TERMS AND CONDITIONS for hyperactivedesigns.com.au
The terms and conditions set forth herein constitute the full and complete agreement between you and Scojam Pty Ltd. (doing business as and hereinafter referred to as “Hyperactive Designs”) Your agreement to be bound by these terms is acknowledged by your use of the Hyperactive Designs Web Site, Hosting Services, Support Services and/or any Hyperactive Designs software made available to you. The terms contained herein supercede and replace any other agreement or negotiation between you and Hyperactive Designs whether oral, written or otherwise including any statements made by any representative of Hyperactive Designs at any time.
1 FEES; PAYMENT OF FEES
1.1 Fees – Hyperactive Designs charges the following fees where applicable. All such fees are subject to change with 30 days notice. Unpaid invoices are subject to web services being suspended after a period of one week ( 7 days) see section 8. Hyperactive Designs will keep web services suspended until funds have been cleared into Hyperactive Designs bank account.
1.1.1 Account Set-Up Fee
1.1.2 Service Fee
1.1.3 Domain Registration Fee
1.1.4 Hosting Service
1.2 Hyperactive Designs reserves the right to offer subsequent promotional rates which may or may not be more favorable than the terms under which you entered this agreement. Any such periodic special rates shall not effect the then existing rights and responsibilities of each party. Hyperactive Designs also reserves the right to change the rate charged for any such fee under this agreement with 30 days notice. Late fee of $10.00 will be applied to overdue invoices for administration fees.
1.3 Hyperactive Designs charges a non-refundable set up fee as well as it’s periodic service fee which in some cases may be refundable as further set forth elsewhere herein. According to the services you order from Hyperactive Designs, Hyperactive Designs may also charge you for Domain Registration Fees and specifically reserves the right to institute additional charges upon notice to you. Hyperactive Designs also reserves the right to alter, change, amend or delete charges at it’s sole option. Hyperactive Designs further reserves the right to institute new services and charge fees in association with the provision of such new services as it deems appropriate.
1.4 Payment of Fees – Hyperactive Designs accepts payment by Cash, Credit Card (Visa, MasterCard) and by personal cheque, cashiers cheque or money order. All invoices are payable within 14 days.
1.4.1 Final Payment for CMS, Shopping Carts and Websites will be made before the site goes live, in the event that the website needs content being the clients responsibility payment must be made when Hyperactive Designs has completed the frame work within seven business days of completion.
1.5 Payment by Credit Card
1.5.1 Prior to activation of your user account and at any applicable time thereafter you agree to allow Hyperactive Designs to charge your provided credit card and at stated regular intervals the agreed service fee amount for the stated period together with any Hyperactive Designs set-up charges, registration fees, or any other charges outlined herein as may be applicable. You further authorize Hyperactive Designs to charge your credit card for all subsequent period fees at, or a reasonable period in advance of, the commencement of any such subsequent period. You agree to maintain current valid existing credit card information with Hyperactive Designs for the purpose of satisfying the Hyperactive Designs charges as they become due. Refusal or rejection of any such charge or any portion thereof is grounds for account suspension and/or termination at the sole option of Hyperactive Designs under Paragraph 8 herein.
1.6 Payment by Cheque
1.6.1 Prior to activation of your user account you agree to submit a cheque payable in Australian Dollars against a bank located within Australia. Hyperactive Designs is under no obligation to initiate service until the proceeds of such cheque have been cleared by such financial institution and have been received by Hyperactive Designs. Invoices will be submitted to you as a courtesy only. Payment for subsequent fees are due and payable immediately upon invoice and in no instance later than the expiration of the last day of the previous period without regard to any invoice. It is your responsibility when paying by cheque to make sure that your payment is received by Hyperactive Designs. An administrative fee of $25.00 will be charged for the refusal, rejection or return of any such cheque for any reason whatsoever or any portion thereof. In addition, refusal, rejection or return of any such cheque for any reason whatsoever or any portion thereof is grounds for account suspension and/or termination at the sole option of Hyperactive Designs under Paragraph 8 herein.
1.6.2 It is recommended that in order to avoid any service interruption that you submit your payment to Hyperactive Designs a sufficient time before the expiration of the current service period so that it reaches Hyperactive Designs in advance of the renewal date.
1.7 Refunds of Service fees will be made only for pre-payment of Service fees beyond the renewal date following the effective notice and termination of this agreement under paragraph 8.1. All refunds shall be pro-rated based upon the number of days for which service remains unused as of that renewal date. Hyperactive Designs may grant refunds under any other circumstance it deems appropriate without waiving any other rights hereunder.
2 WEB HOSTING SERVICES
For the term of the agreement as set forth herein Hyperactive Designs agrees to provide web hosting services according the plan selected by you upon activation of your account. Hyperactive Designs reserves the right to change, amend and/or otherwise alter the services provided with equivalent or otherwise equal services without prior notice to you. Hosting Packages are based on 12 months only, Hyperactive Designs does not give refunds on unused months within the 12 months payment. Only refunds given will be if payment exceeds 12 months. Hosting accounts that are within 30 days of due date must be paid before any FTP details are given out by HD Hosting.
3 DOMAIN REGISTRATION SERVICES
At Customer’s request, Hyperactive Designs may also acquire a Second-Level Domain Name (“Domain Name”), on behalf of Customer. Hyperactive Designs will not own or otherwise control any domain name registered on your behalf under this paragraph. Hyperactive Designs provides this service as a convenience to you only and you hereby waive any and all claims which you may have, or which may later arise, against Hyperactive Designs for any and all damages, losses, claims or expenses arising our or related to the acquisition, registration and/or use of the Domain Name. Any costs incurred by Hyperactive Designs to obtain and/or maintain the Domain Name on your behalf shall be charged to you by Hyperactive Designs under the provision therefore elsewhere herein.
4 ACCEPTABLE USE
Hyperactive Designs strictly enforces compliance with its acceptable use terms under this paragraph (4) four. You agree to maintain your website in full compliance with the terms set forth below. Failure to so comply is cause for immediate suspension and possible termination under paragraph (8) herein.
4.1 You agree that you will not violate the laws, regulations, ordinances or other such requirements of any applicable Federal, State or local government.
4.2 You agree not to cause any harm to minors of any kind or to perform any activity which is likely to cause such harm.
4.3 You agree not to take any action which encourages or consists of any threat of harm of any kind to any person or property
4.4 You agree not to transmit any unsolicited commercial or bulk email. You will not engage in any activity known or considered to be “spamming” or “Mail Bombing”
4.5 You agree not to make any inappropriate communication to any Newsgroup, Mailing List, Chat Facility, or other Internet Forum.
4.6 You agree not to make or attempt any unauthorized access to any Hyperactive Designs website or the website of any Hyperactive Designs customer.
4.7 You agree not to infringe any copyright, trademark, patent, trade secret, or other proprietary rights of any third party, including, but not limited to, the unauthorized copying of copyrighted material, the digitization and distribution of photographs from magazines, books, or other copyrighted sources, and the unauthorized transmittal of copyrighted software.
4.8 You agree not to collect or attempt to collect personally identifiable information of any person or entity without their express written consent. You shall maintain records of any such written consent throughout the terms of this agreement and for three years thereafter.
4.9 You agree not to undertake any action which is harmful or potentially harmful to the Hyperactive Designs server structure.
4.10 You agree not to sublease your account, www.yourcompany.com/client, or offer free space to other clients. Our web plans are for single users only.
4.11 You agree not to run a banner exchange, free adult tgp (thumbnail gallery post) and free adult image galleries on your website.
Hyperactive Designs pursuant to the terms and conditions set forth herein hereby grants you a non-exclusive, limited, personal, non-transferable license to use the Hyperactive Designs Web Hosting Service for the term of the agreement as set forth herein.
6 OWNERSHIP OF INTELLECTUAL PROPERTY; CONFIDENTIALITY
6.1 It is understood and agreed that during the term of this agreement and thereafter you may come into possession of information which is the confidential and proprietary information of Hyperactive Designs including but not limited to the Hyperactive Designs customer service and maintenance tools. You acknowledge that all right and title to any such Hyperactive Designs intellectual property shall remain the sole property of Hyperactive Designs and that you have no right, title or interest therein. In the case of Hyperactive Designs not hosting the website that has been created by Hyperactive Designs all FTP access details shall be provided to Hyperactive Designs. You further agree not to provide access to the Hyperactive Designs services to any third party. You agree yourself and not to assist any third party in any way to translate, decompile, reverse engineer, disassemble, modify, reproduce, rent, lease, lend, license, distribute, market or otherwise dispose of any portion of the Hyperactive Designs Services. Any and all right or title to any engineering, coding, programming or customer service work around or other modification of the Hyperactive Designs service shall also remain the sole property of Hyperactive Designs.
6.2 During the term of this agreement you may have access to certain information and materials relating to the Hyperactive Designs business, customers, software technology and marketing which Hyperactive Designs treats as confidential (hereinafter “Confidential Information”). You agree to at all times during the term of this agreement and otherwise as set forth herein: (i) hold in confidence, and not disclose or reveal to any person or entity, any “Confidential Information” without the express prior written consent of Hyperactive Designs; and (ii) not use or disclose any of the “Confidential Information” for any purpose at any time, other than pursuant to your rights under this agreement for the purpose intended. These obligations shall continue indefinitely for so long as the Confidential Information is a trade secret under applicable law and shall continue for three (3) years following termination of this Agreement with respect to Confidential Information, which does not rise to the level of a trade secret.
6.3 Hyperactive Designs reserves the right to insert a footer link in all websites created by Hyperactive Designs solely for www.hyperactivedesigns.com.au if this link is removed without written consent from ScoJam Pty Ltd the website will be in breach of these terms and conditions and then be forwarded to Hyperactive Designs lawyers.
7 TERM Website Hosting
The initial term of this agreement shall be twelve (12) months with automatic renewal for subsequent additional months after the expiration of the initial term. Hyperactive Designs reserves the right to accept pre-payment of renewal periods and may from time to time offer financial incentives for such pre-payment. The term of the agreement, however, shall remain twelve (12) months. If hosting has been cancelled by the client the hosting space will remain until expiry. All Hosting terms are 12 months (one year). Hyperactive Designs does not give refunds if there is still time left before expiry.
8 SUSPENSION AND TERMINATION
8.1 Suspension – At the sole option of Hyperactive Designs for any reason set forth herein or in the event that you breach any term of this agreement including but not limited to Section 1 (Payment of Fees) and Section 4 (Acceptable Use Policy) Hyperactive Designs may suspend your account by deactivating any access by you or by web users to any information contained on the Hyperactive Designs servers related to your account while maintaining the information and data related to your account upon the Hyperactive Designs servers. Suspension shall specifically include the disabling of your hosted domain and/or any access to information or data related to your account. In the event of any such suspension you will be notified and given an opportunity to correct such breach. In the event that such breach is not corrected within ten (10) days the account may be terminated under paragraph 8.2. Service charges will continue to accrue on suspended accounts as if they were not suspended. You will remain responsible for the payment of any such charges during any such period of suspension.
8.2 Termination – This agreement and all of it’s terms shall remain in full force and effect until it is terminated. Termination shall include the removal of any and all of your information from the Hyperactive Designs servers. Such information or data may or may not be made available to you by Hyperactive Designs after any such termination. This agreement may be terminated either (a) after a period of suspension as set forth in paragraph 8.1 or (b) by either party upon 45 days notice in advance of a renewal period for any reason.
8.3 In the event of termination under paragraph 8.2(a) there will be no refund provided to you. In addition, Hyperactive Designs may charge you an additional termination fee not to exceed $100.00 at its sole option. The assessment of this termination fee shall not effect the rights of Hyperactive Designs to recover from you losses, damages, indemnity, defense costs, expert costs, collection costs and/or attorneys fees or other costs of any kind as may be applicable under California Law
8.4 In the event of any termination under paragraph 8.2(b) of this subsection any service fees paid in advance beyond the next renewal date following the notice period under that section will be refunded to you. This refund shall not include any set-up fees, Domain Registration fees or other fees which are all non-refundable.
9.1 Any notice under this agreement shall be given by Hyperactive Designs to you via email at the address provided by you to Hyperactive Designs at the commencement of this agreement or as Hyperactive Designs is subsequently advised. Notice to you at this address is deemed sufficient regardless of your receipt of such email. If you wish to update your email address you should do so at this page.
9.2 Any notice by you to Hyperactive Designs shall be made by telephone to a customer service representative at +61 7 5526 2346 during Hyperactive Designs regular business hours of 9:00 a.m. to 5:00 p.m. Australian Eastern Standard Time. Such notice may also be sent via Mail to the following Address:
PO Box 5890
Sections 1, 3 through 6, 8, 9, 11, 12, and 14 through 18, inclusive, of this agreement shall survive the termination of this agreement and shall remain in full force and effect after any such termination.
11 WARRANTEES AND LIMITATIONS
11.1 Hyperactive Designs makes every reasonable effort to maintain operation of the Hyperactive Designs service however because as many events and circumstances are beyond the control of Hyperactive Designs, Hyperactive Designs does not in any way warrant or otherwise guarantee the availability of the Hyperactive Designs system or servers and is not responsible for any delay or loss of data, lack of connection, slow connection, or any other such issues whether due to the active or passive negligence of Hyperactive Designs.
11.2 THE HYPERACTIVE DESIGNS SERVICE IS PROVIDED TO YOU ON AN “AS IS” BASIS, AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
11.3 In general, Hyperactive Designs has no control over information contained on the Internet. Information obtained by you from the Internet may be inaccurate, offensive or in some cases even illegal. Hyperactive Designs accepts no responsibility for any information which you receive from the Internet. You accept full responsibility to verify the truth and accuracy, legality and ownership of the information that you obtain from the Internet as well as the reputation of the individuals with whom you may deal. Hyperactive Designs provides no warranty for any goods or services which you obtain over the Internet nor the compatibility of any such services with the Hyperactive Designs system.
11.4 You specifically hereby waive any claim for damages of any kind whether direct, indirect, special, exemplary, punitive, incidental or consequential, loss of profits or loss of business as the result of any action taken in response to any claim of copyright infringement without regard to whether or not the material claimed to have been infringing is later found to be infringing.
11.5 THE TOTAL SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU AS THE RESULT OF ANY BREACH OF THIS AGREEMENT, NEGLIGENCE, OR ANY ACTION OR FAILURE TO ACT WHETHER INTENTIONAL OR OTHERWISE SHALL BE THE TOTAL AMOUNT OF SERVICE FEES PAID BY YOU TO HYPERACTIVE DESIGNS IN THE THREE MONTHS IMMEDIATELY PROCEEDING ANY ALLEGATION OF ENTITLEMENT TO SUCH REMEDY. IN NO EVENT SHALL HYPERACTIVE DESIGNS BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR LOSS OF BUSINESS AS THE RESULT OF ANY SUCH ACTION OR INACTION WITHOUT REGARD TO THE LIKELIHOOD OF ANY SUCH DAMAGES.
12.1 You agree to fully defend and indemnify and hold harmless Hyperactive Designs of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any breach or claim of breach of this agreement or your negligence whether active or passive or any negligence of Hyperactive Designs in any way related to your use of the Hyperactive Designs service or any portion thereof.
12.2 You agree to fully defend and indemnify and hold harmless Hyperactive Designs of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any violation or claimed violation of any copyright or other intellectual property right of any third party which is in any way related to your use of the Hyperactive Designs service or any portion thereof. Choice of counsel remains exclusively that of Hyperactive Designs
12.3 You agree that upon the assignment of your user ID and password that you will maintain the confidentiality of your account information and assume all responsibility of and from any loss, theft or other destruction of any data as the result of any access to your account via the use of your user ID. You further agree to defend and indemnify and hold harmless Hyperactive Designs of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any claim for damages in any way related to the disclosure of your confidential User ID and Password information. Choice of counsel remains exclusively that of Hyperactive Designs.
13 FORCE MAJEURE
Either party to this agreement shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.
This agreement and the rights hereunder is not assignable or transferable except that Hyperactive Designs may assign it’s rights hereunder to any person or entity who shall become a principal owner, or shareholder of Hyperactive Designs. Any other attempted transfer or assignment of rights hereunder shall be null and void ab initio.
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
16 NO AGENCY
Notwithstanding any other provision of this agreement, Hyperactive Designs is not your agent, partner or joint venture in any respect.
Hyperactive Designs may without advance notice amend this Agreement from time to time, and will do so by posting the new Agreement on the Hyperactive Designs web site in place of the old. Each and every such amendment shall be become effective immediately for all pre-existing and future accounts.