These are the Terms and Conditions of service from Hidden Spark for the supply of its Web Hosting Service and/or Domain Registration (“the service”). These terms and conditions apply to you (“Client”) as a user of the service. It is intended to ensure that you know your rights and obligations when using the service.
Please read these terms and conditions carefully. It is a condition of your use of the service that you comply with these terms and conditions.
From time to time, we may make amendments to the terms and conditions. Clients may not be notified of changes.
By placing an order with Hidden Spark, you confirm that you are in agreement with and bound by the terms and conditions below.
You, Your, The Client: The company or individual requesting the services of Hidden Spark.
We, Hidden Spark: Primary web developer/site owner & employees or affiliates.
Hidden Spark will carry out work only where an agreement is provided either verbally, by email, telephone, mail or fax. An ‘order’ is deemed to be a written or verbal contract between Hidden Spark and the client; this includes telephone, email, and online agreements.
All pricing is subject to change. Hidden Spark will provide 30 days notice of any pricing change.
3. Payment Terms
i. Payments are non-refundable.
ii. Payment of invoices is required no later than 14 days from the date of the invoice unless by prior arrangement with Hidden Spark.
iii. If accounts are not settled or Hidden Spark has not been contacted regarding the delay, access to the related website may be denied and web pages removed.
iv. Any additional costs incurred as a result of chasing late debts, including admin, emails, phone calls or faxes or third party charges will be added to the account in question.
4. Registering a Domain Name
i. We do not warrant or guarantee that the domain name applied for will be registered in your name or is capable of being registered by you. Accordingly, you should take no action in respect of your requested domain name(s) until you have been notified that your requested domain name has been registered.
ii. 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 that you 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.
iii. We accept no responsibility in respect of the use of a domain name by you. Any dispute between you and any other individual or organization regarding a domain name must be resolved between the parties concerned and we will take no part in any such dispute. We reserve the right, on our becoming aware of such a dispute, at our sole discretion and without giving any reason, to either suspend or cancel the domain name, and/or to make appropriate representations to the relevant naming authority.
5. Renewal of domain name registration
i. We are not obliged to renew your domain name if you do not confirm to us that the domain name should be renewed. In such circumstances we are not liable for any loss or damage resulting from non-renewal of your domain name. We are not obliged to renew your domain name where you have unpaid invoices or if you are in breach of any terms of this agreement.
ii. Our primary method of communication for domain renewal purposes is via email. We will not be held responsible for the non-renewal of your domain name if your email contact details are not kept up to date.
iii. If you close your account with us but do not transfer your domain name to another registrar, you agree that we may contact you after account closure to remind you of domain name renewals.
6. Passwords and content
i. You will keep any passwords or log-in details used in connection with the Service secure and you are totally responsible for when and how your account with us is used and the actions of any people you give your password and log-in details to.
ii. You are solely responsible for your data and any content you use or store in connection with your Service.
iii. You must hold, and continue to hold, all intellectual property rights in your data and contents (including, without limitation, copyright and trade mark rights), or be licensed to do so. The terms under which you hold or license your data and content must permit us to carry out our obligations to you in providing the Service.
iv. You grant us a licence to use and reproduce all your data and content in order to fulfil our obligations under this agreement.
iv. You must ensure that you comply with our Acceptable Use Policy terms in relation to any data or content you use or store in connection with your Service.
7. Our Warranties and Liabilities
i. We accept liability for the supply of the Services to the extent provided in this agreement.
ii. We do not warrant that the Services:
(a) provided under this agreement will be uninterrupted or error free;
(b) will meet your requirements, other than as expressly set out in this agreement;
(c) will be free from external intruders (hackers), virus or worm attack, denial of service attack, or other persons having unauthorised access to the services or systems of ours; or
(d) will produce any particular results, data, sales or other return.
(a) we exclude all liability for indirect, incidental, special and consequential loss or damage of any kind, loss or corruption of data, loss of use, 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 and/or its subject matter;
(b) the Services are provided on an ‘as is’ and ‘as available’ basis;
(c) we make or give no express or implied warranties 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;
(d) 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, and you may not rely on any such information or advice;
(e) our total aggregate liability to you for any claim in contract, tort, negligence or otherwise arising out of or in connection with the provision of the Services will be limited to the charges paid by you in the 12 months preceding the claim in respect of the Services which are the subject of any such claim. Any claim must be notified to us within one year of it arising.
(f) In the event that this agreement constitutes a supply of goods or services to a consumer as defined in the Competition and Consumer Act 2010 (Cth) nothing contained in this agreement excludes, restricts or modifies any remedies or guarantees where to do so is unlawful. To the full extent permitted by law, where the benefit of any such remedy or guarantee is conferred upon you pursuant to the Competition and Consumer Act 2010 (Cth) our sole liability for breach of any such remedy or guarantee shall be limited to the remedies available under that Act.
iv. We specifically exclude any warranty as to the accuracy or quality of information received by any person via your server and in no event will we be liable for any loss or damage to any data stored on the server. You are responsible for maintaining insurance cover in respect of any loss or damage to your data stored on the Server.
8. Suspension and Termination of the Service
i. We may suspend or terminate your account if:
(a) you breach this agreement and fail to rectify any remediable breach within 21 days of us notifying you to do so;
(b) you become insolvent;
(c) you are declared bankrupt; or
(d) we are ordered to do so by a court or pursuant to an arbitration award.
ii. In addition to any other rights we may have under this agreement, you agree that we may, without notice to you and without any liability to us, amend, alter or take down your data or content if we:
(a) receive an order from a court or other competent body requiring us to do so;
(b) are directed to do so by the Australian Communications and Media Authority, any other regulatory body or authority or industry association;
(c) consider in our sole discretion that you are breaching this agreement including without limitation, by infringing third party intellectual property rights, or because your data or content is defamatory, illegal, obscene or breaches a person’s privacy.
iii. From time to time we may have to suspend or disconnect the service without notice or deny your access to the Service during any technical failure, modification or maintenance involved in the Service. We will use reasonable endeavours to procure the resumption of the services as soon as reasonably practicable. In these circumstances you will remain liable for all charges due throughout the period of suspension.
iv. If your account has been suspended or terminated due to your breach, reactivation of your account will be at our discretion. If we agree to reactivate your account, we will require payment in full of all outstanding amounts and payment of a reactivation fee.
v. You may terminate your account or any individual Service with us for any reason at any time by doing so via email. Unless you are terminating your account due to a breach of this agreement by us, refunds for monies paid in advance are provided as follows:
(a) For domain names, no refunds are available.
(b) For one-time Services such as digital certificates no refunds are available.
(c) No refunds are available for Services with 30 days or less of time to run. For Services with more than 30 days of time to run the refund of unused credit will be a whole month pro-rata of the time to run less an early cancellation fee set by us and notified on our website.
vi. If we wish to terminate your Service for reasons other than a breach of these conditions, we can do so by giving you 30 days written notice. In this circumstance, we will refund any remaining unused credit on your account.
vii. If your account is closed for whatever reason you must pay all outstanding charges immediately.
viii. We are under no obligation to provide you with a copy of your data or content if we have suspended or terminated your access to the Service for your breach. If we provide you with a copy of your data or content in such circumstances, we are entitled to charge a fee for doing so. If we terminate your account or any Service in such circumstances we may also at our discretion destroy your data or content. If your data or content is destroyed it may not be recoverable.
ix. You will conduct such tests and computer virus scanning as may be necessary to ensure that data uploaded by you onto or downloaded by you from the server does not contain any computer virus and will not in any way, corrupt the data or systems of any person.
x. You are solely responsible for dealing with persons who access your data and you will not refer complaints or inquiries in relation to such access to us.
xi. You agree that if, in our sole discretion, you are using the Services in a way which is not legitimate, is not in compliance with this agreement or any law that we may suspend, disable, limit or terminate the Services or deny you access to the Service with 7 days notice, including taking down any of your data or content.
9. Archiving and Backup of Your Data
i. You are solely responsible for the back-up of your data (including email files). You must maintain a recent copy of your data at your premises at all times. We will not be liable for incomplete, out-of-date, corrupt or otherwise deficient data recovered from our backups.
ii. We will archive your data on a regular basis for the purposes of disaster recovery. In the event of equipment failure or data corruption, we will restore from the last known good archive. In the event of corruption of all of our archives, or in the event that an old archive is used to restore data, you should be prepared to upload your data to your web site.
iii. We provide a backup tool within your cPanel which will allow you to create offsite backups of your website, database and email content. We will store this data for a maximum of 30 days from the creation date and will not be liable for backups not obtained prior to deletion.
10. The use of Spam and Virus Filters
We can use spam and virus filters and, to the maximum extent permitted by law, this may require us to use third party equipment or services to monitor and filter email traffic between our equipment and the Internet. To the maximum extent permitted by law, we will not be liable for any loss or damage resulting from the use of spam or virus filters
11. Ownership of Equipment
i. Unless otherwise agreed, you obtain no rights to the hardware and other infrastructure and facilities used by us to deliver the Services.
ii. If we supply you with any equipment as part of our provision of the Services to you, unless the law otherwise requires, we do so on the following terms:
(a) you acknowledge that we are only acting as a reseller of the equipment which was manufactured by a third party;
(b) you will not resell, export or otherwise transfer the equipment;
(c) we are not obliged to keep the equipment current, up-to-date, in good working order or to alter or modify the equipment in any way;
(d) any malfunction or manufacturer’s defect in the equipment must be remedied by you directly with the manufacturer and we are not liable for any such malfunction or defect or any consequences arising from them.
12. Intellectual Property
All right, title and interest in any technology, techniques, software or trade mark that is used in, or provided by us, as part of the Services is owned by us or will vest in us on creation, or is licensed to us. You may use the technologies, techniques, software and trademarks as permitted by this agreement. We otherwise reserve all rights in relation to them.
If any clause of these terms and conditions is held to be invalid or unenforceable in whole or in part, the invalid or unenforceable wording may be severed from this agreement and the remaining terms of this agreement continue in force.
i. You must not assign or otherwise transfer your rights or obligations under this agreement without our prior written consent, which we will not unreasonably withhold. Any request to assign or transfer must:
(a) be in the form we require, and include details of the assignee or transferee; and
(b) be accompanied by the transfer fee specified in the form.
ii. We may assign or otherwise novate or transfer our rights and obligations under this agreement to:
(a) a related body corporate, including without limitation as part of a change in how we provide the Services or as part of a partial or full restructuring of our business; and
(b) another person as part of the sale, or restructuring, of all or part of our business, and you agree that, if we do this, we may transfer all necessary information (including, without limitation, personal information and credit card details) to the related body corporate or other person, and they may use that information, in order for them to be able to continue providing the Services to you. If you do not agree to the assignment, novation or transfer, you may terminate this agreement and we will refund any remaining unused credit on your account.
15. Changes to Terms
16. Entire Agreement
These terms and conditions constitute the entire agreement between us and you. It supersedes all prior agreements, understandings and representations whether oral or written.
17. Governing Law
These terms and conditions are governed by the laws in force in New South Wales. Both parties agree to submit to the non-exclusive jurisdiction of the Courts of that State.
18. Notifications & Communications
All notifications under this agreement will be by email to your nominated internet address and any other email addresses that you specifically nominate for each individual account. By entering into this agreement you agree to receive other email communications of a marketing and promotional nature unless you opt out of our mailing list. 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.