Terms of Service

Terms of Service

Definitions

The following words have these meanings in this document:

“Hilenium”, “We”, “Us” means Hilenium Pty Ltd (ABN: 12 167 340 981) of Queensland, Australia.

“You”, “Customer” or “User” means the person, persons or entity who ordered our Services or any person who accesses the Services using the access details provided to the person who ordered the Services .

“Service”, “Service(s)” or “Services” means any product(s) or service(s) the Customer ordered including, but not limited to, provisioning space on one of our servers, website hosting, email and FTP services, domain name registration or transfer or renewal, SSL certificates, VPS or custom built servers.

“Website” means https://hilenium.com.

“Console” means our online portal to manage all Services at https://console.hilenium.com.

General

Your agreement with Hilenium in respect of each Service you obtain from Hilenium consists of:

• these Terms of Service;
• the relevant Service Terms for the Service;
• any relevant Service Level Agreements;
• our Acceptable Use Policy; and
• our Privacy Policy.

To the extent of any inconsistency between the documents comprising your Contract, the documents listed higher in the list will prevail, unless a term of Service Terms expressly states that it overrides any conflicting term in this document.

Please read these Terms of Service carefully before using the Services. If You do not agree to these terms, you must not use the Services and You should exit the Website and Console and stop use of the Services immediately.

We reserve the right, at any time and from time to time, to amend or to modify these Agreements without prior notice to You, provided that if any such alterations constitute a material change to these Terms of Service, Hilenium will notify the User via the email address listed in the Console. Amendments and modifications shall take effect immediately when posted on the Website. By continuing to access or use the Services after any such amendments or modifications, You agree to be bound by such amended or modified Terms of Service. For this reason, we encourage You to review the Terms of Service whenever You use the Services. If You do not agree to any change to these Terms of Services, then You must immediately stop using the Services.

Severability

If any provision of this Agreement is prohibited by law or held to be unenforceable, that provision will be severed and the remaining provisions hereof shall not be affected such that this Agreement shall continue in full force and effect as if such unenforceable provision had never constituted a part hereof.

Eligibility

By registering for or using the Services, you represent and warrant that:

• You are eighteen (18) years of age or older. The Services are intended solely for Users who are eighteen (18) years of age or older. Any registration, use of or access to the Services, by anyone under eighteen (18) is unauthorised and is a violation of this Agreement.
• If you use the Services on behalf of another party you agree that you are authorised to bind such other party to this Agreement and to act on such other party’s behalf with respect to any actions you take in connection with the Services.
• It is your responsibility to provide accurate, current, and complete information on the registration forms, including an email address that is different from the domain you are signing up under.

Account Owner

Services that are associated with an account, are controlled by the Account Owner and modifications and updates to an account’s information can only be actioned by the Account Owner or their Authorised Additional Contact. The Account Owner is established at the time the account is created. The details of an Account Owner must be that of a real person. Additionally, Hilenium uses security credentials to identify and verify customers. Anyone with your security credentials has full access and authority to perform any action on your account.

Communication

The Account Owner is responsible for providing and maintaining a valid email address with Hilenium.

Failure by You to receive or read emails from Hilenium, including but not limited to system generated emails related to billing, account usage or account access, support, expiry, renewals, and announcements is no reason for not making payment on time or complying with this Agreement.

Resellers

We reserve the right to place Reseller client accounts on hold if Reseller cannot support their clients. All support requests must be made by the reseller on their clients’ behalf for security purposes. Resellers are also responsible for all content stored or transmitted under their reseller account and the actions of their clients. Hilenium will hold any reseller responsible for any of their client’s actions that violate the law or the Agreements.

Indemnification

You shall defend, indemnify, and hold harmless Hilenium, our affiliates, parents, subsidiaries, any related companies, licensors and partners, and each of our and their respective employees, officers, directors, agents, contractors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable legal fees, that arise from or relate to Your (or any third party using Your Account or identity in the Services) use or misuse of, or access to, the Services, Content, or otherwise from Your User Content, violation of these Terms of Service or of any law, or infringement of any intellectual property or other right of any person or entity. The indemnity does not apply to the extent that we cause or contribute to our own loss or damage. We reserve the right to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defences. This clause survives the termination or expiry of this Agreement.

Limitation of Liability

IN NO EVENT SHALL WE, NOR OUR DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES

• FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING),
• FOR ANY NON-RENEWAL OF THE SERVICES
• FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION),
• IN CONNECTION WITH OUR ANTI-SPAM OR VIRUS FILTERS, OR
• FOR ANY DIRECT DAMAGES IN EXCESS (IN THE AGGREGATE) OF FEES PAID TO HILENIUM FOR THE PARTICULAR SERVICES DURING THE IMMEDIATELY PREVIOUS ONE MONTH PERIOD, EVEN IF HILENIUM HAD BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF.

YOU ACKNOWLEDGE THAT THE FEES PAID BY YOU REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT HILENIUM WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS. YOU HEREBY WAIVE ANY AND ALL CLAIMS AGAINST HILENIUM ARISING OUT OF YOUR PURCHASE OR USE OF THE SERVICES, OR ANY CONDUCT OF OUR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR REPRESENTATIVES. YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE SERVICES OR ANY OTHER GRIEVANCE SHALL BE:

• IN THE CASE OF A CONSUMER ABLE TO RELY UPON THE AUSTRALIAN CONSUMER LAW OR;
• IN ALL OTHER CASES, YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO OR USE OF THE SERVICES.

Warranty Disclaimer

WE HAVE NO SPECIAL RELATIONSHIP WITH OR FIDUCIARY DUTY TO YOU. YOU ACKNOWLEDGE THAT WE HAVE NO DUTY TO TAKE ANY ACTION REGARDING:

1. THE MEANS BY WHICH YOU GAIN ACCESS TO THE SERVICES;
2. WHAT CONTENT YOU ACCESS VIA THE SERVICES; OR
3. HOW YOU MAY INTERPRET OR USE THE CONTENT.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU RELEASE HILENIUM FROM ALL LIABILITY FOR YOU HAVING ACQUIRED OR NOT ACQUIRED CONTENT THROUGH THE SERVICES. WE MAKE NO REPRESENTATIONS CONCERNING ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES, AND WE WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, OR LEGALITY OF MATERIAL OR CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES.

THE SERVICES AND CONTENT ARE PROVIDED “AS IS”, “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY LAW. WE, AND OUR DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT:

1. THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION;
2. ANY DEFECTS OR ERRORS WILL BE CORRECTED;
3. ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR
4. THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK.

IF ANY LEGISLATION, SUCH AS THE AUSTRALIAN CONSUMER LAW, IMPLIES IN THIS AGREEMENT OR OTHERWISE PRESCRIBES ANY CONDITION, GUARANTEE (INCLUDING CONSUMER GUARANTEES) OR WARRANTY WHICH CANNOT BE EXCLUDED OR MODIFIED, THEN THAT CONDITION, GUARANTEE OR WARRANTY IS DEEMED TO BE INCLUDED IN THIS AGREEMENT. HOWEVER, TO THE EXTENT PERMITTED BY LAW, OUR LIABILITY FOR BREACH OF SUCH STATUTORY CONDITION, GUARANTEE OR WARRANTY IS LIMITED AT OUR OPTION TO ANY ONE OR MORE OF THE FOLLOWING:

• IN THE CASE OF GOODS – THE REPAIR OF THE GOODS, THE REPLACEMENT OF THE GOODS OR THE SUPPLY OF EQUIVALENT GOODS OR TO THE PAYMENT OF THE COSTS OF REPAIR, REPLACEMENT OR SUPPLY OF EQUIVALENT GOODS; AND
• IN THE CASE OF ADVICE, RECOMMENDATIONS, INFORMATION OR SERVICES, BY SUPPLYING THE ADVICE, RECOMMENDATIONS, INFORMATION OR SERVICES AGAIN, OR BY PAYING THE COST OF SUPPLYING THE ADVICE, RECOMMENDATIONS, INFORMATION OR SERVICES.

Service Availability

We do not warrant that the Services will be uninterrupted, timely, secure, always accurate or error free, or that they will be free from hackers, virus, denial of service attack or other persons having unauthorised access to our services or those of our suppliers.

You agree that We may be required to perform maintenance in respect of our systems to ensure their satisfactory operation which may affect the availability or functioning of the Services. Hilenium will use reasonable endeavours to provide you with notice of any maintenance downtime, except when circumstances beyond our reasonable control prevent us from doing so.

Billing

All Services are considered to be automatically recurring and shall be billed on a recurring basis until the Customer requests cancellation of hosting prior to the next payment made or the next renewal date, whichever comes first, by submitting a valid cancellation request.

By the account activation date of each billing period, We shall either:

1. debit the User’s credit card (when it has been provided); or
2. deliver, by e-mail or regular mail, an invoice nominating payment methods for the fees associated with the Services.

If payment is not received within one week of the due date, the hosting account may be suspended and all hosting account functions (email, FTP, cPanel access etc.) made inoperable.

Termination

Any Service which has an open/unpaid invoice which still remains unpaid for more than 14 days after the due date may be subject to permanent termination of the Service without further notice to the Customer. Termination will result in the irreversible deletion of all data associated with the hosting account, including but not limited to all website files, all databases, all email, all website statistics, all logs, and all backups.

Refunds, Cancellations and Chargebacks

We do not refund partial period (e.g. monthly, annual, biannual, triannual) fees to accounts.

All Web Hosting and Reseller Web Hosting account cancellations must be submitted 30 days before the next billing cycle. Only the authorised account holder or authorised contact may cancel the account. Authorised contacts are appointed only by the account holder. In the event of cancellation, the User will automatically be billed for any excess usage during the then-current calendar month

Fees in connection with the purchase of SSL certificates, third-party licensing, domain privacy, or domain names are nonrefundable under these Terms.

Credit card or PayPal chargebacks will incur a fee of $100 to be reinstated. Services that incur chargebacks will be permanently deleted from our servers, and domain name ownership transferred to Us.

Account Termination

Hilenium reserves the right, in our sole discretion, to terminate or suspend your access to all or any part of the Services at any time, with or without notice, effective immediately, including but not limited to as a result of your violation of any of these Agreements or any law, if you suffer an Insolvency Event, we are required to do so by law, or if you misuse system resources, such as, by employing programs that consume excessive network capacity, CPU cycles, or disk IO. Any such termination or suspension may result in the forfeiture and destruction of information associated with your Account. We may provide prior notice of the intent to terminate or suspend Services to you if such notice will not, in our discretion, run counter to the intents and purposes of these Agreements.

Any fees paid hereunder are non-refundable and any fees owed to us before such termination or suspension shall be immediately due and payable, including any liabilities that may have been incurred prior to termination or suspension such as our costs for collection (including its legal fees) of any such charges or other liabilities. Upon termination, any and all rights granted to you by this Agreement will immediately be terminated, and you must promptly discontinue all use of the Services. Upon reactivation of your Account following a suspension, we may require you to pay us in full for all outstanding amounts and pay a reactivation fee at our discretion. If you wish to terminate your Account, you may do so by following the instructions on the Website or through the Services.

We are under no obligation to provide you with a copy of your Data or User Content if we terminate or suspend all or part of your Services. Nor are we under any obligation to refund you amounts automatically debited from your PayPal account after your Service has been terminated. It is your responsibility to terminate any PayPal subscriptions. If we are required to refund you any payments received, then we may charge you an administration fee for doing so by deducting that amount from the amount to be refunded to you. All provisions of these Agreements which by their nature should survive termination shall survive termination or suspension, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

We reserve the right at our sole discretion to cancel your service. If we choose to cancel your service you will receive a prorated refund for unused service and will be provided 30 days to move your service to an alternate provider.

All data and files relative to Your Service from terminated and cancelled accounts are immediately deleted and purged from our servers. This includes any and all backups. Please make sure to backup all Your files and data before canceling Your Service.

Offsite Backups

It is Your sole responsibility to maintain regular offsite backups of Your data. This may be done by using the cPanel Backups feature within the hosting account.

Hilenium keeps backups of active accounts for archive purposes only. Hilenium does not warrant that the backups will be current or usable for Customer data recovery.

You agree that at no time will Hilenium be held liable for incomplete, faulty backups, data stored on our servers, or out of date or corrupt data recovered from backups and archives.

If you required Us to restore a Service from a Hilenium backup, a fee will be incurred.

Domain Name Services

We are an authorised reseller of the domain name registrars “eNom” and “TPP Wholesale Pty Ltd” and “Synergy Wholesale Pty Ltd”. We do not warrant that any domain name you apply for, can or will be registered. Accordingly, you should not act on a domain name application until you have been notified that your requested domain name has been registered. Both your registration of a domain name, its ongoing use and renewal are subject to the relevant auDA Policy Rules and the terms of use of the applicable domain name registrar. You are responsible for reading and complying with those rules and terms of use.

We are not liable for and you irrevocably release us from all claims and loss you may have, suffer or incur in connection with a domain name you order and use through us. We have no responsibility to resolve a dispute between you and your domain name provider. We are not obliged to renew your domain name if you have not selected the domain name auto renewal option in our Website or you have not paid the renewal fee in advance using the method specified by us. We are not liabd or incurred by you for the non-renewal of your domain name. If this agreement is terminated, but you do not transfer your domain name registration to another registrar, you agree thle for any loss or damage suffereat we may still contact you in relation to the renewal of your registration. We will not however be liable for failing to do so.

Site Migrations, Transfers and Optimisations

Hilenium will make every effort to help you migrate and optimise your website to us. Migrations are provided as a courtesy service and for cPanel to cPanel transfers only. We do not make any guarantees regarding the availability, possibility, or time required to complete an account migration. Each hosting company is configured differently, and some hosting platforms save data in an incompatible or proprietary format, which may make it extremely difficult, if not impossible, to migrate some or all account data. In some cases we may not be able to assist you in a transfer of data from an old host. In no event shall Hilenium be held liable for any lost or missing data or files resulting from a transfer to or from Hilenium or any attempted optimisations we make to your site.

Intellectual Property

No assignment – Hilenium Material remains the property of Hilenium and nothing in this Agreement grants you any Intellectual Property Rights in Hilenium Material or other Intellectual Property Rights of Hilenium.

Licence of Customer Material – you grant to Hilenium a non-exclusive, irrevocable, global licence to exercise the Intellectual Property Rights in any Customer Material in connection with Hilenium providing Hosting Services to you.

No use of Hilenium marks – you must not, and must ensure that your officers, employees, agents and subcontractors do not, use the trademarks or logos of Hilenium except with the prior written consent of Hilenium except as expressly provided in this agreement.

We reserve the right to use your trademarks and logos on our website and in other marketing and promotion materials.

The licence granted under this clause includes the right to sublicense to third parties.

Jurisdiction

This Agreement shall be governed by and construed exclusively in accordance with the laws of the State of Queensland and the Commonwealth of Australia. You hereby submit to the jurisdiction of Queensland courts.

Dispute Resolution

You and Hilenium agree to the following dispute resolution procedure, in the event of any controversy, claim, action or dispute arising out of or related to:

1. the Website;
2. this Agreement;
3. the Services;
4. the breach, enforcement, interpretation, or validity of this Agreement; or
5. any other dispute between you and Hilenium (a “Dispute”)

The party asserting the Dispute shall first try in good faith to settle such Dispute by providing written notice to the other party (by first class or registered mail) describing the facts and circumstances (including any relevant documentation) of the Dispute and allowing the receiving party 30 days in which to respond to or settle the Dispute.

Notice shall be sent to us at 33 Murray Street, Bowen Hills QLD 4006, Australia or to you at your last-used billing address or the billing and/or shipping address recorded in the Console.

You and We agree that this dispute resolution procedure is a condition precedent that must be satisfied prior to initiating any legal proceedings against the other party.