1.1. For the purposes of this agreement the words “Bendigo Web Design”, “We”, “Our” and “Us” refer to Bendigo Web Design ABN 94 339 566 131, and “Site” to materials delivered on www.bendigowebdesign.com.au.
1.2. “Subscriber” means the person or entity who placed the order for our services.
1.3. Copyright in the content and trademarks on this Site are owned by Bendigo Web Design ABN 94 339 566 131, unless otherwise indicated and you agree not to infringe any intellectual property rights owned by Bendigo Web Design.
2. Terms of Service
2.1. Bendigo Web Design general policy is to act as a neutral provider of access to the global Internet. Bendigo Web Design reserves the right to suspend or cancel a Subscribers access to any or all services provided by Bendigo Web Design when Bendigo Web Design decides that the account has been used inappropriately.
2.2. All provisions of this agreement are subject to the Terms of Service (TOS) and Acceptable Use Policy (AUP) of Bendigo Web Design. The TOS and/or AUP may be changed from time to time at the discretion of Bendigo Web Design, and such modifications shall be effective immediately upon posting the modified agreement on the Site.
2.3. Bendigo Web Design agrees to furnish services to the Subscriber, subject to the following Terms of Service (TOS). Submitting an order for Bendigo Web Design services constitutes acceptance and agreement to Bendigo Web Design TOS, as well as Bendigo Web Design AUP.
2.4. Bendigo Web Design reserves the right to refuse orders from Subscribers, at the sole discretion of Bendigo Web Design management.
3.1. The AUP specifically prohibits the use of our service for illegal activities. Therefore, the Subscriber agrees that Bendigo Web Design may disclose any and all subscriber information including assigned IP numbers, account history, account use, etc. to any law enforcement agent who makes a written request without further consent or notification to the Subscriber. In addition Bendigo Web Design maintains the right to terminate all services set forth in this Agreement.
4. Service Rates
4.1. The Subscriber acknowledges that the nature of the service delivered and the initial rates and charges have been communicated to the Subscriber. The Subscriber is aware that Bendigo Web Design may prospectively change the specified rates and charges from time to time.
4.2. All promotional offers are contingent upon Bendigo Web Design achieving and maintaining its cost of service goals including, but not limited to, rates charged to Bendigo Web Design by its suppliers.
4.3. All published prices are inclusive of any government taxes and charges unless otherwise noted.
5.1. Payments are due prior to or on the due date marked on your invoice. Establishment of this service is dependent upon receipt by Bendigo Web Design of payment of stated charges. Subsequent payments are due on the anniversary date of the Subscribers service.
5.2. Fees for Services ordered by the Subscriber shall begin on the date of the initial order and shall be prorated to include all days until the Subscribers anniversary date.
5.3. Where the account holder has provided debit or credit card, the Subscriber agrees that Bendigo Web Design automatically charges the Subscriber`s credit card every month. Bendigo Web Design reserves the right to process subscriber credit cards from 14 days before the actual due date to allow time for any potential issues to be rectified before the due date.
5.4. Where the account holder has provided debit or credit card details and the debit is declined, Bendigo Web Design may immediately suspend the account until outstanding charges are processed successfully. In addition, Bendigo Web Design reserves the right to suspend any other services for that account until the outstanding charges are paid.
5.5. The Subscriber is responsible for all outstanding charges on the account.
5.6. All invoices will be sent directly to the Subscriber via e-mail and will be deemed to have been delivered if no bounce back is received.
5.7. Bendigo Web Design reserves the right to automatically settle the Subscribers due invoices using the Subscribers account credit where applicable.
5.8. The Subscriber acknowledges that Bendigo Web Design refuses the right to refund any credit remaining on the Subscribers account.
6. Late Payments and Fees
6.1. A subscribers service will be suspended if payment reaches five (5) days past due.
6.2. All services which are five (5) days past the due date will automatically attract an overdue fee that is equal to 10% of the total balance of the Subscribers due invoice, which will be payable on top of the invoice due amount.
6.3. All services which are not paid in full within fourteen (14) days of the due date will be automatically deleted from our servers.
6.4. If you desire to cancel your service, please follow the proper procedure to do this as outlined in this TOS.
6.5. If you desire to downgrade your service, a $9.95 administration fee may be charged for a downgrade request at Bendigo Web Design’s sole discretion. Additional fees may be payable for downgrades where manual work is required by Bendigo Web Design to process the downgrade request.
7.1. A full refund will be provided to the Subscriber, through the Subscribers original payment method, if the refund is requested within thirty (30) days of the order being placed. Payments to Bendigo Web Design for Web Hosting plans and Email Hosting plans are eligible for a refund.
7.2. Payments for any type of license, SSL certificate or domain name are strictly non-refundable in any circumstances.
7.3. All refunds are subject to Bendigo Web Design’s management approval.
7.4. The Subscriber will not be entitled to a refund if any of Bendigo Web Design’s Terms, Policies and Agreements have been breached by the Subscriber.
8. Failure to Pay
8.1. Bendigo Web Design may temporarily deny service or terminate this Agreement upon the failure of the Subscriber to pay charges when due.
9. Account Cancellation
9.1. All requests for canceling of accounts must be made via email or in writing, no later than 14 days prior to the service due date. Late notification will attract a cancellation fee equivalent to the Subscriber’s hosting service invoice amount.
10. Free cPanel Migration
10.1. The free cPanel migration strictly applies to new subscribers who require their current cPanel accounts to be migrated to their Bendigo Web Design service. A support ticket needs to be lodged within 30 days of subscribing to Bendigo Web Designs service in order to take advantage of the Free cPanel migration.
10.2. The Free cPanel Migration does not include migration from non-cPanel control panels such as Plesk, or custom control panels. All non-cPanel migrations are charged at a $20 flat fee per account.
11. Nightly Backups and Data Management
11.1. Bendigo Web Design performs a backup of all Web Hosting, Email Hosting & Reseller Hosting accounts each night. The Subscriber acknowledges that Bendigo Web Design stores each backup for strictly 14 days only. After 14 days the backup is deleted from Bendigo Web Design’s servers. Backups are stored onto our offsite backup servers in Perth, Australia.
11.2. A Subscriber can request a backup restore for their service by lodging an e-Ticket to the Bendigo Web Design Technical Support Department. A $29.95 flat rate applies for each service backup restore.
11.3. It is the responsibility of the Subscriber to maintain a recent copy of all data stored on the Subscribers Bendigo Web Design service at all times. Bendigo Web Design shall not be liable for corrupt, incomplete or otherwise insufficient data recovered from our backups.
12. Domain Name Registration and Renewal
12.1. The Subscriber acknowledges that all domain name service(s) are non-refundable once the order for the domain name service(s) has been accepted and processed by Bendigo Web Design.
12.2. Bendigo Web Design does not guarantee that a domain name registration or domain name renewal will be approved, irrespective of whether the invoice for the domain name has been paid. The Subscriber will be notified via email by Bendigo Web Design that the domain name(s) has been successfully registered and is in the Subscribers name.
12.3. The Subscriber acknowledges that Bendigo Web Design is not obligated to renew a domain name if the Subscriber has not confirmed to Bendigo Web Design that the domain name is to be renewed, or the invoice for renewal has not been paid in full. Bendigo Web Design will not be held liable by the Subscriber for any loss or damages.
12.4. The subscriber agrees that Bendigo Web Design reserves the right to renew the Subscribers domain name(s) automatically unless the Subscriber has lodged a cancellation request for the domain name through the Origin Centre.
12.5. It is the Subscriber’s responsibility to ensure that the Admin, Technical and Billing contact information is kept up to date on every domain name. As per registry-registrar policy and agreements, Bendigo Web Design will use this information to advise the Customer of any pending expiry, renewal or transfer requests.
13. Virtual Server Management
13.1. The Virtual Server Management plan is only valid for one Virtual Server plan (either VPS or VDS). If you require management for more than one service then additional Virtual Server Management will need to be purchased. Details of what is included in each Virtual Server Management plan can be viewed at http://www.Bendigo Web Design.com.au/vps-hosting/server-management
13.2. Not all third party applications can be supported by Bendigo Web Design hardware. Bendigo Web Design does not guarantee support for any third party application installed on Bendigo Web Design hardware.
14. Offsite Backups
14.1. Bendigo Web Design do not maintain any backups of VDS services unless an Offsite Backup Service Plan is purchased by the subscriber. Bendigo Web Design strongly recommends that the subscriber maintains their own independent offsite backups at regular intervals, regardless of whether the subscriber has purchased an Offsite Backup Service Plan or no Offsite Backup Service Plan has been purchased.
14.2. Bendigo Web Design takes no responsibility for any data loss experienced in any circumstances, regardless of whether the subscriber has purchased a Total Management Plan or no Management Plan has been purchased.
14.3. When purchasing the Bendigo Web Design Total Management Plan, subscribers can manage their own backups and restore data from our R1Soft control panel. Bendigo Web Design does not guarantee the integrity of the data which is being backed up, and does not guarantee that the data will be in a restorable state. Backups are stored onto our offsite backup servers in Perth, Australia.
15. Emails to the Subscriber
15.1. The Subscriber agrees to receive emails directly relating to the Service(s) provided, as well as marketing and promotional emails from Bendigo Web Design to the email address registered to their account. The Subscriber can unsubscribe from marketing and promotional emails only, by clicking the “Unsubscribe” link in one of these emails.
15.2. If the Subscriber does not want to receive emails relating to the Service(s) provided, they are required to cancel all active Services and close their Account.
16. Managed WordPress Hosting
16.1. The Subscriber agrees to notify Bendigo Web Design at the time of initial registration, or before the first scheduled update if their site has any modified core files, or modified files of a WordPress plugin.
16.2. The Subscriber acknowledges that Bendigo Web Design will use their best efforts to ensure that the Subscribers WordPress themes and plugins are update in a timely manner. Bendigo Web Design will also run a malware scan of the Subscribers website at least once a day.
16.3. The Subscriber agrees that the Managed WordPress Hosting service aims to keep the Subscribers website secure and up to date. The Managed WordPress Hosting service does not cover the modification of any website source code or other website files.
17. Website Design
17.1. Except for the content provided by you, the websites created by Bendigo Web Design, and all such websites (including all copies thereof) are subject to copyright, trademark, patent, and other intellectual property laws of Australia and foreign countries.
17.2. For Website subscription services, Bendigo Web Design grants you a license for the use of the website for the duration of your Website subscription. Cancellation of your Website subscription for any reason terminates your license to the website thereafter.
17.3. The Subscriber agrees to communicate in a timely manner. 48 hours is considered a more than acceptable time-frame to wait for a response. In the event of delayed responses to our emails, we reserve the right to reschedule accordingly based on length or delay and current workload.
17.5. The Subscriber agrees that all website content must be added to website by the Subscriber. Bendigo Web Design may do this for an additional charge, or not, if requested by the Subscriber.
17.6. We own the unique combination of design elements that constitutes a complete design and we’ll license its use to you, exclusively and in perpetuity for this website only, unless we agree otherwise. In plain English, you may only use the supplied design on the project for which both parties have agreed and no more i.e. one website, one design.
17.7. A one-page Webvert is a single page entity. We often build on top of a CMS platform whether the client requests it or not, for the purposes of management and search engine optimization. However, this does not constitute a right to manage your content via the CMS. You are not permitted to access the administration area of the CMS installation for any reason. You may not expand on the supplied design (see 17.6. above). For additional pages, please contact us. Should this stipulation be ignored and additional pages and/or functionality added to the agreed one-page Webvert, we reserve the right to invoice you for the difference in cost between a Webvert and a CMS based website.
18. Service Interruption
18.1. The Subscriber acknowledges that the service provided is of such a nature that service can be interrupted for many reasons and interruptions can be prolonged due to external or internal events. Therefore, subscriber agrees that Bendigo Web Design shall not be liable for any damages arising from such loss of service for any reason.
18.2. In no event shall Bendigo Web Design be liable for any special or consequential damages, loss or injury.
19. Support Boundaries
19.1. Bendigo Web Design provides support to the Subscriber. Bendigo Web Design only ensures that the service is online and is remotely accessible. Bendigo Web Design does not offer technical support for application specific issues such as CGI programming, HTML or any other such issue.
19.2. Bendigo Web Design does not provide technical support for YOUR customers. If you need to contact the support team, we encourage you to email us from the Contact Us page of our web site.
20. SPAM and Unsolicited Commercial Email (UCE)
20.1. Bendigo Web Design takes a zero tolerance approach to the sending of Unsolicited Commercial Email (UCE) or SPAM over our network. Very simply this means that the Subscriber may not use or permit others to use our network to transact in UCE. The Subscriber may not host, or permit hosting of, sites or information that is advertised by UCE from other networks. Violations of this policy carry severe penalties, including termination of service and legal procedings.
20.2. Violation of Bendigo Web Design’s SPAM policy will result in severe penalties. Upon notification of an alleged violation of our SPAM policy, Bendigo Web Design will initiate an immediate investigation (within 48 hours of notification). During the investigation, Bendigo Web Design may restrict Subscriber access to the network to prevent further violations. If a Subscriber is found to be in violation of our SPAM policy, Bendigo Web Design may, at its sole discretion, restrict, suspend or terminate the Subscriber’s account. Further, Bendigo Web Design reserves the right to pursue civil remedies for any costs associated with the investigation of a substantiated policy violation. Bendigo Web Design will notify law enforcement officials if the violation is believed to be a criminal offense.
20.3. As our Subscribers are ultimately responsible for the actions of their clients over the network, it is advisable that Subscribers develop a similar, or stricter, policy for their clients.
20.4. Any Subcriber hosting websites or services on their server that support spammers or cause any of our IP space to be listed in any of the various Spam Databases will have their server immediately removed from our network. The service will not be reconnected until such time that you agree to remove ANY and ALL traces of the offending material immediately upon reconnection and agree to allow us access to the account to confirm that all material has been COMPLETELY removed.
20.4.1 Severe violations may result in immediate and permanent removal of the server from our network without notice to the customer. Any server guilty of a second violation WILL be immediately and permanently removed from our network without notice.
21.1. IP Address Ownership: If Bendigo Web Design assigns the Subscriber an Internet Protocol address for the Subcriber’s use, the right to use that Internet Protocol address shall belong only to Bendigo Web Design, and the Subscriber shall have no right to use that Internet Protocol address except as permitted by in its sole discretion in connection with the Services.
21.2. During the term of this Agreement Bendigo Web Design shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to the Subscriber, and reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion.
21.3. Our allocation of IP addresses is limited by APNIC’s new policies. These new policies state that use of IP addresses for IP based virtual hosts will not be accepted as justification for new IP addresses. What this means to you is that you MUST use name-based hosting where possible.
21.4. We will periodically review IP address usage, and if we find that clients are using IP addresses where name-based hosting could be used, we will revoke authorization to use those IP addresses that could be used with name-based hosting.
21.5. Bandwidth Usage: Bendigo Web Design will monitor the Subscriber’s bandwidth. Bendigo Web Design shall have the right to take corrective action if the Subscriber’s usage negatively impacts other clients.
21.6. System and Network Security: Users are prohibited from violating or attempting to violate the security of the Network. Violations of system or network security may result in civil or criminal liability. We will investigate occurrences, which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Users who are involved in such violations. These violations include, without limitation:
A. Accessing data not intended for such User or logging into a server or account, which such User is not authorized to access.
B. Attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization.
C. Attempting to interfere with service to any user, host or network, including, without limitation, via means of overloading, “flooding”, “mail bombing” or “crashing”.
D. Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.
E. Taking any action in order to obtain services to which such User is not entitled.
22. Notification of Violation
22.1. Bendigo Web Design is under no duty to look at each customer’s or user’s activities to determine if a violation of the AUP has occurred, nor do we assume any responsibility through our AUP to monitor or police Internet-related activities.
22.2. First violation: Any User, which determines to have violated any element of this Acceptable Use Policy, shall receive an email, warning them of the violation. The service may be subject at Bendigo Web Design’s discretion to a temporary suspension pending a User’s agreement in writing, to refrain from any further violations.
22.3. Second Violation: Users that determines to have committed a second violation of any element of this Acceptable Use Policy shall be subject to immediate suspension or termination of service without further notice.
22.4. We reserve the right, to drop the section of IP space involved in Spam or Denial-of-Service complaints if it is clear that the offending activity is causing great harm to parties on the Internet. In particular, if open relays are on your network or a customer’s network, or if denial of service attacks are originating from your network. In certain rare cases, we may have to do this before attempting to contact you. If we do this, we will contact you as soon as is feasible.
23. Suspension of Service or Cancellation
23.1. Bendigo Web Design reserves the right to suspend network access to any Subscriber if in the judgement of the network administrators the Subscriber’s service is the source or target of the violation of any of the other terms of the AUP or for any other reason which Bendigo Web Design chooses.
23.2. If inappropriate activity is detected, all accounts of the Subscriber in question will be deactivated until an investigation is complete. Prior notification to the Subscriber is not assured. In extreme cases, law enforcement will be contacted regarding the activity. The Subscriber will not be credited for the time the Subscriber’s service is suspended.
23.3. Bendigo Web Design reserves the right to immediately suspend the service of a Subscriber without notice if, in the judgement of the network administrators, the Subscriber’s service is using excessive resources. A service is deemed to be using excessive resources when the Subscribers service is causing a negative effect on other Subscribers services, or using more resources then what is deemed reasonable by Bendigo Web Designs network administrators. The Subscriber will not be credited for the time the Subscriber’s service is suspended.
24.1. Bendigo Web Design wishes to emphasize that in agreeing to the Bendigo Web Design AUP and ToS, the subscriber indemnifies Bendigo Web Design for any violation of the AUP and ToS that results in loss to Bendigo Web Design or the bringing of any claim against Bendigo Web Design by any third-party. This means that if Bendigo Web Design is sued because of a subscriber’s, or a customer of a subscriber’s activity, the subscriber will pay any damages awarded against Bendigo Web Design, plus all costs and legal fees.
25. Miscellaneous Provisions
25.1. You must provide us with, and keep current, good contact information for your e-mail, fax, and telephone contacts. These contacts are used, in that order of preference, by Bendigo Web Design as a point of contact for the Subscriber.
25.2. A waiver by Bendigo Web Design of any breach, of any provision, of this agreement by the Subscriber shall not operate as, or be construed as, a continuing or subsequent waiver thereof or as a waiver of any breach of any other provision thereof.
25.3. The Subscriber shall not transfer or assign this agreement without the prior written consent of Bendigo Web Design. Bendigo Web Design may assign this agreement at any time without consent from or notice to the Subscriber. Bendigo Web Design reserves right to cancel the Subscribers rights under this contract at any time without further obligation.
25.4. Bendigo Web Design takes no responsibility for any material input by others and not posted to the Bendigo Web Design Network by Bendigo Web Design. Bendigo Web Design is not responsible for the content of any other websites linked to the Bendigo Web Design Network; links are provided as Internet navigation tools only. Bendigo Web Design disclaims any responsibility for any such inappropriate use and any liability to any person or party for any other person or entity’s violation of this policy.
25.5. Bendigo Web Design is not responsible for any damages your business may suffer. Bendigo Web Design does not make implied or written warranties for any of our services. Bendigo Web Design denies any warranty or merchantability for a specific purpose. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions caused by Bendigo Web Design.
26. Responsibility for Content
26.1. You, as the Subscriber, are solely responsible for the content stored on and served by your Bendigo Web Design account.
26.2. We recommend that all Subscribers back up the data stored on their Bendigo Web Design account at regular intervals, regardless of whether the Subscriber has purchased a backup service from Bendigo Web Design or not.
27. Governing Laws
27.1. The agreement between you and Bendigo Web Design shall be governed in all respects by the laws of NT, Australia. The parties to irrevocably submit to the non-exclusive jurisdiction of the courts of NT, Australia.
27.2. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of each section.
If you have any questions or comments regarding our Terms of Service, then please contact email@example.com.