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TOS : Terms of Service for Dedicated Server Clients

Terms of Service for Dedicated Server Clients

Customer agrees to the following terms of service:

Customer agrees to a minimum 3 month contract term for services unless otherwise agreed to in writing. The contract for services is automatically renewed each renewal period (3, 6, 12 or 24 months) in perpetuity subject to written cancellation by the Customer.

Service Fees:
Fees for service(s) ordered by the Customer shall begin on the date of the initial order and that date shall serve as the anniversary date for all future billings including one time fees, upgrades, additional services, cancellations and service credits. Fees are due in advance of the service cycle (3, 6, 12 or 24 months) and will be billed on the anniversary date of rebilling period.

Upgrade Fees:
Upgrades ordered on the billing anniversary date will be billed for the full service and will continue on each anniversary date.

Additional Service Fees:
Additional services ordered on the billing anniversary date will be billed for the full month service and will continue each month on the anniversary date. Additional services ordered after the normal anniversary billing date will be pro-rated to the next anniversary date and billed as a one time pro-rata charge. Future charges will appear as full monthly fees added to your existing anniversary billing date.

One Time Fees:
One time fees, such as setup fees, administrative fees, bandwidth overages and late fees are due and payable at the time they are incurred, and agreed upon in writing or via ticket with approval.

Server Management:
AUSWEB Dedicated Server Hosting services are unmanaged. The Customer accepts the system administration & management is the responsibility of the Customer. AUSWEB will not provide scripting or development support for HTML or any coding and programming, nor will we provide support for third-party applications or software. In addition we will not provide support to your customers or provide training to you on how to configure or administer your services. Whilst AUSWEB may provide specific server management levels for certain services at additional charges, the level of management and restrictions will be clearly specified.

Service Credits:
Service credits will be issued to your Customer account and shall be used to offset future billable services. Service credits shall not be issued as cash back to the Customer nor are service credits transferable to other account holders.

If you wish to cancel any services AUSWEB requires a seven (7) day formal cancellation notice prior to the renewal billing date for discontinuance or downgrades of services.

Please be aware that you MUST follow AUSWEB's formal cancellation process to give an effective notice of non-renewal/cancellation of services.

Formal cancellation can ONLY be submitted from your Client Area located at: https://online.ausweb.com.au/clients/clientarea.php

Please use the client area username and password predefined in your welcome email!

Once logged in, click on "My Services", click on the "Details" icon next to your hosting service, then scroll down to the bottom of the page and click on "Cancellation Request" and follow the process. Once we receive the cancellation, the billing will be cancelled and the accounts suspended.

Failure to follow AUSWEB's formal cancellation process with the requisite seven (7) days effective notice will result in the account being re-billed as per the current billing cycle and no refunds can be issued

All customer data remaining after the cancellation date will be destroyed for security and privacy reasons.

The customer is responsible for all money owed on the account from the time it is established to the time that cancellation has been confirmed by AUSWEB.Transferring your domain away from AUSWEB does not mean your account is automatically cancelled. You must notify AUSWEB to cancel your account, using one of the methods listed above.

Refunds & Disputes:
All services rendered by The Company are non-refundable. This includes, but is not limited to: setup fees, one time fees, renewal and service fees ( 3 , 6 , 12 or 24 months), upgrade fees, additional service fees, administrative fees, and late fees. Customers seeking to resolve billing errors are instructed to open an accounting ticket inside the Customer portal located at https://online.ausweb.com.au/clients/clientarea.php. Customer agrees not to chargeback any credit card payments for services rendered. A chargeback of payment for services rendered will result in an additional charge of $150 and will be subject to collection by an authorized collection agency.

All payments are due in full on the anniversary date. Failure to remit payment for services on the monthly anniversary date is a violation of the TOS. A late fee of 10% will be incurred for failure to remit payment for services on or before the anniversary date. Failure to remit payment for three (3) consecutive days, including the anniversary date, shall result in a termination of public access to Customer services. A $150 reconnect fee will be incurred for failure to remit payment for services after public access has been disconnected. Failure to remit payment for services within seven (7) consecutive days, including the anniversary date, shall result in termination of access to the service network and all services shall be reclaimed. All Customer data remaining after seven (7) days of non-payment will be destroyed for security and privacy reasons.

The Customer agrees to use best efforts and commercially reasonable best practices when deploying services related to data integrity, backup, security, and retention. These services include, but are not limited to: hard drive storage, raid hard drive arrays, network attached storage, storage area networks, operating system installs, operating system reloads, customer portal information, and other situations involving customer data. Customer assumes ultimate responsibility for data integrity, retention, security, backup, and ownership.

Identity Use:
Customer agrees to use The Company logo, Company information, and related services in accordance to the approved marketing guidelines. Company agrees not to use Customer name, logos, or information without prior written consent of Customer.

Server access:
AUSWEB must have access to the servers provided to the Customer at all times; we may request your server root username and password from our clients to carry out routine monitoring and maintenance.

Compliance with Laws:
Customer agrees to abide by all local, state, and federal laws pursuant to services delivered in Sydney, NSW, Australia. Proper venue for legal remedies shall be Sydney, NSW. All contact terms found herein shall be bound by Australian State, Federal and Business Law, whichever may be applicable.

Mutual Indemnification:
Each party agrees to indemnify and hold harmless the other party, the other party's affiliates, and each of their respective officers, directors, attorneys, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys' fees) brought by a third party under any theory of legal liability arising out of or related to the indemnifying party's actual or alleged infringement or misappropriation of a third party's copyright, trade secret, patent, trademark, or other proprietary right.

Limitation of Liability:
Except as described in the SLA, The Company shall not be liable to Customer for harm caused by or related to Customer's services or inability to utilize the services unless caused by gross negligence or willful misconduct. Neither Party shall be liable to the other for lost profits, direct or indirect, special or incidental, consequential or punitive, or damages of any kind whether or not they were known or should have been known. Notwithstanding anything else in this agreement, the maximum aggregate liability of The Company and any of its employees, agents or affiliates, under any theory of law shall not exceed a payment of money not to exceed the amount paid by the customer for hosting services for the six moths prior to the occurrence of the event(s) giving rise to the claim.
In no event shall AUSWEB be liable for any special, incidental, indirect or consequential damages of any kind, or any damages whatsoever (including without limitation, those resulting from: (1) reliance on the materials presented, (2) loss of use, data or profits, (3) delays or business interruptions, (4) and any theory of liability, arising out of or in connection with the use or performance of information) whether or not AUSWEB has been advised of the possibility of such damages.
AUSWEB assumes no responsibility for inaccuracies, errors or omissions in the information or software or other documents which are referenced by or linked to this web site.
AUSWEB may make changes to the website, information, software, website, documents, publications, prices, technical specifications, product offerings and any other information and materials on the website at any time and without notice.

Accounts and Security:
If any of the services on the website requires you to open an account, you must complete the registration process by providing us with true, current, complete and accurate information as prompted by the applicable registration form, and you will maintain and promptly update such information to keep it true, current, complete and accurate. You also will choose a password and a user name. You are entirely responsible for maintaining the confidentiality of your password and account. Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to notify AUSWEB immediately of any unauthorized use of your account or any other breach of security. AUSWEB will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by AUSWEB or another party due to someone else using your account or password. You may not use anyone else's account at any time, without the permission of the account holder. You acknowledge and agree that certain services may provide password-restricted access to customer information such as names and certain terms of your contracts. By using this website and registering for such services, you consent to AUSWEB's display of such information via the services and accept all risks of unauthorized access to such information. If you provide any information that is false, inaccurate, out of date, or incomplete, or AUSWEB has reasonable grounds to suspect that such information is false, inaccurate, not current, or incomplete, AUSWEB may suspend or terminate your account and refuse any and all current or future use of the services or any portion thereof. You are responsible for all costs and charges, including without limitation, phone charges and telecommunications equipment, that you incur in order to use the services.

General Information
The Terms of Use constitute the entire agreement between you and AUSWEB and govern your use of the website, superseding any prior agreements between you and AUSWEB on the subject matter (including, but not limited to, any prior versions of the Terms of Use). Notwithstanding the prior provision, to the extent, and only to the extent, that any terms set forth in this Terms of Use expressly contradicts any terms of a prior written agreement between you and AUSWEB in effect as of the date of your use of the website and specifically regarding your use of the website ("Executed Agreement"), such contradictory terms set forth in the Executed Agreement shall govern. You also may be subject to additional terms and conditions that may apply when you use other AUSWEB services, third-party content or third-party software. You must not assign or otherwise transfer the Terms of Use nor any right granted hereunder.

New South Wales State law and controlling Australian. federal law govern any action related to the Terms of Use, without regard to the principles of choice of law. The parties specifically disclaim the U.N. Convention on Contracts for the International Sale of Goods.

The failure of AUSWEB to exercise or enforce any right or provision of the Terms of Use does not constitute a waiver of such right or provision. If a court of competent jurisdiction finds any provision of the Terms of Use to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms of Use remain in full force and effect. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the website or the Terms of Use must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in the Terms of Use are for convenience only and have no legal or contractual effect.

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