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Terms and Conditions

These terms and conditions (Agreement) are a legal agreement that govern your use of the services/products provided by Smarthosting.com.au. By applying, using or continuing the use of the services you indicate and acknowledge and agree to be bound by the terms and conditions of this agreement. This agreement does not cover services/products individually supplied by resellers and only covers services/products supplied by Smarthosting.com.au.

Information on this page is Copyright 2000-2012 by smarthosting.com.au, no duplication of these terms can be generated without written permission.

These terms and conditions contain:

• A general section that applies to all services and your dealings with us.
• A series of specific sections that apply only to certain services.

A specific section on any matter overrides any general term on the same matter and any inconsistencies between the specific and general sections shall be resolved by giving precedence to the specific section.

We do not operate any part of the domain name systems, or grant licensing for domain names. Those actions are maintained by the relevant registry(s) who are independently run beyond our control

We are the domain name registrar, our obligations include:

• The arrangement of domain name licenses to be granted to you by the relevant registry operators, subject to their rules, license terms, policies and any other requirements as listed by them and their governing bodies
• Carrying out limited functions on behalf of the registry operators
• Serving as a registrar of record
• Provision of online facilities for the management of domain names
• Provision of other, related services

This document contains the terms and conditions that apply between you, us and the services we provide as the registrar.

This document indicates the terms and conditions that are imposed by the relevant registry operators and the governing bodies to which they are associated.

For so long as we are the registrar of record for a domain name there is a service agreement between us and its registrant on these terms and those imposed by the registry operators and their governing bodies.

Registrant	The current licensee of a domain name.
.auDA	.au Domain Administration Limited ACN 079009340.
.auDA policy	Any policy listed by auDA. http://www.auda.org.au
Domain name license	A license for the use of a particular domain name.
Domain name license terms	The terms and conditions which apply to a domain license.
gTLD domain	Global Top Level Domain. A domain that ends in .com, .net, .org, .info or .biz.
ICANN	Internet Corporation for Assigned Names and Numbers.
Member	A person who registers with us as a member and is provided with a member ID.
Smarthosting.com.au	Smarthosting.com.au ABN 20 109 641 019.
Published Policies	The specifications and policies established and published by auDA from time to time at http://www.auda.org.au
Registrar	Entity responsible for the provision of domain name licenses.
Registrar of record	Entity by which a specific domain name is licensed through.
Registration fee	Current charge in respect of a domain name license.
Registration period	The period that a domain name license lasts for.
Registry operator	The entity which issues domain name licenses and maintains their respective records.
Renewal fee	Current charge in respect of renewing a domain name license.
Registrant Transfer	The transfer of a domain name license from one registrant/member to another. We refer to this as a transfer of ownership.
Registrar Transfer	The transfer of a domain name license from one registrar to another.
We, us, our, etc	Smarthosting.com.au ABN 20 109 641 018, trading under a number of business names and through resellers and other agents.
You, your, etc	A person who requests the provision of any services provided by us as a registrar.
Nominet	Domain name administration body for .uk domain names (Nominet UK - Company Number 3203859).
DNC	Domain Name Commission Limited.
NZRS	New Zealand Domain Name Registry Limited.
Service	Any product, license, package or account offered by us.
Days	Calendar days, unless specified otherwise.
Spam	Distribution of unsolicited bulk and/or commercial electronic messages over the Internet (Spam or Spamming).
Supplier	Any third party which provides a product/service which we resell/offer to you.

The following clause (5) applies in every case.

Each registry operator has terms and conditions, policies and requirements covering the registration, renewal, dispute resolution, and transfer of domain name licenses.

Each registry operator may impose new or amended terms and conditions, policies or requirements that take effect immediately.

Some registry requirements are set out in this service agreement, others are cross-referenced. A registry operator may have or introduce new ones.

You are responsible for familiarizing yourself with all registry requirements, whether or not they are included or referenced in this service agreement.

You apply for, and accept, registration for any domain name subject to all applicable registry requirements from time to time.

You release us from any claim arising from registry requirements or anything we do under them.

We are unable us to enforce registry requirements against third parties.

The issue of a domain name license entitles you to status of licensee for the domain name. A domain name is not an item of property and has no 'owner'. It is classed as an entry on the database of the registry operator.

The terms application, registration, activation, transfer of (and so on) a domain name merely reflect the application, registration, activation, transfer of (and so on) a domain name license.

A domain name license is subject to its license terms. It may not be used in breach of those license terms, many of which are registry operator (and their relating bodies) requirements, beyond our control.

Ownership of all copyright and database rights is kept by the registry operator.

You should not rely on the continued provision of a domain name license as evidence of a grant or renewed grant of permission to the use of the same. It is your responsibility to ensure a domain name license is within bounds of registry operator (and their relating bodies) requirements. You hold full responsibility for the renewal of domain name licenses.

In order to apply for a domain name license, you must:

• Complete our application form in full
• Read and agree with our service agreement
• Submit the appropriate registration fee
• Satisfy any requirements pertaining to the domain name license being applied for, and any other requirements notified by us

Submission of an application does not assure you of a domain name license, even if a preliminary check indicates domain availability.

Your application's success is fulfilled only if:

• Full registration fee has been paid and all cheques honoured by your bank and confirmed by our accounts department
• Your application complies with the association requirements and policies of the applicable registry operator
• The applicable registry operator approves your application and permits the issue of domain name license
• We have notified you in writing of the final approval of your application

You acknowledge that the registry operator reserves the right to reject registrations at any time. You may not assume the success of your application nor take any steps or outlay any further investment on the assumption that your application was successful. In any event, Smarthosting.com.au shall not be responsible fr any losses and damages that you may have suffered in reliance of your belief that your application would be successful.

A domain name license has a fixed period once activated.

Some domain name licenses have a choice of periods, some are fixed. Our application form will indicate the periods available for application. The domain name license period (pending its approval) will be that applied for.

You may renew your domain name license in accordance with these terms and those of the relevant registry operator.

You are solely responsible for renewing your domain name license. If you fail to do so prior to the end of previous license term your domain may become available for registration by third parties.

You release us from any potential claim arising from your failure to renew a domain name license.

We may elect to send notification of pending renewal as a courtesy, however:

• We are never obliged to do so
• You have no claim against us if we do not provide notification, or if notification does not reach you. It is your sole responsibility to ensure your electronic contact method is correct, active and fully functional

You are not obliged to renew your domain name license, nor pay any fees associated, unless you choose to do so.

If you choose to renew your domain name license you shall:

• Agree to any fees required as directed
• Agree to the latest service agreement as well as any related policies or requirements listed by the relevant registry operator
• Indicate the period for renewal from the available renewal periods as specified by us

A renewal is only successful if:

• The renewal fee has been paid and honoured
• Your renewal complies with the services agreement, polices and requirements of Smarthosting.com.au and the relevant registry operator
• The relevant registry operator approves the renewal request
• We have notified you in writing that your application for renewal has been approved

The period of your renewed domain name license is taken to commence from the date of expiry of your previous license.

You are able, at various times to process a change of your domain name license. These times are strictly limited to those mentioned within this document which includes the policies and requirements of the relevant domain registry(s).

A registrant transfer transfers ownership of a domain name license from one registrant to another. A registrant transfer consists of a transferor (old registrant) and a transferee (new registrant).

In order to successfully complete registrant transfer you must:

• Provide to us a complete Domain Transfer of Ownership form, as available on our website. The information on this form must be correct, valid and satisfy the requirements set out by the related registry operator
• Ensure that the transferor pays any outstanding fees owing to us
• Pay any specified fee's relating to the process of a registrant change
• Supply satisfactory documentation identifying both the transferor and transferee
• Ensure that the Transferee, in accordance with the Domain Transfer of Ownership form acknowledges the entry of this service agreement, our policies, and any requirements/policies of the related registry operator

The transferor releases us from any claims arising under or in relation to this agreement, their domain name license or its transfer as soon as the transfer is affected.

You are able (subject to policy of the relevant registry operator) apply for the transfer of a domain name license from another domain registrar (company) to ours. A registrar transfer to us is treated as an application for registration in that all clauses in this document are equally applicable. By applying for registrar transfer you agree with this service agreement and any policies as listed by us or the relevant registry operator.

As you are able to process a registrar transfer to us, you are also able to apply for a registrar transfer to another company. A transfer out is governed by the clauses of this document with reference to the specific section which pertains to the domain name which you are applying to transfer (.e.g. .com, .au, etc).

The charges for our services are published on our website. We maintain the ability to change them at will, however changes are not retrospective.

Charges for a service are those published at the time you request it. You agree to pay for all the services you request and/or use. Charges that you pay are non-refundable, unless under express consent of Smarthosting.com.au.

Failure to pay or failure of payment being honoured will void your application and relieve us of any responsibility with regards to the provision of the services applied for.

You are solely responsible for the renewal of any held services with us. We may, at our discretion, choose to send notification of expiry but are not obliged to do so. It is your responsibility to ensure that your electronic contact address is valid, active and correct. We cannot be held responsible for any loss/suspension/termination of any service.

We are not obliged to provide refunds for any product/service; however we may offer refund only if a cancellation request is filed within 72 hours of order application.

Deposit/Cheque order cancellations will result in a credit being applied to your account or result in a $15 surcharge to be taken from refunded amount.

It is your responsibility to ensure products and services are utilized as instructed and to their full potential. Refund will not be offered if there is evidence of inadequate or incomplete usage of the product or service. Direct Deposit overpayments will either be returned via full account credit or transaction reversal minus $15 surcharge.

It is your responsibility to ensure the appropriateness and compatibility of the products and services that you are purchasing. We take no responsibility for any mistakes in application either on the advice of our staff or your sole decision. We may choose, on your request to downgrade an account however no refund/credit will be applied if outside the 72 hour cooling off period.

Refunds granted 30 days after application will incur $15 surcharge.

No refund or account credit will be offered if requested in excess of 12 weeks after application.

You cannot not seek to reverse a payment (chargeback) in your favour.

We may hold you to the transaction resist the chargeback and charge you reasonable costs for doing so. We hold the right to suspend and/or cancel your service and decline you from any further services until all applicable costs have been paid.

If your domain name license is cancelled for any reason, under these terms or registry operator requirement; a third party may register the domain name instead of you and you release us from any claim arising from the cancellation.

We hold the right to suspend/cancel/terminate any hosting service for any of the following:

• Non-payment or failure to renew service
• Chargeback/reverse of payment
• If we have reason to believe you are not using the services in accordance with this service agreement
• If a competent regulatory authority/body requires us to do so
• At our sole discretion

Service provision may also be suspended/cancelled or terminated:

• If you are in breach of this agreement or registry operator policy. We may give you notice identifying the breach and requiring remedy with a specific time frame
• If you do not comply with our breach notice

You release Smarthosting.com.au of any claim arising suspension, cancellation or termination of any service.

In addition to any other options, we may, in our discretion, without notice, refuse to supply, cancel, suspend or transfer any service should we believe it is necessary to protect the integrity, stability and security of Smarthosting.com.au or our affiliates/agents; at the request of any law enforcement agency; pending any applicable dispute resolution process or in effort to avoid potential liability, civil or criminal, on our part.

We may provide notification or communication by:

• Emailing the notice or hyperlink to a webpage that contains the notice, to the most recent electronic contact address supplied to us
• Faxing to or calling the most recent number supplied to us
• Ordinary mail/hand delivery to the most recent postal address supplied to us
• Any other method permitted by law

Any notification or communication is deemed to have been received by you as follows:

• If it (or hyperlink to it) is emailed: one hour after it leaves our mail server
• If it is faxed: when issued successful delivery record from the machine
• If it is mailed: at 10AM on the second business day after posting it
• If it is hand delivered: at the time of delivery
• In any other method: at the time by which it would have been delivered as per the normal course of the given method

You undertake to us that if you; apply for, use, renew, transfer or take ownership of any service that:

• You are at least 18 years of age. We may terminate this agreement immediately without providing a refund if we discover that you are under 18 years of age at the time of entering into this agreement
• You will not at any time to publish using the services any material that infringes any third party's intellectual property rights or any other rights. You further agree to comply strictly with all relevant laws, regulations, ordinances and other legislation of whatsoever character as amended from time to time
• You shall not use any provided service for the purpose of sending unsolicited commercial email
• You shall not permit any other person to use your username in order to gain access to the service, nor shall you divulge to any other person any password which you may from time to time use in gaining access to the services. If your password becomes known, you will inform us immediately. We may require you to change your password where considered necessary
• You agree at all times to indemnify us for any expenses, costs, damages, penalties, imposts and any other liabilities we incur from time to time, whether directly or indirectly, as a result of you transmitting or receiving or in any other manner using any information, which transmission, receipt or use is facilitated by or connected with the provision of services to you, including without limitation liability for breach of copyright or any other intellectual property rights

This agreement is governed by the law of Western Australia.

Each party submits to the exclusive jurisdiction of the courts of Western Australia.

This agreement embodies the entire understanding and agreement between the parties as to the subject matter of this agreement.

A waiver by us of a provision or right under this agreement is binding on it only if it is given in writing and signed by our authorised officer. A waiver is effective only in the specific instance and for the specific purpose for which it was given. Failure by us to exercise or delay in exercising a right under this agreement does not prevent our exercise of the same right at a later date or operate as a waiver of our rights in the matter.

You must at our request promptly execute and deliver such further documents and do such further acts as are reasonably necessary to give full effect to your obligations under this agreement.

This clause is in addition to any other release or indemnity that you give us under this agreement and any of the relevant registry operators policies and agreements.

You indemnify us against any dispute between you and any third party with respect to any service offered by us.

You must indemnify, defend and hold harmless:

• Smarthosting.com.au in relation to all disputes on any domain name, its registry operator (e.g. AusRegistry for .au domains, Verisign Inc for .com domains)
• All directors, offices, employees, agents and affiliates of the above from and against any/all claims, damages, liabilities, costs and expenses, including reasonable legal fees and expenses arising out of or relation to the provision and use of our services

Each indemnity and release given to us or any other party under this agreement survives the termination or expiration of any service agreement.

This agreement does not exclude some laws, particularly the Trade Practices Act 1974. Such laws may provide rights and remedies that cannot be changed or excluded by this agreement;

• Smarthosting.com.au excludes all implied conditions and warranties, except any implied conditions and warranties, except any implied condition or warranty the exclusion of which would contravene any statute or cause any part of this Agreement to be void ("Non-excludable Condition")
• The liability of Smarthosting.com.au to you for breach of any express provision of this Agreement or any Non-excludable Condition is limited, at the option of Smarthosting.com.au, to refunding the price of the services in respect of which the breach occurred or to providing those services again (except for services of a kind ordinarily acquired for personal domestic or household use or consumption, in respect of which the liability of Smarthosting.com.au is not limited under this Agreement)
• Smarthosting.com.au is not liable for any failure to perform, or delay in performing, its obligations under this Agreement due to anything beyond its reasonable control. If that failure or delay exceeds 48 hours, you may terminate this Agreement with immediate effect by notice in writing to Smarthosting.com.au
• You shall not hold Smarthosting.com.au liable for any loss of privacy, provision of inaccurate information of advice, or damage to your computer systems or files, which may at any time result from your use of the Services. You understand that the email can be read in transit
• You accept sole legal responsibility for any messages, file, data or other form of communication which you may from time to time add to or transmit via the Services or receive in any manner whatsoever, and absolve Smarthosting.com.au from any such legal responsibility in this regard
• You understand and agree that opinions, advice, services and all other information expressed on the Internet are those of the provider and not of Smarthosting.com.au. Smarthosting.com.au exercises no control whatsoever over the content of the information passing through the Services

We may act on instructions or requests from a person who to us appears to be the registrant or person acting under authority of the registrant, without being under any obligation to do so having lodged notice of dispute as to the authority of that person.

You release use from any claim arising from action affected with relation to this clause.

We may amend this agreement at any time. Amended terms take effect when they are published unless otherwise specified following which if you continue to use the services, you are deemed to have agreed and be bound to such amendments. We maintain the ability to amend this agreement with retrospective effect in response to any illegal or antisocial conduct that is occurring or likely to occur.

New and amended registry operator requirements may take affect from time to time as indicated by clause 6.

We are not responsible for any delay in performing or failure to perform any obligation to you as a result of any matter beyond our reasonable control.

You acknowledge that we do not have direct control over search engine placement. We use our best endeavours to maintain a high position for your website, no ongoing guarantee of placement position is made or implied.

We guarantee a Google listing within 8 weeks of application to our SearchBooster product. This guarantee is dependent on:

• The provision of valid, correct and up to date information
• The satisfactory completion of the forms, steps and recommendations

We reserve the rights to deny refund should we deem unsatisfactory completion of the above.

The following clause (37) applies specifically to hosting services provided by us.

Logo & Web Design services are provided as a premium service. We may provide such services directly or via a third party. Third party services may be subject to specific agreements as supplied by them. By applying or using any service offered by us you must agree to this agreement and any agreement of our third party suppliers. The Logo & Web Design Services are an online offering where individuals or entities that have signed up as clients can post specific assignments and project descriptions, including illustrative samples or other media as part of their campaign brief.

Each package has an allocated number of concepts and revision rounds. Further revisions or concepts will only be available by upgrading to the higher package or purchasing relevant upgrade products.

Subject to the service terms and respective agreements, policies and procedures, we shall use commercially reasonable efforts to attempt to provide services Monday to Friday, 9AM to 5PM AWST with the exception of public holidays (all states and territories). You acknowledge that from time to time service may be inaccessible or inoperable for any reason. You agree to hold us free of any liability or indemnification that may come as a result of any inaccessibility or inoperability.

You are solely responsible for preparing and posting detailed descriptions of each of your Creative Briefs to the website, including providing samples illustrating your Creative Brief and any relevant deadlines.

We are under no obligation to review a Creative or Revision Brief for any purpose, including accuracy, completeness of information, quality or clarity. We may decide, at our sole discretion, to deny a Creative or Revision Brief.

When you are provided with a Revision, you are responsible for reviewing the Revision. If you fail to promptly advise that the Revision is not reasonably responsive to the Creative Brief, you will be deemed to have accepted the Revision.

If you notify us that you think a Revision is not reasonably responsive to the related Creative Brief, you shall then submit to us a Revision Brief containing information regarding amendments or modification to be made to the initial Response.

The purpose of the revision process is to create responses that move your project forward in the specific direction you have determined. You may request significant changes in the first and second cycles, and the Responses generated might be quite different in nature from the original composition you selected. Further revisions (subject to the purchased plan) shall be modifications to the current composition only.

We will provide monthly or annual maintenance in accordance with the service package purchased, ordered or maintained. If allocated maintenance time is not utilised during the respective maintenance schedule, they will not be carried over to the next schedule. Should the required maintenance exceed the allocation you may purchase additional time allocation in 30 minute blocks. Unused additional time allocation is not carried over and no refund will be issued for any allocation not used.

We require creative material be of sufficient quality and correct format, we reserve the right to deduct allocated time if we are forced to request re-submition. We will endeavour to advise if required maintenance appears to not be possible within allocated time but reserve the right to advise at any time that the time allocation is insufficient. Un-finished maintenance will not be published or distributed until further allocation has been purchased.

Colours: The default colour model for our logos is the CMYK format unless you specify that you require PMS (Pantone) prior to the start of the project. Any format change after the start of the project will have an additional charge.

Logo Design File Format: The source file will be in Adobe Illustrator (.ai) format. The fonts will be converted into outlines.

Other formats sent will be JPEG, TIFF, EPS, GIF and PDF. Additional formats can be required upon request.

Web Design File Format: The source files will be held on our Hosting Services in a format which is in line with recent design and format technologies.

Upon submission of a creative or response briefs or any other information or media provided by you in connection with your use of the Service, we and our agents shall have all rights and licenses necessary to use such client Information for the purpose of obtaining responses and for archival purposes.

Upon your submission of client information to the service, you grant us and our related agents a royalty-free, perpetual, irrevocable, sublicense able, exclusive, worldwide right (including any moral rights) and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, communicate to the public, perform and display (in whole or in part), and/or incorporate in other works, in any form, media, or technology now known or later developed, such Client Information, for the full term of any intellectual property rights that may exist in such Client Information to the extent necessary to provide you with the service and responses.

Logo Design: Subject to your compliance with these terms, you shall own the final the revision composition provided to you by us. You shall not, however, own any materials, media or other content generated during any revision cycles leading up to the final revision as set by your purchased plan. We expressly reserves all right, title and interest in and to the same. You acknowledge and hereby grant to us a royalty-free, irrevocable exclusive worldwide right to use Creative and revision briefs, individual responses provided to you, and final revision for internal and archival purposes, and in order to display and promote our services. We retain the rights to all artwork concepts and other content not selected by you. You acknowledge that your ownership rights under these terms are limited to the final revision, and that no trademarks or service marks in or to any final revision are being conveyed under these terms. You hereby acknowledge that we shall have no obligation or duty to perform trademark, service mark or copyright searches or inquiries, or the like, in order to validate the propriety or legality of the Final Product. Accordingly, you are encouraged to perform your own independent searches with regard to the final Revision. Furthermore, you acknowledge that we shall have no responsibility or obligation of any kind to assist you in seeking state or federal intellectual property protection (i.e., without limitation, trademark or copyright registration) for the final revision, nor shall we be responsible for otherwise assisting you in any way in your attempt to perfect your rights in or to the final revision.

Web Design: Ongoing service is soley dependant of your active subscription to the Web Design service. Failure to maintain your active subscription will result in suspension or termination of the services included with your normal subscription. You acknlowedge that this may result in your website being displayed to the public. Cancellation of the service will result is suspension or termination of the included services. Cancellation mid-term of applied service period will not entitle you to any refund. You acknowledge that all material developed by us or our third party partners belongs to and is copyright to us in accordance with copyright law. Payment of ordered services is allocated to the setup and maintenance of the services rendered in relation to the ordered service package only. You agree to prevent any unauthorized copying of any material relating to the services or resulting product. We do not grant any express or implied right to you. We reserve the right to utilise materials created through your services for any purpose, including utilising materials to promote our services via any medium.

The following clause (38) applies specifically to hosting services provided by us.

We may provide services directly or via a third party. Third party services may be subject to specific agreements as supplied by them. By applying or using any service offered by us you must agree to this agreement and any agreement of our third party suppliers.

It is your responsibility to ensure that any applied hosting package application is completed and activated ready for full use. Quoted times for account activation are estimates and we do not guarantee or imply activation within the quoted time frame. We may delay or refuse activation if:

• Payment is not cleared or received in full
• We believe the order, information or payment is fraudulent
• You have any funds outstanding with relation to any other account
• The domain name quoted does not exist, is in a non-usable state (e.g pending renew) or deemed to be proposed for use that voids our Acceptable Use policy
• There is any other reason which we deem satisfactory

We may send notification of hosting activation however:

• Your contact details must be correct and up to date
• This is not final word that your hosting is fully active and ready for use, you must ensure the hosting is fully functional

You release us of any claim arising from failed hosting activation whether at fault of our system, our staff or any other factor out of our reasonable control.

We will endeavour to maintain network stability and satisfactory service levels, however:

• We may from time to time perform routine maintenance, service and upgrades. We will endeavour to act on such instances at the most convenient times and provide reasonable notice by any means we deem satisfactory
• We may experience outages beyond our control caused by any of the following; force majeure (any 'act of god' including those induced by negative human activities), war, invasion, act of hostilities, civil war, rebellion, military power or confiscation, terrorist activities, nationalism, governmental/quasi-governmental sanction, restraint, embargo, prohibition or intervention, blockage, labour dispute, general strike, lockout or failure of utilities (electricity, telephone, etc), failure of hardware (our hardware as well as third party), failure of software, failed software or hardware upgrade or any other failure as caused by Smarthosting.com.au, our suppliers or any third party
• We may, at our discretion provide notification of outages whether planned or unplanned
• You release us from any claim or potential claim with relation to outages and any loss of business/service suffered by you or any third party

If any payment due from you to us is not received by the due date, you authorise us to directly debit that payment using the credit card account details provided by you upon registration.

We are entitled to recover (on a full indemnity basis) any costs, fees and charges (including legal costs) incurred in recovering any amounts owing by you to Smarthosting.com.au. Without limitation to the above, we may charge an administration fee of $30.00 for any dishonoured cheques.

You acknowledge that should we not receive renewal payment prior to the date of expiry we reserve the right to suspend services immediately without notice. We may provide a 30 day grace period whereby we will hold your information and data on our servers. Should this period expire without payment we reserve the right to purge all data pertaining to your account with us.

We reserve the right to suspend/cancel any/all service, including all domain names if:

• You have any outstanding invoice or account
• Your account is in dispute or dispute resolutions procedure, court order, judgement, findings or determination
• You fail to comply with any provision in this agreement or those referenced in this agreement
• There is evidence of fraudulent, illegal, defamatory, offensive activies, or any activity in breach of a third party's rights
• We deem your use of our services may jeopardize the operation of the service, Smarthosting.com.au or our suppliers
• We deem any other reason as satisfactory to protect Smarthosting.com.au, our staff and/or our suppliers

Any suspension or cancellation is subject to our Refunds Policy (clause 7 of this agreement).

If your account is cancelled under this agreement:

• You must pay all outstanding charges to us immediately
• We may revoke/terminate any license issued to or by you in relations to the services as of the date of cancellation
• We may immediately delete all data held prior to cancellation
• We may perform any action without notice

It is your responsibility at all times to:

• Use our service and services in a manner which does not violate any applicable laws or regulations
• Respect the conventions of the newsgroups, lists and networks that you use
• Respect the legal protection afforded by copyright, trademarks, license rights and other laws to materials accessible via our service;
• Respect the privacy of others
• Use the service in a manner which does not interfere with or disrupt other network users, services or equipment; and
• Refrain from acts that waste resources or prevent other users from receiving the full benefit of our services
• Ensure your use of our services remains ethical and in accordance with accepted community standards

You must at all times comply with law. You will be in breach of this policy on violation of state, federal or international laws.

It is not acceptable to use our service(s) to:

• Violate copyright or other intellectual property rights;
• Illegally store, use or distribute software; transmit threatening, obscene or offensive materials
• Engage in electronic 'stalking' or other forms of harassment such as using abusive or aggressive language
• Misrepresent or defame others
• Commit fraud
• Gain unauthorised access to any computing, information, or communications devices or resources, including but not limited to any machines accessible via the Internet
• Damage, modify or destroy the files, data, passwords, devices or resources of Smarthosting.com.au, other users or third parties
• Engage in misleading or deceptive on-line marketing practices;
• Conduct any business or activity or solicit the performance of any activity that is prohibited by law
• Make an unauthorised transmission of confidential information or material protected by trade secrets
• "Spam" or engage in "spamming" activities as defined in clause 4
• Engage obscene speech or materials, this includes, advertising, transmitting, storing, posting, displaying or otherwise making available; child pornography, offensive sexual content or materials or any other obscene speech or material
• Post or transmit defamatory, harassing, abusive or threatening language
• Create, distribute or provide information/data regarding internet viruses, worms, Trojan horses, pinging, flooding, mail-bombing or denial of service attacks;
• Facilitating a violation of this Acceptable Use Policy
• Perform any other action through utilization of any service which we deem unsatisfactory
• Attempt to do any of the above

You also agree not to attempt any of the following:

• Use 25% or more of system resources for longer than 90 seconds. There are numerous activities that could cause such problems; these include: CGI scripts, scripts, FTP, PHP, HTTP, Mail, etc
• Run any type of interactive real-time chat applications that require server resources. Remotely-hosted services are fully allowed
• Run stand-alone, unattended server-side processes at any point in time on the server. This includes any and all daemons, such as IRCD
• Run any software that interfaces with an IRC (Internet Relay Chat) network.
• Run any gaming servers/services
• Use hosting services for storage of any data not related to the displayed website.
• Any activity which causes the server to crash / restart
• Check their email more than every 3 minutes

You agree that we may at our discretion and by order of any law enforcement agency disclose information relating to your account and use of services. We may also report any action we find in breach of this agreement, local, state, federal or international laws and cannot be held liable for any outcome resulting in our actions.

Any breach of our AUP can result in immediate termination of services and loss of all data held on provided services. You release us, our staff and our suppliers of any liability resulting in such instances.

You agree that we shall have no liability to you or any other person with respect to any loss of service, data, business, indirect, incidental, consequential, special, exemplary or punitive damages, including loss of profit/goodwill for any matter whether such liability is asserted on the basis of contract, tort, breach of warranties either expressed or implied.

You agree to defend, indemnify, save and hold us, our staff and suppliers from any and all demands, liabilities, losses, costs and claims, including reasonable legal fee's asserted against us, our agents, our clients, our offices and employees, that may arise or result from any service provided, performed or agreed to be performed or any product sold by a customer, their agents and employees.

You agree to defend, indemnify, and hold us harmless against liabilities arising out of:

• Any injury to person or property caused by any products sold or otherwise distributed in connection with Smarthosting.com.au
• Any material supplied by the customer infringing or allegedly infringing on the proprietary rights, legal and/or civil rights of a third party
• Any breach of any representation or warranty provided herein
• Any negligence or wilful misconduct by you
• Any allegation that your account infringes a third person's copyright, trademark, or intellectual property right, or misappropriates a third person's trade secrets
• Any defective products sold to customers from our server

By accessing any service hosted on our network you understand, agree and are bound to this indemnification and any other indemnification mentioned in our service agreement and agreements referenced to therein.

Should we be notified of pending legal action or intention to seek legal advice, we may seek written confirmation from you concerning your obligation to indemnify Smarthosting.com.au. Failure to provide such confirmation may be considered a breach of this agreement.

We cannot be held responsible for any damages your business/operation may suffer. We provide no warranties, expressed or implied, for service we provide. Nor do we guarantee your website or applications will be error free on our servers. We are not responsible for loss of data resulting from delays, software incompatibility, hardware or software issues, outages, failed deliveries and any service interruption caused by Smarthosting.com.au, our employees or our suppliers.

Should any part of this policy be made invalid by relevant legislation, the remainder of the policy shall remain in force.

All Private Registration applications are subject to relevant policies and requirements of the Private Registry Authority and based on your agreement to such policy. By applying and making use of Services provided either directly or through a third party of Private Registry Authority, you understand and agree to all policies, both provided and referred by Private Registry Authority.

We may amend this policy at any time. It is your responsibility to review our website periodically to ascertain whether this policy has been changed. The amended policy will become effective as soon as they are posted on our website, following which if you continue to use the services, you are deemed to have agreed to be bound by those amendments.

This policy is governed by the law of Western Australia.

Each party submits to the exclusive jurisdiction of the courts of Western Australia.

This policy embodies the entire understanding and agreement between the parties as to the subject matter of this policy.