Services Agreement

Black Sheep Digital Media Pty Ltd

11 March 2016

This Services Agreement (the “Agreement“) contains the complete terms and conditions which govern your subscription to Web hosting, Domain Name Registration, e-Commerce and other Internet-related services provided by Black Sheep Digital (the “Services“).

As used in this Agreement, “Black Sheep Digital” means Black Sheep Digital Media Pty Ltd (ACN 162901500) and “Client“, “you“, or “your” means you. By completing payment for the services you have ordered, you acknowledge that you have read this Agreement, and you agree to be bound by its terms and conditions and all policies posted on the Black Sheep Digital web site. As referred to in this Agreement, “Site” refers to a World Wide Web Site and “Black Sheep Digital Site” refers to the Site located at the URL https://blksheep.com.au, or any other successor Sites owned or maintained by Black Sheep Digital.

1. Appropriate Use of the Services

Black Sheep Digital makes no effort to edit, control, monitor or restrict the content of data other than as necessary to provide such Services.

• Client Content.
  Client agrees that it will not electronically transmit, distribute, or display any materials supplied by Client – or through Client by a third party – to any Black Sheep Digital server in connection with Client’s use of the Services which:
  • violate any state, federal or foreign laws or regulations
  • infringe on any intellectual property rights (e.g. copyright, trademark, patent or other proprietary rights) of Black Sheep Digital or any third party
  • enable file sharing, bit torrents or other methods of distribution of music, video, software, images or other materials containing intellectual property owned or controlled by a third party except where explicitly licenced to do so
  • hide user’s IP address or cache content using any type of proxy server software
  • are defamatory, slanderous or trade libellous, threatening or harassing in any way
  • are discriminatory based on gender, race, religion, age
  • contain any type of pornography
  • contain depictions of or references to illegal drugs or substances
  • incite hate or enable or encourage terrorist acts in any way
  • violate any Black Sheep Digital policy posted on the Black Sheep Digital Site including, but not limited to, our Privacy Policy
  • contain viruses or other computer programming defects which result in damage to Black Sheep Digital, it’s servers or any third party
• Disk Space/Data Transfer.
  The Client may utilise only the amount of disk space and network data transfer quota that has been allocated by Black Sheep Digital according to the Client’s selected plan. Additional fees will be charged for exceeding the disk space and/or network bandwidth allowance of your selected plan.
• Spam Policy.
  Client shall not use our Services for sending unsolicited email, spamming, bulk mailing advertising (more than 500 recipients), or any use of distribution or mailing lists to any person who has not given specific permission to be included in such a process. Client also shall not engage in any unsolicited email practices using Black Sheep Digital servers or other infrastructure, or otherwise, that mentions or reference any domain hosted on Black Sheep Digital servers or parked on Black Sheep Digital DNS servers.
• Server Loads.
  Client agrees that any hosting account that uses excessive CPU or Memory resources for a sustained period of time may be suspended at any time without notice. Black Sheep Digital reserves the right to terminate sites that are repeatedly using excessive resources at any time with prior notification.
• Licensed Software Only.
  Client agrees to use only properly licensed third party software in connection with Client’s use of the Services.
• Data Backups.
  Black Sheep Digital takes reasonable steps to safeguard the Black Sheep Digital Servers and the data contained there-in, however Black Sheep Digital will not be responsible for any loss of Client data or DNS records stored or intended to be stored on Black Sheep Digital servers and/or back-up devices. The Client will not be entitled to any form of compensation from Black Sheep Digital in the event of loss of data. You as the client are responsible for your own backups. In cases where regular backups are provided as part of a managed web hosting plan, Black Sheep Digital will perform such regular backups as part of the service, however there may be times when the backups fail or become unavailable. As such the final responsibility for all your data stored on Black Sheep Digital servers is ultimately your own. By acknowledging acceptance of this agreement you free Black Sheep Digital from any legal action in the event of data loss and you agree that you will not be entitled to any form of compensation for said loss.
• Software Updates.
  The Client agrees that applications and scripts installed using either built-in cPanel facilities or installed manually are the responsibility of the client and must be kept up-to-date by the client. Failure to do so may expose our servers to possible exploits and costs to restore services may be recovered from the client of the site initially affected.
• Termination
  Black Sheep Digital reserves the right to refuse service to any person, entity or organisation. Black Sheep Digital, in its sole discretion, may immediately terminate this Agreement if Client engages in any of the foregoing.

 

2. Service Availability and Reliability

• Black Sheep Digital provides Services on a best-effort basis and is dependent on up-stream service providers for continuous operation. Whilst we endeavour to have the Services operational 24 hours a day, every day, there will be small maintenance windows regularly scheduled in order to maintain optimum performance. This maintenance schedule may cause brief temporary impacts on availability of Services. In addition, Black Sheep Digital cannot guarantee against unforeseen failure of hardware, software, network infrastructure, or other forms of malfunction or disruption, and as such, we make no specific uptime guarantee. Refer to Sections 7 and 8 of this agreement for further warranty and liability information.

 

3. Domain Names

• Domain Name Applications
  Domain Name Registrations are undertaken and managed by Black Sheep Digital on behalf of the Client. Domain names are subject to availability and as per policy of the respective Domain Name Authority. The Client agrees to accurately provide all details to the best of their knowledge to assist with the application.
• Domain Name Transfers
  Domain Name Transfers can only be processed with the Domain Name Password (Auth-Info for .au & EPP for .com/.net etc). Australian Domain names (.au) due to expire within 90 days will be automatically renewed for a further 2 Year period and International Domains (.com/.net/.org etc) will be renewed for a further 1 year period. The clients accept that domain name transfers will be rejected if the domain name has been recently registered or transferred within the last 30 days or is in Domain Locked status. Domain Transfers will also be rejected if the Client Authorisation email sent by the registry is not responded to. Should you wish to transfer your domain registration to another registrar please contact us via email and we will provide you with the domain key to facilitate the process. No pro-rata refunds are applicable to domain name registrations or renewals and all sales are final.

 

4. Payment Obligations

• Service Fees.
  Black Sheep Digital shall either (i) debit the Client’s credit card (when such information is provided by the Client), or (ii) produce an invoice which will be delivered to the Client by email with additional payment methods. All new accounts must be paid prior to the new account becoming active on our servers. Domain name registration fees must be paid upfront before the domain name will be registered. Black Sheep Digital accepts no responsibility for domain names registered by another party prior to the Client paying the outstanding amount. On-going invoices will be issued seven (7) days prior to the due date. A reminder will be issued three (3) days after the due date. The account will be automatically suspended ten (10) days after the due date, and a notice will be issued advising of the suspension. Black Sheep Digital shall be entitled to immediately terminate this Agreement thirty (30) days after non-payment or from failure to make timely payments. If Client terminates this Agreement in accordance with Section 6 hereunder, Client shall be responsible for any outstanding fees owed to Black Sheep Digital and agrees to pay any and all fees incurred by Client. Upon notice of termination by the Client, Services shall continue to remain active until the end of the prepaid or invoiced term, the full fee for the chosen term shall be payable and fees will not be pro-rated or refunded.
• Late payments.
  Any payment not received within 10 days after due date may incur a late payment fee. Customer also shall pay to Black Sheep Digital all expenses incurred by Black Sheep Digital in exercising any of its rights under this Agreement or applicable law with respect to a Payment Default or other breach by Customer, including, but not limited to, reasonable Solicitors fees and the fees of any collection agency retained by Black Sheep Digital.
• Taxes
  Customer will be responsible for and will pay in full, any taxes and similar fees now in force or enacted in the future imposed on the transaction and/or the delivery of Services.
• Domain Names.
  If Client chooses to register a domain name(s) through Black Sheep Digital, Client acknowledges and agrees that Client will pay a registration fee(s) to register the domain name(s) with the applicable domain name registrar. Black Sheep Digital does not offer refunds for domain name registrations for any reason, including misspelling of the domain name. Domain name registration fees must be paid up front. Black Sheep Digital accepts no responsibility for domain names registered by another party prior to the Client paying any outstanding amount.
• Refunds
  Sales are final and refunds are not payable unless Black Sheep Digital is unable to fulfil the Service paid for by the Client. In such case a pro-rated refund may be issued for the period that Black Sheep Digital was unable to provide the Service.

 

5. Client Liability and Indemnification

• Liability
  The parties agree that in no event shall Black Sheep Digital be liable to any third party for Client’s breach or alleged breach of any of the terms and conditions set forth in this Agreement. Client agrees to defend, indemnify and hold harmless Black Sheep Digital from any and all expenses, losses, liabilities, damages or third party claims resulting from Client’s breach or alleged breach of any Client obligations set forth in this Agreement.

 

6. Terms, Termination & Reinstatement

• Terms & Termination.
  Subject to the terms and conditions hereof, this Agreement shall be effective on the date you register for the Services, and shall continue in effect on a month-to-month or year-to-year basis as determined by the term of pre-payment for the Service, unless terminated earlier pursuant to the provisions of this agreement. Either party will have the right to terminate this Agreement upon notice to the other party. All cancellation requests must be received by the 25th of the respective month of cancellation. Sections 3 – 8 shall survive termination or expiration of this Agreement.
• Suspension
  If Black Sheep Digital suspends any type of account for non-payment, Client shall be allowed to re-instate Client’s use of the Services within Five (5) business days of suspension upon approval from Black Sheep Digital and the receipt of full payment of balances due.
• Termination
  If a Client terminates their account, Black Sheep Digital will disable and remove the account(s) the day the client specifies the cancellation to take place and all archives of the Client’s Site(s) and files will be removed. Should the client be in arrears for 30 days or more, as per section 3, the Client’s Site(s) may be terminated without further notice and Black Sheep Digital will not maintain or provide an archival copy of the Clients Site(s) or files of any type. It is the sole responsibility of the Client to backup and copy any data off the server prior to the date provided in their cancellation notice or termination date.

 

6. Taxes

• Taxes
  Client will pay and indemnify and hold Black Sheep Digital harmless from any and all taxes associated with or arising from Client’s use of the Services, including any penalties and interest and any costs associated with the collection or withholding thereof.

 

7. Disclaimer of Warranty

• Warranty
  The Services, the Black Sheep Digital site, including without limitation, all products and services displayed or offered on the Black Sheep Digital site, and all text, graphics, links and applications are provided to the Client on an ‘as is’ basis and without warranty of any kind. Black Sheep Digital disclaims all warranties, express or implied, with respect to each of the foregoing, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement or arising from a course of dealing. Without limiting the generality of the foregoing, Black Sheep Digital specifically disclaims any warranty that:
  • the services will be uninterrupted or error-free
  • defects will be corrected as soon as possible
  • there are no viruses or other harmful components
  • the security methods employed will be sufficient

 

8. Limitation of Liability

• Limitations of Liability.
  In no event shall Black Sheep Digital be liable for damages resulting from loss of data, profits, use of the Black Sheep Digital site or any Black Sheep Digital products or services, or for any incidental, indirect, punitive, or consequential damages in connection with this agreement or in connection with any products or services provided hereunder. In no event shall Black Sheep Digital’s cumulative liability exceed an amount greater than one hundred dollars ($100.00).

 

9. Miscellaneous

• Notices
  Any notices or communication under this Agreement shall be in writing and shall be deemed delivered to the party receiving such communication (1) on the delivery date if delivered personally to the party, or a representative of the party; (2) one business day after deposit with a commercial overnight carrier, with written verification of receipt; (3) five business days after the mailing date, whether or not received, if sent by postal mail, return receipt requested; (4) on the delivery date if transmitted by email and a read receipt has been returned. If posting correspondence to Black Sheep Digital please use the following address details:
  Black Sheep Digital
  67 Kulai St
  Charlestown NSW 2290
  Australia

 

10. Agreement

• Agreement
  If any of the provisions, or portions thereof, of this Agreement are found to be invalid under any applicable statute or rule of law, then, that provision notwithstanding, this Agreement shall remain in full force and effect and such provision or portion thereof shall be deemed omitted. This Agreement (including the Exhibits, attachments and/or addenda, if any,) represents the entire agreement of the parties with respect of the subject matter hereof and supersedes all prior and/or contemporaneous agreements or understandings, written or oral between the parties with respect to the subject matter hereof.This Agreement and the rights granted and obligations undertaken hereunder may not be transferred, assigned or delegated in any manner by Client, but may be so transferred, assigned or delegated by Black Sheep Digital. Any waiver or any provision of this Agreement, or a delay by any party in the enforcement of any right hereunder, shall neither be construed as a continuing waiver nor create an expectation of non-enforcement of that or any other provision or right. In any legal proceeding between the parties under this Agreement, the prevailing party shall be entitled to recover its costs, expenses and reasonable attorneys’ fees.This Agreement is made under and shall be governed by the laws of Australia, except with regard to it’s conflict of law rules. This Agreement and Black Sheep Digital’s policies are subject to change by Black Sheep Digital without notice. Continued usage of the Services after a change to this Agreement by Black Sheep Digital or after a new policy is implemented and posted on the Black Sheep Digital Site constitutes your acceptance of such change or policy. We encourage you to regularly check the Black Sheep Digital Site for any changes or additions.