Web Hosting Terms & Conditions
Effective 17 February 2017.
1. The terms of your Contract
1.1 These General Terms & Conditions apply to the provision of services byDigital Bird Pty Ltd (ABN 16 612 633 628) (Digital Bird, we, us, our) to you as a user and customer of our services (you, your).
1.2 Your Contract with us for each Service is made up of:
- These General Terms & Conditions;
- Any relevant Service Terms;
- Our Acceptable Use Policy; and
1.3 The documents listed above supersede all prior arrangements (whether written or oral) in relation to their subject matter.
1.4 We may change the terms of your Contract by giving you notice of the change and posting new versions of any online terms on this page. If you continue to use the Service after that notice period, you will be taken to have agreed to the change. The period of notice depends on the nature of the change. 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), we will provide a reasonable period of notice not exceeding 3 days;
- for all other changes, we will give you at least 30 days’ notice.
2. Supply of Services
2.1 We shall use reasonable endeavours to supply the Services in accordance with your Contract until the Service is terminated in accordance with the Contract. We shall not be liable for any delay or failure to perform our obligations under this Contract if such delay or failure is due to termination of access to a Service by the end supplier of the Service or as a result of a change to the conditions of supply by that supplier.
2.2 Monthly contracts will roll on a monthly basis without notice to you. Fixed contract period Services (other than a month-to-month contract) will automatically roll over for a further fixed contract period on the date notified to you by our reminder notice.
2.3 If your fixed contract period Service is to be auto-renewed, we will notify you of, and provide you the ability to cancel the impending auto-renewal. You must advise us prior to the auto-renewal date if you wish to cancel the Service. If we do not receive your cancellation or “do not renew” advice in time, we will auto-renew the Service to ensure it continues uninterrupted. Your Service will be renewed for the same duration at the then current applicable charges published on our website.
2.4 Nothing in the Contract transfers to either party any intellectual property rights (“IPR”) owned by the other party existing prior to the commencement of the Services. All IPR in the materials produced by us in connection with the Services (including websites, designs, information, reports and data) other than your pre-existing IPR, are and will remain owned by us. We grant you a perpetual, irrevocable, non-exclusive, royalty-free licence to use those materials for your internal business purposes (but not to disclose them to third parties unless otherwise agreed in writing).
3. Provision of Secure Access to Digital Bird Systems
3.1 You must keep all login details secure and confidential at all times and must not disclose them to anyone else (except those of your employees who need to know them for the purposes of their employment).
3.2 You agree that you are totally responsible for all actions of the people (if any) to whom you provide your login details (whether knowingly or not, and whether directly or indirectly) while they obtain access to our systems using those login details, and that we are entitled to treat instructions provided by those people through such access as instructions originating from you.
3.3 You must notify us immediately of any breach of security or unauthorised use of your login details to access our systems. We will not be liable for any loss you incur due to any unauthorised use of your login details.
4. Your Obligations
4.1 You must provide us with such co-operation and support as we may reasonably request to perform the Services, including by:
- Responding promptly to our communications in relation to the Services; and
- Providing accurate and prompt responses to our requests for any information or documentation reasonably required by us to perform the Services.
4.2 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, any materials given by you to us, any content that you upload to your Service, and merchant services agreements between you and the relevant financial institutions.
4.3 You indemnify us from and against any and all liabilities incurred by us in connection with our:
- Use or reliance upon any images or trading names, or any data, information, specifications, documentation, computer software or other materials provided by you; or
- Compliance with any directions or instructions by you in relation to the provision of the Services.
4.4 Except to the extent that Digital Bird expressly agrees to do so as part of a Service, you must conduct backups of any of your data (whether hosted on Digital Bird’s computer systems or provided to Digital Bird in connection with the performance of the Services) at such intervals as are reasonable having regard to the nature of the data.
5. Fees and Payment
5.1 You must pay us the Services fees as described and by the due date specified in any invoice sent to you or as required at the time of purchase. All subscriptions are payable within 7 days of invoice issue.
5.2 Unless the Service Terms provide differently, if you terminate a fixed period contract (annual or longer) before the end of its term, you will be charged an early termination charge equal to 6 months’ fees or the fees for the rest of the contract term, whichever is the lesser (Early Termination Fee). If you have prepaid fees for the fixed period contract and there is greater than 6 months remaining, on request, you will be refunded the balance of the prepaid fees minus the Early Termination Fee. Refunds are not available for domain names.
5.3 Without prejudice to our other rights and remedies under this agreement, if any Services fees are not paid on or before their due date, we reserve the right, immediately and at our sole discretion, to suspend the provision of Services to you until such payment is made (including any interest charged on overdue amounts, calculated at the daily rate of 12% per annum).
5.4 If we have taken action to recover overdue amounts from you, any reasonable costs incurred by us in recovering the debt, including but not limited to any legal expenses and collection agency charges, will be recoverable from you.
6.1 Either party may terminate this Contract immediately by notice in writing to the other party if:
- the other party commits a material breach which cannot be remedied, of its obligations under the Contract;
- the other party commits a remediable material breach of its obligations under the Contract but fails to remedy that breach within 14 days of being required to do so in writing by the first party; or
- an insolvency event occurs with respect to the other party.
6.2 If we terminate a Service for a reason set out in 4.1, we shall also be entitled to immediately cease any of our other Services to you.
6.3 If you wish to terminate your account, you must do so by contacting us directly, 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. We will not accept verbal instructions to terminate an account. We will complete the cancellation request to your service at the first available opportunity, however we acknowledge the date of lodgement of the cancellation request (where we have provided a receipt ID) as the date of cancellation.
6.4 Where the Contract does not state expressly that the Services are to be provided for a minimum fixed period or, following the expiry of such a period if specified and where renewal of a further fixed period has not occurred, either party may terminate the Contract on 30 days’ written notice to the other.
7.1 If you are not the customer, you warrant that you have the power and authority to enter into this Contract on behalf of the customer and will indemnify us for any breach of the Contract by the customer.
7.2 We do not warrant that the Services will be uninterrupted, timely, secure or error free, or that they will be free from hackers, virus, denial of service attack or other persons having unauthorised access to our services or those of our suppliers.
7.3 You agree that we may be required to perform maintenance in respect of our systems to ensure their satisfactory operation which may affect the availability or functioning of the Services. We will use reasonable endeavours to provide you with advance notice of any maintenance downtime, except when circumstances beyond our reasonable control prevent us from doing so.
7.4 All terms and warranties which might otherwise be implied by any legislation, the common law, equity, trade, custom or usage or otherwise in to the Contract, are expressly excluded to the maximum extent permitted by law.
7.5 If any goods or services supplied pursuant to this agreement are supplied to you as a ‘consumer’ of goods or services within the meaning of that term in the Australian Consumer Law as amended or relevant state legislation (“the Acts”), you will have the benefit of certain non-excludable rights and remedies in respect of the products or services and nothing in these terms and conditions excludes or restricts or modifies any condition, warranty, right or remedy which is so conferred by the Acts. However, if the goods or services are not ordinarily acquired for personal, domestic or household use or consumption, we limit our liability to:
- in relation to goods – 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, the repair of the goods or payment of the cost of having the goods repaired;
- in relation to services – the supplying of the services again; or the payment of the cost of having the services supplied again as in each case we may elect.
8.1 Nothing in the Contract excludes or limits either party’s liability under or in respect of:
- Any indemnity;
- Any fraud or other criminal act;
- Personal injury or death caused by the negligence, breach of contract or other wrongful act or omission of that party; or
- Any other liability that cannot be excluded by law.
8.2 To the maximum extent permitted by applicable law, neither party is liable for:
- any indirect, special or consequential loss or damage, any loss of profit, revenue or business opportunities, loss of or damage to data or loss of goodwill arising out of or in connection with the Contract (whether or not the loss or damage may reasonably be supposed to have been in the contemplation of the parties as at the date the Contract was formed as a probable result of any act or omission);
- any loss or damage to the extent such loss or damage is caused or contributed to by the other party’s negligence, breach of contract or other wrongful acts or omissions; or
- any claim made 6 months or more after the circumstances giving rise to the claim first became known by the claimant or could, with reasonable diligence, have become known by the claimant.
8.3 Each party’s aggregate liability for any loss or damage in connection with the provision of the Service, which is not excluded or limited under this clause 6 is limited to the charges paid by you in respect of the Services for the preceding 12 months to any such claim.
9.1 Neither party may assign its rights or obligations under this Contract without the written consent of the other party which consent will not be unreasonably withheld; provided, however, that we may assign this Contract to a successor in connection with any merger, acquisition, or sale of all or substantially all of our business or assets to which this Contract relates.
9.2 We are free to sub-contract any of our obligations under the Contract, but such sub-contracting will not release us from our liabilities under the Contract.
9.3 The Contract is to be interpreted in accordance with the laws of the State of Queensland.