NetCriticalTerms of Service

Last Update: August 1, 2014

ACCEPTANCE
These Terms of Service (the “Terms”) constitute a legally binding agreement between you and NetCritical, an Australian business entity (“We,” “Us,” or “Our”). These Terms are binding when you visit www.netcritical.com.au (the “Site”) and/or sign up for any of our services, including but not limited to hosting, web development or graphic design. (Our services and the Site are collectively referred to herein as the “Services”). These Terms set forth the general terms and conditions of your use of our Services, and these Terms are addition to (not in lieu of) any specific terms, conditions and agreements that may apply to the particular Services you requested.

You hereby accept and agree to be bound by these Terms. You may not visit the Site or use our Services if you disagree with any provision of these Terms. We update these Terms from time to time when we feel it is appropriate, without prior notice to you. The date of last update is indicated at the top of this page. Check this page periodically to take notice of any changes we made because your continued use of the Services following the posting of revised Terms of Service constitutes your acceptance of the changes.

NEUTRAL VENUE
We are a neutral venue that is not a party to any member activity. We have no control over users’ content or conduct and play no active role in any user interactions or arrangements. We do not undertake to review any user submitted content for intellectual property rights infringement issues. Therefore, WE DISCLAIM ALL LIABILITY ARISING OUT OF USER CONDUCT AND CONTENT.

Our Services are provided “AS IS,” with no warranties of any kind, and you hereby agree that the use of and reliance on our Services is at your own risk, and that under no circumstances shall we be liable for any losses, damages or injuries of any kind incurred as a result of the use of or reliance on any content made available through our Services. You acknowledge that we shall have the right (but no obligation), at our sole reasonable discretion, to refuse, modify, delete or move any content, for any reason.

CONTENT
Contents, features, information, registered and unregistered trademarks of our Services are the exclusive property of NetCritical and our content suppliers. Services content is protected by the Australian and international copyright, trademark, trade secret and other intellectual property or proprietary rights laws. You may not republish Services content, delete or alter any copyright, trademark or other proprietary rights notices from copies of materials available through the Services. We do not endorse any third party content that appears on or utilizes our Services, and third parties do not endorse our Services.

By submitting any content to us (such as photos for inclusion in the web site we design for you or any information published on your website hosted by us, etc.), you warrant to us that you have legal right, whether by ownership, license, or otherwise, to transmit, display, and use that content. You are solely responsible for ensuring that you do not infringe the rights of any third parties in such content and for any legal damages caused by your transmission, use or display of any content. Should any member content be found or alleged to be illegal, we will submit all necessary information to the proper authorities.

If your content is reported to us as being in violation of third party rights, offensive or inappropriate, we may ask you to retract or otherwise modify the questionable content immediately. Should you fail to comply with such a request, we have full authority to either restrict your ability to post or to immediately terminate your account without further notification to you. Without limiting the foregoing, we have sole discretion to remove any member content that violates our Terms of Service or is otherwise objectionable in our sole discretion.

We do not warrant that our Services will be error-free, uninterrupted or able to withstand hacker attacks and viruses. We are not liable for loss or damage to member content nor do we warrant that we may have a backup of any content submitted by you. You should always maintain your own backup copies of your content.

You retain all intellectual property and other rights to the content submitted by you, provided however that we shall own all right, title, and interest in the feedback and suggestions you provide.

ELECTRONIC COMMUNICATIONS
You agree that all invoices, notices or other communications regarding your account and/or your use of our Services (“Communications”), may be provided to you electronically. You agree to receive all Communications from us in electronic form. You may print a copy of any Communications and retain it for your records. All electronic Communications will be considered just as legally binding as if they were in paper form. We reserve the right but assume no obligation to provide Communications in paper format. You may revoke your consent to receive Communications electronically, but if you revoke your consent to receive Communications electronically, we reserve the right to terminate your right to use the Services.

PAYMENT ISSUES; LATE FEE
Billing. Billing will be provided through a third party payment processor, Eway. Eway will save credit card information, we do not collect or store this data. All invoices will be provided electronically on a monthly basis. All payments must be made via a valid credit or debit card.

Late Fee. Any overdue amounts will incur a late fee of one and one-half percent (1.5%) per month, or the maximum rate of interest allowed by law, whichever is less. We may suspend any account for a breach of any payment obligations to us. We will not activate new orders or provide additional Services for customers who have an outstanding balance with us.

Pricing. We reserve the right to change our pricing structure at any time, provided however that any changes we make will only come in effect during future billing cycles without affecting any paid-for periods.

TAKEDOWN PROCEDURES
We respect the intellectual property rights of others and expect our users to do the same. We will address the claims of copyright infringement committed using our Services if such claims are reported to our designated Copyright Agent at emir@NetCritical.com.au. If we believe that any posted material violates any applicable law, we will remove or disable access to any such material. In notifying us of alleged copyright infringement, include the following information: (i) description of the copyrighted work that is the subject of claimed infringement; (ii) description of the infringing material and information sufficient to permit us to locate the alleged material; (iii) contact information for you, including your address, telephone number and/or e-mail address; (iv) a statement by you that you have a good faith belief that the material in the manner complained of is not authorized by the copyright owner, or its agent, or by the operation of any law; (v) a statement by you, signed under penalty of perjury, that the information in the notification is accurate and that you have the authority to enforce the copyrights that are claimed to be infringed; and (vi) a physical or electronic signature of the copyright owner or a person authorized to act on the copyright owner’s behalf. Failure to include all of the above-listed information may result in the delay of the processing of your complaint.

YOUR RESPONSIBILITIES
By using our Services, you represent, warrant and agree that:

You are at least 18 years of age and have full capacity to form a legally binding contract.
You may not use our Services for any illegal purpose whatsoever.
You may not use our Services or any of its content for the purposes of developing any competing service, website or software.
You will not submit any libelous, defamatory, hateful or otherwise objectionable content. By submitting anything to us, you guarantee that you have full legal right to do so without violating any privacy, intellectual property or other rights of others.
You accept our Privacy Policy http://www.netcritical.com.au/index.php/about-us/privacypolicy.
You guarantee that you will not use our Services to harass, stalk or otherwise infringe on rights of others.
You must treat your login credentials confidential. We have the right to disable any user identification code or password, whether chosen by you or provided by us, at any time for any reason or no reason without notice or explanation.
You must not:

Use a false name for registration.
Attempt to gain unauthorized access to any parts of the Services, the server on which the Site is stored, or any server, computer or database connected to the Services.
Send any unsolicited mass communication, advertising or promotional material without our prior written consent.
Use any device, software or routine that interferes with the proper working of the Site or Services or anybody’s use and enjoyment of it.
Attack the Site via a denial-of-service attack or a distributed denial-of-service attack.

SPECIFIC TERMS FOR HOSTING
The following specific terms and conditions apply only to our hosting service.

Uptime Guarantee. We offer a Service Uptime Guarantee of 99.95%. If we fail to maintain this Service Uptime Guarantee in a particular month (as solely determined by us), you may contact us and request a credit of 15% of your monthly hosting fee for that month. The credit may be used only for the purchase of further services from us. The Service Uptime Guarantee does not apply to service interruptions caused by periodic scheduled maintenance, interruptions caused by you, outages that do not affect the appearance of your website but merely affect access to your website such as FTP and email and causes beyond our control.

IP Numbers. We reserve the right to migrate our servers as a normal course of business. Therefore, we do not warrant that you will be able to consistently maintain your given IP numbers. You may be assigned a different IP even if you have a dedicated IP.

Security and Backup. We employ security measures designed for the protection of information and data. You shall be solely responsible for undertaking measures to: maintain independent archival and backup copies of your website or server content, prevent any loss or damage to your website or server content; ensure the security, confidentiality and integrity of all your website or server content transmitted through or stored on our servers. We shall have no liability to you or any other person for loss, damage or destruction of any of your content.

Refund Policy. We offer a thirty (30) day unconditional money back guarantee on shared web hosting packages. Only first-time accounts are eligible for a refund under the 30 day money back guarantee. For example, if you had an account with us, canceled and signed up again, you will not be eligible for a refund. In addition, refunds are not offered for accounts that are suspended or terminated for violating the Terms of Service or any applicable law.

SPECIFIC TERMS FOR WEB DESIGN
The following specific terms and conditions apply only to our web design service.

Customer Revisions. Significant modifications are not included in the fixed-sum initial contract price and will be billed at our hourly rates. Some examples of significant modifications include, but are not limited to:

Developing a new structure to accommodate a substantial redesign.
Creating a new navigation structure.
Significantly reconfiguring your database.
Any other services that would require us to spend, in aggregate, an additional 25% or more of time or resources to the total amount we had anticipated when we priced the services requested. You understand that this paragraph means that even minor changes can add up to a “significant modification” (which is billed extra) if we are required to invest an additional 25% or more in time or resources to the initially anticipated scope of project.
Maintenance, Consultations, Additional Services. Maintenance and services not specifically listed in our agreement(s) with you are not within the scope of the project. Consultations related to the services listed are free until the services have been completed. Separate Maintenance Agreements must be negotiated based on your specific needs. Our hourly service charge will apply to resolve maintenance issues and provide consultations unrelated to bugs or our errors after the services have been completed. You may choose to edit, update and maintain the completed work product without our involvement. However, we will not be responsible for any resulting damages and will bill repair time at our hourly rate at the time of repair, with one hour minimum.

INDEMNIFICATION
You agree to indemnify and hold NetCritical (and its officers, directors, agents, subsidiaries, joint ventures, employees and third-party service providers) harmless from all claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, including reasonable attorneys’ fees, costs, expenses or damages arising out of or related to a breach of your representations and warranties set forth above, or your violation of any law or the rights of a third party and your submissions.

TERMINATION
We have the right to take any action that we deem necessary or appropriate if we believe that any user violates the Terms of Service, infringes any intellectual property right or other right, threatens the personal safety of users of the Services or any third party. We may:

Terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of these Terms of Service.
Block violator’s IP address and/or notify his or her Internet Services Provider.
Disclose your identity to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services.

LINKS
You may link to our Site, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists. You must not establish a link from any website that is not owned by you. You agree to cooperate with us in causing any unauthorized framing or linking immediately to cease. We reserve the right to withdraw linking permission without notice.

DISCLAIMER OF WARRANTY, LIMITATION OF LIABILITY

EXCEPT AS EXPRESSLY PROVIDED HEREIN, WE HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT. NO CLAIM, SUIT OR ACTION MAY BE BROUGHT AGAINST US AFTER 12 MONTHS FROM THE UNDERLYING CAUSE OF ACTION.

YOUR USE OF THE SERVICES AND CONTENT IS AT YOUR OWN RISK. WE DO NOT WARRANT THAT OUR SERVICES WILL MEET YOUR EXPECTATIONS OR REQUIRMENTS. IN NO EVENT WILL WE, OUR EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICES, ANY WEBSITES LINKED TO IT, OR ANY CONTENT, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; YOU AGREE THAT IN THOSE JURISDICTIONS, OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

SEVERABILITY
Should any part of these Terms of Service be rendered or declared invalid by a competent authority, such invalidation of such part or portion of these Terms should not invalidate the remaining portions thereof, and they shall remain in full force and effect. Enforcement of these Terms of Service is solely in our discretion, and failure to enforce these Terms in some instances does not constitute a waiver of our right to enforce them in other instances.

ASSIGNMENT
We may transfer, assign or subcontract the rights, interests or obligations under the Terms of Service, at our sole discretion, without obtaining your consent.

GOVERNING LAW AND JURISDICTION
These Terms of Service will be governed by, and construed in accordance with the laws of Australia and the State of New South Wales, without regard to its conflict of law principles which would result in the application of laws of any other jurisdiction. Any litigation, dispute or claim arising from or related to the use of the Services shall be subject to the jurisdiction of the courts sitting in Sydney, Australia, and you hereby accept to submit to the exclusive jurisdiction of those courts.

FORCE MAJEURE
Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including, without limitation, acts of God, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, failure of telecommunication carriers, or delays of common carriers or other circumstances beyond its reasonable control. The party affected by such an occurrence shall notify the other party as soon as possible but in no event less than ten (10) days from the beginning of the event.

NO THIRD PARTY BENEFIT
Nothing in these Terms shall confer or purport to confer on any third party any benefit, any right to claim damages or any right to enforce any term of these Terms of Service.