Hostcake hosting terms and conditions

Last updated: 27th January, 2017

Hostcake (operated by Tecnet Solutions) provides a variety of hosting services, including web hosting, mail hosting, database services and URL forwarding. Since these services use resources that are shared by many users, the benefits of using the service must be balanced with certain obligations and responsibilities to ensure that all users can have a productive experience.

Our Terms And Conditions of Service must be accepted during the account signup process – you may download a PDF copy of the Terms and Conditons HERE.

1. Hostcake General Terms & Conditions

The following terms and conditions apply to the provision of all Services. By utilising Hostcakes’ services you are deemed to have accepted these terms and conditions and are bound by them.

1.1 Service availability

1.1.1 We shall use reasonable endeavours to provide continuing availability of the Server and the Services but we shall not, in any event, be liable for Service interruptions or down time of the Server.

1.1.2 In no event will we be liable to you for loss of data, or the inability to retrieve data, resulting from or incidental to the use of a Service.

1.2 Indemnity

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, and in respect of all losses, costs, actions, proceedings, claims, damages, expenses (including legal costs and expenses), or liabilities, whatsoever suffered and howsoever incurred by us in consequence of your breach or non-observance of these terms.

1.3 Termination

1.3.1 We may terminate this agreement forthwith if you fail to pay any sums due to us as they fall due. We may suspend all services within an account prior to termination should any invoice in the account be outside of our trading terms.

1.3.2 We may terminate this agreement immediately if you breach any of these terms and conditions, or if you are a company you go into insolvent liquidation, or if you are a person you are declared bankrupt.

1.3.3 We may also terminate this agreement with immediate effect if you fail to comply with the End User Agreement (EUA) of a third-party supplier (Supplier) of Software or a Hosted Application.

1.3.4 On termination of this agreement (in relation to Website hosting) we shall be entitled immediately to block your Web Site and to remove all data located on it. We will hold such data for a period of 14 days and allow you to collect it, at your expense ($150/hr inc GST), failing which we shall be entitled to delete all such data. We shall further be entitled to post such notice in respect of the non-availability of your Web Site as we think fit.

1.3.5 On termination of this agreement we shall also be entitled to immediately cease any of our other Services to you (apart from Web Site hosting) without holding any backup data for retrieval by you.

1.3.6 Without limiting the section below on our Exclusion and limitation of liability, Hostcake will not be liable to you for any cost, expense, damage or loss whatsoever for terminating this agreement.

1.3.7 If the Supplier seeks to terminate your use of a Software or a Hosted Application for reasons other than your non-compliance with an EUA or these terms and conditions, Hostcake will use reasonable endeavours to honour the remaining period of any then current and existing right hereunder for you to use that Service but Hostcake will not otherwise be obligated to continue the Service if this is not possible or viable due to events beyond the reasonable control of Hostcake.

1.3.8 Hostcake shall not be liable for any delay or failure to perform its obligations pursuant to this agreement if such delay or failure is due to termination of access to the Hosted Application or to Software by the Supplier or a change by the Supplier to the conditions of supply thereof.

1.3.9 If you wish to terminate your account with Hostcake, you must do so by submitting a request for cancellation, otherwise your account will be automatically renewed for the same subscription period and you will be liable for, and immediately invoiced upon the commencement of, such additional subscription period. Specifically, Hostcake will not accept verbal instructions to terminate an account. To submit the cancellation please email support@hostcake.com.au OR submit your cancellation by mail to PO BOX 161, Samford, QLD, 4520.

1.3.10 With the exception of items defined within clause 12, 30 Day Money Back Guarantee, Hostcake does not offer refunds or credits for new purchases in the event of termination or cancellation of these services.

1.3.11 In the event of customer requested cancellation of a renewed service, Hostcake will complete the cancellation request to your service at the first available opportunity, however we acknowledge the date of lodgement of the cancellation request (where we have provided acknowledgement of receipt) as the date of cancellation. Services are required to be cancelled prior to renewal, for cancellations submitted after the scheduled date of renewal there are no credits and no refunds.

1.3.12 30 Day Money Back Guarantee
The below products are eligible to participate in the 30 day money back guarantee program. Any product or service that is not explicitly included in this Clause is exempt from this Clause. All requests for the Guarantee, including the exemptions listed and other relevant conditions, will be considered and granted at the sole discretion of Hostcake.

Products and Services included in the Guarantee are:
Business Starter, Business Economy, Business Standard, Business Premium. All other products and services are explicitly excluded from the Guarantee.

In order to claim a refund:

1.3.12.a) A submission is required to be made within 30 days from the date that the service was provisioned as defined by the invoice creation date.

1.3.12.b) The sole method of requesting the Guarantee is by emailing us at; support@hostcake.com.au. Upon receipt of the email, you will be provided an acknowledgment. Should this not be issued or received, the matter is treated as Hostcake having not received the request.

1.3.12.c) Upon receipt the client will be vetted for eligibility, clients found to be ineligible will be notified and sent the standard cancellation process.

1.3.12.d) Should a client be deemed eligible, the client agrees to provide us 10 working days to resolve any issue. Should at the end of the 10 days after consultation between both parties, the client remain unsatisfied with the outcome(s), Hostcake will provide a full refund on the purchase price.

1.3.12.e) Hostcake will only provide refunds to either the credit card used in the original transaction or by way of direct deposit to a nominated bank account. Under no circumstances will cheques be issued.

Ineligibility – 30 Day Money Back Guarantee

1.3.12.f) Hostcake will deem ineligible any request for the Guarantee, that we reasonably believe to be fraudulent; or

1.3.12.g) The customer does not respond to our communication after we contact them; or

1.3.12.h) The service on the claim has been used illegally or outside the terms of service (spam, trojan, resource abuse resulting in a suspension, or any other way we deem to be inappropriate, including a website being compromised due to a vulnerability of an application installed by the user); or

1.3.12.i) If the service has been discounted by greater than 20% from the normal published web prices.

1.3.12.j) If the service has been upgraded from a previous service within the past 3 months, irrespective of whether a pro-rata credit was applied or not.

Should the service purchased be part of a product and/or service bundle, that includes components that are ineligible for the Guarantee, only the eligible components in the bundle will be considered for refund as part of the Guarantee.

1.4 Payment

1.4.1 All charges payable by you to us for the Services shall be in accordance with the relevant scale of charges and rates published from time to time by us on our Web site and explicitly on the invoice shall be due and payable within thirty (30) days of receipt of our invoice for yearly subscription services therefore. Monthly subscription services require payment within 7 days of invoice issue.

1.4.2 The provision by us of the Services is contingent upon our having received payment in full from you in respect of the relevant Services. 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, forthwith and at our sole discretion, to suspend the provision of Services to you.

1.4.3 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 12% per annum, from the due date of the payment.

1.4.4 Upon provision of a credit card account, you give us authorisation to automatically debit your credit card for all charges on issuance of a valid invoice.

1.5 Exclusion and limitation of liability

1.5.1 TO THE FULL EXTENT PERMITTED BY LAW WE HEREBY EXCLUDE ALL CONDITIONS AND WARRANTIES NOT EXPRESSLY SET OUT HEREIN. EXCEPT AS SPECIFICALLY SET FORTH IN ELSEWHERE IN THIS AGREEMENT, WE MAKE OR GIVE NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS 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.

1.5.2 Our total aggregate liability to you for any claim in contract, tort, negligence, equity or otherwise arising out of or in connection with the provision of the Services shall 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.

1.5.3 In no event shall 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, even if advised us to the possibility thereof. Nor will we be liable in any event for any damages including, without limitation, indirect, special, incidental, consequential or exemplary damages, arising out of or in connection to this agreement or the Services.

1.5.4 In no event will we be liable to you for loss of data, or the inability to retrieve data, resulting from or incidental to the use of a Service.

1.6 Important note:

1.6.1 If any goods or services supplied pursuant to this agreement are supplied to the customer as a ‘consumer’ of goods or services within the meaning of that term in the Australian Consumer Law as amended or relevant state legislation (“the Acts”), the consumer will have the benefit of certain non-excludable rights and remedies in respect of the products or services and nothing in these terms and conditions excludes or restricts or modifies any condition, warranty, right or remedy which pursuant to the Competition and Consumer Act or similar legislation is so conferred. However, if the goods or services are not ordinarily acquired for personal, domestic or household use or consumption, pursuant to section 64A of the Australian Consumer Law and similar provisions of relevant state legislation Hostcake limits its liability (including any consequential losses sustained by you) to payment of an amount equal to:

1.6.1.a) in relation to goods

1.6.1.a.i) the replacement of the goods or the supply of equivalent goods or payment of the cost of replacing the goods or acquiring equivalent goods; or

1.6.1.a.ii) the repair of the goods or payment of the cost of having the goods repaired;

1.6.1.b) in relation to services

1.6.1.b.i) the supplying of the services again; or

1.6.1.b.ii) The payment of the cost of having the services supplied again as in each case we may elect.

1.6.2 Except as otherwise specified herein, Hostcake is not liable for default or failure in performance of its obligations pursuant to these terms and conditions resulting directly or indirectly from acts of God, civil or military authority, acts of public enemy, war, accidents, fires, explosions, earthquakes, floods, the elements, strikes, labour disputes, shortage of suitable parts, components, materials, labour or transportation or any other cause beyond the reasonable control of Hostcake.

1.7 Notices

Except where expressly provided otherwise, any notice to be given by either party to the other may be sent by either email, fax, post or courier to the address of the other party as appearing in this agreement or ancillary application forms or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent or if sent by fax shall be deemed to be served on receipt of an error free transmission report, or if sent by post or courier shall be deemed to be served two days following the date of posting.

1.8 Severability

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.

1.9 Assignment

The benefit of this agreement may be assigned by us, but not our obligations to you – to do that, you agree that we may give notice to you in writing, and your failure to respond will be deemed acceptance. 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.

1.10 Change to terms on renewal

We may change the terms and conditions of this Agreement at any time. Details of our current terms are available on our website. Any renewal of a Service will be in accordance with the terms and conditions in place as at that time.

1.11 Entire agreement, governing law

1.11.1 These terms and conditions plus the Hostcake terms and conditions of supply (if any) for each specific type of service supplied by Hostcake constitute the entire agreement between Hostcake and you (“the Contract”), and supersede all prior agreements, understandings and representations whether oral or written. No oral explanation or oral information given by any party shall alter the interpretation of these terms and conditions. Except as provided above, no variation may be made to the Contract unless it is in writing and signed by authorised representatives of you and Hostcake.

1.11.2 The Contract is to be interpreted in accordance with the laws of the State of Queensland. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of that State, the Federal Court of Australia (Brisbane Registry) and appeal courts therefrom in relation to any dispute arising hereunder.

1.12 Joint liability

If you (the customer) consist of more than one person then the liability of those persons in all respects under the Agreement shall be a joint liability of all of those persons and a liability of each of those persons severally.

1.13 Consent to communications

In addition to general Account, Billing and Service communications, Hostcake will, from time to time, issue email notifications relating to our services, including, but not limited to Newsletters, Announcements, Promotional and Seasonal offers, and Surveys. By entering into agreement with these terms and conditions, you agree to receive email communications by inferred consent until such time as you decide to opt-out of such communications. You may opt out of our mailing list at any by following the ‘unsubscribe’ instructions contained within the communications.

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.

2. Web Hosting/Email/Secure Webpage/Virus Protection

2.1We specifically exclude any warranty as to the accuracy or quality of information received by any person via the 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 data stored on the Server. You warrant to us that you will only use your assigned Web Site for lawful purposes. In particular, you further warrant and undertake to us that:

2.1.1 you will not, nor will you authorise or permit any other person to, use the Server in violation of any law or regulation;

2.1.2 you will not knowingly or recklessly post, link to or transmit any material:

2.1.2.a. that is unlawful, threatening, abusive, harmful, malicious, defamatory, violent or teaching violence, obscene, pornographic, profane or otherwise objectionable in any way; or

2.1.2.b. containing a virus or other hostile computer program; iii. that shall constitute or encourage a criminal offence, give rise to civil liability or that violates or infringes any trade mark, copyright, other intellectual property rights or similar rights of any person under the laws of any jurisdiction; and

2.1.3 You will conform to the standards made available by us from time to time and will not yourself, and will ensure that none of your end users, make excessive or wasteful use of the Server to our detriment or that of our other customers. Hostcake reserves the right to suspend your service at the time of service abuse prior notification, and to terminate post 3 events of suspension of the service as a result of ongoing lack of resolution of the issue associated.

2.2 You are responsible for sending mail in accordance with any relevant legislation, including but not limited to the Commonwealth Spam Act (2003) and for sending the same in a secure manner. We will take all reasonable steps to ensure accurate and prompt routing of messages but we will not accept any liability for non-receipt or mis-routing or any other failure of email. In the event of deliberate transmission of unsolicited commercial email (UCE), Hostcake reserves it right to terminate services without prior notification.

2.3 You warrant, undertake and agree that:

2.3.1 any transactions within your Web site which are contracts for the sale of goods or services will be between you as the merchant and your end-user customer and you agree that we may include an exclusion of our liability in respect of such purchases and transactions in such form as we deem appropriate;

2.3.2 the information contained within your Web site will comply with all applicable law, and codes of practice governing the use of Web sites and related services, including, without limitation, those laws and/or codes of practice governing distance selling and data protection from time to time in force;

2.3.3 you will keep secure any identification, password and other confidential information relating to your account and you will notify us immediately of any known or suspected unauthorised use of your account, or any known or suspected breach of security, including loss, theft or unauthorised disclosure of your password information. Notwithstanding such notification you will be liable for any and all uses of your account (and Web site) notwithstanding any fraudulent or improper use of your password or any other access to any of the facilities we offer which is not unauthorised use or access by us.

2.4 Whilst we shall use reasonable endeavours to ensure the integrity and security of the Server, we do not guarantee that the Server will be free from unauthorised users or hackers.

2.5 We do not warrant whatsoever that our virus protection services will stop every virus from reaching your computer network. We make no warranty that the service will be error free or free from interruption of failure, and the company expressly disclaims any express or implied warranty regarding system and/or service availability, accessibility, or performance.

2.6 The hosting service plans disk space pertains only to files required for the normal operation of your website, and which are linked to in that website. Our website hosting plans are expressly prohibited from use as an online file repository.

Furthermore, you warrant to Hostcake that any content published to your file space either directly, or user uploaded via your website, that you hold all rights to publish and distribute such material and that specifically you do not violate the rights of any third party. Any site hosting material such as music, video or pictures that does violate the rights of any third party, may be suspended or terminated at the sole discretion of Hostcake.

Any site that uses greater than 100,000 inodes (every file on your hosting account uses 1 inode), or that create file system damage by the rapid creation of large volumes of files, will be subject to review and possible suspension.

2.7 For hosting service plans which specify UNLIMITED data transfer, should your site exceed burst (or ongoing) data transit of greater than 5Mb/sec, or otherwise degrade the network performance for other users, the account will be subject to review and possible suspension.

2.8 For any service plan which specifies UNLIMITED email accounts, should the mail boxes associated with your account exceed more than 1,000,000 aggregate messages, the account will be subject to review and possible suspension.

2.9 All hosting plans are subject to general resource and usage monitoring. The following usage items are expressly prohibited:

2.9.1 Any action or process that unreasonably consumes resources degrading the shared environment for other users is subject to review. This includes but is not limited to execution of scripts (PHP,ASP.NET,CGI/PERL, FTP, HTTP, database connections and the like).

2.9.2 Running standalone, automated server-side processes including, but not limited to any daemon.

2.9.3 Running any bit torrent application, tracker or client.

2.9.4 Participating in file sharing or other peer to peer sharing activity.

2.9.5 Executing any script for longer than 180 seconds.

2.9.6 Executing any database query that takes longer than 30 seconds to complete.

2.9.7 Specifying cron tasks that execute more frequently than every 300 seconds.