Terms and Conditions
30 June 2006
1. Background, Precedence and Incorporation
- This Packaged Products Agreement (the Agreement) is between Melbourne IT Ltd (ABN 21 073 716 793) (Melbourne IT) and you (You or Your) for the provision of certain Products in a Package as described below.
- The Agreement is comprised of:
- the below terms and conditions;
- the Package List set out below; and
- each of the Product Terms and Conditions.
- The Product Terms and Conditions are incorporated into this Agreement by reference as if set out in this Agreement in full. You acknowledge that you have read and understood each of the Product Terms and Conditions relevant to your Package and agree to be bound by them. Melbourne IT is only willing to supply the Products and the Package on the Product Terms and Conditions and your continued receipt or use of the Products or the Package signifies your agreement to the Product Terms and Conditions.
- The terms and conditions below take precedence over the Package List and the Product Terms and Conditions. If there is any inconsistency between the provisions of this Agreement and the provisions of the Package List or the Product Terms and Conditions, this Agreement will prevail to the extent of any inconsistency and the provisions of the Package List and the Product Terms and Conditions will be construed accordingly.
2. Definitions and interpretation
- In this Agreement, unless the context otherwise requires:
"Domain Name Licence Fee" means the fees payable for the domain name licence part of each Package as described on Melbourne IT's website at http://www.melbourneit.com.au/. The Domain Name Licence Fee is payable as part of the Monthly Fees or, if the Package is cancelled or terminated during the Package Term, a combination of part of the Monthly Fees and the Exit Fee.
"Exit Fee" means the fee payable in accordance with clause 8 below.
"Fees" means the fees payable for the provision of the Package (and each of the Products in the Package) in accordance with clause 6 below, the Exit Fee and any other fees described in this Agreement (including data recovery fees and reconnection fees).
"Monthly Fee" means the fee payable by you each month for Melbourne IT's provision of the Package as described on Melbourne IT's website at: http://www.melbourneit.com.au/cc/online-business-solutions/index.
"Package" means the one collection of Products as described in the Package List selected by you.
"Package List" means the list of Products and Packages set out below.
"Package Term" means the minimum term of the Package as described on Melbourne IT's website at: http://www.melbourneit.com.au/document.php?handle=rfbdnpackages. Unless otherwise stated, the Package Term for each Package is 12 months.
"Product" means each product described in the Package List which together forms a Package.
"Product Terms and Conditions" means the terms and conditions for supply of the Products, as may be updated from time to time by Melbourne IT and published at http://www.melbourneit.com.au/policies
"Term" means the term of this Agreement.
- Words which are defined in Product Terms and Conditions and which are used in this Agreement have the same meaning in this Agreement as in the Product Terms and Conditions, unless the context requires otherwise.
3. Packages, Products and the Package List
- The Package List sets out the Packages (and Products comprising those Packages) offered by Melbourne IT. It also describes the Product Terms and Conditions which apply to each of the Products in each Package.
- When you agree to this Agreement by purchasing a particular Package, you also agree to be bound by the Product Terms and Conditions for each of the Products that comprise the Package.
4. Variations to the Packages, Products and Package List
- You may change between Packages by notifying Melbourne IT using the process described on our Website. Your new Package will take effect from the date of your next invoice (including a change to the amount you will be invoiced). The next invoice will reflect the Fees applicable to your new Package. Melbourne IT will charge you an administration fee to process the change in Package as described on our website.
- Notwithstanding paragraph (a), you may not change a Package which includes a hosting Product (for example, Standard Hosting or Advanced Hosting) to a Package which has a lesser hosting Product (for example, changing from Advanced Hosting to Standard Hosting or changing from Standard Hosting to no hosting).
- Melbourne IT may change the terms and conditions of this Agreement, the Packages or the Product Terms and Conditions either by obtaining your consent or giving you notice. The period of notice given by Melbourne IT depends on the nature of the change. If:
- the change will benefit you, we may make the change immediately and are not required to notify you prior to the change;
- the change is required by law, a regulatory body (including ICANN, auDA or any other domain name regulatory body) or for a technical reason (including for security), we will give you a reasonable period of notice not exceeding 3 days;
- we consider that the change has a significant and detrimental impact on our customers generally, we will give you at least 30 days notice prior to the change, and
for all other changes, we will also give you at least 30 days notice prior to the change.
5. Term of the Package
- This Agreement commences on the date Melbourne IT confirms to you by email or any other written medium that the Package has been activated (the Commencement Date) and continues for the Package Term, unless otherwise terminated.
- On expiry of the Package Term, this Agreement will be renewed for additional periods of one month, unless otherwise terminated.
6. Monthly Fee
- The Monthly Fees payable for each Package is set out at: http://www.melbourneit.com.au/cc/products/pricing
- On the Commencement Date and the first day of the month thereafter you must pay the Monthly Fee to Melbourne IT.
- The Monthly Fee is not refundable.
- The Monthly Fee is payable in advance and must be made by a credit card acceptable to Melbourne IT at the time of payment.
- It is your responsibility to ensure that Melbourne IT has your current and correct credit card details and that your credit card has sufficient funds to pay the Fees. You authorise Melbourne IT to charge the Fees to your credit card in accordance with this Agreement.
- Unless otherwise stated, all Fees and other amounts payable under this Agreement are exclusive of GST.
- Melbourne IT may set off any amounts due and payable under this Agreement against amounts that may be payable by Melbourne IT to you.
- Melbourne IT may appoint a collection agency to collect any outstanding debts. You indemnify Melbourne IT in relation to any costs incurred in collecting overdue fees under this Agreement.
7. Your cancellation of the Package
- You may cancel your Package at any time, but only by only by giving Melbourne IT prior notice using the online cancellation process available through your "My Account". Cancellation of your Package terminates this Agreement. On termination, you may be liable to pay an Exit Fee (as described below).
- The cancellation will be effective from the next billing period. Melbourne IT is not liable to refund any money already paid by you in relation to the Package.
- Redelegation or transfer of a domain name to another registrar does not constitute cancellation of the Package. If you choose to redelegate or transfer a domain name registered under your Package, you will be liable to continue paying the Monthly Fees for that Package.
8. Exit Fee
- If your Package is terminated or cancelled (by you or Melbourne IT) during the Package Term, you must pay to Melbourne IT the Exit Fee within 30 days of termination. The Exit Fee is calculated as follows.
| Exit Fee = |
Domain Name Licence Fee × Number of months remaining in Package Term
|
| Total Number of months in Package Term |
- The Domain Name Licence Fee is the minimum amount payable by you in relation to the domain name licence Product in the Package. The Exit Fee is a proportion of the Domain Name Licence Fee which decreases over the Package Term.
- The minimum payable by you in relation to the Package is the first Monthly Fee plus the Exit Fee.
9. Domain Name Licence on Cancellation
- If you:
- cancel your Package within the Package Term; and
- pay the Exit Fee within 30 days of cancellation, or
- cancel your Package after the Package Term,
you may at your option retain the domain name licence on the Product Terms and Conditions applicable to the domain name and for the remaining term of that domain name licence.
- If you:
- do not pay the Exit Fee within 30 days; or
- cancel your Package and do not elect to retain the domain name licence,
Melbourne IT may deal with that domain name licence as described in the Product Terms and Conditions applying to that domain name (including those rights of Melbourne IT after the domain name licence has expired).
- You acknowledge and agree that each domain name in each Package will be registered and renewed for the minimum period allowed by the relevant domain name registry.
10. Suspension, Termination, Cancellation and Reactivation by Melbourne IT
- Melbourne IT may terminate this Agreement:
- at any time by giving you at least one month prior notice;
- immediately on giving notice to you, if:
- you breach this Agreement, including a failure to pay the Monthly Fees;
- Melbourne IT is no longer the registrar of record for the domain name under the Package;
- Melbourne IT has a right to suspend, cancel or transfer any Product (including a domain name) under the Package;
- one of the Products in your Package has been suspended for more than 24 consecutive days;
- one of the Products in your Package is terminated or cancelled during the Term, and Melbourne IT may terminate the other Products in your Package and this Agreement;
- you become insolvent within the meaning of section 95A of the Corporations Act, must be presumed to be insolvent by reason of section 459C(2) of the Corporations Act or are otherwise unable to pay your debts as and when they fall due; or
- you have had any account with Melbourne IT which was suspended or cancelled by reason of non-payment of fees (even if that account does not relate to the provision of Products covered by this Agreement).
- In addition to its rights to terminate this Agreement, Melbourne IT may also terminate particular Products in accordance with the Product Terms and Conditions. If Melbourne IT terminates a particular Product, it may also terminate the Package under which the Product is provided.
- If you fail to make any payment when due (including by your credit card company notifying Melbourne IT of you disputing the payment or refusing to pay such Fee, or where your credit card payment has been declined or reversed), Melbourne IT may at its sole discretion:
- suspend the use of and access to the Products (including public access to your web content and delivery of email); or
- terminate this Agreement.
- If your usage of any of the Products is suspended, Melbourne IT may suspend your use of any other Products under the Package.
- Melbourne IT is not liable to you to make any payment (whether by way of indemnity, damages or otherwise) in connection with termination or suspension of this Agreement, Products or Packages.
- On termination of this Agreement, Melbourne IT may delete all content, configuration and settings in connection with your Package. It is your obligation to ensure that you have retained back-up copies.
- Melbourne IT may at its sole discretion:
- at your request within 24 days of suspension;
- on payment of a reconnection fee; and
- on payment of any overdue fees,
resume your suspended Products and Package on the terms and conditions of this Agreement.
- Melbourne IT may at its sole discretion:
- at your request within 5 days of termination or cancellation;
- on payment of a data recovery fee; and
- on payment of any overdue fees,
resume your terminated Products and Package on the terms and conditions of this Agreement.
- For the avoidance of doubt, Melbourne IT is not obliged to exercise its discretion under paragraphs (g) and (h) for any reason whatsoever.
- If Melbourne IT resumes a Product or Package under paragraphs (g) or (h), you will continued to be billed for your Package. The Product may take up to 72 hours to resume.
11. Liability
- Each of the Product Terms and Conditions contains specific provision in relation to your liability for each Product (including warranties and representations made by you, your indemnification of Melbourne IT and Melbourne IT's limited liability to you). You acknowledge that you have read and understood each of the Product Terms and Conditions relevant to your Package and agree to be bound by them.
- You are liable to pay the Fees for the Products in your Package as described under this Agreement. You are also liable in relation to each of the Products as described in the Product Terms and Conditions which apply to your Package.
- To the maximum extent permitted by law, Melbourne IT is not liable to you under this Agreement, including for any direct, indirect or consequential loss or damage (including economic loss or loss of data) arising out of or in connection with this Agreement, the Products or Packages (including for loss or damage caused by Melbourne IT's negligence). Melbourne IT is only liable to you in relation to each of the Products as described in the Product Terms and Conditions.
- If any legislation implies into this Agreement any term, condition or warranty which cannot be excluded or modified, then that term or warranty is deemed to be included. Melbourne IT's liability for the breach of such term, condition or warranty is limited, at Melbourne IT's option, to the replacement of the relevant goods or the supply of the relevant services again, or the payment of the cost of having the goods or services supplied again.
12. Notices
- All notices given by Melbourne IT under this Agreement may be given by email to the email address notified by you to Melbourne IT as part of your registration process. It is your obligation to keep that email address current and correct. You agree and acknowledge that Melbourne IT's record of having sent a notice to you by email is, of itself, conclusive proof of you having received that notice.
- Notices given by you must be delivered to Melbourne IT in writing and addressed to:
Attention: Legal Counsel
Re: Packaged Products Agreement
Melbourne IT Limited
Level 2, 120 King Street
Melbourne VIC 3000
Australia.
13. Survival
The following clauses survive termination of this Agreement: 6, 8, 9, 11, 12, 13, 14.
14. Governing law and jurisdiction
This Agreement is governed by the laws of Victoria, Australia. Each of the Product Terms and Conditions are governed by the laws as stated in those terms and conditions. Each party submits to the non-exclusive jurisdiction of courts exercising jurisdiction there in connection with matters concerning this Agreement.
Package List
Package - Personal Pack
Package - Communicator Pack
Package - Starter Pack
Package - Business Pack
Package - Business Plus Pack
Package - gTLD Add On
Package - .au Add On
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