Terms and Conditions
Defuzz Internet Marketing will hereby be referred to as "Defuzz", "we", us", "our". The customer will be referred to as "customer", "you" or "I".
Persons under the age of 18 require parent or guardian supervision, or some other agent who is at least 18 years authorised to represent you.
You warrant that all actions that you make are done so in good faith and that you have no knowledge of your actions infringing upon or conflicting with the legal rights of a third party or a third party's trademark or trade name. If you do not qualify, please do not use our services.
Design & Development Services
We will NOT under any circumstances, design, redo, create or render our website design and development services to any sites that promote, endorse, duplicate, link to, or deal with the following:
- Sexual or sexually explicit material or contents. Content that is unlawful, harmful, threatening, abusive, harassing, torturous, defamatory, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable.
- Content that infringes upon any trademark, copyright, patent, trade secret, or other proprietary rights of any party.
- Hacking, warez, virus transmittal, or computer activities of an illegal nature.
- "Spamming", pyramid schemes, junk mail or the transferal of unsolicited e-mail or advertising techniques.
- Content that is harmful to minors in any way.
- Instructional information about illegal activities, promoting physical harm or injury against any group or individual. This may include, but is not limited to, providing instructions on how to assemble bombs, grenades and other weapons etc.
- Animal cruelty or procedures deemed harmful, unnecessary or unnatural to animals.
- Any activity considered illegal under federal, state and international laws.
We reserve the right to deny service to any site for these or any other unspecified reason.
Web Design Project Copyright
You, the client, unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork provided to Defuzz for use in the project are owned by you, or that you have permission from the rightful owner to use each of these elements, and will hold harmless, protect, indemnify and defend Defuzz from any liability (including legal fees and court costs), including any claim or suit, threatened or actual, arising from the use of such elements provided by you, the client.
The copyright for all material provided by Defuzz such as design work, graphics, photographs, text and any artwork will remain the property of Defuzz Internet Marketing until such time as payment has been made in full, whereupon they will become the property of the client. When we undertake a pro-bono/free website project, all work permanently remains the property of Defuzz.
Defuzz Internet Marketing retains the right to display graphics, websites, photo restoration samples and other project elements that we have created for clients as examples of our work in the Defuzz portfolio.
Source Code Licencing
Upon payment of all monies owing pursuant to this agreement, you will be granted a non-exclusive licence to use the web development source code for the following purposes:-
- to further develop and modify the original source code for your organisational needs;
- to provide a copy of the source code to third parties for the purposes of hosting and further development.
You must not re-sell, lend, or otherwise transfer any web development source code for purposes other than mentioned above.
Intellectual Property Rights
All intellectual property rights associated with any original web development source code developed under this agreement remain the property of Defuzz Internet Marketing. The client will be granted a royalty free, non-exclusive, irrevocable licence to reproduce, publish and use it, in part or in whole, for subsequent development of the product(s) covered by this agreement. A copy of the source code, together with its associated documentation, will be retained by both parties.
Web Design and Development Billing
For large web development projects clients will pay a 30% deposit for web design & development fees before work begins. For small web development projects, clients will pay a 50% deposit before work begins.
Web Design and Development Project Cancellation/Rejection
If the project is cancelled or work is rejected by the client, full payment must still be made to Defuzz Internet Marketing unless a mutual agreement in compensation is reached. In the event of cancellation or rejection, ownership of all rights granted under this agreement shall revert to Defuzz Internet Marketing unless the work is based on the client's brand or a mutual agreement has been reached.
Hosting for Web Development Projects
It is a requirement that any other hosting provider sourced by you, the client, offers the exact same technology Defuzz requires to develop your website.
Project Scope & Scope Creep
Defuzz quotes ONLY INCLUDE the project scope and requirements outlined in the quote document & Statement of Work. Often in website design & development projects, requirements may change which could impact the budget, timelines and resources and this is defined as scope creep. If this occurs the options are:
- Integrating the new set of requirements in a different phase
- stop the project so that new additional requirements can be properly scoped, quoted and integrated rather than just added on in a ad-hoc manner.
- Continue the project without re-scoping and without a change in development requirements.
If a project is affected by scope creep, a new quote and a change in the costs will occur.
If you choose to sue us for any work that you felt was not done, or not done properly, you hold that right. Although we strive to avoid this point and you should bring to our attention our wrong doings. If you continue to take us to court we are NOT responsible for ANY COSTS pertaining to the lawsuit such as, but not limited to, lawyer fees, court costs, transportation costs, or any "emotional" or "physical" costs.
Payment of Invoices and Bills
The customer agrees to supply full payment for the services received from us, on or before the time period during which such services are provided. You agree that unless you notify us of your desire to cancel any or all services received, those services will continue to be billed.
If you want to cancel your account, you must notify Defuzz at least seven (7) business days before the due date of the next invoice.
Your account will not be created or work performed until your deposit or scheduled payments have been received in full as cleared funds. It is your responsibility to ensure we have received funds by the due date to avoid suspension and/or termination of our products and services.
We reserve the right to change and refuse payment methods at our sole discretion.
If payment is not received 14 days after the invoice due date, we reserve the right to charge a late payment fee of AU$35.00 and suspend your account. Dishonoured cheques will attract an administration charge of AU$30.00. You agree to be subject to whatever other administration charges are applicable to the circumstances. These are listed in our 'Other Charges' section. These charges are incorporated as part of this agreement.
Suspension of Services
We reserve the right to suspend your account, if you have an outstanding invoice or account or if your account is in dispute, or as part of a dispute resolution procedure. If your invoice or account remains unpaid, or until the dispute is resolved, we reserve the right to cancel or suspend your entire account(s) and all products and services under it.
Defuzz does not offer support resources for suspended accounts. See Cancellations below for more information. Defuzz shall continue to bill a suspended account as normal notwithstanding that you may not be able to access any products or services.
If your account remains unpaid for 60 days, your information will be passed onto a collections agency for debt recovery. You will be charged the account balance plus a 30% premium and GST. Your information may also be given to legal practitioners and credit agencies if proceedings are initiated or debts remain unpaid.
We reserve the right to suspend your account at any time for breaching our terms and conditions, for initiating in activities which may reduce the security of other websites on our servers, or where Defuzz has been given misleading or false information regarding the type of website to be hosted.
We reserve the right to seek and claim damages and losses from suspended accounts. We may use whatever legal means necessary to recover any outstanding debts.
Cancellation of Services
Defuzz reserves the right to cancel your account at any time. Without limiting the following, we will cancel your account or transfer any domain name registration at our discretion to:
- Comply with applicable laws, government rules or requests of law enforcement
- Comply with our service providers
- Avoid liability, civil or criminal, on the part of Defuzz, as well as its affiliates, subsidiaries, officers, directors and employees
Defuzz also has the right to cancel your account if we find that you have been engaging in:
- Deceptive, improper or misleading conduct
- Providing false information
- Harassment, abuse or swearing
- Unlawful activities
- Conduct that breaches this agreement
Requesting a cancellation: Please email email@example.com to request a cancellation to your service(s).
If you have cancelled your account with Defuzz and would like to reactivate your account, you will need to place a new order and set up fees will again apply.
Spam and Leeching
We take a zero tolerance stance on the sending of unsolicited e-mail, bulk emailing, and spam. "Safe lists" and "double option" will be treated as spam. We reserve the right to require changes or disable as necessary any website, account, database, or other component that does not comply with this policy at our sole discretion. We also reserve the right to make any such modifications that are urgent at our sole discretion.
Should any legal action be taken against Defuzz Internet Marketing for your spamming work, you agree to pay Defuzz liquidated damages of AU$1.00 for each piece of spam or unsolicited bulk email transmitted from or otherwise connected with your account, including any 3rd party accounts you hold as part of any future reseller programs we choose to implement.
You, the customer agrees not to use our test, or staging URL as a primary download link or website address, except for genuine staging usage as outlined below. This link is provided for website testing purposes only. If found to be using the staging URL as a primary download link or website address, you will be charged extra bandwidth usage charges and/or a clean up charge at the discretion of Defuzz.
All products and services provided by Defuzz Internet Marketing may only be used for lawful purposes. The customer agrees not to host materials or engage in activities as set out below. We reserve the right to refuse service based on these conditions.
Defuzz does not endorse any website content hosted on our network or with third part providers, and the content remains the property of the website owner.
You, as a Defuzz client, must not engage in any of the following activities:
- Defame, embarrass, harm, abuse threaten, slander or harass third parties
- Use any RC bots
- Use any proxy servers or other servers
- Hack sites or run malicious scripts
- Post pornographic material, particularly illegal child-pornography (however, adult or R-rated content is acceptable)
- Post material which encourages unlawful behaviour by others, such as hate crimes or terrorism
- Run any sort of hate/extremist sites
- Engage in spamming
- Breach copyright, trademarks, servicemarks or patents. This includes the posting of Warez or pirated software, music or movies on your service, or linking to such material even where such material is not hosted on Defuzz systems, or with third party providers utilised by Defuzz.
- Engage in actions which are prohibited by the laws of Australia and/or foreign territories in which Defuzz Internet Marketing, or you, the client, conduct businesses
- Post material which is tortuous, vulgar, obscene or invasive of the privacy of a third party
This is not an exhaustive list. Other activities deemed improper, illegal or dangerous may also breach this agreement.
If your website is suspended and/or hosts any of the unacceptable material as set out above, we reserve the right to charge a clean-up fee for the administration time involved to attend to your website / hosting account, and update you on the issue at the rate of AU$77.00 per hour (minimum 1 hour).
It will remain your responsibility to resolve the issues after we inform you of the breach of these terms.
Support & Help Desk
Defuzz provides limited support to our clients via phone and limited free support via email on the services and products we offer.
If you are experiencing difficulties or issues with any services or products, you are required to notify us immediately so we may resolve the issue. If you do not notify us as soon as possible, no allowances will be made, as we have not been given a reasonable opportunity to fix the problem.
We are an Internet Presence Provider (IPP) and are not responsible for our clients' Internet Connectivity through their Internet Service Provider (ISP), connection troubleshooting or computer setup. Please contact your ISP for assistance in these matters.
Backups and Loss of Data
Your use of our products and services is at your sole risk and indiscretion. We are not responsible for, nor do we maintain backups of, files and data residing on your account. You agree to take full responsibility for files and data transferred and to maintain all appropriate backup of files and data stored with our third party hosting providers at all times.
Even though we run our own backups, we are not liable for any data loss due to server failure, unforeseeable corruption of programs, hacking, or any other failure whatsoever, as our systems are maintained by external providers.
Updated service packages
From time to time, we may update our packaged plans. When we do so the plan name will change. Customers on previous plans will not be automatically upgraded to the newest version of the plan. Customers on previous plans will keep the features of their current hosting package.
If a client wishes to upgrade to the newest version of their plan, a AU$30.00 administration fee will apply. Your service may also need to be transferred to another hosting account to take advantage of the newer features.
Even though Defuzz specifies the amount of bandwidth available under any given hosting package, it is up to our discretion to decide on its fair use, for which we have devised a Fair Use Policy. If we believe you are exceeding your bandwidth Fair Use Policy (over 1GB of data per month), we will start charging $5.00 per gigabyte, or terminate your hosting plan with a refund offered for the remaining months.
Unused bandwidth allowanves in one month cannot be carried over to the next month.
We reserve the right to change prices listed on Defuzz Internet Marketing's website. If we change the price of a product or service, you will continue to be billed at the rate you signed up for, and only new customers will be charged at the new rate. However, if you reorder a product or service, or order a new product or service, or downgrade/upgrade your plan, then you will be billed at the new rate.
You, the client, agree that you shall defend, indemnify, save and hold Defuzz harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney's fees asserted against us, its agents, its customers, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by you, the client, your agents, employees or assigns. You furthermore agree to defend, indemnify and hold us harmless against liabilities arising out of;
- any injury to person or property caused by any products sold or otherwise distributed in connection with Defuzz Internet Marketing;
- any material supplied by the you, the client infringing or allegedly infringing on the proprietary rights, legal and/or civil rights of a third party;
- any breach of any representation or warranty provided herein
- any negligence or wilful misconduct by you
- any allegation that your account infringes a third person's copyright, trademark, or intellectual property right, or misappropriates a third person's trade secrets
- any defective products sold to customers from Defuzz's hosting reseller account or third party hosting providers.
By accessing any website hosted within our accounts, or on our servers, you understand, agree and are bound by this indemnification. This indemnification is in addition to any other indemnification required of you elsewhere in this agreement.
Should Defuzz Internet Marketing be notified of a pending law suit, or receive notice of the filing of a law suit, we may seek a written confirmation from you concerning your obligation to indemnify Defuzz. Your failure to provide such a confirmation may be considered a breach of this agreement.
Defuzz Internet Marketing will not be responsible for any damages your business may suffer. We provide no warranties, express or limited or implied, for services we provide, nor do we guarantee your website or applications will work error free within our third party provided hosting accounts. This includes implied warranties of merchantability or fitness for a particular purpose. As such, we are not responsible for loss of data resulting from delays, software incompatibility, server or software issues, outages, no deliveries, wrong delivery and any service interruptions caused by Defuzz Internet Marketing and its employees.
We do not guarantee uptime or service availability (unless we have entered into a Service Level Agreement with you) nor do we guarantee that services will be uninterrupted, timely, secure, or error free, or that defects will be corrected.
Should any part of this disclaimer be made invalid by relevant legislation (such as the Trade Practices Act) then the remaining part shall still be in force.
LIMITATION OF LIABILITY
IN NO EVENT SHALL DEFUZZ INTERNET MARKETING BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLDUDING NEGLIGENCE), BREACH OF WARRANTIES, EITHER EXPRESS OR IMPLIED, ANY BREACH OF THIS AGREEMENT OR ITS INCORPORATED AGREEMENTS AND POLICIES YOUR INABILITY TO USE THE SOFTWARE OR SERVICES, YOUR LOSS OF DATA OR FILES OR OTHERWISE, EVEN IF DEFUZZ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Some states or territories may not allow such a broad exclusion or limitation on liability for damages as contained herein. In such states or territories, Defuzz Internet Marketing's liability is limited to the full extent permitted by law. You agree that in no event shall Defuzz's maximum aggregate liability exceed the total amount paid by you for the particular product or service in dispute purchased from us.
A force majeure is defined as Acts of Nature (including fire, flood, earthquake, storm, hurricane or other natural disaster even if caused by global warming, i.e., negative human activities that contribute to the destruction of the biosphere), war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalisation, governmental or quasi governmental sanction, restraint, embargo, prohibition or intervention, blockage, labour dispute, general strike, lockout or interruption or failure of utilities or telephone service.
Where a Party is unable, wholly or in part, by reason of force majeure, to carry out any obligation under this Agreement, and that Party: (a) gives each other Party prompt notice of that force majeure including reasonable particulars, and, in so far as known, the probable extent to which it will be unable to perform or be delayed in performing that obligation; (b) uses all possible diligence to remove that force majeure as quickly as possible, that obligation is suspended so far as it is affected by force majeure during the continuance of that force majeure and that Party shall be allowed a reasonable extension of time to perform its obligations.
If after a period of six months, the force majeure has not ceased, the Parties shall meet in good faith to discuss the situation and endeavour to achieve a mutually satisfactory resolution to the problem.
The requirement that any force majeure must be removed with all possible diligence does not require the settlement of general strikes, lockouts or other labour disputes or claims or demands by any government on terms contrary to the wishes of the Party affected.
In compliance with the Privacy Act, we are permitted to share your personal details with competent authorities when there is proof of fraudulent or criminal activities.
Changes to these Terms and Conditions
Defuzz reserves the right to revise its terms and policies from time to time without notice. Updates will appear on the company website Terms and Conditions page (www.defuzz.com/terms-conditions.html). By continuing your services you agree to these revisions.
However, if we revise our terms in a way that impacts you both materially and detrimentally (and you have more than a month's worth of hosting paid in full remaining on your account), you may request a refund for remaining services.
Refunds shall be provided for whole months only; parts of a month shall be rounded down. They cannot be given for products or services that Defuzz Internet Marketing has purchased from third party providers (such as domain names, email marketing accounts, hosting, etc).
This Agreement, your rights and obligations and all actions contemplated by this Agreement shall be governed by the laws of the Australia and the State of Victoria, as if the Agreement was a contract wholly entered into and wholly performed within the State of Victoria. You agree that any action to enforce this Agreement or any matter relating to your use of the Services shall be brought exclusively in the Australian Court for the North Eastern district of Victoria, or if there is no jurisdiction in such court, then in a state court in Melbourne, Victoria. You consent to the personal and subject matter jurisdiction of any state or Federal court in Melbourne, Victoria in relation to any dispute arising under this Agreement. You agree that service of process on you by either the Primary Service Provider or Backend Service Provider in relation to any dispute arising under this Agreement may be served upon you by first class mail to the address listed by you in your contact information or by electronically transmitting a true copy of the papers to the email address listed by you in your contact information.
You agree that this Agreement including the policies it refers to (i.e., our Refunds Policy, etc) constitute the complete and only Agreement between You and Defuzz Internet Marketing regarding the Services contemplated herein.
You agree that the terms of this Agreement are severable. If any part of this Agreement is determined to be unenforceable or invalid, that part of the agreement will be interpreted in accordance with applicable law as closely as possible, in line with the original intention of both parties to the Agreement. The remaining terms and conditions of the Agreement will remain in full force and effect.
Third Party Beneficiaries
Nothing in this Agreement, express or implied, is intended to confer upon any third party any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.