Terms of Service

The Web Hosting Machine (“Dolphin Software Pty Ltd”)

STANDARD TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS AND/OR SERVICES

Effective: 20/06/2011

1. Definitions

a) The Web Hosting Machine is Dolphin Software Pty Ltd trading as The Web Hosting Machine, and its employees, officers, agents, and affiliates.
b) The ‘Agreement’ means Terms and Conditions, the Service Level Agreement, and the order details on the Application for The Web Hosting Machine Account
c) The ‘Customer’ refers to all other persons, companies, or other entities identified on the Application for The Web Hosting Machine Account
d) The ‘Service’ means the computing and communication service known as the The Web Hosting Machine Internet Service, as modified from time to time.

2. Application and Variation of these Terms

A person or company that accepts an order from The Web Hosting Machine for the provision of internet services (“the Services”) enters into a binding legal agreement with The Web Hosting Machine (“ Agreement”) which consists of:

a) the order;
b) these Standard terms of Service; and
c) the Service Level Agreement which can be viewed at: http://thewebhostingmachine.com/service-level-agreement/

By, accepting the order, the Customer agrees to be bound by the Agreement.

These terms and conditions are the terms on which The Web Hosting Machine provides services or goods to its customers, modified by any written contract between The Web Hosting Machine and its Customers in any particular case. The Web Hosting Machine may modify these terms as applying to any agreement, the pricing structure for any Service (excluding term contracts) or the terms of the operation by general notice at http://www.TheWebHostingMachine.com and by email newsletter to the last email address provided to The Web Hosting Machine by the Customer. The Customer is required to keep their contact details with The Web Hosting Machine current. Any use of Service more than 15 days after joining or 15 days after modification of these terms will constitute acceptance of these terms.

3. Charges

The service is a subscription service payable in advance. The customer must pay for all goods and services by the due date. In particular the Customer must pay for all service data charges and other amounts incurred by the Customer or its Users or incurred as a result of any use of the Customer Account and services (whether authorised or not) in accordance with the billing option selected. In addition, the Customer may be liable for all charges and expenses incurred by The Web Hosting Machine resulting from any security breach or attack or customer error that involves Customer hardware, software, or network configuration, including IP addresses.

4. Customer Costs

In addition the Customer must provide and pay for: a) the installation and use of telephone lines and all other equipment needed to access the Service at their own cost; b) all government taxes, duties and levies (if any) imposed on the customer or The Web Hosting Machine in respect of any Services or goods supplied excluding income tax.

5. Payment of Accounts

a) Payment for all service is due upon the order due date. The Customer must pay all amounts billed in accordance with the billing option they are on. Any questions regarding the charges on an account must be addressed within 60 days of the billing date. Where a charge is in dispute the Customer may withhold the disputed portion whilst it is investigated but non-disputed charges may not be withheld.

b) Accounts with a balance at least 7 days overdue may be suspended without further warning. A $25 Suspension fee will be automatically applied. Suspended accounts may not be altered or closed until full payment is received.

c) Suspended accounts may be sent to The Web Hosting Machine’s debt collection agency without further notice. Any expenses incurred in the recovery of debt, including but not limited to legal and debt collection costs, shall be claimed on the customer.

6. Security Deposit

The Web Hosting Machine may require the payment of a security deposit before providing the service, or as a condition of continuing any Service, and may use the security deposit to meet any costs, loss or liability incurred by the Customer. When the Customer has fully performed his or her obligations, The Web Hosting Machine shall return the outstanding balance of the security deposit, without interest.

7. Credit Checks Privacy Consent

The Customer consents to The Web Hosting Machine obtaining credit reports and information containing personal information (as well as information concerning commercial credit worthiness and activities) for the purpose of assessment by The Web Hosting Machine of an application for credit (whether commercial or personal) or for the purpose of the collection of payments that are overdue.

8. Credit Card Security Policy

The Web Hosting Machine will need to store the Customer’s credit card details for automatic billing. These details are encrypted securely for storage and only ever transmitted via a 256-bit encrypted SSL to eWay for payment processing. If a Customer has credit card details stored with The Web Hosting Machine, they may remove these details at any time by logging in to their account and deleting them.

9. Privacy

The Web Hosting Machine will not reveal, sell, or in any way divulge information about the Customer or the Internet usage of the Customer to any individual, business, marketing, or research group without prior consent of the customer or without legal warrant.

10. Publication at Customers Risk

The Customer accepts responsibility for all information and material issued by the Customer over any Service, and indemnifies The Web Hosting Machine against any liability in relation thereto. In particular the Customer undertakes that it shall not publish, distribute or issue any information that is illegal, including copyrighted materials. The Customer also acknowledges that The Web Hosting Machine does not vet or approve any information or material available through any service and that The Web Hosting Machine does not accept any liability. To the full extent permitted by law the Customer accesses and uses such information and material at his or her own risk.

11. Provision of Service

The Web Hosting Machine endeavours to provide continuous uninterrupted service at all times; however the Service provided to the Customer is not fault free and relies on factors outside the control of The Web Hosting Machine. The Service is provided to the Customer at such times and means as The Web Hosting Machine decides.

12. Exclusion of Liability

Except as provided in clause 13 The Web Hosting Machine is not liable to the Customer or any other person for:
a) any cost, loss or liability (including loss of profit or other consequential damage) arising from The Web Hosting Machine’s supply or failure or delay in supplying Service. b)the content, context, or confidentiality of any communications made using the Service. The Web Hosting Machine does not provide support for third party software, including software downloaded from the Internet.

13. Limitation of Liability

Except as provided below all terms, warranties, undertakings, inducements and representations relating to the provision of any Service or goods are excluded and The Web Hosting Machine will not be liable for any loss or damage (including consequential loss or damage) however caused (whether by negligence or otherwise) in respect of any Service or goods inclusive of any software material hosted or designed by The Web Hosting Machine. However, The Web Hosting Machine’s liability for any breach of such implied term or warranty will be limited at The Web Hosting Machine’s option or in any way permitted by the legislation including where so permitted:
a) If the breach relates to goods: the replacement or repair of the goods; or the payment of the costs of replacing or repairing the goods.
b) If the breach relates to services: the supplying of those services again; or the payment of the costs of having those services supplied again.

14.Breaches

The Customer shall indemnify The Web Hosting Machine against any loss (including any loss of profit) incurred by The Web Hosting Machine as a result of any breach of the terms of any agreement with The Web Hosting Machine including damages in respect of any period up to and including the date of actual termination (including termination under clause 17).

15. Indemnity

The Customer shall indemnify The Web Hosting Machine against all claims, expenses, damages, or other liabilities arising directly or indirectly from accessing of obscene, defamatory, or offensive material via The Web Hosting Machine Internet service.

16. Termination

Either party may terminate a non-fixed term agreement with 30 days written notice. Any balance owing on an account must be paid prior to closure. After reasonable notice is given The Web Hosting Machine may terminate any agreement of the provision of any Service if:-
a) the customer breaches any term of any agreement
b) The Web Hosting Machine forms the opinion in good faith that the Customer is or may be insolvent.
Refunds will be given at the discretion of the Company Management. All outstanding charges become immediately payable on giving of such notice and in no circumstances shall the Customer be entitled to any refund of payments made under this Agreement.

17. Suspension of Service

The Web Hosting Machine may from time to time without notice, for reasons other than payment (reasonable notice will be given when possible) suspend any Service or disconnect or deny the Customer access to any Service:
a)During any technical failure, modification or maintenance involved in the Service provided that The Web Hosting Machine will endeavour to procure the resumption of the Services as reasonably practicable; or

b)If the Customer fails to comply with any agreement (including failure to pay charges due, having been notified of the overdue amount) until the breach (if capable of remedy) is remedied, or does, or allows to be done anything which in The Web Hosting Machine’s opinion may have the effect of jeopardising the operation of any Service.
Notwithstanding any suspension of any Service under this clause the Customer shall remain liable for all charges due through the period of suspension. An account that is suspended may not be altered or closed until full payment on any outstanding balance is received.

18. Information Received

Except as otherwise expressly permitted in writing, no person may reproduce, redistribute, retransmit, publish or otherwise transfer or exploit any information which they receive regarding The Web Hosting Machine’s Service in any way which is to be used for competitive purposes in relation to the Service.

19. Assignment

The Customer cannot assign its rights under any agreement with The Web Hosting Machine without the prior written consent of The Web Hosting Machine. The Web Hosting Machine may transfer your rights and responsibilities under this assignment to another party with 30 days written notice to you.

20. Governing Law

This Agreement is governed by the laws of Australia and the parties submit to the jurisdiction of the Australian Courts. It is illegal to view or provide certain types of information (notably types of pornographic material) in Australia. Users of The Web Hosting Machine may not break any laws while using the system. The availability of such material on the Internet is beyond The Web Hosting Machine’s control.

21. Acceptable Use

Users of The Web Hosting Machine are expected to adhere to all policies of The Web Hosting Machine, available in writing upon request or at: http://thewebhostingmachine.com/terms-of-service/  While hacking, spamming and port scanning are not currently illegal activities in Australia, The Web Hosting Machine does not support or condone these activities without the expressed consent of the recipient or administrator of that system.
The Web Hosting Machine’s servers may be used only for lawful purposes. Users may not use the The Web Hosting Machine’s Network in order to transmit, distribute or store material
(a) in violation of any applicable law,
(b) in a manner that will infringe the copyright, trademark, trade secret or other intellectual property rights of others or the privacy, publicity or other personal rights of others, or
(c) that is obscene, threatening, abusive or hateful.

Note:

 Pornography and sex-related merchandising are prohibited on all servers. This includes sites that may infer sexual content, or link to adult content elsewhere. This is also true for sites that promote any illegal activity or content that may be damaging to our servers or any other server on the Internet. Links to such materials are also prohibited.
In addition any site selling or promoting Bulk email services is not allowed.
Examples of non-acceptable content or links:
Pirated software, Hackers programs or archives, Warez Sites, Irc Bots.
We will be the sole arbiter as to what constitutes a violation of this provision.

22. Server Abuse

Any attempts to undermine or cause harm to a server is strictly prohibited.

23. CGI Scripts

Customers are free to use any CGI-Scripts provided with their account or add any additional ones they require. Any CGI-Scripts deemed to be adversely affecting the Server performance or the Network integrity may be shut down without prior notice. CGI-Script sharing with Domains not hosted by The Web Hosting Machine is not allowed.

24. Background Running Programs

Background Daemons in general are prohibited.

25. Commercial Advertising – Email:

The Web Hosting Machine’s servers may not be the source, intermediary, or destination address involved in the transmission of spam, flames, or mail bombs. Your domain may not be referenced as originator, intermediary, or reply-to address in any of the above. We consider spam any mass unsolicited message in the mediums of Newsgroups and Email. If you are found to have spammed, then we will immediately, without warning, disable your domain. We reserve the right to refuse or cancel service to known spammers. Lastly, we reserve the right to determine what violates this policy. As such, any violation will result in immediate deactivation of services without refund.

26. Client Content, Backups and Data Loss:

The Web Hosting Machine may perform backups of Shared Hosting Server’s (Standard Hosting Plans) content. The Web Hosting Machine makes every effort to ensure that these backups are valid. The Web Hosting Machine assumes no liability for any information published to any server including all customer web site content, related files, backup files, databases or mail belonging to any customer hosted at The Web Hosting Machine. Backup arrangements for client content for any frequency other than the standard backup frequency must be made by written contract and acceptance by The Web Hosting Machine and any such contract will be subject to premium monthly charges. The Web Hosting Machine assumes no liability for lost content in the event a hardware or system failure occurs and data maintained on the effected servers cannot be recovered from the most recent backups. Access to client content is provided to all customers at any time. It is the sole responsibility of account owner to ensure that they maintain their own backup copy of any materials placed on The Web Hosting Machine Servers, or of any database maintained on any server operated by The Web Hosting Machine in the event The Web Hosting Machine is unable to restore customer content from backup. AT NO TIME SHALL The Web Hosting Machine ASSUME ANY LIABILITY FOR LOST CUSTOMER CONTENT.

Last updated 14/02/2014