These terms and conditions are the terms on which we provide the Service to you. They apply to us and to you. These terms supersede prior agreements.
These terms also apply to every user of the Service. It is a condition of your use of the Service that:
These terms and conditions are subject to change as time goes by.
We will give you notice of the change and you will then be obliged to comply with the new terms and conditions as amended or cease using the Service.
This agreement commences on the date you purchase a service or subsequent extentions of the original purchase via our website.
This agreement continues until either party terminates by 14 days notice in writing to the other party. On termination or expiry of this agreement for any reason:
If DivergenceHosting or its parent company or affiliates terminate the Service for any reason, then this agreement will terminate automatically. In the case we terminate this agreement due to failure by you or a User to comply with these terms and conditions, you will be not be entitled to refund for the remaining time left on the remaining agreement period.
In order to keep its servers up to date, DivergenceHosting will perform scheduled maintenance to servers from time to time. We reserve the right to suspend access to the server during the time required for the scheduled maintenance.
DivergenceHosting will attempt to perform all scheduled maintenance at off-peak time. If the maintenance period is expected to last for more than 30 minutes DivergenceHosting will post a notice regarding the maintenance to its announce mail list.
Unscheduled maintenance may need to be performed. During this time the server may be off-line. In this case a notice regarding the maintenance will be posted after it is done.
Except for intellectual property rights in the Client Data, DivergenceHosting will own all intellectual property rights created during the course of providing the Service.
Subject to this clause 3 and the Acceptable Use Policy, you and your Users may upload content that you wish to be part of your website, in the manner and form and at the times directed by DivergenceHosting from time to time.
You must ensure that all Client Data:
DivergenceHosting may remove any Client Data it considers unsuitable.
It is your responsibility to maintain local copies of your web content and information. DivergenceHosting performs weekly snapshots of all server data and daily incremental backup of all system and Client Data. However, we strongly recommend that all users keep their own recent copy of their sites for any unforeseen events. Backups are made for server restoration purposes only. In the event of equipment failure or data corruption, you should be prepared to re-upload your data to your account.
From time to time, DivergenceHosting may provide updates to the website software used to run your website. It is your responsibility to update your website to the new version of the software. If you do not update to the new version of the software, then:
DivergenceHosting may provide some domain names to be used as sub-domains. These domain names (and all sub-domains of these domains) will remain the property of DivergenceHosting .
The domain names (and all sub-domains of those domains) are provided at DivergenceHosting’s discretion. We make no guarantee that:
If any dispute arises in relation to a domain name provided by DivergenceHosting, then DivergenceHosting may withhold, suspend or cancel the domain name.
We are not liable to you or any other person for any cost, loss or liability (including loss of profit or other consequential damage) arising from DivergenceHosting’s supply or failure or delay in supplying these sub-domains.
At the time that you sign up for the Services, you must select a website hosting plan from those offered in your quotation. Each website hosting plan comes at a different cost, and offers a different level of service. The hosting plan you select will determine the:
that is included in the Services.
You must not resell the Services without our express permission. Reselling of the Services without our express permission will bring you into breach of this agreement.
Access to your account using the Service includes access to:
The Service does not include access to DivergenceHosting’s hosting account.
You can obtain access to your account through the username and password that we assign to you. It is your responsibility to maintain the confidentiality of your username, password and other account information.
The Fees include the provision of normal web hosting and server maintenance services.
At your request, we may carry out Additional Services for you, for example:
You must pay for all Additional Services that you request at our then current Professional Rates.
We may monitor your account and the conduct of your account (but we have no responsibility to do so) to determine whether you and all Users are complying with this agreement or the law.
We reserve the right to suspend your account, or terminate your account with immediate effect without notice, if:
If we believe that your use of the Service may be in breach of any law, then we may notify the relevant authorities, and provide them with relevant information as appears appropriate in the circumstances.
You agree that you will have no claim against DivergenceHosting in respect of any action reasonably taken by us or DivergenceHosting under this clause 4, and you indemnify DivergenceHosting against any claim by a User arising out of the same.
At the commencement of this agreement, the following billing method is implemented:
You must pay all Service charges, minimum charges and other amounts incurred by you or any User or incurred as a result of any use of your password (whether authorised or not) in accordance with the billing option you selected.
You are liable to pay the following fees:
collectively, the Fees.
The hosting fees are charged monlthly ot annually one period in advance. The Fees are exclusive of any registration or delegation charges imposed by domain name authorities or your ISP.
The fees for Excess Traffic Usage and Additional Services are charged at the end of the month for the previous month, unless other arrangements are made in writing with DivergenceHosting.
At the time of purchase, the client will pay the setup fee (if applicable) and prepay a recurring amount for the selected hosting period. Charges for Excess Traffic Usage (web, ftp and mail) and Additional Services will be billed retrospectively, for the previous month.
Our current Fees are set out in your quotation. They will apply to you for the duration of the billing period.
We reserve the right to change our Fees. If we change our Fees, then we will provide you with notice of the changed Fees through our website, or email you. The new fees will apply from the date that your pre-paid billing period expires.
Your invoice will be sent to you at the time the payment is due. You must pay as indicated on the invoice sent to you from DivergenceHosting
We reserve the right to immediately terminate the Service if payment is not received timely.
DivergenceHosting will not be responsible for data integrity on accounts suspended for non-payment.
Unless we expressly state otherwise, all fees and charges do not include GST.
If at any time we decide that GST is payable on supplies made by us, or if the Australian Taxation Office assesses GST on any such supplies, then the necessary amount will be added to, and form part of, the fees or other charges (as the case may be) at the GST rate prevailing at the relevant time. We reserve the right to recover from you at any time such an amount on account of GST on supplies made by us to you under this agreement.
You acknowledge that, due to the inherent risks of the internet, and of computer-based networks and systems:
You are solely responsible for dealing with persons who access the Client Data, and must not refer complaints or inquiries in relation to such data to us.
You must, and you must ensure that any User does, comply with the Acceptable Use Policy at all times in relation to the Service.
DivergenceHosting reserves the right to immediately discontinue service to any subscriber it deems, in its sole discretion, violates any condition of service including the Acceptable Use Policy, and these terms and conditions. We are not liable for any Losses that you suffer as a result of any such discontinuation.
The Client agrees to indemnify and hold harmless DivergenceHosting and the employees and agents of DivergenceHosting (together, “Indemnified Parties”) against any losses, claims, damages, liabilities, penalties, actions, proceedings or judgments (collectively, “Losses”) to which an Indemnified Party may become subject and which Losses arise out of, or relate to this Agreement or Subscriber’s use of the Services and Products, and will reimburse each Indemnified Party for all legal and other expenses, including reasonable attorneys’ fees incurred by such Indemnified Party in connection with investigating, defending or settling any Loss whether or not in connection with pending or threatened litigation in which such Indemnified Party is a party.
This clause 9 does not apply:
This agreement and the transactions contemplated by this agreement are governed by the law of Victoria.
This is DivergenceHosting’s Web Hosting Acceptable Use Policy. It applies to all Customers and all Users.
This Acceptable Use Policy may change if:
If the Acceptable Use Policy changes:
Customer:the person or company which has entered into an agreement with DivergenceHosting for supply of Services whether via our website or otherwise.
Service: hosting and domain registration services offered by DivergenceHosting that you use, and that is subject to the limitations set out in clauses 2, 3, 4, 6 and 11.
Users: users of the Service by the Customer.
DivergenceHosting are not responsible for the content of traffic:
You are responsible for use of your account. If you permit others to use our service, you are responsible for making users of the service aware of this policy and obtaining compliance of your users with this policy.
You may use the service for the purpose of web site hosting so long as such use is legal and does not constitute an unacceptable use.
DivergenceHosting does allow ADULT material of any kind. Adult material includes nudity, porn, etc. Links to other web sites containing adult material are permitted. DivergenceHosting reserves full right to suspend any account that does not comply with this guideline.
You may not use the Service for any purpose that violates local, State, Federal or international laws.
You may not use the Service for spamming (sending unsolicited advertising to those with which the customer has no existing business relationship, posting off-topic advertising in newsgroups); spoofing (using a return email address which is not the valid reply address of the sender or sending an email message which does not contain enough information to enable the recipient to identify the party who is really sending the message), generating extremely high volumes of outgoing mail than a normal user, and subscribing someone else to an electronic mailing list without that person’s permission.
DivergenceHosting’s services may not be used as a conduit of spam, or for transit of spam, or for activities relating to the propagation of spam or benefiting thereof. DivergenceHosting remains the final arbitrator of what is or is not considered spam on DivergenceHosting’s network.
Distribution of mass emailing programs is also prohibited. All recipients on a mailing list must have personally subscribed. Mailing lists may not be used to distribute unsolicited email.
You may not abuse our server resources. Running programs in the background on our server without our prior written authorization, or running chat rooms, Internet Relay Chat, IRC bots, and the like are not acceptable uses of DivergenceHosting’s servers. In addition any domain that exceeds reasonable bandwidth usage can be terminated without prior notice.
You may not use DivergenceHosting’s servers for development purposes. Your web site must be fully developed and tested before it can be moved to our servers. If we find excessive number of errors in the web log files of your account, we reserve the right to suspend your account without prior notice until your web site is debugged.
You may not use your DivergenceHosting hosting account as a download repository. If you plan to offer files, other than web page files, for downloading, including music and video files, you must negotiate the terms with DivergenceHosting. We reserve the right to suspend such accounts without prior notice.
You may not use your account for hacking/cracking. We reserve the right to report illegal activities to any and all regulatory, administrative, and/or governmental authorities for prosecution.
The Customer is responsible for all activity originating from the account unless proven to be a victim of outside hacking or address forgery. The Customer is responsible for securing their username/password.
We may monitor your account but will respect your privacy. We may monitor the conduct of your account to determine whether this policy is being followed.
We may suspend or terminate your account and/or notify the authorities. If we believe that your use of the service may break the law or that you have not complied with this policy we may warn you by email (but we are not obliged to do so); suspend your access to the service; terminate your account without notice; and/or notify and provide relevant information to the authorities, as appears appropriate in the circumstances.
You agree that you will have no claim against DivergenceHosting in respect of any action reasonably taken by DivergenceHosting in its implementation of the terms of this Acceptable Use Policy, and you indemnify DivergenceHosting against any claim by a User arising out of the same.
Any notice given under this agreement must be in writing, addressed to the other party’s contact persons as notified by the other party.
This agreement does not create a relationship of employment, agency or partnership between the parties.
We may subcontract our obligations under this agreement.
The failure of a party at any time to insist on performance by the other party of an obligation under this agreement is not a waiver of any of its rights.
If part or all of any of the provisions of this agreement is illegal or unenforceable, it will be severed from this agreement, and will not affect the continued operation of the remaining provisions.
Acceptable Use Policy means DivergenceHosting’s acceptable use policy set out in clause 11, as amended from time to time in accordance with clause 11.
Additional Services means web-based services that are not included in our normal web hosting and server maintenance services.
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of the Fair Trading Act 2010 (WA).
Client Data means all information, files or data uploaded by the Customer via the Service to DivergenceHosting’s servers.
Consumer has the same meaning as in section 3 of the Australian Consumer Law.
Consumer Goods means “goods of a kind ordinarily acquired for personal, household or domestic use or consumption” as that expression is used in section 3 of the Australian Consumer Law.
Consumer Guarantee means a consumer guarantee applicable to this agreement under the Australian Consumer Law, (including any ‘express warranty’ within the meaning of section 2(1) of the Australian Consumer Law).
Consumer Services means “services of a kind ordinarily acquired for personal, household or domestic use or consumption” as that expression is used in section 3 of the Australian Consumer Law.
Customer, you or your means the person or organisation which has entered into an agreement for supply of Services whether via our website or otherwise.
DivergenceHosting, we or us means DivergenceHosting, its contractors, employees or parent company Digital Divergence.
Excess Traffic Usage means the traffic usage (if any) in excess of the monthly traffic limit included in your Hosting Plan.
Fees is defined in clause 5.
Fair or Reasonable means ‘fair or reasonable’ for the purposes of section 64A of the Australian Consumer Law.
Hosting Plan means the website hosting plan, described in your quotation that you select in accordance with clause 4.
Laws means all laws including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by-laws, rules, regulatory principles and requirements, mandatory codes of conduct, writs, orders, injunctions, judgments, determinations and statutory licence conditions.
Professional Rates means our fees for performing web-based services, as set out in your quotation, or as we otherwise advise you at the time that you request Additional Services.
Service means website hosting and domain registration services offered by DivergenceHosting that you use, and that are:
Service Provider means the organisation that provides website hosting and domain registration services that you use via the Service.
That organisation may be Amazon Web Services, or another organisation nominated by us.
Title Guarantee means a guarantee pursuant to any of sections 51, 52 or 53 of the Australian Consumer Law.
User: a person who uses the Service with the Customer’s knowledge, authorisation or permission.