Terms of Services
This Document was updated: 26 July 2014
PLEASE READ THE FOLLOWING TERMS OF SERVICE CAREFULLY BEFORE USING THE SITE
OR SIGNING UP FOR ANY SERVICE THAT OCEANIA OFFERS.
Oceania provides web hosting and related services to a large number of clients. We have a responsibility to protect each client and provide the best services available. The following guidelines have been established to ensure this intent is met.
Oceania Business Solutions Pty Ltd., its affiliates and their successors and assigns (collectively referred to as “Oceania”) makes available the web hosting and related services described in Oceania’s published service descriptions subject to these Terms of Service (the “TOS”).
For the purposes of the TOS, the word “you” means the individual requesting one or more services provided by Oceania, and, if applicable, includes any other legal entity on behalf of which an individual makes such a request. Additionally, you agree not to make such a request on behalf of any other legal entity unless you have the authority to bind that legal entity to the TOS.
2. ACCEPTANCE OF TERMS
- 2.1 Capacity. You represent and warrant to Oceania that you have the capacity to enter into a legal agreement in the province, state, territory or country in which you reside. If you do not have the capacity to enter into a legal agreement in the province, state, territory or country in which you reside, do not request services from Oceania unless your parent or guardian enters into the TOS on your behalf.
- 2.2 PLEASE READ THE TOS CAREFULLY. BY CLICKING ON THE “I AGREE” BUTTON ON THE ORDER FORM FOR ANY SERVICE PROVIDED BY OCEANIA, YOU ARE AGREEING TO BE BOUND BY THE TOS AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THE TOS. YOUR USE OF THE SERVICES FURTHER CONFIRMS YOUR ACCEPTANCE OF THESE TOS
- 2.3 You represent and warrant to Oceania that your use of any service that it provides will not violate any applicable law or regulation in the province, state, territory or country in which you reside. If you are unable or unwilling to do so, do not request services from Oceania.
- 3.1 Services. The services that you request from Oceania by means of the online order form on the Site or otherwise in writing and which Oceania agrees to provide subject to these TOS are the “Services”.
- 3.2 Your Information. You represent and warrant that any information you provide about yourself is true, and you will maintain and promptly update such information to keep it true and current.
- 3.3 Privacy.You agree for Oceania to obtain from a credit-reporting agency a credit report containing personal credit information about you in relation to credit provided by Oceania.You agree that Oceania may exchange information about you with those credit providers named in the Application for Credit account or named in a consumer credit report issued by a reporting agency for the following purposes:
- to assess an application by you;
- to notify other credit providers of a default by you;
- to exchange information with other credit providers as to the status of this credit account, where you are in default with other credit providers; and
- to assess the credit worthiness of you.
- You consent to Oceania being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).You agree that Personal Data provided may be used and retained by Oceania for the following purposes and for other purposes as shall be agreed between you and Oceania or required by law from time to time:
- provision of Services;
- marketing of Services by Oceania, its agents or distributors in relation to the Services;
- analysing, verifying and/or checking your credit, payment and/or status in relation to provision of Services;
- processing of any payment instructions, direct debit facilities and/or credit facilities requested by you; and
- enabling the daily operation of your account and/or the collection of amounts outstanding in your account in relation to the Services.
- Oceania may give information about you to a credit reporting agency for the following purposes:
- to obtain a consumer credit report about you; and or
- allow the credit reporting agency to create or maintain a credit information file containing information about you.
- 3.4 Communications.Oceania reserves the right to communicate with you regarding the Services and your use of the Site. You consent to Oceania’s use of any contact information that you provide to Oceania in doing so.
- 3.5 Passwords.If you are given a username and/or a password for the purpose of accessing certain features of the Services or certain features of the Site, you are responsible for all activities conducted under that username or password, and you will take all necessary steps to ensure that no one other than you uses that username or password and that password is kept confidential. If you have any reason to believe that any password assigned to you has become known to or been used by any other person, you will inform Oceania immediately.
- 3.6 Changing Passwords. Oceania may, at any time, change any username or password assigned by Oceania to you, and Oceania will notify you when it does so.
4. DESCRIPTION OF SERVICES
- 4.1 General. Description. For each package of web hosting and related services that Oceania makes available to its customers, Oceania has prepared and published a specification (each a “Service Description”). The Service Descriptions are available on https://www.oceaniawebhosting.com.au (the “Site”).
- Changes to Services. Oceania may modify its services and the corresponding Service Descriptions from time to time. When Oceania changes any Service, Oceania will:
- post the updated version of the Service Description on the Site together with the date on which it was revised; and
- on the home page for the Site for at least 30 days following any change to the Service Description, post a notice that the Service Description have been updated. Oceania may also send any email notice of the change to its affected customers.
- 4.2 Hosting Services
- Any Service identified as a “Hosting Services” in its Service Description is a Hosting Service.
- Service Levels. Oceania shall endeavour to maintain network stability and satisfactory service levels, however you irrevocably agree that:
- We may from time to time perform routine maintenance, service and upgrades. We will endeavour to act on such instances at the most convenient times and provide reasonable notice by any means we deem satisfactory.
- We may experience outages beyond our control caused by any of the following; force majeure (any ‘act of god’ including those induced by negative human activities), war, invasion, act of hostilities, civil war, rebellion, military power or confiscation, terrorist activities, nationalism, governmental/quasi-governmental sanction, restraint, embargo, prohibition or intervention, blockage, labour dispute, general strike, lockout or failure of utilities (electricity, telephone, etc), failure of hardware (our hardware as well as third party), failure of software, failed software or hardware upgrade or any other failure as caused by us, our suppliers or any third party
- We may, at our discretion provide notification of outages whether planned or unplanned
- 4. You release us from any claim or potential claim with relation to outages and any loss of business/service suffered by you or any third party.
- Third Party Services. We may provide services directly or via a third party. Third party services may be subject to specific agreements as supplied by them. By applying or using any service offered by us you must agree to this agreement and any agreement of our third party suppliers.
- Internet. Oceania shall provide an Internet connection linking your hosted website(s) to the Internet.
- Remote Access. You will be given remote access to upload files for your hosted website(s) provided that you do so in a manner consistent with the TOS.
- Routing. When Oceania hosts a website on your behalf, Oceania will route one or more domain names to that website. The exact number of domain names that Oceania will route on your behalf will depend on the Hosting Service to which you subscribe. Check the applicable Service Description for more information.
- Back-up.You acknowledge that unless you subscribe to a Hosting Service that expressly includes the independent backup of Your Content (as defined below) as a service, Oceania’s back-up activities are primarily for Oceania’s own disaster recovery purposes, and that YOU ARE RESPONSIBLE FOR THE STORAGE, BACK-UP AND ARCHIVING OF YOUR CONTENT. Also note: Hosting Services include access to one or more tools via your Control Panel that allow you to back-up Your Content. Please use these tools and back-up Your Content frequently.
- Maintenance Window. When reasonably possible, any maintenance of the hardware used to host your website(s) will be conducted during one of the following “Maintenance Windows”:
- between 12:00 a.m. and 3:00 a.m. (local time in Toronto, Ontario); or
- between 12:00 a.m. and 3:00 a.m. (local time in Sydney, Australia).
- Availability. A Hosting Service is “Available” if the: (a) the hardware being used to provide it is operating; and (b) the Internet connection provided as part of the Hosting Service is operational.
- Measure. Oceania will use reasonable efforts to ensure that the Hosting Services will be available other than for “Scheduled Maintenance” at least 99.9% of the time, measured monthly. Any maintenance or other work performed on Oceania’s technology infrastructure that takes place during the Maintenance Window or with at least 48 hours’ prior notice posted to the Site is “Scheduled Maintenance”.
- 4.3 Domain Names Registration Services
- Assistance with Registering Domains. Oceania may, upon your request, act on your behalf to register one or more top-level or second-level domain names (the “Domain Name Registration Service”). For each such domain name registered you will be the registrant, and Oceania will be the administrative contact, billing contact and technical contact. You agree to be bound by all applicable terms and conditions published by the applicable registrar and you are also bound by ICANN’s Registrants’ Benefits and Responsibilities: https://www.icann.org/resources/pages/benefits-2013-09-16-en
- Maintenance of Domain Names. You are responsible for the ongoing control and use of any domain name registered in your name and for any fees or taxes associated with its maintenance. Oceania will assist you to maintain your domain name registration. You are responsible for paying any renewal fees in a timely manner to ensure that it does not lapse.
- Please note that:
- Oceania is not able to guarantee that a proposed domain name is available for registration or that a registrar will register it;
- Oceania will not assist with the registration on your behalf of a proposed domain name in any top-level or second-level domain unless expressly directed by you to do so; and
- Oceania may but is not obligated to inform you of any proposed or new top-level or second-level domains.
- Privacy Registration Service. Some registrars allow domain names to be registered without publishing the registrant’s name and contact information others do not. If you wish to take advantage of any such privacy service for a domain name and you are using the Domain Name Registration Service to register the domain name, you are responsible for informing Oceania in writing prior to the registration of the domain name that you wish to take advantage of the registrar’s privacy service. You acknowledge that the privacy service is provided by the applicable registrar, not Oceania.
- As is. Assistance with registering domain names and securing related privacy services is provided “as is” and without any warranties, representations or conditions whatsoever.
- Domain Redemption Fee: If your domain was registered with Oceania and has expired, but you wish to recover the domain, Oceania may be able to recover the domain if it is still within the redemption period. To recover a domain name that has expired but which is still within the redemption period, Oceania must pay a redemption fee, which in turn will be passed on to you the customer. Please note that this domain redemption fee does not include the registration price of the domain that will still need to be paid to register the domain for the next year. If the domain name is not renewed or acquired during the redemption period, it will be made available again to the general public after the redemption period completes. Only domains that have been registered with Oceania can be re-registered after expiration of the domain. If the domain that has expired was registered at another company, you will need to contact that registrar to recover the domain from the redemption period.
- 4.4 Resale. If you have received written permission from Oceania to resell all or part of the Services that you are receiving pursuant to this Agreement, you are responsible for providing support to your clients. If Oceania is contacted directly by any such client, Oceania may suspend all or part of the Services that it is providing to you. If Oceania does so, Oceania will give you notice of the suspension and the reason for the suspension. Once you have satisfied Oceania that you have taken reasonable steps to inform your clients that they are to contact you for support and to ensure that you are providing that support, Oceania will lift the suspension. There is no abatement of Fees during any such suspension. Furthermore, any acts and omissions of your clients that would be breaches of this Agreement had they been your acts or omissions are your responsibility and will be treated as if they are your acts and omissions.
- 4.5 Additional Services. Any additional services related to the Hosting Services or Domain Name Registration Services that are requested by you and that Oceania in its sole discretion provides (“Additional Services”) are deemed to be Services provided pursuant to these TOS, and they will be provided at Oceania’s then current rates.
- 4.6 Support.
- FAQs. Oceania maintains a list of frequently asked questions and downloadable documents
- Technical Support. Oceania will provide technical support relating to the Hosting Services via its help desk. The help desk aims to provide technical support 24/7/365. The help desk can be reached by:
- telephone; or
The email address and the telephone number that you should use are set out on the Support Site.
- Verifiable. Oceania will use commercially reasonable efforts to resolve each problem reported to Oceania’s help desk and verifiable as being a problem or deficiency with the Hosting Services.
- Assistance. When you report a problem to Oceania’s help desk, you will provide: (i) any assistance reasonably necessary to allow Oceania to verify and resolve that problem; and (ii) all information that you are reasonably able to provide with respect to any problem.
- Billing. Billing and account support is available via the Members Area that Oceania provides to you to manage your account; www.oceaniawebhosting.com.au. Billing queries can also be made by telephone or email.
- 5.1 Intellectual Property. No intellectual property rights are transferred by Oceania to you by these TOS.
- 5.2 Your Content. “Your Content” means all materials, information, data or code that you upload, store, transmit, receive or process in connection with the Services. You hereby grant to Oceania and its directors, officers, employees, agents, consultants or subcontractors the right to use, reproduce, transmit and delete (as applicable) Your Content in such manner as may be necessary to enable Oceania to perform the Services and otherwise exercise any right or perform any obligations under this Agreement.
- Monitoring Your Content. Although Oceania is not obligated to monitor content and assumes no responsibility for Your Content or the content of its other customers, Oceania reserves the right, subject to all applicable laws, to investigate Your Content and may block access to, refuse to host, or remove any information or material that it deems to be in breach of our Unacceptable Use policy below.
6. ACCEPTABLE USE
- 6.1 Unacceptable Use. Unacceptable use refers to any unlawful, illegal or inappropriate use as set out in this section. You may not use the Services or Oceania’s technology infrastructure in any manner that constitutes an unacceptable use. Unlawful of illegal use is the creation, collection, transmission, storage or exchange of any material in violation of any applicable law or regulation. Inappropriate use includes any use or behaviour that may:
- jeopardize Oceania’s products, services, technology infrastructure or ability to operate; or
- expose Oceania to civil liability.
- Unlawful, illegal or inappropriate use includes use of the Services to:
- Possess, store, view, download, transmit, distribute (by any peer-to-peer service or otherwise) or traffic any materials that:
- include child pornography;
- infringe any person’s copyright or other intellectual property right (including unlicensed or improperly licensed applications, music, games or other materials);
- wilfully promote hatred against or defame any identifiable individual, group or other organization;
- Can be used for attacking computer systems and networks and defacing websites (including scripts, executables or other tools);
- Include any form of malware;
- make threats to a person’s safety or property;
- defame other persons;
- interfere with the services that Oceania provides to its other customers;
- interfere with, disrupt or damage the servers used by Oceania to provide such services, those of Oceania’s suppliers or those of Oceania’s other customers;
- impersonate or falsely state or otherwise misrepresent your identity or affiliation with any person or entity;
- willfully bypass or subvert the physical, logical or procedural safeguards such as firewalls, web-filtering software or other access controls used by anyone to gain unauthorized access to anyone’s technology infrastructure or distributing computer programs designed to assist in doing so;
- Any act in violation of any applicable local, provincial, state, national or international law or regulation including any laws relating to:
- the export of data or software;
- the protection of human rights;
- the promotion of hatred;
- criminal offences;
- the protection of intellectual property;
- The sending of commercial electronic messages without consent from the recipients.
- 6.2 Disruptive Uses. You may not use the Services or Oceania’s technology infrastructure in any manner that interferes with or disrupts Oceania’s other customers. When any of the following events occurs in relation to any hosted web site, it is a disruptive use, a breach of these TOS and Oceania may exercise its rights as stated including suspending Services:
- generating a daily, weekly or monthly volume of network traffic that is excessive in relation to amount of network traffic typically generated by Oceania’s other clients who have purchased similar hosting services;
- generating spikes in network traffic usage that are out of proportion (in volume or frequency) to those typically generated by Oceania’s other clients who have purchased similar hosting services;
- on a daily, weekly or monthly basis, consuming CPU or other processing resources in a manner that is excessive in relation to amount of network traffic typically generated by Oceania’s other clients who have purchased similar hosting services;
- even if they do not come within the above, running peer-to-peer applications, peer-to-peer file sharing, proxy servers, bit torrent, online gaming servers, proxy server network, interactive relay chat (IRC), interactive chat applications, file sharing, video sharing, photo sharing or other resource intensive services or applications.
- using disk space to store materials unrelated to or unnecessary for the operation the web site for which the Hosting Services were purchased (for example, using disk space for data warehousing, backs of all or part of any computing, telecommunications or mobile device or other forms of mass data storage);
- the sending of any commercial electronic messages promoting the web site or otherwise directing attention to the web site to any recipient without the recipient’s consent
- No “Spam”: UCE/UBE or “spam” originating from a server located on our network or associated with an Oceania server is not tolerated. This includes any email that promotes websites hosted on a server located on the Oceania network, but which is sent from an email address not associated with an Oceania account.
- 6.3 Music, Image and Video Files. Responding to and addressing copyright complaints is a time consuming process. From time to time, Oceania scans its servers looking for MP3, MP4 and other file formats commonly used for music, images or video. If such files are detected amongst Your Content, Oceania may ask you to demonstrate that they are:
- owned or properly licensed by you; and
- if licensed, not being used in a manner that is inconsistent with that license. If you fail to do so for any file or, in the alternative, remove the file from Oceania’s servers, it is a breach of this section and Oceania may exercise its rights under these TOS including section 6.6 and section 5.3
- 6.4 Reporting. If you become aware that any person has committed, is likely to have committed or is likely to commit any act described in section 6.1, you will promptly report it to the help desk from which you receive technical support.
- 6.5 Investigation. Oceania reserves the right to investigate suspected breaches of this section 6, you agree to cooperate with Oceania when asked to assist in any such investigation.
- 6.6 Breaches. If you breach this section 6, it is probable (in Oceania’s sole discretion) that you have breached or it is likely that you will breach this section 6 (also in Oceania’s sole discretion), Oceania in its sole discretion may suspend or revoke your access to the Services or Oceania’s technology infrastructure. Breaches of this section 6 may also result in you incurring criminal prosecution or civil liability.
- 6.7 Other Breaches. Oceania assumes no liability for enforcing or not enforcing the provisions in its other service agreements relating to acceptable use.
7. IP ADDRESSES
- OceaniaCapacity may assign one or more Internet Protocol addresses to you for use with the Services. You acknowledge that you have no right, title or interest in or to any IP addresses assigned to you by Oceania or its representatives in connection any Services. Oceania or its suppliers may change any such address at any time, but Oceania will use reasonable efforts to give you notice of any change if the affected IP address is a fixed IP address.
- 8.1 Fees. The fixed fees and/or rates applicable to any Service are set out in the online order form for the Service (the “Fees”). They may include one-time fees (these are typically for setting up the service) and recurring fees. PLEASE NOTE THAT THE ONLINE ORDER FORM MAY ALSO SET OUT A RATE INCREASE THAT WILL BECOME EFFECTIVE UPON THE EXPIRATION OF A PROMOTIONAL RATE. SUCH AN INCREASE WILL HAPPEN WITHOUT FURTHER NOTICE TO YOU.Otherwise, Oceania will give you at least 30 days prior written notice of any increase to the Fees.
- 8.2 Promotions. From time to time, Oceania may offer its services to new or existing clients at discounted or promotional rates. You acknowledge that any such promotion is only applicable to one of your Services if the promotion or discount is clearly set out as applicable on the online order form used that you used to order the Service.
- 8.3 Expenses. Unless expressly set out otherwise in an applicable Service Description, you will reimburse Oceania for all registrar’s fees or other related expenses incurred by Oceania in relation to any third-party service described in section 4.3.
- 8.4 Taxes. You will pay any present or future sales, goods and services, excise, value-added, or other similar taxes including any related interest or penalties (imposed at any time by any governmental authority) arising from or related to any Services other than taxes based on Oceania’s net income.
- 8.5 Payment of Fees. Oceania accepts payment by credit card (Visa or MasterCard), EFT and by cheque.
- 8.6 In Advance. Payment for Hosting Services is in advance. When you order a Hosting Service, you are required to pay the full amount of Fees for the initial term and applicable taxes. When a Hosting Service renews, you are required to pay the full amount of Fees for the renewal term and applicable taxes. A Hosting Service renews when it has not been terminated by you prior to the last date of the initial term or any renewal term for which you have paid.
- 8.7 Additional Services.Fees for Additional Services, applicable taxes and reimbursable expenses are due at the end of the month in which they are incurred.
- 8.8 Automatic Charging.When Oceania is entitled in accordance with this Agreement to any Fees, applicable taxes or expenses, such amounts will be automatically charged to the credit card account that Oceania has on file for you and you authorize Oceania to do this. Oceania will send an invoice for these amounts to the email address that it has on file for you before doing so.
- 8.9 Chargebacks.Please note that should any amount that you pay by credit card be charged back to Oceania, you will incur an additional Fee of $25.00. The payment will not have been received by the due date, and:
- Oceania may restrict, suspend or terminate the affected Services; and
- the overdue payment shall attract a late payment fee of $5.50. Further, Oceania shall be entitled to recover its collection costs, including legal fees and expenses.
- Term. This Agreement shall be effective as of the date on which you order your first Service and shall continue until terminated in accordance with the terms and conditions set out in the remainder of this section 10 (the “Term”).
10. SUSPENSION AND TERMINATION
- 10.1 Suspension. If you breach any of these TOS, Oceania may, in its sole discretion, restrict or suspend the Services, without prior notice to you and without an opportunity to cure the breach. If you are given an opportunity to and you cure the breach or you demonstrate to Oceania satisfaction that you have taken steps to prevent future breaches of the TOS, Oceania will lift the restriction or suspension. Oceania will give you notice of any suspension or restriction. Whether or not a restriction affects your access to Your Content is in Oceania’s sole discretion.PLEASE NOTE THAT FEES WILL BE CHARGED DURING THE PERIOD OF ANY SUSPENSION OR RESTRICTION OF SERVICES.
- 10.2 Termination By You. You may terminate any Service at any time in writing by:
- Attach a PDF of your signed cancellation letter and email to email@example.com
- Post to PO Box 321, Brunswick Heads NSW 24383
- Fax to 02 9475 0070
- PLEASE NOTE: any amounts paid in advance for Services will not be refunded.
- 10.3 Termination by Oceania. Oceania may terminate any Service by giving you at least 30 days written notice of the termination date. Oceania may terminate this Agreement immediately and without prior notice to you:
- if you breach section 6 (Acceptable Use);
- if you breach section 8 (Payment) and do not cure that breach within 10 days of the breach; or
- if you breach any other section of these TOS and do not cure that breach within 15 days.
- 10.4 Survival. Those sections of this Agreement which by their nature should survive the termination or expiration of this Agreement, including but not limited to 3.4, 4.2(g), 4.2(l), 4.3(b), 4.3(c), 5, 7, 8, 10.4, 11, 12, 13, 14, 16 and 17 will remain in full force and effect following the expiration or termination of this Agreement.
- 10.5 Renewals. Services purchased for a set period (for example, one year) will be automatically renewed upon the expiry of that period unless you give Oceania written notice of your intention to terminate them at least 30 days prior to the expiry of that period. They will be renewed at Oceania’s then current rates for such Services.
11. WARRANTIES AND DISCLAIMERS
- THE INTERNET IS A COMPLEX NETWORK OF EQUIPMENT, SERVICES, AND PROVIDERS OF INFORMATION, THUS THE SERVICE MAY NOT BE AVAILABLE TO YOU AT ALL TIMES. YOU ACKNOWLEDGE THAT THE HOSTING SERVICES AND OTHER SERVICES MAY NOT ALWAYS BE AVAILABLE, AND WITH THE EXCEPTION OF ANY EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT, OCEANIA EXPRESSLY DISCLAIMS ANY OTHER REPRESENTATIONS, WARRANTIES, OR CONDITIONS WITH RESPECT TO THE HOSTING SERVICES OR OTHERWISE ARISING FROM THIS AGREEMENT WHETHER EXPRESS OR IMPLIED, PAST OR PRESENT, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY THAT THE HOSTING SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
12. LIMITATIONS OF LIABILITY
- 12.1 Limit. IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF OCEANIA (INCLUDING ITS REPRESENTATIVES AND SUPPLIERS) TO CLIENT FOR ANY CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, EXCEED THE AMOUNT PAID BY CLIENT DURING THE 12 MONTH PERIOD PRECEDING THE DATE ON WHICH CLIENT MAKES ITS FIRST CLAIM FOR DAMAGES.
- 12.2 Indirect Damages. Oceania (INCLUDING ITS REPRESENTATIVES AND SUPPLIERS) SHALL NOT BE LIABLE TO CLIENT OR ITS END USERS IN ANY WAY WHATSOEVER, FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF DATA, REVENUE OR PROFIT RESULTING FROM OR ARISING IN CONNECTION WITH THIS AGREEMENT OR THE PROVISION OR USE OF THE HOSTING SERVICES. THIS LIMITATION SHALL APPLY WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE, OR WHETHER OCEANIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- 12.3 Some jurisdictions do not allow the exclusion of incidental, special or consequential damages. If any jurisdiction having applicability to the TOS does not permit any such exclusion or limitation, Oceania’s total liability to you in connection with any incidental, special or consequential damages will be limited by section
- 12.4 Allocation of Risk. You the client and Oceania understand and agree that, to the extent permitted by applicable law, the foregoing exclusions and limitations of liability represent the parties’ agreement as to allocation of risk between them in connection with their respective obligations under this Agreement. The fees payable to Oceania reflect, and are set in reliance upon, this allocation of risk and the exclusions and limitations of liability set forth in this Agreement.
- You agree to indemnify and hold Oceania and its affiliates, directors, officers, employees, and agents harmless from and against any liabilities, losses, damages or costs, including reasonable attorneys’ fees, incurred in connection with or arising from any third-party allegations, claims, actions, disputes, or demands asserted against any of them as a result of or relating to Your Content, your use of the Services or any wilful misconduct on your part.
- 14.1 Entire Agreement. These TOS and all documents incorporated herein by reference constitute the complete agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous discussions, negotiations, understandings and agreements, written or oral, regarding such subject matter.
- 14.2 Severability. Should any provision of this Agreement be held to be invalid or unenforceable by a court of competent jurisdiction, that provision will be enforced to the extent permissible, and all other provisions will remain in effect and are enforceable by the parties.
- 14.3 Waiver. No waiver of any part of this Agreement will be deemed to be a waiver of any other provision. No term of this Agreement will be deemed to be waived by reason of any previous failure to enforce it. No term of this Agreement may be waived except in a writing signed by the party waiving enforcement.
- 14.4 Interpretation. The headings used in the Terms are for convenience of reference only. No provision of the Terms will be interpreted against any party merely because that party or its legal representative drafted the provision. All remedies are cumulative. Throughout the TOS, the term “including” or the phrases “e.g.,” or “for example” have been used to mean “including, without limitation”.
- 15.1 TOS. You may not assign the agreement represented by these TOS, either in whole or in part, without the prior written consent of Oceania. Any other attempted transfer or assignment of rights hereunder shall be null and void.
- 15.2 Domain Names. These TOS do not restrict your ability to transfer any domain for which you are the registrant. If Oceania is the registrar for the domain name, please request our “domain name transfer instructions” by sending an email to firstname.lastname@example.org We will send you the specific details and information about transfer of ownership.
- 15.3 Oceania. Oceania may assign its rights and obligations hereunder without your prior consent.
- Notice. Any notice or other significant communication given to you pursuant to the Terms will be in writing, addressed to any email address or address that you provided to Oceania when acquiring your first Service (as updated by you in accordance with section 3.2) and sent to you by email or by nationally recognized overnight courier as applicable. Any notice or other significant communication given to Oceania pursuant to the TOS will be in writing and sent to Oceania at the address then listed on the Site in the Contact Us section by fax or nationally recognized courier. Notices will be deemed to have been received one business days following:
- email transmission by Oceania to you;
- deposit with a globally recognized overnight delivery service, all delivery charges pre-paid; or
- transmission if sent by facsimile and receipt confirmed by the facsimile machine used.
- 17.1 Governing Law. This Agreement will be governed by the laws of the State of New South Wales and the laws of Australia applicable therein, without reference to the conflict of laws provisions. The parties consent to the jurisdiction of the courts of New South Wales.
- 17.2 Independent Contractors. The relationship between the parties is that of independent contractors, and not that of partnership, joint venture, employment, franchise or agency. Neither party may incur any obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.
- 17.3 Force Majeure.Neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control that could not have been avoided by the exercise of reasonable foresight provided that such party gives the other party prompt notice of such cause and uses reasonable commercial efforts to correct such failure or delay in performance.
- 18.1 Oceania may change the TOSfrom time to time and at any time. When Oceania changes the TOS, Oceania will:
- post the updated version of the TOS on the Site together with the date on which it was revised; and
- on home page for the Site for at least 30 days following any change to the TOS post a notice that the TOS have been updated.
- 18.2 As well, Oceania may, but is not obliged to, ask you to actively confirm your consent to the revised TOS. If Oceania does not do so, but you continue to use the Services or Site after the changes come into effect, you will be deemed to have agreed to abide by the revised TOS. If you do not agree with the revised TOS without qualification, terminate any existing Services that you are receiving from Oceania and instruct Oceania to disable any password for the Site assigned to you.
- 18.3 Oceania reserves the right, in its sole discretion, to change or modify the Site from time to time including but not limited to adding or removing functionality or features or changing its name.