This Services Agreement (the "Agreement") contains the complete terms and conditions which govern your subscription of Web hosting, e-Commerce and other Internet-related services provided by CodeGarden (the "Services").
As used in this Agreement, "CodeGarden" means CodeGarden and "Client", "you", or "your" means you. By subscribing to our services you acknowledge that you have read the Agreement, and you agree to its terms and conditions and all policies posted on the CodeGarden web site. As referred to in this Agreement, "Site" refers to a World Wide Web site and "CodeGarden Site" refers to the Site located at the URL http://www.codegarden.com.au, or any other successor Sites owned or maintained by CodeGarden.
1. Appropriate Use of The Service
CodeGarden provides the Services exclusively and makes no effort to edit, control, monitor or restrict the content of data other than as necessary to provide such Services.
Client agrees that it will not distribute, electronically transmit or display any materials supplied by Client - or through Client by a third party - to any CodeGarden server in connection with Client's use of the Services which:
Disk Space/Data Transfer.
The Client may occupy only the amount of disk space on the CodeGarden Server and utilise no more than the network data transfer that is allocated by CodeGarden. Additional fees will be charged for exceeding the disk space and/or network bandwidth allowance of your selected plan.
Client shall not use our Services for chain letters, junk mail, spamming, bulk mailing (more than 500 recipients) advertising or any use of distribution or mailing lists to any person who has not given specific permission to be included in such a process. Client also shall not engage in any unsolicited email practices using CodeGarden Servers or other infrastructure, or otherwise, that mentions or reference any domain hosted on CodeGarden servers or parked on CodeGarden DNS servers.
Client agrees that any hosting account that uses excessive CPU or Memory resources (25% or more) for a sustained period of time (ten minutes or more) may be suspended at any time without notice. CodeGarden reserves the right to terminate sites that are repeatedly using excessive resources at any time with prior notification. CodeGarden will provide the offer to backup the clients data and FTP the tarball to the clients chosen destination server.
Licensed Software Only.
Client agrees to use only properly licensed third party software in connection with Client's use of the Services.
Back-Up Files and Processing.
CodeGarden takes all reasonable steps to safeguard the CodeGarden Servers and the data contained there-in, however CodeGarden will not be responsible for any loss of Client data or DNS records stored or intended to be stored on the CodeGarden Servers and/or back-up devices. The Client will not be entitled to any form of compensation from CodeGarden in the event of loss of data.
CodeGarden actively performs a variety of backups daily, there may be times when the backups fail or become unavailable. You agree to free CodeGarden from any legal action in the event of data loss and you agree that you will not be entitled to any form of compensation for said loss.
The client agrees that applications and scripts installed using Fantastico or uploaded are the responsibilty of the client and must be kept up-to-date. Failure to do so may expose our servers to possible exploits and costs to restore services may be recovered from the client of the site initially affected.
CodeGarden reserves the right to refuse service to anyone. CodeGarden, in its sole discretion, may immediately terminate this Agreement if Client engages in any of the foregoing. To report any unacceptable behaviour by a third party using the Services, please contact us
2. Domain Names
Domain Name Applications
Domain Name Registrations are for the period of: .au - 2 Years, .com/.net/.org - 1 Year. Domain names are subject to availability and as per policy of the respective Domain Name Authority. The client agrees to accurately provide all details to the best of their knowledge to assist with the application.
Domain Name Transfers
Domain Name Transfers can only be processed with the Domain Name Password (Auth-Info for .au & EPP for .com/.net etc). Australian Domain names (.au) due to expire within 90 days will be automatically renewed for a further 2 Year period and International Domains (.com/.net/.org etc) will be renewed for a further 1 year period. The clients accept that domain name transfers will be rejected if the domain name has been recently registered or transferred within the last 30 days or is in Domain Locked status. Domain Transfers will also be rejected if the Client Authorisation email sent by the registry is not responded to.
3. Payment Obligations
CodeGarden shall either:-
All new accounts must be paid prior to the new account becoming active on our servers. Domain name registration fees must be paid upfront before the domain name will be registered.
CodeGarden accepts no responsibility for domain names registered by another party prior to the Client paying the outstanding amount.
On-going invoices will be issued six (6) weeks prior to the due date and reminders will be issued at intervals prior to the due date, the reminder interval may vary.
A payment overdue notice will be issued between three (3) and five (5) days after the due date.
The account will be automatically suspended between five (5) and ten (10) days after the due date, and a notice will be issued advising of the suspension.
CodeGarden shall be entitled to immediately terminate this Agreement and the hosting account fourteen (14) days after non-payment or from failure to make timely payments. If Client terminates this Agreement in accordance with Section 5 hereunder, Client shall be responsible for any outstanding fees owed to CodeGarden and agrees to pay any and all fees incurred by Client. Services are provided on an annual basis, unless an alternative contract is in place. Fees will not be pro-rated or refunded. Notice of termination must be received in writing 30 days prior to the annual service renewal.
Any payment not received within 10 days after due date may incur a late payment fee. Customer also shall pay to CodeGarden all expenses incurred by CodeGarden in exercising any of its rights under this Agreement or applicable law with respect to a Payment Default or other breach by Customer, including, but not limited to, reasonable Solicitors fees and the fees of any collection agency retained by CodeGarden.
Customer will be responsible for and will pay in full, any taxes and similar fees now in force or enacted in the future imposed on the transaction and/or the delivery of Services.
If Client chooses to register a domain name(s) through CodeGarden, Client acknowledges and agrees that Client will pay a registration fee(s) to register the domain name(s) with the applicable domain name registrar. CodeGarden does not offer refunds for domain name registrations for any reason, including misspelling of the domain name. Domain name registration fees must be paid up front. CodeGarden accepts no responsibility for domain names registered by another party prior to the Client paying any outstanding amount.
4. Client Liability and Indemnification
The parties agree that in no event shall CodeGarden be liable to any third party for Client's breach or alleged breach of any of the terms and conditions set forth in this Agreement. Client agrees to defend, indemnify and hold harmless CodeGarden from any and all expenses, losses, liabilities, damages or third party claims resulting from Client's breach or alleged breach of any Client obligations set forth hereunder.
5. Terms, Termination & Reinstatement
Terms & Termination.
Subject to the terms and conditions hereof, this Agreement shall be effective on the date you register for the Services, and shall continue in effect on a year-to-year basis unless otherwise specified by separate agreement (the "Term") unless terminated earlier pursuant to the provisions of this Section.
Either party will have the right to terminate this Agreement upon notice to the other party. All cancellation requests must be received 30 days prior to the annual hosting renewal. Sections 3 - 8 shall survive termination or expiration of this Agreement.
If CodeGarden suspends any type of account for non-payment, Client shall be allowed to re-instate Client's use of the Services within Five (5) business days of suspension upon approval from CodeGarden and the receipt of full payment of balances due.
If a Client terminates their account, CodeGarden will disable and remove the account(s) the day the client specifies the cancellation to take place and all archives of the clients website(s) and files will be removed. Should the client be in arrears for 14 days or more the clients site(s) may be terminated without further notice and CodeGarden will not maintain or provide an archival copy of the Clients Web site(s) or files of any type. It is the sole responsibility of the Client to backup and copy any data off the server prior to the date provided in their cancellation notice or termination date.
Client will pay and indemnify and hold CodeGarden harmless from any and all taxes associated with or arising from Client's use of the Services, including any penalties and interest and any costs associated with the collection or withholding thereof.
7. Disclaimer of Warranty
The services, the CodeGarden site, including without limitation, all products and services displayed or offered on the CodeGarden site, and all text, graphics, links and applications are provided to client on an 'as is' basis and without warranty of any kind. CodeGarden disclaims all warranties, express or implied, with respect to each of the foregoing, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement or arising from a course of dealing. Without limiting the generality of the foregoing, CodeGarden specifically disclaims any warranty that:
8. Limitation of Liability
Limitations of Liability.
In no event shall CodeGarden be liable for damages resulting from loss of data, profits, use of the CodeGarden site or any CodeGarden products or services, or for any incidental, indirect, punitive, or consequential damages in connection with this agreement or in connection with any products or services provided hereunder. In no event shall CodeGarden cumulative liability exceed an amount greater than one hundred dollars ($100.00).
Any notices or communication under this Agreement shall be in writing and shall be deemed delivered to the party receiving such communication at the address specified below (1) on the delivery date if delivered personally to the party, or a representative of the party; (2) one business day after deposit with a commercial overnight carrier, with written verification of receipt; (3) five business days after the mailing date, whether or not received, if sent by postal mail, return receipt requested; (4) on the delivery date if transmitted by confirmed facsimile. If posting correspondence to CodeGarden please use the following address details:
PO Box 2032
Benalla, Victoria 3672
If any of the provisions, or portions thereof, of this Agreement are found to be invalid under any applicable statute or rule of law, then, that provision notwithstanding, this Agreement shall remain in full force and effect and such provision or portion thereof shall be deemed omitted. This Agreement (including the Exhibits, attachments and/or addenda, if any,) represents the entire agreement of the parties with respect of the subject matter hereof and supersedes all prior and/or contemporaneous agreements or understandings, written or oral between the parties with respect to the subject matter hereof.
This Agreement and the rights granted and obligations undertaken hereunder may not be transferred, assigned or delegated in any manner by Client, but may be so transferred, assigned or delegated by CodeGarden. Any waiver or any provision of this Agreement, or a delay by any party in the enforcement of any right hereunder, shall neither be construed as a continuing waiver nor create an expectation of non-enforcement of that or any other provision or right. In any legal proceeding between the parties under this Agreement, the prevailing party shall be entitled to recover its costs, expenses and reasonable attorneys' fees.
This Agreement is made under and shall be governed by the laws of Australia, except with regard to it's conflict of law rules. This Agreement and CodeGarden's policies are subject to change by CodeGarden without notice. Continued usage of the Services after a change to this Agreement by CodeGarden or after a new policy is implemented and posted on the CodeGarden Site constitutes your acceptance of such change or policy. We encourage you to regularly check the CodeGarden Site for any changes or additions.
11. Website EOL
Any website CodeGarden creates will have an End-of-Life (EOL). This end of life is currently 3 (three) years. Underlying software on which the website relies will be periodically updated to address security issues, flaws and improvements. This software, when upgraded, may cause components of the website to fail. If the website CodeGarden has created fails during that period and this failure is due to an upgrade of underlying software; for example PHP version, then we will fix the issue without charge. Websites older than the EOL will attract a fee for upgrades.