1. Hostingbay.com.au (HOSTINGBAY) is a division of Web Genius Pty Ltd, a registered company incorporated in Melbourne, Victoria, Australia.

All services provided by HOSTINGBAY may be used for lawful purposes only. Transmission or storage of any information, data or material in violation of any law or administrative regulation is prohibited, including without limitation copyrighted material, material legally judged to be threatening or obscene, or material protected by trade secret and statute.

INDEMNIFICATION AND PROHIBITED ACTIVITIES:

The subscriber agrees to indemnify and hold harmless HOSTINGBAY from any claims resulting from the use of the service that damages the subscriber or any other parties. The following is strictly prohibited, including links thereto, on HOSTINGBAY server, and HOSTINGBAY shall be the sole arbiter as to what constitutes a violation of this provision:

Pornography and sex-related merchandising; Excessive profanity; Violence, racial intolerance, hate, or advocate against any individual, group, or organization; Hacking/cracking content; Illicit drugs and drug paraphernalia; Any other content that promotes illegal activity or infringes on the legal rights of others. HOSTINGBAY reserves the right to remove such illegal material from its server immediately.

Accounts that send spam emails have a significant detrimental effect on our servers and our business and we can not tolerate spam accounts.

Spamming, or the sending of unsolicited email, and/or using an email address or domain name in a Spam that is maintained on a HOSTINGBAY server is strictly prohibited. Subscriber agrees to pay actual damages or liquidated damages of five hundred dollars ($500) for each unsolicited e-mail transmitted, whichever is greater.

Allowing your account to contain a website or other code that allows it to send out Spam emails is prohibited and an account that does this can be suspended and/or terminated immediately.

If any email address within your account sends spam emails we will issue you with a warning notice. If your account is used a second time for sending spam we may (at our discretion) immediately terminate your account without further notice and without refund.

2. PAYMENT AND BILLING: Payment is due immediately after date of invoice. All set-up fees are non-refundable once set-up has been completed. The subscriber is responsible for providing up-to-date payment information. HOSTINGBAY will not be held responsible should the subscriber’s payment information become out-of-date and HOSTINGBAY terminate the service for non-payment.

2.1. CREDIT CARD AUTHORIZATION: If payment is by credit card, the subscriber authorizes HOSTINGBAY to charge the credit card for the subscribed HOSTINGBAY services that may accrue from month to month, or for any past-due balances, in order to bring the account to current status. Credit card payments will be billed and charged automatically, and HOSTINGBAY may charge the amount due to the provided card at any time.

2.2. PAYMENT DEFAULTS: Accounts are in default if payment is not received within 14 days after date of invoice. If a subscriber’s cheque is returned by the bank as unredeemable, the subscriber will be deemed to be in default, and will be liable for a “returned cheque” charge. Accounts unpaid 14 days after date of invoice may have their service interrupted. Such interruption does not relieve the subscriber from the obligation to pay the monthly charge and HOSTINGBAY will therefore not be liable. Only a written request to terminate your service relieves you of your obligation to pay the monthly account charge. Accounts in default are subject to a late payment charge and an interest charge of 5% per month on the outstanding balance. If the subscriber’s law does not allow an interest rate of 5% per month, the maximum allowable rate for the subscriber’s state will be charged. If the subscriber defaults, the subscriber agrees to pay HOSTINGBAY its reasonable expenses, including attorney and collection agency fees, incurred in enforcing its rights under these Terms and Conditions.

2.3. ACCOUNT DATA PRESERVATION: All files, information and mail under the account will be preserved for 30 days from the date the payment is due. If the payment is not received after 30 days, all files, information and mail under the account will be deleted. If the subscriber wishes to use the service again, the subscriber must re-apply as a new subscriber where set-up fees and other new subscriber charges may apply.

3. TERMINATION OF ACCOUNT: The subscriber agrees that HOSTINGBAY has the right to delete all data, files or other information that is stored in the subscriber’s account if the subscriber’s account with the HOSTINGBAY is terminated, for any reason, by either HOSTINGBAY or the subscriber.

4. USER: Subscriber main account(s) cannot be transfer to or use by anyone other than the subscriber. Other services such as FTP and email accounts may be used by person(s) or group(s) that had been given right of use by the subscriber.

5. SUSPENSION: HOSTINGBAY shall have the right to suspend service to the subscriber at any time, and for any reason, without notice. If such a suspension is to last for more than 30 days, the subscriber will be notified as to the reason.

6. CANCELLATION: You may cancel your account anytime within the first 30 days of service without incurring any charges where free service is offered.

Any cancellation after the free period is none refundable and billing will cease at the end of the current billing cycle for none committing members. For members who are on the commitment terms hosting plan will have to pay the full amount of the terms, and or pay the monthly amount up to the end of the terms.

There is no refund on website design, domain name registration/renewal, SSL Certificates and other paid services that are not specified in this terms and conditions.

You may cancel your account anytime before your next billing date and not incur any charges for the next billing period. You may request cancellation by using the link in the member’s area or by sending your cancellation request to billing@hostingbay.com.au. Login ID and domain name must be included in the cancellation request. Cancellation will take effect only when the receipt of the cancellation request is confirmed by us.

7. AGE: The subscriber certifies that he or she is at least 18 years of age.

8. SERVICES: If the subscriber requests that HOSTINGBAY provide services not delineated herein at any time during the 30-day period and thereafter, the subscriber agrees to pay HOSTINGBAY’s price for such services in effect at the time such service was rendered.

9. CONTROL: HOSTINGBAY exercises no control whatsoever over the content of the information passing through HOSTINGBAY.

10. WARRANTY DISCLAIMERS: HOSTINGBAY makes no warranties of any kind, whether expressed or implied, for the service it is providing. HOSTINGBAY also disclaims any warranty of merchantability or fitness for a particular purpose. HOSTINGBAY will not be responsible for any damage suffered. This includes loss of data resulting from delays, non deliveries, misdeliveries, or service interruptions caused by HOSTINGBAY’s negligence or the subscriber’s errors or omissions. Use of any information obtained via HOSTINGBAY is at your own risk. HOSTINGBAY specifically denies any responsibility for the accuracy or quality of information obtained through its services.

11. LIMITATION OF LIABILITY: ANY LIABILITY OF THE COMPANY, INCLUDING WITHOUT LIMITATION ANY LIABILITY FOR DAMAGES CAUSED OR ALLEGEDLY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OF OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORDS, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION, SHALL BE STRICTLY LIMITED TO THE AMOUNT PAID BY OR ON BEHALF OF THE SUBSCRIBER TO THE COMPANY FOR THE CURRENT MONTH.

12. SEVERABILITY: Should any provision of this agreement be held to be illegal, invalid, or unenforceable by a court law, the legality, validity and enforceability of the remaining provisions of this agreement shall remain unaffected thereby unless otherwise stated.

13. TERMS: These Terms and Conditions supersede all previous representations, understandings or agreements and shall prevail notwithstanding any variance with terms and conditions of any order submitted. Use of HOSTINGBAY service constitutes acceptance of these Terms and Conditions.

14. CUSTOM APPLICATIONS AND PROGRAMS: We may allow applications and programs to run continually in the background. These are considered on a case-by-case basis and an extra charge will be incurred based on system resources used and operational maintenance needed.

15. TECHNICAL SUPPORT: HOSTINGBAY does not provide technical support on non-server issues. We WILL NOT respond to emails pertaining to such requests. This includes but is not limited to, all 3rd party software, WordPress, Joomla, Drupal, Moodle, DotNetNuke, any other CMS or web platform, Java, CGI, scripts, Real Audio/Video, applications utilized in developing your web site, including HTML, MySQL, Telnet, FTP, Email Clients.

16. SERVER ABUSE: Any attempt to undermine or cause harm to a server, or customer, of HOSTINGBAY is strictly prohibited.

17. ACCOUNT ACTIVATION: By activating your account with HOSTINGBAY, you agree to the policies and disclaimer. Upon requesting account activation, you are required to accept these Terms, Conditions and Disclaimer and a copy of your acceptance is forwarded along with your activation request to be maintained within your account information.

NOTE: If you sign up for an account and do not follow our terms. No refunds will be given. Where practical we will however let you know by email or phone before any action is taken so you will have a chance to solve the matter.

18. NOTICES: HOSTINGBAY retains the right to change any or all of the above Term, Conditions, and Disclaimer without notification.

19. PRICING, CHARGES AND ACTIVATION: All accounts are set up automatically; a confirmation email should arrive within 15 minutes to the email address specified in your online signup form. Subscriber’s credit card is charged on the same day when the account is open. Payment is due each anniversary month or period following the date the account was established.

Hostingbay.com.au may run a transaction at least 5 days in advance to anticipate a declined credit card. This will give the customer at least 4 days from the due date to run the transaction. If the transaction is run at least 3 times, and the client fails to update the credit card, the account will be suspended and or terminated without further notice. In some cases if a problem arises with the account, the user will be notified via e-mail.

Hostingbay.com.au reserves the right to change prices at any time. Credit card orders that are on a ‘monthly’ or ‘quarterly’ or ‘yearly’ basis will be charged automatically to the card number on file. If for any reason the card does not clear with the bank on three attempts, the account is subject to suspension. Any account not brought current within 7 days of e-mail notice or exceeding this time frame in any way is also subjected to a suspension. If a bank ‘charge back’ is processed against our account, the account in question will be terminated immediately.

20. PRODUCTS AND SERVICES: HOSTINGBAY offers products and services in a form of hosting packages, IT services, website design and SSL Certificates. The former two services (IT services and website design) are charged on a quotation basis and may vary from job to job. Our hosting packages are defined as be:

20.1. MONTH-BY-MONTH: The hosting plans defined under this commitment term mean that you will be billed monthly after any initial free period. You do not have a minimum commitment term and you may cancel any time. The un-used portion up to the next billing cycle is non-refundable.

20.2. 12-MONTHS COMMITMENT: Your minimum commitment is 12 months from the end of any initial trial period. Your minimum cost is calculated by multiplying the Monthly rate by 12 unless stated otherwise. The minimum cost excludes any services or extra support (beyond those outlined in the Terms and Conditions) that may be billable during the course of the commitment term.

20.3. 24-MONTHS COMMITMENT: Your minimum commitment is 24 months from the end of any initial trial period. Your minimum cost is calculated by multiplying the Monthly rate by 24 unless stated otherwise. The minimum cost excludes any services or extra support (beyond those outlined in the Terms and Conditions) that may be billable during the course of the commitment term.

20.4. 36-MONTHS COMMITMENT: Your minimum commitment is 36 months from the end of any initial trial period. Your minimum cost is calculated by multiplying the Monthly rate by 36 unless stated otherwise. The minimum cost excludes any services or extra support (beyond those outlined in the Terms and Conditions) that may be billable during the course of the commitment term.

20.5. DISCOUNT POLICY: Where discount is based on the commitment time the longer the commitment term the lower the price. Pricing is based on a monthly charge. The 12-month commitment term is 15% less than month-by-month term. The 24-month commitment term is 25% less than month-by-month terms. The 36-month commitment term is 35% less than month-by-month term. Where discount is based on a percentage, that percentage discount shall apply for the first invoice only.

20.6. ADVANCED PAYMENT BONUS: From time to time we may offer discounts for prepayments, in those circumstances if new customers pay one year or the full term in advanced, a bonus discount may be deducted from the yearly total or the full term total respectively.

21. TRAFFIC AND STORAGE POLICY: Hostingbay.com.au allocates a set amount of storage and bandwidth per customer. If a customer exceeds or is about to exceed the allocated amount of storage or traffic, Hostingbay.com.au will send a courtesy notice to customer with further options and pricing.

22. HIGH RESOURCE USAGE POLICY: Any account that is deemed as impairing the performance of our servers either by high disk utilization, high bandwidth usage, or high CPU usage will be entered into our High Resource Usage (HRU) program. High Resource accounts are accounts that use an excessive amount of system resources such as bandwidth, storage or CPU utilization. It is at Hostingbay.com.au’s sole discretion to decide which accounts are “High Resource” accounts. Accounts that have been deemed as a “High Resource” account will be subject to the following:

Hostingbay.com.au may charge your credit card on file $250.00 as a security deposit per occurrence of HRU. If the account in question has been deemed fixed within 7 days, then we will issue a refund to the credit card the total amount of the security deposit otherwise we will use that deposit to fix the issues.

If the issues are still not fixed within 14 days, HOSTINGBAY will charge $300 per month on top of the subscriber’s current monthly fee.

“What does Hostingbay.com.au consider “CGI ABUSE”?

Any site whose CGI programs are using an excessive amount of system resources. An excessive amount is defined as any amount that results in substantial degradation of server performance. Hostingbay.com.au is the sole determinant of what constitutes degraded server performance.

23. REFUSAL OF SERVICE: We reserve the right to refuse, cancel, or suspend service at our sole discretion.

24. SURVIVAL OF CLAIMS. Any claims arising out of or related to this Agreement must be brought no later than one year after it has accrued.

25. RESELLER ACCOUNT: Nothing in this Agreement or in the course of dealing between HOSTINGBAY and subscriber shall be deemed to create a partnership, joint venture, association, employment relationship or any other relationship other than that of supplier and customer.

26. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of Melbourne, Victoria, Australia, without regard to choice of law provisions that would cause the application of the law of another jurisdiction.

27. HEADINGS. The section and subsection headings have been used in this Agreement as a matter of convenience only and shall not be used in the interpretation of any provision of this Agreement.

28. NON-WAIVER, WAIVER AND AMENDMENT. Failure by either HOSTINGBAY or subscriber to enforce any of the provisions of this Agreement or any rights with respect hereto or the failure to exercise any option provided hereunder shall in no way be considered to be waiver of such provisions, rights or options, or to in any way affect the validity of this Agreement. No waiver of any rights under this Agreement, no modification or amendment of this Agreement shall be effective or enforceable unless in writing and signed by both parties.

29. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of the parties and supersedes all oral negotiations and prior writings with respect thereto. When used in this Agreement, the terms “hereof”, “herein” and “hereunder” refer to this Agreement in its entirety, including any attachments to this Agreement and not to any particular provisions of this Agreement, unless otherwise indicated.

30. ACCEPTANCE: USE OF HOSTINGBAY SERVICES AND PRODUCTS CONSTITUTES ACCEPTANCE OF THESE TERMS AND CONDITIONS.