These conditions of sale apply to all transactions between Orion Graphics Pty Ltd trading as Orion Creative Solutions (Orion) and the Customer.
These conditions (which will only be waived or varied in writing signed by Orion) will prevail over all conditions of the transaction to the extent of any inconsistency.
Description of the project
Orion agrees to develop the Project according to the terms listed in the Quotation provided. The information contained in the Quotation is valid for 30 days from inception.
Additional editing and changes
Any requested changes to the Project after the Project has been quoted, shall constitute additional editing and incur additional charges or fees. Additional charges for editing and changes shall be billed at a range between $100 and $200 excluding goods and services tax (gst) per hour depending on the service required. All additional changes must be submitted and approved by both parties in writing by email or fax.
In the event of a client of Orion Creative cancelling a booked video / TV commercial / still photography shoot and/or editing session within forty-eight hours (Monday to Friday business days) of the time specified for it to take place, a cancellation charge equal to 50% of the invoice cost of the Project will be incurred, except where otherwise agreed by Orion and the company involved.
All prices are quoted in Australian dollars are exclusive of GST (goods and services tax) unless specified. All invoices are to be processed as per the schedule via EFT. Milestone payments may be requested within 3 working days of each milestone/schedule unless mutually agreed otherwise. Final payment must be made within 1 day of the site finalisation (before go-live of a website or print job).
Orion does not offer a refund for services completed. All cancellations must be received in writing and can be sent via email. Telephone requests for cancellations will not be accepted.
All communications/correspondences are done via email. It is the Customer’s responsibility to keep Orion updated with their relevant email addresses. Any payment relating to the domain name registration renewal or hosting or any 3rd party products or service purchased on behalf of the Customer will have to be in full and is non-refundable. In case of web hosting renewals, all cancellations must be notified to Orion 30 days before the renewal date.
If the Customer chooses a 3rd party hosting provider, Orion will build and test the website on one of our own servers or hosted domains. The Website will be transferred to a 3rd party server upon 100% of the total cost from the Customer.
Delivery of the project
While Orion endeavours to keep to delivery dates, all timelines are estimates only and the Customer will not be entitled to claim for any consequential loss or damages or to cancel, rescind or terminate the agreement in the event of a delayed delivery. If the delay extends beyond a reasonable period (to be agreed upon during the briefing process) Orion and the Customer can discuss possible compensation claims. Note that any Customer related delays (including but not limited to: delayed feedback, delayed provision of project critical files, delayed quote approval, requests for additional work beyond the original scope) will extend the initial delivery date of the service. Orion will advise when this is the case.
Any delay in the completion of the Project due to actions or negligence by the Customer, transportation delays, illness, or circumstances outside the control of Orion may alter the delivery date. Orion will make every effort to notify customer of any delays to the estimated delivery date as soon as possible.
Emailed PDF or JPEG proofs will be presented for the Customer’s approval at each stage of development. If revisions are required, a request must be made to Orion via email and will/may constitute additional costs in accordance with the clause above. This is dependent on degree of difficulty in changes and time it takes to complete.
Ownership of artwork and source files
- Upon payment of all fees and disbursements owing to Orion, all intellectual property rights (including copyright) which may arise in the course of the provision of the service(s) in a quoted agreement will be assigned by Orion to the Customer, subject to Clause 2.
- All rights (including copyright) in software (including source/native files or source object code), concepts, ideas, methodologies and other material developed by Orion prior to or otherwise independently of this quoted agreement will be retained by Orion, notwithstanding that this material may be used in the provision of the Services. Orion hereby grants the Customer a non-exclusive licence, in perpetuity, to use this material for the purposes envisaged in the requested quote. Copyrights handed over to the Customer do not include rights to re-use the code for another website or re-sell the programming code for any commercial or non-commercial purposes. In the case of business restructuring or ownership change, ownership of the website may be transferred from one owner to another. New owners are not allowed to re-sell or re-use for any commercial or non-commercial purpose other than what the original quote stated. Source files and source code may be released upon request at Orion’s discretion and may incur additional charges.
- Where any intellectual property rights (including copyright and trade marks) are licensed or assigned from any third party in the course of the provision of the services, the Customer will comply with the terms of any such licence or assignment, as notified to the Customer by Orion.
- The Customer warrants that any information, works or materials it provides Orion in connection with the provision of the services will not be defamatory or otherwise infringe copyright or other rights of any third party, and the Customer hereby indemnifies Orion against any loss, claim, damages or expense suffered by Orion as a result of any breach of this warranty. The Customer hereby grants Orion a licence to use such information, works or materials for the purpose of providing the Services they requested.
- Orion may reproduce and publish material (with the exception of confidential information) created in the course of the provision of the quoted Services, for the purpose of securing future engagements and general marketing for Orion.
- This granting of copyright does not extend to the use of design proposals, suggestions or concepts submitted but not approved by the client for the work outlined in this submission.
For the purposes of this clause, ‘Works’ shall include all work prepared for the Customer in accordance with the quoted Project.
For the avoidance of doubt, Orion shall retain all right, title and interest in all original artwork, whether in draft, mock-up, concept or final development for the Project. Specifically, but without limitation, Orion shall hold all right, title, and interest in and to:
- All text, graphics or digital source file components of the Project (the ‘Content’.);
- All layouts, logos, structures or arrangements or other components of any materials presented to the Customer that comprises the Project,
- All literal and non-literal expressions of ideas that operate, cause, create, direct, manipulate, access, or otherwise affect the Content, and
- All copyrights, patents, trade secrets, and other intellectual or industrial property rights in the Project or any component or characteristics thereof. The Customer shall not do anything that may infringe upon or in any way undermine Orion’s right, title, and interest in the Project, as described in this clause.
Notwithstanding the above, the Customer shall retain and, Orion shall have no proprietary rights whatsoever in all of the Customer’s intellectual property rights in any and all text, images or other components and/or materials owned by the Customer, or which the Customer has the legal right to use, that are delivered to Orion, including but not limited to software, related documentation, marketing material, logos, and tag lines (Customer’s Proprietary Material). Orion agrees that they shall not use the Customer’s Proprietary Material for any other purpose than those expressly set forth in this Agreement.
In the event the Customer fails to make any of the payments referenced in the Project by the set terms, Orion have the right, but are not obligated, to pursue any or all of the following remedies:
- Terminate the Agreement,
- Withhold all files, artwork, website code, source, commitments or any other service to be performed by Orion for the Customer,
- Bring legal action.
The Customer is responsible for all material costs as outlined in the quoted Project, and accepts responsibility for all additional material costs that Orion may incur in the development of this Project. These additional material costs shall be quoted and accepted prior to production.
The Customer and Orion acknowledge and agree that the specifications and all other documents and information related to the development of the Project, excluding however, Customer’s Proprietary Material, (the Confidential Information) will constitute valuable trade secrets of Orion. The Customer shall keep the Confidential Information in confidence and shall not, at any time during or after the term of this Agreement, without Orion’s prior written consent, disclose or otherwise make available to anyone, either directly or indirectly, all or any part of the Confidential Information.
- The Contractor is engaged by the Customer as an independent contractor and nothing in this agreement constitutes the Contractor as an agent, employee, director or partner of the Company.
- The Contractor has no authority to incur, and will not incur, any obligation on behalf of the Customer except with the prior written approval of the Customer.
- Subject to the terms of this agreement, the parties acknowledge that the Contractor is solely responsible for controlling the manner in which the Contractor provides the Services.
- The Customer will not be entitled to withhold or pay any income or other taxes on behalf of Orion.
a. Entire agreement
This Agreement contains the entire Agreement between parties relating to the subject matter hereof and subsides any and all prior agreements or understandings, written or oral, between the parties related to the subject matter hereof. No modification of this Agreement shall be valid unless made in writing and signed by all of the parties hereto.
b. Governing law
This Agreement shall be governed by and constructed in accordance with the laws of the State of New South Wales.
c. Binding effect
This Agreement shall be binding upon and endure to the benefit of the Customer and Orion and their respective successors and assigns, provided that Orion shall not assign any of their obligations under this Agreements without the Customer’s prior written consent.
The waiver by either party of any breach or failure to enforce any of the Terms and Conditions of this Agreement at any time shall not in any way affect, limit, or waive such party’s right thereafter to enforce and compel strict compliance with every term and condition of this Agreement.
e. Good faith
Each party represents and warrants to the other that such party has acted in good faith, and agrees to continue to so act, in the negotiation, execution, delivery, performance, and any termination of this Agreement.
f. Right to remove a project
In the event the Customer fails to make any of the payments within the time prescribed in the terms, Orion have the right immediately cease all work on the Project until payment in full is paid, including the removal of any online/internet project that may be current or live on the internet.
The Customer warrants that everything it gives to Orion to include in the Project is legally owned or licensed to the Customer. The Customer agrees to indemnify and hold Orion harmless from any and all claims brought by any third-party relating to the Customer’s Proprietary Material provided by the Customer to Orion including any and all demands, liabilities, losses, reasonable associated costs and claims including attorney’s fees arising out of injury caused by the Customer’s Proprietary Material supplied to the Customer to Orion, copyright infringement, and defective products sold as a result of the Customer’s distribution of the Project.
h. Use of the project for promotional purposes
The Customer grants Orion the right to use the Project for promotional purposes and/or to cross-link it with other marketing venues developed by Orion, but excludes the right to use confidential material such as databases.
i. Right to style or to make derivative works
Subject to Clause 5 above, Orion have the exclusive rights in making any derivative similar works of the Project and similarities between the Customer’s Project and future projects constitutes Orion’s methods and style.
j. Legal fees
In the event that Orion employs a Solicitor or debit collector to enforce any of the terms of the Agreement, Orion shall be entitled to recover its legal fees or other fees incurred.
k. Trademarks, logos and other intellectual property issues
The Customer is responsible for any Copyright or Trademark issues related to the creation and use of Project files by the Customer, and indemnifies Orion for any claim made by any third party for breach of copyright in undertaking the Project. The Customer shall be solely responsible for any Trademark or Copyright searches pertaining to the Project unless otherwise contracted for in the Project. Orion will not knowingly copy other rightfully trademarked or copyrighted material.
The Customer represents and warrants that, on the date written on the Quote, that they are authorised to enter into this Agreement in its entirety and are authorised to duly bind their principals by agreeing to the quotation provided by Orion.
l: No right to sell
The Customer has no right to sell the Project, except upon the express written advanced approval of Orion.
- 1.2 In this document, ‘we’, ‘our’ and ‘us’ means Orion Graphics Pty Ltd trading as Orion Creative Solutions or any of its related companies.
- 1.3 This agreement outlines the terms and conditions that apply to your use of our services.
- 1.4 The Services we are to provide to you (herein referred to collectively as “Services”) and the initial 12 month period we are to provide them to you for, are identified in the quote we provide for the Service(s).
- 1.5 You will be sent an invoice(s) for the renewal of the Services for the same period (12 months) as the initial period unless this agreement is terminated by you or us in accordance with these terms and conditions. Once paid the Service(s) will continue.
- 1.7 If you register one or more .AU domain names, you must also accept our AU Registrant Agreement.
- 1.8 If you register one or more .NZ domain names, you must also accept our NZ Registrant Agreement.
2. Commencement of the agreement
- 2.1 This agreement commences on the date we accept your order for Services.
3. Service availability
- 3.1 In these terms and conditions ‘Service’ primarily refers to our provision of space and/or software on one of our Servers, domain name registration services, and a connection to and from the Internet for web-based services to the level specified in the package you select. ‘Services’ also refer to services provided by third parties which we resell to our customers.
- 3.2 We use due care and skill in providing the Services in accordance with this agreement. There may also be statutory guarantees, conditions or warranties imposed by consumer-protection laws that apply to Services we supply, and which cannot be excluded. However, given the nature of IT systems (including our Services’ reliance on systems and services that we do not control or own). We cannot promise that our Services will be continuous or fault-free.
- 3.3 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.
- 3.4 Our liability to you is governed by clause 8 of this agreement.
4. Registering a domain name
- 4.1 In respect of domain names, we advise you that we use an auDA accredited registrar, a .nz authorised registrar and a reseller for the registrar Enom Inc.
- 4.2 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 shoold take no action in respect of your requested domain name(s) until you have been notified that your requested domain name has been registered.
- 4.3 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 event.
- 4.4 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.
5. Renewal of domain name registration
- 5.1 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 are not obliged to renew your domain name where you have unpaid invoices or if you are in breach of any terms of this agreement.
- 5.2 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. Information on how to keep your contact details up to date can be found in the customer control panel on our website.
- 5.3 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.
6. Passwords and content
- 6.1 You will keep any passwords or log-in details used in connection with the Service secure and you are totally responsible for when and how your account with us is used and the actions of any people you give your password and log-in details to.
- 6.2 You are solely responsible for your data and any content you use or store in connection with your Service.
You must hold, and continue to hold, all intellectual property rights in your data and contents (including, without limitation, copyright and trade mark rights), or be licensed to do so. The terms under which you hold or license your data and content must permit us to carry out our obligations to you in providing the Service.
You grant us a licence to use and reproduce all your data and content in order to fulfil our obligations under this agreement.
- 6.3 You must ensure that you comply with our Acceptable Use Policy terms in clause 31 in relation to any data or content you use or store in connection with your Service.
- 6.4 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.
- 6.5 You are solely responsible for dealing with persons who access your data and you will not refer complaints or inquiries in relation to such access to us.
- 6.6 You agree that if, in our sole discretion, you are using the Services in a way which is not legitimate, is not in compliance with this agreement or any law that we may suspend, disable, limit or terminate the Services or deny you access to the Service without notice, including taking down any of your data or content.
7. Customer’s warranties, liabilities and undertakings
- 7.1 You indemnify us against, and must pay us for, any loss or damage we suffer relating to:
a) the provision of the Service to you; and
b) your use, or attempted use, of the Service.
You indemnify us against (and must pay us for) any costs, including legal costs, relating to your breach of this agreement.
However you are not liable to us for any loss to the extent it is caused by us (for example, through our breach of this agreement or our negligence).
- 7.2 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, web site or publicity material which we have produced.
- 7.3 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.
8. Our 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 the Services:
- (a) provided under this agreement will be uninterrupted or error free;
- (b) will meet your requirements, other than as expressly set out in this agreement;
- (c) 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 ours; or
- (d) will produce any particular results, data, sales or other return.
- 8.3 Subject to clause 8.4:
- (a) we exclude all liability for indirect, incidental, special and consequential loss or damage of any kind, loss or corruption of data, loss of use, 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;
- (b) the Services are provided on an ‘as is’ and ‘as available’ basis;
- (c) 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;
- (d) 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;
- (e) 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 the 12 months preceding the claim in respect of the Services which are the subject of any such claim. Any claim must be notified to us within one year of it arising.
- (f) In the event that this agreement constitutes a supply of goods or services to a consumer as defined in the Competition and Consumer Act 2010 (Cth) nothing contained in this agreement excludes, restricts or modifies any remedies or guarantees where to do so is unlawful. To the full extent permitted by law, where the benefit of any such remedy or guarantee is conferred upon you pursuant to the Competition and Consumer Act 2010 (Cth) our sole liability for breach of any such remedy or guarantee shall be limited to the remedies available under that Act.
- 8.4 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:
- (a) you breach this agreement and fail to rectify any remediable breach within 7 days of us notifying you to do so;
- (b) you become insolvent;
- (c) you are declared bankrupt; or
- (d) we are ordered to do so by a court or pursuant to an arbitration award.
- 9.2 In addition to any other rights we may have under this agreement, you agree that we may, without notice to you and without any liability to us, amend, alter or take down your data or content if we:
- (a) receive an order from a court or other competent body requiring us to do so;
- (b) are directed to do so by the Australian Communications and Media Authority, any other regulatory body or authority or industry association;
- (c) consider in our sole discretion that you are breaching this agreement including without limitation, by infringing third party intellectual property rights, or because your data or content is defamatory, illegal, obscene or breaches a person’s privacy.
- 9.3 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.
- 9.4 If your account has been suspended or terminated due to your breach, reactivation of your account will be 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.
- 9.5 You may terminate your account or any individual Service with us for any reason at any time by doing so through the customer control panel on our website. Unless you are terminating your account due to a breach of this agreement by us, refunds for monies paid in advance are provided as follows:
- (a) For domain names, in accordance with the Registrant Agreement.
- (b) For one-time Services such as digital certificates no refunds are available.
- (c) No refunds are available for Services with 30 days or less of time to run. For Services with more than 30 days of time to run the refund of unused credit will be a whole month pro-rata of the time to run less an early cancellation fee set by us and notified on our website.
- 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.
- 9.8 We are under no obligation to provide you with a copy of your data or content if we have suspended or terminated your access to the Service for your breach. If we provide you with a copy of your data or content in such circumstances, we are entitled to charge a fee for doing so. If we terminate your account or any Service in such circumstances we may also at our discretion destroy your data or content. If your data or content is destroyed it may not be recoverable.
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 14 days of receipt of our invoice, or on other terms separately agreed with us by you. The price of the Services we provide you will remain fixed for the period covered by the payment; that is, monthly, quarterly or annually. After that time you will be billed at the rates current on our website at the time the Service is renewed except for Domain Names which may be renewed at their original purchase price.
- 10.2 If you exceed our 14 day credit terms, we may charge you a late fee (the greater of $10 or other amount agreed with you).
- 10.3 Prices published on our web site are inclusive of any government taxes or charges unless otherwise noted.
- 10.4 We will only provide the Services to you where you have paid for the Services in full. 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 until we receive the required payment (including any late payment fees, interest, debt recovery charges and reactivation fees) in full.
- 10.5 If you fail to make payment in accordance with the terms of this agreement, you will become liable for any reasonable costs incurred by us in recovering the debt (including any legal fees, collection agency charges or any other reasonable costs) and interest on the outstanding amount, calculated at the daily rate of 10% per annum, from the due date of the payment.
- 10.6 If you elect to pay your fees on a yearly basis, and fail to make payment within 14 days of invoice, you will not be entitled to receive any (otherwise applicable) yearly fee discount where a yearly discount is offered.
- 10.7 Upon registration of a credit card account, you give us authorisation to debit your credit card for all charges. If you are billed on a monthly basis, the billing cycle begins from the date you register.
- 10.8 You consent to us obtaining a report from a credit reporting agency on your credit worthiness if you choose to pay by credit card.
- 10.9 If we receive notice of a chargeback, declined or reversed payment from a credit card company in connection with payments made by you for the Services, we reserve the right to suspend the provision of Services to you until we receive the required payment (including any bank charges we incur, late payment fees, interest, debt recovery charges and reactivation fees) in full.
- 10.10 Subject to clause 10.11, no refunds will be given for unused portions of payments in advance (including payment of yearly contracts) unless the account has been terminated due to our breach of these terms and conditions, we exercise our rights under clause 9.6, or you exercise your rights under clause 18.1.
- 10.11 In the event this agreement constitutes a supply of goods or services to a consumer as defined in the Competition and Consumer Act, and you cancel your Service because we have failed to meet one or more of the consumer guarantees under the Act, we will refund to you any unused portion of your Service fee and any other amount you have prepaid, as well as any Service fee where the Services provided did not meet the consumer guarantees.
11. Archiving and backup of your data
- 11.1 You are solely responsible for the back-up of your data (including email files). 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.
- 11.2 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.
12. The use of spam and virus filters
- 12.1 We can use spam and virus filters and, to the maximum extent permitted by law, this may require us to use third party equipment or services to monitor and filter email traffic between our equipment and the Internet. To the maximum extent permitted by law, 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 operating platform
- 13.1 Unless otherwise agreed, non-partner provided Services are provided by us from our data centres in Australia. We reserve the right to migrate your web site to a new Service platform if our 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 Service failure if you have failed to keep your contact details up-to-date or if you have not checked the operation of your Service post-migration and notified us of any required changes to the Service configuration.
14. Ownership of equipment
- 14.1 Unless otherwise agreed, you obtain no rights to the hardware and other infrastructure and facilities used by us to deliver the Services.
- 14.2 If we supply you with any equipment as part of our provision of the Services to you, unless the law otherwise requires, we do so on the following terms:
- (a) you acknowledge that we are only acting as a reseller of the equipment which was manufactured by a third party;
- (b) you will not resell, export or otherwise transfer the equipment;
- (c) we are not obliged to keep the equipment current, up-to-date, in good working order or to alter or modify the equipment in any way;
- (d) any malfunction or manufacturer’s defect in the equipment must be remedied by you directly with the manufacturer and we are not liable for any such malfunction or defect or any consequences arising from them.
15. Intellectual property
- 15.1 All right, title and interest in any technology, techniques, software or trade mark that is used in, or provided by us, as part of the Services is owned by us or will vest in us on creation, or is licensed to us. You may use the technologies, techniques, software and trade marks as permitted by this agreement. We otherwise reserve all rights in relation to them.
- 16.1 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 may be severed from this agreement and the remaining terms of this agreement continue in force.
- 17.1 You must not assign or otherwise transfer your rights or obligations under this agreement without our prior written consent, which we will not unreasonably withhold. Any request to assign or transfer must:
- (a) be in the form we require, and include details of the assignee or transferee; and
- (b) be accompanied by the transfer fee specified in the form.
- 17.2 We may assign or otherwise novate or transfer our rights and obligations under this agreement to:
- (a) a related body corporate, including without limitation as part of a change in how we provide the Services or as part of a partial or full restructuring of our business; and
- (b) another person as part of the sale, or restructuring, of all or part of our business, and you agree that, if we do this, we may transfer all necessary information (including, without limitation, personal information and credit card details) to the related body corporate or other person, and they may use that information, in order for them to be able to continue providing the Services to you. If you do not agree to the assignment, novation or transfer, you may terminate this agreement and we will refund any remaining unused credit on your account.
18. Changes to terms
19. Entire agreement
- These terms and conditions constitute the entire agreement between us and you. It supersedes all prior agreements, understandings and representations whether oral or written.
20. Governing law
- These terms and conditions are governed by the laws in force in the Australian Capital Territory. Both parties agree to submit to the non-exclusive jurisdiction of the Courts of that Territory.
21. Notifications and communications
- 21.1 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.
22. Security agreement
- 22.1 Orion Creative has a high-spec dedicated server, hosted within Equinix. Equinix data centres have over 120 CCTV cameras monitored by a 24/7 security staff, smart card and biometric access control in addition to standard security equipment and procedures to safeguard your valuable information. They are also equipped with UPS, power and cooling back-up systems, N+1 redundancy and operate under the same high standards that have produced Equinix’s global uptime record of >99.9999%.
Acceptable Usage Policy
The Acceptable Use Policy (“AUP”) is provided to give The Customer and users a clear understanding of what Orion Creative expects of them while using our hosting service. While Orion Creative is firmly committed to the principles of free speech, certain activities that may be damaging to the resources of both Orion Creative and the Internet and cannot be permitted under the guise of free speech. The resources of Orion Creative and the Internet are limited, and abuse of these resources by one user has a negative impact on the entire community.
If you are the operator of a hosting service with Orion Creative, it is a condition of the continuance of your hosting service that you agree with and agree to adhere to any and all conditions of this AUP.
WHO DOES THIS POLICY APPLY TO?
The AUP applies to all users of Orion Creative services who:
1. Access our services but do not have an account;
2. Pay a service fee to Orion Creative for a hosting service;
3. Pay a customer of Orion Creative’s to host content on a hosting service located on Orion Creative’s infrastructure.
WHAT SERVICES ARE COVERED BY THIS POLICY?
All hosting services provided by Orion Creative to The Customer. Failure to comply with this AUP will be considered a breach of the AUP and will be handled in accordance with the Orion Creative Terms of Service.
WHAT IS THE PURPOSE OF THIS AUP?
The enforcement of Orion Creative’s AUP is designed to:
1. Ensure reliable service to our customers;
2. Ensure security and privacy of our systems and network, as well as the networks and systems of others;
3. Comply with existing laws;
4. Maintain our reputation as a responsible service provider;
5. Encourage responsible use of the Internet and discourage activities which reduce the usability and value of Internet services;
6. Preserve the value of Internet resources as a conduit for free expression and exchange of information;
7. Preserve the privacy and security of individual users and companies.
HOW WILL WE ENFORCE THIS AUP?
Service Monitoring – we routinely monitor the activity of accounts for the purposes of measuring system resource utilisation, the preparation of billing records, and to maintain the security of files being transferred to and from our services. This monitoring may result in us further investigating a hosting service and we will respond appropriately if we become aware of inappropriate use of the service.
Reporting Violations of this AUP – Orion Creative requests that anyone who believes that there is a violation of this AUP direct the information to the Abuse Department at email@example.com
When submitting your request, please provide the following information:
1. The IP address used to commit the alleged violation.
2. The date and time of the alleged violation, including the AEST time zone.
3. Evidence of the alleged violation.
E-mail with full header information provides all of the above, as do system log files. Other situations will require different methods of providing the above information. Orion Creative may take any one or more of the following actions in response to complaints:
1. Issue written or verbal warnings
2. Suspend the Member’s account
3. Terminate the Member’s account
4. Charge the Member for administrative costs and/or reactivation charges
5. Bring legal action to enjoin violations and/or to collect damages, if any, cause by violations
WHAT CONSTITUTES UNACCEPTABLE USE?
Prohibited or Restricted Content – You may not use a Orion Creative hosting service to:
Publish content that is deemed to be unlawful, indecent or objectionable. This includes without limitation narrative descriptions, graphics (including photographs, illustrations, images, drawings,logos), executable programs, video recordings, and audio recordings. All pornographic content and sex-related merchandising is prohibited on all Orion Creative services. This includes sites that may infer sexual content or links to adult content elsewhere. Orion Creative will be the sole arbiter in determining violations of this provision.
Publish content that promotes or links to sites that promote any illegal activity or activity that may be damaging to Orion Creative services or any other service on the Internet. Examples of unacceptable content or links without limitation are:
1. Pirated software;
2. Programs or archives that provide the functionality to gain unauthorised access to other systems or networks of any kind;
3. Warez sites;
4. Files or web pages that contain viruses, trojans, malware or other applications designed to access a user’s equipment or information with illegal intentions and/or without the knowledge of the user;
5. Content that promotes activities of a violent, destructive or terrorist nature
5.1 Publish or transmit content that results in, or could result in, damage to property or injury to any person or that infringes on any person’s rights or constitutes harassment or a misuse of any person’s confidential information.
5.2 Collect, or attempt to collect, personal information about third parties without their knowledge or consent.
5.3 Publish content that enables a minor to access material inappropriate for a minor or to establish or try to establish contact with a minor not otherwise known to you.
5.4 Publish or transmit any material (by e-mail, uploading, posting or otherwise) that infringes any copyright, trademark, patent, trade secret or other proprietary rights of any third party, including, but not limited to, the unauthorised copying of copyrighted material, the digitisation and distribution of photographs from magazines, books, or other copyrighted sources, and the unauthorised transmittal of copyrighted software.
5.5 Store or publish content or applications that affect the ability of other people or systems to use Orion Creative services or the internet. This includes “denial of service” (DOS) attacks against other network hosts or individual users.
5.6 Gain unauthorised access to and/or use of another company and/or individual’s computer system or network.
5.7 Engage in any misleading or deceptive business or marketing practice or that involves providing or promoting illegal pyramid selling schemes or unlawful gambling or gaming activities.
5.8 Unsolicited Email Advertising (SPAM) – Orion Creative strictly prohibits the use of its services for the purpose of sending of unsolicited, unwanted or inappropriate messages via email. This includes the sending of email to mailing lists that contain email addresses obtained without the knowledge or consent of the recipient as well as email addresses that have been requested to be removed from any lists by the recipient.
5.9 Shared Hosting Space – Shared hosting services are designed to be used for hosting websites. The use of a shared hosting service for online storage, backups or archival of electronic files including documents, log files, binary files or any files otherwise is strictly prohibited.
REVISIONS TO THIS AUP
Orion Creative reserves the right to revise, amend,or modify this AUP without prior notification. Notice of any revision, amendment, or modification will be posted in accordance with our TOS (Terms of Service). Your continued use of the service following notice of such modifications shall be deemed to be your acceptance of any such modification.
This AUP shall be governed by and construed in accordance with the laws of the State of NSW, Australia without regard to its conflicts of law provisions. Any cause of action you may have with respect to the Service must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred.
In the event that any portion of this AUP is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties and the remainder of the provisions shall remain in full force and effect.
Orion Creative’s failure to insist upon or enforce strict adherence to any portion of this AUP shall not be construed as a waiver of any provision or right. Neither the course of conduct between parties nor trade practice shall act to modify any provision of this Agreement.