Terms & Conditions
1.1 In this document 'we' and 'our' means
RIPEFRUIT and 'you' and 'your' mean the customer.
1.2 This agreement outlines the terms and
conditions that apply to any service you have signed up for with us ('the
1.3 The Services you purchased are identified
in the 'sign up' and the 'welcome' emails we sent you after we accepted your
request for service. The specifics of the Services are detailed on our website.
1.4 In addition to these terms and conditions
Customer Resolution Policy.
1.5 If you have registered one or more .AU
domain names, you must also accept our Registrant Agreement.
2. Acceptance of these terms
2.1 You signified acceptance of these terms
our Customer Resolution Policy, when we accepted your order for Services.
3. Commencement of the
3.1 This agreement commenced on the date we
accepted your order for Services.
4. Service availability
4.1 In these terms and conditions 'Service'
primarily refers to our provision of space on one of our servers and a
connection to and from the Internet for web, email and FTP services to the
level specified in the package you selected and domain name registration services.
4.2 We will use our best endeavours to
provide continuing availability of our server fleet and the Service but we
cannot be liable for service interruptions or down time of the service.
4.3 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 at least 48 hours in advance of the
maintenance. If we need to perform unscheduled maintenance that requires the
Service to be offline for more than 30 minutes, we will post details of the
event after the maintenance has been completed. Details of maintenance can be viewed on our
service status page at www.ripefruit.net.
5. Registering a domain name
5.1 In respect of domain names, we advise you
that we are a reseller for the auDA accredited
5.2 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.
5.3 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 that you 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
5.4 We accept no responsibility in respect of
the use of a domain name by you. 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.
6. Renewal of domain name
6.1 You acknowledge that we are not obliged
to renew your domain name if you do not confirm to us that the domain name
should be renewed. In such circumstances we are not liable for any loss or
damage resulting from non-renewal of your domain name. We may not renew your
domain name where you have unpaid invoices or if you are in breach of any terms
of your use of our services.
6.2 You acknowledge that our primary method
of communication for domain renewal purposes is via email. We will not be held
responsible for the non-renewal of your domain name if your email contact
details are not kept up to date.
6.3 If you close your account with us but do
not transfer your domain name to another registrar, you agree that we may contact
you after account closure to remind you of domain name renewals.
7. Customers warranties,
liabilities and undertakings
7.1 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 or Broadband ADSL, 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.
7.2 You warrant that you will keep secure any
passwords used with the Service and that you hold and will continue to hold the
copyright in your data or that you are licensed and will continue to be
licensed to use that data.
7.3 You further warrant that 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.
7.4 You undertake that 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
7.5 You also agree that you are solely
responsible for dealing with persons who access your data and that you will not
refer complaints or inquiries in relation to such access to us.
7.6 You indemnify us 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 our
breach of this agreement, or our negligent act or omission
Warranties and Liabilities
8.1 We accept liability for the supply of the
Services to the extent provided in this agreement.
8.2 We do not warrant that:
Services provided under this agreement will be uninterrupted or error
Services will meet your requirements, other than as expressly set out in
this agreement; or
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 RIPEFRUIT.
8.3 Except as expressly provided to the
contrary in this agreement, we exclude all liability for indirect and
consequential loss or damage of any kind, loss or corruption of data, loss of
revenue, loss of profits, failure to realise expected profits or savings and
any other commercial or economic loss of any kind, in contract, tort (including
negligence), under any statute or otherwise arising from or relating in any way
to this agreement and/or its subject matter.
8.4 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.
8.5 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 will 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.
8.6 In no event will 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.
8.7 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) nothing contained in this
agreement excludes, restricts or modifies any condition, warranty or other
obligation in relation to this agreement, 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 the Act, 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 specified in this agreement) to:
replacement of the goods or the supply of equivalent goods or payment of
the cost of replacing the goods or acquiring equivalent goods; or
repair of the goods or payment of the cost of having the goods repaired;
supplying of the Services again; or
10.0pt; payment of the cost of having
the Services supplied again.
8.8 We specifically exclude any warranty as
to the accuracy or quality of information received by any person via your
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 your data stored on the Server.
9. Suspension and Termination
of the Service
9.1 We may suspend or terminate your account
if you breach any of these terms and conditions, or if you become insolvent or
you are declared bankrupt.
9.2 From time to time we may have to suspend
or disconnect the service without notice or deny your access to the Service
during any technical failure, modification or maintenance involved in the
Service. We will use reasonable endeavours to procure the resumption of the
services as soon as reasonably practicable. In these circumstances you will
remain liable for all charges due throughout the period of suspension.
9.3 If your account has been suspended or
terminated due to your breach, reactivation of your account will be completely
at our discretion. If we agree to reactivate your account, we will require
payment in full of all outstanding amounts and payment of a reactivation fee.
9.4 As per Clause 10.2, if any outstanding monies
remain payable after 5 days, the accounts pertaining to the invoice in question, will
be suspended, until payment is received in full for the applicable services.
9.5 If you wish to terminate your account
with us for any reason you may do so by giving us 30 days notice in writing. Refunds
for hosting services are available for monies paid more than six (6) months in
advance, less a $50.00 administration fee.
9.6 If we wish to terminate your Service for
reasons other than a breach of these conditions, we can do so by giving you 30
days written notice. In this circumstance, we will refund any remaining unused
credit on your account.
9.7 If your account is closed for whatever
reason you must pay all outstanding charges immediately. Failure to pay all
outstanding charges may result in your account being passed to a third party
9.8 We are under no obligation to provide you
with a copy of your data if we have suspended or terminated your access to the
service for your breach. If we provide you with a copy of your data in such
circumstances, we are entitled to charge a fee for service.
10. Fees, charges and payments
10.1 All charges payable by you to us for the
Services will be in accordance with the relevant scale of charges and rates
published from time to time by us on our website and will be due and payable
within thirty (30) days of receipt of our invoice. The price of the Services we
provide you will remain fixed for the period covered by the payment; that is,
monthly, quarterly, annually and two yearly. After that time you will be billed
at the signup rate until the Service is upgraded, downgraded or terminated.
10.2 If you exceed our three (3) day credit
terms, you will be charged a $25.00 late payment fee. After five days without
payment, your account will be suspended until the full amount is received.
10.3 Prices published on our web site are
inclusive of any government taxes or charges unless otherwise noted.
10.4 The provision of services is contingent
upon our having received payment in full from you in respect of the Services we
provide. 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, at our discretion, to suspend the provision of Services to you.
10.5 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 10% per annum, from the due date of the payment.
10.6 Upon registration of a credit card
account, you give us authorisation to debit your credit card for all charges.
If you are bill on a monthly basis the billing cycle begins from the date you
10.7 You consent to us obtaining a report
from a credit reporting agency on you credit worthiness if you choose to pay by
10.8 No refunds will be given (including
payment of yearly contracts) if the account has been terminated due to a breach
of these terms and conditions or our acceptable use policy or we exercise our
rights under clause 9.5.
11. Archiving and backup your
11.1 We will archive your data 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 data recovered from our backups.
12. The use of spam and virus
12.1 You agree that we can use spam and virus
filters and that this may require us to use third party equipment or services
to monitor and filter email traffic between our equipment and the Internet. You
agree that we will not be liable for any loss or damage resulting from the use
of spam or virus filters.
13. The need to change to a new
13.1 Unless otherwise agreed, the Service is
provided by us from our data centres in Australia and the United States of
America. We reserve the right to migrate your web site to a new operating
system platform if our operating system supplier ceases to provide appropriate
support or your particular server fails or becomes unreliable.
13.2 We will advise you of such a change but
we will 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.
14. Ownership of server
14.1 Unless otherwise agreed, you obtain no
rights to the hardware and other infrastructure and facilities used by us to
deliver the Service.
15.1 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.
16.1 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.
17. Changes to Terms
17.1 We may change the terms and conditions
of this agreement at any time. Details of our current terms will always be available
on our website.
18. Entire Agreement
18.1 These terms and conditions constitute
the entire agreement between RIPEFRUIT and you. It supersedes all prior agreements,
understandings and representations whether oral or written.
19. Governing Law
19.1 These terms and conditions are governed
by the laws in force in Victoria. Both parties agree to submit to the exclusive
jurisdiction of the Courts of that State.
20. Notifications &
20.1 All notifications under this agreement
will be by email to your nominated internet address. By entering into this
agreement you agree to receive other email communications of a marketing and
promotional nature unless you opt out of our mailing list. 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.