1. General Terms.
In consideration of hosting services to be delivered, Customer agrees to be bound by the following terms and conditions:
- 1.1. Customer agrees to pay, in advance of each service term, for hosting services to be rendered.
- 1.2. Customer agrees to be bound by the service term selected that may require Customer to order Winch Websites’ service for a certain minimum period of time.
- 1.3. Customer agrees to a no-refund policy in advance. Setup fees and web hosting service fees are non-refundable.
- 1.4. Non-Payment of services shall result in a 5-day notice of disconnection. All payment failures must be cured within 5 business days from invoice due date or account will be suspended. Account termination will result from invoices overdue for 30 days, after which contents of the account are unrecoverable.
- 1.5. Winch Websites is not and shall not be responsible for data integrity for any accounts that are terminated, disconnected, or interrupted because of Customer’s failure to pay for Winch Websites’ services.
- 1.6. Customers agree to pay all GST (Australian Goods and Services Tax) applicable to Customer’s account.
2. Agreement for Services.
- 2.1. Winch Websites will provide, and Customer will purchase and pay for, the Web hosting services (the “Services”), according to the service fees specified in the Order for the applicable Service Description. Customer acknowledges that the service and service fees have been communicated to the Customer, and that Customer is aware of all applicable charges as per the Agreement. Customer also understands that no promotional offers will apply to their individual service unless said promotional offers are specified in this Agreement.
- 3.1. Establishment and provision of service is contingent upon receipt of payment from Customer to Winch Websites.
- 3.1.1. Customer must pay in full for the Services before Winch Websites begins to provide the Services to Customer. Invoices are generated prior to renewal and Customer agrees that if paying by credit card, recurring billing will be billed and charged automatically on the date the invoice is generated and that Winch Websites may apply the amount due at any time to the credit card.
- 3.1.2. Setup fees will be charged and are due at the time of the Customer’s initial request of the Services requiring setup.
- 3.2. Payment is due on the defined recurring billing date. All returned cheques will be charged a $40.00 service fee. Service will be interrupted on accounts that reach 5 days past due. Accounts that are not collectable by Winch Websites will be turned over to an outside agency for collection. If Customer account is turned over for collection, Customer agrees to pay to Winch Websites a “Processing and Collection” Fee of not less than $55.00 incl GST nor more than $165.00 incl GST.
4. Delinquent Accounts.
Winch Websites may temporarily deny service or terminate this Agreement upon failure of Customer to pay charges when due. Such termination or denial will not relieve Customer of responsibility for the payment of all accrued service fees, and any collection fees to which Winch Websites may be entitled under this Agreement or under applicable law.
5. Account Cancellation.
Customers may voluntarily cancel their account at any time, for any reason or for no reason, by emailing [email protected]
Once a Customer has cancelled their account before the renewal date, no more charges will be billed to the account. Cancellations on or after renewal will be charged renewal fees.
All cancellations must be advised. Customer can terminate their account for any reason or for no reason. However, Customer understands and agrees that Winch Websites does not provide pro-rated or any other kinds of refunds on cancellations. All fees Customer has paid shall be nonrefundable.
6. Refunds and Disputes.
IMPORTANT NOTICE: ALL PAYMENTS TO WINCH WEBSITES ARE NONREFUNDABLE.
All payments to Winch Websites are nonrefundable. This includes any setup fees and other fees regardless of usage. All billing disputes must be reported within thirty (30) days of the time the dispute occurred. Disputed charges to your credit card issuer, also known as chargebacks, which, in Winch Websites’ sole discretion are invalid under the terms and conditions of this Agreement, will result in service interruption, and reconnection fees to restore the desired service.
7. Customer agrees not to engage in any activity that violates any international, foreign, federal, state, or local laws applicable to the service terms described in this Agreement.
8. Winch Websites reserves the right to discontinue service to any Customer it deems, in its sole discretion, violates any condition of service including, but not limited to, the Acceptable Use Policy.
- 9.1. In order to allow us to provide the best service to you, Winch Websites accounts are backed up daily. However, these backups are intended for Winch Websites’ administrative purposes only. As part of its commitment to first-rate customer service, Winch Websites always seeks to create complete and accurate backups of customer accounts.
- 9.2. Customers are responsible for maintaining their own backups on their own personal computers or other computers.
- 9.3. Winch Websites does not provide any sort of compensation for lost, inaccurate, incomplete, or outdated data in the event that Winch Websites’ own backups do not function properly, regardless of the reason(s) for any such malfunction, even if the malfunction was due to the fault or negligence of Winch Websites or any of its employees or agents, and regardless of whether Winch Websites had been informed of the possibility of such malfunction, or any fault or negligence that might cause it.
- 9.4. In the event that you need to recover data from a backup, Winch Websites will use reasonable efforts to restore data to your account from the appropriate backup. HOWEVER, PLEASE NOTE THAT THIS SERVICE IS INTENDED TO COMPLEMENT CUSTOMER’S OWN BACKUPS TO CUSTOMER’S OWN COMPUTER(S), AND IS NOT A SUBSTITUTE FOR THOSE BACKUPS. AGAIN, WINCH WEBSITES DOES NOT GUARANTEE THE AVAILABILITY, COMPLETENESS, CURRENCY, OR INTEGRITY OF ITS BACKUPS.
- 9.5. Customer understands and agrees that Winch Websites’ backup policy does not create any warranties for whose breach Winch Websites can be held liable.
10. Customer agrees to defend, indemnify, and hold harmless Winch Websites, and the parents, subsidiaries, successors, assigns, employees and agents of Winch Websites against any losses, claims, damages, liabilities, penalties, actions, proceedings or judgments (collectively, “Losses”) to which an indemnified party may become subject and which Losses arise out of, or relate to this Agreement or Customer’s use of the Services, and to reimburse an indemnified party for all legal and other expenses, including reasonable attorneys’ fees incurred by such indemnified party in connection with investigating, defending, or settling any Loss whether or not in connection with pending or threatened litigation in which such indemnified party is a party.
11. WINCH WEBSITES SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, PUNITIVE OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE, OR LOSS OF DATA RESULTING FROM THE USE OF WINCH WEBSITES’ SERVICES BY CUSTOMER OR ANY THIRD PARTIES, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY, OR ANY LOSS OF DATA RESULTING FROM DELAYS, NONDELIVERIES, MISDELIVERIES OR SERVICE INTERRUPTIONS.
12. WINCH WEBSITES PROVIDES THE SERVICES AND PRODUCTS AS IS, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED. WINCH WEBSITES DISCLAIMS ALL WARRANTIES OF NON-INFRINGEMENT OF ANY THIRD-PARTY RIGHTS, AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE, AND SUITABILITY OF THE SERVICES AND WINCH WEBSITES SHALL HAVE NO LIABILITY THEREFOR.
13. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WINCH WEBSITES DISCLAIMS ALL WARRANTIES, REPRESENTATIONS OR OTHER ENDORSEMENTS, EXPRESS OR IMPLIED, WITH REGARD TO THE INFORMATION ACCESSED FROM, OR THROUGH, THIS SERVICE, THE SYSTEMS WHICH PROVIDE IT, AND THE INTERNET, INCLUDING ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, OR NON-INFRINGEMENT OF ANY THIRD-PARTY RIGHTS.
14. WINCH WEBSITES DOES NOT ASSUME ANY LIABILITY FOR THE COMPLETENESS, ACCURACY, OR USEFULNESS OF ANY INFORMATION DISCLOSED OR MATERIALS ACCESSED THROUGH ITS SERVICES, ITS SYSTEMS, ITS NETWORKS, OR THE INTERNET.
15. No Waiver of Rights by Winch Websites.
Any failure by Winch Websites to enforce this Agreement in every instance in which it might apply does not amount to a waiver of any of Winch Websites’ rights.
ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS CONTACT OR ANY BREACH THEREOF IN EXCESS OF $250.00 SHALL BE SETTLED BY WAY ARBITRATION.
- 17.1. From Winch Websites to Customer.
Winch Websites will notify you by e-mail of any notices that Winch Websites is required to provide to you under this Agreement, at the most current e-mail address you have provided to Winch Websites.By entering this Agreement, you consent to receive notices by e-mail. You are solely responsible for ensuring that Winch Websites has your most current e-mail address, and Winch Websites shall not be responsible for any lost, misdirected, bounced, forwarded, or undeliverable e-mail that Winch Websites sends to the most current e-mail address you have provided to Winch Websites.
- 17.2. From Customer to Winch Websites.Unless otherwise specified in this Agreement, notices shall be emailed to [email protected] or posted to the following address:Winch Websites
40 Dicksons Road
18. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of Australia, without regard to choice of law or conflicts of law provisions that would cause the application of the law of another country.
All monetary amounts to which this Agreement refers shall be in Australian dollars and include the GST.
20. Entire Agreement.
This Agreement, including all of its component parts, comprises the entire agreement between the Customer and Winch Websites, and supersedes any prior or previous agreements between the Customer and Winch Websites with respect to the subject matter of this Agreement; provided, however, that Customer agrees that Customer shall be subject to any additional terms and conditions of which Winch Websites notifies the Customer from time to time, pursuant to this Agreement.
21. No Oral Modification of this Agreement.
This Agreement may not be modified orally.
- 22.1 Customer shall not assign or attempt to assign its obligations under this Agreement without Winch Websites’ prior and express written consent to such assignment.
- 22.2. Winch Websites may assign any or all of its rights and obligations under this Agreement at any time without prior notice to or consent of Customer.
23. Consent to Jurisdiction; Venue.
Jurisdiction and venue for arbitration or litigation of any dispute, controversy, or claim arising out of, in connection with, or in relation to this Agreement, or the breach thereof shall be proper only in a venue determined Winch Websites.
24. Choice of Law.
For all purposes, this Agreement shall be deemed to have been made within the State of Victoria, Australia. This Agreement shall be governed by the laws of Australia and Winch Websites and Customer each submit to the exclusive jurisdiction of the courts of Victoria, Australia should any claim or question arise under Federal law or federal jurisdiction based upon diversity of citizenship.
25. Force Majeure.
Winch Websites shall not be liable or deemed to be in default for any delay or failure in performance under this Agreement or interruption of service resulting directly or indirectly from acts of God, civil or military authority, acts of public enemy, war, terrorism, riots, civil disturbances, insurrections, accidents, fire, explosions, earthquakes, floods, the elements, strikes, labor disputes, shortages of suitable parts, materials, labor or transportation, magnetic interference, interruptions of electrical power or other utility service, unavailability of any telecommunications or wireless service or connection to any telecommunications or wireless service, or any cause beyond the reasonable control of Winch Websites.
26. Severability of Terms of this Agreement.
In the event that any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties hereto, and the remainder of the provisions shall remain in full force and effect.
27. Limitation of Actions Arising Under this Agreement.
Any cause of action you may have with respect to Winch Websites’ performance or alleged non-performance of this Agreement must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is forever barred.
28. Denial of Service
Winch Websites reserves the right to refuse or discontinue service to anyone at its sole discretion and is not required to give a reason.
29. Abuse of Winch Websites Staff or Support Personnel.
- 29.1. At Winch Websites, we take pride in providing excellent service to all of our customers. It is our policy always to treat our customers with the highest level of respect and courtesy. In return, we expect the same respect and courtesy from the Customer.
- 29.2. If our staff feel that you are consistently engaging in abusive content toward them, or addressing them in a demeaning or rude manner, your account(s) may be suspended and you may be asked to take your business elsewhere. In the event that we terminate service for abusive conduct, customers will be given five (5) days’ notice. We will issue a refund only for the unused portion of pre-paid service.
- 29.3. Abusive conduct includes, but is not limited to, the following behaviors:
- Repeatedly addressing members of our staff in a demeaning or rude manner;
- Using profanity in any oral or written communications with our staff, by any medium of communication, including but not limited to e-mail, instant messages, chat, text messaging, fax, postal mail, telephone, voice over Internet Protocol (VoIP), or in-person communication;
- Yelling or shouting at our staff;
- Deliberately using all capital (uppercase) letters in any written communication to our staff;
- Insulting our staff because of their personal characteristics, or on the basis of their race, ethnicity, national origin, sex, sexual orientation, religion, or housing or economic status; or
- Deliberately providing false information to our staff for the purpose of harassing them or wasting their time.
30. No Free Services to Be Offered.
The Customer may not use the Customer’s account or Winch Websites’ services to offer any of the following kinds of FREE services but are not limited to:
- Free Web hosting services;
- Free e-mail services;
- Free blogging services;
- Free home pages;
- Free image hosting;
- Free trial accounts.