| Nip Technologies Web Services and Hosting
Agreement |
|
| This Web Hosting Agreement
(the "Agreement") governs your purchase and use, in any manner, of all Web
Site Hosting Services, including Web Application Services, E-mail Services,
VPN Services, SMS Services (collectively, the "Services") as described on
our website www.niptech.net and in our invoices to you, ordered by you and
accepted by Nip Technologies and describes the terms and conditions that
apply to such purchase and use of the Services. Nip Technologies general
policy is to act as an Internet Presence Provider. |
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| 1. Agreement |
| BY HOSTING YOUR ACCOUNT WITH NIP TECHNOLOGIES
AND BY ORDERING ANY OF OUR RELATED SERVICES YOU ARE EXPLICITLY, EXPRESSLY,
AND UNEQUIVOCALLY AGREEING TO THE TERMS AND PROVISIONS OF THIS AGREEMENT.
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| 2. Charges |
| All payment is in Australian currency.
Annual in advance payment comes with a 10% discount. All pricing and account
configurations are guaranteed only for the term of prepayment. In other
words, if you prepaid your account for 3 months, and prices go up or account
configurations change, your account may be subject to the new terms when
you renew it at the end of your prepay term. Nip Technologies reserves the
right to change prices and configurations at any time, unless other terms
have been agreed upon on an individual basis. You agree to pay for all charges
attributable to your use of the Services at the then current Nip Technologies
prices, which shall be exclusive of any applicable taxes. You shall be responsible
for the payment of all GST assessed with respect to the Services |
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| 3. Late Payments |
| Nip Technologies E-mails or mails
its invoices on or about the 1st of each month, with payment due within
7 days. If payment is not received within one (1) calendar month of the
invoice date, Nip Technologies will charge a late fee of 2% of the balance
per month or $5.00, whichever is greater. If payment has not been received
within forty five (45) days from the due date, Nip Technologies may suspend
any and all Services. Services will be reinstated on receipt of all outstanding
fees and a reconnection charge will be applied to the next invoice. Nip
Technologies will bill each client $50 per returned cheque, and per credit
card charge back received. For prepaid accounts your particular billing
cycle corresponds to the prepayment length you chose at startup. Your account
will automatically renew at this length unless you notify us of your desire
to terminate the services. In addition, your failure to fully pay any fees
and taxes within thirty (30) days after the applicable due date will be
deemed a material breach of this Agreement, justifying Nip Technologies
suspension of its performance of the Services and/or termination of this
Agreement. You are responsible for any fees associated with reinstated of
Services. Any such termination would not relieve you from paying past due
fees plus interest. In the event of collection enforcement, you will be
liable for any costs associated with such collection, including, without
limitation, court costs and collection agency fees. |
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| 4. Liability and Obligations on Termination |
| Should the Agreement expire or be
terminated for any reason, Nip Technologies will not be liable to you because
of such expiration or termination for compensation, reimbursement or damages
on account of the loss of prospective profits, anticipated sales, goodwill
or on account of expenditures, investments, leases or commitments in connection
with your business, or for any other reason whatsoever flowing from such
termination or expiration. Any termination of this Agreement shall not relieve
you of any obligations to pay fees and costs accrued prior to the termination
date and any other amounts owed by you to Nip Technologies as provided in
this Agreement. |
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| 5. 30-Day Guarantee |
| Notwithstanding Section 7, if you
are not fully satisfied with the Services, you may terminate this Agreement
at any time during the first thirty (30) days from your initial order date
and receive a full refund of all payments made by you to Nip Technologies
for the Services. To receive such refund, you must terminate this Agreement
in the manner described in Section 5 and cease using the Services, and Nip
Technologies must receive your termination notice, within the above described
thirty (30) day period. You agree to provide Nip Technologies with a description
of why you are not satisfied with the Services and are terminating this
Agreement. |
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| 6. Termination, Cancellation and Refund Policy |
| Nip Technologies may terminate this
Agreement at any time and for any reason by providing to you thirty (30)
days prior written notice of termination, unless any of the conditions in
Section 6 are met (see below). If Nip Technologies terminates this Agreement,
Nip Technologies shall refund to you the pro-rata portion of prepaid fees
attributable to Services not yet rendered as of the termination date unless
otherwise expressly provided herein. Customer may terminate this Agreement
without cause upon ten (10) days notice to Nip Technologies. You may use
any one of the two following methods to cancel your hosting: |
| 1. Via E-mail: If you wish to
cancel your account, please send an E-mail with your name, address and phone
number, your domain name or account name to admin@net.niptech.net, along
with the date you wish to cancel service. |
| 2. Via Mail: If you wish to
cancel your account, you also may send a cancellation including your name,
address and phone number, your domain name or account name, along with the
date you which to cancel service, to the following address: Nip Technologies,
2/99 Pleasant Road Hawthorn East, Victoria, Australia 3123 |
| You may call our office to notify
us of cancellations, but we will still require a written or e-mailed notice.
Refunds will be made by company cheque or issued back to your credit card
within 30 days of receipt of cancellation. Upon the termination of this
Agreement, Customer will return to Nip Technologies all copies of any Deliverables
provided to it by Nip Technologies, Sections 3 would survive termination
of this Agreement. |
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| 7. Terms and Conditions and Termination |
| Nip Technologies has specific ethical
concerns regarding the use of its computers detailed below. Nip Technologies
has the right to discontinue service, or deny access to anyone who violates
our Policies or the Terms and Conditions shown below WITHOUT WARNING OR
PRIOR NOTICE. No refunds of fees paid will be made if account termination
is due to violation of the terms outlined below: |
| 7.1 Server Abuse: Any attempt
to undermine or cause harm to a server, or customer, of Nip Technologies
is strictly prohibited. |
| 7.2 Unauthorized Use: Nip Technologies
will strongly react to any use or attempted use of an Internet account or
computer without the owner's authorization. Such attempts include "Internet
scamming" (tricking other people into releasing their passwords), password
robbery, security hole scanning, etc. Any unauthorized use of accounts or
computers by a Nip Technologies customer, whether or not the attacked account
or computer belongs to Nip Technologies, will result in action against the
attacker. Possible actions include warnings, account suspension or cancellation,
and civil or criminal legal action, depending on the seriousness of the
attack. |
| 7.3 Unacceptable Use: Customers
may not run IRC, bots or clients. Unacceptable uses also include, but are
NOT limited to: Bulk e-mailing, unsolicited e-mailings (spam), newsgroup
spamming, pornographic content, illegal content, copyright infringement,
trademark infringement, warez, cracks, software serial numbers, and/or anything
else determined by Nip Technologies to be unacceptable use of Nip Technologies
services including abuse of server resources. |
| Accounts may be terminated that
include the following content or which have links to the following content:
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| · Providing material that is
grossly offensive to the Web community including blatant expressions of
bigotry, racism, hatred, or profanity. |
| · Promoting or providing instructional
information about illegal activities, or promoting physical harm or injury
against any group or individual. |
| · Displaying material containing
obscene nudity or pornographic material. |
| · Displaying material that exploits
children under 18 years of age. |
| · Acts of copyright infringement
including offering pirated computer programs or links to such programs,
information used to circumvent manufacturer-installed copy-protect devices,
including serial or registration numbers for software programs, or any type
of cracker utilities. |
| 7.4 Abuse of Traffic and Server Space:
Nip Technologies set traffic limits and server disk space limits on each
of its accounts. The limits are posted on our website. Any customer who
violates Nip Technologies policies in abusing either space or site transfer
limits will be notified and given 2 days to remedy the problem. If the problem
is not resolved within the allotted period, the client will be billed for
the overages. |
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| 8. General Terms of Service |
| To maintain the integrity of our service
the following limitations apply: |
| 8.1 Unsolicited E-mail (Spam): Unsolicited
commercial advertisements are not allowed in e-mail, and will likely result
in account suspension or cancellation. Commercial advertisements are unwelcome
in most Usenet discussion groups and on most e-mail mailing lists. Inappropriate
posting may result in account suspension or cancellation. See the newsgroup
or mailing list's charter for whether advertising is allowed or not. "Spamming,"
or sending a message to many different off-topic newsgroups, is particularly
unethical and will be treated as such. Sending a message, especially an
advertisement, to more than five or six recipients, is by itself spamming
unless the individuals have specifically requested to be added to a mailing
list on that topic. E-mail is a person-to-person medium, not a broadcast
medium. Upon your first spam offense your mail will be disabled for 72 hours.
Upon your second Spam offense your entire domain will be disabled for 72
hours and you will be fined $100.00 per sent Spam. Upon your third offense
your account with Nip Technologies will be terminated, you will be fined
$200.00 per sent Spam. No refunds will be given if your account is terminated
for Spam. |
| 8.2 CGI Scripts: Some accounts
come with the ability to run CGI scripts. You are free to use any CGI scripts
you wish, however we reserve the right to disable any CGI script that effects
normal server operation without prior warning. |
| 8.3 Chat Rooms: We do not allow
clients to install their own chat rooms, without approving them with the
Nip Technologies Support Team. Most chat rooms tend to be large system hogs
and we cannot allow it as an account option. Note: Parachat chat rooms or
other client-side chat rooms do not apply to this rule. You may install
them. |
| 8.4 SMTP Mail Services: SMTP
service for outgoing mail is provided on our networks on a limited basis.
Use of our SMTP services is restricted and can be used only if the following
conditions are met: |
| · You are a Nip Technologies
customer in good standing. |
| · You are sending mail "from"
addresses affiliated with your accounts and services obtained from Nip Technologies.
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| · You are not acting in violation
of our policies (i.e., not sending out Spam). |
| Please do not use this SMTP Service for: |
| · Sending out large quantities
of mail to multiple recipients (i.e., running a mailing list) - please consider
using the installed mailing list instead. |
| · Sending mail "from" addresses
not affiliated with your accounts and services obtained from Nip Technologies.
|
| · Spam! |
| If you meet these requirements, you
may configure your mail client to use this service by setting your SMTP
(Outgoing Mail) Server to: mail.niptech.net |
| By default, this setting will reject
all connections. In order to authorize yourself to send mail, you must first
use your mail program to check your account for new mail. After you have
checked mail, you will be authorized to send mail through mail.niptech.net. |
| This service relies on what is known
as POP-before-SMTP authentication. SMTP, the Internet's mail transmission
protocol, has no authentication, there is no reliable way to determine if
a particular sender is allowed to send mail to an external address. Unlike
a traditional ISP, we cannot determine if a sender is a customer by checking
their IP address. |
| However, all of our customers have
mailboxes that are accessible through POP3. POP3 is a mail retrieval protocol,
and does have authentication built-in. Therefore, any customer who legitimately
accesses a mailbox on our servers using POP3 is automatically authorized,
for a period of up to sixty minutes, to send outgoing mail through our relay
service. |
| Please note that many ISPs, including
AOL will not allow access to an external SMTP server. This is most commonly
implemented by blocking traffic to port 25, the SMTP port. If your ISP filters
port 25 and your mail client can not be set to use a different port, or
if your ISP filters by some other means, you will not be able to use our
SMTP service at mail.niptech.net. If you are a subscriber of one of these
services, please contact your ISP for assistance in using SMTP to send mail. |
| 8.5 Background Running Programs: We
MAY allow programs to run continually in the background. BUT, these are
considered on a one-to-one basis and an extra charge will be incurred based
on system resources used and operational maintenance needed. You need to
contact us first before installing any such program. |
| 8.6 IRC: We
currently do not allow IRC or IRC bots to be operated on our servers. |
| 8.7 Backup Policies: We
backup all of our operating environment once a day. These backups are meant
for whole servers, not just individual accounts and does not include customer
data. Customers must therefore ensure that their accounts are individually
backed up by themselves or have a backup agreement with Nip Technologies.
If you have lost data through no fault of Nip Technologies you may be charged
a $50 restoration fee. |
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| 9. Intellectual Property Rights |
| Material accessible to you through
Nip Technologies services may be subject to protection under copyright laws,
or laws protecting trademarks, trade secrets or proprietary information.
Except when expressly permitted by the owner of such rights, you must not
use Nip Technologies or its servers and network in a manner that would infringe,
violate, dilute or misappropriate any such rights, with respect to any material,
which you access or receive through the Nip Technologies network. If you
use a domain name in connection with Nip Technologies or similar service,
you must not use that domain name in violation of any trademark, service
mark, or similar rights of any third party. |
|
| 10. Network Security |
| Customers may not use Nip Technologies
network with an attempt to circumvent user authentication or security of
any host, network, or account. This includes, but is not limited to, accessing
data not intended for the customer, logging into a server or account the
customer is not expressly authorized to access, password cracking, probing
the security of other networks in search of weakness, or violation of any
other organization's security policy. Customers may not attempt to interfere
or deny service to any user, host, or network. This includes, but is not
limited to, flooding, mail bombing, or other deliberate attempts to overload
or crash a host or network. Nip Technologies will cooperate fully with investigations
of violations of systems or network security at other sites, including cooperating
with law enforcement authorities in the investigation of suspected criminal
violations. Users who violate system or network security may incur criminal
or civil liability. |
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| 11. Electronic Commerce |
| You will be solely responsible for
the development, operation and maintenance of your online store and products
and all contents and materials appearing online or on your products, including
without limitation (a) the accuracy and appropriateness of content and materials
appearing within the store or related to your products, (b) ensuring that
the content and materials appearing within the store or related to your
products do not violate or infringe upon the rights of any third party,
and (c) ensuring that the content and materials appearing within the store
or related to your products are not libelous or otherwise illegal. You will
be solely responsible for the final calculation and application of shipping
and GST. You will also be solely responsible for accepting, processing,
and filling any customer orders, and for handling any customer inquiries
or complaints arising there from. You are also responsible for the security
of any customer credit card numbers and related customer information you
may access as a result of conducting electronic commerce transactions through
your Web Site. You will keep all such information confidential and will
use the same degree of care and security as you use with your confidential
information. |
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| 12. Static / Dynamic Content Caching |
| You expressly grant to Nip Technologies
a license to cache the entirety of your Web Site, including content supplied
by third parties, hosted by Nip Technologies under this Agreement and agree
that such caching is not an infringement of any of your intellectual property
rights or any third party's intellectual property rights. |
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| 13. IP Address Ownership |
| Nip Technologies shall maintain and
control ownership of all IP numbers and addresses that may be assigned to
you by Nip Technologies and Nip Technologies reserves, in its sole discretion,
the right to change or remove any and all such IP numbers and addresses. |
|
| 14. Domain Name Registration |
| If requesting domain name registration
through us, Customer agrees to pay Nip Technologies prior to the effectiveness
of the desired domain name registration, the then-current amounts set forth
in the Nip Technologies price schedule for the initial registration of the
domain name and, should Customer choose to renew the registration, subsequent
renewals of the registration. All fees are nonrefundable, in whole or in
part, even if Customer's domain name registration is suspended, canceled
or transferred prior to the end of Customer's then current registration
term. Nip Technologies reserves the right to change fees, surcharges, and
renewal fees or to institute new fees at any time, for any reason, at its
sole discretion. Customer's requested domain name will not be registered
unless and until we receive actual payment of the registration fee, and
have confirmed Customer's registration in an e-mail from Nip Technologies
to the e-mail address indicated in Customer's registration application.
In the event of a charge back by a credit card company (or similar action
by another payment provider allowed by Nip Technologies) in connection with
the payments of the registration fee for Customer's domain name registration,
Customer agrees and acknowledges that the domain name registration shall
be transferred to Nip Technologies as the paying entity for that registration
to the registry and that we reserve all rights regarding such domain name
including, without limitation, the right to make the domain name available
to other parties for purchase. Nip Technologies will reinstate Customer's
domain name registration solely at Nip Technologies discretion, and subject
to our receipt of the initial registration or renewal fee and our then-current
reinstatement fee. |
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| 15. DISCLAIMER OF WARRANTY AND LIMITATION OF
LIABILITY. |
| (a) THE SERVICES ARE PROVIDED "AS
IS" WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE, WHICH ARE HEREBY DISCLAIMED.
(b) NIP TECHNOLOGIES SHALL NOT BE LIABLE FOR (1) ANY LOSS OF USE, LOSS OF
DATA, INTERRUPTION OF BUSINESS OR (2) ANY INDIRECT, SPECIAL, INCIDENTAL,
CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION,
LOST PROFITS) REGARDLESS OF THE FORM OR ACTION WHETHER IN CONTRACT, TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF NIP TECHNOLOGIES
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NIP TECHNOLOGIES LIABILITY
HEREUNDER SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO NIP TECHNOLOGIES
DURING THE THREE (3) MONTH PERIOD BEFORE THE ACTION AROSE. CUSTOMER ACKNOWLEDGES
THAT THESE LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND ABSENT
SUCH LIMITATIONS NIP TECHNOLOGIES WOULD NOT ENTER INTO THIS AGREEMENT. |
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| 16. Governing Body |
| This Agreement shall be governed solely
by the laws of the State of Victoria, excluding its principles of conflicts
of laws. Any action under or relating to this Agreement shall be brought
solely in the state and federal courts located in Melbourne, Victoria, and
each party hereby submits to the personal jurisdiction of such Courts. Each
Party agrees that its performance under this Agreement shall in all respects
conform to all applicable laws, rules and regulations of the Commonwealth
of Australia. Customers may not assign this Agreement without the prior,
written permission of Nip Technologies. Any purported assignment will be
void and without any effect. This Agreement may not be modified or amended
except in writing, signed by both Parties. Any purported oral modification
or amendment of this Agreement in derogation of the foregoing shall be without
any effect. Neither Party may waive any right hereunder except expressly
and in writing. Any other purported waiver of any such right shall be without
any effect. This Agreement is the entire agreement between the Parties with
respect to this subject matter, and supersedes all prior and contemporaneous
discussions, negotiations, communications and agreements with respect thereto. |
