Smiley Host Terms and Conditions as at 1st October 2012.
This agreement represents the complete agreement and understanding between Smiley Host and the account holder / Customer and supersedes any other written or oral agreement.
Upon notice published on-line via www.smileyhost.com.au, Smiley Host may modify these terms and conditions, amplify them, and/or modify the prices, as well as discontinue or change the services offered. If you do not agree to these terms and conditions, please notify Smiley Host immediately. We may initiate the closure of your account.
1 Terms & Definitions
1.1 The term “Smiley Host” refers to Atomic Trust ABN 56 381 636 339, trading as Smiley Host (VBR B1804526E). The “Customer” is any person nominated by the Customer who is authorised to use the Account. The “account” means the Customer and the Designated Customers right to use the service.
1.2 This agreement commences on the date hosting commences until expiry of the agreed hosting term, or until earlier termination in accordance with this agreement.
2.1 Smiley Host will assign the Customer a login and password, which will provide the Customer with access to the services agreed to by the Customer and Smiley Host. Smiley Host will provide the Customer with Web and Email Services as per the Web Host service level they have selected and as defined in Packages webpage.
2.2 Smiley Host will advise the Customer of correct operational procedures via a welcome email on commencement of the hosting agreement.
2.3 The Customer must pay to Smiley Host the Hosting Fee and Setup Fee in advance. The Hosting Fee is exclusive of any registration or delegation charges imposed by domain name authorities.
2.4 Scheduled Maintenance – Smiley Host must perform scheduled maintenance to servers from time to time. Smiley Host will attempt to perform all scheduled maintenance at times which will affect the least number of Customers.
2.5 Unscheduled maintenance may need to be performed due to data corruption or equipment failure. Upstream services provided by third party suppliers may also affect Customer services. These services are outside of Smiley Host’s control and as such not the responsibility of Smiley Host.
2.6 Archiving of Data – Smiley Host will archive Customer’s data onto backup mechanisms for the purposes of disaster recovery. In the event of equipment failure or data corruption within or outside of Smiley Hosts control, Smiley Host will restore from the last known good archive. In the event of corruption of all Smiley Host’s archives, or in the event that an old archive is used to restore data, the Customer should be prepared to re-upload their data to their Web Site. This process requires that the Customer maintains a recent copy of their data at their premises at all times.
3 Warranties and Liabilities
3.1 Smiley Host does not warrant that:
3.1. 1 the services provided under this agreement will be uninterrupted or error free; or
3.1. 2 the services will meet the Customer’s requirements, other than as expressly set out in this agreement.
3.2 Except as expressly provided to the contrary in this agreement, all warranties whether express, implied, statutory or otherwise, relating in any way to the subject matter of this agreement, are excluded. Where any statute implies in this agreement any term, and that statute avoids or prohibits provisions in a contract excluding or modifying the application of or liability under such a term, then the term will be taken to be included in this agreement. However, the liability of Smiley Host for any breach of the term will, if permitted by that statute be limited, at the option of Smiley Host, to any one or more of the following:-
3.2. 1 the supply of the Smiley Host services again; or
3.2. 2 payment of the cost of having the Smiley Host services supplied again
3.2. 3 The Customer warrants that at the time of entering into this agreement it is not relying on any representation made by Smiley Host which has not been stated expressly in this agreement, or on any descriptions or specifications contained in any other document, including any publicity material or email produced by Smiley Host.
3.2. 4 The Customer warrants that it will conduct such tests and computer virus scanning as may be necessary to ensure that data uploaded by it onto or downloaded by it from the Server does not contain any computer virus and will not, in any way, corrupt the data or systems of any person.
3.2. 5 The Customer warrants that it will keep secure any usernames and passwords used to upload data to the Server.
3.2. 6 The Customer warrants that all data uploaded onto the Server under this agreement will not expose Smiley Host to the risk of any claim, legal or administrative action or persecution.
3.2. 7 Smiley Host reserves the right (but is under no obligation) to “Remove from Internet Access” any part of the Customer Data that, in Smiley Host’s opinion, infringes any of the warranties set out in this agreement.
3.2. 8 Smiley Host has no obligation to review or edit content of the Customer Data.
3.2. 9 The Customer is solely responsible for dealing with persons who access the Customer Data, and must not refer complaints or inquiries in relation to the Customer Data to Smiley Host.
3.2. 10 If there is any claim against Smiley Host due to a breach of the Customer’s warranties, or otherwise attributable to the Customer Data, the Customer must indemnify and hold Smiley Host harmless against all liabilities, losses, damages, costs and expenses (including legal fees and expenses) associated with, or arising out of, the claim.
4.1 Either party may terminate this agreement by 30 days notice in writing (written, email or fax) to the other party. If the Customer has paid a Yearly fee or pro-rata fee, and terminates the agreement before the end of the term, then the contract shall revert back to a monthly payment schedule. Smiley Host will calculate any refund to the Customer based on Yearly Fees paid less the monthly payment schedule multiplied by the number of months the contact has operated.
4.2 On termination or expiry of this agreement for any reason, Smiley Host may delete all Customer Data and backups from any storage media.
5.1 The Customer grants to Smiley Host a license to use and reproduce all Customer Data in order to fulfill its obligations under this agreement.
5.2 A provision of, or a right created under this agreement, may not be waived except in writing signed by the party granting the waiver, or varied except in writing signed by the parties.
5.3 This agreement and the transactions contemplated by this agreement are governed by the law in force in Australia.
5.4 The Customer may not assign its rights and obligations under this agreement without the prior written consent of Smiley Host.
As a domain name reseller, we are required to provide a link to Registrants’ Benefits & Responsibilities – ICANN
Atomic Trust ABN 56 381 636 339, trading as Smiley Host (VBR B1804526E)