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Service Agreement
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SERVICE AGREEMENT
This Service Agreement (the “Agreement”) between
HITDRIVEN HOSTING Pty Ltd (“Provider”) and
______________________________ (“Customer”) governs
provision of Provider’ Internet service (the
“Service”). This Agreement is effective as of the
moment Customer (a) indicates assent through the Provider’s
Website in accordance with Provider’s rules and guidelines or
(b) establishes an account with the Provider or uses the Service or any
element thereof. The Provider reserves the right to
revise this Agreement from time to time by posting a new version hereof
on Provider’s website. If Customer signed up for
the Service under a previous version of a service agreement, such
revised terms will become effective fifteen (15) days after the revised
service agreement has been posted. Customer’s continued use
of the Service after the effective date of the new service agreement
constitutes acceptance of the terms and conditions set forth therein.
A. Acceptable Use Policy
The acceptable Use Policy (“AUP”) sets forth the
principles, guidelines and requirements governing the use of the
Providers services and products ("Services") by the Customer. The
purpose of Provider's AUP is to comply with, and cause
Customer’s to comply with, all federal, state, and local laws
and protect the network security, network availability, physical
security, Customer privacy, and other factors affecting the services
provided by Provider. Provider shall impose rules and regulations
regarding the use of its Services that it reasonably believes are
necessary to achieve the purposes set forth herein. The rules
and regulations established by the Provider under the AUP are subject
to change from time to time upon reasonable notice to
Customers. Such rules and regulations are located on the
Internet at http://www.hitdriven.com/aup.shtml. The AUP is not an all
inclusive exhaustive list and Provider reserves the right to modify the
AUP at any time as needed, effective upon either the posting of the
modified AUP to http://www.hitdriven.com.com/aup.shtml or notification
to the Customer via email. Acceptance and execution of the Services
Agreement binds all parties to Provider’s stated
AUP. The AUP is made an express part of this
Agreement. In the event of a conflict between the AUP and
this Agreement, the AUP shall govern. For purposes of this
agreement, the defined term “Agreement” shall mean
this Agreement, the AUP and all other rules, regulations and policies
adopted by Provider and disclosed to the Customer.
B. The Service
The service includes the features set forth in the Service Agreement.
Customer agrees to the following terms and conditions regarding the
term and termination of such Agreement and regarding billing cycles for
each of the services.
The Service Agreement under which Provider provides Services to
Customer is strictly between Provider and Customer and no third party
beneficiary to the Service Agreement is intended not permitted
hereunder. The Service Agreement shall confer no rights in
any third party except as may be otherwise expressly agreed to in
writing by the Provider.
In the event that Customer is dissatisfied with the Service, including
without limitation any new feature or restriction established by
Provider through a new service agreement, the AUP or otherwise,
Customer’s sole remedy will be to terminate the Service
Agreement.
C.
Network Guarantee
HITDRIVEN HOSTING Pty Ltd endeavors to have Service(s) available for
access by any party in the world 99.9% of the time. Network downtime
(unavailability) is defined as 100% packet loss from HITDRIVEN HOSTING
Pty Ltd to its backbone providers. Downtime is measured past 10
minutes. HITDRIVEN HOSTING Pty Ltd's administrators will determine the
end of the downtime by a trace route to the customer's machine from
outside the HITDRIVEN HOSTING Pty Ltd network.
D.
Fees and Credits
Fees. Customer agrees that he/she/it shall be responsible for
payment of fees for Services provided by Provider hereunder in
accordance with Provider’s schedule of fees that are
effective on the effective date of this Agreement or as they may be
amended by Provider from time to time.
Payments. Customer agrees that he/she/it shall make payment
for Services provided by Provider in Australian Dollars by EFT, Bank
Transfer, cheque, money order, credit card (VISA, MasterCard, American
Express, and Discover), bank wire transfer or
paypal. All payments are due no later than ten (10)
days from the date shown of the Provider’s invoice to the
Customer. If you provide Provider for your credit card or
debit card information purposes of making payment for the Services, you
hereby authorize Provider to automatically charge your credit or debit
card for charges that apply to your account in accordance with
Provider’s then applicable fee schedule. Recurring charges
will be posted to your credit card until such time that you cancel your
account in accordance with this Agreement. Charges subsequent to your
initial order will accumulate in your account until such charges exceed
$5. Provider will then automatically charge your credit card for
payment of said balance. You are responsible for updating, or notifying
Provider, of any changes to your credit card (including, but not
limited to card number, expiration date, billing address, or card
status).
Billing/Price Changes. Provider' policies and prices are
subject to change without notice. Any price changes become effective in
the next billing Term.
Billing Cycles. You may elect to change your billing Term at
any time; however, the new billing Term will only take effect at the
time of the next Service Agreement renewal. All additional
features added to an account are charged monthly unless ordered with
initial Service(s). Additional items are non-refundable.
New Account Payment
Payment is due before service is activated unless otherwise agreed upon
in writing.
The amount of the first payment is the terms portion of the Service
fees calculated as follows (30 days – today date)/30 days *
Service Fee) – Term discount) and the next terms payment.
Metered Resources. If Customer exceeds its
Service’s transfer allotment, bandwidth commitment, or
pre-paid Service allotment during any month, (i) Provider may charge
Customer for such overage immediately or on the next invoice, as
Provider deems appropriate; and (ii) Provider may require monthly or
other periodic payment for such increased usage level in advance of
provision of the Service from that point forward. The provisions of the
preceding sentence apply regardless of the cause of such overage, even
if hacker activity or other third party activity caused the overage.
Customer is responsible for monitoring transfer, bandwidth utilization,
and other metered services.
E. Term.
Term; Renewals. The term of this Agreement shall be for a
period of one year from the effective date hereof. This
Agreement shall automatically renew at the end of such term for
subsequent terms of I year duration unless earlier terminated in
accordance with this Agreement. The Service
Agreement’s monthly anniversary is the 1st of the month.
Minimum Age Requirement. Provider customers must be at least
18 years of age. Any individual under the age of 18 years must have the
master account created with their parent or guardian’s
name. Any acceptance of the TOS or any other agreement for
Provider' services will be deemed null and void to the extent that
Provider will not be liable in any way as a result if we find that the
customer was not of legal age at the time of service inception.
Cancellations. Provider will automatically renew the Service
Agreement until such time as it is cancelled by the Customer in
writing. In order to cancel service, you must e-mail
Provider' billing team at billing@hitdriven.com. not later than ten
(10) days prior to the end of the then current billing period of your
desire to terminate your service. Notifications of
cancellation received after the ten (10) day cut-off shall be effective
as of first billing following Provider’s receipt of the
notice of cancellation for which such notice can be considered
timely. Provider will confirm the cancellation request when
it is processed. If you do not receive a confirmation, please contact
Provider as soon as possible.
Statements. Provider shall issue statements via email to the
designated master account. Provider does not mail paper invoices or
statements.
Billing for Network Resources. The customer understands that
the customer is responsible for paying for any network resources that
are used to connect the customer's server to the Internet. The customer
may request that the customer's server be disconnected from the
Internet, but the customer will still be responsible for paying for any
network resources used up to the point of suspension or cancellation.
Bankruptcy or Insolvency Termination. Provider may
immediately terminate provision of Provider' services to the customer
without prior notice or penalty, if a customer becomes insolvent or any
bankruptcy petition is filed by the customer.
Returned (NSF) Cheques. Provider charges a fee for returned
(NSF) cheques in an amount not less than $25.00 per returned item and
otherwise in accordance with Queensland law. Customers that issue an
NSF cheque will be required to submit future payments with a certified
cheque or money order. A returned cheque will constitute a material
breach of this agreement, and the account will revert to late status.
Bank Wire Payments. Your issuing bank may charge a fee for
sending a wire. Please add these fees to the amount that you are
sending to Provider or the amount credited to your account will be less
than your intended payment.
Reactivation. Customers that wish to reactivate a suspended
account due to a billing related issue will be assessed a $50.00
reactivation fee.
Late Invoices. Provider reserves the right to charge a $10
late fee to any invoice that has not been paid by its due date.
Suspended Accounts. Provider reserves the right to suspend
any account that is more than ten (10) days past due. All
past due and unpaid balances are subject to collection. In the event of
collection, you will be liable for costs of collection including
reasonable attorneys’ fees, court costs, and collection
agency fees. None of the remedies listed in this section is exclusive
of other remedies.
Refund Policy. There are no refunds offered or promised for
Service rendered by Provider.
Credit Card Disputes/ Chargebacks. Provider has a zero
tolerance policy for chargebacks. Any customer who disputes a credit
card payment is subject to a fine, suspension and account termination
at Provider' discretion. A charge of $50.00 per chargeback will be
assessed to all accounts that receive a chargeback.
Credits. Customer accounts will be credited $1.00 per hour
that Service(s) are unreachable. Credits will usually be applied within
thirty (30) days of your credit request. Credit to your account shall
be your sole and exclusive remedy in the event of an outage.
Restrictions. Provider shall not be obligated to
issue credits to any Customer in the event that Customer experiences
any outage that is the result of (1) scheduled maintenance as posted
from time to time at www.hitdriven.com; (2) Customer’s
behavior or the performance or failure of Customer’s
equipment, facilities or applications; (3) circumstances beyond
Provider’s reasonable control, including, without limitation,
acts of any governmental body, war, insurrection, sabotage, worms or
virus’s, embargo, fire, hurricane, flood, strike or other
labor disturbance, interruption of or delay in transportation,
unavailability of interruption or delay in telecommunications or third
party services, including DNS propagation, domain name registration /
transfer, failure of third party software or hardware or inability to
obtain raw materials, supplies, or power used in or equipment needed
for provision of your web site; or (4) Customer’s breach of
this Agreement or Provider’s AUP.
F. Customers Responsibilities
Responsibilities; Generally. Customers are required to use
the Provider network responsibly. This includes respecting the other
customers of Provider. Provider reserves the right to suspend and/or
cancel service with Customer if Customer uses the Provider network in
such a way that Provider, in its sole discretion, may
adversely affect other of Provider’s customers, violate the
law or is otherwise believed by Provider to be improper. As a general
practice, Provider does not monitor its customers' communications or
activities to determine whether they are in compliance with the TOS,
however, Provider reserves the right to monitor Customer to determine
whether Customer’s facilities are operating
satisfactorily. In the event that Provider becomes aware of
any conduct, act or occurrence that it, in its reasonable discretion,
determines to be a violation of this Agreement, the AUP or applicable
law, Customer agrees that Provider is expressly authorized to take any
action that Provider deems reasonable and necessary to stop or correct
such violation, including, but not limited to, denying
Customer’s access to the Services and equipment or to the
Internet. In addition, Customer agrees that they shall be responsible
to monitor the conduct of his/her/its customers and shall be
responsible for any conduct of his/her/its customers that Provider
reasonably determines to be a violation of this Agreement, the AUP or
applicable law. Customer acknowledges and agrees that
Provider may take action against any customer for any damages that it
may suffer as a result of the actions of the Customer’s
customer that arise from or are related to the Services.
Customer agrees that he/she/it shall cooperate with Provider in taking
and/or implementing any corrective or preventive action that Provider
deems necessary. Failure to cooperate with such corrective or
preventive measures is shall be deemed a material beach of this
Agreement and Provider reserves the right to take all remedial action
that it determines to be reasonable and necessary under the
circumstances.
Customer Security Responsibilities. Customer is solely
responsible for any breaches of security affecting servers under
customer control. If a customer's server is involved in an attack on
another server or system, it will be shut down and an immediate
investigation will be launched to determine the cause/source of the
attack. In such event, the customer is responsible for the cost to
rectify any damage done to the customer's server and any other
requirement affected by the security breach. Customer is
responsible for maintaining security, patches, disaster recovery
systems, and backups. Provider is not responsible for providing
physical access to or copies of the software, data, or content stored
on the system under any circumstances and is not required to provide
network access after any termination or suspension of
Customer’s account or in the event of hardware failure, abuse
by hackers or other third parties, improper administration by Customer,
or other interruption of network access not resulting from
Provider’ fault. Provider will not be liable for loss of data
or for breaches in system integrity, even if Customer’s
Package includes firewalls, backups, denial of service protections, or
other mechanisms to protect data and system integrity. In the event
that Provider suspects that security of any of its equipment has been
breached, it may disable such equipment and the Service.
Backup of Data. Except where Provider has expressly agreed in
writing to the contrary, customers are solely and entirely responsible,
and Provider is in NO way responsible, for the management and backup of
all customer data, and all updates, upgrades, and patches to any
software that customers use in connection with Provider services.
G. Ownership of Ips, Software, Hardware and Data Third Party
Licenses. Provider makes a reasonable effort to provide
customers with technologies, developments, and innovations
(collectively "Technologies"), part of which may be licensed, or
co-branded, from or by, third party entities. However, Provider makes
NO warranty of any kind, either express or implied, regarding the
quality, accuracy, reliability, validity, or continued existence of any
or all aspects of such Technologies. Moreover, Provider specifically
disclaims all warranties of merchantability and fitness for a
particular purpose for such Technologies. Furthermore, no customer will
hold Provider liable in any way for the revocation of any license,
which has been licensed to Provider. The use of the Technologies
obtained from or through Provider, or any other referred third party,
whether directly or indirectly, is at the sole risk of
customers. All software, hardware and Internet
protocol (“IP”) addresses provided by Provider are
licensed to Customer and remain Provider’ sole and exclusive
property.
H. Maintenance windows, Service Interruptions. Provider may
discontinue, upgrade, replace, modify, or change in any way, without
limitation, any software, application, program, data, hardware,
equipment, or portions or components thereof, used to provide customers
with Provider' services. Certain changes to Provider' services may
affect the operation of customers' personalized applications and
content. Each customer is solely responsible, and Provider is not
liable, for any and all such personalized applications and content,
except as expressly agreed to by Provider.
I. Warranties, Disclaimers and Privacy. Provider is concerned
with the privacy of on-line communications and web sites. In general,
the Internet is neither more nor less secure than other means of
communication, including mail, facsimile, and voice telephone service,
all of which can be intercepted and otherwise compromised. As a matter
of prudence, however, Provider urges its customers to assume that all
of their on-line communications are insecure. Provider is not
responsible for the security of information transmitted over Provider'
facilities.
J.
Indemnification. Customer agrees to protect, defend, hold
harmless, and indemnify Provider, any third party entity related to
Provider (including, without limitation, third party vendors), and
Provider' executives, directors, officers, attorneys, managers,
employees, consultants, contractors, agents, parent companies,
subsidiaries, and co-subsidiaries with the same parent Provider as
Provider, from and against any and all liabilities, losses, costs,
judgments, damages, claims, or causes of actions, including, without
limitation, any and all legal fees and expenses, arising out of or
resulting in any from the customer's use of Provider' services.
K.
Disclaimer. The Provider service is provided on an as is, as
available basis without warranties of any kind, either express or
implied, including, but not limited to, warranties of merchantability,
fitness for a particular purpose or non-infringement. Provider
expressly disclaims any representation or warranty that the Provider
service will be error-free, secure or uninterrupted. No oral advice or
written information given by Provider, its employees, licensors or the
like, will create a warranty; nor may you rely on any such information
or advice. Provider and its partners and suppliers will not be liable
for any cost or damage arising either directly or indirectly from any
transaction or use of the service.
L.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT, AND
UNDER NO THEORY OF LAW OR EQUITY, WILL PROVIDER (INCLUDING, WITHOUT
LIMITATION, PROVIDER'S EXECUTIVES, DIRECTORS, OFFICERS, ATTORNEYS,
MANAGERS, EMPLOYEES, CONSULTANTS, CONTRACTORS, AGENTS, PARENT
COMPANIES, SUBSIDIARIES, CO-SUBSIDIARIES WITH THE SAME PARENT COMPANY
AS PROVIDER, AFFILIATES, THIRD-PARTY PROVIDERS, MERCHANTS, LICENSORS,
OR THE LIKE) OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING, OR
DISTRIBUTING PROVIDER'S SERVICES, BE LIABLE FOR THE LOSS OF A DOMAIN
NAME, OR ANY BUSINESS OR PERSONAL LOSS, REVENUES DECREASE, EXPENSES
INCREASE, COSTS OF SUBSTITUTE PRODUCTS AND/OR PROVIDER SERVICES, OR ANY
OTHER LOSS OR DAMAGE WHATSOEVER, OR FOR ANY CONSEQUENTIAL, SPECIAL,
INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES OF ANY KIND ARISING OUT OF ANY
USE OF, OR ANY INABILITY TO USE, ANY PROVIDER SERVICES EVEN IF PROVIDER
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PROVIDER'S TOTAL
CUMULATIVE LIABILITY, IF ANY, TO CUSTOMER, OR ANY THIRD PARTY, FOR ANY
AND ALL DAMAGES, RELATED TO THE TOS OR PROVIDER'S SERVICES, INCLUDING,
WITHOUT LIMITATION, THOSE FROM ANY NEGLIGENCE, ANY ACT OR OMISSION BY
PROVIDER OR PROVIDER'S REPRESENTATIVES, OR UNDER ANY OTHER THEORY OF
LAW OR EQUITY, WILL BE LIMITED TO, AND WILL NOT EXCEED, THE ACTUAL
DOLLAR AMOUNT PAID BY THE CUSTOMER FOR THE SERVICES WHICH GAVE RISE TO
SUCH DAMAGES, LOSSES AND CAUSES OF ACTIONS DURING THE MONTH PERIOD
PRIOR TO THE DATE THE DAMAGE OR LOSS OCCURRED OR THE CAUSE OF ACTION
AROSE.
M. Systems
and Networks Information. Provider makes NO warranty of any
kind, either express or implied, regarding the Services except as may
be expressly set forth herein, or the quality, accuracy, or validity of
the data and/or information available. Use of information obtained from
or through Provider is at the sole risk of Customer. The data or
information available through the interconnecting networks may not be
accurate, and Provider has no ability or authority over the data or
information. Provider makes NO warranty of any kind, either express or
implied, regarding the quality, accuracy, or validity of the data or
information residing on or passing through the inter connecting
networks. Use of data or information obtained from or through Provider'
services is at the sole risk of each customer.
N.
Provider' Intellectual Property. Customers will not, without
Provider' express written consent, copy, reproduce, republish, or
otherwise use any material, in whole or in part, that is located on
Provider' web site, and customers will not use any of Provider'
trademarks, service marks, copyrighted materials, or other intellectual
property without Provider' express written consent. Customers will not,
in any way, misrepresent their relationship with Provider, attempt to
pass themselves off as Provider, or claim that customers are Provider.
O.
Assignment. Customers may not assign or delegate their rights
or obligations under this Agreement, in whole or in part, without the
prior written consent of Provider.
P.
Governing Law and Severability. This Agreement is governed by
and construed in accordance with the laws of the State of Queensland,
Australia without reference to its conflicts of laws principles. If any
provision or portion of this Agreement, the AUP, or any other agreement
between Customer and Provider is found to be unenforceable for any
reason, the remainder of such Agreement will continue in full force and
effect.
Q.
Force Majeure. Provider will not be liable for delays in its
performance of the Services caused by circumstances beyond Provider'
reasonable control, including acts of God, wars, insurrection, civil
commotions, riots, national disasters, hurricanes, earthquakes,
strikes, fires, floods, water damage, explosions, shortages of labor or
materials, labor disputes, transportation problems, accidents,
embargoes, or governmental restrictions (collectively "Force Majeure").
Provider will make reasonable efforts to reduce to a minimum and
mitigate the effect of any Force Majeure. Notwithstanding anything
contained elsewhere herein, lack of finances will not be considered an
event of Force Majeure nor will any event of Force Majeure suspend any
obligation of customers for the payment of money due. Waiver and
Amendment: Any waiver, modification, or amendment of any provision of
this Agreement, initiated by Customer, will be effective only if
accepted in writing and signed by an authorized representative of
Provider.
R.
Independent Contractors. Nothing in this Agreement is
intended, nor shall it be construed, as creating a partnership or
relationship of employer and employee, principal and agent, partnership
or joint venture between Provider and its customers. Each of Provider
and its customers will be deemed an independent contractor at all times
and will have no right or authority to assume or create any obligation
on behalf of the other, except as may be expressly provided herein.
S.
Complete Agreement and Exclusivity. This Agreement
constitutes the complete understanding and agreement between Provider
and Customers. Except as may be expressly agreed to in writing by the
parties, this Agreement and the AUP supersedes any other written
(including digitized/computerized) agreement, oral agreement, and/or
agreement by conduct.
T.
Waiver. The waiver of a breach by a party on one or more
occasions shall not preclude a party’s enforcement of a
subsequent breach of any obligation set forth in this Agreement.
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