Terms of Service

  • Standard Terms and Conditions
  • Effective 04th January 2014
  • Orange Tree Design Studio
  • ABN 63 551 267 569
  • Terms of Service
     

    This Terms and Conditions ("Agreement") is an agreement between Orange Tree Design Studio and the party ("Customer", "Client", "Member", "you". "your"), and applies to all services ("Services") ordered by Customer from Orange Tree Design Studio.

    BY COMPLETING THE SIGNUP PROCESS, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE. YOUR CONTINUED USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. Orange Tree Design Studio reserves the right to terminate this Agreement for any reason or no reason. Orange Tree Design Studio reserves the right to refuse service to anyone.

    Member Content
    Member Content will include content uploaded to, submitted to, stored on or disseminated by Customer via the Services. Member Content also includes content of users of Customer's website and materials and content provided by third parties. Customer shall be solely responsible for the development, operation, and maintenance of Member Content.

    Corrective Action
    Orange Tree Design Studio may take corrective action with or without notice, including removal of all or a portion of the Member Content, disconnection or discontinuance of any and all Services, or termination of this Agreement in the event of notice of possible violation by Customer of this Agreement or our Service Usage Policy. Customer agrees that Orange Tree Design Studio shall have no liability to Member due to any Corrective Action that Orange Tree Design Studio may take. Customer also agrees that Orange Tree Design Studio will not provide any refunds of any fees paid by Member prior to Corrective Action.

    Policy Amendments and Modifications
    Orange Tree Design Studio may amend or modify this Agreement or the Service Usage Policy at any time in its sole discretion. Customer shall be bound by any such modification. Orange Tree Design Studio may, but is under no obligation to, provide notice of any modification of this Agreement or the Service Usage Policy. Any modification is effective upon posting on Orange Tree Design Studio's website. If you continue to use the Services following effectiveness of the modification, your continued use will mean that you have accepted that modification.

    Service Modifications
    Orange Tree Design Studio reserves the right to amend its service offerings and add, delete, suspend, or modify the Services at any time, and to determine whether and when any such changes apply to both existing and future customers.

    Term and Termination
    Services will commence on the Effective Date indicated in the account activation order form ("Order Form") and continue for the duration of the term set forth in the Order Form ("Initial Term"). The Initial Term does not include any promotional periods that the Customer may qualify for at the time of the order.

    Thereafter, the Agreement will automatically renew for successive terms of equal length as the Initial Term or the most current term selected by Customer and indicated in their control panel ("Renewal Term"), unless the Agreement is terminated by either party.

    Either party may terminate this Agreement immediately upon the occurrence of any one or more of the following events:

    (i) the other party fails to pay when due any amounts required to be paid under this Agreement;
    (ii) the other party breaches any material term or provision of this Agreement and/or the Service Usage Policy; (iii) the other party becomes insolvent, makes an assignment for the benefit of its creditors, institutes or becomes subject to any proceeding under any bankruptcy or similar laws for the relief of debtors, or seeks the appointment of, or becomes subject to the appoint of, any trustee or receiver for all or any portion of such party's assets.

    Orange Tree Design Studio may terminate this Agreement,

    (i) if the Services are prohibited by applicable law,
    (ii) if the Services become impractical or unfeasible for any technical, legal, or regulatory reason,
    (iii) as part of Corrective Action,
    (iv) for any reason or no reason.

    If Orange Tree Design Studio terminates this Agreement or Customer cancels this Agreement prior to the end of the contract term and after the initial 30 days of service of Initial Term (during which the 30 Day Money Back Guarantee offer is active), Orange Tree Design Studio will not refund to Customer any Service Fees paid in advance of termination. Customer agrees that they are obligated to pay all Service Fees and charges accrued prior to the effective termination date.

    Fraud Prevention
    Orange Tree Design Studio may randomly select customers and require them to provide additional billing information, verify billing information, and/or fill out and fax Credit Card authorization forms to authenticate orders as part of Orange Tree Design Studio's fraud prevention program. Customers are required to comply with all fraud prevention program requests. Any unfulfilled requests may result in account suspension and/or account cancellation.

    Domain Name Transfers
    Under this Agreement, Customer may, through the Order Form, request Orange Tree Design Studio to activate an account for an existing Domain Name. By completing the Order Form, Customer represents and warrants to Orange Tree Design Studio that they have the authority to transfer said domain name. Customer understands that Orange Tree Design Studio will provide necessary information, including Orange Tree Design Studio DNS Server information, to the Customer to facilitate the domain name transfer process. However, the domain name transfer process is the sole responsibility of the Customer. Customer understands that such domain names are registered with or through third parties and the Customer must contact these third parties in order to transfer the domain name.

    The Customer is solely responsible for managing said domain name, including making annual domain registration fee payments with the Domain Registrar or other domain name management company.

    Fees, Taxes, and Payment
    Services are provided on a pre-pay basis. Customer will pay to Orange Tree Design Studio the Service Fees in accordance with Orange Tree Design Studio's fee schedule as posted on the Orange Tree website. Service Fees for renewal periods after the Initial Term shall be due immediately upon the first day of renewal period. Customer agrees that Orange Tree Design Studio will charge Service Fees to the credit card supplied by Customer. All payments shall be made in Australian Currency.

    The Service Fees do not include any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority with respect to the Services or any software provided hereunder. If applicable, all taxes will be paid by the Customer.

    Special Signup Promotions
    Orange Tree Design Studio may from time to time, at its sole discretion, offer special limited time promotions for new account signups. Customer acknowledges that these promotions are a one time special and does not recur for subsequent renewals. Customer also acknowledges that any currently running promotions are not retroactive and do not apply to accounts that have been signed up previously at a time when the current promotion was not offered.

    30 Day Money Back Guarantee
    If Customer terminates this Agreement within 30 calendar days of Effective Date of the Order's Initial Term, they will receive a full refund of the monthly Service Fees. Setup Fees. This Money Back Guarantee does not apply to the Renewal Term.

    Account Reactivation
    There is a $50 charge to reactivate accounts that have been suspended or terminated. Orange Tree Design Studio in its sole discretion can decide to reactivate or not to reactivate a particular account.

    Hardware and Software
    Customers are responsible for and must provide all phones, phone and Internet connectivity services, computers, software, hardware, and other services necessary to access Orange Tree Design Studio servers and Services. Orange Tree Design Studio makes no representations, warranties, or assurances that customer's equipment will be compatible with Orange Tree Design Studio Services.

    CPU Usage
    Customer agrees that they will not use excessive amounts of CPU processing on any of Orange Tree Design Studio's servers. Any violation of this policy may result in corrective action by Orange Tree Design Studio, which may be taken in Orange Tree Design Studio's sole discretion with or without notice.

    Bandwidth and Disk Space Usage
    Customer agrees that they shall not exceed the allotted limits for monthly bandwidth and disk space as set forth during the Order or subsequent addon purchase of additional server resources. Orange Tree Design Studio monitors Customer server resource usage and has the right to take Corrective Action, if the Customer's server resource usage exceeds the agreed upon limits or adversely affects other customers. If Orange Tree Design Studio must take Corrective Action, Customer shall not be entitled to refunds of any paid Service Fees. Once your disk storage exceeds the allocated limit, an additional disk space fee of AUD$0.11 per extra MB is charged.

    Customer Representations and Warranties
    Customer represents and warrants to Orange Tree Design Studio that during the Term that Customer owns, is a valid licensee, or has the right to use the Member Content, including all text, graphics, and code, and the use, reproduction, distribution and transmission of the Member Content and any information and materials contained therein does not, and will not,

    (i) infringe any copyright, trademark, or any other proprietary right of a third party,
    (ii) violate any criminal laws and will only be used for lawful purposes,
    (iii) constitute false advertising, unfair competition, defamation, an invasion of privacy, violate a right of publicity or violate any other law or regulation, or
    (iv) contain and will at all times remain free of computer viruses, worms, trojan horses, and other malicious code.

    Ecommerce Activities
    If Customer is engaged in Ecommerce Activity, they are solely responsible for
    (i) the accuracy and appropriateness of the Member Content,
    (ii) ensuring that Member Content does not infringe or violate upon the rights of any third party or individual,
    (iii) ensuring that the Member Content, products and services are not illegal,
    (iv) accepting, processing, and fulfilling customer orders,
    (v) handling customer inquiries or complaints, (vi) payment of any and all taxes associated with its online store, and
    (vii) the security and privacy of any customer information that Customer may receive as a result of Ecommerce Activity.

    Government Regulations
    Customer may not export, re-export, transfer or make available, whether directly or indirectly, any regulated items or information to anyone outside Australia in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the Australian Government and any country or organization of nations within whose jurisdiction Customer operates or does business.

    License to Orange Tree Design Studio
    Customer grants Orange Tree Design Studio the royalty-free, non-exclusive, worldwide right and license to reproduce, copy, use and distribute Member Content and to make archival or backup copies of the Member Content solely to provide and operate the Services. Orange Tree Design Studio acknowledges that they are not acquiring any right, title or interest in or to the Member Content, all of which shall remain solely with the Customer.

    Orange Tree Design Studio Intellectual Property
    Orange Tree Design Studio grants to Customer a non-exclusive, non-transferable, royalty-free license, exercisable solely during the term of this Agreement, to use applicable Orange Tree Design Studio Technology solely for the purpose of accessing and using the Services. Customer may not use the Orange Tree Design Studio Technology for any purpose other than accessing and using the Services. Except for the rights expressly granted herein, this Agreement does not transfer from Orange Tree Design Studio to Customer any Orange Tree Design Studio Technology, and all rights, titles and interests in and to the Orange Tree Design Studio Technology shall remain solely with Orange Tree Design Studio. Customer shall not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets from any of the Orange Tree Design Studio Technology. Orange Tree Design Studio's trademarks, tradenames, service marks, logos, other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of Orange Tree Design Studio. Customer may not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of Orange Tree Design Studio.

    Orange Tree Design Studio will maintain and control ownership of all Internet protocol numbers and addresses that may be assigned by Orange Tree Design Studio to Customer. Orange Tree Design Studio may, in its sole discretion, change or remove any and all such Internet Protocol numbers and addresses.

    Any feedback, data, answers, questions, comments, suggestions, idea or the like which Customer sends to Orange Tree Design Studio relating to the Services will be treated as being non-confidential and non-proprietary. Orange Tree Design Studio may use, disclose or publish any ideas, concepts, know-how or techniques contained in such information for any purpose whatsoever.

    Disclaimer of Warranty
    Customer agrees to use all Services and any information obtained through or from Orange Tree Design Studio, at Customer's own risk. Customer acknowledges and agrees that Orange Tree Design Studio exercises no control over, and accepts no responsibility for, the content of the information passing through Orange Tree Design Studio's host computers, network, or the Internet. THE SERVICES ARE PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS. NONE OF Orange Tree Design Studio, ITS PARENT, SUBSIDIARY OR AFFILIATED CORPORATIONS, OR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, AGENTS, SUPPLIERS, THIRD-PARTY INFORMATION PROVIDERS, LICENSORS OR THE LIKE ("Orange Tree Design Studio PERSON") MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, FOR THE SERVICES OR ANY EQUIPMENT Orange Tree Design Studio PROVIDES. NO Orange Tree Design Studio PERSON MAKES ANY WARRANTIES THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. Orange Tree Design Studio IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER OR STORED BY CUSTOMER OR ANY OF CUSTOMER'S USERS VIA THE SERVICES PROVIDED BY Orange Tree Design Studio. NO ADVICE OR WRITTEN INFORMATION GIVEN BY ANY Orange Tree Design Studio PERSON, WILL CREATE A WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE. The terms of this section shall survive any termination of this Agreement.

    Indemnification
    Customer agrees to indemnify, defend and hold harmless Orange Tree Design Studio and its parent, subsidiary and affiliated companies, and each of their respective officers, directors, employees, shareholders and agents ("Indemnified Parties") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings, and expenses (including attorney fees) threatened, asserted, or filed by a third party against any of the Indemnified Parties arising out of or relating to
    (i) Customer's use of the Services,
    (ii) any violation by Customer of the Service Usage Policy,
    (iii) any breach of any representation, warranty, or covenant of Customer contained in this Agreement, or
    (iv) any acts or omissions of Customer. The terms of this section shall survive any termination of this Agreement.

    Limitation of Liability
    Customer agrees that no Orange Tree Design Studio Person, under any circumstances, shall be held responsible or liable for situations where the Services are accessed by third parties through illegal or illicit means, including situations where such data is accessed through the exploitation of security gaps, weaknesses or flaws (whether known or unknown to Orange Tree Design Studio at the time) which may exist in the Services or Orange Tree Design Studio's equipment used to provide the Services.

    Under no circumstances, including negligence, shall any Orange Tree Design Studio Person be liable for any indirect, incidental, special, consequential or punitive damages, or loss of profits, revenue, data or use by Customer, any of its users, or any other third party, whether in an action in contract or tort or strict liability or other legal theory, even if Orange Tree Design Studio has been advised of the possibility of such damages.

    No Orange Tree Design Studio Person shall be liable to Customer, any of its users, or any other third party, for any loss or damages that result or are alleged to have resulted from the use of or inability to use the Services, or that results from mistakes, omissions, interruptions, deletion of files, loss of data, errors, viruses, defects, delays in operations, or transmission or any failure of performance, whether or not limited to acts of God, communications failure, theft, destruction or unauthorized access to Orange Tree Design Studio's records, programs, equipment, or services.

    IN NO EVENT WILL Orange Tree Design Studio'S LIABILITY IN CONNECTION WITH THE SERVICES, ANY SOFTWARE PROVIDED HEREUNDER OR ANY ORDER, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE ACTUAL SERVICE FEES PAID TO Orange Tree Design Studio BY CUSTOMER DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.

    Orange Tree Design Studio CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. Orange Tree Design Studio WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEM.

    Customer understands, acknowledges and agrees that if Orange Tree Design Studio takes any corrective action under this Agreement because of an action of Customer or its website users, Customer agrees that Orange Tree Design Studio shall have no liability to Customer due to such corrective action by Orange Tree Design Studio.

    The terms of this section shall survive any termination of this Agreement.

    Force Majeure
    Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party's reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, acts of government or other legal order, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.

    Independent Contractor
    Orange Tree Design Studio and Customer are independent contractors and nothing contained in the Agreement places Orange Tree Design Studio and Customer in the relationship of principal and agent, partner or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party.

    Assignment and Successors
    Customer may not assign or transfer this Agreement, or any of its rights or obligations hereunder, without the prior written consent of Orange Tree Design Studio. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Orange Tree Design Studio may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Customer. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

    Entire Agreement and Severability
    This Agreement represents the entire agreement between the parties, and supercedes all previous agreements.

    All rights and restrictions contained in the Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.

    Customer hereby represents that they are either, an individual entering this Agreement for their personal use and is of legal age to execute this Agreement, or a corporation, limited partnership or other legal entity, validly existing under the laws of the state of its organization and the person acting on behalf of Customer is authorized to execute this Agreement on behalf of Customer.


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