All products and services provided by Network Presence are covered by the following terms and conditions of supply.
1.1 "Network Presence" means the Australian company name "Network Presence Pty Ltd".
1.2 "Customer" means the person or entity who ordered products or services from Network Presence.
1.3 "Services" means any product(s) or service(s) the Customer has signed up to use. This may include, but is not limited to, the provision of facilities on any number of systems or servers and a connection to and from the Internet, at the level specified in the product or service feature list. Products and services are identified in full in the Products or Services online web pages at www.networkpresence.com.au and in emails Network Presence sends to the Customers upon requests for service.
2.1 The Customers accepts these Terms and Conditions, as well as updates and other published and referenced policies in the Network Presence Terms and Conditions, when they submit their order to Network Presence for services, and that order was approved and indicated to have been approved in reply correspondence with the Customer.
3.1 The Customer agrees to a month by month contract term for services, unless otherwise stated in the product or service offering or otherwise agreed in writing. All month by month contracts for services are automatically renewed each month, subject to written cancellation by the Customer.
4. Availability of Services
4.1 Network Presence will endeavour to provide continuous availability of all Services to the Customer, but Network Presences will not be liable for any service interruption or down time.
4.2 Scheduled Maintenance will be performed at times which is deemed suitable to Network Presence and which has the least noticable impact on the Customer. Should services be required to be offline for greater than 45 minutes, Network Presence will post details of the scheduled maintenance at least 24 hours (1 day) beforehand.
4.3 Unscheduled maintenance will be performed as required by Network Presence and should services by offlinefor greater than 45 minutes, Network Presence will post details of the maintenance and any updates until service is restored.
4.4 Orders placed online may take up to 24 hours to be handed-over, primarily due to avoiding or resolving any potential "scamming" of online orders and payments. Order provisioning timeframes can be escalated by direct phone contact with Network Presence.
5 Limitation of Liability
5.1 Network Presence shall not be liable to the Customer for any harm caused by or related the the Customer's Service or inability to utilise the Service.
5.2 Neither Party shall be liable to the other for any lost profits or income, direct or indirect, special or incidental, consequential or punitive, or damages of any kind whether or not they were known or should have been known.
5.3 Notwithstanding anything else in this agreement, the maximum total liability of Network Presence, any of its employees, agents or affiliates, under any code of law shall not exceed a payment in excess of the amount paid by the Customer for the Service in question for the 1 week prior to the occurrence of the event(s) giving rise to the claim.
6. Customer General Warranties and Undertakings
6.1 The Customer warrants that they will keep any passwords or sensitive or privileged information used with the Service in a secure location.
6.2 The Customer warrants that they hold and will continue to hold the copyright for data stored on Network Presence' servers or traversing Network Presence' networks. The Customer also warrants that they are licensed and will continue to be licensed for the use of that data.
6.3 The Customer warrants that at the time of entering into this agreement that they are not relying on any representation made by Network Presence which has not been expressly stated in this agreement, or on any descriptions or specifications contained in any other document produced by Network Presence.
6.4 The Customer warrants that all due care has been taken to ensure data integrity on Network Presence's servers. This includes an undertaking that the Customer will conduct computer virus scanning and other tests as necessary to ensure that the data uploaded by the Customer onto or downloaded by the Customer from the servers of Network Presence does not contain any computer virus or malware and will not in any way, corrupt the data or systems of any person or organisation.
6.5 The Customers agrees that they are solely responsible for dealing with anyone who accesses the customer's data, and that the Customer will not refer complaints or inquiries in relation to such access to Network Presence.
7 Network Presence General Warranties and Undertakings
7.1 Network Presence accepts liability for the supply of the Service to the Customer to the extent provided in this agreement.
7.2 Network Presence does not warrant that: a) The Services provided within this agreement will be uninterrupted or error free;
b) The Services will meet the Customer's requirements, other than as expressly set out in this agreement;
c) The Services will not be subjected to external unauthorised access or usage attempts, viruses, worms, denial of service attacks, or other persons gaining unauthorised access to the Service or internal Network Presence systems.
7.3 Network Presence does not make or give any express or implied warranties including, without limitation, the warranties of merchantability or fitness for a particular purpose, or arising from a course or dealing, usage or trade practice, with respect to any goods or services provided under or incidental to this agreement.
7.4 No oral or written information or advice given by Network Presence or its resellers, agents, representatives or employees, to the Customer, shall create a warranty or in any way increase the scope of the express warranties hereby given, and the Customer should not rely on any such information or advice.
7.5 In no event will Network Presence be liable to the Customer for any loss of business, contracts, profits or anticipated savings or for any other indirect or consequential or economic loss whatsoever.
8. Fees and Credit Management
8.1 In relation to fees for Services:
a) Fees for Services ordered by the Customer shall begin on the date of the initial order and shall be pro-rated to include all days until the first day of the next month, and the chosen billing cycle in advance. This may be monthly, quarterly, semi-annually, annually or biennially.
b) The first day of the month will serve as the anniversary date for all future billings including one time fees, upgrades, additional services, cancellations and service credits, unless the Services only allows annual or biennially billing cycles.
c) Fees are due in advance of the billing cycle and will be invoiced to the Customer seven (7) days prior to the due date. If a credit card is stored on file, it will be charged three (3) days prior to the due date, to allow sufficient time for any potential issues (such as insufficient funds, expired cards, etc) to be rectified before the due date.
8.2 In relation to fees for upgrades to Services:
a) Upgrades ordered by the Customer on the billing anniversary date will be billed for a full cycle and will continue each cycle on the anniversary date, unless the Services only allows annual or biennially billing cycles (eg. domain name registrations, etc). b) Upgrades ordered by the Customer after the billing anniversary date will be pro-rated to the next anniversary date. Future fees will appear as the new plan from your existing anniversary billing date. c) Fees for upgrades will be payable within seven (7) days of the upgrade taking place. If a credit card is stored on file, it will be charged three (3) days prior to the due date, to allow sufficient time for any potential issues (such as insufficient funds, expired cards, etc) to be rectified before the due date. d) Additional fees may be payable for upgrades where manual work is required by Network Presence to process the upgrade request (eg. single hosting to reseller hosting, intercontinental transfers, etc).
8.3 In relation to fees for downgrades to Services:
a) Downgrades will be processed when the request is received by Network Presence from the Customer, unless otherwise specified in the request.
b) A credit will be issued to the Customer's account for the difference of any pro-rated pre-paid amount minus the cost of the new plan pro-rated on the chosen cycle.
c) A $11.00 or 4% of latest invoice (whichever is larger) Administration Fee may be charged for a downgrade request at Network Presence's sole discretion. d) Additional fees may be payable for downgrades where manual work is required by Network Presence to process the downgrade request (eg. reseller hosting to single hosting, intercontinental transfers, etc).
8.4 Any fees paid for the setup or establishment of any Services will be automatically deemed as non-refundable.
8.5 Fees for one-off Services including, but not limited to, dedicated IP address, SSL certificates and data blocks, are due within seven (7) of the invoice being issued.
8.6 All published prices are inclusive of any government taxes and charges, unless otherwise noted.
8.7 The speed of provisioning new Services is reliant upon the Customer having paid any and all outstanding fees in full.
8.8 Failure to pay any fees may result in the account being referred to an external collection agency, which may include interest (calculated daily) and collection costs.
8.9 Accounts that are more than three (3) days past the due date will automatically attract an overdue fee of $22.00 which will be payable on top of the invoice amount.
8.10 Accounts that are more than seven (7) days past the due date will be automatically suspended, and a reconnection fee of $88.00 on top of any outstanding fees may apply to have the service restored.
8.11 Accounts which are not paid in full within ten (10) days of the due date will be automatically deactivated and files removed from Network Presence servers and hosts.
9. Suspension and Termination of Services
9.1 Network Presence may suspend or terminate Services if:
a) The Customer is found to be in breach of these terms and conditions;
b) The Customer is found to be in breach of the Acceptable Use Policy;
c) The Customer has become insolvent or bankrupt;
d) The Customer has outstanding fees that are more than five (5) days past the due date;
9.2 From time to time Network Presence may be required to suspend or disconnect Services without notice, or deny access to the Service during a technical failure, modification or maintenance.
9.3 Network Presence may decide at its sole discretion to advise a Customer that their service will be terminated by giving thirty (30) days written notice. In this circumstance, Network Presence will refund any pre-paid fees for Services on the account.
9.4 If a Customer's account is closed for any reason, the Customer must pay all outstanding charges by the due dates.
9.5 Network Presence is under no obligation to provide the Customer with a copy of the data stored on our servers if Network Presence has suspended or terminated access to the service for any breach of terms 10.1 (a) through (e). In this circumstance, a copy of the data may be provided to the Customer for an additional fee.
10.1 The Customer can request cancellation of any Services with us for any reason by logging in to MyPresence and submitting a secure cancellation request.
10.2 Any pre-paid fees for Services past the current billing month will be refunded, except the Services that are not eligible for a refund (eg: 3rd party fees and charges, accounts using the coupon "NO-REFUND", etc).
10.3 The Customer agrees to pay any and all outstanding fees upon cancellation of their Services.
11. Data Management
11.1 Network Presence may backup and archive the Customer's data on a regular basis for the purpose of disaster recovery.
11.2 In the event of hard disk failure or data corruption, Network Presence may restore data from the last known verified archive.
11.3 If all backup and archived data appear to be corrupt, the Customer should be prepared to upload the data to their account from a local copy, and setup all mailboxes, databases, filesystems etc as desired.
11.4 The Customer should always maintain a recent copy of all data at all times, as Network Presence will not be liable for incomplete, out of date, corrupt or otherwise incomplete data recovered from our backups and archives.
11.5 Network Presence may take automatic system backups of VPS and Reseller packages two (2) times a month. Network Presence may also retain a monthly rotation of these backups.
12.1 Network Presence may update these terms and conditions at any time.
13. Use of Identity
13.1 The Customer agrees to use the Network Presence logo, company information and related services in accordance with approved marketing guidelines.
13.2 Network Presence agrees not to use a Customer name, logos or information without prior written consent of the Customer.
14. Entire Agreement
14.1 These terms and conditions constitute the entire agreement between Network Presence and the Customer, and it supersedes all prior oral or written agreements, understandings and representations.
15. Governing Law
15.1 The Customer agrees to abide by all local, state and federal laws pursuant to the Services delivered by Network Presence in Australia and the United States.
15.2 The Customer agrees that these terms and conditions are governed by the laws of South Australia, Australia, and agrees to the exclusive jurisdiction of the Courts of that state.
16. Acceptable Usage Policy
16.1 All services provided by Network Presence may be used for lawful purposes only.
16.2 Backups may be performed by Network Presence as a courtesy to clients; however, all clients are advised to maintain a current local copy of their files in the event backups are irretrievable for any reason. Network Presence will not be deemed responsible for data or other loss resulting from the unavailability of backups.
16.3 The sending of unsolicited email (spamming) from a Network Presence service or referencing a domain or IP address hosted by Network Presence in any spam, whether originating from the Network Presence network or not, is forbidden.
16.4 To protect and maintain high availability of all service platforms and hosts, activities designed to cause harm to or monopolize the resources of any platform or the network itself within the Network Presence network is prohibited.
16.5 Use of any Network Presence service to make any illegal content available via transmission, storage, or display of such material is prohibited.
16.6 Any activity that infringes on copyrights, trademarks, service marks, patents, software ownership, or trade secrets held by any third party entity is prohibited.
16.7 Any activity not defined above but judged by Network Presence to be harmful to other clients or general operations of the network or servers will be addressed on a case by case basis and may result in prompt service suspension without notice.
16.8 Network Presence reserves the right to refuse, cancel, or suspend service at its discretion and without notice.