Terms & Conditions

Last Updated: 17.06.08

To become a user of any of the Magik Hosting services you must agree and accept the following terms and conditions. Your acceptance of the following terms and conditions will be confirmed on the commencement of any Magik Hosting service.

The following terms apply to all of the Magik Hosting services, these include domain name registration, Web Site(s) hosting, email hosting and any related services.

Website hosting and email hosting terms and conditions

We exclude any warranty as to the accuracy or quality of information received by any person via our services and in no event will we be liable for any loss or damage to any data stored via our services. Customers are completely responsible for maintaining insurance in respect of any loss or damage to data stored on our services. You warrant to us that you will only use any Web Site(s) for ethical and lawful purposes. In particular, you further warrant and undertake to us that:

1. you will not, nor will you authorise or permit any other person to, use our services in violation of any law or regulation;
2. you will not knowingly or recklessly post, link to or transmit any material:
   1. that is unlawful, threatening, abusive, harmful, malicious, defamatory, violent or teaching violence, obscene, profane or otherwise objectionable in any way; or
   2. containing a virus or trojan;
   3. that shall constitute or encourage a criminal act or that violates or infringes any trade mark, copyright, other intellectual property rights or similar rights of any person under the laws of any jurisdiction; and
3. you will conform to the standards made available by us and will not yourself, and will ensure that none of your end users, make excessive or wasteful use of our services to our detriment or that of our other customers.

You are responsible for sending mail in accordance with any relevant legislation. We will take all reasonable steps to ensure accurate and prompt routing of messages but we will not accept any liability for non-receipt or misrouting or any other failure of email. In the event of deliberate transmission of unsolicited commercial email (UCE), Magik Hosting reserves it right to terminate services without prior notification.

You warrant, accept and agree that:

1. any transactions within your Web Site(s) which are contracts for the sale of goods or services will be between you (as the merchant) and your end-user (customer) and you agree that we may choose our position of liability in respect of such purchases and transactions in any form;
2. the information contained within your Web Site(s) will comply with all applicable laws, and codes of practice that govern the use of Web Site(s) and any related services, including, without limitation, those laws and/or codes of practice governing distance selling and data protection;
3. you will keep secure any identification, passwords and other confidential information relating to your account(s) and you will inform us immediately of any known or suspected unauthorised use of your account(s), or any known or suspected breach of security, including loss, theft or unauthorised disclosure of your password information. We exclude ourselves from the liability of any breach of security of any kind for any and all uses of your account (and Web Site(s)).
   Whilst we shall use reasonable endeavors to ensure the integrity and security of our services, we do not guarantee that our services will be free from unauthorised users or hackers.

We do not warrant in any form that our virus protection services will stop every virus from reaching your computer network or your recipients. We make no warranty that the service will be error free or free from interruption of failure, and the company expressly disclaims any express or implied warranty regarding system and/or service availability, accessibility, or performance.

You agree to accept additional charges for the transit of IP traffic above and beyond the amount specified in the services you have subscribed. All excess data will be charged at the rate of 0.5c/MB to the nearest whole MB. These charges will fall due at the completion of the calendar month on normal trading terms of 28 days from invoice. Magik Hosting will provide an online interface allowing authorised users to monitor website data traffic.

Domain name registration terms and conditions

We do not guarantee that any domain name applied for will be registered in your name or is capable of being registered by you. You should take no action in respect of your requested domain name(s) until you have received notified that your requested domain name has been registered by us on your behalf.

Both the registration of the domain name and its ongoing use are subject to the relevant naming authority's terms and conditions of use and you are responsible for ensuring that you are aware of those terms and conditions and can comply with them. You must waive any claims you may have against us in respect of the decision of a naming authority to refuse to register a domain name. Any registration charge paid by you to us shall be credited towards any future purchase in the event that any domain name registration is denied.

We accept no responsibility or position in respect of the use of a domain name by you and any dispute between you and any other individual or organisation regarding a domain name. The dispute must be resolved between the parties concerned and we will take no part in any dispute. We reserve the right, on our becoming aware of such a dispute, at our sole discretion and without giving any reason, to either suspend or cancel the domain name, and/or to make appropriate representations to the relevant naming authority.

General terms and conditions

The following terms and conditions apply to all web hosting and email hosting contracts and provision of all Services which are set out below:

Service availability

We shall use reasonable endeavors to provide continuing availability of our services and our services but we shall not, in any event, be liable for any service interruptions or down time of our services.

Intellectual property rights and other consents

You are solely responsible for obtaining any and all necessary intellectual property rights clearances and/or other consents and authorisations, including without limitation, clearances and/or consents in respect of your proposed domain name and merchant services agreements between you and the relevant financial institutions.

Indemnity

You agree to indemnify and keep indemnified and hold us harmless from and against any claim brought against us by a third party resulting from the provision of our services by us to you and your use of our services, and in respect of all losses, costs, actions, proceedings, claims, damages, expenses (including reasonable legal costs and expenses), or liabilities, whatsoever suffered and howsoever incurred by us in consequence of your breach or non-observance of these terms.

Termination

1. We may terminate this agreement if you fail to pay any accounts due to us as they fall due with in 21 days of issue of invoice.
2. We may terminate this agreement immediately if you breach any of these terms and conditions, or if you are a company you go into insolvent liquidation, or if you are a person you are declared bankrupt.
3. On termination of this agreement we shall be entitled immediately to block your Web Site(s) and to remove all data located on it. We will hold such data for a period of 28 days and allow you to collect it, failing which we shall be entitled to delete all data. We shall further be entitled to post such notice in respect of the non-availability of your Web Site(s) as we think fit.
4. If you wish to terminate your account with Magik Hosting, you must do so by using the cancellation request feature available in your My Magik Customer Area otherwise your account will be automatically renewed for the same subscription period and you will be liable for, and immediately invoiced upon the commencement of, such additional subscription period. Magik Hosting will not accept verbal instructions to terminate any service. Submission of the cancellation request feature available in your My Magik Customer Area will generate an automated email to the email address stored with the customer subscription, and within this email will be a digital trail that is the only proof of cancellation that will be accepted by Magik Hosting.
5. On receipt of your cancellation request, Magik Hosting will cancel your service at the first available opportunity. If the cancellation request is submitted prior to the commencement of the oncoming billing period, the cancellation request will be honoured.
6. There are no refunds or credits, once an invoice is generated, unless an invoice for a service is generated after a cancellation requested has been submitted.

Payment

All charges payable by you to us for the Services shall be in accordance with the relevant scale of charges and rates published from time to time by us on our web site and shall be due and payable within twenty eight (28) days of issue of our invoice.
The provision by us of our services is contingent upon our having received payment in full from you in respect of the relevant services. Without prejudice to our other rights and remedies under this agreement, if any sum payable is not paid on or before the due date, we reserve the right, forthwith and at our sole discretion, to suspend the provision of our services to you.

If you fail to make payment within the terms of this agreement, you will become liable for the cost of collection. This will include interest on any overdue amount, calculated at the daily rate of 5% per annum, from the due date of the payment.

Upon provision of a credit card account, you give us authorisation to automatically debit your credit card or PayPal account for all charges on issuance of a valid invoice.

Late payment fee

If you exceed our twenty eight (28) days credit terms, you will be charged an 5% late payment fee. A revised invoice will be sent to your nominated e-mail address.

Refunds

All payments to Magik Hosting are nonrefundable. This includes any setup fees, monthly fees and domain names regardless of usage.

Without waiving any of its other rights under this Agreement, Magik Hosting offers to its Customers a 30 day money back guarantee on fees for hosting services only (the “30 Day Guarantee”). If for any reason you cancel your account by requesting account cancellation in your client area and submitting it to Magik Hosting, within thirty (30) days of the beginning of your service, Magik Hosting will refund your money with no questions asked; provided, however, that you have never previously obtained a refund under the 30 Day Guarantee. If you have ever previously obtained a refund under the 30 Day Guarantee, your account will be canceled, but no money will be refunded to you.

Please note that the amount refunded to you will be the amount you paid for hosting services only, and will not include any of the following fees:

• Setup fees,
• Fees for domain name registrations,
• SSL certificate fees,
• Web design fees,
• Web site marketing fees,
• Any add-on services, features, software, and
• Any other fees for services involving a third party.

The 30 Day Guarantee is subject to all of the following limitations:

• You are entitled to a maximum of one (1) 30 Day Guarantee.
• If you do not cancel your account within thirty (30) days of the beginning of your service, your right to the 30 Day Guarantee shall expire forever and may not be revived under any circumstances, without the prior express written approval of Magik Hosting.
• You may not transfer or assign the 30 Day Guarantee to any third party.
• You agree that you will not circumvent the restrictions on the 30 Day Guarantee described in this document, or attempt to circumvent those restrictions by any means, including, but not limited to, the following actions:
  • Creating multiple accounts, using the same customer name or different customer names;
  • Canceling your account for the sole purpose of obtaining a refund and then registering for a new account;
  • Organising multiple business entities or using assumed business names for the purpose of circumventing these restrictions;
  • Knowingly providing false or misleading information when you register for your account; or
  • Requesting a refund under the 30 Day Guarantee at any time after you have already received a refund under that guarantee.
• If you violate any provision of any of the following policies of Magik Hosting, you will not be eligible for the 30 Day Guarantee:
  • Terms & Conditions (TOS);
  • Acceptable Use Policy (AUP); or
    

Changes to your service, including, but not limited to, adding new services, removing services, or changing the type of hosting plan you have do NOT make you eligible for an additional 30 Day Guarantee. The 30 Day Guarantee applies to your first order of Web hosting services from Magik Hosting and does not apply to any changes to your service at any time.

Exclusion and limitation of liability

TO THE FULL EXTENT PERMITTED BY LAW WE HEREBY EXCLUDE ALL CONDITIONS AND WARRANTIES NOT EXPRESSLY SET OUT HEREIN. EXCEPT AS SPECIFICALLY SET FORTH IN ELSEWHERE IN THIS AGREEMENT, WE MAKE OR GIVE NO 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. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US, REPRESENTATIVES OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE EXPRESS WARRANTIES HEREBY GIVEN, AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.

Our total aggregate liability to you for any claim in contract, tort, negligence or otherwise arising out of or in connection with the provision of the Services shall be limited to the charges paid by you in respect of the Services which are the subject of any such claim and provided that you notify us of any such claim within one year of it arising.

In no event shall we be liable to you for any loss of business, contracts, profits or anticipated savings or for any other indirect or consequential or economic loss whatsoever.

Important note:

In the event that this agreement constitutes a supply of goods or services to a consumer as defined in the Trade Practices Act 1974 (Cth) or any other national, State or Territory legislation (the Acts) nothing contained in this agreement excludes, restricts or modifies any condition, warranty or other obligation in relation to this agreement and the goods and you where to do so is unlawful. To the full extent permitted by law, where the benefit of any such condition, warranty or other obligation is conferred upon you pursuant to any of the Acts, our sole liability for breach of any such condition, warranty or other obligation, including any consequential loss which you may sustain or incur, shall be limited (except as otherwise specifically set forth herein) to:

1. in relation to goods
   1. the replacement of the goods or the supply of equivalent goods or payment of the cost of replacing the goods or acquiring equivalent goods; or
   2. the repair of the goods or payment of the cost of having the goods repaired; b. in relation to services i. the supplying of the services again; o
   3. The payment of the cost of having the services supplied again as in each case we may elect.

Notices

Except where expressly provided otherwise, any notice to be given by either party to the other may be sent by either email, fax, post or courier to the address of the other party as appearing in this agreement or ancillary application forms or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent or if sent by fax shall be deemed to be served on receipt of an error free transmission report, or if sent by post or courier shall be deemed to be served two days following the date of posting.

Severability

If any clause of these terms and conditions is held to be invalid or unenforceable in whole or in part, the invalid or unenforceable wording shall be deemed to be omitted.

Assignment

The benefit of this agreement may be assigned by us, but not our obligations to you - to do that, you agree that we may give notice to you in writing, and your failure to respond will be deemed acceptance. You may transfer this agreement provided that you give us notice in the form we require (setting out the details of the assignee) accompanied by payment of any transfer fee specified by us. No other method of transfer by you is permitted.

Change to terms on renewal

We may change the terms and conditions of this Agreement at any time. Details of our current terms are available at www.mhost.com.au/content/terms.html

Entire agreement

These terms and conditions constitute the entire agreement between Magik Hosting and you, and supersede all prior agreements, understandings and representations whether oral or written. No oral explanation or oral information given by any party shall alter the interpretation of these terms and conditions. Except as provided above, no variation may be made to the contract unless it is in writing and signed by authorised representatives of you and Magik Hosting.

Entire agreement, governing law

This agreement shall be governed by the laws in force in the state of New South Wales. Both parties hereby submit to the exclusive jurisdiction of the Courts of that State.

Notifications & communications

In addition to general Account, Billing and Service communications, Magik Hosting will, from time to time, issue email notifications relating to our services, including, but not limited to Announcements, Promotional and Seasonal offers, and Surveys. By entering into agreement with these terms and conditions you agree to receive email communications by consent until such time as you decide to opt-out of such communications. You may opt out of our mailing list at any time by sending an email to unsubscribe@mhost.com.au or by following 'unsubscribe' instructions contained within any communications.

You will not be able to unsubscribe from Critical Service Notifications, Renewal, Billing and Account Notifications, Scheduled Downtime Notifications or any other communications deemed to be an essential part of our service to you.

Please review our Privacy Statement for full details of our use of personal data.