Terms of Service
1 Introduction & Definitions
Welcome to the HarwoodHosting.com.au website (this "Site") which is owned and operated by Harwood Consulting, a Australian limited liability company.
In order to become a user of Services, you must irrevocably agree to be bound by these terms. If you do not agree to be bound by these terms, you must ensure you do not indicate to us your acknowledgement and agreement to be irrevocably bound by these terms. Your acknowledgement and agreement to be irrevocably bound by these terms will be indicated to us upon making an application to us for the use or purchase of Services, purchasing or using the Services provided by us, or becoming one of our customers at any time, whichever occurs first.
The following terms shall be defined as provided below. For example, references to "you", "your" and so on, shall refer to the person who requests the provision of any services provided by us.
|We, us, our, etc||Harwood Consulting and its number of trading names (including, in particular, HarwoodHosting.com.au) except where explicitly specified as otherwise.|
|You, Your, Customer, User, etc||The person who requests or utilises the provision of this Site, or any Services provided by us.|
|Services||Include any product, license, package or account offered by us.|
|Days||Shall refer to calendar days, unless specified otherwise.|
|Spam||Shall refer to distribution of unsolicited bulk and/or commercial electronic messages over the Internet.|
|Supplier||Shall refer to any third party which provides a product/service which we resell/offer to you.|
1.1 Representations you make about yourself
This Site and the Services found at this Site are available only to Users who can form legally binding contracts under applicable law.
By using this Site, or by applying for, renewing, transferring, taking ownership, or using any Services found at this Site, you irrevocably undertake, represent, warrant and agree that:
- You are at least 18 years of age, and that we may terminate this Agreement immediately without providing a refund if we discover that you are under 18 years of age at the time of entering into this Agreement;
The Registered Name Holder shall provide to Registrar accurate and reliable contact details and promptly correct and update them during the term of the Registered Name registration, including: the full name, postal address, e-mail address, voice telephone number, and fax number if available of the Registered Name Holder; name of authorized person for contact purposes in the case of an Registered Name Holder that is an organization, association, or corporation;
- Where you act on behalf of a corporate entity, you have the legal authority to bind such corporate entity to these terms, in which case the terms "you", "your", "User" or "customer" in this Agreement shall refer to such corporate entity. If, after your agreement to these terms, we learn that you do/did not have the legal authority to bind such corporate entity, you will be personally responsible for the obligations contained in these terms. We shall not be liable for any loss or damage resulting from our reliance on any instruction, notice, document or communication reasonably believed by us to be genuine and originating from an authorized representative of your corporate entity. If there is reasonable doubt about the authenticity of any such instruction, notice, document or communication, we reserve the right (but undertake no duty) to require additional authentication from you;
- You shall not permit any other person to use your username in order to gain access to the service, nor shall you divulge to any other person any password which you may from time to time use in gaining access to the services. If your password becomes known, you will inform us immediately. We may require you to change your password where considered necessary, and
- You agree at all times to indemnify us for any expenses, costs, damages, penalties, imposts and any other liabilities we incur from time to time, whether directly or indirectly, as a result of you transmitting or receiving or in any other manner using any information, which transmission, receipt or use is facilitated by or connected with the provision of services to you, including without limitation liability for breach of copyright or any other intellectual property rights
1.2 Terms governing your account
In order to access some of the features of this Site or use some of the Services found at this Site, you will have to activate an account ("Account"). You represent and warrant to us that all information you submit when you create your Account is accurate, current and complete, and that you will keep your Account information accurate, current and complete. If we have reasonable belief that your Account information is untrue, inaccurate, out-of-date or incomplete, we reserve the right to suspend or terminate your Account.
A Registered Name Holder's willful provision of inaccurate or unreliable information, its willful failure promptly to update information provided to Registrar, or its failure to respond for over fifteen (15) calendar days to inquiries by Registrar concerning the accuracy of contact details associated with the Registered Name Holder's registration shall constitute a material breach of the Registered Name Holder-registrar contract and be a basis for cancellation of the Registered Name registration.
You are solely responsible for the activity that occurs on your Account, whether authorized by you or not. It is your responsibility to ensure your Account information is secure, including without limitation your customer number/login, password, payment method(s), and shopper PIN. For security purposes, we recommend that you change your password and shopper PIN at least once every three (3) months for each Account you have with us. You must notify us immediately of any breach of security or unauthorized use of your Account. We will not be liable for any loss you incur due to any unauthorized use of your Account. You, however, may be liable for any loss we or others incur caused by your Account, whether caused by you, or by an authorized person, or by an unauthorized person.
Any Registered Name Holder that intends to license use of a domain name to a third party is nonetheless the Registered Name Holder of record and is responsible for providing its own full contact information and for providing and updating accurate technical and administrative contact information adequate to facilitate timely resolution of any problems that arise in connection with the Registered Name. A Registered Name Holder licensing use of a Registered Name according to this provision shall accept liability for harm caused by wrongful use of the Registered Name, unless it promptly discloses the current contact information provided by the licensee and the identity of the licensee to a party providing the Registered Name Holder reasonable evidence of actionable harm.
1.2.1 Registrar shall provide notice to each new or renewed Registered Name Holder stating:
18.104.22.168 The purposes for which any Personal Data collected from the applicant are intended;
22.214.171.124 The intended recipients or categories of recipients of the data (including the Registry Operator and others who will receive the data from Registry Operator);
126.96.36.199 Which data are obligatory and which data, if any, are voluntary; and
188.8.131.52 How the Registered Name Holder or data subject can access and, if necessary, rectify the data held about them.
184.108.40.206 The Registered Name Holder shall consent to the data processing referred to in Subsection 1.2.1
220.127.116.11 The Registered Name Holder shall represent that notice has been provided equivalent to that described in Subsection 1.2.1 to any third-party individuals whose Personal Data are supplied to Registrar by the Registered Name Holder, and that the Registered Name Holder has obtained consent equivalent to that referred to in Subsection 18.104.22.168 of any such third-party individuals.
22.214.171.124 Registrar shall agree that it will not process the Personal Data collected from the Registered Name Holder in a way incompatible with the purposes and other limitations about which it has provided notice to the Registered Name Holder in accordance with Subsection 1.2.1 above.
126.96.36.199 Registrar shall agree that it will take reasonable precautions to protect Personal Data from loss, misuse, unauthorized access or disclosure, alteration, or destruction.
188.8.131.52 The Registered Name Holder shall represent that, to the best of the Registered Name Holder's knowledge and belief, neither the registration of the Registered Name nor the manner in which it is directly or indirectly used infringes the legal rights of any third party.
184.108.40.206 For the adjudication of disputes concerning or arising from use of the Registered Name, the Registered Name Holder shall submit, without prejudice to other potentially applicable jurisdictions, to the jurisdiction of the courts (1) of the Registered Name Holder's domicile and (2) where Registrar is located.
220.127.116.11 The Registered Name Holder shall agree that its registration of the Registered Name shall be subject to suspension, cancellation, or transfer pursuant to any ICANN adopted specification or policy, or pursuant to any registrar or registry procedure not inconsistent with an ICANN adopted specification or policy, (1) to correct mistakes by Registrar or the Registry Operator in registering the name or (2) for the resolution of disputes concerning the Registered Name.
18.104.22.168 The Registered Name Holder shall indemnify and hold harmless the Registry Operator and its directors, officers, employees, and agents from and against any and all claims, damages, liabilities, costs, and expenses (including reasonable legal fees and expenses) arising out of or related to the Registered Name Holder's domain name registration.
If you are visiting this Site from a country other than the country in which our servers are located, your communications with us may result in the transfer of information (including your Account information) across international boundaries. By visiting this Site and communicating electronically with us, you consent to such transfers.
1.3 Structure of terms
These terms are structured so that there are clauses which apply to all Services ("the general clauses") and there are clauses which apply in respect of particular Services. Unless a specific subsection is cited, references to any clause include the subsection in that clause (for example, a reference to clause 1 includes this subsection 1.3, while a reference to clause 1.2 does not include this subsection 1.3).
For the purposes of these terms, the general clauses refer to clauses 1 to clauses 15, while the remaining clauses specify which particular Services they apply to.
Several of the remaining clauses may not apply as you may not have purchased or used those particular Services. However, if you have purchased a particular Service, and there is an inconsistency between a general clause and the clause which applies in respect of that particular Service, you agree that the inconsistency shall be resolved by giving precedence to the clause applying to the particular Service.
2 Acceptable use & general conduct
You irrevocably agree that it is your responsibility at all times to:
- Use our service and services in a manner which does not violate any applicable laws or regulations
- Respect the conventions of the newsgroups, lists and networks that you use
- Respect the legal protection afforded by copyright, trademarks, license rights and other laws to materials accessible via our Service;
- Respect the privacy of others
- Use the service in a manner which does not interfere with or disrupt other network users, services or equipment; and
- Refrain from acts that waste resources or prevent other users from receiving the full benefit of our Services
- Ensure your use of our Services remains ethical and in accordance with accepted community standards
It is not acceptable to use our Service(s) and you irrevocably agree that you will not use our Service(s) to:
- Violate copyright or other intellectual property rights or publish any material that infringes any third party's intellectual property rights or any other rights;
- Illegally store, use or distribute software; transmit threatening, obscene or offensive materials;
- Engage in electronic 'stalking' or other forms of harassment such as using abusive or aggressive language;
- Misrepresent or defame others;
- Commit fraud;
- Gain unauthorised access to any computing, information, or communications devices or resources, including but not limited to any machines accessible via the Internet;
- Damage, modify or destroy the files, data, passwords, devices or resources of us, other users or third parties;
- Engage in misleading or deceptive on-line marketing practices;
- Conduct any business or activity or solicit the performance of any activity that is prohibited by law;
- Make an unauthorised transmission of confidential information or material protected by trade secrets;
- "Spam" or engage in "spamming" activities, or sending unsolicited commercial activities;
- Engage obscene speech or materials, this includes, advertising, transmitting, storing, posting, displaying or otherwise making available; child pornography, offensive sexual content or materials or any other obscene speech or material;
- Post or transmit defamatory, harassing, abusive or threatening language;
- Create, distribute or provide information/data regarding internet viruses, worms, Trojan horses, pinging, flooding, mail-bombing or denial of service attacks;
- Facilitate a violation of this clause and Acceptable Use Policy;
- Perform any other action through utilization of any service which we deem unsatisfactory;
- Run Proxy or any proxy related services, or
- Use greater than 100,000 inodes (every file on your hosting account uses 1 inode), or create file system damage by the rapid creation of large volumes of files.
You also agree not to attempt any of the following:
- Use 25% or more of system resources for longer than 90 seconds. There are numerous activities that could cause such problems; these include: CGI scripts, scripts, FTP, PHP, HTTP, Mail, etc
- Run any type of interactive real-time chat applications that require server resources. Remotely-hosted services are fully allowed
- Run stand-alone, unattended server-side processes at any point in time on the server. This includes any and all daemons, such as IRCD
- Run any software that interfaces with an IRC (Internet Relay Chat) network.
- Run any gaming servers/services
- Use hosting services for storage of any data not related to the displayed website. You are expressly prohibited from use as an online file repository
- Run standalone, automated server-side processes including, but not limited to any daemon
- Execute any script for longer than 180 seconds
- Execute any database query that takes longer than 30 seconds to complete
- Any activity which causes the server to crash / restart
- Check their email more than every 3 minutes
You agree that we may at our discretion and by order of any law enforcement agency disclose information relating to your account and use of services. We may also report any action we find in breach of this agreement, local, state, federal or international laws and cannot be held liable for any outcome resulting in our actions.
You must at all times comply with law. You irrevocably agree that you will also be in breach of this Agreement on violation of state, federal or international laws.
You irrevocably agree that any breach of this clause can result in immediate termination of services and loss of all data held on provided services, and you release us, our staff and our suppliers of any liability resulting in such instances.
3 Liability & indemnity
You expressly and irrevocably agree to indemnify and keep indemnified and hold us harmless from and against any claim brought against us, by a third party resulting from the provision or use of Services, and in respect of all losses, costs, actions, proceedings, claims, damages, expenses (including reasonable legal costs and expenses), or liabilities, whatsoever suffered and howsoever incurred by us in consequence of your breach or non-observance of these terms.
TO THE MAXIMUM EXTENT PERMITTED BY LAW WE HEREBY EXCLUDE ALL CONDITIONS AND WARRANTIES NOT EXPRESSLY SET OUT HEREIN. EXCEPT AS SPECIFICALLY SET FORTH IN ELSEWHERE IN THIS AGREEMENT, WE MAKE OR GIVE NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, WITH RESPECT TO ANY GOODS OR SERVICES PROVIDED UNDER OR INCIDENTAL TO THIS AGREEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US, OUR RESELLERS, AGENTS, REPRESENTATIVES OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE EXPRESS WARRANTIES HEREBY GIVEN.
You expressly and irrevocably agree that our total aggregate liability to you for any proven losses, damages and claims in connection with the provision or use of Services or this Agreement, including liability for breach of contract, negligence, tort, or any other common law or statutory action, shall be limited to the charges paid to us by you in respect of the Services which are the subject of any such claim. You agree to defend, indemnify and keep indemnified and hold us harmless from any:
- Loss of business, contracts, profits or anticipated savings;
- Other indirect or consequential or economic loss whatsoever;
- Loss of data or inability to retrieve data resulting from delays, software incompatibility, hardware or software issues, outages, failed deliveries, and any service interruption not caused by us;
- Injury to person or property allegedly caused by any products sold or otherwise distributed in connection with us;
- Negligence, misconduct, or breach of this agreement by you;
- Incomplete, inadequate or otherwise problematic use of any Services by you;
- Omission or failure by you to obtain appropriate advice, including legal advice, in respect of any Services or this Agreement prior to making a purchase;
- Incomplete, inadequate or lack of knowledge and experience necessary for use of any Services;
- Allegation that your account infringes a third person's copyright, trademark, or intellectual property right, or misappropriates a third person's trade secrets due to the information you have provided us, and
- Damages including but not limited to indirect, special, incidental, consequential or exemplary damages allegedly arising out of, resulting from, incidental to, or in connection with this Agreement or Services.
You understand that should we be notified of pending legal action, we may seek written confirmation from you concerning your obligation to indemnify us under this Agreement in accordance with these terms, and you expressly and irrevocably agree that failure to provide such confirmation may be considered a further breach of this Agreement.
Where to do so is unlawful under any Act falling under the governing law of this Agreement, nothing contained in this Agreement excludes, restricts or modifies any condition, warranty or other obligation in relation to this Agreement and the Services and you. To the full extent permitted by law, where the benefit of a non-excludable condition, warranty or other obligation is conferred upon you pursuant to an Act falling under the governing law of this Agreement, our sole liability for breach of any such condition, warranty or other obligation, including any consequential loss which you may sustain or incur, shall be limited (except as otherwise specifically set forth herein) to either the supplying of the service/product again or payment of the cost of having the service/product supplied again.
You expressly and irrevocably agree that this clause survives the expiry and/or termination of Services or this Agreement.
Should any part of these terms be made invalid by relevant legislation, that wording shall be deemed to be omitted and the remainder of the terms shall remain in force.
The charges for our services are published on our web site. We maintain the ability to change them at will, however changes are not retrospective.
Charges for a service are those published at the time you request for the service. You agree to pay for all the services you request and/or use. Charges that you pay are non-refundable, except where we have expressly consented otherwise.
You agree that failure to pay or failure of payment being honoured will void your application and relieve us of any responsibility with regards to the provision of the services applied for.
You are solely responsible for the renewal of any held services with us. You acknowledge and agree that we may, at our discretion, choose to send notification of expiry but are not obliged to do so, but that it is your responsibility to ensure that your electronic contact address is valid, active and correct. You agree that we cannot be held responsible for any loss/suspension/termination of any service arising from a failure to renew your services.
You irrevocably agree and authorise that if any payment due from you to us is not received by the due date, that we may directly debit that payment using the credit card account details provided by you upon registration.
We are entitled to recover (on a full indemnity basis) any costs, fees and charges (including legal costs) incurred in recovering any amounts owed to us by you. Without limitation to the above, we may charge an administration fee for any dishonoured cheques.
You acknowledge that should we not receive payment for services we reserve the right to suspend Services immediately without notice. We may provide a 30 day grace period whereby we will hold your information and data on our servers. Should this period expire without payment, we reserve the right to purge all data pertaining to your account with us.
6 Payment Chargebacks
You irrevocably agree that:
- You cannot seek to reverse a payment (chargeback) in your favour.
- We may hold you to the transaction, resist the chargeback, and charge you reasonable costs for doing so.
- We hold the right to suspend and/or cancel your service and decline you from any further services until all applicable costs have been paid.
- We reserve the right to engage the services of a debt collection agency should the above costs not be paid, and
- You will be charged for collection costs in addition to applicable costs in the event that we exercise the right to engage he services of a debt collection agency should the above costs not be paid.
You irrevocably agree that we may provide notification or communication by:
- Emailing the notice or hyperlink to a webpage that contains the notice, to the most recent electronic contact address supplied to us
- Faxing to or calling the most recent number supplied to us
- Ordinary mail/hand delivery to the most recent postal address supplied to us
- Any other method permitted by law
You irrevocably agree that any notification or communication is deemed to have been received by you as follows:
- If it (or hyperlink to it) is emailed: one hour after it leaves our mail server
- If it is faxed: when issued successful delivery record from the machine
- If it is mailed: at 10AM on the second business day after posting it
- If it is hand delivered: at the time of delivery
In any other method: at the time by which it would have been delivered as per the normal course of the given method
9 Right to deny
In addition to any other options, we may, in our discretion, without notice, refuse to supply, cancel, suspend or transfer any service should we believe it is necessary to protect the integrity, stability and security of us, the Site, or our affiliates/agents; at the request of any law enforcement agency; pending any applicable dispute resolution process or in effort to avoid potential liability, civil or criminal, on our part.
10 Amendments to Agreement
We, in our sole and absolute discretion, may change or modify this Agreement, and any further agreements incorporated herein, at any time. Such amendments shall be effective immediately upon the posting of such amendments on this Site. Changes to this Agreement will become evident by the posting a "Last Revised" date at the bottom of this page. Further use of the Site and its Services will indicate acceptance of these revised conditions. If you do not agree to be bound by this Agreement as last revised, discontinue use of the Site and Service thereof.
A waiver by us of a provision or right under this agreement is binding on it only if it is given in writing and signed by our authorised officer. A waiver is effective only in the specific instance and for the specific purpose for which it was given. Failure by us to exercise or delay in exercising a right under this agreement does not prevent our exercise of the same right at a later date or operate as a waiver of our rights in the matter.
12 Further assurance
You must at our request promptly execute and deliver such further documents and do such further acts as are reasonably necessary to give full effect to your obligations under this agreement.
13 Reasonable Control
We are not responsible for any delay in performing or failure to perform any obligation to you as a result of any matter beyond our reasonable control.
14 Applicable law and entirety of Agreement
You expressly and irrevocably agree that:
- This Agreement is governed by the law of Western Australia, and embodies the entire understanding and agreement between the parties, and supersedes all prior agreements, understandings and representations;
- We may amend these terms at any time, and such amendments will become effective as soon as they are posted on our website, following which if you continue to use the services, you are deemed to have agreed to be bound by those amendments. It is your responsibility to review our website periodically to ascertain whether these terms have been changed;
- Except as specified in 10 and 14(b), no variations may be made to this Agreement unless it is in writing and signed by our authorised representative;
- In the event of any dispute(s) or claim(s) which arise against us, including those concerning, in connection with or arising from this agreement (or any part thereof), or Services supplied by us, then
- You will submit to binding arbitration on the following terms:
- The arbitration shall take place in Perth, Western Australia, and the dispute shall be handled by an arbitrator of our choosing;
- The arbitrator will reside in the state of Western Australia;
- You are responsible for all costs related to such arbitration;
- You will request us to make the necessary arrangements for a date and time for the directions hearing for the arbitration to be set within 60 days of the dispute arising;
- If the dispute cannot be handled in accordance with clause 14(d)I, or we have not made the necessary arrangements within 15 days of receiving the request you made under 14(d)Iv, you will submit to the exclusive jurisdiction of the courts of Perth, Western Australia to have the matter determined by a Judge or Magistrate
- You are responsible for ensuring we have received the requests specified in clauses 14(d)Iiii and 14(d)Iiv of this Agreement.
- If we have still not made the necessary arrangements within 15 days of receiving the request you made under 4.5(d)Iv, you will submit to the exclusive jurisdiction of the courts of Perth, Western Australia to have the matter determined by a Judge or Magistrate.
- If you fail to comply with your obligations under clause 4.5(d)I of this Agreement, and/or bring a claim outside of the jurisdiction specified in this Agreement, then you shall indemnify us on a full indemnity (solicitor-client) basis for any costs we incur.