Legal

Customer Agreement

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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)).

  1. Services

    We offer the following Services under this agreement:

    • virtual 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
    • For the SimplePlan, services are offered as described on the SimplePlan product page

    All Services are managed via our customer online portal or programmatically using our published API. All Services are subscribed to on a usage basis, with the exception of SimplePlan which is subscribed to on a monthly basis with a fixed fee paid monthly in advance (with additional charges for usage outside of plan parameters which are billed in arears).

  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, so please check our website regularly for any updates. We will endeavour to notify you in advance of any material changes.

  4. Your account and Permitted Use

    You can use the Services to write or develop software, websites or other online services or technology that you store in, or that interface with, the Services (the Applications). We require you to comply with our Acceptable Use Policy when using the Services.

  5. Term

    The term of this agreement commences when you click Accept 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 wish to terminate the agreement.

    For customers on the SimplePlan, we require 3 business days notice of termination of the agreement. Your plan will continue until the end of the relevant billing period.

  6. Termination

    We may suspend your right to use the Services or terminate this agreement immediately if:

    1. you breach our Acceptable Use Policy or any other policies posted on our website;
    2. you (or anyone with access to your account) have engaged in fraudulent or unlawful use of the Services;
    3. you breach this agreement, including payment terms; or
    4. you 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.

  7. Acknowledgments

    You acknowledge that:
    1. the Services may not be free from fault or interruption and we do not warrant that they will be;
    2. the Services may be unavailable during planned outages or unscheduled maintenance periods;
    3. we do not warrant the security, availability or privacy of the Services; and
    4. you are responsible for contents you publish using the Services.

  8. Your obligations

    You are responsible for:

    1. controlling access to and use of the services including controlling access to and use of passwords;
    2. ensuring the Services are used in accordance with this Agreement and the Acceptable Use Policy as well as applicable laws;
    3. payment of all charges for the Services that are used under your account;
    4. ensuring that all the information you provide to us remains current, accurate and complete; and
    5. 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:

    1. provide any false, inaccurate or misleading information; or
    2. act fraudulently in any way.

  9. Representations & Warranties

    You represent and warrant that you will not use the Services in a way that:

    1. all the information you provide to us is and remains current, accurate and complete throughout the term of this agreement;
    2. 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
    3. you will not use the Services in a way that infringes any third party right or violates any applicable laws.

  10. Suspension

    We may suspend your use of the Services if:

    1. there is a planned outage;
    2. it is necessary due to an event beyond our control; or
    3. we consider it necessary for repair, maintenance or service.

  11. Service Level Guarantees

    The Service Level Guarantees are set out in our SLA.

  12. Payment Terms

    1. 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. For clarity, SimplePlan customers are billed monthly in advance except in relation to excess usage which is billed in arrears.
    2. Late payment will attract interest charges at 2% per month (or the maximum legal rate if it is less than 2%).
    3. 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.
    4. 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.
    5. 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.
    6. 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 jursidiction 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.

  14. Pricing

    We reserve the right to adjust pricing when necessary and will notify you of any pricing adjustments by email.

  15. Privacy

    You consent to us sharing your details (including personally identifiable information) with our providers for the purposes of providing the Services. Click here to read our privacy policy.

  16. Disclaimer

    THE SERVICES ARE PROVIDED AS IS WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICE. EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE DISCLAIM ALL WARRANTIES INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PURPOSE AND NON-INFRINGEMENT.

    NEITHER WE NOR OUR LICENSORS SHALL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS OR GOODWILL EVEN IF SUCH LOSS OR DAMAGE WAS REASONABLY FORSEEABLE.

  17. Indemnity

    You agree to indemnify us, our parent company and our and its respective directors, officers, employees, contractors and agents against any loss, damage, claim, proceeding and cost (including legal costs on an indemnity basis) including as a result of a third party claim against Ninefold arising out of your use of the Services; any data stored, transmitted, accessed, downloaded or used by you via the Services, any breach by you of this agreement or any of our policies including the Acceptable Use Policy.

  18. Miscellaneous

    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:

    1. to us - you can send an email to admin@ninefold.com; and
    2. 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.