mupugly : Terms of Contract : T.O.C.

CUSTOMER TERMS OF CONTRACT

1. GENERAL
1.1  XXXXX will hereby be referred to as "we", us", "our", 'mupugly', 'mupugly.no-ip.org'. The customer will be referred to as "customer", "you" or "I".
1.2  Customer means anyone that we supply a service to.
1.3  XXXXX reserves the right to revise its terms and policies from time to time without notice. Updates will appear on the company website Legal section. By continuing your services you agree to these revisions.
1.4  You agree that the terms of this Agreement are severable. If any part of this Agreement is determined to be unenforceable or invalid, that part of the agreement will be interpreted in accordance with applicable law as closely as possible, in line with the original intention of both parties to the Agreement. The remaining terms and conditions of the Agreement will remain in full force and effect.
1.5  If a court rules that any of these conditions is not valid or cannot be enforced, the other conditions will continue to be valid and enforceable.
1.6  We are not responsible for maintaining or authoring your website. Once your account has been set up, it is entirely your responsibility to create your site. If this seems difficult we have several Web Design packages available.
1.7  Once ordered, products and services cannot be assigned across separate accounts. If required you may merge all duplicate accounts into one account.
1.8  Only the authorised person listed on the account entered at sign-up will have access to the account, and they will be referred to as the 'primary account holder'.
1.9  XXXXX will not be liable in any way whatsoever if a domain renewal is not successful and the customer has not not exercised due diligence to rectify this, in line with our limitation of liability set out below in this agreement.
1.10 Our services are only made available to individuals who can form legally binding contracts. Without limiting the following, our services are not available to suspended or ineligible customers. This includes 3rd parties who make use of a suspended customer's website or the services contained therein.
1.11 Persons under the age of 18 require parent or guardian supervision, or some other agent who is at least 18 years authorised to represent you.
1.12 You warrant that all actions that you make are done so in good faith and that you have no knowledge of your actions infringing upon or conflicting with the legal rights of a third party or a third party's trademark or trade name.

2. PRODUCT AND/OR SERVICE
2.1  When we supply a service to you, the terms and conditions of supply consists of:
2.1.1  these core terms; and
2.1.2  any applicable service terms; and
2.1.3  the applicable items in the price list;
2.1.4  Together, those terms and conditions and items are called the customer contract.
2.2  We may change our price list by publishing a new one on our web site.
2.3  Except for things set out in express terms in a customer contract, and things that are implied by law and cannot be excluded, there are no other representations, promises, warranties, covenants or undertakings between the parties and customer contracts contain the entire understanding between us.
2.4  You are responsible for:
2.4.1  the whole of the design and implementation of your web site; and
2.4.2  choosing the right virtual web hosting plan for your purposes.
2.4.3  Apart from the operating system and the web server software on a server, any software (e.g. CGI scripts) made available by us is supplied on an as-is basis, and without any warranty, and you are solely responsible for satisfying yourself as to its suitability for your purposes.
2.5  You must:
2.5.1  not publish any content that exposes us to the risk of legal action
2.5.2  not use the web site or allow it to be used for any unlawful purpose
2.5.3  not run any application on a web server that may impair the operation of the web server
2.5.4  not store log files for longer than 30 days, otherwise we will delete them
2.5.5  keep a backup copy of all material you upload to the web server
2.5.6  download and backup from the web server, any data that is created on the web server as often as necessary
2.5.7  observe all proper practices and procedures in relation to the security of the web site
2.5.8  remove any application that we determine to be harmful to the web site or web server
2.5.9  indemnify us against any harm we may suffer from a breach of these obligations, or as a direct or indirect result of the publication of the web site.
2.5.10 We may refuse to accept as part of a web site any application that we consider may cause harm or be a security risk.
2.6  You are solely responsible for selecting and procuring licences for any software you require for the purposes of your web site or email services, and for ensuring that it is compatible with our hardware and software.
2.7  We may change, remove or update any version of the software that runs on our web servers without notice but where we intend to change, remove or update any software on our web servers we will endeavour to give you notice.
2.8  Where we provide updated software it is your responsibility to ensure that any updated software is wholly compatible with your web hosting requirements.
2.9  If we provide any third party software to you, then:
2.9.1  we do so subject to the licence terms and conditions that apply to that software
2.9.2  you are solely responsible for ensuring the suitability and compatibility of the software.
2.9.3  If you use software not distributed or approved by us, you acknowledge that it may result in interference to the service or it may result in loss, which we are not responsible for
2.10 Personal accounts are to be used by the primary owner only. Personal account holders are not permitted resell, store or give away web-hosting services of their web site to other parties. Web hosting services are defined as allowing a separate, third party to host content on the owner's web site.
2.11 XXXXX reserves the right to refuse service and /or access to its servers to anyone.
2.12 You must:
2.12.1  be responsible for all data that you retrieve, store, transmit, or use in any other way
2.12.2  back up all your data
2.12.3  maintain the security of your password and user identification
2.12.4  not:
2.12.4.1  do anything which will damage or interfere with our network / system or facilities
2.12.4.2  do anything unlawful with a service
2.12.4.3  share a service with any third party without our written consent or
2.12.4.4  do anything with a service which may subject either you or us to a claim.

3.INDEMNIFICATION & LIABILITY
3.1  Customer agrees that it shall defend, indemnify, save and hold XXXXX harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney's fees asserted against XXXXX, 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 customer, its agents, employees or assigns. Customer agrees to defend, indemnify and hold harmless XXXXX against liabilities arising out of
3.1.1  any injury to person or property caused by any products sold or otherwise distributed in connection with XXXXX server
3.1.2  any material supplied by customer infringing or allegedly infringing on the proprietary rights of a third party
3.1.3  copyright infringement
3.1.4  any defective products sold to customer from XXXXX server.
3.2  XXXXX will not be responsible for any damages your business may suffer. XXXXX makes no warranties of any kind, expressed or implied for services we provide. XXXXX disclaims any warranty or merchantability or fitness for a particular purpose. The includes loss of data resulting from delays, non deliveries, wrong delivery, and any and all service interruptions caused by XXXXX and its employees. XXXXX reserves the right to revise its policies at any time.
3.3  We will not be liable to you whether under contract law, the legal rules about duties to other people (known as the law of tort) including negligence or otherwise, for:
3.3.1  any loss of profit, revenue or other type of economic loss (whether direct or indirect)
3.3.2  loss of business or contracts
3.3.3  loss of expected savings or goodwill or
3.3.4  any losses which a court categorises as consequential, or indirect arising out of or in connection with the contract, including but not limited to:
3.3.4.1  any mistake or missing information in the register and
3.3.4.1  loss of registration or use, or both (for whatever reason and whether temporary or otherwise), of the domain name.
3.4  The law normally implies terms into contracts, but you and we agree that, as far as the law allows, they do not apply to this contract.
3.5  You must not pursue any claim against XXXXX or against us, and we are liable to you for any direct, indirect, special, punitive, exemplary or consequential damages, including but not limited to damages resulting from loss of use, lost profits, lost business revenue or third parties damages, arising from any breach by us of our obligations under this document
3.6  Nothing in this document is to be read as excluding, restricting or modifying the application of any legislation which by law cannot be excluded, restricted or modified.
3.7  You must observe all laws of Australia in relation to your use of our services.
3.8  We are not responsible for the consequences of force majeure.
3.9  You may not transfer your rights or obligations under a customer contract to or share them with anyone without our prior written consent.
3.10 If any provision in this agreement is unlawful or inconsistent with any law, then to the extent of the unlawful nature or inconsistency, that provision may be severed from without affecting the remainder of the agreement.
3.11 This agreement and any customer contract is governed by the law of NSW, Australia.
3.12 In no circumstances are we liable for any indirect, secondary or consequential loss or loss of income that you or anyone else may suffer.
3.13 You indemnify us (on a full indemnity basis including all legal costs and expenses) against any claim, loss or damage we suffer to the extent that it arises from:
3.13.1  any act or omission
3.13.2  any breach of any law
3.13.3  any breach of a customer contract or an `Acceptable Use Policy`
3.13.4  any unauthorised use of a service by you or anyone using a service we provide to you.
3.14 By accessing any web site hosted on our network or servers, you understand, agree and are bound by this indemnification.
3.15 This indemnification is in addition to any other indemnification required of you elsewhere in this agreement.
Should XXXXX be notified of a pending law suit, or receive notice of the filing of a law suit, XXXXX may seek a written confirmation from you concerning your obligation to indemnify XXXXX. Your failure to provide such a confirmation may be considered a breach of this agreement.
3.16 We provide no warranties, express or limited, for services we provide, nor do we guarantee your web site or applications will work error free on our servers. This includes implied warranties of merchantability or fitness for a particular purpose. As such, we are not responsible for loss of data resulting from delays, software incompatibility, server or software issues, outages, no deliveries, wrong delivery and any service interruptions caused by XXXXX.
3.17 We do not guarantee uptime or service availability (unless we have entered into a Service Level Agreement with you) nor do we guarantee that services will be uninterrupted, timely, secure, or error free, or that defects will be corrected.
3.18 Should any part of this disclaimer be made invalid by relevant legislation (such as the Trade Practices Act) then the remaining part shall still be in force.
3.19 Some states or territories may not allow such a broad exclusion or limitation on liability for damages as contained herein. In such states or territories, XXXXX liability is limited to the full extent permitted by law. You agree that in no event shall XXXXX maximum aggregate liability exceed the total amount paid by you for the particular product or service in dispute purchased from XXXXX.
3.20 XXXXX does not create or publish web sites and is not the publisher or author of any web site you host or create. As the publisher, author, or reseller, it is your responsibility to ensure your web site(s) do not breach our terms and conditions or interfere with the server functions for other users.
3.21 XXXXX is not a web site publisher and is not responsible for or endorse the content hosted by or activities performed by you whilst using our services or by any sites you host.
3.22 XXXXX From time to time, a client that experiences difficulties in publishing their web site or troubleshooting technical problems may request we publish their web site or modify their web site on their behalf. XXXXX is this instance does not become the web site publisher and/or author and is making these changes by instruction of the Primary Account holder.
3.23 XXXXX does not endorse any web site content hosted on our network and the content remains the property of the web site owner.

4. OFFERS
4.1  Offers usually have an expiry date or some other condition which, when met, makes the offer null and void. These conditions can be changed by XXXXX at its discretion and at any time. XXXXX will not be obligated to provide the special offer and the reward or discount contained within once the offer is expired.
4.2  Some offers will be valid only for new customers, and other offers may be redeemed by all new and existing customers. If not specified by the offer, then all customers are eligible. However, other restrictions as listed in this section may apply.
4.3  Some offers may have additional terms and conditions attached to them. By redeeming the offer, you agree to be contractually bound by these additional terms and conditions. Should any term and condition specific to that offer be inconsistent with the provisions contained within the Special Offer clauses, then the specific terms shall prevail to the extent of the inconsistency.
4.4  XXXXX reserves the right to change the conditions of the offer while it is running. These could include the conditions of redemption, the type of offer, the prize or discount offered, and any other substantive terms. If you have redeemed the offer before the change, then you shall be entitled to the offer as if the old conditions were still operative. However, if you have already redeemed a discount or prize, and then the value of that discount or prize increases or changes, then you have no right in claim to any additional value or discount.

5. CHARGES AND PAYMENT OF PRODUCT AND/OR SERVICE
5.1  We reserve the right to change and refuse payment methods to clients at our sole discretion.
5.2  If we supply a mixture of services, prices and service terms that would apply to the different services if ordered separately apply to each of them individually within the mixture.
5.3 If a customer contract has a minimum term:
5.3.1  you cannot cancel it during the minimum term (except in specific cases where these terms say otherwise)
5.3.2  after that, either of us may cancel it by giving the other at least 30 days written notice, ending at the end of a billing month and otherwise
5.3.3  it continues until one of us cancels it.
5.4  If a customer contract has a repeating term, it serially repeats for that term unless one of us gives the other written notice that they do not wish to repeat it.
5.5  Except where express provision is made to the contrary, the consideration payable by the customer under this agreement represents the value of any taxable supply for which payment is to be made.
5.6  Subject to us supplying you with a valid tax invoice, if we make a taxable supply for a consideration, which represents its value, then you will pay, at the same time and in the same manner as the value is otherwise payable, (or, if for any reason that does not happen, without delay after we request you to) the amount of any GST payable in respect of the taxable supply.
5.7  Subject to us supplying you with a valid tax invoice, if this agreement requires you to pay, reimburse or contribute to an amount paid or payable by us in respect of an acquisition of a taxable supply from a third party, the amount required to be paid, reimbursed or contributed by you will be the value of the acquisition by us less any input tax credit to which we are entitled plus, if our recovery from you is a taxable supply, any GST payable.
5.8  A service means any goods or service that we offer or supply. Each service may be briefly identified by its service description.
5.9  We may publish extra terms that apply to a particular product or service (service terms).
5.10 Service terms may be set out in service information, or on an application form, or otherwise notified to you. Service terms only apply to the service they relate to. Service terms may include, or incorporate by reference, a service level guarantee. Service terms are part of our customer contract with you.
5.11 We may charge you for our products and services in accordance with our price list.
5.12 We may change the price list by publishing a new one our web site. A reference to price list means the current price list at any particular time. Changes take effect immediately. They have no effect on charges for services that have already been supplied. The price list is part of our customer contract with you.
5.13 We may receive an order in any form we choose e.g. by written application, on line, or over the telephone.
5.14 You must comply with any ordering procedures that we specify e.g. if we ask you to use a particular order form, you must do so.
5.15 You must ensure that you provide us with all the information we request in relation to your order and that the information you provide is correct.
5.16 We may charge you, and you must pay us, in accordance with our price list.
5.17 If your payment is dishonoured then we may pass on our banks dishonour fees to you.

6. SUPENSION AND CANCELLATION OF PRODUCT AND/OR SERVICE
6.1  If the Service is suspended and the grounds upon which it was suspended are not corrected by you within 7 days, we may terminate the Service. If the Service is terminated under this clause, you may apply for a pro rate refund of any prepaid charges for the Service, but we have the right to levy a reasonable fee for any costs incurred as a result of the conduct that resulted in the suspension.
6.2  If your invoice or account remains unpaid, or until the dispute is resolved, we reserve the right to cancel or suspend your entire account(s) and all products and services under it, including your domain names.
6.3  XXXXX shall continue to rebill a suspended account as normal notwithstanding that you may not be able to access any products or services.
6.4  If your account remains unpaid for 60 days, your information will be passed onto a collections agency for debt recovery. You will be charged the account balance plus a 25% premium and GST. Your information may also be given to legal practitioners and credit agencies if proceedings are initiated or debts remain unpaid.
6.5  We reserve the right to suspend your account at any time for breaching our terms and conditions, for initiating in activities which may reduce the security of other web sites on our servers, or where XXXXX been given misleading or false information regarding the type of web site to be hosted.
6.6  We reserve the right to seek and claim damages and losses from suspended accounts. We may use whatever legal means necessary to recover any outstanding debts.
6.7  If you have cancelled your account with XXXXX and would like to reactivate your account, you will need to place a new order.
6.8  If you do not pay our charges for a domain name registered to you we may refuse to provide a service you request.
6.9  We may suspend service under a customer contract without notice and without any liability for loss and without prejudice to our rights under the customer contract or at law if:
6.9.1  we suspect that your service has been accessed without authority, or the integrity of the your service has been compromised
6.9.2  we suspect that your service has been used for unlawful purposes
6.9.3  you have not paid money you owe us
6.9.4  we consider it is necessary to protect our network / system or facilities
6.9.5  you or a guarantor has an adverse credit report
6.9.6  you are in breach of any clause of your customer contract
6.9.7  a governmental or law enforcement agency asks us to do so
6.9.8  a wholesaler requires us to do so
6.10 We may terminate your customer contract/s immediately if you:
6.10.1  become insolvent
6.10.2  are subject to an application for winding up
6.10.3  are subject to any form of external administration or management
6.10.4  fail to pay us money within 14 days of it being due
6.10.5  breach a customer contract and fail to remedy the breach within seven days after receiving a notice requiring that it be remedied
6.11 If we terminate a customer contract because you have breached it, you must pay us, on invoice, the charges that would have been payable under that customer contract if it had not been terminated until after any minimum term.
6.12 If you have more than one customer contract, and you breach one of them, you are in breach of all of them. We can terminate any or all of your customer contracts, or exercise any other rights we have under a customer contract.
6.13 You release us from all losses and claims in respect of, or out of, such matters or their consequences.
6.14 We may delete any of your data left on a virtual web server after the end of this customer contract.
6.15 You are solely responsible for downloading any data that you wish to retain from or associated with your web site, before the end of this customer contract.
6.16 If any data is left on a web site the end of the customer contract, we may back it up or duplicate it in any manner we think is suitable, but we do not have to.
6.17 Suspension does not affect your liability for charges under your customer contract.