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Terms of service

Last updated 30 June 2010.

Webporter (ABN 17 791 043 196)

These are the terms and conditions of the supply of the products and services offered from time to time by Webporter ("the Service"). The Service may include but is not limited to the supply of any or all of the servers, web design, websites, web hosting, email, domain names, security certificates, Internet marketing and search engine optimisation services to be provided by Webporter ("we" or "us") to you. These terms apply to you as a user of the Service ("Customer", "Client" or "you").

In this agreement "Digital Data" means all information, data, text, logos, images, audio, movie clips and/or content in any form that forms part of the Client's websites and/or emails.

Please read these terms and conditions carefully:

1. Service usage

1.1 Web hosting and email

1.1.1 Acceptable use

1.1.1.1 You warrant to us that you will only use the Service for lawful purposes. You further warrant and undertake to us that:

you will not, nor will you authorise or permit any other person to, use the Server in violation of any law or regulations;
you will not knowingly or recklessly post, link to or transmit any material:
1. that is unlawfully threatening, abusive, harmful, malicious, defamatory, violent or teaching violence, obscene, pornographic or profane;
2. containing a virus or other hostile computer program;
3. that constitute or encourage a criminal offence, give rise to civil liability or that violates or infringes any trade mark, copyright, other intellectual property rights or similar rights of any person under the laws of any jurisdiction.
you will comply with Webporter's other policies and agreements as listed on our Terms and policies web page.

1.1.2 Web hosting licence

1.1.2.1 Unless prior written permission is sought and authorised by Webporter, any or all of the Service advertised under the category of:

MyWeb or BizWeb web hosting can only be used by the Client, and can not be sold, traded, or passed on;
MultiWeb web hosting can be used by you or provided to others, however can not be sold or traded;
ResellWeb hosting can be used by you, provided to others, onsold or traded.

1.1.2.2 You warrant and undertake to uphold clause 1.1.2.1 and understand that a failure to do so for any reason may result in the suspension of the Service. You further agree to pay the cost difference for the total time period between your existing web hosting plan and the most appropriate plan as determined by Webporter, plus a fifty dollar (AU$50) administration fee.

1.1.3 Exceeding data limits

1.1.3.1 If the disk space or the data transfer (bandwidth) limits are exceeded on a web hosting Service, you are fully responsible and agree to pay any additional charges and fees and/or having the Service suspended. All excess data transfer will be charged at the rate of $3/GB to the nearest whole GB. No excess disk space will be charged, however reaching your disk space will degrade your web hosting Service. If the Service was suspended, an administration fee of $50 will apply to reinstate the Service.

1.1.4 Spam and bulk email

1.1.4.1 You are responsible for sending mail in accordance with any relevant legislation, including but not limited to the Commonwealth Spam Act (2003). In the event of transmission of spam (as defined in the Commonwealth Spam Act (2003) and/or bulk email, Webporter reserves the right to terminate any or all related Services without prior notification. We will take all reasonable steps to ensure accurate and prompt routing of messages but we will not accept any liability for non-receipt or misrouting or any other failure of email.

1.1.5 Unlimited features disclaimer

1.1.5.1 Services may be advertised as coming with an unlimited number of a particular feature. By "unlimited" it is meant Webporter does not intentionally place any restriction on that particular feature. We do not warrant that a limit will not be reached due to software or hardware limitations or in the interest thereof.

1.1.6 Website backups

1.1.6.1 We will backup and archive websites on a regular basis for the purposes of disaster recovery. In the event of equipment failure or data corruption, we will 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. You must maintain a recent copy of your data at all times. We will not be liable for incomplete, out-of-date, corrupt or otherwise deficient websites recovered from our backups.

1.1.7 Service maintenance

1.1.7.1 We must perform scheduled maintenance to servers from time to time. We will 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 notify you by email the scheduled maintenance at least 48 hours in advance of the maintenance.

1.1.7.2 We do not warrant the existence, accuracy, or regularity of our backup services. Unless otherwise notified in writing, client is directly responsible for backing up any and all databases and files in connection with their use of the Services.

1.1.7.3 You agree to Webporter's use of spam and virus filters which may require us to use third party equipment or services to monitor and filter email traffic between our equipment and the Internet.

1.1.7.4 In contracting with Webporter for Services, the Client obtains no rights to the hardware and other infrastructure and facilities used by Webporter to deliver the Service.

1.1.8 Excessive resource usage

1.1.8.1 You agree to any web hosting service being suspended where such is found to be using excessive amounts of server memory, CPU or data transfer (Excessive resource usage). Webporter is the sole determinator as to what is deemed to be Excessive resource usage.

1.1.8.2 Webporter will attempt to notify you by email if it is determined that your web hosting service is consuming an excessive amount of resources. The email sent will inform you of any action taken and a list of resolution options.

1.1.8.3 Failing to receive any response or resolution, Webporter may terminate the web hosting account found to be consuming excessive resources after 28 days. You will be charged for the balance of the contract term associated with Service of the web hosting account.

1.2. Domain names

1.2.1 If you have requested that Webporter register, renew or redelegate an Australian (.au) or New Zealand (.nz) domain name on your behalf, you agree that you have read and accept the applicable domain registrant policies issued by our domain registrars, Enetica and Distribute IT.

1.2.2 You agree that in the event of a dispute about a .com, .net, .org and other top level domains as applicable, you will submit to and are bound by the Uniform Domain Name Dispute Resolution Policy (UDNDRP) and the Rules for UDNDRP.

1.2.3 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 .au Dispute Resolution Policy (auDRP).

1.2.4 In registering, renewing or redelegating a domain on your behalf, Webporter is acting as a reseller of third party registrars which your contact details will need to be divulged to and you may/may not receive communication from them.

1.2.5 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.

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

1.2.7 In respect of .au domains, you acknowledge that Webporter is not liable for any loss or damage resulting from non-renewal of your domain name for any reason.

1.2.8 Webporter may NOT register or renew your domain name where you have unpaid invoices, if you are in breach of any terms of your use of Webporter's services or for any other reason.

1.2.9 You expressly authorise and direct Webporter, if Webporter is able to do so, to: (a) be nominated as an authorised contact for your domain name with the domain name registrar; (b) be nominated to act on your behalf for registrar transfers in relation to your domain name; and (c) 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 then invoice you for the relevant charges in accordance with Webporter's list price from time to time.

1.2.10 You indemnify Webporter 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 Webporter's breach of this contract, or its negligent act or omission.

2. Guarantees and refunds

2.1 Money back guarantee for hosting plans

2.1.1 If you are not satisfied with the quality of the service received in respect to your hosting plan, you may cancel your service with Webporter within 30 days of commencement and request a refund for the services fees ("Money Back Guarantee").

2.1.2 The Money Back Guarantee is limited to one claim per customer and only applied to the first web hosting service purchased.

2.1.3 Customers who have amounts owing under any of their Webporter accounts, will first be provided with credit to balance these accounts.

2.1.4 If your hosting plan was canceled within the guarantee period, but was set up in conjunction with other services as part of a promotion; cancellation or termination of your hosting plan will void the promotion offer and you will be charged the full costs for any other services in the promotion.

2.1.5 Refunds claimed under the Money Back Guarantee are subject to the same conditions as all other refunds.

2.2 Refunds

2.2.1 No refunds will be given for unused portions of payments in advance unless the account has been terminated due to Webporter's breach of these terms and conditions. If you terminate a rolling fixed period contract before the end of its term, you will be charged for the balance of the contract term.

2.2.2 You are only entitled to a monetary refund or credit when (i) requested under any advertised money back guarantee, or (ii) we are at fault for not providing a service paid for and you have fully complied with this agreement.

2.2.3 No refunds are provided on domain names registered, transferred or renewed by us on your behalf. If you order a domain name that causes a domain registration, transfer or renewal, then you are required to pay for the full cost of the Service. We do not offer refunds for domain name registrations for any reason, including spelling mistakes, or miscommunication of the domain name.

2.2.4 We are not responsible for monetary refunds differing in amount to what was paid due to currency conversion rates.

2.3 Plan upgrading and downgrading

2.3.1 You are entitled to change plans appropriate to the Service once a month, or as required where upgrading. Upgrades to more expensive plans are free where the difference in cost for the total plan period is paid. Downgrades to a less expensive plans incur a $25 account administration fee and Webporter will provide credit for payments made on the remaining whole months in the contract term.

3. Service payment

3.1 Prices, invoices and payments

3.1.1 Fees associated with the Service are to be paid in advance unless otherwise agreed. Where the Service required recurring payments, the Client will be issued with an invoice approximately fourteen (14) days before a payment is due.

3.1.2 Upon registration of a credit card account, you give us authorisation to debit your credit card for all charges. Billing period is on a monthly cycle, typically at the start of each month.

3.1.3 The Client agrees to pay issued invoices no later than the required payment due date on the invoice. Invoices not paid prior to their due date may incur a late payment fee.

3.1.4 Webporter will attempt to provide the Client with timely invoices, however ultimate responsibility of tracking and making periodic payments for the Service lies with the client.

3.1.5 You must pay all Service charges, traffic and/or storage charges and other amounts incurred by you or any designated users or incurred as a result of any use of your password (whether authorised or not). All Service charges are payable by the due date of invoice.

3.1.6 Prices published are in Australian dollars do not include any government taxes or charges unless otherwise noted.

3.1.7 Webporter shall be entitled to immediately terminate this agreement or services if the Client fails to make timely payments to us.

3.2 Dishonoured cheques

3.2.1 Where the Client makes payment to Webporter by a cheque, the Client agrees to pay a twenty-five dollar ($25) dishonour fee if for any reason such a cheque is dishonoured.

3.3 Government taxes

3.3.1 Webporter is currently not required to, and therefore does not, charge Goods and Services Tax (GST) on products or services provided. Once Webporter is required to charge GST, Webporter reserves the right to add GST to future payments of the Service.

3.4 Payment surcharges

3.4.1 Webporter offer various payment methods which come with a surcharge to cover the cost of their convenience to you. The Client agrees to pay any surcharge as advertised on an invoice requiring payment.

4. Term, termination and reinstatement

4.1 Web hosting cancellation

4.1.1 If the Client cancels a web hosting service, they must do so by sending a cancellation request in writing before their service expires to avoid additional charges. The cancellation request must include the Client name, username, password and the details of the services to be cancelled.

4.1.2 The Client is responsible for removing all files from the server before the day for which the cancellation is requested. Webporter will not be held responsible for any files deleted or lost under any case.

4.2 Suspension/termination of services

4.2.1 We may from time to time without notice suspend the Service or disconnect or deny your access to the Service:

during any technical failure, modification or maintenance involved in the Service provided that we will use reasonable endeavours to procure the resumption of the Services as soon as reasonably practicable; or
if you fail to comply with any provision in this agreement (including failure to pay charges due), or do, or allow to be done, anything which in our opinion may have the effect of jeopardising the operation of the Service, until the breach (if capable of remedy) is remedied.
Notwithstanding any suspension of any Service under this clause you shall remain liable for all charges due throughout the period of suspension.

4.2.2 If your account has been suspended or terminated due to your breach, reactivation of your account will be completely at our discretion. If we agree to reactivate your account, we will require:

payment in full of all outstanding amounts; and
payment of a $50 reactivation fee.

4.2.3 Webporter may without notice to you remove, amend or alter your data upon being made aware:

of any claim or allegation;
of any court order, direction, judgment, determination or other finding of a court or other competent body; or
that the data is illegal, defamatory, offensive or in breach of a third party's rights.

4.2.4 We are under no obligation to provide you with a copy of your website in whole or part if we have suspended or terminated your access to the Service for your breach.

4.2.5 Unless directly communicated otherwise, you agree that we may contact you after termination of the Service by electronic means in respect of our services.

4.3 Domain name expiration

4.3.1 The Client looses all rights to their domain name upon the expiry of its registration. Webporter is under no obligation to retain domain names for client beyond their expiry date, and will not be held responsible if a domain name is lost for any reason, including a failure to renew it on time. Webporter reserves to right to retain, sell or distribute domain names as desired once they have expired.

5. Client liability and indemnification

5.1 You warrant that:

if you are not the Customer, you have the power and authority to enter into this agreement on behalf of the Customer and will indemnify Webporter for any breach of this agreement by the Customer; at the time of entering into this agreement you are not relying on any representation made by us which has not been stated expressly in this agreement, or on any descriptions or specifications contained in any other document, including any catalogues or publicity material which we have produced;
you will conduct such tests and computer virus scanning as may be necessary to ensure that data uploaded by you onto or downloaded by you from the Server does not contain any computer virus and will not in any way, corrupt the data or systems of any person; you will keep secure any passwords used with the Service; and,
you hold and will continue to hold the copyright in the Digital Data or that you are licensed and will continue to be licensed to use the Digital Data.

5.2 You are solely responsible for dealing with persons who access the Digital Data, and must not refer complaints or inquiries in relation to such data to us.

5.1 You agree that in no event shall Webporter be liable to any third party for your breach or alleged breach of any of the terms and conditions set forth in this agreement. The Client agrees to defend, indemnify and hold harmless Webporter from any and all expenses, losses, liabilities, damages or third party claims resulting from the Service provided to client.

6. Liability and warranty

6.1 TO THE FULL EXTENT PERMITTED BY LAW WE HEREBY EXCLUDE ALL CONDITIONS AND WARRANTIES NOT EXPRESSLY SET OUT HEREIN. EXCEPT AS SPECIFICALLY SET FORTH ELSEWHERE IN THIS AGREEMENT, WE MAKE OR GIVE NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS 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. 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.

6.2 We do not warrant that:

information, text, graphics, links, applications or other items on Webporter's sites is accurate or complete;
the Services provided under this agreement will be uninterrupted or error free;
the Services will meet your requirements, other than as expressly set out in this agreement; or
the Services 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 Webporter.

6.3 To the extent that the Service is not of a kind ordinarily acquired for personal, domestic or household use, our liability is limited to, at our option, to the resupply of the services again; or payment of the cost of having the services supplied again.

6.4 Except as expressly provided to the contrary in this agreement, we exclude all liability for indirect and consequential loss or damage of any kind, loss or corruption of data, 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.

6.5 Our total liability for loss or damage of any kind not excluded by clause 6.4, however caused, in contract, tort (including negligence), under any statute or otherwise arising from or relating in any way to this agreement is limited in aggregate to the fees paid by you for the Service in the previous 12 month period.

7. Governing law

7.1 This Agreement is made under, shall be governed by and construed in accordance with the laws of Queensland and Australia. The state and federal courts of Queensland, Australia, will have exclusive jurisdiction.

8. Integration

8.1 This agreement (including any references to other policies) represents the entire agreement between Webporter and you and supersedes all prior and/or contemporaneous agreements or understandings, written or oral between the parties with respect to the subject matter hereof. If any part of this agreement is found to be invalid or of no force or effect, this agreement shall be construed as though such part had not been inserted and the remainder of this agreement shall retain its full force and effect.

8.2 This agreement and the rights granted and obligations undertaken hereunder may not be transferred, assigned or delegated in any manner by client, but may be so transferred, assigned or delegated by Webporter. Any waiver or any provision of this agreement, or a delay by any party in the enforcement of any right hereunder, shall neither be construed as a continuing waiver nor create an expectation of non-enforcement of that or any other provision or right.

8.3 This agreement, which includes all of Webporter's policies, is subject to change without notice. Webporter may attempt to communicate changes to this agreement in email or writing, but disclaims responsibility for ensuring your complete awareness to them. Continued usage of Webporter's services after a change to this agreement constitutes your acceptance of such change or policy. We encourage you to regularly check for changes or additions.

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