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TERMS OF USE

PLEASE READ THESE WEBSITE TERMS OF USE CAREFULLY BEFORE USING THE SITE.

1. GENERAL

1.1 These Website Terms (the Terms) govern your use of our Site located at www.zenhosting.com.au (the Site) and form a binding contractual agreement between you, the user of the Site and us, Zen Hosting ABN 25 409 768 904 (Zen Hosting). For that reason, these Terms are important and you should ensure that you read them carefully and contact us with any questions before you use the Site.

1.2 By viewing or browsing the Site, you acknowledge that you have had sufficient chance to read and understand these Terms, and that you agree to be bound by them.

1.3 By completing the registration process and using the Services, you acknowledge that you have had sufficient chance to read and understand these Hosting Terms, and that you agree to be bound by them.

1.4 You warrant that you are at least 18-years-old and you are legally capable of entering into binding contracts. If you are under 18-years-old, you warrant that you have obtained consent from your parent or guardian and they agree to be bound by these Hosting Terms on your behalf.

1.5 If you do not agree to these Terms, you may not access or otherwise use the Site.

2. DEFINITIONS

Agreement means these terms and conditions of use and the documents referred to on it.

Content means any and all data, text, software, images, audio or video material and other content, in any medium, provided by Zen Hosting to you.

Customer means a person who gains access to the Services.

Customer Content means any and all data, text, software, images, audio or video material and other content, in any medium, provided by the Customer to be hosted on the Customer Site through the Services.

Customer Site means any website owned by the Customer that is hosted through the Services provided by Zen Hosting.

Hosting Terms means these Hosting Terms and the documents referred to in it.

Intellectual Property Rights means all intellectual property rights, including all copyright, patents, trade marks, design rights, trade secrets, domain names, know-how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application.

Services mean the website hosting services, SSL certificate services, and static IP address services offered by Zen Hosting. This includes Services currently offered by Zen Hosting and any Services or products that Zen Hosting may choose to offer in the future

Site means www.zenhosting.com.au.

User means any individual, business, or business representative and affiliates, who gains access to the Site.

User Generated Content means any and all data, text, software, images, audio or video material and other content in any medium produced and provided on the Site by a User.

You means you, the User.

Us, We, Our means Zen Hosting ABN 25 409 768 904.

3. ACCESSING THE SITE AND HOSTING SERVICES

3.1 You acknowledge and agree that although we will use all reasonable efforts to ensure that the Site and Services are available, temporary interruptions of the Site and Services may occur. We shall not be liable to any person or entity for loss or damage incurred by such downtimes.

3.2 All content and services provided on or through this site are provided "as is" and "as available" for your use. The content is provided without warranties or conditions of any kind either express or implied, including but not limited to implied warranties and conditions of merchantability, fitness for a particular purpose or non-infringement. Your use of this Site and Services is solely at your risk.

3.3 You agree to cooperate fully with Zen Hosting in connection with Zen Hosting’s provision of the Services. It is the Customer’s sole responsibility to provide any equipment or software that may be necessary for the Customer’s use of the Services. To the extent that the performance of our obligations under these Hosting Terms may depend upon your performance of your obligations, Zen Hosting is not responsible for any delays due to your failure to timely perform your obligations.

3.4 The Customer is solely responsible for ensuring that all Customer Content and Customer Sites are compatible with the hardware and software used by Zen Hosting to provide various Services, which may be changed by Zen Hosting from time to time in its sole discretion.

3.5 You are solely responsible for backing up all Customer Content, including but not limited to, any Customer Sites. Zen Hosting provides a limited back up service only and you agree to accept the risk of loss of any and all Customer Content should your Customer Content not be backed up due to the cut off times.

3.6 We reserve the right to withdraw or amend the Site, Content and Services we provide on the Site without notice. We may restrict access to some parts of or the entire Site and Services, from time to time.

4. REGISTRATION AND ACCOUNT OBLIGATIONS

4.1 You must register in order to avail the Services including making a purchase through our Services. In addition, there are fees for the registration, transfer and renewal of domain names via Zen Hosting. Any personal data or information provided by you is processed by us in accordance with our Privacy Policy. By registering to the Services and providing any such data or other personal information:

(a) you agree that all information provided during the registration process is true and accurate and you will update this information in order to keep it current, complete and accurate; and

(b) you agree to the terms of our Privacy Policy.

4.2 During the registration process, you will be asked to select a password for your Customer account. You agree to keep your password confidential at all times and must not disclose it to any third parties. You agree to be fully responsible for activities that relate to your Customer account or your password. If you have reason to believe that your password has been obtained by someone else without your consent, you must inform us immediately to disable your Customer account.

4.3 It is your responsibility to provide accurate, current, and complete information on the registration forms, including an email address that is different from the domain you are signing up under. We will use the primary email address we have on file in order to contact you. It is the Customer’s responsibility to ensure that the contact information for the Customer our account, including any domain accounts is accurate, correct and complete at all times.

4.4 Zen Hosting is not responsible for any lapse in the Services, including without limitation, any lapsed domain registrations due to outdated contact information being associated with the domain. If you need to verify or change your contact information, please contact us or update your contact information through the Zen Hosting system.

4.5 Providing false contact information of any kind may result in the termination of your Customer account. You may be required to provide government issued identification and possibly a scan of the credit card used for verification purposes. Failure to provide the information requested may result in your order being denied.

4.6 Registration of new domain names should be instantaneous. However, it may take up to 7 days for existing domain names to be transferred to Zen Hosting.

5. SCOPE OF SERVICES

5.1 Zen Hosting offers website hosting plans, static IP addresses, dedicated SSL certificates and the register, and transfer and renewal of domain names to Customers via the Zen Hosting Site.

5.2 The Services are provided to Customers for individual use, solely for internal use by you for your business, or for your own personal use.

5.3 The Services will be provisioned once the Customer order is approved by Zen Hosting.

5.4 The Services allow for Customers to incorporate Customer Content into any Customer Sites. Zen Hosting only provides the Services. Zen Hosting strongly advice Customers to exercise caution and do their own due diligence in managing their Customer Content and Customer Sites.

5.5 We may refuse to process a transaction for any reason or refuse to provide the Services to anyone at any time at our sole discretion. Zen Hosting will not be liable to you or any third party by reason of such a refusal or by reason of the unwinding or suspension of any transaction after processing has commenced.

5.6 Zen Hosting is not responsible or liable due to actions or failings of any third party provider associated with Zen Services.

6. PAYMENT

6.1 Any purchases for Services may be paid for using a Paypal account or bank transfers through third party merchant facilities. Zen Hosting is not responsible for and has no control over any third party merchant facilities. Customers acknowledge and agree that Zen Hosting will not be liable for any loss or damage arising out of their use of a third party payment gateway. Zen Hosting advises that Customers should read and understand the terms and conditions of the third party merchant facilities before using them.

6.2 If ongoing Services are requested by a Customer, Zen Hosting may issue tax invoices directly to the Customer as agreed between the parties. The Customer must make the payment for such tax invoices within the terms stipulated on the tax invoice.

6.3 All prices shall be shown in AUD including GST. Zen Hosting may also provide functionality to display the prices in other currencies from time to time, in its sole discretion.

6.4 Payment options for ongoing Services may be incurred on a monthly, biennially or annually basis. The payment option for purchased Services will depend upon the type of Service provided;

(a) Payments for hosting plans and static IP addresses will be monthly;

(b) Payments for dedicated certificates and domain names are made annually or biennially.

6.5 Where a Customer exceeds their bandwidth or disk space quota for the period, the Customer will be required to make an additional payment of:

(a) AUD$5.00 for an extra 500 megabytes; or,

(b) AUD$10.00 for an extra gigabyte of bandwidth.

The standard bandwidth or disk space quota will be renewed upon entering the next payment period.

6.6 Fees in association with Zen Hosting will be automatically deducted commensurate with each billing period.

6.7 A late payment fee charged at an additional 10% of the invoice for the subsequent payment period will be incurred by the Customer after 3 days of non-payment. If the customer does not settle the overdue account within 5 days, then Zen Hosting has a right to suspend their account indefinitely without notice.

7. INVOICING

7.1 Invoices will be automatically generated for each payment period by WHMCS All-in-One Client Management System Software for purchases of Services provided by the Site. Zen Hosting takes no responsibility for actions or failings of a third party provider.

7.2 Where a Customer exceeds their bandwidth or disk space quote within a payment period, the correlating invoice will be automatically adjusted to include additional fees for extra bandwidth or disk space quota provided within that payment period.

8. REFUNDS

8.1 If a Customer terminates the Services pursuant to clause 19 for any reason, Zen Hosting will not offer any refunds for a portion of any paid Invoices for ongoing Services. All payments for Invoices are non-refundable.

9. WEBSITE MIGRATION

9.1 Zen Hosting will make every effort to help Customers move their Customer Sites to the Services. Zen Hosting offers a free website migration service. However, this does not apply to domain transfers. Zen Hosting does not make any guarantees regarding the availability, possibility, or time required to complete an account transfer. Each hosting company is configured differently, and some hosting platforms save data in an incompatible or proprietary format, which may make it extremely difficult, if not impossible, to migrate some or all account data.

In some cases, Zen Hosting may not be able to assist Customers in a transfer of data from an old host.

9.2 You acknowledge and agree that there may be applicable domain registration, renewal, and transfer fees involved.

9.3 In no event shall Zen Hosting be held liable for any lost or missing data or files resulting from a transfer to or from Zen Hosting. You are solely responsible for backing up your data in all circumstances.

10. DISCLAIMER

10.1 This disclaimer of liability applies to any damages or injury caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft, or destruction or unauthorised access or, alteration of or use of record in connection with the use or operation of the Service, whether for breach of contract, tortious behaviour, negligence or any other cause of action.

10.2 We make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the Content contained on the Site for any purpose. Any reliance you place on such information is therefore strictly at your own risk. We disclaim any express or implied warranty representation or guarantee as to the effectiveness or profitability of the Site or that the operation of our Site or Services will be uninterrupted or error-free. We are not liable for the consequences of any interruptions or error in relation to our Services.

11. WARRANTIES

11.1 You warrant that you are not:

(a) Located in a country that is subject to an Australian Government or United States Government embargo, or a country that has been designated by the Australian Government or the United States Government as a “terrorist supporting� country; or

(b) Listed on any United States Government or Australian Government list of prohibited or restricted parties.

11.2 You also agree that you will not use Zen Services:

(a) For any activity that supports the development, production, handling, usage, maintenance, storage, inventory or proliferation of any weapons of mass destruction or weapons of mass destruction delivery systems or participation in transactions with persons engaged in such activities; or

(b) For resupply to any person or country that is subject to any sanction imposed pursuant to a decision of the United Nations Security Council.

11.3 The following warranties apply:

(a) GeoTrust certificates come with a 15-day refund policy;

(b) GeoTrust True Business ID multi-domain certificates come with a $1,250,000.00 warranty;

(c) the number of allowed reissues for GeoTrust certificates are as follows:

(i) three (3) during the first three (3) days of issuance;

(ii) three (3) after the first three (3) days but within the first 30 days of issuance; and

(iii) after 30 days, the total number of reissues is capped at six (6).

(d) rapidSSL certificates come with a $10,000.00 warranty; and

(e) rapid SSL Wildcard certificates come with a $5,000.00 warranty.

We strongly recommend that you read the warranty documents provided by these service providers directly and you agree to the terms contained therein. You acknowledge and agree that

Zen Services is not liable for any warranty claims made directly against the above service providers.

11.4 To the extent permitted by law, Zen Services are provided “as is� and “as available� and without warranty of any kind, either express or implied, including, but not limited to, warranties of merchantability or fitness for a particular purpose.

11.5 Without limiting the foregoing, Zen Hosting does not warrant that:

(a) Zen Services will meet your requirements;

(b) the use of our Services will be uninterrupted, timely, secure, or error-free;

(c) the results that may be obtained from the use of the Zen Services will be accurate, reliable or as expected.

12. CUSTOMER CONTENT

12.1 You must not present, upload or retain any Customer Content into any Customer Sites hosted through the Services:

(a) unless you hold all necessary rights, licences and consents to do so;

(b) that would cause you or us to breach any law, regulation, rule, code or other legal obligation;

(c) that is or could reasonably be considered to be obscene, inappropriate, defamatory, disparaging, indecent, seditious, offensive, pornographic, threatening, abusive, liable to incite racial hatred, discriminatory, blasphemous, in breach of confidence or in breach of privacy;

(d) that is unsolicited, undisclosed or unauthorized advertising;

(e) that are software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;

(f) that would bring us into disrepute; or

(g) that infringes the Intellectual Property or other rights of any person.

12.2 You agree to keep all records necessary to establish that your Customer Content does not violate any of the requirements under clause 12.1 and make such records available upon our reasonable request. You acknowledge and agree that Zen Hosting does not keep any records of Customer Content.

12.3 You retain ownership of your Intellectual Property and proprietary rights in any Customer Content. These Hosting Terms do not prevent you from granting non-exclusive rights to use your Customer Content to others.

12.4 We are under no obligation to regularly monitor the accuracy or reliability of Customer Content.

12.5 You hereby grant Zen Hosting a royalty-free, perpetual license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, play and exercise all Intellectual Property rights without limitation with respect to Customer Content worldwide or to incorporate Customer Content in other works in any media now known or later developed for the full term of rights that may exist in Customer Content.

12.6 You acknowledge and agree that Zen Hosting will undertake all reasonable steps to ensure that Customer Content is incorporated into Items in the highest resolution possible; however, the resolution reflected into Items is wholly dependent on the resolution of the Customer Content. As such, the Customer agrees to provide only high resolution Customer Content for incorporation into Items.

13. THIRD PARTY WEBSITES

13.1 The Site may link to other websites, services or resources on the Internet, such as Twitter and Facebook, and other websites, services or resources may contain links to the Site. These websites are not under our control and are not maintained by Zen Hosting. We are not responsible for the content of those sites. We only provide links to external websites as a convenience, and the inclusion of such a link to external websites do not imply our endorsement of those websites. You acknowledge and agree that when you access other websites on the Internet, you do so at your own risk.

13.2 We make no representation about any other website you access through this one. Please understand other websites are independent from our sites so we do not accept responsibility for such websites.

14. ZEN HOSTING AS RESELLER OR LICENSOR

14.1 Zen Hosting may act as a reseller or licensor of certain third party services, hardware, software and equipment used in connection with the Services (Non-Zen Hosting Products). Zen Hosting shall not be responsible for any changes in the Services that cause any Non-Zen Hosting Products to become obsolete, require modification or alteration, or otherwise affect the performance of the Services.

14.2 Any malfunction or manufacturer's defects of Non-Zen Hosting Products, either sold, licensed or provided by Zen Hosting to you will not be deemed a breach of Zen Hosting's obligations under this Agreement. Any rights or remedies you may have regarding the ownership, licensing, performance or compliance of any Non-Zen Hosting Product are limited to those rights extended to you by the manufacturer of such Non-Zen Hosting Product.

14.3 Customers are entitled to use any Non-Zen Hosting Product supplied by Zen Hosting only in connection with their use of the Services as permitted under these Hosting Terms. The Customer shall make no attempt to copy, alter, reverse engineer, or tamper with such Non-Zen Hosting Product or to use it other than in connection with the Services.

14.4 The Customer shall not resell, transfer, export or re-export any Non-Zen Hosting Product, or any technical data derived therefrom, in violation of any applicable law, rules or regulations.

15. DATA PROTECTION

15.1 Zen Hosting shall maintain reasonable administrative, physical, and technical safeguard methods for protection of the security, confidentiality and integrity of all User Data. Zen Hosting will not modify, disclose (except as compelled by law), or access User data except to prevent technical problems, or at a Users’ request in connection with support concerns.

15.2 Zen Hosting provides its Users’ an option to open an account and choose a unique username and password. The User must maintain their account username and password with the strictest of confidence and repeatedly update the password. If a User believes their username and/or password has been compromised, they must contact Zen Hosting by email immediately to reset the account.

15.3 The User has sole responsibility for adequate security protection and backup of data and/or equipment used in connection with their usage of the Site and will not make a claim against for lost data, re-run time, inaccurate instruction, work delays or lost profits resulting from the use of the Site.

16. BACKUPS AND DATA LOSS

16.1 Your use of the Services is at your sole risk. Zen Hosting’s backup service runs every night and backups are stored for up to 30 days only. Zen Hosting is not responsible for files and/or data residing on your Customer account. You agree to take full responsibility for all files and data transferred and to maintain all appropriate backup of files and data stored on Zen Hosting’s servers.

17. INTELLECTUAL PROPERTY

17.1 Nothing in these Terms constitutes a transfer of any Intellectual Property rights from us to you.

17.2 We own and retain all proprietary rights to the Site, and all associated Intellectual Property rights, excluding User Generated Content. This includes all knowledge based articles authored by Zen Hosting presented by the Site. You are permitted to use the Site only as authorised by us. As a User, you are granted a limited, non-exclusive, revocable, non-transferable right to use the Site to create, display, use, play, and download Content or User Generated Content subject to these Terms.

17.3 Our Intellectual Property must not be used in connection with a product or service that is not affiliated with us or in any way brings us in disrepute.

17.4 You must not modify the physical or digital copies of any Zen Hosting Content you print off or download in any way, and you must not use any illustrations, photographs, video or audio, or any graphics separately from any accompanying text located within the Site.

17.5 Any opinions, advice, statements, services, offers, or other information or content expressed or made available by Customers are those of the respective author(s) or distributor(s) and not of Zen Hosting.

18. LIMITATION OF LIABILITY AND INDEMNITY

18.1 You agree that we shall not be liable for any damages suffered as a result of using, copying, distributing, or downloading Content from the Site.

18.2 You agree that we shall not be liable for any damages suffered as a result of using the Services provided by Zen Hosting.

18.3 In no event shall we be liable for any indirect, punitive, special, incidental or consequential damage (including loss of business, revenue, profits, use, privacy, data, goodwill or other economic advantage) however it arises, whether for breach of contract or in tort, even if it has been previously advised of the possibility of such damage.

18.4 Any opinions, advice, statements, services, offers, or other information or User Generated Content expressed or made available by Users or third parties, are those of the respective author(s) or distributor(s) and not of Zen Hosting. We do not endorse any of the Users, and expressly disclaim any and all liability in connection with them. We do not pre-screen or monitor User Generated Content. In no event shall we be liable for any claims by a third party pursuant to any consumer and competition law, such as the Competition and Consumer Act 2010, including, but not limited, to any misleading statements made and/or incorporated into any User Generated Content. It is your sole responsibility to ensure the accuracy of the data inputted and any other User Generated Content.

18.5 You have sole responsibility for adequate security protection and backup of data and/or equipment used in connection with your usage of the Site and/or Services and will not make a claim against for lost data, re-run time, inaccurate instruction, work delays or lost profits resulting from the use of the Site and/or Services.

18.6 Without limiting the foregoing, in no event will our aggregate liability to you exceed, in total, the amounts paid by you to us.

18.7 As a condition of your access to and use of the Site and/or Services, you agree to indemnify Zen Hosting and its successors and assigns for all damages, costs, expenses and other liabilities, including but not limited to legal fees and expenses, relating to any claim arising out of or related to:

(a) Your access to and use of the Site, it’s Content and Services; and

(b) Your violation of these Terms and any applicable law or the rights of another person or party. This indemnification section survives the expiration of your registration, and applies to claims arising both before and after the registration ends.

19. TERMINATION

19.1 You agree that we may, at any time and at our sole discretion, with or without cause or any notice to you, terminate these Terms, your access to the Site and/or Services, and/or your registration, or suspend or block your access to the Site and/or Services.

19.2 We may terminate or suspend your access to the Services if there is a failing to make any required payments or fees. If you subsequently want your account to be reinstated, you must pay all monies due and owing to us including any applicable costs or charges. You may then have to open a new account as all your data may have been deleted, archived, or lost.

19.3 We shall not be liable to you or any third party for any claims or damages arising out of any termination or suspension or any other actions taken by us in connection therewith.

19.4 If applicable law requires us to provide notice of termination or cancellation, we may give prior or subsequent notice by posting it on the Site and/or Services or by sending a communication to any address (email or otherwise) that we have for you in our records.

20. NOTICE

20.1 By using the Site and/or Services, you accept that communication with us will be mainly electronic. We will contact you by email or provide you with information by posting notices on the Site.

20.2 You acknowledge that all contracts, notices, information and other communication we may provide electronically comply with any legal requirements that such documents are in writing.

20.3 Notice will be deemed received and properly served immediately when posted on the Site and/or Services, 24 hours after an email is sent, or 3 days after the date of posting any letter. As proof of service, it is sufficient that:

(a) For letters, the letter was properly addressed, stamped and placed in the post; and

(b) For emails, the email was sent to the specified email address.

21. NO WAIVER

21.1 If we fail, at any time, to insist upon strict performance of your obligations under these Terms, or if we fail to exercise any of the rights and remedies we are entitled to under these Terms, this will not constitute a waiver of such rights or remedies and it will not relieve you from compliance with your obligations.

21.2 If we waive a default, it does not constitute a waiver of any subsequent defaults.

21.3 No waiver is effective unless it is expressly stated by us to be a waiver and is communicated to you in writing as per clause 20.

22. FORCE MAJEURE

We shall be under no liability to you in respect of anything that, if not for this provision, would or might constitute a breach of this Agreement, where this arises out of circumstances beyond our control, including but not limited to:

(a) Acts of god;

(b) Natural disasters;

(c) Sabotage;

(d) Accident;

(e) Riot;

(f) Shortage of supplies, equipment, and materials;

(g) Strikes and lockouts;

(h) Civil unrest;

(i) Computer hacking; or

(j) Malicious damage.

23. ZEN HOSTING AS CONTRACTOR

Zen Hosting is independent from any Customers and nothing contained in these Terms places Zen Hosting and any Customers in the relationship of principal and agent, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.

24. SEVERABILITY

If any court decides that any of the provisions of these Terms are invalid, unlawful or unenforceable to any extent, that term will, to that extent only, be severed from the remaining terms. The rest of these Terms will continue to be valid.

25. ENTIRE AGREEMENT

25.1 These Terms, and the documents expressly referred to in them, constitute the entire Agreement between you and Zen Hosting, and supersede all previous discussions, correspondence, negotiations, previous arrangements, understanding or agreement between us relating to the Site.

25.2 We each acknowledge that, in entering into these Terms, neither of us relies on, and subsequently will have any remedies for, any representation or warranty that is not set out in these Terms.

26. GOVERNING LAW AND JURISDICTION These Terms are governed by the laws of the State of Western Australia, Australia and each party submits to the jurisdiction of the courts of the State of Western Australia, Australia.

27. UPDATES TO THESE TERMS

27.1 We reserve the right, in our discretion, to correct any errors or omissions in any part of the Site. We may restrict access to parts or the entire Site at any time, including, but not limited to, Content, certain features and services, hours of availability, and equipment needed for access or use, without notice or liability.

27.2 Any material on the Site may be out of date at any given time and we are under no obligation to update such material.

27.3 We reserve the right, in our sole discretion, to change, modify, add or remove any part of these Terms, in whole or in part, at any time. Notification of the changes to these Terms will be posted on the Site and will be effective immediately, unless expressed otherwise.

27.4 It is your sole responsibility to periodically check these Terms for any changes. If you do not agree with any of the changes to these Terms, it is your sole responsibility to unsubscribe from the Site. Your continued use of the Site will be deemed as your acceptance thereof.

27.5 We may assign or sublicense any of our rights or obligations under these terms and conditions at any time, without obtaining your consent.

Terms last updated on 5th January 2015.