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Blue Canary Pty Ltd (ACN: 109 053 081)

This is Blue Canary's Terms and Conditions of service available at URL: www.bluecanary.com.au/termsconditions.html. Please read this Agreement carefully before accessing any of the Blue Canary Services. Blue Canary has written this agreement in guidance according to the Australian Commonwealth Trade Practices Act. The Blue Canary Services include but are not necessarily limited to use of the Blue Canary Web Site, Hosting Services, Support Services and/or any Blue Canary software made available to you as a user of the Service. It is condition of your use of the Service that you comply with these terms and conditions.

The terms and conditions contained herein are binding to the exclusion of all other written or verbal agreements, statements, understandings, negotiations or proposals made between Blue Canary and the Client, and 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.

Terms & Amendment Procedure

1. This Agreement ("Terms And Conditions"), in addition to any other specific agreement between Blue Canary Pty. Ltd. ("Blue Canary") and the Client ("You"), represents the complete understanding and agreement between you and Blue Canary. This agreement made between us with these terms commences when your order for services was accepted by Blue Canary.
2. Blue Canary may vary this agreement, Services, pricing, equipment, products, or the terms of the operation of the Service, at any time by general notice on a page of the internet referred to on the home page of our web site at www.bluecanary.com.au. The changes will become effective upon publication of the notice. Where we vary the prices for Services, we will give at least 14 days notice of the change by the same means, and the new prices will apply at the end of that period.
3. If you continue to use the Service after that publication, the use will constitute an acceptance of the amended term. It is your sole responsibility to ensure that you are up to date on the most current version of the Blue Canary terms and conditions.
4. This agreement establishes your rights and obligations when using any of our Services, and supersedes prior agreements. If you do no agree to the terms of this agreement, do not purchase, use or access any of the Blue Canary Services.

Privacy

1. You agree that Blue Canary may report any outstanding debts past 60 days due, including full client details to relevant credit agencies.
2. Should you sign any agreement then it is deemed that you have provided Blue Canary with your full authority to seek and gain access to all of your personal and private information necessary to fulfil our obligations and rights as set out under such agreement.
3. Blue Canary’s Privacy Policy located at URL: www.bluecanary.com.au/privacypolicy.html forms part of this agreement.

General Service

1. Blue Canary will provide you with Web Hosting and Email Services as per the package the client selected in upon signup.
2. Data backup - for the purposes of data recovery, Blue Canary regularly archive the client's data ("Client Data") on backup mechanism. In the event of data corruption or loss of data, Blue Canary will restore the last backed up copy and we will post details of any serious disaster event to the Blue Canary system news page after the event. Blue Canary is not liable for any out-of-date, corrupt or otherwise deficient Client Data resulting from recovering from backups. The client must keep a most recent copy of the data on their premises.
3. You agree that any Services provided are not continuous or faultless or error free, and that interruptions, delays, faults, degradations and outages to Services may occur from time to time. Scheduled maintenance is put in place to prevent these events from occurring.
   1. Maintenance - Blue Canary must perform scheduled maintenance to its systems and network from time to time. Blue Canary will try to perform these operations at off peak times (times that will affect the least number of clients). If scheduled operations require the Service to be offline for more than 30 minutes we will post details of the scheduled maintenance to the Blue Canary system news page.
   2. Unscheduled Maintenance - Blue Canary may need to perform unscheduled maintenance in times of emergencies. If unscheduled operations required the Service to be offline for more than 30 minutes, we will post details of the event to the Blue Canary system news page after the maintenance has been completed.

Domain Name

1. In registering or renewing a domain on your behalf, Blue Canary is acting as a reseller of a registrar.
2. You agree that you have read and will be bound by the terms of the Domain Name Policy and Terms and Conditions.
3. You agree that you must pay for any registration or delegation charges in advance at Blue Canary's list price. You understand that you cannot register a domain name without paying for it in advance. Blue Canary is not obliged to provide you with information or assistance in respect of the domain name until we have received payment of our domain name charges.
4. Blue Canary makes no representation and gives no warranty about your chosen domain name being available for registration or use by you.
5. You agree that by maintaining the registration of a domain name after changes or modifications to the applicable policies become effective, you are confirming your continued acceptance of these changes and modifications.
6. You expressly authorise and direct Blue Canary to:
   1. be nominated as authorised billing contact for your domain name with the domain name registrar.
   2. renew your domain name registration upon receipt of renewal notification from the domain name registrar and invoice you for the relevant charge in accordance with Blue Canary's list price from time to time.
7. You acknowledge that Blue Canary is not liable for any loss or damage resulting from non-renewal of your domain name if you have failed to provide the appropriate warranty in respect of your continued eligibility to hold the domain name.
8. You indemnify Blue Canary against all claims arising out of your registration and use and renewal of registration of your chosen domain name, unless and to the extent that the claim arises out of Blue Canary's breach of this contract, or its negligent act or omission.

Client Responsibility

1. The client must be over 18 years of age. If the client is under 18 years of age then a custodian must complete and be bound to this agreement as the responsible party for this contract in place of the client.
2. The client warrants that at the time of entering into this agreement the client is not relying on any representation made by Blue Canary which has not been stated expressly in this agreement, or on any descriptions or specifications contained in any other document, including any catalogues or publicity materials which were produced by Blue Canary.
3. The client warrants that all details (including billing and contact information) provided to Blue Canary is complete, current and accurate. The client also warrants to maintain and update this information as needed to keep it current, complete and accurate.
4. The client warrants the following:
   1. will conduct such tests and computer virus scanning as may be necessary to ensure that data uploaded onto or downloaded by the client from the Server does not contain any computer virus and will not in any way, corrupt the data or systems and network of any person.
   2. keep any passwords used to upload data to the Server securely.
   3. hold and will continue to hold the copyright in the Client Data, or are licensed and will continue to be licensed to use the Client Data.
   4. keep up to date with the latest Blue Canary news, updates and events. Systems and network maintenance as well as disaster events that occur will be posted on the Blue Canary system news page.
5. The client accepts responsibility for all information and material that the client issues over any Service, and indemnify Blue Canary and hold Blue Canary harmless against any liability in relation thereto. In particular the client would not publish or issue any information which is illegal or defamatory. The client also acknowledges that Blue Canary may not vet or approve any information or material available through the Service. Blue Canary do not accept any liability for any loss, claim or damages arising from or relating to information and material available through the Service, to the full extent permitted by law. Clients access and use such information and material at their own risk.
6. The client agree to abide by the Acceptable Use Policy which follows these Terms and Conditions which is located at URL: www.bluecanary.com.au/aup.html and the Client agree that the terms of the Acceptable Use Policy form part of this agreement between the Client and Blue Canary.
7. Any clients who resell our Internet services to others will fully comply with all applicable laws concerning the privacy of on-line communications. A client's failure to comply with those laws will violate this policy.
8. In accepting the services, you indemnify Blue Canary for the violation of any law or Blue Canary policy that results in loss to Blue Canary or the bringing of any claim against Blue Canary. If Blue Canary is sued because of activities of a client that violate any law, or this policy, the client will pay any damages awarded against Blue Canary, plus costs and reasonable solicitor' fees.

Warranties & Liabilities

1. Blue Canary does not warrant the following:
   1. The Services provided under this agreement will be uninterrupted, faultless or free of error.
   2. the Services will be free from external intruders (hackers), virus or worm attack, denial of service attack, or other persons having unauthorised access to the Services, systems or network belonging to Blue Canary.
   3. The Service will meet the client's requirements, other than as expressly set out in these terms and conditions.
2. You agree that Blue Canary’s entire liability, and the client's exclusive remedy, with respect to any Services provided under this Agreement and any breach of this Agreement is solely limited to the amount you paid for such Services. We and our contractors shall not be liable for any direct, indirect, incidental, special or consequential damages resulting from the use or inability to use any of the Services or for the cost of procurement of substitute services. We disclaim any and all loss or liability resulting from, but not limited to:
   1. any special, punitive, incidental, indirect or consequential damages of any kind.
   2. loss or liability resulting from access delays or access interruptions or the inability to use the Services.
   3. loss or liability resulting from data non-delivery or data misdelivery.
   4. loss or liability resulting from the unauthorised use or misuse of client details.
   5. loss or liability resulting from errors, omissions, or misstatements in any and all information or Services(s) provided under this Agreement.
   6. loss or liability resulting from the development or interruption of the client's Web or Email Service.
   7. loss or liability resulting from the client's negligence, fraudulent or otherwise unlawful behaviour.
   8. loss or liability resulting from failure to store or loss of data, files or other content.
   9. loss or liability resulting from the statements or actions if any employee or agent of Blue Canary.
3. The client agree that Blue Canary will not be liable for interruption of business, or any indirect, special, incidental, or consequential damages of any kind (including lost profits) regardless of the form of action whether in contract, tort (including negligence), or otherwise, even if Blue Canary have been advised of the possibility of such damages.
4. Blue Canary is not liable to the Client or any other person for the following:
   1. cost, loss or liability (including loss of profit or other consequential damage) arising from our supply or failure or delay in supplying the Service.
   2. the content, context or confidentiality of any communications made using the Service.
   3. loss or damage caused by third party software applications forming part of the Service.
5. The client indemnify Blue Canary (its subsidiaries, officers, directors, employees, partners or suppliers) against all costs, expenses, loss or liability that Blue Canary may suffer (directly or indirectly) resulting from:
   1. Client's breach of these terms.
   2. Client's use or misuse of the Service.
   3. Client's use or misuse of the Service by any person using the Client's account.
   4. publication of defamatory, offensive or otherwise unlawful material on any web site forming part of the Client's service.

Suspension & Termination of Service

1. Blue Canary may without notice to the client, suspend the service, deactivate or deny your access to the service due to the following:
   1. Failure to comply with the Blue Canary Terms & Conditions, which includes the Acceptable Use Policy, and failure to pay charges due. Suspension will be lifted only when the breach is rectified; or
   2. During any technical failure modification or maintenance involved in the service provided. Blue Canary will make reasonable endeavours to bring the service back up as soon as reasonably practicable.
   The client remains liable for all charges due throughout the period of suspension.
2. Blue Canary may without notice to the client, remove, amend, or alter your data upon being made aware of the following:
   1. Any claim or allegation; or
   2. Any court order, judgment, determination or other finding of a court or other competent body, that the data is illegal, defamatory, offensive or in breach of a third party's rights.
3. Blue Canary may end this agreement with the client and cease providing services for any reason, on 30 days written notice to the client.
4. Termination of any service must be done via a fax signed by the account holder. Blue Canary can not accept termination requests in any other way. Transfer of domain to another provider does not constitute terminating client account with Blue Canary.
5. You must notify Blue Canary as detailed above to formally cancel the account with Blue Canary to avoid further charges. Domain Name Registration CANNOT be terminated. As the purchaser of the Domain Name the client is still the Domain Name owner until the term of the Domain Names registration has expired.
6. If a client account is closed, all outstanding charges must be paid immediately. Blue Canary may delete all Client Data from any storage media.
7. Blue Canary is under no obligation to provide a copy of the Client Data to the client if the client account is suspended or terminated. If Blue Canary provides the client with a copy of Client Data, Blue Canary is entitled to charge a service fee.

Billing, Payment and Term

1. As consideration for the services you have selected, you agree to pay Blue Canary the applicable service fees as advertised on the Blue Canary web site in advanced of the time period during such services are provided. All fees payable hereunder are non-refundable.
2. SSL Certificates are NOT refundable. Once you purchase your SSL Certificate you are the owner and it can not be "returned" until the duration of the certificate term has expired.
3. Blue Canary charges the following fees where applicable. All such fees are subject to change with 30 days notice.
   1. Account set up fee
   2. Service fee
   3. Administration fee
   4. Domain registration fee
4. Blue Canary reserves the right to offer subsequent promotional rates which may or may not be more favourable than the terms under which you entered this agreement. Any such periodic rates shall not effect the then existing rights and responsibilities of each party. Blue Canary also reserves the right to change the rate charged for any such fee under this agreement with 30 days notice.
5. Prices published on our web site are inclusive of any government taxes or charges unless otherwise noted, and exclusive of any registration or delegation charges imposed by domain name authorities.
6. All invoices will be sent via email. Clients are required to pay their invoice in advance at the beginning of each payment term using the available method of choice. The request for payment for the renewal of Domain Registration & Hosting may be issued 4 weeks prior, and fall due 1 week prior to the annual renewal of the Domain Registration & Hosting. If you have elected to pay by credit card, and have elected to have your card automatically debited, Blue Canary will debit your credit card on the date your account falls due unless advised otherwise. Blue Canary reserves the right to revoke public access to the clients website or suspend any account 14 days after the client account falls past-due without due payment being received. After 28 days of non-payment, the account may be cancelled and the service terminated at Blue Canary's sole discretion.
7. Blue Canary’s methods of payment are outlined at URL: www.bluecanary.com.au/payment_options.html. Blue Canary accepts payment by Credit Card (Visa, MasterCard), Direct Funds Transfer, Direct Debit and by cheques, or money order.
   1. Payment by Credit Card or Direct Debit. Prior to activation of your user account and at any applicable time thereafter Client agree to allow Blue Canary to charge the provided credit card and at stated regular intervals the agreed service fee amount for the stated period together with any fees outlined herein as may be applicable. The client further authorise Blue Canary to charge the credit card for all subsequent period fees at, or a reasonable period in advance of, the commencement of any such subsequent period.
   2. Payment by Cheque or Money Order. Prior to activation of your user account you agree to submit a cheque payable in Australian Dollars (AUD) against a bank located within Australia. Blue Canary is under no obligation to initiate service until the proceeds of such cheque have been cleared by such financial institution and received by Blue Canary.
8. Bank charges. All Bank disputes resulting from bounced cheques, credit card charge backs, or refused/reversed payments result in suspension of your account, and immediate payment will be required in full for your account to be reactivated. Credit card charge backs result in the forfeiture of all Blue Canary services and the purchasers Domain Name.
9. Currencies. All invoices and payments are processed in Australian dollars, with conversions made by Client's credit card company. All clients are advised to check amounts using recent exchange rates before ordering.

Miscellaneous

1. The Client grants to Blue Canary a license to use and reproduce all Client Data in order to fulfil its obligations under this agreement. In this agreement "Client Data" means all information, data, text, logos, images, audio, movie clips and/or content in any form that forms part of the Client's web sites or emails.
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.
3. The law in force in New South Wales governs this agreement and the transactions contemplated by this agreement.
4. Unless you are an authorised Blue Canary reseller, you may not resell any Blue Canary Services or assign your rights and obligations under this agreement without our prior written consent.