ACCEPTANCE OF TERMS OF SERVICE
As a precondition and requirement to use the services available via cobah.com.au , you, for yourself and for the company or other person(s), if any, you represent (“Subscriber” or “Subscribers”, as applicable), hereby accept and agree to be legally bound by these Terms of Service (“Terms”). These Terms are effective immediately between the Subscriber and Niwi Pty. Ltd., trading through cobah.com.au , its subsidiaries and affiliates (“Niwi Pty. Ltd.”). Each Subscriber is subject to these Terms, and by using Niwi Pty. Ltd.’s services, network and/or systems (collectively the “Services”), Subscriber agrees to be legally bound by and subject to all terms and conditions contained in these Terms, including as well all usage policies and other policies herein. To the extent not inconsistent therewith, these Terms are also incorporated into the individual service agreement, if any, of each Subscriber.
Subscriber represents and warrants that, if an individual, Subscriber is at least 18 years old and otherwise legally competent in all respects to, or, if an entity, Subscriber is a corporation, limited liability company, partnership, or other legal entity duly formed and in good standing, as applicable, and possesses all legal authority and power to accept and be bound by these Terms.
Additionally, Subscriber represents and warrants that neither it, she, or he (as applicable), nor any entity it, she or he represents, is prohibited under any part of section 13 of these Terms from registering or signing up with or otherwise subscribing to or receiving any of the Services from Niwi Pty. Ltd. Further, Subscriber represents and warrants all information provided by Subscriber to Niwi Pty. Ltd. has been and is complete, accurate, and current, and that Subscriber shall continue to provide complete, accurate and current information to Niwi Pty. Ltd. in connection with all registration or renewal processes and further agrees to update all such information as necessary to maintain complete, accurate and current information. Although subscribers of paid services offered through Niwi Pty. Ltd. must be at least 18 years of age and otherwise legally competent to accept and be legally bound by these Term, a parent or legal guardian of a minor may obtain an account on the minor’s behalf, and by doing so, consents to such minor’s use of the Services. Subscribing parents and legal guardians each for herself or himself, as applicable, accept and agree to be legally bound by these Terms, and assume full responsibility and liability associated with any failure of compliance with the Terms in connection with said minor’s use of any of the Services.
Niwi Pty. Ltd. intends to provide the best possible web hosting service to each of its Subscribers. Niwi Pty. Ltd. is also dedicated to staying abreast of new and available technologies that will better serve our Subscribers. However, due to changing technologies, changing laws and the individual and collective needs of our Subscribers, Niwi Pty. Ltd. reserves the right, in its sole discretion, to change, modify, add or remove all or any part of these Terms at any time with or without notice.
Subscribers may view the most current version of these Terms at www.cobah.com.au/terms. Any use of the Services by Subscriber, after changes, modifications, additions or deletions to these Terms are posted on the cobah.com.au website, shall constitute Subscriber’s acceptance of all such changes, additions, modifications or deletions. If a Subscriber does not agree to any such alterations to these Terms, the Subscriber’s sole and exclusive remedy is to cancel the Subscriber’s account as set forth in Paragraph 3 below.
Notwithstanding Niwi Pty. Ltd.’s right to alter these Terms without prior notice, Niwi Pty. Ltd. may, within its sole discretion and as a courtesy to all affected Subscribers, make an effort to provide Subscribers with 7 days advanced notice of any alteration of these Terms if it appears to Niwi Pty. Ltd., in its sole discretion, that said alteration may materially and adversely impact said Subscriber’s use of the Services.
If Subscriber is registering a new domain name with Niwi Pty. Ltd., or using or transferring a previously registered domain name in conjunction with Subscriber’s use of the Services, Subscriber hereby acknowledges and agrees that Subscriber’s use of the domain name is also subject to the policies of the Internet Corporation for Assigned Names and Numbers (“ICANN”) and the Domain Registration Agreement located at http://api.fastdomain.com/terms.html and has read the Registrant Rights and Responsibilities located at http://www.icann.org/en/registrars/registrant-rights-responsibilities-en.htm.
TERM – PAYMENT – RENEWAL OF ACCOUNT AND OF DOMAIN
Term of Service. The term of Subscriber’s subscription to the Services commences upon Subscriber’s acceptance of these Terms and terminates as set forth in Paragraphs 2.05 and 3.01.
Payment. Subscriber agrees to pay all applicable fees for Services in effect at the time of sign-up registration and/or renewal, subject to these Terms. Subscriber agrees to update and keep current all of Subscriber’s billing information, email and all other contact information. It is the Subscriber’s responsibility to verify that the information submitted is accurate to insure proper billing and continuity of services. Niwi Pty. Ltd. may use Merchant Updater Services to receive updated billing information from participating providers.
Automatic Renewal of Hosting Account. As a courtesy and not as an obligation (contractual or otherwise), fifteen (15) days prior to the expiration of Subscriber’s Hosting Account or Domain(s) Niwi Pty. Ltd. will automatically renew Subscriber’s Hosting Account by charging the applicable fee for the non-promotional rate to Subscriber’s current method of payment on file. The initial term of this Agreement shall be as set forth in the Registration Form (the “Initial Term”). The Initial Term shall begin upon commencement of the Services to User, and after the Initial Term, this Agreement shall continue for successive periods (or renewal period) of equal length as the Initial Term or such other Term and price that shall be set forth in a notice to the customer at least 24 hours prior to the commencement of such successive period or renewal period. In the case of insufficient funds we will attempt to collect at a partial term quantity ( not changing your current term) to continue service as per contract. Additionally after the initial Term, you acknowledge, agree and authorize us to automatically bill and/or charge on your credit card for successive or renewal periods, unless terminated or cancelled by either party as provided in this section. The Initial Term and all successive renewal periods shall be referred to, collectively, as the “Term”. Subscriber acknowledges and confirms that if the Subscriber pays for a hosting plan which qualifies for a Free Domain that the Subscriber will be provided with a digital domain registration voucher to be used for purchasing their Free Domain. The domain registration voucher is only applicable as long as the Subscriber maintains a qualifying hosting plan.
Automatic Renewal of Domain(s). As a courtesy and not as an obligation (contractual or otherwise), fifteen (15) days prior to the expiration of Subscriber’s domain, if registered with Niwi Pty. Ltd. (or one of its Affiliates), or if transferred to and registered with Niwi Pty. Ltd. (or one of its Affiliates), Niwi Pty. Ltd. will automatically renew Subscriber’s domain, by charging the applicable fee to Subscriber’s current method of payment on file. Subscriber acknowledges and confirms that the obligation to renew his/her/its Domain(s) is solely and exclusively the responsibility of the Subscriber, and is not the obligation (contractual or otherwise) of Niwi Pty. Ltd.. Subscriber hereby releases Niwi Pty. Ltd. from any and all liability for failure for any reason to renew said Account or said Domain(s). Subscriber acknowledges that there may be many reasons why Niwi Pty. Ltd. is unable to renew said Account or Domain, including but not limited to inability of Niwi Pty. Ltd., for any reason, to bill said renewal to Subscriber’s method of payment on file, to contact or otherwise get response from Subscriber at the email address on file, or otherwise. Subscriber acknowledges that said Hosting Account and/or Domain, if not renewed, for whatever reason, will expire on the Account or Domain Expiration Date, as applicable. In the event that a Domain expires, Niwi Pty. Ltd. will hold the expired Domain for up to 30 days as a courtesy and not as an obligation (contractual or otherwise). 30 days after expiration, the Domain will be placed in Redemption. During the Redemption period the Domain will be inaccessible and unable to be registered elsewhere. In order to bring a Domain out of Redemption, Subscriber must pay a Redemption Fee, as well as a Renewal Fee for the current year. Domain registration vouchers cannot be applied toward the cost of Redemption. If the Domain is not redeemed within 74 days of expiration, it will be set to Pending Delete status by the domain registry. After the Pending Delete status expires, the Domain will be released for registration. During the Pending Delete period, the Domain will be inaccessible and unrecoverable.
Cancellation of Automatic Renewal of Account or Domain. Subscriber agrees to notify Niwi Pty. Ltd. of Subscriber’s intent to cancel automatic renewal at least sixteen (16) business days prior to the account or domain expiration date, by directing Automatic Account Renewal Cancellation Notification and/or Automatic Domain Renewal Cancellation Notification to Niwi Pty. Ltd., as applicable, by sending same via email to firstname.lastname@example.org. This request must include verification of ownership of the hosting account and/or domain(s), as determined by Niwi Pty. Ltd..
Authority. In the event Subscriber is a corporation, limited liability company, partnership, joint venture, other business entity or group of individuals, the person registering for or renewing Niwi Pty. Ltd. Services on behalf of Subscriber hereby certifies that he/she has the authority to and does hereby bind the corporation, limited liability company, partnership, joint venture or other individuals in this manner and in connection with Subscriber’s acceptance of all other Terms set forth herein.
CANCELLATION OF SERVICES – REFUND POLICY
Cancellations and Refunds. Niwi Pty. Ltd. provides a 30-day money back guarantee for new hosting account registrations, subject to the following terms and conditions:
Nonrefundable Fees: Fees paid by Subscriber in connection with the purchase of SSL certificates, Site Backup & Restore, SEO package, Sitebackup Pro, domain privacy, and domain names are nonrefundable, as are Check Refunds of $10.00 or less due to processing fees.
Cancellations within First 3 Days of Registration. In the event Subscriber cancels the Services within 3 calendar days of registration, Subscriber will receive a full refund of all fees paid in connection with the registration upon request, with the exception of any Nonrefundable Fees set forth in Paragraph 3.01(A). Subscriber has the option, but not the obligation, to retain ownership and control of any promotional “Free Domain Names” registered in connection with the subscription, in which case Subscriber’s refund will be reduced by AU$14.95 per domain name.
Cancellations After 3 Days and Before 30 Days. In the event Subscriber cancels the Services after the expiration of 3 calendar days, but prior to the expiration of 30 calendar days, Subscriber will receive a refund of all fees paid in connection with the registration, with the exception of any Nonrefundable Fees set forth in Paragraph 3.01(A), subject to the following additional mandatory reductions:
Free Domain Names: If Subscriber registers any domain name as part of a “Free Domain Name” promotion in connection with the registration, Subscriber’s refund will be reduced by AU$14.95 per domain name. Subscriber will retain full ownership and control of any such domain names.
Postini/DedIP Any fees paid by Subscriber in connection with Postini or for services of a Dedicated IP will be refunded at a prorated rate based on the registration date, the length of service, and the date of cancellation.
Cancellations After 30 Days. Subscriber may cancel his/her/its Services at any time, before or after automatic account renewal, and, with the exception of any Nonrefundable Fees set forth in Paragraph 3.01(A) and setup fees, if any, which are nonrefundable after 30 calendar days, receive a pro-rated refund for all other fees paid for Services, less AU$14.95 per “Free Domain Name.”
Notice of Cancellation. Subscriber agrees to direct all cancellation requests to Niwi Pty. Ltd. via email, email@example.com. The cancellation request must include verification of ownership of the hosting account and/or domain(s), as determined by Niwi Pty. Ltd.. Subscriber must also confirm to Niwi Pty. Ltd. that all emails, files, and databases are preserved and backed up somewhere other than Niwi Pty. Ltd. server space.
Chargebacks and Reversals. In the event Subscriber issues a chargeback or reversal of charges without first following the above cancellation procedures, the Subscriber will be responsible for a $50.00 billing service fee.
These Terms do not give Subscriber any rights in Niwi Pty. Ltd. intellectual property or technology. Niwi Pty. Ltd. and related trademarks and logos are the exclusive property of Niwi Pty. Ltd.. Niwi Pty. Ltd. and Subscriber agree that neither will, directly or indirectly, reverse engineer or decompile object code or execution code, nor otherwise seek to obtain source code or trade secrets of the other party. Notwithstanding the foregoing, nothing herein shall bar Niwi Pty. Ltd. from using any knowledge, information or skills that are generally known or that can be learned or otherwise acquired in the normal course of business.
SECURITY AND OWNERSHIP
Site Security and Updates. Niwi Pty. Ltd. uses sophisticated means of security in connection with the Services. Notwithstanding the foregoing, it is exclusively Subscriber’s obligation to maintain and control passwords to Subscriber’s web site(s), and Subscriber exclusively is responsible for all activities that occur in connection with Subscriber’s user name, password, and registered domain name(s), as well as any and all scripts or programs added to the account by the Subscriber or authorized users. Subscriber agrees to immediately notify Niwi Pty. Ltd. of any unauthorized uses of the Service or any other breaches of security. It is exclusively Subscriber’s responsibility to update and secure any programs or scripts available via the cPanel interface. Subscriber’s failure to update and secure any programs or scripts available via the cPanel interface may result in Niwi Pty. Ltd. either updating the programs and scripts or suspending your account services until they are updated. Niwi Pty. Ltd. will not be liable for any loss or damages of any kind, under any legal theory, caused by Subscriber’s failure to comply with any of the foregoing security obligations or caused by any person to whom Subscriber grants access to Subscriber’s Services, or due to any updates performed by Niwi Pty. Ltd. pursuant to the terms of this section.
Access and Control Policy. When a new account or domain, as applicable, is registered with or transferred to Niwi Pty. Ltd. or with one of its affiliates, the process requires and results in the creation of the following within the records of Niwi Pty. Ltd., in association with said new account or domain: i) Name of person registering; ii) email address; iii) user name; iv) password; and, v) associated payment information, such as Visa, Mastercard, etc., Credit Card Number & name thereon, etc.
If a person contacts Niwi Pty. Ltd. and claims that he or she is entitled to access to an account, website, or domain registered with Niwi Pty. Ltd. or its affiliate but is without access (for any reason such as but not limited to forgotten password or forgotten user name, data loss or corruption on personal computer, improperly locked out, and so forth), Niwi Pty. Ltd. will give access to the person who acceptably evidences he or she has substantially all of: i) name of the person who originally registered; ii) email address of the person who originally registered; iii) the user name of the person who originally registered, if possible; iv) the associated payment information of the person who registered, such as Visa, Mastercard, etc., Credit Card Number & name thereon, etc. (mandatory); and, v) a photo identification evidencing she or he is the rightful possessor and user of said credit card or payment medium (mandatory). Otherwise, Niwi Pty. Ltd. will not give access and control to a claimant unless Niwi Pty. Ltd. is served with a valid order of a court, agency, or appropriate Internet controlling entity such as Internet Corporation for Assigned Names and Numbers (“ICANN”), requiring Niwi Pty. Ltd. to give such access and control to said claimant or unless there is submitted to Niwi Pty. Ltd. at firstname.lastname@example.org a written statement duly signed by the person who originally registered said account which statement is duly notarized, and in which said originally registering person confirms that said claimant is entitled to access and control of the account, together with a written notarized statement duly signed by claimant which confirms claimant is entitled to access and control of said account, website and/or domain and has read and agreed to these Terms of Service. Subscriber acknowledges and accepts that the foregoing access and control policies and procedures are the only way that notice(s) can be given and changes can be effected regarding said access and/or control; and, further, that any other changes made directly by Subscriber or by others within the online records of Niwi Pty. Ltd. or of its affiliates shall not be deemed effective to give notice to Niwi Pty. Ltd. or its affiliates of any changes in said access or control.
Subscriber acknowledges and accepts said access and control policy and procedure, agrees not to bring any claim in the form of a lawsuit or otherwise against Niwi Pty. Ltd. arising out of its following said policy and procedure, agrees immediately to dismiss any claim so brought, and hereby releases Niwi Pty. Ltd. from all liability and all claims for damages or any other liability whatsoever that may arise out of Niwi Pty. Ltd.’s following said policy and procedure.
License to Niwi Pty. Ltd. Niwi Pty. Ltd. claims no ownership interest in the content of Subscriber’s web site(s). By submitting content and data to Niwi Pty. Ltd., Subscriber grants to Niwi Pty. Ltd., its successors and assigns, the worldwide, royalty-free, and nonexclusive license under Subscriber’s copyrights and other rights, if any, in all material and content displayed in Subscriber’s web site to use, distribute, display, reproduce, and create derivative works from such material in any and all media, in order to maintain such content on Niwi Pty. Ltd.’s servers during the term of these Terms. Subscriber also authorizes the downloading and printing of such material, or any portion thereof, by end-users for their personal use. This license shall terminate upon Subscriber’s cancellation of the Services as set forth in Paragraphs 2.01 and 3.0.
Transfer of Ownership. Niwi Pty. Ltd. is not responsible to determine ownership of websites hosted by, accounts opened with, or domains registered with Niwi Pty. Ltd. or its affiliates. By accessing Niwi Pty. Ltd.’s system, registering, or using any of the services provided by Niwi Pty. Ltd., the Subscriber, or any other person so accessing, registering or using, hereby represents and warrants that the information provided in connection with said registration, including as well information concerning ownership of websites, domains, and accounts, is true, accurate, and complete in each material detail. Any disputes arising regarding the ownership of any account, website, or domain hosted by, opened with, or registered with Niwi Pty. Ltd. or any of its affiliates are subject to the terms and conditions of Section 5.5 of these Terms.
Niwi Pty. Ltd. will recognize a change of ownership of account(s) with, of websites hosted by, and/or of domains registered with Niwi Pty. Ltd. or its affiliates only in the event that at least one of the following occur: i) there is received by the Compliance Manager (email@example.com ) a written statement (in a form acceptable to Niwi Pty. Ltd. or applicable affiliate) containing the notarized signature of the original owner of the account, website, and/or domain, as applicable, confirming that ownership of the website, domain, and/or account, as applicable, has been transferred to a person (claimant) claiming to own said website, domain and/or account, as applicable, along with a written statement containing the notarized signature of the claimant confirming that she or he has acquired said ownership, has read and agrees to be bound by these Terms of Service; or, ii) Niwi Pty. Ltd. is served with a valid order of a court, agency, or appropriate internet controlling entity such as Internt Corporation for Assigned Names and Numbers (“ICANN”), requiring Niwi Pty. Ltd. (or affiliate) to transfer such ownership to said claimant.
Subscriber acknowledges and accepts that the foregoing policies and procedures regarding transfer of ownership are the only way that notice(s) can be given and changes can be effected regarding said transfer of ownership within Niwi Pty. Ltd.; and, further, that any other changes made directly by Subscriber or by others within the online records of Niwi Pty. Ltd. or of its affiliates shall not be deemed effective to give notice to Niwi Pty. Ltd. or its affiliates of any changes in said ownership.
Disputing Site or Account Ownership Disputes sometimes arise between or among multiple persons claiming ownership of or rights in a site hosted by Niwi Pty. Ltd. or in an associated Niwi Pty. Ltd. account. Niwi Pty. Ltd. is not obligated to resolve any such disputes. If multiple persons are claiming ownership of or rights in a site hosted by Niwi Pty. Ltd. or in an associated Niwi Pty. Ltd. account, and, in Niwi Pty. Ltd.’s sole judgment, there is not certainty as to the ownership of or rights in said site or account, then Niwi Pty. Ltd. will, to the extent of its knowledge and ability, notify said persons of the dispute and demand that said persons promptly, conclusively, and finally resolve the dispute in a manner which makes clear who the owner(s) and/or interest holder(s) is/are and in a manner which relieves Niwi Pty. Ltd. of all liability or obligations concerning the dispute. If the disputing persons fail so to resolve the dispute within what Niwi Pty. Ltd., in its sole judgment, deems to be a reasonable time, then Niwi Pty. Ltd., at its option and without any obligation to do so, may, in accordance with and subject to the laws of the State of New South Wales, file an interpleader action in a court of competent jurisdiction within the State of New South Wales for the purpose of allowing the contending persons to resolve said dispute and to reach certainty regarding ownership of or rights in said site and/or account. The person or persons conclusively and finally determined by the interpleader action to be the rightful owner(s) or interest holder(s) of said site and/or associated account shall be obligated to reimburse Niwi Pty. Ltd. for all of its expenses relative to said interpleader action including without limit all its court costs and reasonable attorney fees. All amounts owed to Niwi Pty. Ltd. under this section 5.03 shall be deemed due and payable immediately upon thirty (30) days after judgment or settlement is reached.
Commitment. The Niwi Pty. Ltd. commitment to our Subscribers’ privacy is set forth in this section. Except as required by law or as otherwise provided herein, Niwi Pty. Ltd. will take commercially reasonable steps to ensure your right to privacy. Niwi Pty. Ltd. is committed to developing long lasting relationships that are built on trust and will never intentionally violate that trust.
Encryption. When Subscriber orders from Niwi Pty. Ltd., Personal Data Transmissions are encrypted. When Subscriber orders from Niwi Pty. Ltd., all of Subscriber’s personal information is protected. Niwi Pty. Ltd. uses Secure Sockets Layer (SSL), the industry standard, for encrypting all personal information, including name, address and credit card numbers.
Confidentiality. With the exception of trusted business affiliates and/or associates who work on behalf of or in connection with Niwi Pty. Ltd., subject to specific confidentiality agreements, Niwi Pty. Ltd. will not provide or sell to any third party your personal information and will keep all Subscriber information confidential, subject to the following:
Upon registration, certain Subscriber information is transferred to WHOIS (domain registration information), to our affiliated third-party registrar, FastDomain, to Postini (email addresses), and to Comodo (SSL cert. creation).
Niwi Pty. Ltd. will respond to subpoenas, court orders, or other legal process, and will utilize Subscriber information as necessary to establish or exercise Niwi Pty. Ltd.’s legal rights or defend against legal claims. Niwi Pty. Ltd. will charge the person or entity for submitting a civil subpoena for costs associated with subpoena compliance. Payment must be made within thirty (30) days from the date of receipt of the Niwi Pty. Ltd. invoice. Checks should be made out to Niwi Pty. Ltd.. Niwi Pty. Ltd.’s subpoena compliance costs are as follows: Research-$150.00/hour; Federal Express-Cost as Billed; Copies-$1.00/page; Compact Discs – $10.00/per CD.
Niwi Pty. Ltd. will share information to investigate, prevent, or take action regarding illegal activities, suspected fraud, situations involving potential threats to the physical safety of any person, violations or suspected violations of these Terms, or as otherwise required by law.
When we are threatened with suit by a third party, or any other legal action brought to our attention involving us based on the anonymity of the domain, we may seek assurance from you the customer concerning your promise to indemnify us and written notice that you have contacted the plaintiff or representative for the complainant and made your contact information available to them. Failure to provide those assurances may be considered by us to be a breach of your Agreement and may result in deactivation of your domain name and forfeit the right to privacy on a domain. A pro-rated refund will be issued to the payment method on file for the remaining unused service.
“UNLIMITED” USAGE POLICIES AND DEFINITIONS
What “Unlimited” means. Niwi Pty. Ltd. does not set an arbitrary limit or cap on the amount of resources a single Subscriber can use. In good faith and subject to these Terms, Niwi Pty. Ltd. makes every commercially reasonable effort to provide its Subscribers with all the storage and bandwidth resources needed to power their web sites successfully, as long as the Subscriber’s use of the service complies with these Terms. By not setting limits on key resources, we are able to provide simple, consistent pricing to our Subscribers as they grow their websites. As a result, a typical website may experience periods of great popularity and resulting increased storage without experiencing any associated increase in hosting charges.
What “Unlimited” DOES NOT mean. Niwi Pty. Ltd. employs complex mechanisms to protect its Subscribers and systems from abuse. Niwi Pty. Ltd.’s offering of “unlimited” services is not intended to allow the actions of a single or few Subscribers to unfairly or adversely impact the experience of other Subscribers.
Niwi Pty. Ltd.’s service is a shared hosting service, which means that multiple Subscriber web sites are hosted from the same server and share server resources. Niwi Pty. Ltd.’s service is designed to meet the typical needs of small business and home business website Subscribers in the United States. It is NOT intended to support the sustained demand of large enterprises, internationally based businesses, or non-typical applications better suited to a dedicated server.
Niwi Pty. Ltd. will make every commercially reasonable effort to provide additional resources to Subscribers who are using their website(s) consistent with these Terms, including moving Subscribers to newer and bigger shared servers as necessary. However, in order to ensure a consistent and quality experience for all Subscribers, Niwi Pty. Ltd. does place automated safeguards to protect against any one site growing too quickly and adversely impacting the system until Niwi Pty. Ltd. can evaluate said sites resource needs.
Unlimited Hosting Space; excessive MySQL files.Niwi Pty. Ltd. does not set arbitrary limits on the amount of disk space a Subscriber can use for the Subscriber’s website, nor does Niwi Pty. Ltd. charge additional fees based on an increased amount of storage used, provided the Subscriber’s use of storage complies with these Terms. Please note, however, that the Niwi Pty. Ltd. service is designed to host websites. Niwi Pty. Ltd. does NOT provide unlimited space for online storage, backups, or archiving of electronic files, documents, log files, etc., and any such prohibited use of the Services will result in the termination of Subscriber’s account, with or without notice. Accounts with a large number of files (inode count in excess of 200,000) can have an adverse affect on server performance. Similarly, accounts with an excessive number of MySQL/PostgreSQL tables (i.e., in excess of 1000 database tables) or of database size (i.e., in excess of 3GB total MySQL/PostgreSQL usage or 2GB MySQL/PostgreSQL usage in a single database) negatively affect the performance of the server. Niwi Pty. Ltd. may request that the number of files/inodes, database tables, or total database usage be reduced to ensure proper performance or may terminate the Subscriber’s account, with or without notice.
Unlimited File Transfer. Niwi Pty. Ltd. does not set arbitrary limits on the amount of visitor traffic a web site can receive or on the amount of content a Subscriber can upload to his/her/its website in a given month, nor does Niwi Pty. Ltd. charge additional fees based on increased use of bandwidth, as long as the Subscriber’s use of the Services complies with these Terms. In most cases, a Subscriber’s web site will be able to support as much traffic as the Subscriber can legitimately acquire. However, Niwi Pty. Ltd. reserves the right to limit processor time, bandwidth, processes, or memory in cases where it is necessary to prevent negatively impacting other Subscribers.
Unlimited Domain Hosting. Niwi Pty. Ltd. does not set arbitrary limits on the number of domain names a Subscriber can associate with the Subscriber’s web hosting account.
Breach of Terms and Account Termination. The uses of Niwi Pty. Ltd. Services set forth in this section 9 hereinbelow are prohibited. The engaging in any prohibited use as set forth herein by Subscriber or by any affiliate or subscriber of Subscriber ( as determined in the sole discretion of Niwi Pty. Ltd.) constitutes a material breach of these Terms and will subject Subscriber’s account to immediate termination without notice and without any refund.
Spamming. Spamming, whether or not it overloads the Services or disrupts service to Niwi Pty. Ltd.’s Subscribers, is prohibited. The term “Spamming” includes, but is not limited to, the sending of unsolicited bulk and/or commercial messages over the Internet, maintaining an open SMTP policy, or sending to any mailing list that is not double opt in. Niwi Pty. Ltd. requires that all email messages contain an automated opt out . We do not allow purchased lists. Niwi Pty. Ltd.’s Subscribers are required to follow all rules in the Can Spam Act (http://www.ftc.gov/bcp/edu/pubs/business/ecommerce/bus61.shtm) as well as our company spam rules. Niwi Pty. Ltd. reserves the right to determine, in its sole and absolute discretion, whether e-mail recipients were part of an opt-in email list. Irrespective of whether an email campaign constitutes Spamming as defined herein, Niwi Pty. Ltd. allows a MAXIMUM of 500 emails per hour to be sent from any individual hosting account.
Prohibited Offerings. No Subscriber may utilize the Services to provide, sell or offer to sell the following: controlled substances; illegal drugs and drug contraband; weapons; pirated materials; instructions on making, assembling or obtaining illegal goods or weapons to attack others; information used to violate the copyright(s) of, violate the trademark(s) of or to destroy others’ intellectual property or information; information used to illegally harm any people or animals; pornography, nudity, sexual products, programs or services; escort services or other content deemed adult related.
Profanity. Profanity or profane subject matter in the site content and in the domain name are prohibited.
Private Information and Images. Subscribers may not post or disclose any personal or private information about or images of children or any third party without the consent of said party (or a parent’s consent in the case of a minor).
Violations of Intellectual Property Rights. Any violation of any person’s or entity’s intellectual property rights, rights of privacy, rights of publicity or other personal rights is prohibited. Niwi Pty. Ltd. is required by law to remove or block access to content appearing on or through the Services upon receipt of proper notice of copyright infringement (see “Copyright Infringement Notice Information” below).
Misrepresentation of Transmission Information. Forging, misrepresenting, omitting, or deleting message headers, return mailing information and/or Internet protocol addresses to conceal or misidentify the origin of a message is prohibited.
Viruses and Other Destructive Activities. Use of the Services for creating or sending Internet viruses, worms or Trojan horses, or for pinging, flooding or mail bombing, or engaging in denial of service attacks is prohibited. It is also prohibited for any Subscriber to engage in other activity that is intended to disrupt or interfere with, or that results in the disruption of or interference with, the ability of others to effectively use the Services (or any connected network, system, service or equipment) or conduct their business over the Internet.
Hacking. “Hacking” and related activities are prohibited. “Hacking” includes, but is not limited to, the following activities: illegally or without authorization, accessing computers, accounts or networks, penetrating or attempting to penetrate security measures, port scans, stealth scans, and other activities designed to assist in hacking.
Anonymous Proxies. Niwi Pty. Ltd. does not allow the use of anonymous proxy scripts on its servers. They can be very abusive to the server resources, affecting all users on that server.
Export Control Violations. The exportation of encryption software outside of the United States and/or violations of United States law relating to the exportation of software is prohibited. Subscriber may not export or transfer, directly or indirectly, any regulated product or information to anyone outside the United States without complying with all applicable statues, codes, ordnances, regulations, and rules imposed by U.S. federal, state or local law, or by any other applicable law.
Child Pornography. The use of the Services to store, post, display, transmit, advertise or otherwise make available child pornography is prohibited. Niwi Pty. Ltd. is required by law to, and will, notify law enforcement agencies when it becomes aware of the presence of child pornography on, or being transmitted through, the Services.
Other Illegal Activities. The use of the Services to engage in any activity that is determined by Niwi Pty. Ltd., in its sole and absolute discretion, to be illegal is prohibited. Such illegal activities include, but are not limited to, storing, posting, displaying, transmitting or otherwise making available ponzi or pyramid schemes, fraudulently charging credit cards or displaying credit card information of third parties without their consent, and failure to comply with applicable on-line privacy laws. Niwi Pty. Ltd. will cooperate fully with appropriate law enforcement agencies in connection with any and all illegal activities occurring on or through the Services.
Obscene, Defamatory, Abusive or Threatening Language. Use of the Services to store, post, transmit, display or otherwise make available obscene, defamatory, harassing, abusive or threatening language is prohibited.
BACKUP STORAGE. Niwi Pty. Ltd. OFFERS ITS SERVICES TO HOST WEB SITES, NOT TO STORE DATA. USING AN ACCOUNT AS AN ONLINE STORAGE SPACE FOR ARCHIVING ELECTRONIC FILES IS PROHIBITED AND WILL RESULT IN TERMINATION OF HOSTING SERVICES WITHOUT PRIOR NOTICE.
Other Activities. Engaging in any activity that, in Niwi Pty. Ltd.’s sole and absolute discretion, disrupts, interferes with or is harmful to (or threatens to disrupt, interfere with, or be harmful to) the Services, Niwi Pty. Ltd.’s business, operations, reputation, goodwill, Subscribers and/or Subscriber relations, or the ability of Niwi Pty. Ltd.’s Subscribers to effectively use the Services is prohibited. Such prohibited activities include making available any program, product or service that is designed to or could be used to violate these Terms. In addition, the failure of Subscriber to cooperate with Niwi Pty. Ltd. in correcting or preventing violations of these Terms by, or that result from the activity of, a subscriber, patron, customer, invitee, visitor, or guest of the Subscriber constitutes a violation of these Terms by Subscriber.
COPYRIGHT, TRADEMARK, AND “IP RIGHTS HOLDER” NOTICE OF INFRINGEMENT INFORMATION
In accordance with the Digital Millennium Copyright Act, Niwi Pty. Ltd. has adopted a policy that provides for termination of websites hosted by Niwi Pty. Ltd. that are found to infringe on copyrights, trademarks or other intellectual property rights of third parties (each an “IP Rights Holder”) If a IP Rights Holder holder believes that there has been a violation of his or her copyright on a website that is hosted by Niwi Pty. Ltd. or a Niwi Pty. Ltd. subsidiary, and the IP Rights Holder wants Niwi Pty. Ltd. to remove the website or disable the material in question, Niwi Pty. Ltd. will remove the website or disable the material if the IP Rights Holder provides us with all of the following information.
A signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed. Identification of the copyrighted work that is claimed is being infringed, or, in the case of claimed infringement of multiple copyrighted works, a representative list of such works.
Identification of the material that is claimed to be infringing or is the subject of infringing activity and that should be removed or access to which should be disabled, with information reasonably sufficient to permit us to locate the material.
Information reasonably sufficient to permit us to contact the person giving the notification, such as an address and telephone, and, if available, an electronic mail address at which such person may be contacted.
A statement that the person giving the notification has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
A statement that the information in the notification is accurate, and under penalty of perjury, that the person giving the notification is authorized to act on behalf of the owner of the exclusive right that is allegedly infringed. Email DMCA reports to firstname.lastname@example.org .
IMPORTANT NOTE: IN THE EVENT YOU SEND US A NOTICE OF ANY KIND VIA EMAIL AND DO NOT RECEIVE A RESPONSE FROM US, PLEASE SUBMIT A DUPLICATE COPY VIA PAPER (P.O. Box 3129 Bangor NSW 2234) DUE TO THE VAGARIES OF THE INTERNET, AND EMAIL COMMUNICATION IN PARTICULAR, INCLUDING WITHOUT LIMITATION THE BURDENS OF SPAM AND THE OCCASIONAL, UNINTENDED EFFECTS OF SPAM FILTERS, SENDING AN ALTERNATE FORM OF NOTICE (VIA PAPER AND/OR FAX), WILL HELP ASSURE THAT YOUR NOTICE WILL BE RECEIVED BY US AND ACTED ON IN A TIMELY MANNER.
Reseller Agreement. In addition to all terms and conditions described in this Agreement, the following shall also be applicable to Resellers;
The Reseller agrees, on behalf of both the Reseller and each user signed up by the Reseller, to comply with these Terms of Service.
In the event that a Reseller or a Reseller’s user is determined to be in violation of the Terms of Service, the Reseller shall, upon receipt of notice of the violation, take prompt action to ensure that the account in question is updated to be in full compliance with the Terms of Service.
Niwi Pty. Ltd. is not responsible for the actions or misrepresentations of Resellers. The Reseller hereby agrees to indemnify Niwi Pty. Ltd. from and against any and all claims made by any user that result from the Reseller’s misrepresentation, breach of the Terms of Service or other improper actions by the Reseller.
Niwi Pty. Ltd. reserves the right to revise its Reseller Programs, Terms of Service at any time. Changes shall take effect when posted online or on any subsequent date as may be set forth in any required notice provided by us in connection therewith.
Users who have been signed up by Resellers agree to operate their Web sites in accordance with the Terms of Service.
Resellers cannot make any modifications to the Terms of Service. Any such alterations shall be deemed a violation of the Terms of Service and could result in a cancellation of a Reseller’s account(s). Niwi Pty. Ltd. is not responsible for any modifications made to the
Terms of Service by Resellers.
Resellers in the Reseller Program assume all responsibility for billing and technical support for each of their Users. Niwi Pty. Ltd. reserves the right to refuse inquiries made to customer support from the customers of Resellers.
Promotional Pricing. Niwi Pty. Ltd. may periodically offer “free” or discounted services or credits in connection with a promotional offer, including, without limitation, free domain name registration. Such promotional offers are honored only in connection with the specific promotional package to which they apply. In the event a Subscriber downgrades or otherwise changes his/her/its subscription to a subscription to which a promotional offer does not apply, Subscriber will forfeit any unused free credits offered under the promotional packaged and Niwi Pty. Ltd. will charge Subscriber the prevailing fees for any free credits redeemed by Subscriber under the promotional package.
Backups. For its own operational efficiencies and purposes, Niwi Pty. Ltd. from time to time backs up data on its servers, but is under no obligation or duty to Subscriber to do so under these Terms. IT IS SOLELY SUBSCRIBER’S DUTY AND RESPONSIBILITY TO BACKUP SUBSCRIBER’S FILES AND DATA ON Niwi Pty. Ltd. SERVERS, AND under no circumstance will Niwi Pty. Ltd. be liable to anyone FOR DAMAGES OF ANY KIND under any legal theory for loss of Subscriber FILES AND/or data on any Niwi Pty. Ltd. server. Niwi Pty. Ltd. will not attempt to back up accounts that exceed 50,000 files or 30 Gigs of space for any reason.
Monitoring and Disclosures. All activities occurring on, in, and/or via the Services or any website hosted by Niwi Pty. Ltd. may be monitored, recorded, and examined by any authorized person, including as well law enforcement. In general, Niwi Pty. Ltd. does not monitor its Subscribers’ websites or activities to determine whether they are in compliance with these Terms. However, when and if Niwi Pty. Ltd. becomes aware of any violation of these Terms, Niwi Pty. Ltd. may take any lawful action, and in the event of illegal activity, will take action, to stop or correct such violation, including, but not limited to, shutting down a website, denying access to the Services or to the Internet via Niwi Pty. Ltd., and/or removing non-complying information. In addition, Niwi Pty. Ltd. may take any lawful action against a Subscriber or a subscriber, patron, customer, invitee, visitor, or guest of such Subscriber because of the activities of such subscriber, patron, customer, invitee, visitor, or guest. Niwi Pty. Ltd. reserves the right to take any such action even though such action may affect other subscribers, patrons, customers, invitees, visitors, or guests of the Subscriber. Niwi Pty. Ltd. may disclose any information in its possession, including, without limitation, information about Subscribers, internet transmissions and website activity in order to comply with a court order, subpoena, summons, discovery request, warrant, statute, regulation, governmental request, or other legal process to protect Niwi Pty. Ltd. or others from harm, and/or to ensure the proper operation of the Services. cobah.com.au has no obligation to notify any person, including the Subscriber about whom information is sought, that Niwi Pty. Ltd. has provided the information.
Accurate Account Information. Subscriber must continually update and keep accurate and current Subscriber’s contact information stored and saved on Niwi Pty. Ltd. in order to avoid termination of Subscriber’s Niwi Pty. Ltd. account(s).
Duty to Notify Niwi Pty. Ltd. of Breach. If Subscriber discovers anyone on the Niwi Pty. Ltd. system violating any of these Terms or notices anything suspicious from the Niwi Pty. Ltd. network, Subscriber agrees to report the violation or suspicious activity to email@example.com for investigation. Niwi Pty. Ltd. reserves the right to and will immediately terminate any account which Niwi Pty. Ltd. concludes to be in violation of any of these Terms.
Reservation of Rights. Niwi Pty. Ltd. reserves the right to refuse or to cancel service to any prospective Subscriber or existing Subscriber for any lawful reason at any time during Subscriber’s hosting term with Niwi Pty. Ltd..
Severability. These Terms are binding upon Niwi Pty. Ltd., all existing and prospective Subscribers, and upon the assigns, heirs, and successors of each. If any provision of these Terms is held by any court of competent jurisdiction to be invalid or otherwise unenforceable, the rest of these Terms shall, nevertheless, continue to be valid and in full force and effect, to the extent said remaining Terms are then otherwise consistent with the original intent of the Terms of Service.
Governing Law. These Terms shall be governed by the laws of the New South Wales without reference to conflict of law principles. The United Nations Convention on the International Sale of Goods shall not apply and is hereby expressly excluded. By subscribing to or using any of the Services of Niwi Pty. Ltd., Subscriber agrees that all disputes, if any, involving Niwi Pty. Ltd. shall be subject exclusively to the jurisdiction of the State and Federal Courts within New South Wales; provided, further, that all action brought against Niwi Pty. Ltd. must be brought in New South Wales Australia. Subscriber hereby agrees that it is subject to the in personam jurisdiction of said courts for all purposes in connection with these Terms and/or in connection with any claim or dispute involving Niwi Pty. Ltd.. Subscriber agrees that it has no right to and shall not file or otherwise bring a lawsuit against Niwi Pty. Ltd. outside the State of New South Wales; and, that Subscriber, if involved before a court in a lawsuit outside of the State of New South Wales, shall be deemed to support and to stipulate to a motion made by Niwi Pty. Ltd. to dismiss said lawsuit with respect to Niwi Pty. Ltd..
Parked Page Services. Niwi Pty. Ltd. provides Parked Page Services on domains registered through or hosted with Niwi Pty. Ltd. User can opt out of the Parked Page Services at any time by simply replacing the default web page on the parked domain or pointing the DNS away from Niwi Pty. Ltd.. By using any of the Parked Pages Services, User agrees that Niwi Pty. Ltd. may point the domain name or DNS to one of Niwi Pty. Ltd.’s or Niwi Pty. Ltd.’s affiliates web pages, and that they may place advertising on User’s web page and that Niwi Pty. Ltd. specifically reserves this right. User shall have no right to any compensation and shall not be entitled and shall have no right to receive any funds related to the monetization of User’s Parked Pages. User agrees to indemnify and hold harmless Niwi Pty. Ltd. for any complications arising out of use of the Parked Page Services, including, but not limited to, actions Niwi Pty. Ltd. chooses to take to remedy User’s improper or illegal use of a Web site hosted by Niwi Pty. Ltd.. User agrees it is not entitled to a refund of any fees paid to Niwi Pty. Ltd.. If a dispute arises as a result of one or more of User’s Parked Pages, User will indemnify, defend and hold Niwi Pty. Ltd. harmless for damages arising out of such dispute. User also agrees that if Niwi Pty. Ltd. is notified that a complaint has been filed with a governmental, administrative or judicial body, regarding a Web site hosted by Niwi Pty. Ltd. that Niwi Pty. Ltd., in its sole discretion, may take whatever action Niwi Pty. Ltd. deems necessary regarding further modification, assignment of and/or control of the Web site to comply with the actions or requirements of the governmental, administrative or judicial body until such time as the dispute is settled.
WARRANTY DISCLAIMER – LIMITATIONS – INDEMNIFICATION
Warranty Disclaimer. YOU, THE SUBSCRIBER, ACKNOWLEDGE THAT THE SERVICES AND THE SOFTWARE ARE PROVIDED “AS IS, AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND. Niwi Pty. Ltd. HEREBY DISCLAIMS ANY WARRANTY OR CONDITION WITH RESPECT TO THE QUALITY, PERFORMANCE OR FUNCTIONALITY OF THE SERVICES AND SOFTWARE, OR WITH RESPECT TO THE QUALITY OR ACCURACY OF ANY INFORMATION OBTAINED FROM OR AVAILABLE THROUGH USE OF THE SERVICES AND SOFTWARE, OR THAT THE SERVICES AND SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES AND SOFTWARE MAY CONTAIN ERRORS. NO ADVICE OR INFORMATION GIVEN BY Niwi Pty. Ltd. OR Niwi Pty. Ltd.’S REPRESENTATIVES INCLUDING, WITHOUT LIMITATION, SUBSCRIBER SUPPORT REPRESENTATIVES, SHALL CREATE A WARRANTY. Niwi Pty. Ltd. DISCLAIMS ALL WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED OR STATUTORY INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF QUIET ENJOYMENT AND NON-INFRINGEMENT AND ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OF COMPUTER PROGRAMS AND CONTENT. Niwi Pty. Ltd. DOES NOT GUARANTEE THAT USERS WILL BE ABLE TO USE THE SERVICES AT TIMES OR LOCATIONS OF THEIR CHOOSING. Niwi Pty. Ltd. DOES NOT WARRANT THAT THE SERVICES ARE COMPATIBLE WITH ANY THIRD PARTY SERVICE OR SOFTWARE, EVEN IF SUCH THIRD PARTY CLAIMS, REPRESENTS OR WARRANTS THAT SUCH SERVICE OR SOFTWARE IS COMPATIBLE WITH ANY SERVICE OR Niwi Pty. Ltd. IN PARTICULAR.
Limitations on Niwi Pty. Ltd.’s Liability. Niwi Pty. Ltd. SHALL NOT BE LIABLE FOR NONPERFORMANCE OR DELAY IN PERFORMANCE CAUSED BY ANY REASON, WHETHER WITHIN OR OUTSIDE OF ITS CONTROL. IN NO EVENT SHALL Niwi Pty. Ltd. BE LIABLE UNDER CONTRACT, NEGLIGENCE, TORT, CONVERSION, COPYRIGHT INFRINGEMENT, TRADEMARK INFRINGEMENT, IP RIGHTS HOLDER INFRINGEMENT, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF USE, LOST PROFITS, LOSS OF DATA OR INFORMATION OF ANY KIND OR LOSS OF BUSINESS GOODWILL OR OPPORTUNITY) WHETHER OR NOT Niwi Pty. Ltd. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. Niwi Pty. Ltd. SHALL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY. Niwi Pty. Ltd.’S ENTIRE LIABILITY AND SUBSCRIBER’S EXCLUSIVE REMEDY WITH RESPECT TO ANY USE OF THE SERVICES IS THE CANCELLATION OF SUBSCRIBER’S ACCOUNT AS SET FORTH HEREIN. IN NO EVENT SHALL Niwi Pty. Ltd.’S LIABILITY TO YOU, THE SUBSCRIBER, EXCEED THE GREATER OF ONE DOLLAR ($1.00) OR ANY AMOUNTS ACTUALLY PAID IN CASH BY YOU, THE SUBSCRIBER, TO Niwi Pty. Ltd. FOR THE PRIOR ONE MONTH PERIOD. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THESE TERMS OR OUT OF THE SERVICES MAY BE BROUGHT BY YOU, THE SUBSCRIBER, MORE THAN ONE YEAR AFTER THE EVENT WHICH GAVE RISE TO THE CAUSE OF ACTION . SOME JURISDICTIONS DO NOT ALLOW A LIMITATION ON LIABILITY FOR NEGLIGENCE THAT CAUSES DEATH OR PERSONAL INJURY AND, IN SUCH JURISDICTIONS, Niwi Pty. Ltd.’S LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Indemnification of Niwi Pty. Ltd.. You, the Subscriber, agree to defend, indemnify and hold Niwi Pty. Ltd., its affiliates and its sponsors, partners, other co-branders and the respective directors, officers and employees of each harmless from and against any and all claims, losses, damages, liabilities and costs (including, without limitation, reasonable attorneys’ fees and court costs) arising out of or relating to your breach of any of these Terms or use by you or any third party of the Services, except to the extent the foregoing directly result from Niwi Pty. Ltd.’s own gross negligence or willful misconduct. Niwi Pty. Ltd. reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, the Subscriber.
IF YOU, FOR YOURSELF OR ON BEHALF OF ONE OR MORE PERSONS YOU ARE REPRESENTING WITH RESPECT TO Niwi Pty. Ltd. SERVICES, DO NOT AGREE TO ANY OF THE FOREGOING TERMS, YOU MUST, FOR YOURSELF AND ON BEHALF ANY SUCH PERSON(S), DISCONTINUE THE REGISTRATION PROCESS, DISCONTINUE YOUR USE OF THE SERVICES, AND, IF YOU ARE ALREADY A MEMBER, CANCEL YOUR Niwi Pty. Ltd. ACCOUNT. BEGINNING NOW, ANY CONTINUATION BY YOU IN USING THE SERVICES CONSTITUTES FOR YOU AND THOSE REPRESENTED BY YOU AN EXPRESS AFFIRMATION AND COMMITMENT TO BE (OR TO CONTINUE TO BE, AS APPLICABLE) LEGALLY BOUND BY AND TO COMPLY WITH ALL OF THESE TERMS.