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TERMS
 
TERMS
 

1. ORDERS:

All orders are subject to approval.

After approval of an order, an invoice will be issued for the service with the payment terms specified on the invoice. Normally, the invoice will be sent by e-mail to your address of record. Banking information for payment will be specified on the invoice.

2. PAYMENT:

2A.Payment must be received as specified PRIOR to the ordered services being activated.

[30June2008]
2B. In some cases, credit terms MAY be approved. In these instances, payment must be made according to terms on the invoice.

[17August2010] ***
2C. From 1 September 2010 invoices will be subject to additional bank service charges. There will be a Minimum Shipping and Handling Charge [Banking Fee] of US$10 added to every invoice. This may be in addition to any other shipping and handling charges which may be added for each specific item. This charge has been added by our Bank. Where remittances are coming via intermediary banks, there is an additional bank service charge of US$25 added to the invoice. This means for most international transactions [transactions outside of the US] there will be a banking fee of US$35 [= US$10 + US$25]. In cases where no Bank fees apply, these amounts may be deducted from the invoice. Payments originating inside the US will not incur banking fees. Certain payments in Australia will not incur banking fees. Certain payments in cash MAY be accepted in some countries, but may still be subject to banking fees. Where banking fees are on the invoice, but not included in the remittance, payment will be first applied to the Banking Fees and the balance, if any, will be applied to the remaining invoice balance. This could result in suspension of service and additional fees may apply when remitting the remaining balance.

3. RENEWAL:

3A. All services are automatically renewed at the end of each period. If you order Web Hosting for 1 year, it will be automatically renewed unless specifically cancelled with a minimum of 30 days notice prior to expiration of service.

[30Jun2008, effective 1 July 2008:]
3A. All services are automatically renewed at the end of each period. If you order Services for 1 year, it will be automatically renewed unless specifically cancelled with a minimum of 65 days notice prior to expiration of service.

Renewal invoices will be sent one month before the renewal date of the service. Payment must be received no later than 10 days prior to renewal date to avoid interuption of services.

[30June2008]
3B. In the event that invoicing is delayed for whatever reason, payment must be received based on the invoice terms. Due dates will be calculated from the Date/Time stamp on the email.

4. NON-PAYMENT/LATE PAYMENT:

Services which are interupted because of non-payment will be subject to a re-activation charge equal to the fee for 1 month of service.

[18August2007]
4A. Late charges will apply to accounts which have not been paid by the due date. A finance charge will be applied on overdue invoices on the last day of each month. In the case of invoices which remain unpaid for multiple months, finance charges will be applied to finance charges. The finance charge rate may be changed, without notice, at any time. To avoid finance charges, ensure that all accounts are paid on time.

[18August2007]
4B. Finance charges are 1%/month.
[30June2008]
From 1 July 2008, Finance charges are 2%/month.

[30June2008]
4C. Late charges will be applied the day after due date. Late charges will be calculated as 1% of the due amount. Minimum Late Charge will be US$50. Late charges will also be applied on 1st day of each month for overdue accounts.

5. CANCELLATION:

5A. HOSTING SERVICES:
Services may be cancelled at any time with a minimum of 30 days notice of cancellation and such notice must be prior to the beginning of a billable period. Unused prepaid fees will be refunded subject to a 10% cancellation fee.

[30June2008]
Services with less than 65 days remaining before renewal can only be terminated at exdisting contract completion [renewal date].

Cancellation example: Service cancellation is always at the end of a billable period [usually a month, but according to your service contract]. A request for termination of a service must be received a minimum of 30 days before cancellation and before the beginning of the period. A cancellation at end of August must be received on or before 31 July. A cancellation at end of February must be received on or before 30 January. You cannot request a cancellation of service at end of August on the 1st of August as the period has already commenced. In this case, the earliest possible cancellation would be 30 September.

NEW SERVICE - INITIAL PERIOD ADJUSTMENT:

New services will be prorated for the initial month. All services will expire on the last day of a month. If you order a new annual service on the 10th of the month, you will be invoiced for 20 days of the current month 12 months. Your service would expire in 12 months and 20 days in this case.

All services are for a minimum period of 12 months, or a multiple of 12 months [with pro-rata additional days for the first month].

5B. DEVELOPMENT SERVICES:
[12July2007]

In the event of cancellation of a contract for development services, for whatever reason, there will be a forfeiture of any deposits. Further, in the event that there is work completed, which is unbilled at time of cancellation, then such work must be paid before the cancellation can become effective. Such completed work will be billed at a 10% surcharge over the quoted prices.

 

 6. CONFIDENTIALITY and SECURITY:
[12July2007]

An implied Confidentiality and Security agreement exists between provider and customer. Both parties to the agreement of service undertake to hold all information between the parties as confidential and to ensure security of such information and material.

6A. Breach:
In the event of a breach of confidentiality by either party, the persons involved in the breach will be held liable for consequential losses. In the event that the breach of confidentiality involves competitors of either party, then a penalty equal to the value of the contract,  but not less than US$10,000, will apply,
 with an additional punitive damage of not less than three times the contract value, but not less than US$30,000. Such employee of either party will be personally liable for the damage amount, but in any event, such damage will be first payable by the party involved in the breach. A breach of confidentiality is not grounds for termination of the contract, and multiple breaches over the life of the contract would result in multiple damage payments. Material evidence of breach must be provided and proven by either party. The proof may be in any tangible form.

[18August2007]
6B. Theft and DMCA:
In the event of a theft or violation of DMCA [the act], the persons and companies involved in the act will be held liable under the laws of the USA. A penalty will be assessed equal to 10 times the value of the contract [if any],  but not less than US$150,000,
 with an additional punitive damage of not less than three times the penalty amount, but not less than US$450,000. In the event that the act involves an ISP or Information Technology Company, then a penalty will be assessed equal to 10 times the value of the contract [if any],  but not less than US$500,000, with an additional punitive damage of not less than three times the penalty amount, but not less than US$1,500,000.

[30June2008]
6B. Theft and DMCA [Amended, replaces prior article 6B]:
In the event of a theft or violation of DMCA [the act], the persons and companies involved in the act will be held liable under the laws of the USA.

Additionally, if an action becomes subject to the DMCA, such actions will be brought by appropriate prosecutors which may or may not include Corkscrew.

Additionally, Corkscrew may act separately to assess recovery via a penalty which will be assessed equal to 10 times the value of the contract [if any],  but not less than US$150,000, with an additional punitive damage of not less than three times the penalty amount, but not less than US$450,000. In the event that the act involves an ISP or Information Technology Company, then a penalty will be assessed equal to 10 times the value of the contract [if any],  but not less than US$500,000, with an additional punitive damage of not less than three times the penalty amount, but not less than US$1,500,000. Whereas the DMCA contains codified conditions guiding implementation of the law, actions for recovery by Corkscrew will be deemed to be contractual conditions and pursued based on contract violations.

In the event that the violations are conducted via a third party, for the benefit of the third party and causing of damage to Corkscrew, there will be an implied contract between the parties as a result of theft, and the second party involved [direct contract with Corkscrew] will also be held liable under various contract terms herein and either concurrent or separate actions instituted against second and third parties.

In the event that violations are conducted alone by a third party, for the benefit of the third party, there will be an implied contract in that the theft of property has occured from Corkscrew owned or operated sites and the action of accessing those sites constitutes a contract and is covered by the terms and conditions described herein.

[18November2010] ***
6C. Accuracy of Content based on fact.
In the event there is a challenge to the accuracy of content, by any party, and if the challenged content is NOT PUBLICLY VISIBLE [ie requires a password for access], then any such challenge will be automatically denied without further investigation.

In the event there is a challenge to the accuracy of PUBLICY VISIBLE content [ie requires no special access authorization] by a third party, and the challenge is not one related to a personal viewpoint, but a challenge based on fact, then Corkscrew will reasonably attempt to either prove the validity of the content or confirm the challenge. In the event that the validity of the challenge cannot be confirmed, Corkscrew will notify the challenger and the issue closed.

In the event that the challenge is confirmed, or that the content owner, when requested, cannot or will not confirm the validity of the content, and, Corkscrew has been unable to independently confirm the validity of the content, Corkscrew will issue a request that the challenged content be voluntarily removed. If the content owner fails to remove, or refuses to remove, the challenged content within the requested time, and additionally fails to confirm the validity of the content, Corkscrew, at its option, may either block access to the specific content or block access to the entire web site.  If the content owner continues to refuse to remove any validly challenged content, this will result in forfeiture of the contract without recourse. Additional Penalties may apply.

Corkscrew will keep confidential the identity of any and all parties in Content Accuracy issues.

7. CONTRACTS:

In the absence of a specific written contract, payment of services becomes a contract between the parties and the terms specified on the invoice are the terms of the contract. Additionally, the invoice will refer to this web site for additional clarification of the terms and conditions of service and these are automatically part of the contracted service.

When a written contract exists, it may reference this web site for clarification of terms and conditions. Where the contract is silent on a specific issue, then the terms as referenced in this web site will be considered as a part of the contract terms and conditions.

When a contractual relationship commences between the parties, both parties become bound to a non-compete status for their respective employees. During the contract period , and for a period of 6 months after contract completion, neither party is permitted to offer employment to, or accept applications from, or directly or indirectly employee, or contract, or in any other way utilize the services of, employees of the other party. If such an event occurs, the other party to the contract must be notified immediately. In the event of employment in violation of this contract, the offending party agrees to instantly terminate, if requested, any person subject to the violation and pay compensation equal to ten times the annual value of the contract or ten times the annual salary of the employee, whichever is greater.

8. LEGAL:
[7July2007]

8A. The default law, jurisdiction and venue for contracts is Arapahoe County, Colorado, USA. Where a contract specifies an alternate jurisdiction or venue, in all cases, the contract will be governed by the laws of United States of America and the alternate jurisdiction or venue must be guided by and follow these laws. Where the contract states the Laws of British Virgin Islands, this term is replaced by Laws of The United States of America at contract renewal.

[30June2008]
8B. From 1 July 2008, all contracts are subject to the Laws of The United States of America.

[30June2008]
8C. In the event that legal action is commenced for violation of terms and conditions, all legal fees associated with the action are to be paid by the party violating the terms and conditions. Prior to commencement of any legal action, the violating party will be informed explicitly of this condition and given the opportunity to cure the violation. In the event that such effort fails, then the violating party has agreed to payment of all legal costs of the action. Legal costs are in additional to any other monetary claims of the action.

9. CHANGES IN TERMS AND CONDITIONS:

In the event that terms and conditions change, prices change, or other policy changes occur, such changes will apply when the existing service is renewed, except as otherwise noted. All existing customers are price protected from any price increases which may occur. Equally, if there is a price reduction of a service, then any existing service would receive a credit for the un-expired balance of contract service. This credit would be applied on the next billing cycle.

*** Items marked with the triple star [***] become effective on the date indicated and not at contract renewal as stated in item 9.

 Updated 3 August 2006
Amended 7 July 2007 [Added section on Legal. No other changes made].
Amended 12 July 2007 [Added numbers to headings, Added item 5B, Added item 6]
Amended 18 August 2007 [Added item 4A and 4B, Added item 6B]
Amended 30 June 2008 [Added item 2B. Amended item 3A. Added item 3B. Added to item 4B, Added item 4C, Amended item 5B. Amended item 6B. Added item 8B and 8C]

Amended 17 August 2010 [Added 2C]
Amended 18 November 2010 [Added 6C]

Commencing 1 January 2012, the procedure for billing support tickets has changed.


Support tickets will be invoiced at the end of each month. If quota is exceeded for the month, there will be an invoice for the excess amount. If quota is not exceeded, then there will be no invoice issued. Unused quota will be carried forward through to the end of the annual billing period.

Previously, there was a billing adjustment for the subsequent annual billing period. 

When a new annual billing period is due, the quota will be adjusted based on the previous 12 month activity. This may result in a different invoice amount. Always, any adjustments in billing will take advantage of the most effective rate for the customer.

Renewal billing will be issued 60 days in advance of renewal and customers may request a changed billing anytime within 30 days of the renewal. In all cases payment must be received on or before renewal date to avoid service suspension. Currently renewal billing is 30 days in advance.