1. Agreement

These terms and conditions are the terms on which we provide the Service to you. They apply to us and to you. These terms supersede prior agreements as at date 1 December 2022.

These terms also apply to every user of the Service. It is a condition of your use of the Service that:

• you comply with these terms and conditions;
• you make every User aware of these terms and conditions; and
• you ensure that every User complies with these terms and conditions.

Please also see Dilates business Terms & Conditions here

CHANGES TO THESE TERMS AND CONDITIONS

These terms and conditions are subject to change.

We will give you notice of the change and you will then need to approve compliance with the new terms and conditions as amended, or, cease using the Service.

DURATION OF THIS AGREEMENT

This agreement commences on the date you sign up for the Service by:

• Emailing your approval to host your website with Dilate Digital Pty Ltd and/or;
• Signing and accepting a formal proposal and quote.

This agreement continues until either party terminates by thirty (30) days notice in writing to the other party. On termination or expiry of this agreement for any reason:

• our obligation to provide the Service to you ceases;
• you must not attempt to use or access the Service after the date of termination;
• each party’s rights and obligations accrued prior to termination are not affected; and
• We will supply a backup of your site and data, then delete that from being stored on our end.

If the Service Provider terminates the Service for any reason, then this agreement will terminate automatically. In that case, unless the Service Provider terminated this agreement due to failure by you or a User to comply with these terms and conditions, you will be entitled to a pro-rata refund of any unused months, within the twelve (12) month period.

2. Server/Network Maintenance

SCHEDULED MAINTENANCE.

In order to keep servers up to date, Dilate Digital’s infrastructure provider, Vultr, will perform scheduled maintenance to servers from time to time. We reserve the right to suspend changes to the server during the time required for the scheduled maintenance.

Vultr attempt to perform all scheduled maintenance at off-peak time. If the maintenance period is expected to last for more than thirty (30) minutes and during standard business hours, then Dilate Digital will contact you regarding the maintenance times.

UNSCHEDULED MAINTENANCE.

Unscheduled maintenance may need to be performed. During this time the server may be offline. While these occasions are rare, Vultr and Dilate will do everything they can to make this offline time short and contact you with updates and expectations, if these occur within standard business operating hours and if they are expected to exceed more than thirty (30) minutes.

3. After Hours Support & Server Downtime

If your website goes down and you require Dilate Digital to action a server reboot or for a Developer at Dilate Digital to action any fixes to resolve the issue “out of hours”, this will be billed at $200 (ecl. GST) per hour.

After hours are considered to be before 9:00am and after 5:00pm (GMT+8 timezone) Monday to Friday and any time Saturday and Sunday.

However, should this downtime be a result of server failure on Dilate Digital or Vultrs end, these charges will be “waived”. For any other reason, we will endevour to resolve this issue in a timely manner and provide timesheet entries within the invoice. Further more suggestions to prevent in future will be provided.

For any questions or queries around what causes a website to go down, and when it is considered a failure on Dilate Digital’s side, please get in contact with us.

4. Client Data and Data Backup

UPLOADING CLIENT DATA

Except for intellectual property rights in the Client Data, Vultr and Dilate Digital Pty Ltd will own all intellectual property rights created during the course of providing the Service.

Subject to this clause and the Acceptable Use Policy, you and your Users may upload content that you wish to be part of your website.

You must ensure that all Client Data:

• complies with the Acceptable Use Policy;
• complies with all Laws; and
• does not infringe the intellectual property rights of any person.

Vultr and/or Dilate Digital Pty Ltd may remove any Client Data it considers unsuitable.

DATA BACKUP

It is your responsibility to maintain local copies of your web content and information. Dilate Digital performs daily backups of all server data, however, we strongly recommend that all users keep their own recent copy of their sites for any unforeseen events.

Dilate Digital can supply you with a backup copy of you data and website, upon request, at no additional cost beyond your Hosting Plan costs. Backups cannot be saved or made directly against your cPanel. A link with the website backup on it will be provided, for download on the clients end.

UPDATES OF WEBSITE SOFTWARE

From time to time, Vultr and Dilate Digital Pty Ltd may recommend required updates to the website software used to run your website. It is your responsibility to update your website to the new version of the software. If you do not update to the new version of the software, then:

• The security of your website and Data may be compromised
• The quality and functionality of your website may be affected

Dilate Digital Pty Ltd does offer a website maintenance service, should this be something you would like to discuss with us. This is a separate service and charge to your hosting costs.

It is important to understand that Plugins, PHP and Wordpress updates are not related to the Hosting of your website files. It is the responsibility of clients, unless a Dilate Digital Website Maintenance package is in place, to maintain these.

If updates of these cause conflicts or issues on the clients website, Dilate Digital will recommend a path forward and propose a scope and costs to resolve these issues.

It is also important to note that if these are not updated and management ongoing, then vulnerabilities with data, security and functionality of your website may have issues.

5. Account Rights.

HOSTING PLAN

At the time that you sign up for the Services, you are agreeing to the recommend plan, by Dilate Digital. The proposed hosting plan takes into consideration the:

• disk space (web files, email and database);
• maximum monthly level of traffic usage before incurring extra traffic costs; and
• mySQL databases.

that is included in the Services.

cPANEL ACCESS

Access to your cPanel via a thirdpary provider [for example, your Email Hosting or IT provider] will be granted access upon request.

A signed waiver that Dilate Digital will not be liable for any downtime or issues with your site during this time, will need to be signed prior to access being granted.

If this thirdparty causes site failure and Dilate Digital is needed to resolve these issue, Dilate Digital will supply a scope and estimate of hours required, for approval prior.

NO RESALE

You must not resell the Services without our express permission. Reselling of the Services without our express permission will bring you into breach of this agreement.

TECHNICAL SUPPORT AND OTHER ADDITIONAL SERVICES

The Fees include the provision of normal web hosting and server maintenance services.

At your request, we may carry out Additional Services for you, for example:

• technical support for application specific issues, such as PHP, html or script installation
• ongoing Wordpress and or Plugin Maintenance and support

You must pay for all Additional Services that you request at our then current Professional Rates.

SUSPENSION OR TERMINATION OF ACCOUNT

We may monitor your account and the conduct of your account (but we have no responsibility to do so) to determine whether you and all Users are complying with this agreement.

We reserve the right to suspend your account, or terminate your account with immediate effect without notice, if:

• we believe that your use of the Service may be in breach of any law;
• we believe that you or a User has committed a breach of this agreement;
• we believe that your use of the Service may compromise or have an adverse effect on our systems or networks, or the Service Provider’s systems or networks; or
• the Service Provider suspends or terminates your account.

If we believe that your use of the Service may be in breach of any law, then we may notify the relevant authorities, and provide them with relevant information as appears appropriate in the circumstances.

You agree that you will have no claim against Vultr or Dilate Digital Pty Ltd in respect of any action reasonably taken by us or Vultr under this clause, and you indemnify Vultr and Dilate Digital Pty Ltd against any claim by a User arising out of the same.

CANCELLATION OF SERVICE

If your invoice is not paid in full, or an arangement agreed with Dilate, one (1) month after due date, Dilate Digtal Pty Ltd reserves the right to cancel service without any compensation or remuneration by Dilate Digital Pty Ltd to you, for loss of business, income or other.

Dilate Digital will attempt to contact you three (3) times via email or phone when an invoice is overdue, to help rectify the cancellation of the service.

If you, the client, wish to cancel the hosting service, this needs to be done in writing along with a date for that to take affect. One (1) working week notice is required for Dilate Digital to export a backup copy of your site and supply this, before then terminating the agreement and service.

Unless otherwise requested, Dilate Digital will cancel all services on the requested date. If changes to this are not communicate to Dilate Digital, no remuneration or compensation will be given by Dilate Digial Pty Ltd to the client for loss of income or business. If there is the need for Dilate Digital to put live your website after it has come down, a fee of $150 excl. GST will be charged.

6. Domain and DNS Management

Dilate Digital can also manage your DNS and Domain, should you wish to move this with your hosting.

Outside of thirtparty costs to renew or register Domains, Dilate Digital does not charge any ongoing additional costs, outside of the hosting costs, to manage your domain. To transfer domains over to Dilate Digital, there is a $50 excl. GST flat fee for each domain [regardless of it being .com, .com.au, .net etc.].

For registering new domains on behalf of the client, Dilate Digital will confirm thirdparty costs for approval, prior to registration. These costs and the party selling the domain has no relation or affiliation with Dilate Digital.

DOMAIN RENEWALS & LAPSES

If your domain managed or registered with Dilate Digital Pty Ltd is due for renewal, Dilate Digital will contact the client for approval to renew, through writing via email and also via phone. Ensuring any change of details or contacts throughout the client and Dilate Digitals relationship, is the responsibility of the client. Dilate Digital will attempt each form of communication three (3) times. If no response is received, Dilate Digital will allow the domain to lapse.

Due to legal requirements, the Australian governing board for domain names [auDA] requires all domains to have proof that they are related to a business or direct business product or service, to be registered, or renewed.

This means that should the client not respond prior to the expiry date of a domain renewal, Dilate Digital legally cannot manage or takeover the domain for the client.

It is the clients responsibility to return all means of communication from Dilate Digital should the client wish to renew their domain.

If the domain expires, no remuneration or compensation will be given by Dilate Digital Pty Ltd to the client for loss of income or business. If there is the need for Dilate Digital to renew or re-register the domain again, the third-party costs will be applied as well as $150 excl. GST fee.

If the Domain, once lapsed, has been purchased by another party, you [the client] agree that you will have no claim against Dilate Digital Pty Ltd in respect of any action reasonably taken by us, for compensation or loss of income or business. You also indemnify Dilate Digital Pty Ltd against any claim by a result of you [the client] not responding to communication attempts.

Dilate Digital Pty Ltd, when managing your DNS and Domain, has no limit of record changes required. If requested by the client or a third-party [e.g. the client Email Hosting or IT Support provider], Dilate Digital is not liable if those requests cause issues.

7. Email Hosting & Management

Dilate Digital does not in any way provide Email Hosting, Management or Setup. This is the responsibility of the Client to manage and handle either on their own end, or, via a third-party provider. Dilate Digital does not assist in any email solutions, assistance or work outside of SMTP setup.

Dilate Digital does not send emails from our service/servers. If issues arrive on the clients email side, these must be resolved on the clients side as Dilate Digital will not implement a workaround which goes against the above.

Dilate Digital will however assist in setting up SMTP using the preferred SMTP Plugin at the time of implementation.

Dilate Digital must host the client website in order to assist with this setup free of charge. If the client requires assistance here and Dilate Digital does not host the clients website, fees will be incurred and costed based on the requirements.

SMTP will be recommended by Dilate Digital for all Hosting Clients, at time of Dilate Digital taking over hosting of the Clients website. This is ultimately the clients responsibility to approve the implementation of SMTP.

The Email Hosting settings required for SMTP will be the responsibility of the client to provide to Dilate Digital, before any work is undertaken by Dilate Digital.

It is the responsibility of the client to maintain and update the SMTP plugin ongoing, unless other services agreed between the client and Dilate Digital, outside of the Hosting and SMTP setup agreement, have Dilate Digital undertaking Plugin and Website Maintenance.

Where settings on the clients Email Hosting side, ongoing, change, this is the responsibility of the client to update or notify Dilate Digital with. It is the responsibility of the client to ensure emails ongoing are being received and SMTP is actively working.

Dilate Digital is under no obligation to continue to check and manage email connections.

SMTP involves Dilate Digital adding a third-party Plugin to connect the Dilate server with the clients Email server. This plugin enables the Dilate server to be “approved” to send emails on behalf of the clients Email address. For example, sending contact forms to the clients users, using the clients email address as the “sender” email.

8. Payment

BILLING

At the commencement of this agreement, the following billing method is implemented:

• annual billing for the hosting fees applicable (unless otherwise agreed) to your Hosting Plan;.

You must pay all Service charges, minimum charges and other amounts incurred by you or any User.

FEES

You are liable to pay the following fees:

• the setup fee (if any) that we advise you of at the commencement of the agreement;
• fees for Excess Traffic Usage (if any) for each month, and
• fees for Excess Storage (if any) for each month, and
• fees for Additional Services (e.g.: domains, additional SSL Certificates purchases etc. if any) that you request us to perform.

The hosting fees are charged annually one period in advance. The Fees are exclusive of any registration or delegation charges imposed by domain name authorities or your ISP.

The fees for Excess Traffic Usage and Additional Services are charged at the end of the month for the previous month, unless other arrangements are made in writing with Dilate Digital Pty Ltd.

Dilate Digital will confirm, through a report, where these excess fees and usages have come from, so the client can better prepare and avoid any future fees, if not necessary.

At the time of purchase, the client will prepay a recurring amount for the selected hosting plan. Charges for Excess Traffic Usage (web, ftp, marketing campaign traffic) and Additional Services will be billed retrospectively, for the previous month.

CHANGES TO FEES

Our current Fees are set out in your quotation. They will apply to you for the duration of the billing period.

We reserve the right to change our Fees. If we change our Fees, then we will provide you with notice of the changed Fees through the Dilate Digital website, or email to you. The new fees will apply from the date that your pre-paid billing period expires.

INVOICING

Your invoice will be sent to you one (1) month prior to the due date. You must pay as indicated on the invoice sent to you from Dilate Digital Pty Ltd.

We reserve the right to immediately terminate the Service if payment is not received by the due date or alternate arrangements made in writing to us.

Vultr and Dilate Digital Pty Ltd are not responsible for data integrity on accounts suspended for non-payment.

GST

Unless we expressly state otherwise, all fees and charges exclude GST.

9. Limitations of Service

You acknowledge that, due to the inherent risks of the internet, and of computer-based networks and systems:

• the services provided under this agreement will not be uninterrupted or error free;
• the services may not meet all your business requirements and needs; and
• your data may not be secure or protected from loss or corruption, and data loss or corruption may occur due to delays, service interruptions or other reasons.

10. Liability

• our liability to you for any Loss, however caused (including by our negligence), that you suffer or incur in connection with the Service or this Agreement, whether or not you were aware of the possibility of such Losses to you when this agreement was entered into, is limited to the amount of Fees received by us from you under this agreement;
• the maximum amount you may claim from us for Losses suffered or incurred by you in connection with this agreement is limited to the aggregate amount of fees which you have paid us for this service at any time, less any amounts already paid out or due to be paid out by us to you for any reason;
• we are not liable for any indirect or consequential losses, or any loss of revenue, loss of profit, loss of business opportunity, or payment of liquidated sums, penalties or damages under any agreement, sustained by the you or any other person arising from or in connection with the Service or this agreement;
• we are not liable for any Losses you suffer or incur by, or in connection, with the Service or this agreement that is caused by (or to the extent contributed to by) the acts or omissions of a third party; and
• we are not liable for any Losses you suffer or incur due to factors outside our reasonable control.

8.1 ANY CONDITION OR WARRANTY WHICH WOULD BE IMPLIED BY LAW AS A TERM OF THIS AGREEMENT IS EXCLUDED.

11. You agree to abide by the Service Provider’s Acceptable Use Policy

You are solely responsible for dealing with persons who access the Client Data, and must not refer complaints or inquiries in relation to such data to us.

You must ensure that any User does comply with the Acceptable Use Policy at all times in relation to the Service.

Dilate Digital reserves the right to immediately discontinue service to any subscriber it deems, in its sole discretion, violates any condition of service including the Acceptable Use Policy, and these terms and conditions. We are not liable for any Losses that you suffer as a result of any such discontinuation.

12. You indemnify us

The Client agrees to indemnify and hold harmless the Service Provider [Vultr] and Dilate Digital Pty Ltd and the employees and agents of the Service Provider and Dilate Digital Pty Ltd (together, “Indemnified Parties”) against any losses, claims, damages, liabilities, penalties, actions, proceedings or judgments (collectively, “Losses”) to which an Indemnified Party may become subject and which Losses arise out of, or relate to this Agreement or Subscriber’s use of the Services and Products, and will reimburse each Indemnified Party for all legal and other expenses, including reasonable attorneys’ fees incurred by such Indemnified Party in connection with investigating, defending or settling any Loss whether or not in connection with pending or threatened litigation in which such Indemnified Party is a party.

This clause 10 does not apply:

• if you are a Consumer, in relation to any Losses that arise from our breach of a Consumer Guarantee or Title Guarantee;
• in relation to Consumer Goods or Consumer Services we supply to you; or
• to the extent that it is not Fair or Reasonable for us to rely on it.

13. Governing Law

This agreement and the transactions contemplated by this agreement are governed by the law of Western Australia.

14. Acceptable Use Policy

This is the Service Provider’s Web Hosting Acceptable Use Policy. It applies to all Customers and all Users.

This Acceptable Use Policy may change if:

• the Service Provider changes it; or
• the Service Provider changes and a new Service Provider begins providing the Service.

If the Acceptable Use Policy changes:

• the Service Provider or Dilate Digital Pty Ltd will notify you of the change through the website or by email to clients, or both;
• the new Acceptable Use Policy will apply from the date that we or the Service Provider notifies you of it; and
• if you disagree with the new Acceptable Use Policy, you may terminate this agreement by providing seven (7) Days notice to Dilate Digital Pty Ltd..

Acceptance

• 2.1. The Customer signified acceptance of this Acceptable Use Policy, as well as our Terms of Service, Privacy Policy and any applicable Registrant Agreement, when they submitted their order to Dilate Digital Pty Ltd for Services, and that order was accepted.
• 2.2. The Customer acknowledges that they are solely responsible for ensuring that all Service(s)are in full compliance with this policy, and that they are solely responsible for the files and applications that have been uploaded and executed.

Unacceptable Content and Material

3.1. The Customer may not publish, transmit, distribute or store any content or material on Vultr's servers or network that Dilate Digital Pty Ltd believes:

• a. Constitutes child pornography;
• b. Is excessively violent or incites, threatens or implies violence;
• c. Contains harassing content or hate speech;
• d. Is unfair or deceptive under any relevant Fair Trading or Consumer Affairs act in your state;
• e. Is defamatory or violates a person’s privacy;
• f. Creates a risk to a person’s safety, health or security;

Vultr and Dilate Digital Pty Ltd are not responsible for the content of traffic:

• we exercise no supervision or control whatsoever over the content of the information passing through our network.
• we accept no responsibility for the consequences of unauthorised breach of our system security such as hacking or denial of service attacks.

You are responsible for use of your account. If you permit others to use our service, you are responsible for making users of the service aware of this policy and obtaining compliance of your users with this policy.

15. Account Uses

You may use the service for the purpose of website hosting so long as such use is legal and does not constitute an unacceptable use.

Dilate Digital does NOT allow ADULT material of any kind. Adult material includes nudity, porn, etc. Links to other websites containing adult material are NOT permitted either. Dilate Digital reserves full right to suspend any account that does not comply with this guideline.

You may not use the Service for any purpose that violates local, State, Federal or international laws.
You may not use the Service for spamming (sending unsolicited advertising to those with which the customer has no existing business relationship, posting off-topic advertising in newsgroups); spoofing (using a return email address which is not the valid reply address of the sender or sending an email message which does not contain enough information to enable the recipient to identify the party who is really sending the message), generating extremely high volumes of outgoing mail than a normal user, and subscribing someone else to an electronic mailing list without that person’s permission.

Dilate Digital’s services may not be used as a conduit of spam, or for transit of spam, or for activities relating to the propagation of spam or benefiting thereof. Dilate Digital remains the final arbitrator of what is or is not considered spam on the Service Provider’s network.

Distribution of mass emailing programs is also prohibited. All recipients on a mailing list must have personally subscribed. Mailing lists may not be used to distribute unsolicited email.

You may not abuse our server resources. Running programs in the background on our server without our prior written authorisation, or running chat rooms, Internet Relay Chat, IRC bots, and the like are not acceptable uses of the Service Provider’s servers. In addition any domain that exceeds reasonable bandwidth usage can be terminated without prior notice, especially if it is deemed to be a threat to other clients and websites, on shared servers.

You may not use the Service Provider’s servers for development purposes. The Client’s website must be fully developed and tested before it can be moved to our servers. If a development website is required, this must be agreed and approved by Dilate Digital prior and full website hosting fees will apply. This is for the testing purposes of the client only and not for the development of a new website by a third-party acting on behalf of the client. If we find excessive number of errors in the web log files of your account, we reserve the right to suspend your account without prior notice until your website is debugged.

You may not use your the Service Provider hosting account as a download repository. If you plan to offer files, other than web page files, for downloading, including music and video files, you must negotiate the terms with the Service Provider. We reserve the right to suspend such accounts without prior notice.
You may not use your account for hacking/cracking. We reserve the right to report illegal activities to any and all regulatory, administrative, and/or governmental authorities for prosecution.

The Client is responsible for all activity originating from the account unless proven to be a victim of outside hacking or address forgery. The Client is responsible for securing their username/password.

We may monitor your account but will respect your privacy. We may monitor the conduct of your account to determine whether this policy is being followed.

We may suspend or terminate your account and/or notify the authorities, if we believe that your use of the service may break the law or that you have not complied with this policy we may warn you by email (but we are not obliged to do so); suspend your access to the service; terminate your account without notice; and/or notify and provide relevant information to the authorities, as appears appropriate in the circumstances.

You agree that you will have no claim against Vultr or Dilate Digital Pty Ltd in respect of any action reasonably taken by Vultr in its implementation of the terms of this Acceptable Use Policy, and you indemnify Vultr and Dilate Digital Pty Ltd against any claim by a User arising out of the same.

16. General

Any notice given under this agreement must be in writing, addressed to the other party’s contact persons as notified by the other party.

This agreement does not create a relationship of employment, agency or partnership between the parties.

We may subcontract our obligations under this agreement.

The failure of a party at any time to insist on performance by the other party of an obligation under this agreement is not a waiver of any of its rights.

If part or all of any of the provisions of this agreement is illegal or unenforceable, it will be severed from this agreement, and will not affect the continued operation of the remaining provisions.

17. Dictionary

Acceptable Use Policy means the Service Provider’s acceptable use policy, as amended from time to time.

Additional Services means web-based services that are not included in our normal web hosting and server maintenance services.

Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of the Fair Trading Act 2010 (WA).

Client Data means all information, files or data uploaded by the Client via the Service to the Service Provider’s servers.

Consumer has the same meaning as in section 3 of the Australian Consumer Law.

Consumer Goods means “goods of a kind ordinarily acquired for personal, household or domestic use or consumption” as that expression is used in section 3 of the Australian Consumer Law.

Consumer Guarantee means a consumer guarantee applicable to this agreement under the Australian Consumer Law, (including any ‘express warranty’ within the meaning of section 2(1) of the Australian Consumer Law).

Consumer Services means “services of a kind ordinarily acquired for personal, household or domestic use or consumption” as that expression is used in section 3 of the Australian Consumer Law.

Customer, client, you or your means the person or organisation which has entered into an agreement with Vultr Services and Dilate Digital Pty Ltd for supply of Services whether via our website or otherwise.

Dilate Digital Pty Ltd, we or us means Dilate Digital Pty Ltd 5/4 McGrath Road, Henderson, Western Australia.

Excess Traffic Usage means the traffic usage (if any) in excess of the monthly traffic limit included in your Hosting Plan.

Fees is defined in clause 8.

Fair or Reasonable means ‘fair or reasonable’ for the purposes of section 64A of the Australian Consumer Law.

Hosting Plan means the website hosting plan, described in your quotation that you select.

Laws means all laws including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by-laws, rules, regulatory principles and requirements, mandatory codes of conduct, writs, orders, injunctions, judgments, determinations and statutory licence conditions.

Professional Rates means our fees for performing web-based services, as set out in your quotation, or as we otherwise advise you at the time that you request Additional Services.

Service means website hosting and domain registration services offered by the Service Provider and Dilate Digital Pty Ltd that you use, and that are:

• subject to the limitations noted in this agreement; and

• described in more detail in your quotation, according to your Hosting Plan.

Service Provider means the organisation that provides website hosting and domain registration services that you use via the Service.

That organisation may be Vultr Services, or another organisation nominated by us.

Title Guarantee means a guarantee pursuant of the Australian Consumer Law.

User: a person who uses the Service with the Customer’s knowledge, authorisation or permission.