terms of service
Making the connection
These Terms of Service (this "Agreement") and BlueFibre's Acceptable Use Policy ("AUP") govern your purchase and use of all services, as described in the order form(s) submitted by you and accepted by BlueFibre.
You must register and accept the terms of this agreement and the AUP in order to use the services (collectively, the "Services"). BlueFibre may modify any of the terms and conditions contained in this agreement and the AUP, at any time in its sole discretion. Any modifications are effective upon posting of the revisions on the BlueFibre web site (the "Site").
Your continued use of the services following BlueFibre's posting of any modifications constitutes your acceptance of the modifications. If you do not agree to the terms of any modification, do not continue to use the services and immediately notify BlueFibre of your termination of this agreement in the manner described in these terms of service.
Term and Payment for Services
Term
This Agreement will be for a "Term" of 1 month from the date the Services are first provided by BlueFibre. This Agreement will be automatically renewed (the "Renewal Term") at the end of the Initial Term or any Renewal Term for a period of thirty (30) days unless you provide BlueFibre with written notice of termination at least 14 days before the end of the Initial Term or Renewal Term, whichever is then applicable.
To provide your notice of termination, you must submit a support ticket via accounts@bluefibre.com.au to initiate the cancellation of your service.
Termination
This Agreement may be terminated by one of the following:
- You or BlueFibre during any Renewal Term, without cause, by giving the other party 30 days prior written notice
- By BlueFibre in the event of nonpayment by you
- By BlueFibre, at any time, without notice, if, in BlueFibre's sole judgment, you are in violation of any terms or conditions of the AUP
If you terminate this Agreement, or if BlueFibre terminates this Agreement for your breach, before the end of the Initial Term or the Renewal Term, whichever is then applicable, you will be required to pay immediately all fees and costs accrued before the termination date, all monthly recurring fees for each month remaining in the term and any other amounts you owe to BlueFibre under this Agreement.
Charges
You will pay all charges for your use of the Services at the then current BlueFibre prices. You are responsible for paying all taxes assessed with respect to the Services, other than taxes based on BlueFibre's net income.
Payment
You will pay all charges for the first month of service in arrears on the last day of the Initial Term. You will pay all subsequent charges for Services in arrears on the first day of each month according to the then current price for the Services. You must pay for the Services by credit card (preferred), direct deposit/bank transfer or BPAY.
If paying by credit card, you must:
- Authorise BlueFibre to charge your credit or debit card to pay for any charges that may apply to your account
- Notify BlueFibre of any changes to your card account (including, applicable account number or cancellation or expiration of the account), your billing address, or any information that may prohibit BlueFibre from charging your account
Your failure to fully pay any fees and taxes within 5 days from the applicable due date is a material breach of this Agreement, justifying BlueFibre to suspend its performance and terminate this Agreement until all outstanding fees and taxes are paid.
If BlueFibre terminates for your material breach, you will be required to pay immediately all fees and costs accrued before the termination date, all monthly recurring fees for each month remaining in the term and any other amounts you owe to BlueFibre under this Agreement plus a delinquency fee of $110.00 inc GST to cover account delinquency processing costs. You are responsible for any costs BlueFibre incurs in enforcing collection, including reasonable legal fees, court costs and collection agency fees. To reinstate Services, you must pay for 1 month of Service in advance on the first day such Services are reinstated and any fees associated with reinstating Services.
Refund and Disputes
All payments to BlueFibre are non refundable. This includes any applicable setup fees and subsequent charges regardless of usage. All overcharges or billing disputes must be reported within 60 days of the time the dispute occurred. If you dispute a charge to your credit card issuer that, in BlueFibre's sole discretion is a valid charge under the provisions of this Agreement and/or AUP, you agree to pay BlueFibre an "Investigation Fee" equal to $35.00 per hour.
Use of Services
Acceptable Use Policies
The AUP governs the general policies and procedures for use of the Services. The AUP is posted on the site at (or such other location as BlueFibre may specify) and may be updated from time to time.
BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THE AUP AND ANY MODIFICATIONS TO THE TERMS. BlueFibre MAY TERMINATE YOUR ACCOUNT WITHOUT NOTICE FOR ANY VIOLATION OF THE AUP OR THIS AGREEMENT.
Domain Names
Upon registering your domain name, you are bound by the terms of the registration service's then current domain name policy and the policies of the national DNS registration authorities. BlueFibre will not refund any fees you paid with respect to the registration of a domain name you are unable to use.
All new web hosting accounts involving new domains will be set up and automatically entered into our DNS servers. New web hosting accounts which involve the transfer of a domain from another provider to BlueFibre will require a minimum of five (5) days to be set up and entered into our DNS servers. In some cases, such transfers may take up to thirty (30) days.
Due to the unpredictable nature of the transfer process, no guarantees are made regarding the amount of time a specific transfer may take. If the transfer of the domain is done by BlueFibre on your behalf, a handling fee will be incurred. If you cancel service during the transfer period for any reason, all charges are considered earned.
Security
You are solely responsible for any security breaches affecting servers or accounts under your control. If your server is responsible for or involved in an attack on or unauthorized access into another server or system, BlueFibre will shut it down immediately. You will pay any charges resulting from the cost to correct security breaches affecting BlueFibre or any of its other customers.
- Archiving of Data: We will archive data onto backup mechanisms on a regular basis for the purposes of disaster recovery. In the event of equipment failure or data corruption, we will restore from the last known good archive. In the event of corruption of all of our archives, or in the event that an old archive is used to restore data, you should be prepared to upload your data to your web site. You must maintain a recent copy of your data at your premises at all times. We will not be liable for incomplete, out-of-date, corrupt or otherwise deficient client data recovered from our backups.
- Viruses: You are responsible for conducting 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.
Intellectual Property Rights
Your Warranties and Representations to BlueFibre. You warrant, represent, and covenant to BlueFibre that: (a) you are at least 18 years of age if an individual, (b) you possess the legal right and ability to enter into this Agreement; (c) you will use the Services only for lawful purposes and in accordance with this Agreement and all applicable policies and guidelines, including the AUP; and (d) your content does not and will not infringe or violate any right of any third party (including any intellectual property rights) or violate any applicable law, regulation or ordinance.
IP Addresses
BlueFibre will maintain and control ownership of all Internet protocol ("IP") numbers and addresses that BlueFibre may assign to you. BlueFibre may, in its sole discretion, change or remove any and all IP numbers and addresses.
BlueFibre may provide you access to other third party software and/or services ("Third Party Products") through reseller relationships BlueFibre has established with certain commercial vendors, including without limitation, Microsoft Corporation ("Third Party Vendors"). Unless otherwise notified, Customer understands that product support for Third Party Products is provided by BlueFibre and not by the Third Party Vendor. Neither BlueFibre nor any Third Party Vendor makes any representations or warranties, express or implied, regarding any Third Party Products.
CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THIRD PARTY PRODUCTS IS AT CUSTOMER'S SOLE RISK AND SUCH THIRD PARTY PRODUCTS ARE PROVIDED "AS IS" AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND FROM BlueFibre OR ANY THIRD PARTY VENDOR, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY OR COMPLETENESS OF RESPONSES OR RESULTS, CORRESPONDENCE TO DESCRIPTION, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER BlueFibre NOR ANY THIRD PARTY VENDOR WILL BE LEGALLY RESPONSIBLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, OR CONSEQUENTIAL, ARISING FROM THE USE OR INABILITY TO USE ANY THIRD PARTY PRODUCT. CUSTOMER AGREES TO OBSERVE THE TERMS OF ANY LICENSE AND/OR APPLICABLE END USER SUBSCRIBER AGREEMENT FOR THIRD PARTY PRODUCTS AND THAT CUSTOMER SHALL BE FULLY LIABLE TO THIRD PARTY VENDORS AND BlueFibre WITH RESPECT TO ANY IMPROPER USE OF SUCH THIRD PARTY PRODUCTS OR VIOLATION OF LICENSE AGREEMENTS WITH THEM AND/OR APPLICABLE END USER SUBSCRIBER AGREEMENTS.
You shall not:
- Remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any Third Party Product or that appear during use of any Third Party Product; or
- Reverse engineer, decompile, or disassemble any Third Party Product, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation
Enforcement Actions
BlueFibre reserves the right to suspend or terminate the Service immediately or take any other corrective action it deems appropriate in its sole discretion if in the sole judgment of BlueFibre your server is the source or target of any violation of the AUP or for any other reason which BlueFibre chooses. If inappropriate activity is detected, all of your accounts in question will be deactivated until an investigation is complete. Prior notification to you is not assured. In some cases, law enforcement will be contacted regarding the activity. These rights of action, however, do not obligate BlueFibre to monitor or exert editorial control over the information made available for distribution via the Services. If BlueFibre takes corrective action because of a possible violation, BlueFibre will not refund to you any fees you paid in advance of the corrective action.
Disclosure Rights
The AUP specifically prohibits the use of our service for illegal activities. Therefore, you agree that BlueFibre may disclose any and all of your information including assigned IP numbers, account history, account use, etc. to any law enforcement agent who makes a written request without further consent or notification to you. In addition, BlueFibre shall have the right to terminate all service set forth in this Agreement.
Disclaimed Warranties
BlueFibre exercises no control over, and accepts no responsibility for, the content of the information passing through BlueFibre's host computers, network hubs and points of presence, or the Internet.
USE OF THE SERVICES OR ANY INFORMATION THAT MAY BE OBTAINED THEREFROM IS AT YOUR OWN RISK. ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE PERFORMED "AS IS" AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, ANY FAILURE BECAUSE OF COMPUTER HARDWARE OR COMMUNICATION SYSTEMS. BlueFibre DOES NOT MAKE AND DISCLAIMS, AND YOU WAIVE ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. BlueFibre DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
Limitation and Exclusion of Liability
Limitations
IN NO EVENT WILL BLUEFIBRE OR ITS SUPPLIERS HAVE ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF INFORMATION DISTRIBUTED OR MADE AVAILABLE FOR DISTRIBUTION VIA THE SERVICES THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. NEITHER BlueFibre NOR ITS SUPPLIERS WILL HAVE LIABILITY WITH RESPECT TO BlueFibre'S OBLIGATIONS UNDER THIS AGREEMENT, OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF BlueFibre HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES. THE LIABILITY OF BlueFibre AND ITS SUPPLIERS TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION IS LIMITED TO THE AMOUNT YOU ACTUALLY PAID TO BlueFibre UNDER THIS AGREEMENT DURING THE 3 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICES SET BY BlueFibre UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU RELEASE BlueFibre AND ITS SUPPLIERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS IN EXCESS OF THE LIMITATION STATED IN THIS SECTION.
Interruption of Service
BlueFibre and its suppliers are not liable for any temporary delay, outages or interruptions of the Services. Further, BlueFibre is not liable for any delay or failure to perform its obligations under this Agreement, where the delay or failure results from any act of God or other cause beyond its reasonable control (including, any mechanical, electronic, communications or third-party supplier failure).
Indemnification
In agreeing to the BlueFibre AUP and this Agreement, you agree to indemnify, defend and hold harmless BlueFibre, its employees, directors, partners, representatives and affiliates, for any violation by you or your customers of the AUP or this Agreement that results either in loss to BlueFibre or the bringing of any claim against BlueFibre by any third-party. For example, if BlueFibre is sued because of your or your customer's activity related to the Services, you will pay any damages awarded against BlueFibre, its employees, directors, partners, representatives and affiliates, plus all costs and attorney's fees.
MISCELLANEOUS PROVISIONS
BlueFibre and you agree that, except as otherwise expressly provided in this Agreement, the Order Form(s) or the terms and conditions of use of any third party software products, there shall be no third party beneficiaries to this Agreement, including but not limited to the insurance providers for either party or your customers.
THIS AGREEMENT IS MADE UNDER AND WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF QUEENSLAND.
In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.
- You may not sell, assign or transfer its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of BlueFibre, and any attempted assignment or delegation without such consent will be void.
- BlueFibre may assign this Agreement in whole or part.
- BlueFibre also may delegate the performance of certain Services to third parties.
- All notices, demands, requests or other communications required or permitted under this Agreement shall be deemed given when delivered personally, sent by facsimile upon confirmation, sent and received by return receipt email, or upon receipt of delivery of overnight mail.
- You and BlueFibre are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between you and BlueFibre.
- This Agreement, including all documents incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter.
Survival
All provisions of this Agreement relating to your warranties, intellectual property rights, limitation and exclusion of liability, your indemnification obligations and payment obligations will survive the termination or expiration of the Agreement.