terminate the Hosting Services;
(4)	require you to reduce your relevant resource usage to the specified or (where not specified) an acceptable level;
(5)	charge you additional Fees. Fees for additional monthly allowance of bandwidth are $40 per 1GB per month (billed in arrears), unless otherwise specified; and/or
(6)	move your Website to another datacenter, which could be located anywhere in the world.

2.5

We are not responsible for:

(1)	any failures or interruptions in the provision or operation of communications networks or the Internet used to access or use the Hosting Services or the Website;
(2)	any failures or interruptions in the provision or operation of Hosting Services including any failures caused by our service providers;
(3)	any data loss, wrong deliveries or non-deliveries suffered in connection with the Hosting Services;
(4)	any use of Hosting Services by a third party to whom you have given access to the Hosting Services;
(5)	any use of the unique username and password allocated by us to you by a person other than you

2.6

We do not warrant that the Hosting Services:

(1)	will be supplied fault free or made continuously available;
(2)	will be in accordance with your requirements; suitable for the installation, uploading, use or operation of the Content; or fit for the purposes contemplated by you; or
(3)	will be free of hackers, other unauthorised access, denial of service attacks, virus' or other malicious or harmful code.

2.7

We may perform scheduled or unscheduled maintenance to our servers and other equipment from time to time. We will use reasonable endeavours to minimise any disruption to the Hosting Services as a result of any such maintenance.

2.8

You acknowledge that we can suspend your use of the Hosting Services if we reasonably believe that your use of the Hosting Services is interfering with: the Hosting Services; any other services provided by us to any of our customers; our systems or facilities, or any of the services, systems or facilities provided to us by our service providers.

2.9

Our accounts come equipped with a pre-configured CGI-Bin. You are free to use any CGI-scripts provided with your account or add any additional ones you require. If we consider in our sole discretion that any CGI-scripts are adversely affecting server performance or network integrity, they may be shut down by us without prior notice. CGI-script sharing with domains not hosted by us is not allowed.

2.10

We may from time to time vary these Terms and Conditions, and the amount we charge for the Hosting Services, by general notice on a webpage as referred to on the home page of the O'Neill Design website. Any such variation will be effective 30 days from the time of publication of such notice.

2.11

We may from time to time, modify, enhance, update or issue new versions of the Hosting Services. We will use reasonable endeavours to ensure that sufficient notification is given to you of these changes on a webpage of the O'Neill Design website. If any such change has a material adverse impact on your business, you may terminate this Agreement on 30 days' notice.

Your Obligations

3.1

Where you do not purchase your Domain Name from us at the time of your Order, you must allocate the IP Address supplied by us with confirmation of your Order to the Domain Name. We may at our discretion change any IP Address allocated to your Domain Name.

3.2

We will provide you with a unique username and password which you may use to access and use the Hosting Services. You must keep the unique username and password supplied by us safe and secure and immediately notify us of any breach of this obligation.

3.3

You must:

(1)	access and use Hosting Services only in accordance with any (written or electronic) user manual or other instructions for use provided or made available by us from time to time; and
(2)	report any faults in Hosting Services to us as soon as you become aware of them.

3.4

Other than as may be expressly provided for in this Agreement you must not:

(1)	sublicense, sell, lease or loan Hosting Services to any other person or legal entity;
(2)	upload, download, transmit, communicate to the public, or otherwise copy, reproduce or distribute any of the Hosting Services or any part thereof; or
(3)	deploy Hosting Services for rental or commercial bureau services, applications services or hosting activities.
In the event that you are expressly entitled to resell Hosting Services under this Agreement, you are liable for the acts or omissions of any person to whom such Hosting Services are resold, as if they were your acts or omissions.

3.5

You must not:

(1)	modify or alter the Hosting Services; or
(2)	reverse engineer, decompile or disassemble any software forming part of the Hosting Services or otherwise reduce the same to a human readable form, except to the extent that doing so is expressly permitted by law and any right to do so cannot be excluded.

3.6

You acknowledge and agree that you are responsible for:

(1)	the suitability, installation, configuration, uploading, downloading, use, operation, communication, accuracy and legality of the Content, and that we do not monitor, install, configure, download, review, authorise, edit or alter Content; and
(2)	the back up of the Content and any other data or files, unless otherwise expressly agreed by us.

3.7

You authorise and licence us to copy, reproduce, communicate, distribute, perform and display the Content and the Website for the purposes of providing the Hosting Services to you.

3.8

You warrant that:

(1)	your access to and use of Hosting Services complies with the provisions of this Agreement and all Laws;
(2)	the Content, the Website and the Domain Name, and their use and operation do not infringe any Intellectual Property Rights or other rights of any entity or person; and
(3)	the software, hardware and equipment used to access the Hosting Services and the Content are free of viruses or other malicious or harmful code at the time of access, uploading or entry into Hosting Services; and
(4)	the Content and the Website:
	(a)	comply with all Laws;
	(b)	are not obscene, indecent, excessively violent, misleading, deceptive or defamatory;
	(c)	do not infringe any Intellectual Property Rights or other rights of any entity or person (including offering or enabling the unauthorised downloading, uploading or distribution of software, music, video or other copyright material);
	(d)	do not include pornography, nudity, adult sexual content or any sex-related merchandising;
	(e)	are not damaging to our servers or any other servers on the Internet;
	(f)	do not include material or resources relating to hacking/phreaking, viruses, anarchy, or that promote or participate in wilful harm to Internet sites or providers;
	(g)	do not contain any links to content, material, advertising, pages or sites that:
		(i)	do not contain any links to content, material, advertising, pages or sites that:
		(ii)	are referred to in clauses 3.8(4)(b) to (f).

3.9

You must not use the Hosting Services or the Website for the purposes of operating, sending, selling or promoting bulk or SPAM email or other unsolicited electronic (fixed or wireless) messages. Your Domain Name may not be referenced as originator, intermediary, or reply-to address in any of the above. This prohibition shall include the sending of unsolicited mass mailings from any other service that in any way implicates the use of our network, equipment or any O'Neill Design email address. A message is considered to be unsolicited if it is posted in violation of a newsgroup charter or if it is sent to a recipient who has not requested or invited the message. Simply making one's email address accessible to the public will not constitute a request or invitation to receive messages, for purposes of this clause 3.9. If we consider in our sole discretion that you have breached this clause, we may in our discretion and without limitation:

(1)	disable your Website without notice;
(2)	impose a $200 penalty for each breach; and/or
(3)	suspend or terminate the Hosting Services.

3.10

You will comply with any reasonable direction communicated from time to time by us regarding access to or use of the Hosting Services.

3.11

You are responsible and liable for the access and use of Hosting Services by third party service providers or anyone accessing Hosting Services using the unique username and password supplied by us, as if such access or use is by you.

3.12

We may without notice to you remove, amend, alter or deny access to any Content in our sole discretion if:

(1)	we are required to do so by any Law or order or judgment of a Court or tribunal of fact or law or other competent body (including any “take down notice” issued under the Broadcasting Services Act 1992 (Cth);
(2)	in our opinion any such Content is obscene, offensive, indecent, excessively violent, illegal, misleading or defamatory, or otherwise unacceptable, undesirable or objectionable.

3.13

You may not use the Hosting Services to attempt in any way to circumvent user authentication or security of any host, network, or account. This includes, but is not limited to, accessing any data not intended for you, logging into any server or account you are not expressly authorized to access, password cracking, probing the security of other networks in search of weakness, or violation of any other organization's security policy. You may not attempt to interfere or deny service to any user, host, or network. This includes, but is not limited to, flooding, mail bombing, denial of service attacks, or other deliberate attempts to overload or crash a host or network.

3.14

Background programs are prohibited unless prior approval is received from us. We will consider requests on a one on one basis. If approved, extra Fees will be payable by you to us based on resource requirements or system maintenance.

Confidentiality, privacy and the Spam Act

4.1

Each party must take reasonable steps to keep the other party's Confidential Information confidential, must not disclose such Confidential Information to any third party other than those of the party's employees, agents and subcontractors who are reasonably required to receive, use and consider the information for the purposes of this Agreement, and must use such Confidential Information solely for the purposes of this Agreement. You acknowledge that we use third party subcontractors in the provision of the Hosting Services.

4.2

Clause 4.1 will not apply to any information which a party demonstrates:

(1)	is in or comes into the public domain (other than through breach of this Agreement or breach of confidence by any other person); or
(2)	was already in the possession of that party prior to disclosure by the other party.

4.3

It is not a breach of clause 4.1 for a party to disclose Confidential Information to the extent that it is obliged by law or order of any court or tribunal to make such disclosure.

4.4

We may disclose any Content, records or information concerning your account or the Hosting Services to the extent that we are obliged by law or order of any court or tribunal to make such disclosure, or as required to satisfy any request to do so by any government or law enforcement body, agency or authority.

4.5

Each party must return to the other party all Confidential Information of the other whether in written or tangible form or in any other media on the termination of this Agreement.

4.6

The parties acknowledge and agree that monetary damages alone would not be an adequate remedy for breach of this clause and, accordingly, each party will be entitled to seek injunctive relief to prevent breach of this clause 4 and to compel specific performance of it.

4.7

You acknowledge and agree that we and our affiliates may collect data in connection with the licensing and provision of the Hosting Services, and may use information compiled from that data to govern this agreement, improve our products and services, and provide customized services or technologies to you. This information will not be disclosed by us or our affiliates in a form that personally identifies you.

4.8

You must comply with the Privacy Act 1988 (Cth), any other applicable Australian statute, regulation, code of conduct or law concerning privacy, and the Spam Act 2003 (Cth).

Intellectual Property Rights

5.1

Other than the rights expressly granted to you under this Agreement, you have no right, title or interest in or to the Hosting Services or any other information, data, software, code, material, hardware or content (Materials) developed, supplied or made available by us to you under or in connection with this Agreement. All right title and interest (including all Intellectual Property Rights) in and to the Hosting Services and the Materials are retained by and vest in us and our licensors.

5.2

Subject to clause 5.1, all right title and interest in the Content and any data generated by you as a direct result of using the Hosting Services is retained by you.

Fees

6.1

You must pay the Fees to us, without any set off and free and clear of and without deduction or withholding for or on account of tax. If any tax is payable, the amount payable by you in respect of which such deduction or withholding is required to be made shall be increased to ensure that we receive the amount of Fees to which we would have been entitled had no deduction or withholding been made.

6.2

You must pay all Fees and any additional charges or amounts payable in accordance with your Order and the billing option selected by you, or if not specified, in advance when billed by us.

6.3

Late payments are subject to a late payment charge at a rate of 5% per month, compounded monthly, to the extent permitted by law. Where such rate is not permitted by law, the late payment charge shall be reduced to the highest rate permitted by law. Without prejudice to our other rights and remedies, in the event that you fail to pay sums due under this Agreement by 30 days after the due date, we may suspend the provision of the Hosting Services. Upon such suspension, we will charge you a reactivation fee of $250 for reinstatement of the Hosting Services.

6.4

For the purposes of this clause 6:

(1)	GST means GST as defined in A New Tax System (Goods and Services Tax) Act 1999 as amended (GST Act) or any replacement or other relevant legislation and regulations; and
(2)	words used in this clause 6 which have a particular meaning in the GST law (as defined in the GST Act), and also including any applicable legislative determinations and Australian Taxation Office public rulings have the same meaning, unless the context otherwise requires.

6.5

Unless GST is expressly included, the consideration expressed to be payable for any supply made under or in connection with this Agreement does not include GST.

6.6

To the extent that any supply made under or in connection with this Agreement is a taxable supply, the GST-exclusive consideration otherwise payable for that supply is increased by an amount equal to that consideration multiplied by the rate at which GST is imposed in respect of the supply, and is payable at the same time.

6.7

Each party agrees to do all things, including providing tax invoices that may be necessary to enable the other party to claim any input tax credit adjustment or refund in relation to any amount of GST paid or payable.

Term and termination

7.1

This Agreement commences on the date of acceptance by us of your Order, and continues until the expiry of the Term following the Activation Date, unless terminated earlier in accordance with these Terms and Conditions.

7.2

Termination for breach or insolvency
We may in our sole discretion suspend or terminate this Agreement and/or the Hosting Services if:

(1)

you breach this Agreement; or

(2)

you cease to trade; suspend payment of your debts generally; enter into or propose to enter into a voluntary arrangement or composition with your creditors, become insolvent, bankrupt or go into liquidation, or have a receiver, administrator, trustee in bankruptcy, liquidator or similar officer appointed in respect of all or part of your business or assets, or anything occurs analogous to the foregoing under the laws of the place where you are established or domiciled.
In the event of such termination, without limiting our rights and remedies, you will not be entitled to any refund of Fees paid to us.

7.3

Cancellation of services

(1)	Domain Name Registrations: Any GTLD domain names purchased from us can be cancelled within first 24 hours of registration. Any (.AU) domain names purchased from us can be cancelled within first 48 hours of registration.In the event of such cancellation all Fees in respect of such registration will be fully refunded. After 48 hours we are not able to refund the Fees for Domain Name registration or renewal. If a Domain Name is offered free as part of a Hosting Services package and the package is cancelled, any applicable refund will include the package price minus the Domain Name price.
(2)	Hosting Services: Within 30 days For cancellations of web hosting services within 30 days of the Activation Date, Fees for the web hosting services will be refunded subject to a $50 cancellation fee. The $50 fee is used to recover the setup cost of the web hosting services. No refund of Fees is provided for email hosting services and no cancellation fee is charged. 30 days or more In the event of cancellation of Hosting Services 30 days or more after the Activation Date, no refunds are provided. Package/bundled services If packaged Hosting Services including a Domain Name, SSL certificate or other bundled services are cancelled, the cost of the Domain Name, SSL certificate and/or other service will be deducted from any applicable refund or, if not able to be deducted, charged to You. Cancellation of Addons and Upgrades Once these Hosting Services are setup by our staff, they cannot be refunded in part or full. General Subject to any refund of Fees as specified in this clause, in the event of cancellation by you of Hosting Services, you must pay to us immediately upon such termination all Fees and charges due and payable under this Agreement, and a proportionate amount of any Fees and charges for the period up to and including the date of cancellation, in respect of which the Fees and charges are not yet due and payable.
(3)	E-Commerce Packages:
	Within 30 days For cancellations of any e-commerce services within 30 days of the Activation Date, Fees for the web hosting services will be refunded subject to a $250 cancellation fee. The $250 fee is used to recover the setup cost of the e-commerce services. 30 days or more In the event of cancellation of Hosting Services 30 days or more after the Activation Date, no refunds are provided.
(4)	Cancellation Process To cancel services you must open a help desk ticket on Level 3 support. This allows us to verify your details before cancellation. We cannot accept cancellation via phone or email.

7.4

Upon cancellation or termination of the Hosting Services and/or this Agreement, all licences and rights granted by us immediately cease, and we will discontinue your access to and the provision to you of the Hosting Services. The parties will make such arrangements as may be necessary for you to obtain the Content.

Warranties and Indemnities

8.1

Each party warrants:

(1)	it has all right, title and authority to enter into this Agreement and to fully perform its obligations; and
(2)	this Agreement is executed by a duly authorised representative.

8.2

You agree to indemnify and keep indemnified us and our agents, officers, employees and subcontractors against any and all claims, damages, costs, loss, liability or expense arising from or incurred in connection with:

(1)	any breach by you of this Agreement;
(2)	the Content or the Website or their use and operation by you or any other person;
(3)	any products or services sold or distributed by you or any other person involving or in association with the Hosting Services or the Website;
(4)	any claim that the Content, Domain Name or Website infringe the Intellectual Property Rights or other rights of any person; and
(5)	your use of the Hosting Services in breach of any Law.
	This indemnity continues after this Agreement ends or is terminated. It is not necessary for us to incur expense or make payment before we can enforce this right of indemnity.

Limitation of Liability

9.1

To the extent permitted by law, we exclude from this Agreement all statutory or implied conditions, warranties and indemnities.

9.2

To the extent permitted by law, our total liability to you arising under or in connection with this Agreement and in relation to any condition, warranty or indemnity which cannot legally be excluded is limited to at our option:

(1)	in the case of goods the replacement of the goods or the supply of equivalent goods, the repair of the goods, or the payment of the cost of replacing the goods, acquiring equivalent goods, or having the goods repaired; or
(2)	in the case of services, supplying of the services again or the payment of the cost of having the services supplied again.

9.3

Subject to clause 9.2, to the extent permitted by law and notwithstanding any other provision of this Agreement, we will not be liable for any direct, indirect, incidental, special or consequential loss or damages (including but not limited to loss of profit, opportunity, expectation, goodwill, data, content, revenue, pure economic loss and loss or damage to hardware or equipment).

General

10.1

Assignment
You may not assign or otherwise deal with this Agreement without our prior written consent.

10.2

Relationship
This Agreement does not create or evidence a partnership, agency, joint venture or the relationship of employer and employee between the parties.

10.3

Force Majeure
We will not be liable to you for failure to fulfil our obligations if such failure is due to causes beyond our reasonable control, including, without limitation: acts of God; fire; catastrophe; governmental prohibitions or regulations; national emergencies; insurrections, riots or wars; acts of terrorism; strikes, work stoppages or other labour difficulties; or outage or failure of a communications network, any part of a network, any third party equipment, software or hardware (Force Majeure Event). The time for any performance required will be extended by the delay incurred as a result of such a Force Majeure Event.

10.4

Notices
All notices must be in writing and addressed to us at the address specified on the O'Neill Design website from time to time, and to you at the address as set out in your Order.

10.5

Notices will be deemed to have been duly given:

(1)	when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
(2)	when sent, if transmitted by fax and a successful transmission report or return receipt is generated; or
(3)	on the second Business Day following mailing, if mailed from within Australia to an address in Australia by ordinary mail, postage pre-paid.

10.6

Waiver
A party's failure or delay to exercise a power or right does not operate as a waiver of that power or right. The exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right. A waiver is not effective unless it is in writing. Waiver of a power or right is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.

10.7

Severance
If anything in this Agreement is unenforceable, illegal or void then it is severed and the rest of this Agreement remains in force.

10.8

Entire Agreement and Variation
This Agreement sets out the entire agreement and understanding between us and you in connection with the subject matter of this Agreement. Each party has entered into this Agreement without relying on any representation by the other party or any person purporting to represent that party.

10.9

Subject to clause 2.7 of these Terms and Conditions, an amendment or variation to this Agreement is not effective unless it is in writing and agreed to by the parties.

10.10

Governing Law
This Agreement will be governed by the laws of Queensland, Australia. The parties submit to the exclusive jurisdiction of the courts of Queensland and the Commonwealth of Australia.

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