This Agreement ("Agreement") is between DorksDelivered.com.au ("Dorks Delivered") and the person (individual or legal person) who completes Dorks Delivered’s subscription form ("Order") incorporating this Agreement by reference ("Customer").
This Agreement governs Customer’s use of Dorks Delivered’s Web Hosting and/or related services.
1. Services
Subject to the terms of this Agreement, and contingent on Customer’s satisfaction of Dorks Delivered’s credit approval requirements, Dorks Delivered agrees to provide Customer with web hosting and / or related services selected by Customer from Dorks Delivered’s then published list of services ("Services") and as described in the Order, for the fees stated in the Order.
The Services to be provided initially to Customer shall be as selected in the Order and thereafter as established through correspondence between Customer and Dorks Delivered.
2. Term
The initial term of the Agreement shall begin on the date that Dorks Delivered generates an order confirmation e-mail message to Customer announcing the activation of the Customer’s account (the "Service Commencement Date") and shall continue for the number of months stated in the Order (the "Initial Term").
However, no service shall commence unless and until Dorks Delivered receives and accepts a completed Order from Customer, plus payment in full for Services to be rendered during the Initial Term and any set up charges.
Dorks Delivered reserves the right to reject any submitted Order for any or no reason prior to written acceptance thereof by Dorks Delivered.
Upon expiration of the Initial Term, this Agreement shall automatically renew for successive terms of the same length as the Initial Term ("Renewal Term") unless Dorks Delivered or Customer provides the other with written notice of non-renewal at least fourteen (14) days prior to the expiration of the Initial Term or then current Renewal Term, as applicable. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the "Term."
3. Payments
Fees
All fees for Services rendered or provided to Customer shall be in accordance with Dorks Delivered’s price list then in effect.
Customer’s billing cycle shall be monthly, quarterly, annually or biennially as indicated on the Order, beginning on the Service Commencement Date. Dorks Delivered may require payment for the first billing cycle before beginning service. Fees for the Renewal Term are payable monthly, quarterly, annually or biennially as indicated on the Order.
If the Order provides for credit / debit card billing, Customer authorises Dorks Delivered to bill subsequent fees to the credit / debit card before, on or after the first day of each successive billing cycle during the Term of this Agreement otherwise Dorks Delivered will invoice Customer via electronic mail to the Primary Customer Contact listed on the Order.
Payments must be made in the currency indicated on the order form.
Payment in full of such invoiced amount is due upon receipt of the invoice. Should payment in full of any invoice not be received, Dorks Delivered may charge interest on overdue amounts at the lesser of 1.5% per month or the maximum non-usurious rate under applicable law. In addition Dorks Delivered may terminate this Agreement and / or suspend Services without notice if payment for Services is overdue.
Fees not disputed within thirty (30) days of due date are conclusively deemed accurate. Customer agrees to pay Dorks Delivered’s reasonable reinstatement fee following a suspension of service for non-payment, and to pay Dorks Delivered’s reasonable costs of collection of overdue amounts, including collection agency fees, legal fees and court costs.
Fee Increases
Dorks Delivered may amend the Services and / or the fees it charges for Services by giving at least fourteen (14) days notice to Customer, and if Customer does not give a notice of non-renewal as provided in Section 2 above, the Customer shall be deemed to have accepted the new fee and for any subsequent Renewal Terms (unless the fees are increased in the same manner for a subsequent Renewal Term).
Taxes
At Dorks Delivered’s request Customer shall remit to Dorks Delivered all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on Dorks Delivered) regardless of whether Dorks Delivered fails to collect the tax at the time the related services are provided.
Early Termination
Customer acknowledges that the amount of the fee for Services is based on Customer’s agreement to pay the fee for the entire Initial Term, or Renewal Term, as applicable. In the event Dorks Delivered terminates the Agreement for Customer’s breach of the Agreement in accordance with Section 9 (Termination), or Customer terminates the service other than in accordance with Section 9 (Termination) for Dorks Delivered’s breach, the unpaid fees for each billing cycle remaining in the Initial Term or then-current Renewal Term, as applicable, are due seven (7) business days following termination of the Agreement.
4. Law / AUP
Customer agrees to use the services in compliance with applicable law and Dorks Delivered’s Acceptable Use Policy (the "AUP"), which is hereby incorporated by reference in this Agreement.
Customer agrees that Dorks Delivered may, in its reasonable commercial judgment consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on Customer’s use of the Services.
Amendments to the AUP are effective on the earlier of Dorks Delivered’s notice to Customer that an amendment has been made, or the first day of any Renewal Term that begins subsequent to the amendment.
Customer agrees to cooperate with Dorks Delivered’s reasonable investigation of any suspected violation of the AUP. In the event of a dispute between Dorks Delivered and Customer regarding the interpretation of the AUP, Dorks Delivered’s commercially reasonable interpretation of the AUP shall govern.
5. Customer Information
Customer represents and warrants to Dorks Delivered that the information he, she or it has provided and will provide to Dorks Delivered for purposes of establishing and maintaining the service is accurate.
If Customer is an individual, Customer represents and warrants to Dorks Delivered that he or she is at least 18 years of age, and Dorks Delivered reserves the right to ask for proof of age (in the form of a valid passport or photo driving licence) and to carry out checks to verify the information provided.
Dorks Delivered may rely on the instructions of the person listed as the Primary Customer Contact on the Order with regard to Customer’s account until Customer has provided a written notice changing the Primary Customer Contract.
6. Indemnification
Customer agrees to indemnify and hold harmless Dorks Delivered, Dorks Delivered’s affiliates, and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of Customer’s services in violation of applicable law or the AUP by Customer or any person using Customer’s log on information, regardless of whether such person has been authorized to use the services by Customer.
7. Disclaimer of Warranties
CUSTOMER AGREES TO USE ALL Dorks Delivered’s SERVICES AND ANY INFORMATION OBTAINED THROUGH OR FROM Dorks Delivered AT CUSTOMER’S OWN RISK.
Dorks Delivered DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW Dorks Delivered DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN "AS IS" BASIS.
8. Limitation of Damages
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF Dorks Delivered AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR THREE MONTHS OF SERVICE.
9. Suspension / Termination
Suspension of Service
Customer agrees that Dorks Delivered may suspend services to Customer without notice and without liability if: (i) Dorks Delivered reasonably believes that the services are being used in violation of any Terms and Conditions or the AUP; (ii) Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP; (iii) Dorks Delivered reasonably believes that the suspension of service is necessary to protect its network or its other customers, or (iv) as requested by a law enforcement or regulatory agency. Customer shall pay Dorks Delivered’s reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection.
Dorks Delivered operate a Banned Services Policy in the instance of a charge back or misuse of a Dorks Delivered product or service.
Termination
The Agreement may be terminated by either party, without cause, by giving the other party fourteen (14) days prior written notice.
The Agreement may be terminated by Customer prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if Dorks Delivered fails in a material way to provide the service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Customer’s written notice describing the failure in reasonable detail.
The Agreement may be terminated by Dorks Delivered prior to the expiration of the Initial Term or any Renewal Term without liability as follows:
without notice if Customer is overdue on the payment of any amount due under the Agreement;if Customer materially violates any other provision of the Agreement, including the AUP, and fails to cure the violation within ten (10) days of a written notice from Dorks Delivered describing the violation in reasonable detail;
without notice if Customer’s service is used in violation of a material term of the AUP more than once, or
upon one (1) days notice if Customer violates Section 5 (Customer Information) of this Agreement.
Either party may terminate this agreement upon ten (10) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.
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