Hosting terms and conditions
Please read these terms and conditions carefully. These policies are intended to maintain Ecosphere's high quality level of hosting services and make them available to all our customers on a fair, consistent and efficient basis.
These terms constitute the agreement in its entirety and supersede prior agreements. It is a condition of your use of Ecosphere’s hosting services that you comply with these terms and conditions.
Variations to these terms and conditions
1. Ecosphere may vary these terms at any time by changing the terms and conditions located at http://ecosphere.com.au/terms-and-conditions.php. Changes will become effective upon publication of the notice. If you use Ecosphere’s hosting services after publication of any change to the terms and conditions your continued use of the hosting services will constitute acceptance of the amended terms.
General terms and conditions
2. You accept legal responsibility for use of Ecosphere's hosting services, are at least 18 years of age or have your parent's or legal guardian's permission before using our services. You agree that Ecosphere will supply hosting services to you on the terms set out in this agreement.
3. In contracting with Ecosphere for hosting services, you acknowledge that you do not obtain any rights to the hardware and other infrastructure and facilities used by Ecosphere or Enetica Pty Ltd ("Supplier")to deliver these hosting services.
4. You must comply with all laws regulations, standards and codes applicable to your use of hosting services. You must promptly notify Ecosphere of any orders or directions issued by a relevant body which may impact on the delivery of Ecosphere's hosting services.
5. You agree to grant a non-exclusive royalty-free licence to Ecosphere and our Supplier to use, transmit, display, adapt and reproduce the client data in order to fulfil Ecosphere’s obligation to provide you with hosting services as contemplated by this agreement.
6. No advice or information, whether oral or written, obtained by you from Ecosphere, its employees or associates or through their respective websites shall create any warranty not expressly stated in these terms and conditions.
Warranties and Liabilities
7. We do not warrant that:
A |
the hosting services provided under this agreement will be uninterrupted or error free; |
B |
the hosting services will meet your requirements, other than as expressly set out in this agreement; or |
C |
the hosting services will be free from external intruders (hackers), virus or worm attack, denial of service attack, or other persons having unauthorised access to the hosting services or systems. |
8. Except as expressly provided to the contrary in this agreement, all warranties whether express, implied, statutory or otherwise, relating in any way to the subject matter of this agreement, are excluded. Where any statute implies any term into this agreement, and that statute avoids or prohibits provisions in a contract excluding or modifying the application of or liability under such a term, then the term will be taken to be included in this agreement. However, our liability for any breach of the term will, if permitted by that statute, be limited, at our option, to the resupply of the services again; or payment of the cost of having the services supplied again.
9. Except as provided under clause 8, Ecosphere will not be liable to you or any third party for:
A |
any special, punitive, incidental, indirect or consequential damages of any kind; |
B |
any damages whatsoever, including, without limitation, those resulting from: |
(i) |
loss of use, data or profits, on any theory of liability, arising out of or in connection with the use of or the inability to use hosting services; |
(ii) |
the statements or actions of any employee or agent of Ecosphere; |
(iii) |
any unauthorised access to or alteration of your website, transmissions or data; |
(iv) |
any information that is sent or received or not sent or received; |
(v) |
any failure to store or loss of data, files or other content; |
(vi) |
your fraudulent, negligent or otherwise unlawful behaviour; |
(vii) |
information, data or other material provided to Ecosphere by you or on your behalf, or the use of such information, data or other material by Ecosphere; |
(viii) |
cost, loss or liability (including loss of profit or other consequential damage) arising from the supply or failure or delay in supplying hosting services; |
(ix) |
the content, context or confidentiality of any communications made using the hosting services; |
(x) |
loss or damage caused by third party software applications forming part of the hosting services; |
(xi) |
any loss or damage arising out of an unauthorised attack on or other breach of security of the hosting services or client data; or |
(xii) |
any hosting services that are delayed or interrupted. |
10. You understand that you must maintain your own copy of any content published via Ecosphere's hosting services and that Ecosphere should never be used as any master, primary or critical copy of any content.
11. You warrant that:
A |
at the time of entering into this agreement you are not relying on any representation made by Ecosphere which has not been stated expressly in this agreement, or on any descriptions or specifications contained in any other document, including any material which we have produced; |
B |
you will conduct such tests and computer virus scanning as may be necessary to ensure that data uploaded by you onto or downloaded by you from the server does not contain any computer virus and will not in any way, corrupt the data or systems of any person; |
C |
you will keep secure any passwords used to upload data to the server, or otherwise supplied to you by Ecosphere or its Supplier in relation to the hosting services; and, |
D |
you hold and will continue to hold the copyright in the client data or that you are licensed and will continue to be licensed to use the client data in the manner contemplated by this agreement, on terms permitting you to sub-licence the client data to Ecosphere or its Supplier in accordance with your obligations under this agreement. |
12. You accept responsibility for all information and material you issue over any hosting service, and indemnify Ecosphere, and hold Ecosphere harmless against any liability in relation to such information and material. In particular you undertake that you shall not publish or issue any information which is illegal or defamatory. You also acknowledge that Ecosphere does not vet or approve any information or material available through the hosting service. Ecosphere do not accept any liability for any loss, claim or damages arising from or relating to information and material made available by you through hosting services, to the full extent permitted by law. You acknowledge that you make available, access and use such information and material at your own risk.
13. You are responsible for any misuse of our services, even for example, if the misuse was committed by a friend, family member, guest, employee or customer with access to your account or website. You are also responsible for any such misuse regardless of whether it was with or without your consent. Therefore, you must take steps to ensure that others do not gain unauthorised access to your account or website.
14. You indemnify Ecosphere and hold Ecosphere harmless against any liability in relation to all transactions undertaken using eCommerce services hosted by Ecosphere, including in respect of claims by or in respect of services provided by payment gateway providers.
Suspension and termination of hosting services
15. Ecosphere or its Supplier may from time to time without notice to you suspend, disconnect or deny access to hosting services:
A |
during any technical failure, modification or maintenance of the hosting services provided that we will use reasonable endeavours to procure the resumption of the hosting services as soon as reasonably practicable; or |
B |
if you fail to comply with any provision in this agreement (including failure to pay charges due), or do, or allow to be done, anything which in our opinion may have the effect of jeopardising the operation of hosting services, until the breach (if capable of remedy) is remedied. |
C |
Notwithstanding any suspension of any hosting service under this clause you shall remain liable for all charges due at the commencement of the suspension period throughout the period of suspension. |
16. Ecosphere may without notice to you remove, amend or alter your data upon being made aware of:
A |
any court order, judgment, determination or other finding of a court or other competent body, that the data is illegal, defamatory, offensive or in breach of a third party's rights; |
B |
if directed to do so by the Australian Broadcasting Authority under a "take down notice", in accordance with the Broadcasting Services Amendment (Online Services) Act 1999, or |
C |
an outside party or outside device disrupts or attempts to disrupt hosting services. |
17. Ecosphere reserves the right to take action, including suspension of or termination of a service, against a customer who interferes with the rights of another user online, or attempts to interfere with the smooth running of the Internet or Ecosphere's services. We reserve the right to discontinue, without refund or notice, any service where usage of the service is deemed to be an abuse, and we will charge the customer for costs incurred by any such abuse.
18. Ecosphere does not tolerate SPAM. If you use SPAM, unsolicited emails or any other similar method to promote your site, then your access to our services may be immediately terminated.
19. Ecosphere's hosting services must not be used for the purpose of publishing or storing pornographic material. If you publish or store pornographic material, then your access to our services may be immediately terminated.
20. Where Ecosphere supplies hosting services to you through a Supplier, Ecosphere may terminate and replace such Supplier at any time without notice to you. Ecosphere will, however, endeavour to replace such Supplier:
A |
with no or minimal disruption to the supply of hosting services, and |
B |
on substantially the same terms as are set out in this agreement. |
21. Ecosphere reserves the right to refuse or discontinue service to anyone at our sole discretion without notice. Your access to all or part of our services may be denied without notice if Ecosphere believes any of the terms and conditions have been violated.
Cancellation of hosting services
22. You may cancel your hosting account at any stage in writing.
23. Cancellations requested within the first 5 business days following setup will be refunded in full. No refund will be provided for cancellations requested after this date.
Last updated on Thursday, 3 April 2008