Terms and Conditions

Australian Consumer Law

Nothing in these terms excludes, restricts, or modifies any right or remedy, or any guarantee, warranty, or other term or condition, implied or imposed by any legislation which cannot lawfully be excluded or limited. This includes the consumer guarantees under the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)).

If EXPEED fails to comply with a consumer guarantee, the CUSTOMER may be entitled to a remedy under the Australian Consumer Law depending on the nature and severity of the failure.

Term of this agreement

This agreement shall be effective from this date and shall run continually until written notice of cancellation is provided by either party to the other.

Ownership of content, data, hardware and other assets

All software, hardware, IP addresses and other assets are leased to the CUSTOMER by EXPEED and remain the property of EXPEED or its suppliers. EXPEED reserves the right to change the network infrastructure, software, hardware, IP addresses or other components, provided that EXPEED will use reasonable efforts to notify the CUSTOMER of material changes in advance where practicable.

CUSTOMERS will provide software, data and content by uploading such items to the server(s) which will then be accessed and consumed by the general public via the Internet. Upon cancellation, CUSTOMER agrees to remove all uploaded software, data and content from the server(s) prior to the termination date of this agreement. EXPEED will not be responsible for providing access to or copies of any software, data or content stored on the server(s) after the termination date of this agreement.

Service levels

• EXPEED may interrupt service in order to perform maintenance tasks. As such interruptions become necessary, EXPEED will use its best efforts to keep downtime to a minimum and to advise affected CUSTOMERS in advance if possible. In the event of system and/or software failure, EXPEED will use its best efforts to restore access and functionality as soon as possible.
• In the event that EXPEED suspects that server security has been breached, EXPEED reserves the right to disable any affected server(s) and/or the account(s) in order to fully investigate the suspected breach and aid in recovery in coordination with the CUSTOMER.
• While EXPEED will use reasonable efforts to maintain service availability, EXPEED shall not be liable for service interruptions caused by circumstances beyond its reasonable control, including but not limited to third-party network failures, natural disasters, or acts of government.

Adherence to the Acceptable Use Policy (AUP)

• CUSTOMER agrees that any equipment belonging to or used by EXPEED or its technology partners as applicable, for the purpose of providing the CUSTOMER with the PRODUCT(S) and/or SERVICE(S), will not be used in a way or for a purpose that are in contradiction to the regulations set out in the AUP. It is the CUSTOMER'S responsibility to familiarise themselves with the terms of the AUP and to check them regularly for changes which may be made at any time by EXPEED.
• CUSTOMER agrees that EXPEED equipment will not be used for the purposes of sending SPAM e-mail messages or unsolicited commercial e-mails (UCE), the perpetration of security breaches, hacking, network attacks, illegal activities or any reason that can reasonably be described as illegal, unacceptable or nefarious.
• CUSTOMER agrees to compensate EXPEED for any expenses that may be incurred resulting from the CUSTOMER'S violation of the AUP including, but not limited to, fees, fines, legal expenses and labour. EXPEED labour will be charged as per the table of charges. Minimum charge of 1 (one) hour.
• CUSTOMER is solely responsible for any activity that occurs on their account including unauthorised access by hackers and others. This includes, but is not limited to, breach of the AUP or incurrence of additional charges for exceeding account allowances. EXPEED will endeavour to assist its CUSTOMERS to prevent unauthorised access to the CUSTOMER'S account, but is not responsible for preventing such usage.
• EXPEED does not monitor the content or CUSTOMER accounts nor the activities of the CUSTOMER but reserves the right to disable the SERVICE(S) and/or remove the PRODUCT(S) pending investigations of possible breaches of the AUP without first giving notice should EXPEED be made aware of, or discover by any means, the potential for such a breach.
• EXPEED does not issue refunds or credit notes for SERVICE or PRODUCT suspensions due to investigations into possible breaches of the AUP.

Compromised websites and security remediation

• If EXPEED becomes aware, through its own monitoring, third-party notification, or any other means, that a CUSTOMER'S website or service has been compromised (including but not limited to malware injection, defacement, phishing content, or unauthorised access), EXPEED will notify the CUSTOMER and may immediately suspend the affected SERVICE(S) to protect the security of the server infrastructure and other CUSTOMERS.
• Upon notification, CUSTOMER must take all reasonable steps to remediate the compromise within 7 (seven) days, including but not limited to: removing malicious code, updating vulnerable software, changing compromised credentials, and addressing the root cause of the vulnerability.
• If the CUSTOMER fails to adequately remediate the compromise within 7 (seven) days of notification, or if the same website is repeatedly compromised due to the CUSTOMER'S failure to maintain their software and security, EXPEED reserves the right to terminate the CUSTOMER'S account and remove all associated PRODUCT(S) and SERVICE(S) without further notice.
• EXPEED may, at its sole discretion, grant a reasonable extension to the remediation period where the CUSTOMER can demonstrate that remediation is actively underway and progressing.
• No refunds or credit notes will be issued for SERVICE or PRODUCT suspensions or terminations under this clause.

Backups

EXPEED maintains full server backup images to be restored in the event of an EXPEED system failure. In the event of a system failure, EXPEED will restore the most recent available, known-good backup to ensure system stability. EXPEED makes no guarantee as to the date of such a backup and such backups are not for use by CUSTOMERS. It is the CUSTOMER'S responsibility to maintain their own backup copy of all data that is on their server(s) at all times. CUSTOMERS can request access to the backups held, but access will be granted at EXPEED'S sole discretion subject to availability and will be subject to a service fee as detailed in the table of charges.

Fees and charges

• EXPEED does not advance credit to CUSTOMERS. All PRODUCTS and SERVICES must be paid for in advance of delivery.
• Monthly SERVICE fees as well as fees and charges for additional metered SERVICES will be automatically billed to YOUR account. YOU are responsible for monitoring data transfer and disk utilisation amounts and other metered SERVICES and ensuring that they remain within YOUR allowances, or that YOU inform EXPEED to upgrade YOUR allowances should YOU believe that usages will exceed allowances.
• CUSTOMER is responsible for keeping their account up to date.
• All invoices will be e-mailed to the CUSTOMER'S designated e-mail address.
• Charges for excess usages above CUSTOMER'S allowances will be billed monthly to the CUSTOMER'S account. Excess usage charges for disk space and data transfer are charged per Gigabyte (calculated as 1000 (one thousand) Megabytes) or part thereof.
• Domain name renewals will automatically be billed to CUSTOMER'S account unless the CUSTOMER elects to disable auto renew through the billing system.
• Payment by bank transfer must be in full for the PRODUCT(S) and SERVICE(S) for the current billing period, and must be submitted prior to the due date.
• All invoices are due upon receipt unless otherwise stated on the invoice. Invoices that are not settled in full within 7 (seven) days shall incur a late payment fee as per our table of charges (below) which will automatically be added to YOUR account.
• All fees must be paid in full along with any and all outstanding invoices for PRODUCT(S) or SERVICE(S) in order for EXPEED to create and/or maintain a CUSTOMER account. EXPEED does not issue refunds or credit notes except as specified within this document.
• EXPEED may suspend or terminate a CUSTOMER account due to non-payment of outstanding invoices and charges.
• Failure to pay outstanding invoices issued for any purpose within 7 (seven) days of their due date may result in the immediate suspension of SERVICE(S) and/or PRODUCT(S) by EXPEED without further notification.
• Failure to pay outstanding invoices issued for any purpose within 14 (fourteen) days of their due date may result in the immediate termination of SERVICE(S) and/or PRODUCT(S) by EXPEED without further notification.
• Should the CUSTOMER not pay in full all outstanding invoices in a reasonable time, and EXPEED must resort to debt collection methods then the cost of such actions will be passed on to the CUSTOMER.

Table of charges

Cancellation of SERVICES or PRODUCTS

• YOU may cancel your PRODUCTS or SERVICES at any time via the Request Cancellation functionality on your service within the Client area.
• EXPEED offers a refund on the monthly hosting fees to the CUSTOMER upon cancellation made prior to the first 30 (thirty) days of the first payment for the PRODUCT or SERVICE, unless otherwise specified on the individual page relating to the PRODUCT or SERVICE. This refund only covers the monthly subscriptions. The refund does not include any setup fees, domain name registration fees, SSL certificate fees or any other one time fees that may have been applied.
• Due to the discounts offered, plans paid for in advance for 3 (three), 6 (six) or 12 (twelve) months are not refundable beyond the first 30 (thirty) days of the subscription.

Refund policy and 30-day money back guarantee

• EXPEED provides a 30 (thirty) day money back guarantee which applies to all web hosting SERVICES and Virtual Private Server ("VPS") PRODUCTS for new CUSTOMERS. CUSTOMERS wishing to obtain a refund under this policy must advise EXPEED in writing by e-mail to accounts@expeed.com.au within the first 30 (thirty) days from creating the new account.
• The 30 day money back guarantee only covers the cost of the PRODUCT or SERVICE purchased by the CUSTOMER and does not include incidental fees such as setup fees, domain registration, SSL certificates and other professional services which are non-refundable.
• Refunds within the 30 (thirty) days qualifying period will not be applicable if the CUSTOMER and/or the SERVICE is/are suspended for non-payment, failure to adhere to our AUP or for any other reason.
• Once the money back guarantee period has expired, no refunds will be issued for unused portions of advance payments (including annual advance payments) unless the account has been terminated due to our breach in these terms of service as outlined in this document or we exercise our right to terminate an account for a reason other than a breach of these terms of service.

Limitation of liability

• Upon the discovery of facts which would reasonably indicate that EXPEED has breached the terms of this agreement or otherwise failed to discharge its duties under the obligations of this agreement, the CUSTOMER shall notify EXPEED, in writing, of such facts even if such facts were initially notified to EXPEED verbally.
• If proper notification is given to EXPEED, EXPEED shall at its sole discretion and option:
  • Revise or repeat free of charge the SERVICE(S) affected by the failure of performance, negligence or breach, or,
  • Terminate this Agreement and pay CUSTOMER for all incidents, problems and/or failures up to a maximum of all sums paid to EXPEED for service fees in the 12 (twelve) months preceding the incident.
• Subject to the Australian Consumer Law clause above, the remedies set forth in this paragraph are the CUSTOMER'S sole and exclusive remedies should EXPEED breach the above express warranty or otherwise fail to perform its obligation under this Agreement.
• Subject to the Australian Consumer Law clause above, all parties acknowledge and agree that EXPEED shall not be held liable for any indirect or consequential damages, including without limitation loss of use or loss of profits, incurred by CUSTOMER, CUSTOMER'S customer or its subsidiaries or successors, regardless of whether such damages are sustained based upon an alleged breach of contract, negligent act, or omission.
• EXPEED is not responsible for data or content maintained and distributed via EXPEED facilities. While EXPEED endeavours to provide reliable services, EXPEED does not warrant that the services will be uninterrupted, error-free or completely secure. This does not limit any rights the CUSTOMER may have under the Australian Consumer Law.

Privacy

EXPEED collects, uses, and discloses personal information in accordance with the Privacy Act 1988 (Cth) and the Australian Privacy Principles. For details on how we handle your personal information, please refer to our privacy policy or contact us at privacy@expeed.com.au.

Dispute resolution

• If a dispute arises in connection with these terms, the parties agree to first attempt to resolve the dispute by written notification to the other party setting out the nature of the dispute.
• If the dispute is not resolved within 14 (fourteen) days of the notification, the parties agree to attempt to resolve the dispute through mediation before commencing any legal proceedings.
• Nothing in this clause prevents either party from seeking urgent interlocutory relief from a court of competent jurisdiction.

Force majeure

Neither party shall be liable for any delay or failure to perform its obligations under this agreement if such delay or failure results from circumstances beyond the reasonable control of that party, including but not limited to natural disasters, pandemics, acts of government, power failures, internet or telecommunications outages, cyberattacks on third-party infrastructure, or industrial action. The affected party must notify the other party as soon as practicable and use reasonable efforts to mitigate the effect of the event.

Changes to these terms

EXPEED may update these terms from time to time. Where changes are material, EXPEED will notify CUSTOMERS by e-mail to their designated e-mail address at least 30 (thirty) days before the changes take effect. Continued use of the SERVICES after the effective date of changes constitutes acceptance of the updated terms.

CUSTOMERS who do not accept the updated terms may cancel their SERVICES in accordance with the cancellation clause above without penalty, provided cancellation is requested before the effective date of the changes.

Governing law and jurisdiction

These terms are governed by the laws of South Australia and the Commonwealth of Australia. Each party submits to the non-exclusive jurisdiction of the courts of South Australia and any courts which may hear appeals from those courts.

Severability

If any provision of these terms is found to be void, unlawful, or unenforceable by a court of competent jurisdiction, that provision will be severed from these terms and the remaining provisions will continue in full force and effect.

Miscellaneous

CUSTOMER has reviewed the current AUP and this Terms of Service and CUSTOMER and EXPEED hereby agree by making use of the EXPEED service.