PureMac Pty Ltd Terms of Service and Acceptable Use Policy ("AGREEMENT")
Effective Date: January 1, 2015.
This Terms of Service (“TOS”) and Acceptable Use Policy (“AUP”) was last updated on January 1, 2014.
PureMac Pty Ltd, Inc. ("The Company") agrees to furnish services to the subscriber of services ("Client"), subject to the following AGREEMENT ("Terms of Service").
PureMac Pty Ltd reserves the right to change this AGREEMENT at any time. Such changes, modifications, additions or deletions shall be effective immediately upon posting on-line at this location. You acknowledge and agree that it is your responsibility to review this site and this AGREEMENT periodically and to be aware of any modifications. You may identify whether PureMac Pty Ltd has revised this AGREEMENT by noting the "Effective Date" above. Your continued use of the services after such modifications will constitute your: (a) acknowledgment of the modified AGREEMENT; and (b) agreement to abide and be bound by the modified AGREEMENT. If you do not agree to these terms, please contact us to cancel your services.
You agree to provide PureMac Pty Ltd with accurate and complete contact information. Contact information means any data relating to your identity, electronic mail, and street address, or telephone and fax number, or any other information that you provide to PureMac Pty Ltd in order to receive or to continue receiving services. Further, you agree to provide PureMac Pty Ltd with updated contact information within a reasonable period of time following the change in circumstance that creates the need for updated information.
Payments and Fees
Establishment of this service is dependent upon receipt by PureMac Pty Ltd of payment of stated charges. Subsequent payments are due on a recurring date that coincides with the date of sign up. The accepted methods of payment are credit card (Visa, MasterCard, American Express). Clients are responsible for any additional transaction fees that coincide with any payment methods. The Company reserves the right to deny Client the use of any payment method for, but not limited to, abuse or misuse of a payment method. Abuse of a payment method may also be grounds for further disciplinary action up to and including the immediate and permanent cancellation of the Client's services or their entire account with The Company. Credit cards that are declined for any reason are subject to a $2.00 declination fee. Service will be interrupted on accounts that reach 7 days past due. Service interrupted for nonpayment is subject to a $50 reconnect charge. Accounts not paid by due date are subject to a $10 late fee. Accounts that are not collectible by PureMac Pty Ltd may be turned over to an outside collection agency for collection. If you desire to cancel your account, please follow the proper procedure as outlined in this AGREEMENT. If a service is deactivated due to non-payment the service in question will only be reactivated once payment for the outstanding balance has been received in full. If all services on an active account are deactivated all outstanding invoices must be paid in full before any one service will be reactivated. The Company reserves the right to keep a service deactivated until funds paid have cleared.
Client must submit service cancellation request in writing (email is ok) to the following email address: firstname.lastname@example.org or email@example.com no less than 7 days prior to the end of a billing cycle. Only the authorised account holder may cancel the account. PureMac does not credit or pro rata month hosting fees so any time after the billing cycle a full month will be charged.
Refund Policy and Disputes
All payments to PureMac Pty Ltd are nonrefundable. This includes one-time setup fees, prepayment fees, and subsequent charges regardless of usage. Client shall not be entitled to any refunds, pro-rated or otherwise, in the event of early termination of this agreement by The Company according to the terms herein. All overcharges or billing disputes must be reported within 60 days of the time the dispute occurred. If you dispute a charge to your credit card issuer or payment provider (chargeback) that, in PureMac Pty Ltd's sole discretion is a valid charge under the provisions of the AGREEMENT, you agree to pay PureMac Pty Ltd an "Administrative Fee" of not less than $75 and not more than $200.
Clients may only use our servers for lawful purpose. Transmission of any material in violation of any Federal, State or Local regulation is prohibited. This includes, but is not limited to copyrighted material, proprietary information and other intellectual property rights, libel or defamation of character, invasion of privacy, tortious interference, export of technical or military data to prohibited countries, material legally judged to be threatening or obscene, pornography, and material protected by trade secrets. The hosting, storage or transmittal of any sexually explicit material that is in violation of any applicable federal, state or local law, such as material that involves the depiction or use of underage persons, is strictly prohibited. SPAM and Unsolicited Commercial Email (UCE) - PureMac Pty Ltd takes a zero tolerance approach to the sending of Unsolicited Commercial Email (UCE) or spam over our network. Very simply this means that Clients of PureMac Pty Ltd may not use or permit others to use our network to transact in UCE. Clients of PureMac Pty Ltd may not host, or permit hosting of, sites or information that is advertised by UCE from other networks. In addition, it is not acceptable to transmit bulk email through remote SOCKS, HTTP or other similar proxies who in turn make a SMTP connection to the destination mail servers. This technique may result in account suspension or termination. Violations of this policy carry severe penalties, including termination of service. In order to prevent unnecessary blacklisting due to spam we reserve the right to occasionally sample bulk email being sent from servers.
- Violation of PureMac Pty Ltd's email policy, as outlined in the Acceptable Use Policy ("AUP") will result in severe penalties. Upon notification of an alleged violation of our AUP, PureMac Pty Ltd will initiate an immediate investigation (within 48 hours of notification). During the investigation, PureMac Pty Ltd may restrict Client access to the network to prevent further violations. If a Client is found to be in violation of our AUP, PureMac Pty Ltd may, at its sole discretion, restrict, suspend or terminate Client's account. Further, PureMac Pty Ltd reserves the right to pursue civil remedies for any costs associated with the investigation of a substantiated policy violation. PureMac Pty Ltd 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 $250 and your account will be reviewed for possible immediate termination. A second violation will result in an "Administrative Fee" of $500 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 $175 per hour that PureMac Pty Ltd personnel must spend to investigate the matter.
- Denial of Service - The launching or facilitating the launch of a denial of service (DoS) attack on any host or computer on the PureMac Pty Ltd network for any reason whatsoever, or the use of any PureMac Pty Ltd network resource to interfere with the legitimate use by Clients or other authorised users of resources of the PureMac Pty Ltd network or any other network is strictly prohibited.
- Port Scanning - The scanning of the service ports of any host or computer on the PureMac Pty Ltd network or any other network, or the sniffing of packet traffic on the PureMac Pty Ltd network is strictly prohibited. The placing of any network interface into promiscuous mode is similarly prohibited.
- Unauthorised Access - Any unauthorised access to or unauthorised alteration of the files or operating system or other content of any host or network, or any unauthorised attempt to obtain login credentials, such as username and/or password, of any host on the PureMac Pty Ltd network or any other network is strictly prohibited.
- Landing Sites - The hosting of any web site or other content in any form intended to be intentionally or unintentionally retrieved or viewed by any recipient of any unsolicited email sent in violation of the spirit or letter of the terms defined in this document, whether sent from our network or any other network, is strictly prohibited.
- Newsgroup Spamming - The posting of commercial messages to any newsgroup or discussion forum not chartered or organised for that specific purpose is similarly prohibited.
- Validation of Information - The Client is responsible for validating the integrity of the information and data it receives or transmits over the Internet.
- Discretion and Judgment - The Client is expected to use discretion in the treatment and handling of Internet information and data and to take particular care to insure that adult information is not transmitted to juvenile users of the Internet.
- The designation of any materials as such described above is left entirely to the discretion of PureMac Pty Ltd management.
- Violations of this provision will be referred to appropriate legal authorities.
If, in the determination of PureMac Pty Ltd, acting reasonably, the Equipment, software or hosted applications used by the Client or the activities of the Client poses an immediate threat to the physical integrity of the Premises or the physical integrity or performance of the equipment or network of PureMac Pty Ltd or any other user of the Premises, or poses an immediate threat to the safety of any person, then PureMac Pty Ltd may perform such work and take such other actions that it may consider necessary without prior notice to the Client and without liability for damage to the Equipment or Data for any interruption of the Client's (or its Clients') businesses. As soon as practical after performing such work, PureMac Pty Ltd will advise, by email, the Client of the work performed or the action taken.
Bandwidth (web hosting and email clients only. does not apply to Daylite, Billings Pro or MoneyWorks clients.)
Client agrees that bandwidth usage shall not exceed the number of gigabytes per month for the services ordered by Client. PureMac Pty Ltd will monitor Client's bandwidth usage and will provide RTG graphs of bandwidth usage for Client to review in the PureMac Pty Ltd client portal. PureMac Pty Ltd shall have the right to take corrective action if Client's bandwidth usage exceeds the amount allocated by Client's service plan ("Allocation"). Such corrective action may include the assessment of additional charges, disconnection or discontinuance of any and all services, or termination of this agreement, which actions may be taken is in PureMac Pty Ltd's sole and absolute discretion. PureMac Pty Ltd believes in communicating with our clients and will try to work with our clients to resolve any overage issues before taking action which could cause a client's service to become unavailable.
Bandwidth usage is measured on a monthly basis coinciding with Client's billing cycle. Both incoming and outgoing traffic are counted towards the total number of gigabytes per month for the services ordered by Client.
In the event that a Client exceeds the included allocation, PureMac Pty Ltd may, at its sole discretion, collect a deposit in the amount of $0.10 per GB for the projected overage for the month, immediately against Client's credit card on file with PureMac Pty Ltd.
Client agrees to pay PureMac Pty Ltd any additional fees for bandwidth overages within 30 days of the invoicing period at a rate of $0.10 per GB of bandwidth used over the Allocation. Any bandwidth overage bill not paid within thirty (30) days of invoicing will subject the server and services to suspension.
Unused bandwidth allocations cannot be carried over to future months, or applied to other servers or accounts.
Resale of Services
Clients are not permitted to re-sell or on sell any PureMac hosted service. Any breach will result in immediate service termination.
The client agrees to allow PureMac personnel to act as an agent for the client when installing any applications on their server environment other than our standard applications - Daylite, Billings Pro, Moneyworks, Merlin. You agree to indemnify and hold harmless PureMac Pty Ltd from any and all liability, damage, lost of data, interruption to business arising from the installation of or upgrading of all and any applications and or services provided to PureMac Pty Ltd.
PureMac Pty Ltd performs all account transfers, account moves, cPanel transfers, server transfers and any other service which involves PureMac Pty Ltd copying files of yours from a third party service to your PureMac Pty Ltd service, hereafter known as a "transfer" as a paid service. At PureMac Pty Ltd’s discretion we may offer this service as a courtesy. By requesting PureMac Pty Ltd to perform a transfer you agree to indemnify and hold harmless PureMac Pty Ltd from any and all liability arising from the transfer and/or copying of your accounts. You also agree PureMac Pty Ltd is not responsible for any issues relating to the transfer of your database, email, Web service or any other undefined service or system, both on your PureMac Pty Ltd service and at any other third party service from which PureMac Pty Ltd may be transferring your accounts from, including but not limited to, missing or corrupted files, improperly transferred accounts, corrupt backup files or Daylite database conversions or upgrades, any and all fees you may incur from third party services such as bandwidth fees or charges from delays in transferring account, settings or files from third party providers which may not transferred, any downtime or outages, DNS problems, accounts set up on incorrect IP addresses, any issues at third party services which delay or prevent PureMac Pty Ltd from performing the service, or any other issues.
PureMac Pty Ltd makes no guarantees regarding the availability of our transfer service or the amount of time it takes to perform transfers. PureMac Pty Ltd can only perform transfers from any service which uses the same control panel that is used on your PureMac Pty Ltd service (ie. cPanel). PureMac Pty Ltd will still provide "best effort" assistance which includes general advice on file transfer and configurations, DNS settings, MySQL database imports, and other general assistance for Clients whose 3rd party service does not use the same server control panel.
Excessive Upgrades and Downgrades
PureMac Pty Ltd does not normally charge any fees for account upgrades and downgrades. However, because upgrading and downgrading between virtualized accounts (such as VPS and Hybrid) and full dedicated server accounts, is a labor-intensive and time consuming process, as is changing the primary disk in dedicated servers, PureMac Pty Ltd reserves the right to charge for upgrades and downgrades at the hourly rate of $175 per hour if Client has made an excessive number of upgrade or downgrade requests. PureMac Pty Ltd, at it's sole discretion, will have the final say as to what is considered 'excessive'.
Individual Server Colocation space
The Client will be responsible for the delivery of the Equipment. PureMac Pty Ltd is responsible of the initial installation of the equipment in the individual server space. Access to the equipment is authorized on business hours upon previous notification from the Client and accompanied by an PureMac Pty Ltd staff member. Emergency access can be arranged outside business hours, the Client will pay for emergency access requests in accordance to the emergency hourly rate in effect.
Under no circumstances will PureMac Pty Ltd be obligated to provide insurance coverage for any applications or data owned by the Client and hosted by PureMac Pty Ltd. Clients are required to provide their own insurance for business continuity and or data loss and or business disruption. The Client indemnifies PureMac from any responsibility loss or liability therein.
Client acknowledges that the service provided is of such a nature that service can be interrupted for many reasons other than the negligence of The Company and that damages resulting from any interruption of service are difficult to ascertain. Therefore, Client agrees that the company shall not be liable for any damages arising from such causes beyond the direct and exclusive control of The Company. Client further acknowledges that the Company's liability for its own negligence may not in any event exceed an amount equivalent to charges payable by Client for services during the period damages occurred. In no event shall The Company be liable for any special or consequential damages, loss or injury. PureMac Pty Ltd is not responsible for any damages your business may suffer. PureMac Pty Ltd does not make implied or written warranties for any of our services. PureMac Pty Ltd 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 PureMac Pty Ltd.
DISCLAIMER OF LIABILITY.
EXCEPT AS SET FORTH IN THE APPLICABLE SERVICE LEVEL AGREEMENT (SLA), THE SERVICES AND EQUIPMENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ANY STATEMENTS MADE IN ANY PACKAGING, MANUALS OR OTHER DOCUMENTS, OR BY ANY PUREMAC EMPLOYEES OR REPRESENTATIVES, ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND NOT AS WARRANTIES BY PUREMAC. NEITHER PUREMAC NOR ITS AFFILIATES OR SUPPLIERS WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE OR FREE FROM SERVICE DEGRADATION, OR THAT ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE ON THE SERVICE ARE FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER CODE THAT MANIFESTS CONTAMINATING OR DESTRUCTIVE PROPERTIES. WITHOUT LIMITING THE FOREGOING, THE QUALITY OF THE SERVICE MAY BE AFFECTED BY CONDITIONS WITHIN OR BEYOND OUR CONTROL, INCLUDING ATMOSPHERIC, GEOGRAPHIC, OR TOPOGRAPHIC CONDITIONS, OVERALL NETWORK USAGE LEVELS, NETWORK SIGNAL QUALITY, USER AND THIRD PARTY EQUIPMENT PERFORMANCE, INTERNET TRAFFIC LEVELS, AND OTHER FACTORS. PUREMAC WILL NOT BE RESPONSIBLE FOR ANY DELAY OR FAILURE IN PERFORMANCE DUE TO EVENTS OUTSIDE PUREMAC'S REASONABLE CONTROL, INCLUDING WITHOUT LIMITATION ANY FLOOD, FIRE, ACCIDENT, EMBARGO OR OTHER GOVERNMENTAL ACT OR DIRECTIVE, ABSENCE OF GOVERNMENTAL APPROVAL OR CONSENT, DELAY OR DEFECT IN DELIVERY BY SUPPLIERS, TRANSPORTATION DELAY OR UNAVAILABILITY, RIOT, WAR, ACT OF TERRORISM OR OF THE PUBLIC ENEMY, POWER OUTAGE, LABOR DISPUTE OR SHORTAGE, THIRD PARTY NETWORK PROBLEMS, ACTS OR OMISSIONS OF UNDERLYING CARRIERS OR OTHER THIRD PARTIES, OR ACTS OF GOD. SERVICES ARE ONLY AVAILABLE WITHIN THE COVERAGE AREA OF THE PUREMAC NETWORK, WHICH IS SUBJECT TO CHANGE. YOU ACKNOWLEDGE THAT SERVICE MAY BE TEMPORARILY UNAVAILABLE FOR SCHEDULED OR UNSCHEDULED MAINTENANCE, EQUIPMENT MODIFICATIONS OR UPGRADES, AND FOR OTHER REASONS WITHIN AND WITHOUT THE DIRECT CONTROL OF PUREMAC. YOU ARE RESPONSIBLE FOR IMPLEMENTING SUFFICIENT PROCEDURES TO SATISFY YOUR PARTICULAR REQUIREMENTS FOR THE ACCURACY OF DATA INPUT AND OUTPUT, AND FOR MAINTAINING A MEANS EXTERNAL TO THE SERVICE FOR THE RECONSTRUCTION OF ANY LOST DATA OR FILES. ALTHOUGH SECURITY MEASURES ARE EMPLOYED, PUREMAC CANNOT GUARANTEE THE SECURITY OF DATA TRANSMISSION OR STORAGE, OR THAT VIRUSES, WORMS, TROJAN HORSES, OR OTHER CODE THAT MANIFESTS CONTAMINATING OR DESTRUCTIVE PROPERTIES WILL BE DETECTED OR REMEDIATED BY THE SERVICE.
(B) NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, NEITHER PUREMAC NOR ITS AFFILIATES OR SUPPLIERS WILL BE LIABLE OR OBLIGATED UNDER ANY SECTION OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNTS IN EXCESS OF THE AGGREGATE OF THE FEES PAID TO IT HEREUNDER DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE GIVING RISE TO LIABILITY, (II) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES, PRODUCTS, OR RIGHTS, (III) FOR ANY LOSS OR CORRUPTION OF DATA OR DELAYED OR INTERRUPTED USE OF THE SERVICE OR ACCESS TO THE INTERNET, (IV) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOST PROFITS, OR (V) FOR ANY LACK OR BREACHES OF SECURITY OF THE SERVICE OR IN THE STORAGE OF YOUR DATA OR ANY END USER'S DATA. THESE LIMITATIONS APPLY WHETHER THE CLAIM IS BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, PRODUCT LIABILITY, OR ANY OTHER BASIS, AND APPLY WHETHER OR NOT PUREMAC WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES. IF YOU ARE DISSATISFIED WITH THE SERVICE OR IF YOU HAVE ANY OTHER DISPUTE WITH PUREMAC, OR CLAIM AGAINST PUREMAC, THEN YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES.
You agree that PureMac Pty Ltd is not responsible for any damages, delays, or other failures to fulfil its obligations hereunder as a result of war, fire, strike, riot or insurrection, natural disaster, delay of carriers, governmental order or regulation, complete or partial shutdown of plant, unavailability of materials or equipment from suppliers, failures or blackouts, labor disputes, and/or other occurrences beyond its control whether or not similar to those listed above.
Neither this AGREEMENT nor any of the rights, interests or obligations hereunder may be assigned by the Client (whether by operation of law or otherwise) without the prior written consent of The Company. The Company may assign this AGREEMENT without the consent of Client. Subject to the foregoing, this AGREEMENT shall be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and permitted assigns.
Client agrees that it shall defend, indemnify, save and hold PureMac Pty Ltd harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney’s fees asserted against PureMac Pty Ltd, its agents, its Clients, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by Client, it’s agents, employees or assigns. Client agrees to defend, indemnify and hold harmless PureMac Pty Ltd against liabilities arising out of; (1) any injury to person or property caused by any products sold or otherwise distributed in connection with PureMac Pty Ltd's servers or services; (2) any material supplied by Client infringing or allegedly infringing on the proprietary rights of a third party; (3) copyright infringement and (4) any defective products sold to Client from PureMac Pty Ltd's server.
This Agreement, including the Order Form, the Terms, your Service Plan, and the Policies (each as they may be amended from time to time) together contain the entire agreement and understanding concerning the Service and Equipment and supersede all prior negotiations, proposed agreements, and all other agreements, whether electronic, written, or oral. In the event that it is determined by a court of competent jurisdiction as a part of a final non-appealable judgment that any provision of the Agreement (or part thereof) is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of the Agreement will remain in full force and effect.
This Contract shall be construed in accordance with the laws of the State of New South Wales Australia.
The Company reserves the right to refuse service to anyone at any time for any reason.
The Company is not responsible for data integrity on equipment reclaimed for non-payment.
PureMac Pty Ltd’s Clients are solely responsible for the content stored on and served by your PureMac Pty Ltd service.
Anything not explicitly stated in this AGREEMENT is subject to interpretation at PureMac Pty Ltd's sole and absolute discretion.
Please direct all questions regarding this AGREEMENT to legal services