Ajunta Pty Ltd Hosting Terms of Service
Ajunta agrees to provide, and the Client agrees to receive, products and services according to the following Terms of Service:
Entire Terms of Service
1. This Terms of Service document supersedes and extinguishes any previous documents about the subject matter. This document supersedes any representation or warranty previously given.
Severability
2. If any provision of this Terms of Service is or becomes illegal, invalid or unenforceable in any jurisdiction, the provision must be read down so as to give it as much effect as possible. If it is not possible to give the provision any effect at all, it is severed from this Terms of Service document. Any reading down or severance does not affect the validity and enforceability of the remaining provisions in that jurisdiction or the validity and enforceability of the offending provision in any other jurisdiction.
Waiver
3. No failure by any party to exercise and no delay in exercising any right under this Terms of Service is to be taken as a waiver of the right. No waiver of any right is effective unless made in writing. Waiver of any particular right does not in any way release any other party from strict compliance in the future with the same or any other obligation.
Joint and Several Liability and Interpretation
4. All of the terms of this Terms of Service document shall be binding upon, and inure for the benefit of, the parties and their respective executors, administrators, legal representatives, heirs, successors and permitted assigns.
An obligation imposed in this Terms of Service on or in favour of more than one party binds or benefits all of them jointly and each of them individually.
Words importing the singular shall include the plural and vice versa, words importing any gender shall include all other genders and references to persons including corporations and other legal persons.
Proper Law
5. This Terms of Service is governed by the law of Victoria. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria and courts of appeal from them, and waives any objection to legal action being brought in those courts on the grounds of venue or inconvenient forum.
General
6. The Client is required to provide Ajunta with correct and up to date contact details for billing and technical notification purposes. Ajunta takes no responsibility for disruption to services due to inability to contact the Client.
7. Client will use the Web Hosting Services in a manner consistent with any and all applicable laws of the State of Victoria and the Australian Federal Government.
8. Ajunta will not reveal, sell, or in any way divulge information about the Client or the Internet usage of the Client to any individual, business, marketing, or research group without prior consent of the Client or without legal warrant.
9. While Ajunta shall make every reasonable effort to protect data stored on Client's Server(s), Ajunta is not responsible for Client's data, files, or directories residing on Ajunta's equipment. The Client is solely responsible for maintaining data, file, and directory structure backups.
10. The Client shall indemnify Ajunta against all claims, expenses, damages, or other liabilities arising directly or indirectly from accessing of obscene, defamatory, or offensive material via Ajunta Internet service.
11. The Client acknowledges that FTP access is not available to the Client under this Terms of Service unless specifically requested and agreed upon by Ajunta and the Client.
12. Any Web pages secured by a logon facility requiring username and password are not encrypted. Ajunta shall not be liable in any way for unauthorised access by a third party. Encryption can be provided upon written request by the Client. Additional fees will apply.
13. The software configuration chosen for displaying the website has been chosen based on the website's intended purpose as indicated by the Client and to provide the most cost effective service possible. If any underperformance or outage results from the software configuration not coping with unexpectedly high volumes of traffic visiting the site, it is at Ajunta's discretion, after consultation with the Client , to upgrade the software serving the website, which may incur additional costs.
14. Use of any information obtained by way of Ajunta is at the Client's own risk, and Ajunta holds no liability for such use.
Provision of Services
15. Ajunta does not provide support for third party software, including software downloaded from the Internet.
16. Ajunta is not liable to the Client or any other person for:
(a) Any cost, loss or liability (including loss of profit or other consequential damage) arising from Ajunta's supply or failure or delay in supplying Service.
(b) The content, context, or confidentiality of any communications made using the Service.
Client’s Obligations
17. It is the sole responsibility of account owner to insure that they maintain their own backup copy of any materials placed on Ajunta Servers, or of any database maintained on any server operated by Ajunta in the event Ajunta is unable to restore Client content from backup. At no time shall Ajunta be liable for any lost Client data.
Domain Names
18. Ajunta provides no warranty or guarantee that the domain name applied for will be available for registration by you, the Client.
19. Registration and ongoing use of a domain name are bound by the relevant naming authority's policies and procedures.
20. You, the Client, agree to irrevocably waive any claims against Ajunta that may arise resulting from the decision of a naming authority to refuse to register a domain name.
21. In the circumstances that Ajunta did not register you domain name, you accept that it is your responsibility to ensure that your Domain Name Licence is renewed furthermore; Ajunta will accept no responsibility or liability for the renewal of your domain name under these circumstances.
22. Payment for registration or renewal of a domain name must be made prior to any action being taken by Ajunta to submit the registration or renewal application to the appropriate registrar.
23. Should Ajunta undertake the renewal of a domain name on your behalf where the original registrar for the domain is different to Ajunta's registrar of choice. The successful renewal of the domain by Ajunta will be dependent on your agreement to transfer the domain to our registrar of choice.
24. Domain registration applications will only be processed upon payment for this service and Ajunta accepts no responsibility for delays in domain registration where the delay results from a third party.
25. Domain renewal requests will only be processed upon payment for this service and Ajunta accepts no responsibility for delays in domain renewal where the delay results from a third party.
26. Requests to transfer ownership of a domain name to a different entity will be accepted by Ajunta however, Ajunta is bound by the relevant policies of the appropriate naming authority. Fees apply.
27. Official Policy Documentation for the ".au" domain name space can be located at www.auda.org.au
Title to software
28. All right title and interest in the software comprising the website shall vest in Ajunta. Ajunta hereby licences the Client to use the website during the term of this Terms of Service and any extension of the hosting service. The Client shall not deal with the software comprising the website in any way contrary to this licence without the written consent of Ajunta, which consent shall be in Ajunta’s absolute discretion.
Price and Payment
29. Ajunta provides Web Hosting Services on an annual basis upon payment of Ajunta’s fees as applicable at that time through the Ajunta Online Payment system.
30. The Client agrees to pay Ajunta the total price set out in the invoice, including GST (if any).
31. The Client will receive their annual Renewal Invoice by electronic mail prior to the due date of the invoice. Payment can be via credit card or PayPal and in accordance with the payment terms indicated on the Ajunta invoice, which will be forwarded to the Client by electronic mail.
32. Where an invoice becomes more than 14 days overdue, the Client's service may be automatically deactivated pending payment. A re-activation fee may be applied to the Client's account in addition to any outstanding amounts. Reactivation of service will only occur where the full amount, including any reactivation fee(s), is paid.
33. The Client may upgrade their Hosting Service. The Client should email Ajunta and advise of their intention to upgrade at accounts@ajunta.com. The Client’s remaining credit on their current hosting plan will be subtracted from the upgraded annual hosting cost and a new invoice provided for the discounted amount. Upon receiving the outstanding amount, the Client’s Hosting Service will be upgraded.
34. If the Client fails to pay any instalments when due, then without prejudice to any other right of Ajunta, Ajunta may take action for recovery of any amounts then due by the Client to Ajunta.
35. Website development quotes assume that website hosting will be provided by Ajunta. Additional costs will be applied in the case that an alternative hosting provider is used in order to compensate for additional time to develop and provide the website to the third party.
GST
36. For the purpose of this clause:
"GST" means GST within the meaning of the GST Act.
"GST Act" means the A New Tax System (Goods and Services Tax) Act 1999 (as amended).
Expressions set out in italics in this clause bear the same meaning as those expressions in the GST Act.
To the extent that a party makes a taxable supply in connection with this Terms of Service, except where express provision is made to the contrary, the consideration payable by a party under this agreement represents the value of the taxable supply for which payment is to be made.
If a party makes a taxable supply in connection with this Terms of Service for a consideration which represents its value, then the party liable to pay for the taxable supply must also pay, at the same time and in the same manner as the value is otherwise payable, the amount of any GST payable in respect of the taxable supply.
A party's right to payment under the preceding subclause is subject to a valid tax invoice being delivered to the party liable to pay for the taxable supply.
Trademarks and Copyrights
37. The Client warrants that it has the right to use the applicable trademarks of the Client, and grants to Ajunta the rights to use such trademarks, if any, in connection with Ajunta's promotion of, referencing of, cataloguing of, or indexing of its Web Hosting Clients.
38. The Client hereby agrees that any material submitted for publication through the Ajunta Web Hosting Services will not violate or infringe any copyright, trademark, patent, statutory, common law or proprietary rights of others, or contain anything libellous or harmful.
Hardware, Equipment, and Software
39. The Client is responsible for and must provide all telephone, computer, hardware and software equipment and services necessary to access the Web Hosting Services. Ajunta makes no representations, warranties, or assurances that the Client's equipment will be compatible with Ajunta's services.
Internet Etiquette
40. Users of Internet and electronic forums should be considerate of the expectation and sensitivities of others on the network when posting material for electronic distribution. The network resources may not be used to impersonate another person or misrepresent authorisation to act on behalf of others or Ajunta. All messages transmitted via Ajunta's service should correctly identify the sender furthermore; users may not alter the attribution of origin in electronic mail messages or postings. Users must not attempt to undermine the security or integrity of computing systems or networks and must not attempt to gain unauthorised access to said systems, networks or services. Due to the public nature of the Internet, all information should be considered publicly accessible, and important or private information should be treated carefully. Ajunta is not liable for protection or privacy of electronic mail or other information transferred throughout the Internet or any other network Ajunta or its Clients may utilise.
41. The Client will not upload, post, transmit or distribute any material or information which contains a computer virus, or other code, files or programs intended to disrupt or adversely affect the operation of Ajunta or any other individuals.
42. Use of distribution lists via unsolicited electronic mail or other electronic mailings is strictly prohibited. Ajunta reserves the right to deactivate the Client's Web Hosting account(s) upon an indication of such activity. The Client hereby agrees to indemnify and hold harmless Ajunta from any claim resulting from the Client's or another party's use of electronic mail service(s) on the Client's Web Hosting account(s).
43. Obscene Speech or Materials - Using Ajunta's network to advertise, transmit, store, post, display, or otherwise make available child pornography or obscene speech or material is strictly prohibited.
44. Defamatory or Abusive Language - Using the Ajunta network as a means to transmit or post defamatory, harassing, abusive, or threatening language is strictly prohibited.
45. Other Illegal Activities - Engaging in activities that are determined to be illegal, including advertising, transmitting, or otherwise making available ponzi schemes, pyramid schemes, fraudulently charging credit cards, and pirating software is strictly prohibited.
46. Other Activities - Engaging in activities, whether lawful or unlawful, that Ajunta determines to be harmful to its subscribers, operations, reputation, goodwill, or customer relations is strictly prohibited.
47. Ajunta reserves the right, in its sole discretion, to suspend the Client's services provided by Ajunta - including but not limited to Web Hosting Services, email accounts or others - without notice upon proof of breach of this Terms of Service.
Change
48. Ajunta reserves the right to modify these Terms of Service in any way and as required. Notice of such changes will be delivered to users via postings on Ajunta's Web Site only. Continued usage of Web Hosting Services indicates the Client's acceptance of the Terms of Service in their amended form.
49. The client may move to a different hosting provider. A fee may be applicable where assistance is required by Ajunta.
Termination
50. The Client may cancel the Web Hosting Services with Ajunta via electronic mail. Cancellation requests should be sent to accounts@ajunta.com. Cancellation of any services will not take effect until such notice is received. Hosting will be cancelled from the 1st day of the next month. Refunds on cancelled Hosting Services are generally not provided. Only in exceptional circumstances may a refund be provided for cancelled services. All refunds must be approved by management.
51. The service (including any files, hosting space, databases or other related items) will be deleted from Ajunta's servers 7 days after account/service deactivation. It is the responsibility of the Client to ensure that all required data is backed up by the Client prior to deletion.
52. Ajunta reserves the right to suspend Web Hosting Services and any other services provided without notice for any unpaid or partially paid balances. The Client is responsible for any legal fees incurred during the collection of any unpaid amounts.
53. Ajunta reserves the right, in its sole discretion, to deactivate the Client's web hosting account(s) upon an indication of credit problems including, but not limited to, delinquent payments.
54. Spamming (the practice of sending unsolicited, unwelcome mass mailings to people) is strictly prohibited. Any Client found to be Spamming will have their Web Hosting Service and any other services immediately terminated and find themselves billed for any unpaid balances as well as for any damages that occur as a result of the act of spamming.
55. Ajunta's servers may not be the source, intermediary, or destination address involved in the transmission of spam, flames, or mail bombs. Your domain may not be referenced as originator, intermediary, or reply-to address in any of the above. We consider spam any mass unsolicited message in the mediums of Newsgroups and Email. If you are found to have spammed, then we will immediately, without warning, disable your domain. We reserve the right to refuse or cancel service to known spammers. Lastly, we reserve the right to determine what violates this policy. As such, any violation will result in immediate deactivation of services without refund.
56. Any attempts to undermine or cause harm to the Ajunta servers is strictly prohibited. Ajunta reserves the right to terminate the Client’s Web Hosting Services immediately in the event of the Client attempting to undermine its server security.
57. Background Running Programs, including Background Daemons in general are prohibited.
Delays in Performance
58. Ajunta shall use its best endeavours to provide a hosting service with high performance and without delays. However, Ajunta shall not be liable in any way for provision of the services to be provided under this Terms of Service.
59. Ajunta hosting services are provided on an "AS IS, AS AVAILABLE" basis. Ajunta gives no warranty, express or implied, for the Web Hosting Services provided. This 'no warranty' clause expressly includes any reimbursement for losses of income due to disruption of services by Ajunta or its providers beyond the fees paid by the Client to Ajunta for services. Ajunta is not responsible for any damages arising from the Client's use of Ajunta or by the Client's inability to use the Web Hosting Services for any reason.
60. Ajunta shall use its best endeavours to provide the services in a timely manner. However, Ajunta shall not be liable in any way for any delay in performance of the services to be provided under this Terms of Service.
61. Ajunta is not responsible for any damages arising from the Client's use of Ajunta or by the Client's inability to use the Web Hosting Services for any reason.
Warranties
62. Ajunta hereby limits its liability for any breach of any warranty, condition or obligation it may have under this Terms of Service or otherwise, including, without limitation, any claim for loss of profits due to any delay in providing services or disruption or failure of hosting services, to either supplying the services again or payment of the cost of having the services supplied again.
