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Terms of Service
The following terms and conditions (these "Terms") govern the provision by Emotech Corporation Pty Ltd trading as Emotech. ("Company") of the services and/or products (referred collectively herein as "Services and Products") described on the Server Order Form, the Service Level Agreement and Service Exhibit attached hereto (collectively the "Service Descriptions”) and defined in any of the Company’s product support listing, to the customer ("Customer") identified on the Service Descriptions. The Service Descriptions, these Terms and the attachments and any addenda hereto, executed with respect to the Services and Products, are referred to herein, collectively, as this "Agreement."
By submitting the online order form, Customer hereby agrees to the following:
* The term of this agreement, and the provision by the Company of the services hereunder, is on a periodic basis and renewable on the anniversary of such period unless cancelled earlier by pursuant to the express terms of this agreement.
* Customer agrees to pay for hosting services in advance of each payment term on the billing date specified in the invoice it receives from the Company.
* Clients on monthly payment plans are required to set up an automatic payment facility to arrive in our account on or before the due date each month
* Customer agrees to be bound by the service term selected on the online order form or via applicable promotional codes.
* All set-up fees and monthly service fees are non-refundable. Customer shall not be entitled to any refunds, pro-rated or otherwise in the event of early termination of this agreement by Company according to the terms herein.
* Server rental charges will be incurred immediately at signup and are prorated by 3 days to allow for server provisioning and delivery.
* Non-Payment of services shall result in suspension or disconnection. All payment failures must be cured within 5 days of notice. Customers failing to secure payment within 5 days of notice will incur service interruption and $50 reconnection fee.
* Customer must submit service cancellations by using the help desk at http://support.emotech.com.au at least 30 days before the due date of their next billing cycle.
* Company is not responsible for data integrity on equipment reclaimed for non-payment.
* Customer agrees to adhere to the Company's Acceptable Usage Policy, as amended from time to time by the Company.
* Customer agrees to adhere to the Company Data Center Rules and Procedures.
* Company reserves the right to terminate service immediately to any subscriber it deems, in its sole discretion, violates any condition of service including the Acceptable Usage Policy, Data Center Rules and Procedures, and Terms of Services.
Acceptable Usage Policy
Emotech Acceptable Use Policy ("AUP") is designed to protect Emotechs customers ("Customers") and third parties, further compliance with all relevant laws and regulations, and promote the security and availability of Emotechs hosting network, servers and physical infrastructure. This AUP applies to each Customer's use of the services provided to it by Emotech ("Services") and every server or network device that is under Emotech or each Customer's control and attached to Emotech infrastructure as a part of the Services ("Server").
This AUP is incorporated by this reference into each Customer's service agreement. Emotech reserves the right to amend this AUP from time to time, and a Customer's use of the Services after changes to the AUP are posted on Emotech website www.emotech.com.au will constitute the Customer's acceptance of any such amendments as will payment of each invoice.
Customers are responsible for complying with this AUP and for violations attributable to their customers and users, whether authorised or not by Customer. Customers must take all reasonable steps to ensure that they, their customers and users will comply with this AUP.
This AUP does not (a) obligate Emotech to monitor, review, or police the data and content residing on its network or (b) create any obligation of Emotech to any party that is not a Customer. Web Hosts Australia expressly disclaims any liability for the data and content residing on its network and servers and for the actions of its Customers.
Any questions or comments regarding this AUP should be directed to through email to support@emotech.com.au, by use of the +618.8121.8099 number or in the case of existing clients through the Help Centre at http://support.emotech.com.au.
Prohibited Content
Customers shall not allow the posting, transmission, or storage of data and content on or through the Services which, in Emotech sole determination, constitutes a violation of any relevant law, regulation, ordinance, or court order. Customers shall be responsible for determining what laws or regulations are applicable to their use of the Services. Prohibited content includes, without limitation, (a) content or code that facilitate any violation of, or describe ways to violate, this AUP or (b) "harvested" addresses or information, (c) "phishing" web sites, or (d) "spamvertising" sites.
A Customer shall not knowingly host on its account, or transmit over Emotech servers or network, any material believed by Emotech to constitute child pornography. In addition to the any other actions it may take under this AUP, Emotech reserves the right to cooperate fully with any criminal investigation of content located on a Server that constitutes alleged child pornography.
Customer Security Obligation
Customers must use reasonable care to ensure the security of each Server. A Customer is solely responsible for any intrusions into, or security breaches of, any of its Domains or Servers, except as otherwise covered by a specifically designated security administration or firewall security service package ordered by the Customer. Emotech reserves the right to disconnect without provision of service credit any Server or Account which disrupt Emotech servers, network or any hardware objects on the network as a result of a security compromise.
Network Abuse
Customers are prohibited from engaging in any activities that Emotech determines in its sole discretion to constitute network abuse, including the following:
* Introducing or executing malicious programmes into any network or server, such as viruses, worms, Trojan Horses, and key loggers.
* Causing or initiating security breaches or disruptions of network communication and/or connectivity, including port scans, flood pings, email-bombing, packet spoofing, IP spoofing, and forged routing information.
* Executing any form of network activity that will intercept data not intended for the Customer's server or account.
* Evading or circumventing user authentication or security of any host, network or account, including cracking, brute-force, or dictionary attacks.
* Interfering with or denying service to any user, host, or network other than the Customer's host, such as a denial of service attack or distributed denial of service attack.
* Conduct designed to avoid restrictions or access limits to specific services, hosts, or networks, including the forging of packet headers or other identification information.
* Using any program, or sending messages of any kind, designed to interfere with or disable a user's terminal session.
* Being in breach of the Anti Spam Laws of any country.
Intellectual Property Infringement Policy
Customers may not transmit, distribute, download, copy, cache, host, or otherwise store on a Server any information, data, material, or work that infringes the intellectual property rights of others. Emotech has the right to disable access to, or remove, infringing content to the extent required under any law or regulation, including the Digital Millennium Copyright Act of 1998.
Emotech reserves the right to suspend permanently or terminate the Services of any Customer that repeatedly violates Emotech Intellectual Property Infringement Policy or any copyright law.
E-mail Policy
Customer may not send unsolicited bulk messages over the Internet (i.e., "spamming") and must comply with all relevant legislation and regulations on bulk and commercial e-mail, including the CAN-SPAM Act of 2003 and the Australian Anti Spam Legislation 2004.
Mass Mailings – Customers may not sending mass unsolicited e-mail, which is email that is sent to recipients who have not double-opted in to mailings from the Customer. Customers who send mass mailings must maintain complete and accurate records of all consents and opt-ins, including the actual e-mail and its headers, and provide such records to Emotech upon its request. If a Customer cannot provide positive and verifiable proof of such consents and opt-ins, Emotech will consider the mass mailing to be unsolicited.
Mailing Lists – Customers are prohibited from operating mailing lists, listservs, or mailing services that do not target an audience that has voluntarily signed up for e-mail information using a double opt-in process or that has made their e-mail addresses available to Customer for distribution of information. Customers who operate mailing lists must maintain complete and accurate records of all consents and opt-ins (including the actual e-mails and their headers) and provide such records to Emotech upon its request. If a Customer cannot provide positive and verifiable proof of such consents and opt-ins, Emotech will consider the list mailing to be unsolicited. Any Customer-maintained mailing list must also allow any party on the list to remove itself automatically and permanently. On shared servers no more than 500 emails may be sent from an account in an hour
Other prohibited mailing activities include the following:
* Use of Emotech servers and network for the receipt of replies to unsolicited mass e-mail
* Forgery of e-mail headers ("spoofing")
* Spamming via third-party proxy, aggregation of proxy lists, or installation of proxy mailing software
* Configuration of a mail server to accept and process third-party messages for sending without user identification and authentication
* Hosting web pages advertised within "spam e-mail" sent from another network ("spamvertising")
* Any other unsolicited bulk messages, postings, or transmissions through media such as weblog posts, IRC/chat room messages, guestbook entries, HTTP referrer log entries, usenet posts, pop-up messages, instant messages, or SMS messages.
Block Removal – If, as a result of a Customer's actions, Emotech mail servers or IP address ranges are placed on black hole lists and other mail filtering software systems, Emotech shall charge Customer $100 up front and $100 per hour thereafter for any necessary remedial actions.
IP Allocation
A Customer shall not use IP addresses that were not assigned to it by Emotech. Emotech reserves the right to suspend the network access of any account or server utilising IP addresses outside of the assigned range.
IRC Policy
Unless on their own Dedicated Server customers may not operate and maintain IRC servers which connect to global IRC networks such as Undernet, EFnet, DALnet. Use of IRC plug-ins, scripts, add-ons, clones or other software designed to disrupt or deny service to other users is prohibited. Harassing or abusive IRC activity is expressly prohibited under the AUP, including (i) disruption or denial of service or (ii) the use or joining of "botnets" or the use of IRC BNC's or other proxy and re-direction software. If a Customer's IRC servers are frequently compromised or attract denial of service or distributed denial of service attacks that disrupt or denies service to other Customers or users, Emotech may null-route, filter, suspend, or terminate that Customer's service.
Usenet Policy
Usenet posts and content must conform to standards established by the Internet community and the applicable newsgroup charter. Emotech reserves the right to determine whether such posts violate the AUP.
Legal Investigations
Customers will cooperate and comply with any civil or criminal investigation regarding content located on its Accounts or Servers, including, without limitation, the following: discovery orders, subpoenas, freeze orders, search warrants, information requests, wire taps, electronic intercepts and surveillance, preservation requests, and any other order from a court or government entity (each an "Investigation"). Emotech reserves the right to comply with any Investigation without notice to a Customer. Customers shall not be entitled to service credits, and Emotech shall not be in default under any agreement for Services, if its compliance with any Investigation causes a Customer to incur downtime or requires the sequestering of all or a portion of the Servers.
Violations of AUP
Emotech may enforce this AUP with or without notice to a Customer by any actions it deems necessary in its sole discretion, including the following:
* Disabling access to a Customer's content that violates this AUP
* Removal of DNS records from Servers
* Blocking mail or any other network service
* Effecting IP address null routing
* Suspending or terminating of a Customer's service
* Taking direct action against a Customer's users and customers.
The aforementioned list of actions shall not be construed in any way to limit the actions or remedies that Emotech may take to enforce and ensure compliance with this AUP. Emotech reserves the right to recover any and all expenses, and apply any reasonable charges, in connection with a Customer's violation of this AUP. No service credits will be issued for any interruption in service resulting from violations of this AUP.
Emotech reserves the right to refuse service to anyone for any reason not prohibited by law. Emotech reserves the right to terminate service to any customer for any reason not prohibited by law
Emotech reserves the right at all times to investigate any actual, suspected, or alleged violations of this AUP, with such investigation to include accessing of data and records on, or associated with, any Server.