Terms, Conditions and Service Level Agreement

Ingenuity Hosting Pty Ltd (ABN: 59 105 368 054)

1. Introduction

1.1 These are the standard terms and conditions provided by Ingenuity Hosting Pty Ltd (“Ingenuity”, “we”, “our” or “us”) for the use of our Services (“the Service”) to the user (“Customer”, “you” or “your”). Please read these terms and conditions carefully as they form part of your agreement with Ingenuity.

2. Terms and Agreement

2.1 This agreement outlines the terms and conditions that apply to your use of our Services. In addition to these terms, you must also comply with:

a) Any specific Product Terms and Service Level Agreements
b) Our Acceptable Use Policy
c) Our Privacy Policy

2.2 These terms and conditions constitute the entire agreement between us and you. It supersedes all prior agreements, understandings and representations whether oral or written.

2.3 We may change the terms and conditions of this agreement (including the Acceptable Use Policy and Privacy Policy) at any time. Ingenuity will use reasonable endeavours to provide details of our current terms available on our website. Changes to this agreement other than price changes will become effective upon their publication on our website and your use of the Services following publication of any amended version of this agreement will constitute acceptance of the amended terms. If you do not wish to accept the amended terms and conditions, you may terminate this agreement by providing suitable written notification as outlined in section 12.5.

2.4 We may from time to time run promotions and make special offers of limited time duration (“Promotions”). All Promotions are offered subject to their terms and may be withdrawn or altered at Ingenuity’s discretion. The terms of a promotion will apply in addition to these terms and these terms and conditions will override the terms of a promotion to the extent of any inconsistency.

3. Commencement of Agreement

3.1 The agreement made between us on these terms commences on the date your order for Services was accepted by Ingenuity and we will use all reasonable endeavours to continue the Service until terminated in accordance with these terms.

3.2 Once provisioned, Ingenuity will use all reasonable endeavours to provide the Customer with suitable login details and access codes to manage the Service. The level of access provided will be dependent on the nature of the Service and additional details may be provided, at the discretion of Ingenuity, if requested in writing, by the Customer.

4. Money Back Guarantee

4.1 If you are not satisfied with the quality of the Service received in respect to your web hosting plan you may cancel your Service with Ingenuity within 30 days of commencement and request a refund for the fees you pay for the Service (“Money Back Guarantee”). All cancellation requests must be made in writing.

4.2 The Money Back Guarantee only applies to Shared Web Hosting plans not on a fixed term contract.

4.3 The Money Back Guarantee will not be honoured if the Services are terminated by Ingenuity due to breach of any terms outlined in this document, our Acceptable Use Policy, or our Privacy Policy.

4.4 The Money Back Guarantee is limited to one claim per Customer and does not apply to Customers with existing hosting accounts with Ingenuity.

5. Ongoing Use and Renewal of Service

5.1 To prevent any interruption of Service, Ingenuity will use all reasonable endeavours to automatically renew the Service for the same period as the initial period unless this agreement is terminated by you or us in writing in accordance with cancellation procedures outlined in 12.5 of this agreement.

5.2 It is your responsibility to ensure all contact details are kept up-to-date at all times. We will use all reasonable endeavours to use these contact details for notifications that affects the Services and do not take any responsibility for any loss, damages or expenses you incur if we have been unable to contact you because you have not kept your contact details up-to-date.

6. System Maintenance

6.1 We will use all reasonable endeavours to attempt to perform all scheduled maintenance at times which will affect the fewest Customers. If scheduled maintenance requires the Service to be offline for more than 30 minutes we will use all reasonable endeavours to post details of the scheduled maintenance at least 48 hours in advance of the maintenance.

6.2 If we need to perform unscheduled maintenance that requires the Service to be offline for more than 30 minutes, we will use all reasonable endeavours to post details of the event after the maintenance has been completed.

7. Archiving and Backup of Your Data

7.1 Unless you specifically purchase a Backup Service from Ingenuity, you are solely responsible for the backup of your data (including email files) personally or through a third party that is not us. You must maintain a recent copy of your data at your premises at all times. Ingenuity will not be liable for incomplete, out-of-date, corrupt or otherwise deficient data recovered from our backups.

7.2 We will use all reasonable endeavours to archive your data on a regular basis for the purposes of disaster recovery. In the event of equipment failure or data corruption, we will use all reasonable endeavours to 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 website.

8. Service Level Agreement

8.1 Ingenuity’s Service Level Agreement (“SLA”) applies to all products and Services unless specifically stated.

8.2 Ingenuity ensures that your Service uptime availability will be at least 99.99% except where the failure results from:

a) A failure or malfunction in relation to any hardware, software, or network outside our direct control, unless caused by an error, omission or wrongful act on our part
b) An act or omission on your part (or a person under your direction or control)
c) A scheduled maintenance window
d) A requirement, direction or any other order issued by a court, government authority, administrative or judicial body
e) Unauthorised or illegal access by any third party including hacking, cracking, virus dissemination and denial of service attacks
f) DNS propagation
g) A breach of any of the Terms and Conditions outlined in this document, our Acceptable Use Policy, or our Privacy Policy.

8.3 If in any calendar month, Ingenuity fails to meet this SLA, we will credit your account the portion of your monthly fee equal to the time the Services fell below 99.99%.

8.4 To claim a SLA credit you must submit your request in writing. All requests must be made within 30 days of the SLA breach occurring, and you must provide Ingenuity with full details of the breach for verification purposes. Once Ingenuity has confirmed these details and determined the nature of the breach, all reasonable endeavours will be used to apply the appropriate amount of credit to your account within 30 days.

9. Payments, Fees and Charges

9.1 Ingenuity will issue fees in accordance to the nature of Services provided as outlined on the Ingenuity website or in any other contract of Service agreed to at the time of the provisioning of the Service.

9.2 Prices listed on the Ingenuity website are inclusive of any government taxes or charges unless otherwise noted.

9.3 Services are charged in advance and are payable within 14 days of the date of invoice unless otherwise noted.

9.4 If you fail to make payment in accordance with the terms of this agreement, you will become liable for any reasonable costs incurred by us in recovering the debt (including any legal fees, collection agency charges or any other reasonable costs).

9.5 We will only provide the Services to you where you have paid for the Services in full. Without prejudice to our other rights and remedies under this agreement, if any sum payable is not paid on or before the due date, we reserve the right, at our discretion, to suspend the provision of Services to you until we receive the required payment (including any late payment fees, interest, debt recovery charges and reactivation fees) in full.

9.6 Upon registration of a credit card to your account, you give us authorisation to debit your credit card for all current and future charges.

9.7 No refunds will be given for unused portions of payments in advance for fixed term contract Services unless the account has been terminated due to Ingenuity’s breach of these terms and conditions. If you terminate a Service with a fixed-term contract, the balance remaining on the contract must be paid in full as well as any other early termination fees as outlined in the conditions of the specific Service. If your Service is not bound by a fixed term contract and has more than or equal to a month worth of unused credit, a refund will be provided pursuant to point 12.5 of these Terms and Conditions.

9.8 You consent to Ingenuity obtaining a report from a credit reporting agency on your credit worthiness.

10. Customer Warranties, Liabilities, Indemnities and Undertakings

10.1 You indemnify and keep indemnified, defend and hold us harmless from and against any claim brought against us by a third party resulting from the provision of Services by us to you and your use of the Services, and in respect of all losses, costs, actions, proceedings, claims, damages, expenses (including reasonable legal costs and expenses), demands, or liabilities, whatsoever suffered and howsoever incurred by us in consequence of your breach or non-observance of this agreement.

10.2 You indemnify us against all claims arising out of your registration and use and renewal of registration of your chosen domain name, unless and to the extent that the claim arises out of our breach of this agreement, or our negligent act or omission.

10.3 If your use of our Services involves storage, processing or transmission of or access to any credit card holder data, you warrant that the tools, programmes, processes and technologies you use to do so comply with the Payment Card Industry Data Security Standard (“PCI Standard”) which is available at https://www.pcisecuritystandards.org. If you breach this warranty, Ingenuity may terminate this agreement without prejudice to any other rights it may have under this agreement or at law.

11. Ingenuity’s Warranties and Liabilities

11.1 We accept liability for the supply of the Services to the extent provided in this agreement.

11.2 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
d) Will produce any particular results, data, sales or other return

11.3 Subject to clause 11.4:

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.

11.4 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 Act, our sole liability for breach of any such remedy or guarantee shall be limited to the remedies available under the Competition and Consumer Act 2010 (Cth).

11.5 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.

12. Suspension and Termination of the Service

12.1 We may suspend or terminate your account if:

a) You breach this agreement and fail to rectify any remediable breach within 7 days of us notifying you to do so
b) You become insolvent
c) You are declared bankrupt
d) We are ordered to do so by a court or pursuant to an arbitration award

12.2 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 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) Determine in our sole discretion that you are infringing this agreement

12.3 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 all 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.

12.4 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.

12.5 You may terminate your Service at any time by providing written notification (email is sufficient) thirty (30) days prior to closing your account. If your Service is not bound by a fixed contract and has more than or equal to a month worth of unused credit, a refund will be provided.

12.6 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.

12.7 If your account is closed for whatever reason you must pay all outstanding charges immediately.

12.8 We are under no obligation to provide you with a copy of your data if we have suspended or terminated your access to the Service for your breach. If we provide you with a copy of your data 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. If your data is destroyed it may not be recoverable.

13. Domain Names

13.1 Ingenuity is not a Domain Registrar. Ingenuity is a reseller of TPP Wholesale Pty Ltd (“TPP Wholesale”), ABN 54 109 565 095 and Instra Corporation Pty Ltd (“Instra Coroprtion”), ABN 55 110 054 610. If you have requested that Ingenuity register, renew , redelegate or manage a domain name on your behalf, you agree that you have read and accept the applicable policies issued by our registrars TPP Wholesale – http://www.tppwholesale.com.au/terms-conditions.php and Instra Corporation – http://www.instra.com/en/about-us/Terms-Conditions.

13.2 You agree that in the event of a dispute about a Top-level Domain (TLD), you will submit to and are bound by the Policies as described by ICANN (Internet Corporation For Assigned Names and Numbers) which can be found at – http://www.icann.org/en/udrp/ – and any variations to this policy.

13.3 You agree that in the event of a dispute in registering a .au domain or about a .au domain after registration, you will submit to and are bound by the AUDA Dispute Resolution Policy which can be found at – http://www.auda.org.au/audrp/audrp/ – and any variations to this policy.

13.4 You agree that by maintaining the registration of a domain name after changes or modifications to the applicable policies become effective, you are confirming your continued acceptance of these changes and modifications.

13.5 Ingenuity makes no representation and gives no warranty about your chosen domain name being available for registration, renewal, redelegation or use by you.

13.6 In respect of .au domains, you acknowledge that Ingenuity is not able to renew your domain name and is not liable for any loss or damage resulting from non-renewal of your domain name if you do not tell us in writing (email is acceptable) that the domain name should be renewed.

13.7 Ingenuity may refuse to renew your domain name on your behalf where you have unpaid invoices, or if you are in breach of any terms of your use of Ingenuity’s Services.

13.8 You expressly authorise and direct Ingenuity, if Ingenuity is able to do so, to:

a) be nominated as authorised billing contact for your domain name with the domain name registrar; and
b) subject to receipt of your confirmation in respect of .au domains, renew your domain name registration upon receipt of renewal notification from the domain name registrar and invoice you for the relevant charge in accordance with Ingenuity’s list price from time to time.

13.9 If you close your account with Ingenuity but do not remove Ingenuity as the reseller of your domain name with the domain name registrar, you agree that we may contact you after account closure to remind you of domain name renewals and to provide marketing material in respect of our services.

13.10 You indemnify Ingenuity against all claims arising out of your registration and use and renewal of registration of your chosen domain name, unless and to the extent that the claim arises out of Ingenuity’s breach of this contract, or its negligent act or omission.

13.11 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.

13.12 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.

13.13 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.

13.14 Our primary method of communication for domain renewal purposes is via email and telephone. We will not be held responsible for the non-renewal of your domain name if your email and telephone contact details are not kept up-to-date. You accept that it is your responsibility to notify Ingenuity of any changes in your contact details and that Ingenuity is not responsible for the non-renewal of a domain name where you have failed to keep your contact details up-to-date.

14. The Need to Change to a New Operating Platform

14.1 Unless otherwise agreed, the Service is provided by us from our data centres in Australia. We reserve the right to migrate your website to a new Service platform if our supplier ceases to provide appropriate support or the particular server where your data is located fails or becomes unreliable.

14.2 We will use all reasonable endeavours to advise you of such a change but we will not take any responsibility for your not receiving this advice or any Service failure experienced by you if you have failed to keep your contact details up-to-date or if you have not checked the operation of your Service post-migration and notified us of any required changes to the Service configuration.

14.3 We will use reasonable endeavours to minimise downtime and you will have no claim against Ingenuity for downtime in supply of the Services caused by the migration.

15. Ownership of Equipment

15.1 Unless otherwise agreed, you obtain no rights to the hardware and other infrastructure and facilities used by us to deliver the Services.

15.2 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.

16. Intellectual Property

16.1 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 will be owned by us.

17. Severability

17.1 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 shall be deemed to be omitted.

18. Governing Law

18.1 These terms and conditions are governed by the laws in force in the state of Queensland. Both parties agree to submit to the exclusive jurisdiction of the Courts of that State.

19. Notifications and Communications

19.1 All notifications under this agreement may be by email to your nominated internet address. Notifications will be posted on our website and you are responsible for viewing these notifications. 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.

20. Miscellaneous

20.1 The Customer grants to Ingenuity a license to use and reproduce all Customer Data in order to fulfil its obligations under this agreement. In this agreement “Customer Data” (“your data”, “data”) means all information, data, text, logos, images, audio, movie clips and/or content in any form that forms part of the Customer’s websites or emails.

20.2 A provision of, or a right created under this agreement, may not be waived except in writing signed by the party granting the waiver, or varied except in writing signed by the parties.