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  1. Definitions

1.1. “Account” means the account held with Element thirteen by the Customer that is used for billing, contact information and details of Services assigned to the Customer.

1.2. “Customer” means the person or entity who ordered Service(s) from Element thirteen.

1.3. “Service”, “Service(s)” or “Services” means any product(s) or service(s) the Customer has ordered from Element thirteen. This can include, but is not limited to, web site hosting, domain name registration or transfer or renewal, SSL certificates, VPS and SMS services. These product(s) and service(s) are identified in full within the “sign up” and “service provision” emails Element thirteen sends to the Customer after an order has been placed. The specific details of the Services can be found by logging in to Client login section or on our website.

1.4. “Element thirteen” or “element13” means the retail operations of Element thirteen (Australia) (trading as Element thirteen).

1.5. “Client login section” refers to Element thirteen’s customer account, billing and management portal, available online at https://www.element13.com.au/clientarea.php

  1. Acceptance

2.1. The Customer signified acceptance of these Terms of Service, as well as our Privacy Policy, Acceptable Use Policy, Terms and Conditions, Customer Service Policy, Service Level Agreement (where applicable) and any applicable Registrant Agreement, when they submitted their order to Element thirteen for an Account and/or Services and that order was accepted.

  1. Term

3.1. The Customer agrees to a month to month contract term for Services unless otherwise stated in the Service offering (eg. domain names, SSL certificates, special Services with an agreed term), or otherwise agreed in writing. The month to month contract for Services is automatically renewed each month in perpetuity subject to cancellation by the Customer as per Section 14 of this agreement.

3.2. Monthly services are established as part, thereof, signifying the beginning of a new month demotes commitment till the end of that monthly period.

  1. Service, Marketing and Promotional Emails

4.1. The Customer agrees to receive emails directly relating to the Service(s) provided, as well as marketing and promotional emails from Element thirteen to the email address registered to their account. The Customer can unsubscribe from marketing and promotional emails only, by disabling them in Client login section.

4.2. The Customer may opt-in to receive email and SMS notifications from our Service Status system in relation to their Service(s). This subscription can be modified at any time by the Customer in Client login section and are disabled unless otherwise enabled by the Customer.

4.3. Customers with eligible services (eg: Business cPanel shared hosting services) may receive service specific notifications (including, but not limited to suspension notices) via SMS to their mobile device if a mobile number is present in Client login section.

4.4. The Customer may opt-in to receive marketing and promotional SMS messages from Element thirteen to a nominated mobile number. The Customer can unsubscribe from marketing and promotional SMS only, by disabling them in Client login section.

4.5. Element thirteen warrants that they will never sell or trade any email address to any third party, in accordance with the Privacy Policy.

4.6. If the Customer does not want to receive these mandatory service-specific emails and/or SMS messages (where applicable), they are required to cancel all active Services and close their Account, in accordance with Section 14 of this policy. The Customer may, however, opt-out from receiving

marketing and promotional emails and/or SMS messages at any time by disabling them in Client login section as described in Section 4.

  1. Availability of Services

5.1. While Element thirteen will endeavour to provide continuous availability of all Services to the Customer, Element thirteen will not be liable for any Service interruptions or down time that is not covered by a Service Level Agreement.

5.2. Scheduled maintenance will be performed at a time which is deemed suitable by Element thirteen which has the least noticeable impact on the Customer, and should it require the Services to be offline for greater than thirty (30) minutes, Element thirteen will post details of the scheduled maintenance at least two (2) days prior.

5.3. Unscheduled maintenance will be performed as required by Element thirteen, and should Services be offline for greater than thirty (30) minutes, Element thirteen will post details of the maintenance and any updates until it has been completed. Details of these events can been found at http://status.element thirteen.com.au

  1. Domain Name Registration and Renewal

6.1. The Customer acknowledges that Element thirteen is an authorised reseller of synergy Wholesale, an ICANN and auDA accredited registrar.

6.2. The Customer acknowledges that they have read and agree to any applicable Registrant Agreement before purchasing any domain name Service(s) from Element thirteen.

6.3. The Customer acknowledges that all domain name Service(s) are non-refundable once the order for the domain name Service(s) has been accepted and processed by Element thirteen.

6.4. Element thirteen does not warrant or guarantee that a domain name registration will be approved, irrespective of whether the invoice for the domain name has been paid. The Customer should take no action in respect of the requested domain name(s) until they have been notified by Element thirteen that the domain name(s) has been successfully registered and is in the Customers name.

6.5. The registration of the domain name and the ongoing use of the domain name are subject to the relevant naming authority’s terms of service and the Customer is responsible for ensuring awareness of these terms and that they are adhered to. The Customer waives any right to make claim against Element thirteen in respect to a decision made by a naming authority to refuse registration or renewal of a domain name.

6.6. The Customer acknowledges that Element thirteen is not obligated to renew a domain name if the Customer has not confirmed to Element thirteen that the domain name is to be renewed, or the invoice for renewal has not been paid in full, or it is determined that the Customer does not satisfy the eligibility criteria to continue holding the domain name license. In these circumstances, Element thirteen will not be held liable by the Customer for any loss or damages. All renewal requests must be submitted via Client login section and it is the Customer’s responsibility to confirm that the renewal request has been successfully processed in full.

6.7. Domain name registration or renewal may be declined by Element thirteen if the Customer is in breach of the Terms of Service, Acceptable Use Policy, Customer Service Policy or any applicable Registrant Agreement, or the customer has other unpaid invoices in their Account.

6.8. It is the Customer’s responsibility to ensure that the Registrant, Technical and Administrative contact information is kept up to date on every domain name.

6.9. As per registry-registrar policy and agreements, Element thirteen will use the Registrant contact information to advise the Customer of any pending expiry, renewal or transfer requests relating to the domain name.

6.10. Should the Customer choose to terminate all services with Element thirteen, but does not transfer a domain name to another registrar, the Customer agrees that Element thirteen may contact the Customer after the Account closure to advise of any domain name expiry, renewal or transfer.

  1. Limitation of Liability

7.1. Element thirteen shall not be liable to the Customer for harm caused by or related to the Customer’s Service or inability to utilise the Service unless caused by gross negligence or wilful misconduct.

7.2. Neither Party shall be liable to the other for lost profits, direct or indirect, special or incidental, consequential or punitive, or damages of any kind whether or not they were known or should have been known.

7.3. Notwithstanding anything else in this agreement, the maximum aggregate liability that Element thirteen, any of its employees, agents or affiliates, under any theory of law, shall not exceed a payment in excess of the amount paid by the Customer for the Service in question for the six months prior to the occurrence of the event(s) giving rise to the claim.

  1. Customer General Warranties and Undertakings

8.1. The Customer warrants that any information supplied for the purpose of creating an Account with Element thirteen, including but not limited to, first name, last name, address, telephone number and email address is true and correct, and will be kept up to date via Client login section.

8.2. The Customer warrants that they will keep any passwords or sensitive information used with the Service in a secure location and the information is not to be shared with any other party.

8.3. The Customer warrants that at the time of entering into this agreement they are not relying on any representation made by Element thirteen which has not been expressly stated in this agreement, or on any descriptions or specifications contained in any other document produced by Element thirteen.

8.4. The Customer warrants that all due care has been taken to ensure data integrity before it has been uploaded to Element thirteen’s servers. This includes an undertaking that the Customer will conduct the appropriate virus and malware scans on the data before it is uploaded to Element thirteen’s servers.

8.5. The Customer agrees that they are solely responsible for dealing with cases of unauthorised third parties accessing their Account and/or Service(s). These matters should be referred to the Australian Federal Police for investigation as soon as possible.

  1. Element thirteen General Warranties and Undertakings

9.1. Element thirteen accepts liability for the supply of the Service to the Customer to the extent provided in this agreement.

9.2. Element thirteen does not warrant that:

  1. The Services provided within this agreement will be uninterrupted or error free;
  1. The Services will meet your requirements, other than as expressly set out in this agreement;
  1. The Services will not be subjected to external hacking attempts, viruses, worms, denial of service attacks, or other persons gaining unauthorised access to the Service or internal Element thirteen systems.

9.3. Element thirteen does not make or give any express or implied warranties including, without limitation, the warranties of merchantability or fitness for a particular purpose, or arising from a course of dealing, usage or trade practice, with respect to any goods or services provided under or incidental to this agreement.

9.4. No oral or written information or advice given by Element thirteen or its resellers, agents, representatives or employees, to the Customer, shall create a warranty or in any way increase the scope of the express warranties hereby given, and the Customer should not rely on any such information or advice.

9.5. In no event will Element thirteen be liable to the Customer for any loss of business, contracts, profits or anticipated savings or for any other indirect or consequential or economic loss whatsoever.

9.6. Third party services engaged by the client through cPanel including but not limited to SEO and web design tools are done so at the Customers own undertaking. Element thirteen does not provide any express or implied warranty on the quality of their product(s) nor the outcomes expected and is under no obligation to extend support for externally managed or purchased products.

  1. Fees and Credit Management

10.1. In relation to fees for Services:

  1. Fees for Services ordered by the Customer shall begin on the date of the initial order and shall be prorated to include all days until the first day of the next month, and the chosen billing cycle in advance. This may be monthly, quarterly, semi-annually, annually, biennially or triennially.
  1. The first day of the month will serve as the anniversary date for all future billings including one time fees, upgrades, additional services, cancellations and service credits, unless the Service only allows annual or biennially billing cycles (eg. domain name registrations, SSL, etc).
  1. Fees are due in advance of the billing cycle and will be invoiced to the Customer ten (10) days prior to the due date. If a credit card is stored on in the Account, it will be charged three (3) days prior to the due date to allow sufficient time for any potential issues (such as insufficient funds, expired cards, etc) to be rectified before the due date.

10.2. In relation to fees for upgrades to Services:

  1. Upgrades ordered by the Customer on the billing anniversary date will be billed for a full cycle and will continue each cycle on the anniversary date, unless the Services only allows annual or biennially billing cycles (eg. domain name registrations, etc).
  1. Upgrades ordered by the Customer after the billing anniversary date will be prorated to the next anniversary date at the full monthly cost. Future fees will appear as the new plan from your existing anniversary billing date.
  1. Fees for upgrades will be payable within seven (7) days of the upgrade taking place. If a credit card is stored on file, it will be charged three (3) days prior to the due date, to allow sufficient time for any potential issues (such as insufficient funds, expired cards, etc) to be rectified before the due date.
  1. Additional fees may be payable for upgrades where manual work is required by Element thirteen to process the upgrade request.

10.3. In relation to fees for downgrades to Services:

  1. Downgrades will be processed when the request is received by Element thirteen from the Customer, unless otherwise specified in the request.
  1. A credit will be issued to the Customer’s Account as account credit for the difference of any prorated pre-paid amount minus the cost of the new plan prorated on the chosen cycle.
  1. A $9.95 administration fee may be charged for a downgrade request at Element thirteen’s sole discretion. Additional fees may be payable for downgrades where manual work is required by Element thirteen to process the downgrade request.

10.4. Fees for one-off Services including, but not limited to, dedicated IP addresses, SSL certificates, SMS credits, instant data blocks and instant disk blocks, are due within seven (7) of the invoice being issued.

10.5. All published prices are inclusive of any government taxes and charges unless otherwise noted.

10.6. Any unpaid invoices in the Customer’s Account must be paid in full before new Services will be provisioned.

10.7. Failure to pay any fees may result in the account being referred to an external collection agency, which may include interest (calculated daily) and collection costs.

10.8. Invoices that are more than five (5) days past the due date will automatically incur a late payment fee of 10% of the invoice which will be payable on top of the invoice amount.

10.9. Services with unpaid invoices that are more than fourteen (14) days past the due date will be automatically suspended, and a reconnection fee of $99.95 in additional to any outstanding fees may apply to have the service restored.

10.10. Services with unpaid invoices that are not paid in full within thirty (30) days of the due date will be automatically terminated.

  1. Payment Method Management

11.1. In the event a new Service is ordered by a new or existing Customer and payment is made during the order process using credit card, this credit card information may be stored against the Customers Client login section account. Furthermore the default payment method for that particular Service will be set as Credit Card.

11.2. Where a credit card number is recorded on file and the default payment of the Customers Service(s) is credit card, this may be used for the automated payment of due invoices. In such cases, payments will typically be taken three (3) days prior to the due date of the invoice.

11.3. Management of default payment methods can be conducted by the Customer within their Client login section account. This includes modifying or removing stored credit card information, as well as adjustment of the default payment method.

  1. Refunds

12.1. The following Services are not eligible for a refund if the Service has been successfully provisioned by one of Element thirteen’s suppliers:

  1. Domain names;
  1. SSL certificates;
  1. SMS credits;
  1. Software licenses and carbon offset add-ons.

12.2. A full refund will be provided to either account credit or returned to the original payment method, if the order was placed within forty-five (45) days of the date that the refund was requested for any of the following Services:

  1. Any shared cPanel web hosting Service;
  1. Any VPS hosting Service.

12.3. A pro rata refund will be provided to account credit only, minus a $9.95 administration fee, if the refund request was made more than forty-five (45) days after the order was placed for any of the following Services:

  1. Any shared cPanel web hosting Service;
  1. Any VPS hosting Service.

12.4. The Customer will not be entitled to a refund if any of Element thirteen’s Terms, Policies and Agreements have been breached by the Customer.

12.5. All other refunds will be processed at the sole discretion of Element thirteen Management, in-line with the Australian Competition & Consumer Commission’s published policies and guidelines. More information can be found at http://www.accc.gov.au/consumers/consumer-rights-guarantees

  1. Suspension and Termination of Services

13.1. Element thirteen may suspend or terminate Services if:

  1. The Customer is found to be in breach of any formal policy including but not limited to the Terms of Services, Terms and Conditions, Acceptable Use Policy, Customer Service Policy or any applicable Registrant Agreement;
  1. The Customer has become insolvent or bankrupt;
  1. The Customer has unpaid invoices as per Section 10 of this agreement.

13.2. Element thirteen may decide at its sole discretion to advise a Customer that their Account and/or Service(s) will be terminated by giving thirty (30) days written notice, and any applicable refunds will be processed as per Section 12.5 of this agreement.

13.3. If a Customer’s Account is closed for any reason, the Customer must pay all outstanding invoices by the due dates.

13.4. If a web hosting or VPS Service is suspended or terminated for any reason, Element thirteen is under no obligation to provide the Customer with a copy of any data associated with the Service. Element thirteen may provide the customer with a backup of the data, if it is available, for a fee of $199.95.

  1. Cancellation

14.1. The Customer can request cancellation of their Account or any Service(s) with Element thirteen for any reason by logging in to Client login section and submitting a cancellation request. For security reasons, we will not accept cancellation requests by any other method.

14.2. Any pre-paid fees for Services past the current billing month will be refunded in accordance with Section 12 of this agreement once a refund request has been made by the Customer. This can only be done by submitting an eTicket through Client login section.

14.3. The Customer agrees to pay any outstanding invoices upon cancellation of their Services.

14.4. If the Customer requests cancellation of a Service after the invoice for the renewal of the Service has been paid, a refund will be issued in accordance with Section 12 of this agreement.

  1. Data Management

15.1. It is the Customer’s sole responsibility to maintain regular off-site backups of their data. The Customer will not hold Element thirteen liable for incomplete, out of date, corrupt or otherwise incomplete data recovered from backups and archives.

15.2. With regards to shared cPanel web hosting Services, Element thirteen makes every reasonable effort to backup and archive the Customer’s data on a regular basis for the purpose of disaster recovery.

15.3. In the event of hard disk failure or data corruption of a shared cPanel web hosting server, Element thirteen will restore data from the last known verified archive. If all backup and archived data appears to be corrupt, the Customer should be prepared to upload all of their data to their Service from their own copy or an off-site backup, and re-create all mailboxes, databases, FTP accounts, etc.

15.4. Element thirteen takes automatic system backups of all shared cPanel web hosting Services seven (7) times a week.

15.5. Element thirteen takes automatic system backups of shared cPanel Business web hosting Services seven (7) times a week and will also retain a weekly rotation of these backups.

15.6. If the Customer requires Element thirteen to supply a backup of their data for an active shared cPanel web hosting Service, for any reason or purpose that is not the direct fault of Element thirteen, a fee of $49.95 per Service will be payable by the Customer before the data will be made available. Services in a suspended or terminated state within Client login section are not considered an active Service.

15.7. Element thirteen is under no obligation to maintain a backup of the Customer’s data following the cancellation of the Service by the Customer nor by the result of Service termination.

15.8. Element thirteen does not take automated system backups of Virtual Private Server (VPS) Services or any other Service unless explicitly stated.

15.9. Element thirteen holds no responsibility for any issues which arise during the use of third party services bundled within cPanel; this includes but is not limited to Softaculous, Installatron and RVSiteBuilder. Issues which occur as a result of failed upgrade attempts by the Customer are outside the control of Element thirteen.

  1. Changes

16.1. Element thirteen may amend our Terms of Service at any time. At all times Element thirteen will make available the current terms for client review and download via our website. Changes to this agreement other than price changes will become effective upon their publication to our website, and furthermore, continued use of the Service(s) constitutes acceptance of the amended terms. If you do not wish to accept the amended terms, you may request cancellation of your Service(s) in-line with our Cancellation Policy as per Section 14 of this agreement.

16.2. All Element thirteen Terms, Policies and Agreements are available for download from our website at any time.

  1. Use of Identity

17.1. The Customer agrees to use the Element thirteen logo, company information and related services in accordance with approved marketing guidelines.

17.2. Element thirteen agrees not to use a Customer name, logos or information without prior written consent of the Customer.

  1. Entire Agreement

18.1. These terms and conditions constitute the entire agreement between Element thirteen and the Customer, and it supersedes all prior oral or written agreements, understandings and representations.

  1. Governing Law

19.1. The Customer agrees to abide by all local, state and federal laws pursuant to the Services delivered by Element thirteen.

19.2. The Customer agrees that these terms and conditions are governed by the laws of Victoria, Australia, and agrees to the exclusive jurisdiction of the Courts of that state.

20 SMS Services –

20.1) The User agrees not to transmit any material which violates State or Federal law, instructions, regulations or guidelines issued by regulatory authorities, relevant licenses and other codes of practice, or transmit any material which is in contravention to any privacy or copyright rules or any other proprietary interest.

20.2) The User agrees not to harass, stalk, abuse or threaten any other person through SMS using Element13.

20.3) The User agrees to be aware and abide by the SPAM ACT 2003. The User agrees to contact the Australian Media and Communications Authority (http://www.acma.gov.au) before sending any SMS messages if the User is unsure that their SMS messages comply with the SPAM ACT.

20.4) The User agrees not to interfere with the operation of Element13.

20.5) Element13 maintains the right to inspect message content and take appropriate action on receiving complaints relating to message content via Element13. Element13 contacts all Users by e-mail or phone for any matter relating to unsolicited, abusive, deceptive or misleading messaging that has been conducted through Element13. Appropriate action may constitute the suspension or cancellation of an account pending investigation into any alleged abuse or misuse of Element13 for inappropriate or illegal use.

20.6) The User agrees that all the contents of Element13 including web-sites, pages, logos, hardware and promotional materials are protected by copyrights and trademarks and remain the property of Element13 and may not be copied for any reason.

20.7) Element13 will not be held accountable for SMS messages sent to an incorrect mobile number. It is the responsibility of the User to ensure the accuracy of mobile numbers and messages use on the Element13 site.

20.8) Element13 and it’s Provider makes no guarantees as to the continuous availability of the service or any specific feature(s) of the service.

20.9) Messages shall be deemed to have been delivered when Element13’s Provider has delivered/sent the messages to the immediate destination that the Provider’s software is programmed to do, including SMTP servers, mobile telephone networks, or any other intermediary server or API that is deemed to be the point of dispatch of the message. Element13 and it’s Provider does not guarantee delivery on behalf of Mobile telephone networks or mail servers.

20.10) Element13 reserves the right to change the price of SMS credits at any time. Should there be a cost increase AFTER the User has purchased message units from Element13, Element13 will honour all pre-purchased credits without altering the value of the purchased credits. Any user on a Post-Paid account will be given 30 days notice before any price change comes into effect.

20.11) Promotional SMS credits are given at the discretion of Element13. Element13 reserves the right to remove credits from an account if it is believed by Element13 that the Customer has breached acceptable use, such as obtaining free credits through the creation of multiple accounts.

20.12) All promotional credits are the property of Element13. Promotional credits will expire after 90 days. However, if you purchase credits from Element13 you will retain your promotional credits.

20.13) Fees charged for message credits are non-refundable once the message credits have been used. Refunds for unused credits can be provided within 6 months of a purchase. Payments for the purchase of other items including virtual numbers are not refundable.

20.14) Post paid accounts will be billed at the start of each month and are payable within 7 days of receipt of an invoice.

20.15) If a post paid invoice is not paid within 10 days of issue, Element13 may suspend the service. Element13 will not be responsible for any unsent messages during a time of suspension due to non-payment.

20.16) Any post-paid account that is more than 30 days in arrears may be referred to a debt collection service. All expenses related to the collection of debt are payable by The User.

 

If you have any questions about this agreement, please contact our Customer Care team at info@element13.com.au

This document was last updated on July 27, 2016.