Terms & Conditions
Last updated 24th August, 2011
HELIX DIGITAL PTY LTD ABN 70 118 269 800 (“Helix”, “We” or “Us”), is the developer of services associated with the building, management and hosting of web pages, including configuration and enhancement of open source software which allows you the customer (“You”) to manage your (“Your”) website, and from time-to-time including additional features and upgrades and enhancements and such other services as agreed (“Services”).
Application and Variation of these Terms
These terms and conditions are the terms on which Helix will provide the Services to You. These terms constitute the agreement between You and Us (“the Agreement”) in its entirety and supersede any prior agreements between You and Us in respect of the Services. We may modify these terms and conditions, (including without limitation the pricing for any of the Services), or give You notice under this Agreement, by notice on our website and/or by email. Such modifications will take effect 7 days after such notice has been provided. By accepting these terms and conditions, You also agree to accept and be bound by any changes made by Helix under this clause.
Copyright
The copyright in all reports and associated website designs, text, graphics, the selection and arrangement thereof is owned or licensed by Helix. All of Helix’s rights in this regard are reserved. Copyright in the material contained on this website and in any report subsists under the Copyright Act 1968 (Cth) Australia and, through international treaties, under the laws of many other countries.
Provision of Services
Helix will use all reasonable efforts to provide You with the products and Services that are relevant to the Services purchased, as described on the Helix website, or in a proposal provided to You.
Domain Names
The term of the domain name licence (ie that period of time for which the licence is granted to You) will be:
- 2 years for a .au domain name; and
- 1 – 10 years for a .com, .net, .org, .biz or .info domain name.
When You purchase a domain name from Helix You will be purchasing the use of the domain name for the specified term, unless otherwise agreed with Helix. Upon expiration of the initial term for the domain name licence, the domain name licence may be renewed for a further period equal to the period of the initial term.
You agree to read and abide by the domain registration policies, available at:
- http://www.auda.org.au/policy/policy-overview/ for .au domain names.
You authorise Helix to communicate Your contact details to the relevant domain registry to be made available to the general public, upon request of the relevant domain registry.
Helix does not represent nor guarantee that You or Helix have rights to ownership of any domain name purchased. You should refrain from taking any action to register or renew a domain name prior to confirmation of registration or renewal from Helix. Helix does not guarantee successful registration or renewal of a domain name.
It is Your sole responsibility to ensure that registration of a domain name is renewed when necessary and Helix takes no responsibility for losses or expenses arising out of any failure by You as the Licensee of any domain name to renew the registration of a domain name.
Failure by You to pay any fee (including, but not limited to, any renewal fee) for any domain name by the stipulated due date may result in the domain name being deactivated or deleted by the relevant domain name registry. Under no circumstances will Helix refund any fees paid by You to Helix in relation to any domain name.
Helix reserves the right to deactivate or cancel a domain name the use of which is illegal, fraudulent, infringes the intellectual property rights or other legal rights of a third party, or is defamatory to or disparaging of a third party. You will indemnify and keep Helix fully indemnified in respect of any claim, loss, cost or damage suffered or incurred by Helix as consequence of Your use of a domain name.
Maintenance & Support packages
Maintenance & Support must be pre-purchased in bundles of 20 hours. Maintenance & Support tasks are then subtracted cumulatively from the Maintenance & Support Pack.
Support required as a result of a fault by Helix will not be credited against the Maintenance & Support Pack. All other support will be credited against a Maintenance & Support Pack. Level 1 technical support is provided in the $99 per month hosting charge. This includes faults associated with the services identified in your hosting package. See your proposal .
Up to 2 hours training at Helix Digital offices is provided free for each new product or application. Off site training is provided at $180 per hour plus travel expenses. All additional training required will be subtracted from the Maintenance & Support pack.
Maintenance & Support packs expire 12 months from the date of purchase.
E-mail & SMS Marketing
Email & SMS Marketing packages relate to a license to use a Web Application used to administer E-mail, SMS, Fax & Direct Mail Services. Helix licenses these services to You under these specific terms.
Payment
The applicable prices and charges for a particular product or Service are as stipulated in a proposal provided to You by Helix.
You are responsible for all prices and charges for Services and any other amounts (such as excess storage and bandwidth coverage) incurred by Yourself or Your authorized representative or as a result of any use of a product or Service, in accordance with the billing provisions specified in the payment confirmation.
Helix reserves the right to contact a credit reporting agency to obtain personal information about You for the purpose of validating an application for credit made by You to Helix.
In the event that Helix issues You an invoice in arrears for any service or product, You fail to pay for any Service or product by the set due date or You fail to pay any other amount owing under this clause, Helix reserves the right to, in addition to any other right:
- Charge interest to You at an applicable rate until the relevant amount owing is paid;
- Suspend or terminate any Services or products provided to You by Helix; and
- Not renew or register any Services or products provided to You by Helix to a third party.
Any suspension does not relieve You of Your obligation to make payments under this Agreement including circumstances where a credit card transaction declined. If this occurs an email will be sent to the primary email address that You have provided for us. Failure to provide us with changes to Your primary email address will not result in any extension.
You agree, in the event of default, to pay Helix our reasonable expenses, including legal and collection agency fees, incurred in enforcing our rights under this Agreement. Fees are exclusive of any taxes which may be levied or assessed. Any such taxes shall be paid by You. If the whole or any part of a payment is the consideration for a Taxable Supply for GST purposes, You must pay to Helix an additional amount equal to the applicable GST amount with that payment and Helix will provide You a GST tax invoice.
Helix reserves the right to sell any moneys owed by You to Helix under this agreement to a debt collector.
Warranties
Certain legislation (including the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1999 (Vic)) may imply terms, warranties or conditions that cannot be excluded, restricted or modified (“Statutory Warranties”). Subject to the Statutory Warranties and to any other warranties specifically given by Helix:
- All conditions, warranties and other provisions which might otherwise have been implied into this Agreement or otherwise in relation to the Services, are excluded; and
- You acknowledge that all software (including that used to provide the Services) may have errors, and that it is therefore Your responsibility to monitor and verify the use of the Services.
Limitation of Liability
Where the Services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, the liability of Helix to You is limited, at the option of Helix, to:
- For a claim relating to goods liability is limited to the repair or replacement of the goods or payment of the cost of having the goods replaced or repaired; and
- For a claim relating to services liability is limited to the supplying the services again or payment of the cost of having the services supplied again.
To the extent permitted by law, the liability of Helix to You or any other person, whether in contract, tort (including negligence), under statute or otherwise, arising out of or in any way relating to this Agreement:
- Except as expressly stated in this Agreement, is excluded;
- Where it cannot be excluded, is limited in total to the fees payable by You for the Services in the previous 12 months; and
- Excludes liability for any indirect, secondary or consequential loss or damage or for loss of income, profits or anticipated savings or loss of opportunity
To the extent permitted by law, You indemnify and agree to keep Helix indemnified against any loss or claim arising out of Your use of the Services.
Helix Digital may vary these terms or the terms of the operation of any Service, at any time by a updating the Terms and Conditions at http://helixdigital.com.au/terms/. Changes other than price changes will become effective upon publication of the notice.
Helix Digital may vary the charges for any Service and we will notify you of these variations either by written notice to you and publication to http://helixdigital.com.au/terms. Where Helix Digital vary any charges for the Services, we will give at least 30 days notice of the change by either of the preceding means, and the new prices will apply at the end of that period.
Any reference in this agreement to Helix Digital “Supplier” is a reference to any third party service provider of Helix Digital (a “Supplier”), if and to the extent a Supplier is supplying any part of the Services to you on behalf of Helix Digital.
Compatibility
Helix will not be liable for any software or hardware issues that may reside at the client’s end that limits or interferes with the Services provided by Helix. These include, but are not limited to, networks that do not allow network traffic through to Helix servers including proxy servers, terminal services or ISP issues, and software conflicts on a client’s machine, not allowing the Helix software to be installed, used or accessed.
Content of Your Website
You will take all reasonable steps to ensure that Your website will contain warnings if all or part of its content is not suitable for children and complies with all applicable laws and industry policies.
Your Data & Content
You are responsible for all data, content, materials and files supplied by You to Helix. It is solely Your responsibility to store back up of all data, content, materials and files supplied by You to Helix on Your own server.
Internet Protocol (“IP”) Addresses
You agree that Helix will maintain and control ownership of all IP numbers and addresses that are assigned to You. Helix reserves the right to change or remove any IP numbers or addresses assigned to You at our discretion.
Correspondence
Correspondence from Helix will be sent to You via the primary contact email address that You provided during the sign up process. Helix waives any responsibility for correspondence not being received at this address. It is Your responsibility to immediately advise Us of any change to Your primary contact email address.
Links & Publicity
By entering into this Agreement You acknowledge and agree that Helix may use Your name, and logo for the express and sole purpose of identifying You as a client of Helix in its marketing material, both print and electronic and that Helix may place on Your website a hyperlink to Helix’s website labelled “designed by Helix” or words to similar effect. You may elect to withdraw Your permission for the use of Your name and logo in Helix’s marketing material, but must do so in writing with 30 days notification for withdrawal of any material from the commercial domain. Helix accepts no liability for, nor warrants the accuracy of any content associated with any of its customer’s websites.
Trademarks & Intellectual Property Rights
Helix is the sole and exclusive owner of the Services and the underlying software code and all Intellectual Property Rights in relation to the Services. All improvements to the Services will remain the property of Helix. Helix shall have and retain sole ownership of its trademarks, including the goodwill pertaining thereto.
Acceptable Use
You will ensure that Your website content (and anything relating to Your website or to the Services) is not illegal; deceptive; inaccurate; defamatory; pornographic, obscene or sexually explicit; discriminatory to any race, ethnic group, religion, or sect; discriminatory or offensive to the disabled or any physically, socially or economically disadvantaged sector of the community; discriminatory against any persons of a particular gender or sexual persuasion; discriminatory against any professional or trade group; offensive, or derogatory to any person or persons; or likely to in any way interfere with or harm the business of any person or entity or to interfere in any way with the natural course of business.
You will also ensure that Your website is not used for any “spamming” activity or any misleading or deceptive conduct or other illegal or unethical marketing practice. You further warrant that nothing on Your site will breach copyright or other Intellectual Property Rights; or will be contrary to the terms of any binding confidentiality or other agreement nor breach the Privacy Act or equivalent or any other laws or legal requirement.
Helix may, but shall not be obligated to, immediately and without notice, terminate the provision of Services to You and remove Your website or Your access to it, if We are of the reasonable opinion that You may be in breach of this clause of this Agreement and such termination may take place immediately on detection of such conduct and without notice to You. You acknowledge that You shall have no remedy or recourse against Helix.
Upon termination under this clause, Helix shall have the right to delete and/or destroy any and all of the content of Your website and Your information, without accounting to You for such destruction.
You shall have no redress against Helix in respect of any loss or claimed loss arising out of anything done under this clause.
Notwithstanding termination under this clause, Helix shall be entitled to receive payment from You for the Services for the term of this Agreement currently in force at the time of such termination. Helix does not accept liability for anything on Your website or which in any way relates to it and if any claim is made or threatened against Helix in respect of Your website or any use of Your website, and You will indemnify and keep Helix fully indemnified in respect of any claim, loss, cost or damage suffered or incurred by Helix as consequence of Your website or any content or link on Your website.
Bandwidth allowance
You are allocated a data transfer bandwidth limit and/or disks space limits, as prescribed on the Helix website or in your proposal. Should Your account pass this allocated amount You will be charged a rate of 0.10 cents per megabyte of bandwidth that is exceeded. Should Your account exceed the allocated amount for two consecutive months or more, You will be required to purchase additional storage. We reserve the right to suspend Your account until the start of the next allocation, suspend Your account or terminate Your account for failure to pay costs under this clause.
Notice
You agree to promptly inform Helix of any breach by You of these terms and conditions and of any conduct of any other person which You think may be a breach of these terms and conditions, whether the conduct has ceased, is continuing, or may occur in the future.
Use of Customer Information
You grant to Helix the right to disclose your personal information to other parties, including customer enquiries, mailing operations and billing and debt-recovery entities, in order to ensure that Helix is able to effectively provide its Services to You.
You acknowledge and consent to the disclosure by Helix to any law enforcement agency in any jurisdiction that is investigating any breach or suspected breach of any law in any jurisdiction of Your identity or other personal information provided by You to Helix, upon Helix being requested to do so by that law enforcement agency.
You should review the Helix Privacy Policy for further information concerning the collection and usage of your personal information.
Access
Helix cannot and does not know or control whether You have given access to Your Helix account to other people and recommends that You keep password and login in details confidential. You are totally responsible for when and how Your account with Helix is used and the actions of the people (if any) You allow to access, or transmit information through, Helix’s computer systems and network resources or otherwise utilise the Services (whether or not You have given them Your login and password details or not).
Reliance on Services
Whether You are using the Services for private or commercial purposes, or both, You agree and understand that the quality, and continuity, of Helix’s Services depends on factors over which Helix has no control and cannot seek to control. Helix may be required to perform maintenance, which also may effect the quality, and continuity, of Helix’s Services. Helix will take all reasonable steps to notify You of such maintenance when permitted by the circumstances. Whilst Helix will endeavour to maintain ongoing access, it is probable in such an operating environment that disruptions and failures of any or all computer systems, network resources, and the Services may occur. Recognising this, You agree that:
- Helix cannot and does not guarantee, warrant or otherwise imply that You will receive constant and uninterrupted access;
- Helix will provide You with access at any given time only as the circumstances allow; and
- Helix cannot always ensure that it’s computer systems and network resources will be fully or continually protected from unlawful access by others, including the infection of data or other information by viruses, or the alteration, misuse, or stealing of data or other information or that any of these activities will be detected.
Breach of Copyright
Helix does not condone activities and actions that breach the rights of copyright owners. It is Your responsibility to obey all laws governing copyright.
Caching
You hereby grant Helix a license to cache Your website. You also agree that caching of Your website by Helix is not a breach of Your or any other parties’ intellectual property rights.
Cancellation of Services
You are entitled to cancel a product or Service provided by Helix before the end of its Service term. Notification of cancellation must be provided to Helix in writing at least 30 days prior to the date at which You seek the product or Service to terminate. You agree that, should You chose to cancel a product or Service before the end of its Service term, You may be required to pay a cancellation fee to Helix equal to the fees for two months of Service.
Trade and business obligations
You agree to comply with all requirements for the conduct of business applicable to persons conducting business both in Australia and in Your country of residence, and in particular not to breach any export law or trade restriction by the sale or supply of goods or services on Your website.
Applicable law
The laws of Victoria, Australia, govern this Agreement, and You submit to the exclusive jurisdiction of the courts of Victoria.
Force Majeure
We will not be liable for any act, omission, or failure to fulfill our obligations under this Agreement to the extent that such act, omission, or failure arises from any cause reasonably beyond our control including, but not limited to, acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental action, fire, server and communication line failures, power failures, earthquakes or other similar disasters (called “Force Majeure”). However, We will take reasonable steps to inform You of any such cause and to continue to perform our obligations under this Agreement.
These terms constitute the Helix Digital Terms and Conditions in its entirety and supersede all prior agreements.
