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Cloud8s Pty Ltd. agrees to furnish services (“Service”) and provide use of our dedicated servers (“Service”) to the Subscriber (“Customer”) subject to the following Terms of Service (“ToS”) outlined below and our Acceptable Use Policy (“AUP”).
Use of any of the services provided by Cloud8s constitutes acceptance and agreement to the Cloud8s Acceptable Use Policy as well as the Cloud8s ToS (Terms of Service) by the Customer.
All provisions of this contract are subject to the TOS and AUP of Cloud8s. The TOS and AUP may be changed from time to time at the discretion of Cloud8s without prior notice.
The Customer warrants that all information provided to Cloud8s is truthful and correct and accurate and up to date and that the person designated is of above 18 years of age and is legally empowered to act and enter into this contract as the customer or on behalf of the customer as indicated on the relevant application form.
We occasionally may have promotions and make special offers available for limited time duration on a particular Service we offer, all promotions are offered subject to this Terms of Service agreement and only differ in regards to the promotional or special offer Service price unless otherwise stated.
IMPORTANT: All Payments to Cloud8s are Non-Refundable
The AUP specifically prohibits the use of our service for illegal activities. Therefore, Customer agrees that Cloud8s may disclose any and all Customer information including assigned IP numbers, account history, account use, etc. to any law enforcement agent who makes a verifiable written request without further consent or notification to the Customer. In addition Cloud8s shall have the right to terminate all service set forth in this Agreement.
These ToS shall be governed by and construed in accordance with the laws of the state of New South Wales. Customer and Cloud8s agree to submit to the exclusive jurisdiction of the courts of the state of New South Wales.
If any provision(s) of these Terms and Conditions is held by a court of competent jurisdiction to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect.
Cloud8s’s failure to exercise or enforce any rights or provisions of these ToS shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Cloud8s in writing.
Customer and Cloud8s agree all disputes against Cloud8s by Customer must first go to non-binding mediation, and attempt to resolve the dispute in good faith, in the venue and jurisdiction of Cloud8s choice. Failure of Customer to attempt a good faith resolution in non-binding mediation shall prohibit Customer from proceeding in a civil court action, any cause of action arising out of or related to this Service which cannot be resolved by mediation must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred and you and Cloud8s forever waive any such cause of action.
Customer acknowledges that the nature of the service furnished and the initial rates and charges have been communicated to Customer. Customer is aware that Cloud8s may prospectively change the specified rates and charges periodically as necessary. Any promotional offers are contingent upon Cloud8s achieving and maintaining its cost of service goals including but not limited to rates charged to Cloud8s by its suppliers.
Establishment of Service is dependent upon receipt by Cloud8s of payment of stated charges. Subsequent payments are due on the anniversary date of the month for that month’s service. The above applies to all accounts and services provided by Cloud8s.
Credit card payments that are declined for any reason are subject to a $11 declination charge. Service will be interrupted on accounts that reach 14 days past due. Service interrupted for non-payment is subject to a $33 reconnection charge. Accounts not paid by due date is subject to a late payment fee of $11. Accounts that are not collectable by Cloud8s may be turned over to an outside collection agency for collection. If your account is turned over for collection, you agree to pay Cloud8s a “Processing and Collection” Fee of not less than $100 nor more than $300. If you desire to cancel your account, please follow the proper procedure to do this as outlined in this ToS.
DISPUTES AND REFUNDS:
All valid payments to Cloud8s are Non-Refundable. This includes the one time initial setup fee and subsequent charges regardless of usage. All overcharges or billing disputes must be reported within 60 days of the time the disputed charge occurred. If you dispute a charge to your credit card issuer (“Chargeback”) that, in Cloud8s’s sole discretion is a valid charge under the provisions of the ToS and / or AUP, you agree to pay Cloud8s an “Administrative Fee” of not less than $50 AUD and not more than $150 AUD.
Cloud8s may temporarily deny Service or terminate this Agreement upon the failure of Customer to pay charges that are due. Such termination or denial will not relieve Customer of their responsibility for the payment of all accrued charges, plus reasonable interest and any collection fees.
Requests for cancelling accounts must be made at least 15 days Prior to due date. There�s no cancellation fee.
*** The best and preferred method of cancellation is via the Member section of your Cloud8s account***
To make the cancellation in writing online just login to the Member section at www.company.com.au and you can request to have your Service cancelled there via the online ticket system. You must have all account information to cancel.
- We may terminate this agreement forthwith if you fail to pay any sums due to us as they fall due.
- We may terminate this agreement immediately if you breach any of these terms and conditions, or if you are a company you go into insolvent liquidation, or if you are a person you are declared bankrupt.
- On termination of this agreement we shall be entitled immediately to block your Web Site and to remove all data located on it. We will hold such data for a period of 14 days and allow you to collect it, at your expense ($88/hr), failing which we shall be entitled to delete all such data. We shall further be entitled to post such notice in respect of the non-availability of your Web Site as we think fit.
- On receipt of your cancellation request, Cloud8s will cancel your service at the first available opportunity.
- There are no refunds or credits, once an invoice is generated, unless an invoice for a service is generated after a cancellation requested is submitted.
Customer acknowledges that the service provided is of such a nature that service can be interrupted for many reasons other than the negligence of Cloud8s and that damages resulting from any interruption of service are difficult to ascertain. Therefore, Client agrees that Cloud8s shall not be liable for any damages arising from such causes beyond the direct and exclusive control of Cloud8s. Subscriber further acknowledges that Cloud8s�s liability for its own negligence may not in any event exceed an amount equivalent to charges payable by subscriber for services during the period damages occurred. In no event shall Cloud8s be liable for any special or consequential damages, loss or injury.
Cloud8s, provides technical support to our Customers (except for public holidays). We limit our technical support to our area of expertise. The following is our guidelines when providing support: Cloud8s provides support related to your server functioning. Cloud8s does not offer support for application specific issues such as cgi programming, html or any other such issue. Cloud8s does not provide technical support for YOUR customers. If you can email, we encourage you to email support@Cloud8s.com.au. If you are able to get online and have other questions, the answers may be on our home page at http://www.cloud8s.com.au – we encourage you to check there first. Lastly, the Help files in the program you are using may have the answer to your question so please do investigate these resources before contacting tech support.
SPAM AND UCE (Unsolicited Commercial Email)
Cloud8s takes an absolute zero tolerance approach to the sending of Unsolicited Commercial Email (UCE) or SPAM over our network. Very simply this means that Customers of Cloud8s may not use or permit others to use our network to transact in UCE.
Customers of Cloud8s may not host, or permit hosting of, sites or information that is advertised by UCE from other networks. Violations of this policy carry severe penalties, including termination of service.
PLEASE, DO NOT SPAM from your account.
Violation of Cloud8s’s SPAM policy will result in severe penalties. Upon notification of an alleged violation of our SPAM policy, Cloud8s will initiate an immediate investigation (within 48 hours of notification). During the investigation, Cloud8s may restrict customer access to the network to prevent further violations. If a customer is found to be in violation of our SPAM policy, Cloud8s may, at its sole discretion, restrict, suspend or terminate customer’s account. Further, Cloud8s reserves the right to pursue civil remedies for any costs associated with the investigation of a substantiated policy violation. Cloud8s will notify law enforcement officials if the violation is believed to be a criminal offence.
First violations of this policy will result in an “Administrative Fee” of $400 AUD and your account will be reviewed for possible immediate termination.
A second violation will result in an “Administrative Fee” of $800 AUD and immediate termination of your account.
Users who violate this policy agree that in addition to these “Administrative” penalties, they will pay “Research Fees” not to exceed $300 AUD per hour that Cloud8s personnel must spend to investigate the matter.
As our Customers are ultimately responsible for the actions of their clients over the Cloud8s network, it is advisable that Customers develop a similar, or stricter, policy for their clients.
Anyone hosting websites or services on their server that supports spammers or cause any of our IP space to be listed in any of the various Spam Databases may have their server immediately removed from our network. The server will not be reconnected until such time that you agree to remove ANY and ALL traces of the offending material immediately upon reconnection and agree to allow us access to the server to confirm that all material has been COMPLETELY removed. Severe violations may result in immediate and permanent removal of the server from our network without notice to the customer. Any server guilty of a second further violation will be immediately and permanently removed from our network without notice.
IP Address Ownership: If Cloud8s assigns Customer an Internet Protocol address for Customer’s use, the right to use that Internet Protocol address shall belong only to Cloud8s, and Customer shall have no right to use that Internet Protocol address except as permitted by Cloud8s in its sole discretion in connection with the Service, during the term of this Agreement. Cloud8s shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to Customer by Cloud8s, and Cloud8s reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion.
Our allocation of IP addresses is limited by APNIC’s policies. These policies state that use of IP addresses for IP based virtual hosts will not be accepted as justification for new IP addresses. What this means to you is that you MUST use name-based hosting wherever possible. We will periodically review IP address usage, and if we find that clients are using IP addresses where name-based hosting could be used, we will revoke authorization to use those IP addresses that could be used with name-based hosting.
BANDWIDTH AND DISK USAGE
Customer agrees that bandwidth and disk usage shall not exceed the number of megabytes per month for the Services ordered by Customer on the Order Form (the “Agreed Usage”). Cloud8s will monitor Customer’s bandwidth and disk usage. In relation to Bandwidth monitoring a Megabyte (MB) is considered 1000 Kilobytes (KB) and a Gigabyte (GB) is 1000 Megabytes. Cloud8s will charge $0.05 per MB over the allocated limit which will be sold per MB. That means if you use 50MB over your limit, you will be charged $2.50.
Cloud8s shall have the right to take corrective action if Customer’s bandwidth or disk usage exceeds the Agreed Usage. Such corrective action may include the assessment of additional charges, disconnection or discontinuance of any and all Service, or termination of this Agreement, which actions may be taken is in Cloud8s’s sole and absolute discretion. If Cloud8s takes any corrective action under this section, Customer shall not be entitled to a refund of any fees paid in advance prior to such action. In the event that a customer exceeds the included allocation, Cloud8s may, at its sole discretion, collect a deposit, in an amount determined by Cloud8s’s, against customer’s credit card on file with Cloud8s’s.
Systems And Network Security
Users are prohibited from violating or attempting to violate the security of the vs Network. Violations of system or network security may result in civil or criminal liability. Cloud8s will investigate occurrences, which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Users who are involved in such violations.
These violations include, without limitation:
- Accessing data not intended for such user or logging into a server or account, which such user is not authorized to access
- Attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization
- Attempting to interfere with Service to any user, host or network, including, without limitation, via means of overloading, “flooding”, “mail bombing” or “crashing”
- Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting
- Taking any action in order to obtain services to which such user is not entitled
Cloud8s is under no duty to look at each Customer’s or user’s activities to determine if a violation of the AUP has occurred, nor do we assume any responsibility through our AUP to monitor or police Internet-related activities.
Any User, which Cloud8s determines to have violated any element of this Acceptable Use Policy, shall receive notification, warning them of the violation. The Service may be subject at Cloud8s’ discretion to a temporary suspension pending a User’s agreement in writing, to refrain from any further violations.
Users that Cloud8s determines to have committed a second violation of any element of this Acceptable Use Policy shall be subject to immediate suspension or termination of service without further notice.
We reserve the right, to drop the section of IP space involved in Spam or Denial-of-Service complaints if it is clear that the offending activity is causing great harm to parties on the Internet.
In particular, if open relays are on your network or a customer’s network, or if denial of service attacks are originating from your network. In certain rare cases, we may have to do this before attempting to contact you. If we do this, we will contact you as soon as is feasible.
SERVICE SUSPENSION OR CANCELLATION
Cloud8s reserves the right to suspend network access to any Customer if in the judgment of the Cloud8s network administrators the Customer’s server is the source or target of the violation of any of the other terms of the AUP or for any other reason which Cloud8s chooses. If inappropriate activity is detected, all accounts of the Customer in question will be deactivated until an investigation is complete. Prior notification to the Customer is not assured. In extreme cases, law enforcement will be contacted regarding the activity. The Customer will not be credited for the time the Customer’s services were suspended.
Cloud8s wishes to emphasize that in agreeing to the Cloud8s AUP and ToS, Customer indemnifies Cloud8s for any violation of the Acceptable Use Policy (AUP) and Terms of Service (ToS) that results in loss to Cloud8s or the bringing of any claim against Cloud8s by any third-party. This means that if Cloud8s is sued because of a Customer’s or a client of a Customer’s activity, the Customer will pay any damages awarded against Cloud8s, plus all costs and legal fees.
You must provide us with, and keep current, good contact information for you.
E-mail, fax, and telephone contacts are used, in that order of preference.
A waiver by Cloud8s of any breach of any provision of this Agreement by Customer shall not operate as or be construed as a continuing or subsequent waiver thereof or as a waiver of any breach of any other provision thereof.
Customer shall not transfer or assign this Agreement without the prior written consent of Cloud8s. Cloud8s may assign Agreement at anytime without consent from or notice to Customer. Cloud8s reserves right to cancel Customer’s rights under this contract at anytime without further obligation.
Cloud8s takes no responsibility for any material input by others and not posted to the Cloud8s Network by Cloud8s. Cloud8s is not responsible for the content of any other websites linked to the Cloud8s Network; links are provided as Internet navigation tools only. Cloud8s disclaims any responsibility for any such inappropriate use and any liability to any person or party for any other person or party’s violation of this policy.
Where a customer believes a password has been revealed or compromised, they must notify Cloud8s at the earliest possibility.
The customer agrees that any services provided are not continuous or faultless or error free and those interruptions, delays, faults, degradations and outages to services may occur from time to time. This includes but not limited to maintenance of software or hardware, outages also may be the result of hardware or software failure or external network failures, etc.
THE CUSTOMER WILL NOT HOLD Cloud8s RESPONSIBLE OR LIABLE FOR ANY INTERRUPTIONS OR DELAYS OR DEGRADATION TO SERVICES
EXCLUSION OF LIMITATION OF AVAILABILITY
TO THE FULL EXTENT PERMITTED BY LAW WE HEREBY EXCLUDE ALL CONDITIONS AND WARRANTIES NOT EXPRESSLY SET OUT HEREIN. EXCEPT AS SPECIFICALLY SET FORTH IN ELSEWHERE IN THIS AGREEMENT, WE MAKE OR GIVE NO EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, WITH RESPECT TO ANY GOODS OR SERVICES PROVIDED UNDER OR INCIDENTAL TO THIS AGREEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US, OUR RESELLERS, AGENTS, REPRESENTATIVES OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE EXPRESS WARRANTIES HEREBY GIVEN, AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
Cloud8s is not responsible for any damages your business may suffer. Cloud8s does not make implied or written warranties for any of our services. Cloud8s denies any warranty or merchantability for a specific purpose. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions caused by Cloud8s.
In no event shall we be liable to you for any loss of business, contracts, profits or anticipated savings or for any other indirect or consequential or economic loss whatsoever.
NOTIFICATIONS AND COMMUNICATIONS
In addition to general Account, Billing and Service communications, Cloud8s will, from time to time, issue email notifications relating to our services, including, but not limited to Newsletters, Announcements, Promotional and Seasonal offers, and Surveys. By entering into agreement with these terms and conditions, you agree to receive email communications by inferred consent until such time as you decide to opt-out of such communications. You may opt out of our mailing list at any time by sending an email to unsubscribeme@Cloud8s.com.au or by following ‘unsubscribe’ instructions contained within the communications. You will not be able to opt-out of Critical Service Notifications, Renewal, Billing and Account Notifications, Scheduled Downtime Notifications or any other communications deemed to be an essential part of our service to you.
We may vary these terms, the amount we charge for any service, or the terms of the operation of any services provided by Cloud8s at any time by general notice displayed publicly on our website on the internet at www.cloud8s.com.au, the changes become effective upon publication of the notice. Where we vary the prices for Service, we will give at least 14 days notice of the change by the same means, and the new prices will apply at the end of that period.
If you use the Service after that publication, your use will constitute an acceptance of the amended terms. These terms constitute the agreement in its entirety and supersede prior agreements. Customer understands that change to the AUP or Terms of Service or any other relevant policy by Cloud8s shall not be grounds for early contract termination or non-payment.
Web Site Hosting/email/Secure Web Page/virus protection terms
WE SPECIFICALLY EXCLUDE ANY WARRANTY AS TO THE ACCURACY OR QUALITY OF INFORMATION RECEIVED BY ANY PERSON VIA THE SERVER AND IN NO EVENT WILL WE BE LIABLE FOR ANY LOSS OR DAMAGE TO ANY DATA STORED ON THE SERVER. YOU ARE RESPONSIBLE FOR MAINTAINING INSURANCE COVER IN RESPECT OF ANY LOSS OR DAMAGE TO DATA STORED ON THE SERVER. YOU WARRANT TO US THAT YOU WILL ONLY USE YOUR ASSIGNED WEB SITE FOR LAWFUL PURPOSES.
In particular, you further warrant and undertake to us that:
- you will not, nor will you authorise or permit any other person to, use the Server in violation of any law or regulation;
- you will not knowingly or recklessly post, link to or transmit any material:
- that is unlawful, threatening, abusive, harmful, malicious, defamatory, violent or teaching violence, obscene, pornographic, profane or otherwise objectionable in any way; or
- containing a virus or other hostile computer program;
- that shall constitute or encourage a criminal offence, give rise to civil liability or that violates or infringes any trade mark, copyright, other intellectual property rights or similar rights of any person under the laws of any jurisdiction; and
- you will conform to the standards made available by us from time to time and will not yourself, and will ensure that none of your end users, make excessive or wasteful use of the Server to our detriment or that of our other customers.
You warrant, undertake and agree that:
- any transactions within your Web site which are contracts for the sale of goods or services will be between you as the merchant and your end-user customer and you agree that we may include an exclusion of our liability in respect of such purchases and transactions in such form as we deem appropriate;
- the information contained within your Web site will comply with all applicable law, and codes of practice governing the use of Web sites and related services, including, without limitation, those laws and/or codes of practice governing distance selling and data protection from time to time in force;
- you will keep secure any identification, password and other confidential information relating to your account and you will notify us immediately of any known or suspected unauthorised use of your account, or any known or suspected breach of security, including loss, theft or unauthorised disclosure of your password information. Notwithstanding such notification you will be liable for any and all uses of your account (and Web site) notwithstanding any fraudulent or improper use of your password or any other access to any of the facilities we offer which is not unauthorised use or access by us.
Whilst we shall use reasonable endeavours to ensure the integrity and security of the Server, we do not guarantee that the Server will be free from unauthorised users or hackers.
We do not warrant whatsoever that our virus protection services will stop every virus from reaching your computer network. We make no warranty that the service will be error free or free from interruption of failure, and the company expressly disclaims any express or implied warranty regarding system and/or service availability, accessibility, or performance.
DENIAL OF SERVICE
Cloud8s reserves the right to refuse service to anyone at anytime for any reason.
Customer is solely responsible for the content stored on and served by their server.