1. In these terms of service:
“You”, and “your” shall refer to any individual or company who purchases and / or utilises any service provided by XDEV Australia Pty Ltd, and this shall also include any agent, affiliate or reseller of the aforementioned party;
“We”, “us”, and “our” shall refer to XDEV Australia Pty Ltd;
“Account” shall refer to the established billing information system in connection with the Services;
“Billing Term” shall mean the minimum period of time that you have selected to receive the Services, including any changes made to this term by you from time to time;
“Renewal Date” shall mean the last business day of the relevant Billing Term;
“Servers” shall collectively refer to any hardware managed by us that you utilise;
“Services” shall collectively refer to any service (including the billing associated with such) that we agree to provide you based on your selections made upon registration, or as requested in writing by you at a later time and approved by us; and
“Sites” shall collectively refer to any website maintained by you and hosted by us as part of the Services.
2. Where you select to have the Services provided by us, you are unconditionally bound by these terms of service, and it is understood that you have read and agree wholly with these terms of service.
3. We reserve the right to amend these terms of service at any time without notice to you, and any reference to these terms of service includes any later amendments to these terms. It is understood that you will review these terms of service periodically for any changes.
4. These terms of service represent the entire agreement between us and you, and supersede any and all prior negotiations, understandings or agreements of the parties involved.
5. All resellers that have selected to have the Services provided by us:
(a) are bound by these terms of service; and
(b) are liable for any individual or business that has an agreement or other arrangement with the reseller and that make use our Services; and
(c) must ensure that the terms of service that their clients agree to include these terms of service.
6. Any breach of these terms of service by you may result in the Services being suspended or terminated with or without notice.
7. You represent and warrant that you are not a national or resident of Burma/Myanmar, Cuba, Iran, Iraq, Libya, North Korea, Serbia, Sudan, and Syria or any other country subject to Australian embargo restrictions. You further acknowledge that you are not a national or resident of a country whose name is otherwise omitted from the registration form for our Services. Residents of countries which are serviced by our affiliates are required to contract with those affiliates, and you represent and warrant that you are not a resident of one of those countries.
8. We agree to provide you with the Services, and we will not be expected to provide you with any other services unless agreed to in writing between us and you, and all Services that we provide shall be bound by these terms of service.
9. Any change to the Services, as requested by you and agreed by us, that is not part of a standard package or Service that we normally offer, will be considered to be temporary in nature. These changes will be made on a case-by-case basis, and may not be preserved when other changes are made to the Services. We will not be held responsible for any downtime or issues related with this clause.
10. Any change to a Service may be removed at any time with or without notice if it is found to have a negative effect on services we provide to our other customers.
11. We will endeavour to deliver the Services within 60 minutes of completion of registration and payment being accepted through our secure payment process.
12. As part of the registration process, you must:
(a) provide us with your name, physical address, phone number, and email address (not including any email address we have provided you); and
(b) select the Services you wish us to provide you with; and
(c) select a Billing Term; and
(d) make full payment for the Billing Term selected.
13. Information provided to us by you may be shared with a third party to determine a fraud risk score, to bill the credit card on file, or to contract services on behalf of you with a third party (i.e as is the case with “domain registration”). We will never share your information with any third party under any circumstance outside of this requirement.
14. Upon registration, your Account will be established under the following conditions:
(a) Full payment has been received by us for the Billing Term;
(b) Your order has been determined by us not to be fraud; and
(c) We have accepted your order.
15. We retain the right to reject your order at any time for any reason with or without notice. In the event that your order is not accepted by us for any reason, any payments received by us from you will be refunded to you.
16. Once your Account is established, it will be your responsibility to ensure that your Account at all times consists of accurate and up-to-date contact and billing information as verified by you, and this includes (but is not limited to) your name, physical address, phone number, and email address (not including any email address we have provided you).
17. If, at any time, your Account does not contain accurate and up-to-date information, then:
(a) we will not be held liable for any reason in the event that we cannot get in contact with you; and
(b) a failure by you to provide truthful information may result in the suspension or termination of your Account.
18. All Services are to be billed and paid for by you in advance of the next Billing Term.
19. On each Renewal Date, the Services will automatically be renewed for a further Billing Term, unless you terminate the Services in accordance with clause 26 of these terms of service.
20. If you have selected to make all payments by credit card, a valid and current credit card number must always be contained on your Account, and payments will automatically be attempted using that credit card number on each Renewal Date or Invoice Due Date.
21. Forms of payment other than by credit card are not normally accepted unless agreed by us in writing. Where you establish a form of payment that is not normally accepted by us, you will be responsible for tracking the Renewal Date and ensuring that we receive full payment before each Renewal Date. We will not be liable if your Account is suspended due to a failure by you to make full payment on or before each Renewal Date.
22. We are not required to send you an invoice prior to each Renewal Date.
23. Where you exceed your monthly bandwidth allowance, we will charge you $A 1.00 per Gigabyte (GB) used in excess of your monthly bandwidth allowance, and this additional charge will be invoiced and paid immediately if we have your credit card on file, alternatively it must be paid within seven (7) days of you receiving an invoice from us to avoid account suspension. In the case of excess bandwidth which is post paid, we reserve to right to employ debt collection if required.
24. All communication regarding your Account initiated by us with you shall take place via email, and we will at all times assume that the email address provided on your Account is accurate and up-to-date, and we will make no additional effort to contact you.
25. In the event that you owe money to us for any reason, the Services being provided to you may be suspended with or without notice.
26. If your Account is suspended for any reason, you will continue to be liable for payment for the current Billing Term, and any future Billing Terms, and all monies owed must be paid in full prior to your Account being reinstated.
27. If a bank disputes (i.e. “charge backs”) arises, this will constitute grounds for immediate suspension or termination of your Account without notice from us. If you wish to reinstate your Account affected by a bank dispute, you will be responsible for the whole amount disputed, plus any additional fees directly associated with the bank dispute.
28. If you wish to terminate your Account, you can only do so by logging into your Account and requesting termination.
29. If you terminate your Account prior to the next Renewal Date, you will forfeit all fees paid in advance up to the next Renewal Date.
30. In the event that your Account is terminated by us for a breach of these terms of service by you, no refund will be given for fees paid in advance up to the next Renewal Date, nor will a backup of any data stored on the Servers be provided unless otherwise determined by us.
31. Unless otherwise noted, any and all promotions are reserved for first-time account holders, and will not be honoured for existing Accounts unless approved by us.
32. All transactions are to be processed in Australian Dollars (AUD)
33. When registering with us, your financial details are passed through a secure server using the latest 128-bit SSL (secure sockets layer) encryption technology, which is the current industry standard. If you have any questions regarding our security policy, please contact customer support at firstname.lastname@example.org.
34. All licensing of software products (specifically cPanel & Plesk) is non-refundable. cPanel licenses support unlimited domains. Plesk licenses support up to 100 domains.
34. The Services are not to be used for the transmission, storage, or presentation of any information, data or material that is in violation of any Australian federal and/or local laws, and a failure to comply with such will result in immediate suspension or termination of your Account.
35. Any attempt to exploit a Service in any way is grounds for immediate termination of the Account.
36. You are wholly responsible for any action taken on your Account in any way. The Customer is monetarily responsible for any action that is taken on their Account, regardless of if the Customer or a third party took the action.
37. In the case where you believe your Account has been compromised by a third party, it is your responsibility to alert us in writing by email to that fact as soon as possible. You may be held liable for any service charges accumulated by any action taken by the third party.
38. We consider certain material contained on websites to be unacceptable. If unacceptable material is found on a Site, or is linked to by a Site, your Account will be suspended or terminated as determined by us. Examples of unacceptable material include, but are not limited to:
(a) Fraudulent activities of any kind
(b) Illegitimate use of botting software
(c) Copyrighted material without explicit consent to use and/or distribute
(d) Network/computer scanning or attack software
(f) Software licenses, license generation software, software “cracks”
(g) Computer viruses/malicious software of any kind
(h) Proxy scripts or services used for malicious purposes
(i) Racist, hateful, or harassing content
(j) Hacking related information or services
(k) SPAM of any kind
(l) Gaming servers or related services (e.g. clan websites)
39. Any effort to link to, or provide material that is not owned by you, on a Site will result in immediate suspension of your Account.
40. The use of any data and/or multimedia that is not explicitly owned by you, or for which you do not have explicit written permission from the owner of the data and/or multimedia, is prohibited by us. Examples include, but are not limited to, the hosting of music or videos whether for personal or public use. Violation of this clause may result in the material being removed with or without notice and/or the suspension of your Account at our discretion.
41. Services are not to be used to monitor, gather information about, or administrate other servers or sites of any kind.
42. Sites must remain within the limits specified by the package you selected, regardless of whether or not they are strictly enforced. Violating this clause is considered exploitation and will result in suspension, and possibly termination, of your Account.
43. We promise a 99.99% uptime guarantee based on the availability of the Services your Account directly utilises over a period of one month.
44. Uptime will be judged solely by monitoring services that we directly contract or utilise, and statistics from third-party monitoring services will not be honoured for this guarantee.
45. Credits are not automatically applied. If you wish to challenge the guarantee, a written request must be submitted, and we will investigate the claim.
46. Should you successfully challenge this guarantee, a credit equal to one day of service, per thirty (30) minutes for your affected Account will be applied, to a maximum of thirty (30) credits per outage.
47. You must pro-actively seek a solution, in writing, to any downtime you experience to be eligible for a service credit when challenging this guarantee.
48. If it is found that you had not contacted us prior to challenging the guarantee, no service credit will be due.
49. If you wish to challenge the guarantee, you must do so within one month of a suspected violation, and if you attempt to challenge the guarantee outside of this time period, no service credit will become due.
50. Service credits may only be approved by us, and must be requested and granted in writing. We may revoke any credit received outside of these requirements without notice.
51. Service credits will be granted as a credit to the balance of an Account held with us or as an extension of the renewal date of a Service. Service credits can never be exchanged for a direct refund.
52. In the event an Account is terminated or cancelled for any reason, all service credits not yet utilised on the Account are considered null and void, and cannot be refunded.
53. Any request for a service credit must be submitted, in writing, within one month of the incident cited as the reason for credit due.
54. These terms of service will be used when determining eligibility for a credit. We will never be obligated to provide a service credit, unless otherwise noted in these terms of service.
55. The Internet, and our network, are considered publicly accessible and should be treated as such. We will not be held liable for any unauthorised access to your data. Any data that is deemed confidential, classified, personal, or private, shall not be hosted on the Services.
56. We will not be responsible for maintaining backups of any data stored on the Services.
57. We will not be liable or monetarily responsible for any data loss or corruption under any circumstances, and this includes, but is not limited to, Sites that are compromised, modified, or changed by you or third party, with or without your consent, in any way.
58. We will not be liable or monetarily responsible for any damages incurred due to any service outages under any circumstances.
59. By utilising our Services, you consent to having your Account monitored for activity that may breach these terms of service. Information gathered during monitoring will not be used in any way other than ensuring these terms of service are upheld.
60. It is our responsibility to comply with any requests set forth by law enforcement officials and courts within the bounds of Australian federal and local laws. Any actions on your Account mandated by the order of a law enforcement official or court will be taken without notice to you, unless otherwise instructed by the aforementioned parties.
61. It is our responsibility to comply with properly formatted Copyright complaints as set forth by the Copyright Act 1968 (Cth), and any amendments to that Act from time to time. In the event we receive a complaint that relates to your Account, it is our policy to:
(a) expeditiously remove content that is the subject of a correctly prepared notice; and
(b) replace removed content if you submit a properly prepared counter notice.
62. You agree that you shall defend us, indemnify us (and keep us indemnified), save and hold us harmless from any and all demands, liabilities, losses, costs and claims, including reasonable legal fees asserted against us, our agents, our customers, and our employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by you, your agents, your employees and / or your assignees.
63. You agree to defend us, indemnify us (and keep us indemnified) and hold us harmless against liabilities arising out of:
(a) any injury to person or property caused by any products sold or otherwise distributed in connection with us;
(b) any material supplied by customer infringing or allegedly infringing on the proprietary rights of a third party;
(c) Copyright infringement
(d) Any defective products sold to customers from the Services.
64. We are not liable in any way whatsoever for any and all damages or losses you or your business may suffer. We make no expressed or implied warranties of any kind. We disclaim any warranty or merchantability for any particular purpose or service, and this includes these terms of service.
XDEV Australia offers a 15 day money back guarantee, which provides you with a full refund of your first payment relating to Hosting, provided that you have complied with all of the terms of service for all Windows and Linux services. In the case that the terms of service have not been complied with, any payment made to XDEV Australia will be forfeited. In the case where cPanel or Plesk licensing was required the money back guarantee is 7 days from the date of order. To be eligible for our money back guarantee, you must first cancel your hosting service using the tools provided, then contact our support or accounts department within the specified number of days of your initial hosting order, and request a refund in accordance our money back guarantee. You must also include your service hostname and email address in the request.
In order to use services provided by us, personally identifiable information, including but not limited to name, physical address, email address, telephone number, credit card information and other personal information, must be collected. The customer is responsible for accurate and updated information on file with us. We will not disclose any of the user’s personally identifiable information unless required by law or in order to investigate unlawful activity and/or fraud.
We may also collect non-personally identifiable information from customers and visitors regarding usage of our services or our web site and the viewing of our emails. This may include web site pages viewed, time spent using certain services, IP address, emails opened or blocked, cookies and other information which does not specifically identify any one individual. This information may be shared with third parties. The end-user may choose to disable or restrict the placement of cookies, but may result in interference of the website’s functionality.
Cookies are used on many websites in order to gather information and enhance the use of our site to the end-user’s preferences. We are not able to gather personally identifiable information through the placement of cookies unless the user is registered for our site and has purposely given us personal information. We may also use tracking pixels in order to track the number of visitors to our site and the amount of time spent on each webpage.
We will use non-personal information to market services to customers and visitors that we believe may be of interest to them. This may be done through emails, newsletters, banner ads, etc. We may use third parties in order to do this and will not share your credit card information with any third parties unless they are involved in processing payments for services that you have purchased from us.
We will not read or disclose to any third parties private e-mail or other communications that are transmitted using our services except as required to ensure proper operation of services or as otherwise authorized by law. The end-user is liable for any personal information that he or she voluntarily makes available through publicly accessible Internet mediums, such as forums, blogs, and instant messages, and assumes all risks for partaking in such activities that cannot be controlled by us.
We are committed to providing secure and reliable service and have security measures in place to ensure no personally identifiable information may be obtained from outside parties. However, the end-user must always practice caution whenever using the public Internet and acknowledges the risks involved when sharing personal information online.
We have a zero tolerance for spam. Please read our terms of service so that you are aware of action we can potentially take against those who are found guilty of using our services for spam.
We will delete all private information on cancelled accounts unless obligated by law to retain the information. We will never sell or give your private information to any other companies after you have cancelled an account.
We reserve the right to change, modify, add, or remove portions from this policy at any time. You will be notified only if the change affects the usage of personal information that was obtained before the policy change. You accept such changes by continuing to use our services.