Ninefold Customer Agreement
Please read carefully before agreeing to this Customer Agreement. By agreeing to this Customer Agreement, a binding contract will form between you and us (being Ninefold® Pty Limited ABN 49 148 179 846 (Ninefold)).
We offer the following Services under this agreement:
• cloud servers with a variety of operating system templates;
• primary and secondary server mountable storage;
• load balancing, firewall and public internet bandwidth; and
• file based cloud storage
All Services are managed via our customer online portal or programmatically using our published API. All Services are subscribed to on a usage basis.
2. SIGN UP
When you sign up for Services, you will be able to create your own account and we grant you the right to access and use the Services in accordance with this agreement.
When you sign up, you will be asked to provide credit card details. In doing so and in providing us with details of any replacement credit card, you authorise Ninefold to automatically charge the monthly charges for the Services and all other amounts due and payable to us to that credit card or the replacement credit card. This authorisation remains in effect until all the charges and other amounts are fully paid, despite the expiry or termination of this agreement. You are responsible for ensuring that the credit card details (as supplied to Ninefold) are kept up to date, accurate and complete.
3. CHANGES TO THE AGREEMENT
We may modify this agreement by posting an updated version on our website. The modified agreement will apply once posted, and by continuing to use the Services after the effective date of the modifications, you will be deemed to have accepted and agreed to be bound by the modifications. Please check our website regularly for any updates. We will endeavour to notify you in advance of any material changes.
This agreement was last updated with effect from 28 May 2013.
4. YOUR ACCOUNT AND PERMITTED USE You can use the Services to write, develop, host and/or deliver to yourself, your personnel, your customers, your suppliers and other third parties (End Users) content, data, software, websites or other online services or technology that you store in, or that interface with, the Services.
You must comply, and ensure the End Users comply, with our Acceptable Use Policy when using the Services.
You are fully responsible and liable for the acts and omissions of End Users, including any breach of this agreement, as if they were your own acts and omissions. You must ensure that the terms of your agreements with End Users are consistent with this agreement.
The term of this agreement commences when, in response to a verification email from us after you have set up your account, you verify the email address linked to your account and continues until the earlier of:
• you close your account;
• you notify us in writing that you wish to terminate the agreement, or
• we notify you in writing that we are terminating the agreement.
6. SUSPENSION AND TERMINATION
We may suspend your right to use the Services or terminate this agreement immediately if we have reason to believe that:
• you have breached our Acceptable Use Policy or any other policies posted on our website;
• you (or anyone with access to your account) have engaged in fraudulent or unlawful use of the Services;
• your use of the Services poses a security risk to the Services or any third party, or may adversely impact on the Services or the systems or content of any of our other customers;
• we are required to do so in order to comply with any applicable law or contractual obligation, or any order or direction of a government or regulatory authority;
• you have breached this agreement, including the payment terms; or
• you have become insolvent or bankrupt.
You will be liable to pay all the charges for the Services up to the later of your account closure or the point of termination.
Your payment obligations, provisions relating to disclaimer and indemnity and any other provisions that are by nature intended to survive will survive the expiry or any termination of this agreement.
You acknowledge that:
• the Services may not be free from fault or interruption and we do not warrant that they will be;
• the Services may be unavailable during planned outages or unscheduled maintenance periods;
• we do not warrant the security, availability or privacy of the Services, or that the Services will be free from viruses and other harmful code; and
• you are responsible for all of the contents and materials that you and the End Users publish using the Services.
8. YOUR OBLIGATIONS
You are responsible for:
• controlling access to and use of the Services including controlling access to and use of passwords;
• ensuring the Services are used in accordance with this Agreement and the Acceptable Use Policy;
• ensuring that your and the End Users' use of the Services complies with all applicable laws, including the laws of the United States of America (if you have selected the option to use US-based servers) and of any jurisdictions in which the End Users may be located;
• payment of all charges for the Services that are used under your account;
• ensuring that all the information you provide to us remains current, accurate and complete; and
• promptly informing us in writing of any change to any information, including credit card details and contact information. When entering into this agreement and using our Services, you must not: • provide any false, inaccurate or misleading information; or
• act fraudulently in any way.
9. REPRESENTATIONS & WARRANTIES
You represent and warrant that:
• all of the information you provide to us is and remains current, accurate and complete throughout the term of this agreement;
• if you are entering into this agreement on behalf of an entity (e.g. the company you work for), you have legal authority to bind that entity to this agreement;
• you are the account holder of the credit card used to pay for Services or you are properly authorised to use the credit card to pay for Services; and
• you will not use the Services in a way that infringes any third party right or violates any applicable laws.
Without limiting our rights under clause 6, we may also suspend your use of the Services if:
• there is a planned outage;
• it is necessary due to an event beyond our control; or
• we consider it necessary for repair, maintenance or service.
11. SERVICE LEVEL GUARANTEES
The Service Level Guarantees are set out in our Service Level Agreement (SLA).
12. PAYMENT TERMS
• At the end of each billing period (which runs from the first to the last day of each month), you can retrieve your invoice from your account on our website under the heading 'Billing and Usage'. The amount is due and payable immediately at the end of the month and will be debited to the credit card that you provided to us.
• Late payment will attract interest charges at 2% per month (or the maximum legal rate if it is less than 2%).
• Unless we have agreed in writing to alternative payment arrangements, the only form of acceptable payment is via a credit card as provided by clause 2. You are responsible for ensuring that your credit card details are kept up to date.
• Refund requests will be investigated promptly and should be made in writing via customer support. Approved refunds will only be made to the credit card on which the original purchase was made.
• You must contact us and attempt in good faith to resolve any invoice dispute with us before requesting your credit card issuer to make a chargeback. If you fail to do this and the dispute is resolved in our favour, then you must promptly reimburse us upon demand for all the costs and expenses we have incurred due to the chargeback in addition to paying the outstanding amount to us.
• You consent to Ninefold obtaining, at any time, a credit report from a credit reporting agency and disclosing your credit card details and other relevant information to our bank for verification and payment processing purposes.
13. TAX CLAUSE
You are liable for any Tax, subject to Ninefold first providing an invoice. Tax means any tax (including goods and services tax but excluding any tax on Ninefold's income), duty, levy and other similar charge (and any related interest and penalty), however designated, imposed under the laws of Australia or any jurisdiction outside Australia, with respect to the provision of any Services or on any charges. Any such Tax will be payable by you in accordance with clause 12.
We reserve the right to adjust pricing when necessary and will notify you of any pricing adjustments by email.
DISCLAIMER OF WARRANTIES YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR ACCESS TO AND USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. WITHOUT LIMITING THE FOREGOING, AND TO THE EXTENT PERMITTED BY LAW, ALL EXPRESS OR IMPLIED REPRESENTATIONS, CONDITIONS, WARRANTIES, GUARANTEES OR OTHER PROVISIONS THAT ARE NOT CONTAINED IN THE TERMS (WHETHER BASED IN LEGISLATION, THE COMMON LAW OR OTHERWISE) ARE EXCLUDED, INCLUDING ANY REPRESENTATIONS, CONDITIONS, WARRANTIES OR GUARANTEES AS TO ACCEPTABLE QUALITY, FITNESS FOR PURPOSE, NON-INFRINGEMENT OR TIMELINESS.
IF ANY CONDITION, WARRANTY, GUARANTEE OR OTHER PROVISION IS IMPLIED OR IMPOSED IN RELATION TO THE LEGAL AGREEMENT BETWEEN YOU AND NINEFOLD (WHETHER BASED IN LEGISLATION, THE COMMON LAW OR OTHERWISE) AND CANNOT BE EXCLUDED (A NON-EXCLUDABLE TERM), AND WE ARE ABLE TO LIMIT YOUR REMEDY FOR A BREACH OF SUCH A NON-EXCLUDABLE TERM, THEN OUR LIABILITY FOR SUCH A BREACH OF THE NON-EXCLUDABLE TERM IS LIMITED TO ONE OR MORE OF THE FOLLOWING AT OUR OPTION:
• IN RELATION TO GOODS, THE REPLACEMENT OF THE GOODS OR THE SUPPLY OF EQUIVALENT GOODS, THE REPAIR OF THE GOODS, THE PAYMENT OF THE COST OF REPLACING THE GOODS OR OF ACQUIRING EQUIVALENT GOODS, OR THE PAYMENT OF THE COST OF HAVING THE GOODS REPAIRED; OR
• IN RELATION TO SERVICES, THE SUPPLYING OF THE SERVICES AGAIN OR THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN.
17. LIMITATION OF LIABILITY
SUBJECT TO OUR OBLIGATIONS UNDER THE NON-EXCLUDABLE TERMS, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE MAXIMUM AGGREGATE LIABILITY OF NINEFOLD FOR ALL CLAIMS ARISING UNDER OR IN RELATION TO THIS AGREEMENT, OR OTHERWISE AS A RESULT OF YOUR ACCESS TO AND USE OF THE SERVICES, DURING ANY 12 MONTH PERIOD IS LIMITED TO THE AMOUNTS (IF ANY) PAID BY YOU TO NINEFOLD FOR THE SERVICES DURING THE RELEVANT 12 MONTH PERIOD.
SUBJECT TO OUR OBLIGATIONS UNDER THE NON-EXCLUDABLE TERMS, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT IS NINEFOLD LIABLE UNDER OR IN RELATION TO THIS AGREEMENT OR ITS SUBJECT MATTER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES OF ANY KIND, NOR FOR ANY LOSS OF PROFITS, REVENUE, ANTICIPATED SAVINGS OR GOODWILL, OR FOR ANY LOSS OR CORRUPTION OF YOUR DATA OR CONTENT, EVEN IF SUCH LOSS OR DAMAGE WAS REASONABLY FORSEEABLE. THE LIMITATIONS AND EXCLUSIONS IN THIS CLAUSE 17 APPLY REGARDLESS OF WHETHER THE LIABILITY ARISES IN CONTRACT, TORT (INCLUDING NEGLIGENCE), IN EQUITY, UNDER STATUTE, UNDER AN INDEMNITY, OR ON ANY OTHER BASIS.
You agree to indemnify and hold harmless us, our parent company and our and its respective directors, officers, employees, contractors, licensors and agents against any loss, damage, claim, proceeding, liability and cost (including legal costs on an indemnity basis) suffered or incurred in connection with a claim against any of them by a third party (including any End User) arising out of or relating in any way to: (i) your or any End User's use of the Services; (ii) any content, data or other materials stored, transmitted, accessed, downloaded or used by you or any End User via the Services (including where such materials are alleged to infringe any intellectual property or other rights); (iii) any breach of this agreement or any of our policies including the Acceptable Use Policy; or (iv) any breach of applicable laws.
This agreement is governed by New South Wales law, and both of you and us agree to submit to the exclusive jurisdiction of the courts of New South Wales.
All references to currency are to Australian dollars.
Both of you and us may give notice to each other by sending an email as follows:
• to us - you can send an email to email@example.com; and
• to you - we can send an email to the email address then associated with your account.
A recipient is deemed to have received a notice sent by email one business day after it was given by the sender, unless the sender is aware the notice could not be delivered.
Neither party is liable for any delay or failure in performance of any part of the agreement, other than for a delay or failure to pay money, to the extent that such delay or failure to pay is attributable to a Force Majeure Event. A Force Majeure Event means an event beyond a party's reasonable control including, but not limited to; fire, flood, explosion, strike or governmental requirement.