Service Terms and Conditions

Arktisma Unit Trust trading as Serversaurus (“Serversaurus”, “we”, “us” or “our”) welcomes you to serversaurus.com.au (the “Website”). These Terms and Conditions of Service (collectively, with Serversaurus’ Privacy Policy, the “Terms and Conditions of Service” or “Agreement”) govern your use of the Website and the services, features, content or applications operated by Serversaurus (together with the Website, the “Services”), and provided to the Subscriber (the “Subscriber”, “you” or “your”).

Please read these Terms and Conditions of Service carefully before using the Services. If you do not agree to these Terms and Conditions of Service, you must not use the Services and you should exit the website and stop use of the services immediately.

These Terms and Conditions of Service apply to all users of the Services, including without limitation any sub-users. Using the Services in any manner constitutes your acceptance and agreement to be bound by these Terms and Conditions of Service, and all other operating rules, policies and procedures that may be published from time to time on the Website by us, each of which is incorporated by reference and each of which may be updated from time to time without notice to you.

In purchasing our Services and entering into this agreement, you warrant that you are no legal impediment from doing so and that this agreement will be legally enforceable against you in accordance with its terms.

Serversaurus reserves the right, at any time and from time to time, to amend or to modify these Terms and Conditions of Service without prior notice to you, provided that if any such alterations constitute a material change to these Terms and Conditions of Service, Serversaurus will notify you by posting an announcement on the Website. Amendments and modifications shall take effect immediately when posted on the Website. By continuing to access or use the Services after any such amendments or modifications, you agree to be bound by such amended or modified Terms and Conditions of Service. For this reason, we encourage you to review the Terms and Conditions of Service whenever you use the Services. If you do not agree to any change to these Terms and Conditions of Service, then you must immediately stop using the Services.

1. Your eligibility to use our Service
   1. The Services are not targeted towards, nor intended for use by, anyone under the age of 18. By using the Services, you represent and warrant that you are 18 years of age or older. If you are under the age of 18, you may not, under any circumstances or for any reason, use the Services. We may, in our sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms and Conditions of Service are in compliance with all laws, rules and regulations applicable to you and the right to access the Services is revoked where these Terms and Conditions of Service or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation. Further, the Services are offered only for your use, and not for the use or benefit of any third party.
   2. To sign up for the Services, you must register for an account on the Services (an “Account”). You must provide accurate and complete information and keep your Account information updated. You shall not: (i) select or use as a username a name of another person with the intent to impersonate that person; (ii) use as a username a name subject to any rights of a person other than you without appropriate authorisation; or (iii) use, as a username, a name that is otherwise offensive, vulgar or obscene. You are solely responsible for the activity that occurs on your Account, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents), and for keeping your Account password secure. You may never use or interfere with another person’s user account or registration information for the Services without permission. You must notify us immediately of any change in your eligibility to use the Services, breach of security or unauthorised use of your Account. You should never publish, distribute or post login information for your Account. You shall have the ability to delete your Account, either directly or through a request made to one of our employees or affiliates. You must notify us immediately of any unauthorised use of your account, the Services we supply to you or any other breach of security.
   3. Serversaurus will be entitled to suspend or terminate your Account if you breach these Terms and Conditions of Service. Additionally, Serversaurus may disclose your Account details to any law enforcement bodies who investigates your use of our Service. Serversaurus will not be liable for any loss or damage as a result of your failure to provide us with accurate information or to keep your Account secure or with any investigation by law enforcement bodies.
2. Content you upload or download
   1. In this Agreement, “Content” means, without limitation, information, data, text, written posts and comments, software, scripts, graphics, recordings and interactive features generated, provided, or otherwise made accessible on or through the Services, as well as all User Content (as defined below).
   2. All Content added, created, uploaded, submitted, distributed, or posted to the Services by users (collectively “User Content”), whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You represent that all User Content provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. You acknowledge that all Content, including User Content, accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. We do not guarantee that any Content you access on or through the Services is or will continue to be accurate.
   3. The Services may contain Content specifically provided by us, our partners or our users and such Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Services.
   4. Subject to these Terms and Conditions of Service, we grant each user of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for other than purposes of using the Services is expressly prohibited without prior written permission from us. You shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates any third party right.
   5. Some Content will be marked on the Service as “Creative Commons Content”. Creative Commons Content will be identified with a Creative Commons icon. We hereby grant each user of the Services a license to Creative Commons Content under the Creative Commons CC BY-NC-SA 3.0 Australia Licence Deed, available at creativecommons.org.au/learn/licences. You agree to abide by the terms of the Creative Commons License when using Creative Commons Content.
3. Acceptable use of our Service
   1. As a condition of use, you promise not to use the Services for any purpose that is prohibited by these Terms and Conditions of Service. You are responsible for all of your activity in connection with the Services.
   2. You agree that you will not transmit, distribute, post, store, link, or otherwise traffic in Content, information, software, or materials on or through the Service that (i) is unlawful, threatening, abusive, harassing, defamatory, threatening, abusive, inciting of violence or hatred, misleading or deceptive, fraudulent, invasive of another’s privacy, tortious, contains or depicts pornography that is unlawful, or is otherwise inappropriate as determined by us in our sole discretion, (ii) you know is false, misleading, untruthful or inaccurate, (iii) constitutes unauthorised or unsolicited advertising, (iv) impersonates any person or entity, including any of our employees or representatives, (v) violates a person’s privacy, (vi) violates classification standards or (vii) which in our opinion is unsatisfactory or inappropriate.
   3. You shall not: (i) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (iii) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (iv) run any form of auto-responder or “spam” on the Services whether or not in breach of the Spam Act 2003 (Cth); (v) run any Internet Relay Chat (IRC) services; (vi) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Website; (vi) harvest or scrape any Content from the Services; (viii) use the Services for high risk activities including but not limited to the operation of nuclear facilities, air traffic control, life support systems, or any other use where the failure of service could lead to death, personal injury, or environmental damage; or (ix) otherwise take any action in violation of our guidelines and policies.
   4. You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Services, or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.
4. Compliance with all applicable laws
   1. When you use our Service you must comply with all applicable laws. For example, you must not use our Service for (a) any criminal activities such as distributing child pornography, (b) forgery, identity theft, misdirection or interference with electronic communications, (c) invasion of privacy, (d) improper data collection activities, (e) securities violations, money laundering, or terrorist activities, or (f) false advertising, propagating or profiting from frauds and unfair schemes. You must also comply with all positive obligations that you have under any laws governing your use of the Services, including but not limited to: (i) all disclosure requirements, (ii) records maintenance for regulated industries, and (iii) financial institution safeguards.
5. Using our network
   1. You must not use any method to circumvent the provisions of these Terms and Conditions of Service, or to obtain Services in excess of those for which you have contracted with us. You must only use those IP addresses that we have assigned to you, and must not use any IP addresses other than what we have assigned you. You must not use any mechanism to exceed the amount of resources assigned to you through the Services, or to conceal your activities.
6. Restrictions
   1. You must not use the Services to distribute, receive communications or data gleaned from, or execute any action directed by any type of injurious code, including but not limited to: (i) trojans, (ii) key loggers, (iii) viruses, (iv) malware, (v) botnets, (vi) denial of service attacks, (vii) flood or mail bombs, (viii) logic bombs, or (ix) other actions which Serversaurus reserves the sole right to determine to be malicious in intent.
   2. You must not use the Services in a manner that would violate the lawful privacy rights of any person, or to publish or republish defamatory statements, or to harass or embarrass, which we shall be determined in our sole and absolute discretion.
   3. In addition to being forbidden from performing any acts made illegal by the SPAM Act 2003 (Cth) or any other anti-spam laws, you must not send bulk email utilising their resources on the Services unless they comply with the requirements of those anti-spam laws. You are forbidden from taking any action that would result in your IP addresses, or any IP address associated with us or other subscribers, being placed on any anti-spam list or the Spamhaus.org blacklist. We reserve the right to determine whether an email violation has occurred.
   4. You must not use the Services in violation of the copyrights, trademarks, patents or trade secrets of third parties, nor shall they utilise the Services to publish such materials in a manner that would expose them to public view in violation of the law. We will terminate the accounts of repeat violators if we consider it is appropriate to do so. If a third party believes that a subscriber of Serversaurus is violating its intellectual property rights, it should notify us by email at abuse@serversaurus.com. A notification should include the IP address where the violation is believed to have occurred in addition to any other requirements of the relevant law.
   5. You are responsible for the acts of others utilising their access to the Services, and will be held responsible for violations of the Services by their sub-users or persons who gain access to the Services using your access codes. Any activity that a Subscriber is prohibited from performing by these Terms and Conditions of Services is equally prohibited to anyone using the access to your Services.
   6. You must notify all persons who you allow to receive access to your Services of the provisions of these Terms and Conditions of Service. In particular, you must notify them that these Terms and Conditions of Service are binding upon them.
   7. You must utilise proper security protocols, such as setting strong passwords and access control mechanisms, safeguarding access to all logins and passwords, and verifying the trustworthiness of all persons with your account access information.
7. Using third party services and domain name registrars
   1. The Services may permit you to link to other websites, services or resources on the Internet, and other websites, services or resources may contain links to the Services. When you access third party resources on the Internet, you do so at your own risk. These other resources are not under our control, and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply our endorsement or any association between us and their operators. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such website or resource.
   2. We are an authorised reseller of the domain name registrars TPP Wholesale Pty Ltd, Synergy Wholesale Pty Ltd, eNom, Inc and namecheap.com. We do not warrant that any domain name you apply for, can or will be registered. Accordingly, you should not act on a domain name application until you have been notified that your requested domain name has been registered. Both your registration of a domain name, its ongoing use and renewal are subject to the relevant auDA Policy Rules (auda.org.au) and/or the ICANN Policy Rules (icann.org), and the terms of use of the applicable domain name registrar. You are responsible for reading and complying with those rules and terms of use. We are not liable for and you irrevocable release us from all claims and loss you may have, suffer or incur in connection with a domain name you order and use through us. We have no responsibility to resolve a dispute between you and your domain name provider. We are not obliged to renew your domain name if you have not selected the domain name auto renewal option in our Website or you have not paid the renewal fee in advance using the method specified by us. We are not liable for any loss or damage suffered or incurred by you for the non-renewal of your domain name. If this agreement is terminated, but you do not transfer your domain name registration to another registrar, you agree that we may still contact you in relation to the renewal of your registration. We will not however be liable for failing to do so.
8. Payments and Billing
   1. Acceptable Payment Methods
      1. We accept payment using major credit cards, PayPal, and Direct Deposit via Electronic Funds Transfer. Cheque payments are not accepted. Services with a cost of more than $500 per month must be paid by Direct Deposit. Please note that any payment terms presented to you in the process of using or signing you up for paid Services are deemed part of this Agreement.
      2. Upon providing us with your credit card details, you irrevocably authorise us to debit your credit card for all moneys payable pursuant to this Terms and Conditions of Service. The billing cycle begins from the date you give us your credit card details. The relevant date is recorded in the My Account Area under “Start Date” in Accounts and Billings Details.
      3. We use third-party payment processors (“Payment Processors”) to bill you through a payment account linked to your Account on the Services (your “Billing Account”) for use of the paid Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processors in addition to this Agreement. We are not responsible for error by the Payment Processors. By choosing to use our paid Services, you agree to pay us, through the Payment Processors, all charges at the prices then in effect for any use of such paid Services in accordance with the applicable payment terms and you authorise us, through the Payment Processors, to charge your chosen payment provider (your “Payment Method”). You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that it makes even if it has already requested or received payment.
   2. Our prices and billing practices, as well as Account cancellations
      1. The term of this Agreement shall be monthly or annually (as selected by you), to commence on the date that the Subscriber signs up electronically for the Services by creating an Account with an email address, receives an acceptance email from us and, in the case of Prepaid Services, we receive full payment from you of our invoice. All invoices are denominated, and the Subscriber must pay, in Australian dollars. Our prepaid Services are usually billed monthly in advance. All other services are usually billed monthly in arrears with payment due no later than (7) days past the invoice date. You are entirely responsible for the payment of all taxes. You are also responsible for ensuring our acceptance email is not caught up in your SPAM filters. We reserve the right to accept or reject orders for Services placed by you. If you do not receive an acceptance email within 14 days of receipt of the order, then your order is rejected.
      2. For specific pricing policies, please refer to serversaurus.com.au. All prices are inclusive of Goods and Services Tax (GST) and all other taxes. We reserve the right to change our prices during a billing cycle. All published price changes will be effective at the beginning of the next billing cycle after the date of publication of the price change and your payment or continued use of the Service constitutes acceptance of any price change by us. For PAYG Cloud Services and Legacy Services, we reserve the right to change our prices upon given you one month’s prior written notice.
      3. The relevant services we supply under these Terms and Conditions of Service will be selected by you as part of our online order process or otherwise confirmed in our email acceptance to supply Services. You may also ask us to manually upgrade the Services that you buy over the phone, provided that you can verify your identity and that you are authorised to act on the relevant customer account. We reserve the right to require you to upgrade the Services via our online processes.
      4. Some of the paid Services may consist of an initial period, for which there is a one-time non-refundable charge, followed by recurring period charges as agreed to by you (the “Prepaid Services”). By choosing a Prepaid Services, you acknowledge that such Services have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. We may submit periodic charges (e.g., monthly) without further authorisation from you, until you provide prior notice (receipt of which is confirmed by us) that you have terminated this authorisation through our website or wish to change your payment method or you are in breach of this agreement. Such notice will not affect charges submitted before we reasonably could act in accordance with clause 8.2.5 TO TERMINATE YOUR AUTHORISATION OR CHANGE YOUR PAYMENT METHOD, YOU MUST FOLLOW THE PROCEDURE SET OUT IN CLAUSE 8.2.5 BELOW AND GO TO serversaurus.com.au
      5. ALL ACCOUNT CANCELLATIONS MUST BE SUBMITTED BEFORE THE NEXT BILLING CYCLE. Dedicated server and products on arrears billing cycles must be cancelled 14 days before the next billing cycle, failure to do so will result in that service being billed for an additional cycle. CANCELLATIONS MUST BE SUBMITTED VIA A CANCELLATION REQUEST IN THE CLIENT AREA OF OUR WEBSITE, FAILURE TO SUBMIT THE CANCELLATION VIA THE CLIENT AREA WILL RESULT IN THE CANCELLATION NOT BEING PROCESSED. Cancellation requests must also include the domain name associated with the account if it is a shared or reseller account, and server ip address if it is address if it is a dedicated server. You may be contacted shortly after the submission of your cancellation request, you must respond to complete the cancellation process.
      6. You must provide current, complete and accurate information for your billing account. You must promptly update all information to keep your billing account current, complete and accurate (such as a change in billing address, credit card number, or credit card expiration date), and you must promptly notify us or our payment processors if your payment method is cancelled (e.g., for loss or theft) or if you become aware of a potential breach of security, such as the unauthorised disclosure or use of your user name or password. Changes to such information can be made at serversaurus.com.au .If you fail to provide any of the foregoing information, then you agree that we may continue charging you for any use of paid services under your billing account unless you have terminated your paid services as set forth above.
      7. Refunds are provided at our sole discretion. All setup fees, domain registration and SSL are not refundable. If a cancellation request is received for a Service which has been pre-paid, then a credit will be issued to your Account once the Service has been cancelled.
      8. When any payments are refunded for payments made by Credit Card or Paypal, a fee will be deducted from the payment equal to the processing fee charged by the Payment Processor. For Credit Cards, this fee is 2.5% of the payment, and for Paypal the fee is 2.6%.
   3. Consequences of Late Payment or Non-Payment
      1. We will not provide you with a Prepaid Service if you do not pay the monthly fee in full by the due date.
      2. In the case of all Services that are payable monthly in arrears, we must receive your payment in full within thirty (30) days of the date invoicing. Otherwise you will be considered to be in arrears. If your invoice is unpaid after 30 days, our billing system will automatically add to the invoice a late fee equal to 5% of the value of the invoice. Direct Deposit payments may take up to 2 bank business days to reach our account and be processed, and any late fee incurred due to this delay will stand. It is your responsibility to ensure your payment reaches us on time. Credit Card payments are preferred as they are processed immediately. For accounts in arrears, if any amount is more than seven (7) days overdue, then we may suspend service to such account and bring legal action to collect the full amount due, including any lawyers’ fees and costs, without giving you any notice that your account is in arrears.
      3. If you are past due on your balance, we may send up you a further email before suspending your account. Cloud Servers will be temporarily powered off during the suspension period. We reserve the right to delete your suspended machines or services without notice to you if your Account is more than 45 days overdue.
      4. If you default in any payment, or you suffer an act of insolvency or bankruptcy (the “Event of Default”), then we may immediately suspend the Services we provide you with and:
         1. accelerate the due date for payment of all monies owing and outstanding to us and those amounts will become immediately due and payable;
         2. we may invoice you for the value of any Services supplied and other out of pocket expenses incurred (including any bank charges, late payment fees and dishonour fees due to any payment default), but not yet invoiced, which amounts will become immediately due and payable;
         3. we will charge you a one time, late payment fee of 5% of the invoiced amount that you have not paid on time; and
         4. we may cancel any rebate, discount or allowance due or payable to you, or which you would otherwise be entitled to receive, as at the date of the Event of Default.
      5. Your contract with us, much like an electricity or gas account, is legally binding. We trust that you will pay for your service as stipulated with your contract. If, however, you fail to do so without informing us of a change in situation and without responding to our attempts to contact and resolve with you, we may have to proceed with collections activity. If an account has been written off, we may refer the account to a Debt Collection Agency for further collection activity. This will only take place once all appropriate Credit Management action has been exhausted by we. Once referred to a Collections Agency, if no payment is then received within 60 days, the account may be referred to a second or third agency. Any costs of commission for amounts recovered will be charged to the customer’s account. These agencies may, at their own discretion, seek to commence legal action in order to retrieve funds. Should all activities with Collection Agencies be exhausted, Debts may be sold to a Debt Buyer that is a current member of an ASIC approved external dispute resolution scheme. Customers will be notified within 14 days of the debt being sold.
   4. Special offers and coupon usage
      1. We may offer discounts, coupons and special programs from time to time. The terms of those offers will be posted on our website and will be deemed to be incorporated into this Agreement.
   5. Affiliate program
      1. By signing up for the Serversaurus affiliate program, you indicate your acceptance to abide by the terms and conditions contained in Section 8.5.1. and 8.5.2. The term of this Agreement will begin upon our acceptance of your Affiliate application and will end when terminated by either party. Either party may terminate this agreement at any time, with or without cause, by giving the other party written notice of termination. You are only eligible to earn referral fees on sales occurring during the term. Any problems or discrepancies over payable commissions will be dealt with within 5 days of the first email notification to Serversaurus. All such matters will be handled by the Serversaurus Accounts Team. Visitors are tracked using third party software. This software utilises a cookie system that is set at the maximum period allowable of 90 days. Affiliates will be able to access sales through their affiliate administration control panel. Access details will be supplied upon acceptance of your application. Statistics are available subject to server performance in real time providing banner impressions, click-throughs, sales, commissions due and conversion rates. Historical data on a monthly basis of past performance is also available. International affiliates are allowed to join the affiliate program, commissions in the affiliate program are only available paid in AUD. Serversaurus will suspend any affiliate with or without notice for any affiliate who uses the affiliate link to drive traffic to us using deceptive practices. This includes but is not limited to coupon websites offering coupons that do not exist. This also includes websites that use the word “coupon” in search terms to drive traffic to their affiliate site. Please note that we do audit our affiliates from time to time. Commissions are paid with no owning threshold. Payments will be made upon request through the Client Area of the Website. You are held responsible for your own tax liabilities in relation to this payment. The payment level can vary and is available upon request. Commissions are only paid on Personal and Business Web Hosting. Reseller, Cloud and CDN are excluded from the affiliate program in terms of earnings, but credit for Personal and Business Web Hosting referrals may be applied to your Reseller, Cloud or CDN account. The referral must be active for a minimum of 90 days cooling off period to receive any commissions. Commissions against sales that are rejected upon card authorisation or otherwise refunded upon or fraudulent will be deducted from your following commission payment. If you are a current Serversaurus customer, you may have the affiliate payment credited to your account directly to pay for current or future services from us. To have affiliate payment credited to account alert the Serversaurus staff before payment. We may modify any of the terms and conditions contained in section 8.5.1. and 8.5.2, at any time and in our sole discretion, by posting a change notice all affiliates who have not opted out of receiving email notifications will also receive an email notification. Modifications may include, for example, changes in the scope of available referral fees, fee schedules, payment procedures and program rules. Any changes or modifications made will be in good faith. The agreement will not be altered to purposely avoid paying affiliates due commissions. Any substantive changes, i.e., change of commissions will be made with at least 14 days notice by email and onsite update of agreement. Notification of all changes will also be broadcast in an email message to all affiliates providing you have not opted out of receiving further communications from us.
      2. IF ANY MODIFICATION ARE UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE. We will not be liable for indirect, special or consequential damages, or any loss of revenue, profits or data, arising in connection with this Agreement or the Serversaurus Affiliate Program, even if we have been advised of the possibility of such damages. Further, our aggregated liability arising with respect to this Agreement and the Serversaurus Affiliate Program will not exceed the total referral fees paid or payable to you under this Agreement.
9. Warranty Disclaimer
   1. We have no special relationship with or fiduciary duty to you. You acknowledge that we have no duty to take any action regarding:
      1. which you gain access to the Services;
      2. what Content you access via the Services; or
      3. how you may interpret or use the Content.
   2. To the maximum extent permitted by law, you release us from all liability for you having acquired or not acquired Content through the Services. We make no representations concerning any Content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, or legality of material or Content contained in or accessed through the Services.
   3. THE SERVICES AND CONTENT ARE PROVIDED “AS IS”, “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY LAW. WE, AND OUR DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS OR PRODUCE PARTICULAR RESULTS REQUIRED BY YOU. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK.
   4. IF ANY LEGISLATION, SUCH AS THE AUSTRALIAN CONSUMER LAW, IMPLIES IN THIS AGREEMENT OR OTHERWISE PRESCRIBES ANY CONDITION, GUARANTEE (INCLUDING CONSUMER GUARANTEES) OR WARRANTY WHICH CANNOT BE EXCLUDED OR MODIFIED, THEN THAT CONDITION, GUARANTEE OR WARRANTY IS DEEMED TO BE INCLUDED IN THIS AGREEMENT. HOWEVER, TO THE EXTENT PERMITTED BY LAW, OUR LIABILITY FOR BREACH OF SUCH STATUTORY CONDITION, GUARANTEE OR WARRANTY IS LIMITED AT OUR OPTION TO ANY ONE OR MORE OF THE FOLLOWING:
      1. IN THE CASE OF GOODS – THE REPAIR OF THE GOODS, THE REPLACEMENT OF THE GOODS OR THE SUPPLY OF EQUIVALENT GOODS OR TO THE PAYMENT OF THE COSTS OF REPAIR, REPLACEMENT OR SUPPLY OF EQUIVALENT GOODS; AND
      2. IN THE CASE OF ADVICE, RECOMMENDATIONS, INFORMATION OR SERVICES, BY SUPPLYING THE ADVICE, RECOMMENDATIONS, INFORMATION OR SERVICES AGAIN, OR BY PAYING THE COST OF SUPPLYING THE ADVICE, RECOMMENDATIONS, INFORMATION OR SERVICES AGAIN.
10. Limitation of Liability
    1. IN NO EVENT SHALL WE, NOR OUR DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY NON-RENEWAL OF THE SERVICES (III) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), (IV) IN CONNECTION WITH OUR ANTI-SPAM OR VIRUS FILTERS, OR (V) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) OF FEES PAID TO US FOR THE PARTICULAR SERVICES DURING THE IMMEDIATELY PREVIOUS ONE MONTH PERIOD, EVEN IF SERVERSAURUS HAD BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF. YOU ACKNOWLEDGE THAT THE FEES PAID BY YOU REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT SERVERSAURUS WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS. YOU HEREBY WAIVE ANY AND ALL CLAIMS AGAINST SERVERSAURUS ARISING OUT OF YOUR PURCHASE OR USE OF THE SERVICES, OR ANY CONDUCT OF OUR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR REPRESENTATIVES. YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE SERVICES OR ANY OTHER GRIEVANCE SHALL BE:
       1. IN THE CASE OF A CONSUMER ABLE TO RELY UPON THE AUSTRALIAN CONSUMER LAW, THE REMEDY SET OUT IN CLAUSE 9.4 ABOVE; OR
       2. IN ALL OTHER CASES, YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO OR USE OF THE SERVICES.
11. Confidentiality
    1. You must keep confidential any confidential information to which it is given access, and shall cooperate with our efforts to maintain the confidentiality thereof. You must not publish to third parties or distribute information or documentation that we provide you with for purposes of operating and maintaining its systems, including material contained in estimates, invoices, work orders, or other such materials.
12. Data backup
    1. You are solely responsible for backing up any data which you save onto our virtual servers or your account with us (the “Data”). Even if you buy a Data back-up plan from us, we do not have any responsibility to preserve that Data after you ceasing purchasing that service from us. Nor do we have any liability for any Data that might be lost, corrupted or is unrecoverable whether or not you buy a Data back-up plan from us or by reason of your failure to back up your Data. If your Data is important to you or your business, then we suggest that you also take out an insurance policy against any loss or damage suffered or incurred by you for any Data loss or corruption.
13. Publicity
    1. You are permitted to publicly state that you are a subscriber or user of our Services. We may include such your name and trade marks in a list of our subscribers, online or in promotional materials or verbally reference you as one of our subscribers if you have agreed to that proposed arrangement at the time you became a subscriber to our services. You may opt out of the provisions in this clause by e-mailing a request to support@serversaurus.com.au
14. Indemnification
    1. You shall defend, indemnify, and hold harmless us, our affiliates, parents, subsidiaries, any related companies, licensors and partners, and each of our and their respective employees, officers, directors, agents, contractors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable legal fees, that arise from or relate to your (or any third party using your Account or identity in the Services) use or misuse of, or access to, the Services, Content, or otherwise from your User Content, violation of these Terms and Conditions of Service or of any law, or infringement of any intellectual property or other right of any person or entity. The indemnity does not apply to the extent that we cause or contribute to our own loss or damage. We reserve the right to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defences. This clause survives the termination or expiry of this Agreement.
15. Termination or suspension of your Service
    1. Serversaurus reserves the right, in our sole discretion, to terminate or suspend your access to all or any part of the Services at any time, with or without notice, effective immediately, including but not limited to as a result of your violation of any of these Terms and Conditions of Service or any law, if you suffer an Insolvency Event, we are required to do so by law, or if you misuse system resources, such as, by employing programs that consume excessive network capacity, CPU cycles, or disk IO. Any such termination or suspension may result in the forfeiture and destruction of information associated with your Account. Serversaurus may provide prior notice of the intent to terminate or suspend Services to you if such notice will not, in our discretion, run counter to the intents and purposes of these Terms and Conditions of Service. Any fees paid hereunder are non-refundable and any fees owed to us before such termination or suspension shall be immediately due and payable, including any liabilities that may have been incurred prior to termination or suspension such as our costs for collection (including its legal fees) of any such charges or other liabilities. Upon termination, any and all rights granted to you by this Agreement will immediately be terminated, and you must promptly discontinue all use of the Services. Upon reactivation of your Account following a suspension, we may require you to pay us in full for all outstanding amounts and pay a reactivation fee at our discretion. If you wish to terminate your Account, you may do so by following the instructions on the Website or through the Services. We are under no obligation to provide you with a copy of your Data or User Content if we terminate or suspend all or part of your Services. Nor are we under any obligation to refund you amounts automatically debited from your PayPal account after your Service has been terminated. It is your responsibility to terminate any PayPal subscriptions. If we are required to refund you any payments received, then we may charge you an administration fee for doing so by deducting that amount from the amount to be refunded to you. All provisions of these Terms and Conditions of Service which by their nature should survive termination shall survive termination or suspension, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
    2. We reserve the right at our sole discretion to cancel your service. If we choose to cancel your service you will receive a prorated refund for unused service and will be provided 30 days to move your service to an alternate provider.
16. Governing law and jurisdiction
    1. Any claim arising hereunder shall be construed in accordance with the substantive and procedural laws of the State of Victoria and the Commonwealth of Australia, without regard to principles of conflict of laws. You agree that any dispute arising from or relating to the subject matter of these Terms and Conditions of Service shall be governed by the exclusive jurisdiction and venue of the courts of Victoria and the Commonwealth of Australia. You consent to service of process via email at the email address(es) provided by you, and waives any requirement under any judicial treaty requiring that legal process be translated into any language other than English.
17. Dispute Resolution
    1. Mindful of the high cost of litigation, you and Serversaurus agree to the following dispute resolution procedure: in the event of any controversy, claim, action or dispute arising out of or related to: (i) the Website; (ii) this Agreement; (iii) the Services; (iv) the breach, enforcement, interpretation, or validity of this Agreement; or (v) any other dispute between you and Serversaurus (a “Dispute”), the party asserting the Dispute shall first try in good faith to settle such Dispute by providing written notice to the other party (by first class or registered mail) describing the facts and circumstances (including any relevant documentation) of the Dispute and allowing the receiving party 30 days in which to respond to or settle the Dispute. Notice shall be sent (1) if to us at: 31 Arden St, North Melbourne VIC 3058, Australia or (2) if to you at: your last-used billing address or the billing and/or shipping address in your Account information. Both you and Serversaurus agree that this dispute resolution procedure is a condition precedent that must be satisfied prior to initiating any legal proceedings against the other party.
18. Miscellaneous Provisions
    1. Neither of us shall be liable to the other for non-performance of the terms herein to the extent that either of us are prevented from performing as a result of any act or event which occurs and is beyond our reasonable control, including, without limitation, acts of God, Thor, or the Flying Spaghetti Monster (FSM), war, unrest or riot, strikes, any action of a governmental entity, weather, quarantine, fire, flood, earthquake, explosion, utility or telecommunications outages, Internet disturbance, or any unforeseen change in circumstances, or any other causes beyond either party’s reasonable control. The party experiencing the force majeure shall provide the other party with prompt written notice thereof and shall use reasonable efforts to remedy effects of such force majeure. A force majeure event does not include your obligation to pay us any money.
    2. This Agreement, including all related agreements and policies incorporated by reference herein, constitutes the entire agreement between the parties related to the subject matter hereof and supersedes any prior or contemporaneous agreement between the parties relating to the Services.
    3. All right, title and interest in any technology, techniques, software and other intellectual property that is used in, or supplied by us, in connection with the Services is owned by us or will vest in us on creation, or is licensed to us. You may use the technologies, techniques, software and other intellectual property only as permitted by these Terms and Conditions of Services. We otherwise reserve all rights in relation to those things. Unless otherwise agreed, you obtain no proprietary rights to the hardware, software and other infrastructure and facilities used by us to supply our Services.
    4. A valid waiver hereunder shall not be interpreted to be a waiver of that obligation in the future or any other obligation under this Agreement. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. In order for any waiver of compliance with these Terms and Conditions of Service to be binding, we must provide you with written notice of such waiver through one of our authorised representatives.
    5. If any provision of this Agreement is prohibited by law or held to be unenforceable, that provision will be severed and the remaining provisions hereof shall not be affected such that this Agreement shall continue in full force and effect as if such unenforceable provision had never constituted a part hereof.
    6. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute the same instrument. This Agreement may be signed electronically.
    7. These Terms and Conditions of Service are personal to you, and are not assignable, transferable or sublicensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations, including any information provided to us by you for the purpose of receiving the Services, hereunder without your consent.
    8. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms and Conditions of Service and neither party has any authority of any kind to bind the other in any respect.
    9. The clause and paragraph headings in these Terms and Conditions of Service are for convenience only and shall not affect their interpretation.
    10. Unless otherwise specified in these Terms and Conditions of Service, all notices under these Terms and Conditions of Service will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognised overnight delivery service. Electronic notices should be submitted via email to support@serversaurus.com.au.