Terms of Use Agreement for Web Panache "Hosting & Domain Products" & "Design & Development Services"

Web Panache will hereby be referred to as "we", us", "our". The customer will be referred to as "customer", "you" or "I".

1.1 Web Hosting & Domain Products

1.1.1 Eligibility: Our services are only made available to individuals who can form legally binding contracts. Without limiting the following, our services are not available to suspended or ineligible customers. This includes 3rd parties who make use of a suspended customer's website or the services contained therein.

Persons under the age of 18 require parent or guardian supervision, or some other agent who is at least 18 years authorised to represent you.

You warrant that all actions that you make are done so in good faith and that you have no knowledge of your actions infringing upon or conflicting with the legal rights of a third party or a third party's trademark or trade name.
If you do not qualify, please do not use our services.

1.1.1 Domain Names: Our system will email a renewal notice to the registrant of your domain name at two intervals; 60 and 30 days before the expiry of the domain name. If payment has not been received your domain name will not be renewed and available for registration again by any third party.

It remains entirely your responsibility to ensure that legal ownership is vested in your name. This includes taking reasonable steps to make sure that the renewal has been successful.

You must inform us immediately if your domain has not been renewed or risk losing legal ownership.

Web Panache will not be liable in any way whatsoever if a domain renewal is not successful and the customer has not exercised due diligence to rectify this, in line with our limitation of liability set out below in this agreement.

You can manage your domain names at any time by logging in with your username and password received once domain name has been registered on http://domains.webpanache.com.au/.

1.1.2 Web Hosting: Web Hosting account are usually invoiced 28 days prior to their expiry and will be renewed on the invoice due date assuming that payment has been received and applied to the invoice.

1.1.4 Price locked: You will be charged the same price for your web hosting and domain name renewal as when you signed up.

1.2 Design & Development Services

1.2.1 Content: We will NOT under any circumstances, design, redo, create or render our website design and development services to any sites that promote, endorse, duplicate, link to, or deal with the following:

• Sexual or sexually explicit material or contents. Content that is unlawful, harmful, threatening, abusive, harassing, torturous, defamatory, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable. Content that infringes upon any trademark, copyright, patent, trade secret, or other proprietary rights of any party. Hacking, warez, virus transmittal, or computer activities of an illegal nature. "Spamming", pyramid schemes, junk mail or the transferal of unsolicited e-mail or advertising techniques. Content that is harmful to minors in any way.
• Instructional information about illegal activities, promoting physical harm or injury against any group or individual. This may include, but is not limited to, providing instructions on how to assemble bombs, grenades and other weapons etc.
• Animal cruelty or procedures deemed harmful, unnecessary or unnatural to animals.
• Any activity considered illegal under federal, state and international laws.

We reserve the right to deny service to any site for these or any other unspecified above reason.

1.2.2 Web Design Project Copyright: Client unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork provided to Web Panache for inclusion in the project are owned by client, or that client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, indemnify and defend Web Panache from any liability (including legal fees and court costs), including any claim or suit, threatened or actual, arising from the use of such elements furnished by client.

The copyright for all material provided by Web Panache such as design, graphics, programming codes, photographs, text and any artwork will remain the property of Web Panache until such time as payment has been made in full whereupon they will become the property of the client. When we do free websites, all work is permanently in the property of Web Panache.

Web Panache retain the right to display graphics, websites, photo restoration samples and other web design elements that Web Panache created for clients as examples of their work in the portfolio.

1.2.3 Source Code Licence: Upon payment of all moneys owing pursuant to this agreement, you will be granted a non-exclusive licence to use the web development source code for the following purposes:-

• to further develop and modify the original source code for your organisations needs;
• to provide a copy of the source code to third parties for the purposes of hosting and development.

You must not re-sell, lend, or otherwise transfer the web development source code for purposes other than mentioned above.

1.2.4 Intellectual Property Rights: All intellectual property rights associated with any original web development source code developed under this agreement remain the property of Web Panache. The client will be granted a royalty free, non-exclusive, irrevocable licence to reproduce, publish and use it, in part or in whole, for subsequent development of the product(s) covered by this agreement in 1.2.3. A copy of the source code, together with its associated documentation, will be retained by both parties.

The intellectual property rights associated with the user interface, screen designs and the overall ‘look and feel’ of the product will become the property of the client.

1.2.5 Third Party Controls & Components: Web Panache spends a considerable amount of money and research in third party controls and components to better develop products for the client. These third party controls and components licenses remain the property of Web Panache and CAN ONLY be used for the original project intended. You must not re-sell, lend, or otherwise transfer any third party controls and components for purposes other than mentioned above.

1.2.6 Web Design and Development Billing: For large web development projects clients will pay a 30% deposit for web design & development fees before work begins.

1.2.7 Web Design and Development Project Cancellation/Rejection: If performance of the work is cancelled or work is rejected by the client, full payment must still be made to Web Panache unless a mutual agreement in compensation is reached.

In the event of cancellation or rejection, ownership of all rights granted under this agreement shall revert to Web Panache unless the work is based on the client's visual or otherwise agreed.

1.2.8 Hosting for Web Development: It is a requirement to use our hosting solution for any web sites requiring web and database development unless another hosting provider is sourced by you that offers the exact same technology Web Panache requires to develop your web site.

1.2.9 Project Management: Project Management will be billed at AU$66 per hour. This includes any future or new updates or features, and out of scope changes.

1.2.10 Project Scope & Scope Creep: Web Panache quotes ONLY INCLUDE the project scope and requirements outlined in the quote document & Statement of Work. Often times in website design & development requirements may change which could impact the budget, timelines and resources and is defined as scope creep. If this occurs the options are:

• Integrating the new set of requirements in a different phase
• Stop the project so that new additional requirements can be properly scoped, quoted and integrated rather than tacked on.
• Continue the project without re-scoping and without a change in development requirements.

1.2.11 Lawsuits: If you choose to sue us for any work that you felt was not done, or not done properly, you hold that right. Although we strive to avoid this point and you should bring to our attention our wrong doings. If you continue to take us to court we are NOT responsible for ANY COSTS pertaining to the lawsuit such as, but not limited to, lawyer fees, court costs, transportation costs, or any "emotional" or "physical" costs.

1.3 Payment

1.3.1 The customer agrees to supply full payment for the services received from us, on or before the time period during which such services are provided. You agree that unless you notify us of your desire to cancel any or all services received, those services will be billed on a recurring basis.

If you want to cancel your account, you must notify Web Panache before the due date.

1.3.2 Your account will not be created or work performed until funds have been received in full as cleared funds. It is your responsibility to ensure we have received funds by the due date to avoid suspension and/or termination of our products and services.

1.3.3 We reserve the right to change and refuse payment methods to clients at our sole discretion.

1.3.4 Administration charges
- If payment is not received 14 days after the invoice due date, we reserve the right to charge a late payment fee of AU$22.00 and suspend your account.
- Dishonoured cheques will attract an administration charge of AU$30.00 .
- You agree to be subject to whatever other administration charges are applicable to the circumstances. These are listed in our 'Other Charges' section. These charges are incorporated as part of this agreement.

1.4 Suspension

1.4.1 We reserve the right to suspend your account, including all your domain names, if you have an outstanding invoice or account or if your account is in dispute, or as part of a dispute resolution procedure.

If your invoice or account remains unpaid, or until the dispute is resolved, we reserve the right to cancel or suspend your entire account(s) and all products and services under it, including your domain names.

1.4.2 Web Panache does not offer free support resources for suspended accounts. See Cancellations below for more information.

1.4.3 Web Panache shall continue to rebill a suspended account as normal notwithstanding that you may not be able to access any products or services.

1.4.4 If your account remains unpaid for 60 days, your information will be passed onto a collections agency for debt recovery. You will be charged the account balance plus a 30% premium and GST. Your information may also be given to legal practitioners and credit agencies if proceedings are initiated or debts remain unpaid.

1.4.5 We reserve the right to suspend your account at any time for breaching our terms and conditions, for initiating in activities which may reduce the security of other web sites on our servers, or where Web Panache has been given misleading or false information regarding the type of web site to be hosted.

1.4.6 We reserve the right to seek and claim damages and losses from suspended accounts. We may use whatever legal means necessary to recover any outstanding debts.

1.5 Cancellation

1.5.1 Web Panache reserves the right to cancel your account at any time. Without limiting the following, we will cancel your account or transfer any domain name registration at our discretion to:
- Protect the stability of the registry
- Comply with applicable laws, government rules or requests of law enforcement
- Comply with our upstream service providers
- Avoid liability, civil or criminal, on the part of Web Panache, as well as its affiliates, subsidiaries, officers, directors and employees

1.5.2 Web Panache also has the right to cancel your account if we find that you have been engaging in:
i) Deceptive, improper or misleading conduct
ii) Providing false information
iii) Extortion
iv) Harassment, abuse or swearing
v) Unlawful activities
vi) Conduct that breaches this agreement

1.5.3 Requesting a cancellation: Please email Web Panache to request a cancellation to your service(s).

1.5.4 If you have cancelled your account with Web Panache and would like to reactivate your account, you will need to place a new order and set up fees will again apply.

1.6 Spam and Leeching

1.6.1 We take a zero tolerance stance against sending of unsolicited e-mail, bulk emailing, and spam. "Safe lists" and "double option" will be treated as spam. We reserve the right to require changes or disable as necessary any web site, account, database, or other component that does not comply with this policy at our sole discretion. We also reserve the right to make any such modifications that are urgent at our sole discretion.

1.6.2 We reserve the right to charge the customer of the account used to send any unsolicited e-mail a clean up fee. This cost of the clean up fee is left entirely to the discretion of us, calculated by the number of messages sent, administration time and removal of spam blocks from external networks.

Alternatively, you agree to pay Web Panache liquidated damages of AU$1.00 for each piece of spam or unsolicited bulk email transmitted from or otherwise connected with your account, including any 3rd party accounts you hold as part of our reseller programs.

1.6.3 The customer agrees not to use the staging URL as a primary download link or web site address, except for genuine staging usage as outlined below. This link is provided for web site testing purposes only. If found to be using the staging URL as a primary download link or web site address, you will be charged extra bandwidth usage charges and/or a clean up charge at the discretion of Web Panache.

1.7 Improper Content

1.7.1 All products and services provided by Web Panache may only be used for lawful purposes. The customer agrees not to host materials or engage in activities as set out below. We reserve the right to refuse service based on these conditions.

1.7.2 Web Panache does not endorse any web site content hosted on our network and the content remains the property of the web site owner.

1.7.3 You must not engage in any of the following activities:

• Defame embarrass, harm, abuse threaten, slander or harass third parties
• Use any RC bots
• Use any proxy servers or other servers
• Hack sites or run malicious scripts
• Post pornographic material, particularly illegal child-pornography (however, adult or R-rated content is acceptable)
• Post material which encourages unlawful behaviour by others, such as hate crimes or terrorism
• Run any sort of hate/extremist sites
• Engage in spamming
• Breach copyright, trademarks, servicemarks or patents. This includes the posting of Warez or pirated software on your service, or linking to such material even where such material is not controlled by Web Panache.
• Engage in actions which are prohibited by the laws of Australia and/or foreign territories in which you conduct businesses
• Post material which is tortuous, vulgar, obscene or invasive of the privacy of a third party

1.7.4 This is not an exhaustive list. Other activities deemed improper, illegal or dangerous may also breach this agreement.

1.7.5 If your web site is suspended and/or hosts any of the unacceptable material as set out above, we reserve the right to charge a clean-up fee for the administration time involved to attend to your account / server and update you on the issue at the standard rate of AU$88.00 per hour (minimum 1 hour).

It will remain your responsibility to resolve the issues after we inform you of the breach.

1.8 Support

1.8.1 Web Panache provides limited free support to our clients via phone or email on the services and products we offer.

1.8.2 If you are experiencing difficulties or issues with any services or products, you are required to notify us of the issue immediately so we may resolve the issue.

1.8.3 If you do not notify us of the problem, no allowances will be made, as we have not been given a reasonable opportunity to resolve the issue.

1.8.4 We are an Internet Presence Provider (IPP) and are not responsible for the users Internet Connectivity through their Internet Service Provider (ISP), connection troubleshooting or computer setup. Please contact your ISP for assistance in these matters. You must allow a reasonable time period for your issues to be resolved.

1.9 Resource Usage

1.9.1 Users may not attempt any of the following:

• Use 25% or more of system resources for longer then 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.
• 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
• Any activity which causes the server to crash / restart

1.10 Backups and data loss

1.10.1 Your use of our products and services is at your sole risk. We are not responsible for files and data residing on your account. You agree to take full responsibility for files and data transferred and to maintain all appropriate backup of files and data stored on our servers at all times.

1.10.2 Even though we run our own on-site and off-site backups, we are not liable for any data loss due to server failure, unforeseeable corruption of programs, hacking, or any other failure whatsoever.

1.11 Updated package versions

1.11.1 From time to time, we may update our packaged plans. When we do so the plan name will change.
Customers on previous plans will not be automatically upgraded to the newest version of the plan. Customers on previous plans will keep the features of their current hosting package.

1.11.2 If a customer wishes to upgrade to the newest plan, a AU$22.00 administration fee will apply. Your service may also need to be transferred to another server to take advantage of the newer features.

1.12 Bandwidth Usage/Disk Space

1.12.1 Even though we may offer unlimited bandwidth, it is up to our discretion on its fair use. We have devised a Fair Use Policy. If we believe you are exceeding your bandwidth Fair Use Policy (over 6GB of data per month), we will start charging $3.00 per gigabyte, or terminate your hosting plan with a refund offered for the remaining months.

1.12.2 Unused transfer in one month cannot be carried over to the next month.

1.13 Price Change

1.13.1 We reserve the right to change prices listed on Web Panache's website.

1.13.2 If we change the price of a product or service, then you will continue to be rebilled at the rate you signed up with, and only new customers will be charged at the new rate. However, if you reorder a product or service, or order a new product or service, or downgrade/upgrade your plan, then you will be billed at the new rate.

1.14 Indemnification

1.14.1 The customer agrees it shall defend, indemnify, save and hold us harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney's fees asserted against us, its agents, its customers, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by customer, its agents, employees or assigns. The customer furthermore agrees to defend, indemnify and hold us harmless against liabilities arising out of;
(1) any injury to person or property caused by any products sold or otherwise distributed in connection with Web Panache;
(2) any material supplied by the customer infringing or allegedly infringing on the proprietary rights, legal and/or civil rights of a third party;
(3) any breach of any representation or warranty provided herein
(4) any negligence or wilful misconduct by you
(5) any allegation that your account infringes a third person's copyright, trademark, or intellectual property right, or misappropriates a third person's trade secrets
(6) any defective products sold to customers from Web Panache's server.

1.14.2 By accessing any web site hosted on our network or servers, you understand, agree and are bound by this indemnification.

1.14.3 This indemnification is in addition to any other indemnification required of you elsewhere in this agreement.

1.14.4 Should Web Panache be notified of a pending law suit, or receive notice of the filing of a law suit, Web Panache may seek a written confirmation from you concerning your obligation to indemnify Web Panache. Your failure to provide such a confirmation may be considered a breach of this agreement.

1.15 Disclaimer

1.15.1 Web Panache will not be responsible for any damages your business may suffer.
We provide no warranties, express or limited, for services we provide, nor do we guarantee your web site or applications will work error free on our servers. This includes implied warranties of merchantability or fitness for a particular purpose. As such, we are not responsible for loss of data resulting from delays, software incompatibility, server or software issues, outages, no deliveries, wrong delivery and any service interruptions caused by Web Panache and its employees.

1.15.2 We do not guarantee uptime or service availability (unless we have entered into a Service Level Agreement with you) nor do we guarantee that services will be uninterrupted, timely, secure, or error free, or that defects will be corrected.

1.15.3 Should any part of this disclaimer be made invalid by relevant legislation (such as the Trade Practices Act) then the remaining part shall still be in force.

1.16 LIMITATION OF LIABILITY

1.16.1 IN NO EVENT SHALL WEB PANACHE BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLDUDING NEGLIGENCE), BREACH OF WARRANTIES, EITHER EXPRESS OR IMPLIED, ANY BREACH OF THIS AGREEMENT OR ITS INCORPORATED AGREEMENTS AND POLICIES YOUR INABILITY TO USE THE SOFTWARE OR SERVICES, YOUR LOSS OF DATA OR FILES OR OTHERWISE, EVEN IF WEB PANACHE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

1.16.2 Some states or territories may not allow such a broad exclusion or limitation on liability for damages as contained herein. In such states or territories, Web Panache's liability is limited to the full extent permitted by law. You agree that in no event shall Web Panache's maximum aggregate liability exceed the total amount paid by you for the particular product or service in dispute purchased from Web Panache.

1.17 Force Majeure

1.17.1 A force majeure is defined as Acts of Nature (including fire, flood, earthquake, storm, hurricane or other natural disaster even if caused by global warming, i.e., negative human activities that contribute to the destruction of the biosphere), war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalisation, governmental or quasi governmental sanction, restraint, embargo, prohibition or intervention, blockage, labour dispute, general strike, lockout or interruption or failure of utilities or telephone service.

1.17.2 Where a Party is unable, wholly or in part, by reason of force majeure, to carry out any obligation under this Agreement, and that Party: (a) gives each other Party prompt notice of that force majeure including reasonable particulars, and, in so far as known, the probable extent to which it will be unable to perform or be delayed in performing that obligation; (b) uses all possible diligence to remove that force majeure as quickly as possible, that obligation is suspended so far as it is affected by force majeure during the continuance of that force majeure and that Party shall be allowed a reasonable extension of time to perform its obligations.

1.17.3 If after a period of six months, the force majeure has not ceased, the Parties shall meet in good faith to discuss the situation and endeavour to achieve a mutually satisfactory resolution to the problem.

1.17.4 The requirement that any force majeure must be removed with all possible diligence does not require the settlement of general strikes, lockouts or other labour disputes or claims or demands by any government on terms contrary to the wishes of the Party affected.

1.18 Online Fraud

1.18.1 In compliance with the Privacy Act, we are permitted to share your personal details with competent authorities when there is proof of fraudulent or criminal activities.

1.19 Transferring your accounts to other servers

1.19.1 Web Panache reserves the right to transfer any or all of your hosting accounts to any other server, where:
(i) the server your account resides on has suffered hardware or software errors; or
(ii) your activities interfere or have the potential to interfere with other users; or
(iii) your server has been decommissioned; or
(iv) we consider your bandwidth usage to be unacceptable or interfering with the performance of our network infrastructure, notwithstanding that you may be within your quota; or
(v) when performing a mass migration.

1.19.2 As part of a server migration we may also have to change your operating platform or the versions of any other software you may have been using on the previous server. It is your responsibility to ensure that your site is compatible with the new software.

1.19.3 You agree that your quota or disk-space or other features may change as a result of the migration. You will continue to pay the same price as what you were paying before the migration.

1.19.4 We will update customers about server migrations via email and inform you on any IP or nameserver changes.

1.20 Changes to the Terms and Conditions

1.20.1 Web Panache reserves the right to revise its terms and policies from time to time without notice. Updates will appear on the company website Terms of Use Agreement section. By continuing your services you agree to these revisions.

1.20.2 However, if we revise our terms in a way that impacts you both materially and detrimentally (and you have more than a month's worth of hosting paid in full remaining on your account), you may request a refund for services.

1.20.3 Refunds shall be provided for whole months only; parts of a month shall be rounded down. They cannot be given for products or services Web Panache has purchased from 3rd party providers (such as domain names, SSL, etc).

1.21 Governing Law

1.21.1 This Agreement, your rights and obligations and all actions contemplated by this Agreement shall be governed by the laws of the Australia and the State of Victoria, as if the Agreement was a contract wholly entered into and wholly performed within the State of Victoria. You agree that any action to enforce this Agreement or any matter relating to your use of the Services shall be brought exclusively in the Australian Court for the South Eastern district of Victoria, or if there is no jurisdiction in such court, then in a state court in Melbourne, Victoria. You consent to the personal and subject matter jurisdiction of any state or Federal court in Melbourne, Victoria in relation to any dispute arising under this Agreement. You agree that service of process on you by either the Primary Service Provider or Backend Service Provider in relation to any dispute arising under this Agreement may be served upon you by first class mail to the address listed by you in your contact information or by electronically transmitting a true copy of the papers to the email address listed by you in your contact information.

1.22 Entire Agreement

1.22.1 You agree that this Agreement including the policies it refers to (i.e., our Refunds Policy, etc) constitute the complete and only Agreement between You and Web Panache regarding the Services contemplated herein.

1.23 Severability

1.23.1 You agree that the terms of this Agreement are severable. If any part of this Agreement is determined to be unenforceable or invalid, that part of the agreement will be interpreted in accordance with applicable law as closely as possible, in line with the original intention of both parties to the Agreement. The remaining terms and conditions of the Agreement will remain in full force and effect.

1.24 Third Party Beneficiaries

1.24.1 Nothing in this Agreement, express or implied, is intended to confer upon any third party any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.