Terms of Service
This is a legal and binding agreement between you, the Customer, and Alive Online Pty Ltd (Alive Hosting). By using, installing or accessing the Alive Online Pty Ltd (Alive Hosting) website, the Services and certain Products that are offered, as our Customer you agree to all of the terms and conditions of this agreement. If you do not agree to these terms, the Acceptable Use Policy or any other Terms and Conditions posted on the Alive Online Pty Ltd (Alive Hosting) web site, all services will be discontinued, activation of the account will cease and your account terminated.
END USER LICENSE AGREEMENT
LICENSE GRANT. Subject to the provisions contained herein and payment of applicable fees, Alive Online Pty Ltd (Alive Hosting) hereby grants to you a non-exclusive, nontransferable, license to use its accompanying proprietary software application products offered on the Alive Online Pty Ltd (Alive Hosting) web site (”Software”,) for your own use. Such Software is protected by the laws of Australia, the U.S.A. and international treaties.
RESTRICTED USE. All rights not expressly granted herein are retained by Alive Online Pty Ltd (Alive Hosting) and its licensors. Except as stated above, this Agreement does not grant the Customer any intellectual property rights in the Software. Customer shall not rent, lease, transfer or sublicense the Software. Customer shall not under any circumstances nor shall Customer permit a third party to (i) decompile, disassemble, reverse engineer or otherwise attempt to reconstruct or discover the source code of the Software or (ii) prepare derivative of the Software or (iii) remove any product identification, Alive Online Pty Ltd (Alive Hosting), trademark or other notice from the Software. Any such copy made by you shall be subject to this Agreement and shall contain all of Alive Online Pty Ltd (Alive Hosting)’s notices regarding Alive Online Pty Ltd (Alive Hosting)’s, trademarks and other proprietary rights as contained in the Software originally provided to you.
TITLE. The Software’s organization, structure, sequence, logic, and source code are valuable to the Company. Any and all title, ownership rights, and intellectual property rights in and to the Software and Documentation shall remain at any and all times in Alive Online Pty Ltd (Alive Hosting) and/or its suppliers. Title, ownership rights, and intellectual property rights in and to the content accessed through the Software is the property of the applicable content owner and may be protected by applicable Alive Online Pty Ltd (Alive Hosting) or other law. This License does not give Customer any rights to such content.
LIMITED WARRANTY. Alive Online Pty Ltd (Alive Hosting) warrants to the Customer, for a period of ninety (90) days from the date of this agreement, installation of Software, oruse of services, whichever is earlier, that it will replace any defective media on which the Software is provided and that the Software, if not modified and if properly installed and used, will substantially conform to the material specifications set forth in the documentation, Such warranties are for the Customer’s benefit only and are not transferable. Alive Online Pty Ltd (Alive Hosting) does not warrant that the Software will operate error free or uninterrupted or will meet your requirements. Except for the express warranties stated in this section, the Software are licensed “as is” and Alive Online Pty Ltd (Alive Hosting) specifically excludes and disclaims all warranties of merchantability, fitness for a particular purpose, statutory noninfringement of third party intellectual property rights and any warranty that may arise by reason of trade usage, custom or course of dealing and Customer hereby expressly waives any and all such warranties.
THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE OR BY JURISDICTION.
LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL Alive Online Pty Ltd (Alive Hosting) OR ITS SUPPLIERS OR RESELLERS BE
LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND
ALL OTFER COMMERCIAL DAMAGES OR LOSSES, OR FOR ANY DAMAGES IN EXCESS OF Alive Online Pty Ltd (Alive Hosting)’S LIST PRICE FOR A LICENSE TO THE SOFTWARE AND DOCUMENTATION, EYEN IF Alive Online Pty Ltd (Alive Hosting) SHALL HAVE BEEN INFORMED OF TFE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTFER PARTY. THIS LIMITATION OF LIABILITY SHALL
NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
AVAILABILITY OF SERVICES. Subject to the terms and conditions of this Agreement,
Alive Online shall attempt to provide uninterrupted services twenty-four (24) hours per day,
seven (7) days per week for the duration of this Agreement. You agree that from
time to time the Services may be inaccessible or inoperable for any reason,
including, without limitation:
1. malfunctioning equipment;
2. periodic maintenance procedures or repairs that Alive Online may undertake
from time to time; or
3. interruption or failure of telecommunication or digital transmission links
4. hostile network attacks, network congestion or other failures.
5. any other causes beyond the control of Alive Online or that are not reasonably foreseeable
You agree Alive Online has no control of availability of the Services on a continuous
or uninterrupted basis.
You further agree that as a normal course of its business, it may be necessary for
Alive Online to migrate its servers. Alive Online does not warrant that You will
be able to consistently maintain Your given IP numbers. As a result, even though You may have a dedicated IP, You may be assigned a different IP number.
SERVICE AVAILABILITY GUARANTEE. Alive Online offers a service uptime guarantee for the
Services of 99.9% of the available time. If Alive Online are responsible for failing to maintain
this level of service availability, You may contact Alive Online and request a credit
of 5% off Your monthly hosting fee for that month. The credit may be
used only for the purchase of further products and services from Alive Online, and is
exclusive of any applicable taxes.
The credit does not apply to service interruptions caused by:
1. periodic scheduled maintenance or repairs Alive Online may undertake from time to time;
2. errors caused by You from custom scripting or coding;
3. outages that affect access to the web site such as FTP and email; whilst the site is still viewable;
4. outages related to the reliability of certain programming environments.
Total Service Uptime shall be calculated on a monthly basis determined by Alive Online.
FTP BACKUP. Alive Online may offer additional features and add on services, such as a
FTP Backup option. You acknowledge and agree that such additional features
and services may require additional down time to install and maintain. You further
acknowledge and agree that in utilizing the FTP Backup option, You shall be subject to
a maximum disk and bandwidth usage as identified by Alive Online. Alive Online shall use commercially reasonable efforts to provide FTP Backup services on a seven (7) days per week basis throughout the term of this Agreement. You acknowledge and agree that from time-to-time the FTP Backup services may be inaccessible or inoperable for any reason, including without limitation:
1. malfunctioning equipment;
2. periodic maintenance procedures or repairs that Alive Online may undertake
from time to time; or
3. interruption or failure of telecommunication or digital transmission links
4. hostile network attacks, network congestion or other failures.
5. any other causes beyond the control of Alive Online or that are not reasonably foreseeable
WEB SITE CONTENT. You shall be solely responsible for providing, updating, uploading and maintaining Your web site and any and all files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through Your web site, including,
without limitation, trade or service marks, images, photographs, illustrations, graphics,
audio clips, video clips, email or other messages, meta tags, domain names, software
and text. Your web site content shall also include any registered domain names provided
by You or registered on behalf of You in connection with the Services. In the event You are using ad-supported hosting, in no event shall Your web site consist of the following: search results, registration, “thank you”, error, email or chat pages, pages comprised primarily of other advertising or pages containing any of the following types of content:
1. pornographic, obscene or excessively profane content;
2. content intended to advocate or advance computer hacking or cracking;
3. gambling;
4. illegal activity;
5. hate, violence or racial or ethnic intolerance or
6. drug paraphernalia
STORAGE AND SECURITY. You shall be solely responsible for undertaking measures to:
1. ensure the confidentiality of Your password;
2. prevent any loss or damage to Your web site content;
3. maintain independent archival and backup copies of Your web site content; and
4. ensure the security, confidentiality and integrity of all Your web site
content transmitted through or stored on the Alive Online servers
Alive Online’s shared hosting servers are not an archive and Alive Online shall
have no liability to You or any other person for loss, damage or destruction of any
of Your content. The Services are not intended to provide a PCI (Payment Card Industry)
compliant environment and therefore should not be considered as one. Alive Online shall
have no liability to You or any other person for Your use of the Services in violation
of these terms. You shall at all times use the Services as a conventional and/or
traditional web site. You shall not use the Service in any way, in Alive Online’s sole
discretion, that shall impair the functioning or operation of Alive Online’s Services or
equipment. Specifically by way of example and not as a limitation, You shall not use
the Services as: (i) a repository or instrument for placing or storing archived files;
and/or (ii) placing or storing material that can be downloaded through other web sites.
You acknowledge and agree that Alive Online has the right to carry out a forensics examination
in the event of a compromise to Your server or account.
At our own dicretion Alive Online may make available back up copies of your website
within the last 7 days. This is no guarantee, but rather a value added service offered
to you as a web hosting clients. You need to take responsibility for managing the back
ups of your website yourself.
If You purchase MS SQL or Managed Backups, You hereby authorize Alive Online to log into
Your server for purposes of installing and configuring the software.
In the event Your use of the Services is terminated, it is Your responsibility to manage the transfer to another provider.Alive Online will not transfer or FTP Your web site to
another provider. AliveOnline will not transfer or manage Your Services or Your web site content.
another provider. AliveOnline will not transfer or manage Your Services or Your web site content.
EXPORT CONTROLS. You may not download, use or otherwise export the Software or any underlying information or technology except in full compliance with all Australian, U.S.A. and other applicable laws and regulations. In particular, but without limitation, none of the Software or underlying information or technology may be downloaded, used or otherwise exported or reexported (i) into (or to a national or resident of) Cuba, Haiti, Iraq, Libya, Yugoslavia, North Korea, Iran, Syria or any other country to which Australia or the U.S.A. has embargoed goods; or (ii) to anyone on Australia’s, or the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using the Software, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list.
TERMINATION. This Agreement is effective until terminated. Alive Online Pty Ltd (Alive Hosting) may terminate this Agreement immediately if Customer attempts to reverse engineer the Software or otherwise violate any of the restrictive uses as described herein. Otherwise, this Agreement may be terminated by either party for a breach of any of its material terms, provided the non-breaching party provides to the breaching party 30 days written notice describing such breach and offering the breaching party an opportunity to cure. Failure to cure a material breach within the notice period shall result in automatic termination of this Agreement. Should this Agreement be terminated for your material breach, Customer agrees to remove all copies of the Software or any part of the Software from any and all computer storage devices, and destroy the Software and all Documentation. At Alive Online Pty Ltd (Alive Hosting)’s request, Customer or any of Customer’s authorized signatory on the account, shall certify in writing to Alive Online Pty Ltd (Alive Hosting) that all complete and partial copies of the Software and the Documentation have been destroyed and that none remain in Customer’s possession or under its control. The provisions of this Agreement except for the Section 1, “License Grant,” shall survive.
MISCELLANEOUS. This Agreement represents the complete and exclusive statement of the agreements concerning this license between the parties and supersedes all prior agreements and representations between them. It may be amended only by a writing executed by both parties. THE ACCEPTANCE OF ANY PURCHASE ORDER
PLACED BY YOU IS EXPRESSLY MADE CONDITIONAL ON YOUR ASSENT TO TIE TERMS SET FORTH HEREIN, AND Alive Online Pty Ltd (Alive Hosting) AGREES TO FURNISH THE SOFTWARE AND DOCUMENTATION ONLY UPON THESE TERMS AND NOT THOSE CONTAINED IN YOUR PURCHASE
ORDER. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make. It enforceable, and such decision shall not affect the enforceability (i) of such provision under other circumstances or (ii) of the remaining provisions hereof under all circumstances. Headings shall not be considered in interpreting this Agreement. This Agreement shall be governed by and construed under the law of Queensland Australia except as governed by Federal Law. This Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.
