- Your Account with VMA
You are provided a unique account by VMA (“Account“) which allows you to purchase, manage, and control the Services through the Site. You represent and warrant to VMA that all information that you submit when your Account is created is accurate, current and complete, and that you will keep your Account information accurate, current and complete at all times. If we suspect that any information in your Account is untrue, false, or inaccurate, we may, at our sole and absolute discretion, suspend or terminate your Account and the Services therein. It is your responsibility to maintain and update your username and password which allow you to access the Services provided by VMA within your Account. Change your password frequently and use a strong password. VMA is not responsible for the activity that occurs in your Account, whether it is authorised by you or not. You must keep your Account information secure and notify VMA of any breach of security or unauthorised access to your Account. It is recommended that you utilise the additional security services provided by VMA to help maintain the security of your Account and Account information. VMA will not be liable for any damages whatsoever incurred by you in relation to unauthorised access to your Account or Account information.
- Your Obligations
You represent to VMA that: (i) You are at least 18 years of age and are legally capable of entering into this Agreement with VMA; (ii) You will not violate this Agreement and will comply with all local, state, national and international laws; (iii) You will not use the Site, your Account, or the Services for any unlawful purpose. (iv) You will not represent yourself as another person or entity, or submit information on behalf of another person or entity without their express prior written consent; (v) You will not provide false, inaccurate, or incomplete information in your application for the Services; (vi) You will maintain complete and accurate information with VMA at all times in relation to the Services; (vii) You will not violate 3rd party trade or service marks, copyrights, patents or other intellectual property rights; (viii) Your use of the Services does not result in excess use of VMA resources or overloading of VMA DNS, server or network resources; (ix) You will not use the Services as a source or destination of packet flooding, mail bombs, packet corruption, denial of service, or other illegal or abusive cyber activities; (x) You will not conduct server hacking or promote hacking, cracking or other cyber crimes or activities; (xi) You will not deploy software or scripts to run on VMA servers that cause overload of resources or threaten the stability of the network; (xii) You will not disseminate or transmit SPAM email in violation of VMA’s SPAM policy; (xiii) You will not disseminate illegal, hateful, harmful, violent, racially or ethnically intolerant, abusive, obscene, pornographic, defamatory, harassing, malicious, protected material or content that otherwise violates the intellectual property rights of others; VMA may suspend or terminate the Services at any time, at its sole discretion and without limitation, if it finds that you have violated any terms of this Agreement or other agreements with VMA. You agree that if we suspend or terminate the Services provided to you under this Agreement, that we may then, at our option, make either ourselves or a third party the beneficiary of Services which are substantially similar to those which were previously provided to you and that any reference in this Agreement to suspension or termination of the Services to you includes this option.
- 3rdParty Software and Services
You acknowledge that VMA provides Services under this Agreement that may be provided by 3rdparties or by software of 3rd parties unrelated to VMA (“3rd Party Services“). VMA is not responsible for the performance, completeness, correctness, or failure of 3rd Party Services. Additionally, you agree to abide by the terms and conditions required by the 3rd parties for the use of the 3rdParty Services.
All Services under this Agreement are provided on a pre-paid or advanced basis. As consideration for the Services, renewal of the Services, and, if you choose the option, automatic renewal of the Services, you agree to pay, prior to the provision or renewal of the desired Services, the applicable fees (“Fees“) as posted on the Site at the time (including any fees required by 3rd parties such as ICANN). Fees are non-refundable, in whole or in part, once the services have been provisioned unless this Agreement or another Agreement with VMA explicitly provides for a refund, even if your Services are suspended, terminated, or transferred prior to the end of the Services term. You acknowledge that in no case whatsoever, is VMA required to refund you for Services provided in whole or in part under the following circumstances, including, but not limited to: (i) Termination of this Agreement due to the violation of any term in this Agreement; (ii) Termination of the Domain Registration Agreement due to any violation of the terms of that Agreement; (iii) Termination of any Trustee Service Agreement between you and VMA due to circumstances beyond the control of VMA, including but not limited to, technical or administrative problems with the respective registry or changes of laws, policies or procedures of the registry, United States, and/or jurisdiction(s) within which the respective registry operates; (iv) Termination of this or any other agreement in connection with the Services provided by VMA due to the violation of terms in any agreement; (v) Suspension, cancellation, or transfer of the Services, including those services provided under the Domain Registration Agreement, prior to the end of your then current registration term; (vi) Falsification of Account information; (vii) Falsification of payment information; (viii) Unauthorised use of 3rd party payment information; (ix) Infringement of any 3rd party’s intellection property rights or other legal rights; (x) Errors or omissions on your part; (xi) Failure to cancel auto-renewal of the Services within the terms provided for in this Agreement or any other agreement in connection with the Services provided by VMA;
- Payment Methods
VMA accepts multiple payment methods to pay for the Fees of the Services as a convenience to you including major credit cards, bank check, bank transfer, wire transfer, and Paypal. We reserve the right to restrict your use of any or all payment methods on your Account at our sole discretion. We may, at any time prior to or after the Services are provided, require additional documentation to verify your payment method, identity, and/or Account prior to the provisioning of the Services including, but not limited to, requesting copies of government-issued personal identification cards, letters of authority from your company, payment authorisation and verification forms, or any other information we deem appropriate to verify your payment method, identity, and/or Account. If we are unable to verify your payment method and/or Account to our satisfaction, we reserve the right to deny, cancel, or terminate the Services, your Account, and this Agreement. Payment of the Fees for the Services which are processed by our credit card payment processor will be identified on your credit card statement as “Visual Marketing Australia Pty Ltd” and will be processed in Australian dollars.
- Chargebacks and Disputes
If you have an issue with a charge or payment to VMA, you should contact us first for clarification of the charge before you contact your credit card company to request a dispute or reversal of the charge. In the event a chargeback is initiated by you and/or your credit card company (or a similar action is initiated by you or another payment provider accepted by VMA) in connection with your payment of Fees for any Services, you agree and acknowledge that we may immediately suspend access to any and all of your Accounts with VMA and its subsidiaries and affiliates and that all rights to, and interest in, and use of, any Services including domain name registration, website hosting, email services, including all data on our systems, shall be assumed by us. VMA may reinstate your rights and access to the Services at our sole discretion, subject to our receipt of the disputed Fees including a minimum fee of $40.00 for each disputed transaction. In addition, you agree to pay a reinstatement and administrative fee of $200.00 (US Dollars) if reinstatement of your Account and the Services is granted. We reserve the right to modify the terms and conditions of any Agreements at our sole discretion as a condition of reinstatement of your Services and Account with VMA.
- Renewal and Expiration of Services
You acknowledge that, even though VMA may provide an auto-renewal service for your convenience, it is your sole responsibility to keep your own records and to maintain your own reminders regarding when your Services are set to expire, including any services provided for under the Domain Name Registration Agreement or any other agreement with VMA, to ensure that your Renewal Fees are paid for the Services prior to the due date. As a convenience to you, and not as a binding agreement, we may notify you via the primary email address provided in your Account, or from the control panel in your Account, when Fees for renewal of the Services are due (“Renewal Fees“). Renewal Fees are provided for in the form of an invoice in your Account up to 60 days prior to the due date of the Renewal Fees. It is your responsibility to ensure that the Renewal Fees are paid in advance of the due date to prevent an interruption in Services or additional fees to restore the Services. With respect to domain name registration services, VMA will send at least two expiration notices to the primary email address of the Account holder and the Registrant email address on record prior to expiration beginning 60 days in advance of expiration. In addition, if the domain name expires, VMA will send a final expiration notice within five (5) days after expiration. Additionally, you acknowledge that payment of certain services, specifically, but not limited to, services provided for under the Domain Name Registration Agreement, exactly on the due date may also incur additional fees to restore the domain name, suspension, loss, cancellation, or deletion of the domain name. Renewal Fees collected due to your failure to cancel auto-renewal of the Services prior to the auto-renewal of your Services are non-refundable. Should Renewal Fees go unpaid and become overdue, your Services will expire and will be terminated. VMA is not responsible for the loss of data, suspension, or termination of Services as a result of your failure to pay the Renewal Fees by the due date. For certain country code top level domains (“ccTLDs“), the due date of your Renewal Fees may be up to 60 days prior to the expiration date of the underlying domain name registration. It is your responsibility to pay for your Renewal Fees in advance of the due date specified by VMA regardless of the domain name expiration date. Failure to pay your Renewal Fees prior to the due date may result in additional fees to restore the domain name, suspension, loss, cancellation, or deletion of the domain name according to the ccTLD registry’s respective policy. VMA is not liable for your failure to pay the Renewal Fees prior to the due date specified by VMA.
VMA provides an auto-renewal service to its customers in order to assist you in ensuring the Services remain uninterrupted. If you select auto-renewal of the Services, we will attempt to renew the Services up to 60 days prior to the due date, provided that we are able to charge one or more of the payment methods listed in your Account. You acknowledge that it is your responsibility to keep your payment methods current and up to date with available funds in order to process your auto-renewals. You acknowledge that VMA may use credit card updating services to keep your payment method up to date, and that we may, but are not required to, contact you to update this information as well in the event that an auto-renewal attempt is declined by the payment method issuer. VMA requires you to specify one payment method as the default payment method for auto-renewal of the Services (“Default Payment Method“). The system will attempt to charge the Default Payment Method for the auto-renewal up to 60 days prior to the due date or at least 4 days prior to the expiry date. If the charge fails, you may be notified by email of the failed attempt as a courtesy. VMA may, at its discretion, attempt to update the payment method on file with a credit card updating service or by using another payment method provided in your Account, or may attempt to contact you for an updated and valid payment method. You acknowledge that, even though VMA may provide an auto-renewal service to you for your convenience, it is your sole responsibility to keep your own records and to maintain your own reminders regarding when your Services are set to expire to ensure that your Renewal Fees are paid for your Services prior to the due date, including any services provided for under the Domain Name Registration Agreement or any other agreement with VMA. VMA is in no way liable or responsible for failure of the auto-renewal service to pay your Renewal Fees to renew the Services prior to the due date.
- Refunds, Account Credit, and Prepayments
In the event that the Services have been paid for and cannot be provided, VMA may either, at its sole and absolute discretion, (a) issue a refund to the original payment method used by you to purchase the Services, or (b) issue a credit on your Account to be used for the purchase of future services (“Account Credit“) on the Site. You may log in to your Account at any time to see a full transaction history of all refunds and Account Credits issued as well as the current Account Credit available to you in your Account. In the event a refund is issued and the payment provider associated with your original payment method limits the ability of VMA to issues a refund, including the passage of time or number of refunds allowed, then VMA, at its sole and absolute discretion, reserves the right to issue a refund in Australian dollar, or issue an Account Credit. VMA does not automatically use Account Credit for the payment of Renewal Fees. The auto-renewal feature will not work with Account Credit. If you would like to use your Account Credit to pay for Renewal Fees, you must log in to your Account and pay the Renewal Fees by selecting Account Credit as the payment method when manually processing your renewal payment. You may prefer to fund your account with a prepayment. You may do so by contacting our support staff. Prepayments are available to use in the same way as Account Credit. You acknowledge that if you have an outstanding account balance with VMA for 3 years and your account is dormant during this time, VMA may attempt to refund your balance and close your account. VMA reserves the right to charge a processing fee of up to $35.00 to close your account and process a refund as well as withhold and charge against your account balance the lesser of (a) a dormancy charge of up to $30.00, or (b) the total outstanding account balance.
- Account Suspension
VMA reserves the right to suspend, disable, or otherwise terminate your Account and the Services, or take any other measures deemed to be appropriate, at any time and without prior notice, to enforce this Agreement or to ensure the integrity and performance of the Services. VMA may terminate or suspend the Services at any time, at its sole discretion and without limitation, if it finds that you have violated any terms of this Agreement or other agreements with VMA. You agree that if we terminate or suspend the Services provided to you under this Agreement, that we may then, at our option, make either ourselves or a third party the beneficiary of Services which are substantially similar to those which were previously provided to you and that any reference in this Agreement to termination or suspension of the Services to you includes this option.
- Term and Termination
This Agreement shall commence on the first day that your Account is created and shall remain in force continuously and uninterrupted so long as your Account is active. You may terminate this Agreement at any time without written notice. To terminate your Account, you must contact support and request account termination. Upon termination, VMA shall terminate access to your Account and any Account information provided in connection with the Services immediately. You acknowledge that VMA is required to retain certain records and information from your Account according to local, state, country, and international laws and will archive the information only as it is legally required to do so for this limited purpose.
- Additional Rights
VMA expressly reserves the right to deny, cancel, terminate, suspend, lock, or modify any Account or Services provided under this Agreement or any other agreement with VMA for any reason, at its sole and absolute discretion, including, but not limited to the following: (i) to correct mistakes made in the offering and sale of the Services; (ii) to protect the stability of the Services and VMA’s systems; (iii) to address fraud and abuse issues; (iv) to comply with local, state, national, international laws, rules and regulations; (v) to comply with requests of law enforcement; (vi) to comply with a dispute resolution process; or (vii) to avoid any civil or criminal liability.
You agree to release, defend, indemnify and hold harmless VMA, its parent companies, subsidiaries, affiliates, shareholders, agents, directors, officers, and employees from and against any and all claims, demands, liabilities, losses, damages or costs, including reasonable attorney’s fees, arising out of or related in any way to this Agreement, the Services provided hereunder by VMA, the Site or your account manager, your account with VMA, your use of the Services, and/or disputes arising in connection with the Services. If we are sued or threatened with legal action in connection with Services provided to you under this Agreement, you agree to release, defend, indemnify and hold harmless VMA and under such circumstances, you agree that you will, upon demand, obtain a performance bond with a reputable bonding company or, if you are unable to obtain a performance bond, that you will deposit money with us to pay for our reasonably anticipated expenses in relation to the matter. Such deposit will be held in trust with a licensed attorney and will be drawn down as expenses are incurred, with all account notices sent to the primary contact information provided in your Account. We shall not be obliged to extend you any credit in relation to such expenses and we may terminate the Services for a failure to deposit such funds. We will return any unused deposit upon the later of one year from deposit or the legal conclusion of the matter.
- Warranty Disclaimer
VMA, ITS SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, AGENTS, DIRECTORS, OFFICERS, AND EMPLOYEES EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, THE SERVICES PROVIDED HEREUNDER, THE SITE OR ANY WEB SITES LINKED TO THE SITE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ALL SERVICES, AS WELL AS THE SITE, ARE PROVIDED “AS IS”. YOUR SUBSCRIPTION TO, AND USE OF, VMA’S SERVICES AND ITS SITE ARE ENTIRELY AT YOUR RISK. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY VMA, ITS SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, AGENTS, DIRECTORS, OFFICERS, AND EMPLOYEES CONSTITUTE LEGAL, FINANCIAL, OR TAX ADVICE AND YOU SHOULD NOT RELY ON ANY SUCH INFORMATION OR ADVICE AS SUCH. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, IN WHICH EVENT THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU.
- Limitations of Liability
YOU AGREE THAT VMA WILL NOT BE LIABLE FOR ANY (1) SUSPENSION OR LOSS OF THE SERVICES (2) USE OF THE SERVICES, (3) INTERRUPTION OF THE SERVICES OR INTERRUPTION OF YOUR BUSINESS, (4) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO OUR SITE OR SERVICES OR DELAYS OR ACCESS INTERRUPTIONS YOU EXPERIENCE IN RELATION TO THE SERVICES; (5) LOSS OR LIABILITY RESULTING FROM ACTS OF OR EVENTS BEYOND OUR CONTROL (6) DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION; (7) OR LOSS OR LIABILITY RESULTING FROM THE UNAUTHORIZED USE OR MISUSE OF YOUR ACCOUNT IDENTIFIER OR PASSWORD. YOU ALSO AGREE THAT VMA WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL OUR MAXIMUM AGGREGATE LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE USE OF THE SERVICES, BUT IN NO EVENT GREATER THAN THE AMOUNT FOR THE PRIOR 3 MONTHS OF SERVICES PAID FOR UNDER THIS AGREEMENT. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. IN ADDITION, ANY CLAIM OR CAUSE OF ACTION ARISING OR RELATED TO THIS SITE OR THE SERVICES MUST BE BROUGHT FORTH WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE AROSE OR FOREVER BE BARRED.
You may not assign any of your rights or privileges, or delegate any of your duties or obligations hereunder, in whole or in part, by operational of law or otherwise, to any third party without the prior written consent of VMA. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. VMA reserves the right, in its sole and absolute discretion, to change or modify this Agreement, and any policies or agreements which are incorporated herein, at any time and without notice. Any such changes or modification shall be effective immediately upon posting to the Site. If you do not agree to be bound by this Agreement as last revised as indicated by the “Last Revised” date located at the bottom of this Agreement, do not use or continue to use the Services. VMA may occasionally notify you of changes or modifications to this Agreement or the Services by email so it is very important that you keep your account information current and up to date. VMA is not responsible and assumes no liability for your failure to receive an email notification if such failure results from inaccurate or out-dated account information. This Agreement constitutes the entire agreement between the parties concerning the subject matter herein and supersedes all prior understandings and agreements between the parties, whether written or oral, regarding the subject matter herein. Any of the provisions of this Agreement which are determined to be invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability in such jurisdiction, without rendering invalid or unenforceable the remaining provisions hereof or affecting the validity or unenforceability of any of the terms of this Agreement in any other jurisdiction. A waiver by either party of a breach or violation of any provision of this Agreement will not constitute or be construed as a waiver of any subsequent breach or violation of that provision or as a waiver of any breach or violation of any other provision of this Agreement. The headings contained in this Agreement are for convenience only and shall not affect meaning or interpretation of this Agreement.
- Contact Information
If you have any questions or concerns about anything found in this Agreement or other agreements with VMA, please contact us by regular mail, courier, or email to the following address: Legal: Visual Marketing Australia Pty Ltd PO Box 564 Sanctuary Cove QLD 4212 1300 158 708 enquiries (at) visualmarketing.com.au Domain Support/Customer Service: Visual Marketing Australia Pty Ltd PO Box 564 Sanctuary Cove QLD 4212 1300 158 708 support (at) visualmarketing.com.au Corporate: John Bond – Managing Director Visual Marketing Australia Pty Ltd PO Box 564 Sanctuary Cove QLD 4212 1300 158 708
- Governing Law
This Agreement and its subject matter shall be governed in accordance with the laws of Queensland, Australia without regard to conflict of laws and principles contained therein with the exception of disputes related to the Domain Name Registration Agreement which fall under UDRP,URS, or similar dispute resolution process as defined by various Registry policies incorporated or made reference to herein. THE FOLLOWING REGISTRARS ARE REFERENCED IN THIS DOCUMENT: Visual Marketing Australia Pty Ltd © All Rights Reserved. Last Revised: February 19th 2015