This web hosting agreement establishes the terms and conditions between Mindwire Pty Ltd (herein known as Mindwire) and you (herein known as the CLIENT) for the provision of web site hosting and/or domain registration and hosting.
1. CLIENT RESPONSIBILITIES.
CLIENT will use the services of Mindwire in accordance with all applicable local, state and federal regulations and laws. The CLIENT will agree on behalf of itself and its employees.
Except as otherwise stated, CLIENT and its users will maintain all passwords and login information as strictly confidential and the secure storage of those passwords and login information. For security purposes, MINDWIRE recommends that the CLIENT regularly changes all account passwords. At no time should the CLIENT respond to an online request for any password.
2. ALTERATION / REVISION OF AGREEMENT
Mindwire may revise the terms of this agreement at any time and such revision shall be effective ten (10) days after notice of the proposed revision is provided to the CLIENT. If any revision is unacceptable to the CLIENT they will be able to terminate this hosting agreement and cancel the hosting services provided thirty (30) days written notice is provided. All outstanding money owed on the hosting service is to be paid before the final day of hosting service.
CLIENT's continued use of the service after the effective date of the agreement revision shall be deemed as acceptance of the agreement revision.
3. DISCLAIMER OF WARRANTY & LIMITATION OF LIABILITY
Mindwire's service is provided on an "as is, as available" basis. Mindwire gives no warranty, expressed or implied, for the services, including without limitation, any warranty of merchantability or warranty of fitness for a particular purpose. Any damages incurred by CLIENT due to disruption of service by Mindwire or its providers shall be expressly limited to the fees paid by CLIENT to Mindwire for services and shall under no circumstances include reimbursement for losses of income or other consequential damages claimed by CLIENT.
IN NO EVENT SHALL Mindwire BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR USE, SUFFERED BY CLIENT OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, TORT OR STRICT LIABILITY OR OTHER LEGAL THEORY, EVEN IF MINDWIRE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event will MINDWIRE's liability for any damages, losses and causes of actions whether in contract or tort (including negligence or otherwise) exceed the actual dollar amount paid by CLIENT for the Service which gave rise to such damages, losses and causes of actions during the 12-month period prior to the date the damage or loss occurred or the cause of action arose.
CLIENT and its users recognise that MINDWIRE does not offer any rating systems, filtering software or procedures to help CLIENT screen out language or images in email that CLIENT or its Users do not wish to receive through the Services. MINDWIRE exercises no controls whatsoever over the content of information passing through its network or equipment. Disputes may arise between CLIENT or its Users and other individuals or entities or between CLIENT and MINDWIRE related to such content. Such disputes could involve, among other things, the use or misuse of domain names, the infringement of copyrights, trademarks or other rights in intellectual property, defamation, fraud, and the use or misuse of information. CLIENT and its Users agree that all claims, disputes or wrongdoing that result from, or which are related in any way to, the content of information passing through MINDWIRE network or equipment are CLIENT's sole and exclusive responsibility. Use of the Internet and of the information available through it is at CLIENT's own risk.
CLIENT agrees that it shall defend, indemnify, save and hold MINDWIRE harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney's fees asserted against MINDWIRE, its agents, its customers, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by CLIENT, it's agents, employees or assigns. CLIENT agrees to defend, indemnify and hold MINDWIRE harmless against liabilities arising out of; (1) any injury to person or property caused by any products sold or otherwise distributed in connection with an MINDWIRE server; (2) any material supplied by CLIENT infringing or allegedly infringing on the proprietary rights of a third party and (3) copyright infringement.
5. UP-TIME GUARANTEE
No provider can guarantee 100% server uptime. Servers and systems must be brought down (offline) at times for routine maintenance and upgrades to ensure that CLIENT's website will run and perform optimally. However, MINDWIRE strives to keep such service interruptions to a minimum, and, if possible, to give CLIENT advance notice of scheduled maintenance routines. MINDWIRE uses only top quality servers and services provided by a number of service providers including but not limited to Micron21. Of course, there will be times that CLIENT will not be able to reach the server due to traffic conditions on the internet, problems occurring at MINDWIRE upstream providers facilities, or due to hardware or software component failure. Both of these conditions are entirely out of MINDWIRE's control however MINDWIRE will endeavor to rectify the issue as soon as possible to the best of our abilities.
6. PROHIBITED USES
The following content and activities may not be displayed or promoted by CLIENT nor associated in any way with CLIENT's account or MINDWIRE's services. MINDWIRE shall be the sole arbiter as to what constitutes violation of this provision.
- Copyrighted material used without permission.
- Material that infringes on trademarks.
- Material protected by trade secret or other statute.
- Material or activities judged by MINDWIRE to be threatening, obscene, disparaging, bullying, hate-related or in violation of our anti-discrimination policy.
- Content or conduct that makes possible or promotes any illegal or prohibited activity. Content that may be damaging to MINDWIRE servers or to any other server on the Internet.
- Pirated software.
- Unsolicited or bulk e-mail (Spam) or e-mail harvesting software or services.
- Links or reference to any of the above.
7. WEB HOSTING SERVICES
- Site Access: MINDWIRE will provide to CLIENT a secure connection method such as but not limited to SFTP to enable the CLIENT to access their site files, database, configuration files and log files.
- Domain Name: If requested by CLIENT, MINDWIRE shall cooperate with registering the domain name with a domain registrar. CLIENT will own all right, title and interest in the domain name and its intellectual property related. Unless otherwise stated, MINDWIRE will be listed as the administrative, technical and billing contact. All costs associated with this purchase will be invoiced to the CLIENT.
- Site Backup: MINDWIRE shall maintain a backup of your hosting account whilst your hosting account is active. In the event that the web site content and database is required to be restored from MINDWIRE server image backup then all costs associated with this restore will be charged to the CLIENT. A cost will be provided to the CLIENT and must be agreed to in writing before the restore work commences. Once a hosting account is cancelled/closed due to non-payment or on request by the CLIENT, all previous backups held on Mindwire servers for the CLIENT will be deleted.
8. FAILED HOSTING PAYMENTS
- In the event of a failed payment or non-payment, we will contact you to inform you of the failed payment. We will provide you with 7 days to remedy the failed payment so funds can be properly withdrawn from your nominated account. If a valid form of payment has not been issued and/or services to be rendered have gone unpaid after 7 days from when we first notified you, your hosting account on our server will be suspended until an adequate means of payment has been fulfilled and the financial situation has been resolved.
- If you pay your hosting yearly and your yearly hosting invoice remains unpaid by the end of July the 7th, your hosting account on our server will be suspended until an adequate means of payment has been fulfilled and the financial situation has been resolved.
9. HOSTING PAYMENT FREQUENCY
There are 2 ways to pay your hosting;
Option 1: Monthly via Direct Debit from a credit card or bank account. Hosting is paid monthly via direct debit for the month in advance. Payments are processed on the 1st business day of every month.
Option 2: Yearly, 12 months in advance. Yearly hosting invoices are for the Australian financial year from July to June inclusive. Yearly hosting invoices are issued on the 1st April for the coming financial year ahead. They are issued in April to provide you with enough time to pay for your hosting prior to the 1st July. If you are paying yearly for hosting and wish to cancel your hosting with us for any reason, we are more than happy to provide a refund for any unused months (excluding the month in which you notified us of your hosting cancellation).
10. HOSTING ACCOUNT CLOSURE
- There are no fees for closing your account with us. We provide you with a free backup of your entire home directory (which includes website, database, emails). The backup is a cPanel backup. There is no minimum cancellation period. There is no minimum amount of notice you need to give us. We will cancel your account the same day (provided it is a business day) you provide written notification to us via email. If you provide notice to us on a weekend or public holiday, we will action the cancellation on the next business day. If you are paying monthly, and you cancel your hosting in the middle of the month, we cannot refund you your hosting payment for the remainder of the month. If you are paying yearly for hosting and wish to cancel your hosting, we are more than happy to provide a refund for any unused months, excluding the month in which you notified us of your hosting cancellation.