(Effective 20 June 2003) Updated 21 June 2018.
Alicia Laing trading as Creative Mode (ABN 76 768 215 113)
If you decide to become a client of Creative Mode, you will be required to agree to other terms and conditions for supply of Creative Mode web design and development, web hosting and other services.
The laws of Queensland govern the operation of this web site and you agree to submit to the non-exclusive jurisdiction of the courts of Queensland.
The information on this web site is provided in good faith and Creative Mode believes it to be accurate. However, if you wish to obtain services from Creative Mode, you should not rely solely on the information in this web site but should make specific enquiry concerning the nature of the services and their suitability for the use to which they will be put. Unless stated otherwise, all information on this web site is supplied without any warranty, condition or other term as to the quality of any services or their suitability for any particular purpose.
Creative Mode is not liable to you or anyone else for any loss of income, profit, business contracts or goodwill or any indirect or financial loss suffered whether arising in contract, negligence or otherwise arising in connection with use of this web site.
To the extent permitted by law, Creative Mode's liability for breach of any implied warranty or condition which cannot be excluded is limited to the supply of the services again or the payment of the cost of having services supplied again.
This web site and all images used throughout the web site, is the copyright property of Creative Mode. You may download, display, print and reproduce this material in unaltered form only (retaining this notice) for your personal, non-commercial use. Apart from any use as permitted under the Copyright Act 1968, you may not, in any form or by any means:
(a) adapt, reproduce, store, distribute, transmit, print,
display, perform, publish or create derivative works from
any part of this web site; or
(b) commercialise any information, products or services or images in whole or in part obtained from any part of this web site,without the written permission of Creative Mode.
If you use any of Creative Mode's logos marks or tag lines to refer to our activities, products or services, you must include a statement attributing them to us. You must not use any of our logos or tag lines:
(a) in connection with activities, products or services which
are not ours;
(b) in a manner which may be confusing, misleading or deceptive; or
(c) in a manner that disparages us or our information, products or services.
This web site may contain links to other web sites. Those links are provided for convenience only and may not remain current or be maintained.
Links to those web sites should not be construed as any endorsement, approval, recommendation or preference by us of the owners or operators of those web sites, or for any information, products or services referred to on those other web sites.
Unless stated otherwise, we have:
(a) no relationship with the owners or operators of those
linked web sites; and
(b) no control over or rights in those linked web sites.
You link to any such web site entirely at your own risk.
Any party seeking to link to this site either directly or from within a frameset must first seek consent from Creative Mode.
By placing or sending any information or other material to Creative Mode (including posting messages, uploading files, inputting data or engaging in any other form of communication) you grant to Creative Mode a perpetual, royalty-free, non-exclusive, irrevocable, unrestricted worldwide licence to do the following in respect of the information or material:
(a) use, copy, sublicence, redistribute, adapt, transmit,
publish and/or broadcast, publicly perform or display; and
(b) sublicence to any third parties the unrestricted right to exercise any of the foregoing rights granted.
The foregoing grant includes the right to exploit all proprietary rights in any such information or other material including but not limited to rights under copyright, trade mark or patent laws under any jurisdiction worldwide. You expressly waive in favour of Creative Mode and any other party authorised by Creative Mode all moral rights and any similar rights in any jurisdiction which you may have or hereafter acquire in respect of any relevant communication or other material.
(c) Creative Mode 2003, 2004
This is Creative Mode's Acceptable Use Policy. It applies to you if you are a Creative Mode Customer or User ("you"). It is intended to ensure that your use of Creative Mode's service is trouble free and that you have due regard to the law and the needs of other users.
Please read it carefully. It is a condition of your use of our service that you comply with the terms of this Policy.
Please look out for any amendments to the Policy that Creative Mode ("we") might make in the future. From time to time we will make amendments to it by giving you notice of the change and you will then be obliged to comply with the policy as amended.
In this policy we use the following definitions:
Customer means the person or company which has entered into an agreement with Creative Mode for supply of Services whether via Creative Mode's web site or otherwise.
Daily Email Limit means the greater of:
(a) 1,000 messages per day sent via your own mailing list
or email client; or
(b) One message per mailing list per day, where you have purchased additional mailing lists.
Potentially Prohibited Content means that content so defined by the Broadcasting Services Act, 1992 (as amended).
Service means all products and services offered by Creative Mode and its suppliers from time to time, which you use.
(a) mass-delivered and/or randomly delivered advertising
or other material;
(b) sent to groups of recipients who are not known to you, who have not requested the material, or who have not granted permission for the mail to be sent to them;
(c) delivered via email or discussion groups; and
(d) which does not contain an unsubscribe option.
Users means users of the Service who have not obtained it as a Customer, but via a Customer who is authorised to resell the Services such as a Creative Mode Partner.
Creative Mode means Alicia Laing trading as Creative Mode ABN 76 565 233 and may also include suppliers to Creative Mode for the provision of services to Users.
1. Some General Principles
1.1 Creative Mode is not responsible for the content of traffic. We exercise no supervision or control whatsoever over the content of the information passing through our network.
(a) We do not assume any responsibility for information not sent or expressly authorised by us.
(b) The responsibility for traffic that does not conform with this policy and all possible consequences lies with the sender of the traffic.
(c) We accept no responsibility for the consequences of unauthorised breach of our system security such as hacking or denial of service attacks.
1.2 You should familiarise yourself with your legal responsibilities. You can view your legal responsibilities in relation to:
(a) supervising and controlling children's access to internet content;
(b) procedures which parents can implement to control children's access to internet content, including availability, use and appropriate application of internet content filtering software; and
(c) obligations which may exist in relation to your content under the Broadcasting Services Act 1992 (as amended) or other applicable state legislation, at either of the following web sites: http://www.iia.net.au; or http://www.aba.gov.au.
1.3 You are responsible for use of your account. If you permit others to use our Service, you are responsible for making users of the Service aware of this policy and obtaining compliance of your users with this policy.
1.4 You are responsible for complying with conditions of use of other networks. If we provide you with access to a network outside our Service you must comply with any acceptable use conditions which apply to that network.
2. Acceptable Uses
2.1 It is your responsibility to ensure that you and others whom you permit or enable to use Creative Mode's Service do so as follows:
(a) use our Service in a manner which does not violate any applicable laws or regulations;
(b) respect the conventions of the newsgroups, lists and networks that you use;
(c) respect the legal protection afforded by copyright, trade marks, license rights and other laws to materials accessible via our Service;
(e) use the Service in a manner which does not interfere with or disrupt other network users, services or equipment;
(f) refrain from acts that waste resources or prevent other users from receiving the full benefit of our services; and
(g) comply with Creative Mode's terms and conditions of supply.
2.2 Your use of our Services should be ethical and in accordance with accepted community standards.
3. Unacceptable Uses
3.1 You must comply with the law. It is not acceptable to use our service for any purpose which violates local, state, federal or international laws. You should obtain independent legal advice about your potential liability for the consequences of the publication of material on a web site or content database.
3.2 Specific kinds of use are not allowed. It is not acceptable to use our Service to do any of the following ("Unacceptable Conduct"):
(a) send Spam;
(b) provide a capability on a Creative Mode-hosted site which permits third parties to send Spam from a Creative Mode server;
(c) intentionally omit, forge, delete or misrepresent transmission information including headers, return mailing addresses, internet protocol addresses;
(d) engage in any activity intended to withhold or mask Customer's, or if you are an authorised reseller, its User's corporate identity or contact information;
(e) send electronic chain letters;
(f) distribute messages to inappropriate or unrelated forums, newsgroups or mailing lists;
(g) send email to a recipient after the recipient has unsubscribed from your mailing list or has advised you by other means that they do not wish to be on the mailing list;
(h) send more emails than the Daily Email Limit (unless you are using Promotions Manager, in which case this subclause does not apply);
(i) undertake activities which cause or may cause third party service providers to place Creative Mode's internet protocol (IP) addresses on a blacklist and/or block those IP addresses;
(j) undertake any activity which impedes Creative Mode's ability to provide its Service;
(k) make transmissions of any type or quantity which adversely affect our operation or jeopardise the use of our service, or its performance for other subscribers;
(l) violate copyright or other intellectual property rights;
(m) illegally store, use or distribute software in order to transmit threatening, libellous, obscene or offensive materials;
(n) engage in electronic 'stalking' or any other form of harassment such as using abusive or aggressive language;
(o) misrepresent or defame others;
(p) harass or impersonate Creative Mode or other users;
(q) commit fraud, gain unauthorised access to any computing, information, or communications devices or resources, including but not limited to any machines accessible via the internet;
(r) damage, modify or destroy the files, data, passwords, devices or resources of Creative Mode, other users or third parties;
(s) engage in misleading or deceptive online marketing practices;
(t) conduct any business or activity or solicit the performance of any activity that is prohibited by law;
(u) make an unauthorised transmission of confidential information or material protected by trade secrets;
(v) place on the internet, obtain through the internet or transmit using the internet, Prohibited Content or Potentially Prohibited Content;
(w) place on the internet, obtain through the internet or transmit using the internet any of the following:
(i) Content which is (or would be) classified RC or X by the Classification Board. Such content includes:
- material containing detailed instruction in crime, violence or drug use;
- child pornography;
- excessively violent or sexually violent material
- real depictions of actual sexual activity; or
(ii) Content hosted in Australia which is classified R and not subject to a restricted access system which complies with criteria determined by the ABA. Content classified R is not considered suitable for minors and includes:
- material containing excessive and/or strong violence or sexual violence;
- material containing implied or simulated sexual activity;
- material which deals with issues or contains depictions which require an adult perspective;
(x) Use the internet with intent to:
(i) procure a child under 16, or a person whom you believe to be a child under 16 to engage in a sexual act; or
(ii) expose without legitimate reason, a child under 16 or a person whom you believe to be a child under 16, to any indecent matter.
(y) propagate computer worms, viruses and other types of malicious programs;
(z) use the service to interfere or disrupt other network users, services or equipment;
(aa) attempt to do any of the things set out in (a) to (z) above.
3.3 It is not acceptable to use our Service to solicit subscribers to become subscribers of other competitive services.
3.4 Resale of our Services to others is strictly forbidden under all circumstances unless expressly approved by Creative Mode in writing.
4. Third Party Complaint Process
4.1 From time to time, Creative Mode receives complaints from third parties ("Complaints") regarding Unacceptable Conduct, allegedly being conducted by Customers or their Users. Creative Mode will make reasonable endeavours to resolve such complaints by working with Customers. The complaint process set out here does not apply to complaints the subject of court order or proceedings, or where Creative Mode reasonably believes that it must take urgent action without reference to the Customer.
4.2 Creative Mode's policy is to put the complaining party in direct contact with the party best able to answer the complaint. Accordingly, Creative Mode's Customers authorise and direct Creative Mode to provide to third party complainants the relevant Customer's email contact details.
4.3 You have a right to complain to the ABA about content. If you become aware that a web site hosted by Creative Mode contains Prohibited Content or Potentially Prohibited Content, you can make a formal complaint to the Australian Broadcasting Authority by contacting them at: ABA, Head Office, Level 15 Darling Park, 201 Sussex Street, Sydney NSW 2000, or through their web site at URL http://www.aba.gov.au.
5. What We May Do to Ensure That This Policy is Being Followed
5.1 We may monitor your account but will respect your privacy. We may monitor the conduct of your account to determine whether this policy is being followed.
5.3 We may suspend or terminate your account and/or notify the authorities. If we believe that your use of the Service may break the law or that you have not complied with this policy we may:
(a) warn you by email (but we are not obliged to do so);
(b) suspend your access to the Service;
(c) terminate your account without notice; and/or
(d) notify and provide relevant information to the authorities, as appears appropriate in the circumstances.
5.4 In the event of taking action under 5.3 we reserve the right to delete any or all of your information, material, software or other content stored on our system in our sole discretion.
5.5 We may, in our absolute discretion and without notice to you, suspend or terminate your access to the Service:
(a) where we are made aware that a court order, judgment, decree, determination or otherwise has been made to the effect that the Customer data is illegal, offensive, objectionable or in breach of a third party's rights; and
(b) if we are directed to do so by the ABA under a takedown notice in accordance with its obligations under the Broadcasting Services Amendment (Online Services) Act 1999 (as amended).
5.6 You agree that you will have no claim against Creative Mode in respect of any action reasonably taken by Creative Mode in its implementation of the terms of this Acceptable Use Policy, and you indemnify Creative Mode against any claim by a User arising out of the same.
(c) Creative Mode 2003
The following terms of business apply to any or all of the domain name registration, Web site hosting, email, spam and virus protection, Search Engine Optimisation and Secure Web Page services to be provided by Creative Mode to you from time to time. Server means the computer server equipment operated by us in connection with the provision of the Services. Web Site means the area on the Server allocated by Creative Mode to you for use by you as a site on the Internet. Secure Web Page means the Web page operated and located on the Server which allows you to collect credit card details in a means that is difficult for other people to view the page when it is loaded, because the page is encrypted, Search Engine Optimisation means any service which is designed to assist your Web Site gain a higher listing in the Search Engine results.
We do not warrant or guarantee that the domain name applied for will be registered in your name or is capable of being registered by you. Accordingly, you should take no action in respect of your requested domain name(s) until you have been notified that your requested domain name has been registered.
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 and do comply with them. You irrevocably waive any claims you may have against us in respect of the decision of a naming authority to refuse to register a domain name and, without limitation agree that the administration charge paid by you to us shall be non-refundable in any event.
We accept no responsibility 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 must be resolved between the parties concerned and we will take no part in any such 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.
We specifically exclude any warranty as to the accuracy or quality of information received by any person via the Server and in no event will we be liable for any loss or damage to any data stored on the Server. You are responsible for maintaining insurance cover in respect of any loss or damage to data stored on the Server. You warrant to us that you will only use your assigned Web Site for lawful purposes. In particular, you further warrant and undertake to us that:
a. you will not, nor will you authorise or permit any other person to, use the Server in violation of any law or regulation;
b. you will not knowingly or recklessly post, link to or transmit any material:
i. that is unlawful, threatening, abusive, harmful, malicious, defamatory, violent or teaching violence, obscene, pornographic, profane or otherwise objectionable in any way; or
ii. containing a virus or other hostile computer program; iii. that shall constitute or encourage a criminal offence, give rise to civil liability 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
c. you will conform to the standards made available by us from time to time and will not yourself, and will ensure that none of your end users, make excessive or wasteful use of the Server to our detriment or that of our other customers.
You are responsible for sending mail in accordance with any relevant legislation, including but not limited to the Commonwealth Spam Act (2003) and for sending the same in a secure manner. 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), Creative Mode reserves it right to terminate services without prior notification.
You warrant, undertake and agree that:
a. any transactions within your Web site 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 include an exclusion of our liability in respect of such purchases and transactions in such form as we deem appropriate;
b. the information contained within your Web site will comply with all applicable law, and codes of practice governing the use of Web sites and related services, including, without limitation, those laws and/or codes of practice governing distance selling and data protection from time to time in force;
c. you will keep secure any identification, password and other confidential information relating to your account and you will notify us immediately of any known or suspected unauthorised use of your account, or any known or suspected breach of security, including loss, theft or unauthorised disclosure of your password information. Notwithstanding such notification you will be liable for any and all uses of your account (and Web site) notwithstanding any fraudulent or improper use of your password or any other access to any of the facilities we offer which is not unauthorised use or access by us.
Whilst we shall use reasonable endeavours to ensure the integrity and security of the Server, we do not guarantee that the Server will be free from unauthorised users or hackers.
We do not warrant whatsoever that our virus protection services will stop every virus from reaching your computer network. 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.
Whilst we will try to improve the position of your Web Site in the Search Engine results in response to a search request, we do not warrant that this effort is in any way guaranteed
We cannot be held responsible for any changes to the position of your Web Site in the Search Engines results in response to a search request
The following terms and conditions apply to all contracts and provision of all Services, including the registration of .au.com sub-domains the special terms for which are set out below:
We shall use reasonable endeavours to provide continuing availability of the Server and the Services but we shall not, in any event, be liable for Service interruptions or down time of the Server.
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.
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 Services by us to you and your use of the Server, 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.
We may terminate this agreement forthwith if you fail to pay any sums due to us as they fall due.
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.
On termination of this agreement we shall be entitled immediately to block your Web Site and to remove all data located on it. We will hold such data for a period of 14 days and allow you to collect it, at your expense ($150/hr), failing which we shall be entitled to delete all such data. We shall further be entitled to post such notice in respect of the non-availability of your Web Site as we think fit.
If you wish to terminate your account with Creative Mode, you must do so by completing the form at http://www.creativemode.com.au/cancellations/, 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. Specifically, Creative Mode will not accept verbal instructions to terminate an account. Submission of the form at http://www.creative mode.com.au/cancellations/ will generate an automated email to the email address specified in the form, and within this email will be a unique tracking number that is the only proof of cancellation that will be accepted by Creative Mode. The ONLY exception to this cancellation process is for Search Engine Optimisation services, which must be cancelled by emailing details of the service to be cancelled to email@example.com.
On receipt of your cancellation request, Creative Mode will cancel your service at the first available opportunity.
There are no refunds or credits, once an invoice is generated, unless an invoice for a service is generated after a cancellation requested is submitted.
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 immediately upon receipt of our invoice.
The provision by us of the 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 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 12% 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 for all charges on issuance of a valid invoice.
If you nominate that the good(s) or service(s) you have purchased to be invoiced, you will be charged a $4.40 account fee per invoice issued.
If you fail to pay our COD terms, you will be charged an additional $11.00 late payment fee. A revised invoice will be sent to your nominated e-mail address.
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, OUR RESELLERS, AGENTS, 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.
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:
a. in relation to goods
i. 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
ii. 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; or
ii. The payment of the cost of having the services supplied again as in each case we may elect.
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.
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.
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.
We may change the terms and conditions of this Agreement at any time. Details of our current terms are available at http://www.creative mode.com.au/legal-terms-of-service.htm.
These terms and conditions constitute the entire agreement between Creative Mode 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 Creative Mode.
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.
In addition to general Account, Billing and Service communications, Creative Mode will, from time to time, issue email notifications relating to our services, including, but not limited to Newsletters, Announcements, Promotional and Seasonal offers, and Surveys. By entering into agreement with these terms and conditions, you agree to receive email communications by inferred 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 unsubscribeme@Creative Mode.com.au or by following 'unsubscribe' instructions contained within the communcitions
You will not be able to opt-out of 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.
These are the standard terms and conditions of supply of the Creative Mode web hosting and other services offered from time to time on the Creative Mode web site at http://www.creativemode.com.au ("the Service"). These terms apply to you as a user of the Service ("Client" or "you"). Please read these terms and conditions carefully. It is a condition of your use of the Service that you comply with these terms and conditions.
1. Terms and Amendment Procedure
1.1 These are the terms upon which we agree to provide the Service to the Client. The agreement made between us with these terms commences on the date listed in the Web Host Mission Control panel when your order for Services was accepted by Creative Mode.
1.2 We may vary these terms, the amount we charge for any Service, or the terms of the operation of the Service, at any time by general notice on a 'client info' page of the internet referred to on the home page of our web site at http://www.creativemode.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.
1.3 If you use the Service after that publication, your use will constitute an acceptance of the amended terms.
1.4 These terms constitute the agreement in its entirety and supersede prior agreements.
1.5 We may from time to time run promotions and make special offers of limited time duration ("Promotions"). All Promotions are offered subject to their terms and may be withdrawn or altered at Creative Mode's discretion. The terms of a promotion will override these terms to the extent of any inconsistency.
1.6 You acknowledge that Creative Mode is acting as a reseller of Services and is not an agent, or joint venturer of the supplier of the services to Creative Mode and that "we" "our" and "Creative Mode" may refer to both Creative Mode and it's upstream supplier(s) of the services provided to you the user of the service.
2.1 We will assign the Client a logon name ("VS number") and password which will provide you with access to the Web Host Mission Control panel which is used by you to configure various features of your web site/email service). We will provide the Client with Web and Email Services as per the Web Host service level you have selected.
2.2 We will advise the Client of correct operational procedures
via the Mission Control User Guide located at http://www.library.webcentral.com/manuals/mission_control_guide.pdf.
2.3 Scheduled Maintenance - We must perform scheduled maintenance to servers from time to time. We will attempt to perform all scheduled maintenance at times which will affect the fewest customers. If scheduled maintenance requires the service to be offline for more than 30 minutes we will post details of the scheduled maintenance to the Web Host System News at least 48 hours in advance of the maintenance.
2.4 Unscheduled Maintenance - We may need to perform unscheduled maintenance. If unscheduled maintenance requires the Service to be offline for more than 30 minutes, we will post details of the event to the Web Host System News after the maintenance has been completed.
2.5 Archiving of Data - We will archive your data onto backup mechanisms on a regular basis for the purposes of disaster recovery. In the event of equipment failure or data corruption, we will restore from the last known good archive. In the event of corruption of all of our archives, or in the event that an old archive is used to restore data, you should be prepared to upload your data to your web site. You must maintain a recent copy of your data at your premises at all times. We will not be liable for incomplete, out-of-date, corrupt or otherwise deficient client data recovered from our backups.
2.6 The Service is provided by Creative Mode from data centres in Australia. We will determine at our absolute discretion from time to time the data centre location from which your Service is provided. Creative Mode reserves the right to migrate your web site to a new operating system platform if our current operating system supplier ceases to provide support for the legacy operating system, or if the server from which the service is provided fails or, in Creative Mode's opinion becomes unreliable. Creative Mode will use reasonable endeavours to notify you via the contact details in our database but does not take any responsibility for web site failure if you have failed to keep your contact details up-to-date or if you have not checked the operation of your web site post-migration and notified us of any required changes to the web site configuration.
2.7 In contracting with Creative Mode for the Services, the Client obtains no rights to the hardware and other infrastructure and facilities used by Creative Mode or it's suppliers to deliver the Service.
2.8 In the absence of any additional written agreement, these terms and conditions (as varied from time to time) will apply to any further Services you acquire from Creative Mode.
3.1 You must pay for the Service as notified to you by Creative Mode in accordance with the prices in force for Services from time to time.
3.2 You must pay all Service time charges, minimum charges and other amounts incurred by you or any designated users or incurred as a result of any use of your password (whether authorised or not) in accordance with the billing option selected and in advance.
3.3 Prices published on our web site and other media are inclusive of any government taxes or charges unless otherwise noted, and exclusive of any registration or delegation charges imposed by domain name authorities.
3.4 In addition you must provide and pay for:-
(a) the installation and use of telephone lines and all other equipment needed to access the Service; and
(b) all government taxes, duties and levies (if any) imposed on either you or us in respect of the Services or any other service or goods supplied.
3.5 You must pay all amounts billed in accordance with your billing option. No credit terms are given. Billing period is on a yearly cycle beginning when you register. If you register after the 28th of each month, your billing date becomes the first of the next month one year later.
3.6 You consent to us obtaining a credit reporting agency report containing personal information about you (as well as information concerning commercial creditworthiness and activities) for the purpose of assessment by us of an application for credit (whether commercial or personal) or for the purpose of the collection of payments which are overdue.
4. Warranties and Liabilities
4.1 We do not warrant that:-
(a) the services provided under this agreement will be uninterrupted or error free;
(b) the services will meet your requirements, other than as expressly set out in this agreement; or
(c) 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 or systems of Creative Mode or its suppliers.
4.2 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 any term into this agreement, 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, our liability for any breach of the term will, if permitted by that statute, be limited, at our option, to the resupply of the services again; or payment of the cost of having the services supplied again.
4.3 Except as provided under clause 4.2, none of Creative Mode, its subsidiaries, officers, directors, employees, partners or suppliers will be liable to you or any third party for:-
(a) any special, punitive, incidental, indirect or consequential damages of any kind;
(b) any damages whatsoever, including, without limitation, those resulting from:
(i) loss of use, data or profits, on any theory of liability, arising out of or in connection with the use of or the inability to use the Services;
(ii) the statements or actions of any employee of or agent of or supplier of services to Creative Mode;
(iii) any unauthorised access to or alteration of your web site, transmissions or data;
(iv) any information that is sent or received or not sent or received;
(v) any failure to store or loss of data, files or other content;
(vi) your fraudulent, negligent or otherwise unlawful behaviour;
(vii) information, data or other material provided to Creative Mode by you or on your behalf; or
(viii) any Services that are delayed or interrupted.
4.4 You warrant that:-
(a) at the time of entering into this agreement you are not relying on any representation made by us 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 material which we have produced;
(b) you will conduct such tests and computer virus scanning as may be necessary to ensure that data uploaded by you onto or downloaded by you from the Server does not contain any computer virus and will not in any way, corrupt the data or systems of any person;
(c) you will keep secure any passwords used to upload data to the Server; and,
(d) you hold and will continue to hold the copyright in the Client Data or that you are licensed and will continue to be licensed to use the Client Data.
4.5 You accept responsibility for all information and material you issue over any Service, and indemnify us and hold us harmless against any liability in relation thereto. In particular you undertake that you shall not publish or issue any information which is illegal or defamatory. You also acknowledge that we do not vet or approve any information or material available through the Service. We 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. You access and use such information and material at your own risk.
4.7 You are solely responsible for dealing with persons who access the Client Data, and must not refer complaints or inquiries in relation to such data to us.
4.8 Except as provided in clause 4.2. we are not liable to you or any other person for:-
(a) cost, loss or liability (including loss of profit or other consequential damage) arising from our supply or failure or delay in supplying the Service;
(b) the content, context or confidentiality of any communications made using the Service;
(c) loss or damage caused by third party software applications forming part of the Service.
4.9 You indemnify us against all costs, expenses, loss or liability that we may suffer (directly or indirectly) resulting from:
(a) your breach of these terms;
(b) your use or misuse of the Service;
(c) the use or misuse of the Service by any person using your account; and,
(d) publication of defamatory, offensive or otherwise unlawful material on any web site forming part of your service.
5. Suspension and Termination of Service
5.1 We may from time to time without notice suspend the Service or disconnect or deny your access to the Service:-
(a) during any technical failure, modification or maintenance involved in the Service provided that we will use reasonable endeavours to procure the resumption of the Services as soon as reasonably practicable; or
(b) if you fail to comply with any provision in this agreement (including failure to pay charges due), or do, or allow to be done, anything which in our opinion may have the effect of jeopardising the operation of the Service, until the breach (if capable of remedy) is remedied.
notwithstanding any suspension of any Service under this clause you shall remain liable for all charges due throughout the period of suspension.
5.2 Creative Mode may without notice to you remove, amend or alter your data upon being made aware of:-
(a) any claim or allegation; or
(b) 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.
5.3 We may end our agreement with you and cease providing Services for any reason, on 30 days written notice to you. You may close your account with Creative Mode on 30 days written notice to Creative Mode.
5.4 If your account is closed you must pay all outstanding charges immediately and we may delete all Client Data from any storage media.
5.5 We are under no obligation to provide you with a copy of the Client Data if we have suspended or terminated your access to the Service for your breach. If we provide you with a copy of Client Data, we are entitled to charge a fee for service.
6. Domain Names
6.1 If you have requested that Creative Mode register a .com, .net, .org, .biz, or .info domain name (TLDs or Top Level Domains) on your behalf, you agree that you have read and accept the TLD Policy applicable to .com, .net, .org, .biz and .info domain names issued by the registrar MelbourneIT Limited located at http://www.melbourneit.com.au/policies/gtldtermcond.php3.
6.2 You agree that in the event of a dispute about a TLD, you will submit to and are bound by the Uniform Domain Name Dispute Resolution Policy (UDNDRP) located at http://www.melbourneit.com.au/policies/gtlddispute.php3 and the Rules for UDNDRP located at http://www.melbourneit.com.au/policies/gtldrules.php3.
6.3 If you have requested that Creative Mode register a .com.au, .id.au, .net.au or .org.au domain name (2LDs or Second Level Domains) on your behalf, you agree that you have read and accept the published policies applicable to 2LDs issued by the registrar MelbourneIT located at http://www.melbourneit.com.au/policies/aupolicy.php.
6.4 You agree that in the event of a dispute in registering a 2LD or about a 2LD after registration you will submit to and are bound by the .au Dispute Resolution Policy (auDRP) and any variations to it from time to time bind Creative Mode. The auDRP can be viewed at http://www.auda.org.au/policy/.
6.5 In registering or renewing a domain on your behalf, Creative Mode is acting as a reseller of the registrar, MelbourneIT.
6.6 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.
6.7 You agree that you must pay for any registration or delegation charges in advance at Creative Mode's list price. You understand that you cannot register a domain name without paying for it in advance. Creative Mode 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.
6.8 Creative Mode makes no representation and gives no warranty about your chosen domain name being available for registration or use by you.
6.9 You expressly authorise and direct Creative Mode to:-
(a) be nominated as authorised billing contact for your domain name with the domain name registrar;
(b) 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 Creative Mode's list price from time to time.
6.10 In respect of 2LDs, you acknowledge that Creative Mode 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.
6.11 You indemnify Creative Mode 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 Creative Modes breach of this contract, or its negligent act or omission.
7. E-commerce Services
7.1 Creative Mode's E-commerce Services, comprising Store Builder, iNETstore Online, iNETstore Studio 2001, Online Payment Proxy Server and all upgrades and additional products provided by iNETstore and 121Software Pty Limited ("E-commerce Services"), are offered by Creative Mode and purchased by you on following conditions:-
(a) Creative Mode provides the E-commerce Services software 'as-is' and without warranty of any kind, either express or implied.
(b) Creative Mode gives no warranty that:-
(i) the E-commerce Services will meet your requirements;
(ii) the E-commerce Services will be uninterrupted, timely, secure, or error-free;
(iii) the results that may be obtained from the use of the E-commerce Services will be effective, accurate or reliable; and
(iv) any errors in the E-commerce Services software obtained from or used through Creative Mode's site, or any defects in the E-commerce Services, will be corrected.
(c) Creative Mode will not be liable for acts or omissions of third party e-commerce payment gateway providers such as Camtech, NewsConnect SafePay, WorldPay, and any other provider who may provide those services as part of the E-commerce Services. You will deal with those providers at your own risk.
(d) You accept full responsibility for all online transactions you originate or execute using the E-commerce Services with or without credit and/or debit cards.
(e) You are responsible for and indemnify Creative Mode in respect of legal obligations you have to end-users of the E-commerce Services under any legislation, including without limitation the Privacy Act (Cth) 1998 as amended.
(f) Creative Mode accepts no responsibility for any cost, loss or liability (including loss of profit or other consequential damage) that might arise through your use of the E-commerce Services.
(g) You indemnify Creative Mode and hold us harmless against any liability in relation to all transactions undertaken using the E-commerce Services, including in respect of claims by or in respect of services provided by payment gateway providers.
7.2 You acknowledge that Creative Mode is acting as a reseller of E-commerce Services and is not the agent, partner or joint venturer of the supplier of the E-commerce Services to Creative Mode.
8. SQL Database Services
If you purchase SQL database Services, you agree that you have read and will be bound by the terms of the SQL Policy and Terms set out at http://www.webcentral.com.au/docs/terms/sql_policy.cgi
9.1 The Client grants to Creative Mode 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.
9.2 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.
9.3 The law in force in Queensland governs this agreement and the transactions contemplated by this agreement.
9.4 Any dispute(s) arising from the use of the Service that result in court action must be settled in a court located in Brisbane, Queensland.
9.5 You may not resell Services or assign your rights and obligations under this agreement without our prior written consent.
(c) Creative Mode 2003