The following terms and conditions (these "Terms") govern the provision by Flying Haggis Propriety Limited trading as Fluccs Australia. ("Company") of the services and/or products (referred collectively herein as "Services and Products") described on the relevant Order Form, the Service Level Agreement and Service Exhibit ? attached hereto (collectively the "Service Descriptions ") and defined in any of the Companys product support listing, to the customer ("Customer") identified on the Service Descriptions. The Service Descriptions, these Terms and the attachments and any addenda hereto, executed with respect to the Services and Products, are referred to herein, collectively, as this "Agreement."
By submitting the online order form, Customer hereby agrees to the following:
Additionally, in consideration for services to be delivered, Customer agrees to be bound to the following terms:
Customer agrees to indemnify and hold harmless Company and the employees and agents of Company (each an "Indemnified Party") against any losses, claims, damages, liabilities, penalties, actions, proceedings or judgements (collectively, "Losses") to which an Indemnified Party may become subject and which Losses arise out of, or relate to this Agreement or Customers use of the Services and Products, and will reimburse an Indemnified Party for all legal and other expenses, including reasonable attorneys fees incurred by such Indemnified Party in connection with investigating, defending or settling any Loss whether or not in connection with pending or threatened litigation in which such Indemnified Party is a party.
Backups are typically performed on a nightly basis with a nightly, weekly and monthly copy stored.
While every effort is make to protect your data our backups are conducted as a courtesy and all responsibility for retaining a copy of your site and any associated databases remains with you.
We therefore urge all clients to maintain full and up to date back ups of their sites and any databases. If you are unsure how to do this then please contact support and we will be happy to advise you.
Should you require us to restore a copy of your site from our backups for any reason we will be happy to do so but a $5.50 administration charge will apply
Not all servers have backups performed by default ie unmanaged servers, so If you wish to know if your server has backups performed please contact us through the help desk
Limitation on Company Liability
Company shall not be deemed to be in default of any provision of this Agreement or be liable for any failure of performance of the Services and Products to Customer resulting, directly or indirectly, from any (i) weather conditions, natural disasters or other acts of God, (ii) action of any governmental or military authority, (iii) failure caused by telecommunication or other Internet provider, or (iv) other force or occurrence beyond its control. The exclusive remedy against Company for any damages whatsoever to Customer arising out of or related to this Agreement shall be the refund of the fees paid by Customer to Company with respect to the then current term of this Agreement. COMPANY SHALL NOT BE LIABLE FOR (i) ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS OR LOSS OF REVENUE RESULTING FROM THE USE OF THE COMPANYS SERVICES AND PRODUCTS BY CUSTOMER OR ANY THIRD PARTIES, OR (ii) ANY LOSS OF DATA RESULTING FROM DELAYS, NONDELIVERIES, MISDELIVERIES OR SERVICE INTERRUPTIONS COMPANY PROVIDES THE SERVICES AND PRODUCTS AS IS, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED COMPANY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE AND SUITABILITY OF THE SERVICES AND PRODUCTS AND COMPANY SHALL HAVE NO LIABILITY THEREFORE.
Unless otherwise specified herein, any notices or other communications required or permitted shall be through the help desk at https://clients.fluccs.com.au using the log in of the account in question
This Agreement shall be governed by and construed in accordance with the laws of the State of Queensland, without regard to choice of law provisions that would cause the application of the law of another jurisdiction.
Failure by either Company or Customer to enforce any of the provisions of this Agreement or any rights with respect hereto or the failure to exercise any option provided hereunder shall in no way be considered to be waiver of such provisions, rights or options, or to in any way affect the validity of this Agreement. If one or more of the provisions contained in this Agreement are found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.In addition to these Terms of Service the client agrees to be bound by our Acceptable Usage Policy.
Fluccs Australia's Acceptable Use Policy ("AUP") is designed to protect Fluccs Australia's customers ("Customers") and third parties, further compliance with all relevant laws and regulations, and promote the security and availability of Fluccs Australia's network, servers and physical infrastructure. This AUP applies to each Customer's use of the services provided to it by Fluccs Australia ("Services") and every server or network device that is under Fluccs Australia or each Customer's control and attached to Fluccs Australia infrastructure as a part of the Services ("Server").
This AUP is incorporated by this reference into each Customer's service agreement. Fluccs Australia reserves the right to amend this AUP from time to time, and a Customer's use of the Services after changes to the AUP are posted on Fluccs Australia's web site http://www.fluccs.com.au will constitute the Customer's acceptance of any such amendments as will payment of each invoice.
Customers are responsible for complying with this AUP and for violations attributable to their customers and users, whether authorised or not by Customer. Customers must take all reasonable steps to ensure that they, their customers and users will comply with this AUP.
This AUP does not (a) obligate Fluccs Australia to monitor, review, or police the data and content residing on its network or (b) create any obligation of Fluccs Australia to any party that is not a Customer. Fluccs Australia expressly disclaims any liability for the data and content residing on its network and servers and for the actions of its Customers.
Any questions or comments regarding this AUP should be directed to through the Live Sales Facility, by 1300 358 227 or, in the case of existing clients, through the Help Desk at https://clients.fluccs.com.au
Customers shall not allow the posting, transmission, or storage of data and content on or through the Services which, in Fluccs Australia's sole determination, constitutes a violation of any relevant law, regulation, ordinance, or court order. Customers shall be responsible for determining what laws or regulations are applicable to their use of the Services. Prohibited content includes, without limitation, (a) content or code that facilitate any violation of, or describe ways to violate, this AUP or (b) "harvested" addresses or information, (c) "phishing" web sites, or (d) "spamvertising" sites.
A Customer shall not knowingly host on its account, or transmit over Fluccs Australia's servers or network, any material believed by Fluccs Australia to constitute child pornography. In addition to the any other actions it may take under this AUP, Fluccs Australia reserves the right to cooperate fully with any criminal investigation of content located on a Server that constitutes alleged child pornography.
|Customer Security Obligation|
Customers must use reasonable care to ensure the security of each Server. A Customer is solely responsible for any intrusions into, or security breaches of, any of its Domains or Servers, except as otherwise covered by a specifically designated security administration or firewall security service package ordered by the Customer. Fluccs Australia reserves the right to disconnect without provision of service credit any Server or Account which disrupt Fluccs Australia's servers, network or any hardware objects on the network as a result of a security compromise.
Customers are prohibited from engaging in any activities that Fluccs Australia determines in its sole discretion to constitute network abuse, including the following:
|Intellectual Property Infringement Policy|
Customers may not transmit, distribute, download, copy, cache, host, or otherwise store on a Server any information, data, material, or work that infringes the intellectual property rights of others. Fluccs Australia has the right to disable access to, or remove, infringing content to the extent required under any law or regulation, including the Digital Millennium Copyright Act of 1998.
Fluccs Australia reserves the right to suspend permanently or terminate the Services of any Customer that repeatedly violates Fluccs Australia's Intellectual Property Infringement Policy or any copyright law.
Customer may not send unsolicited bulk messages over the Internet (i.e., "spamming") and must comply with all relevant legislation and regulations on bulk and commercial e-mail, including the CAN-SPAM Act of 2003 and the Australian Anti Spam Legislation 2004.
Mass Mailings – Customers may not sending mass unsolicited e-mail, which is email that is sent to recipients who have not double-opted in to mailings from the Customer. Customers who send mass mailings must maintain complete and accurate records of all consents and opt-ins, including the actual e-mail and its headers, and provide such records to Fluccs Australia upon its request. If a Customer cannot provide positive and verifiable proof of such consents and opt-ins, Fluccs Australia will consider the mass mailing to be unsolicited.
Mailing Lists – Customers are prohibited from operate mailing lists, listservs, or mailing services that do not target an audience that has voluntarily signed up for e-mail information using a double opt-in process or that has made their e-mail addresses available to Customer for distribution of information. Customers who operate mailing lists must maintain complete and accurate records of all consents and opt-ins (including the actual e-mails and their headers) and provide such records to Fluccs Australia upon its request. If a Customer cannot provide positive and verifiable proof of such consents and opt-ins, Fluccs Australia will consider the list mailing to be unsolicited. Any Customer-maintained mailing list must also allow any party on the list to remove itself automatically and permanently. On shared servers no more than 500 emails may be sent from an account in an hour
Other prohibited mailing activities include the following:
Block Removal – If, as a result of a Customer's actions, Fluccs Australia's mail servers or IP address ranges are placed on black hole lists and other mail filtering software systems, Fluccs Australia shall charge Customer $100 up front and $100 per hour thereafter for any necessary remedial actions.
A Customer shall not use IP addresses that were not assigned to it by Fluccs Australia. Fluccs Australia reserves the right to suspend the network access of any account or server utilising IP addresses outside of the assigned range.
Unless on their own Dedicated Server customers may not operate and maintain IRC servers which connect to global IRC networks such as Undernet, EFnet, DALnet. Use of IRC plug-ins, scripts, add-ons, clones or other software designed to disrupt or deny service to other users is prohibited. Harassing or abusive IRC activity is expressly prohibited under the AUP, including (i) disruption or denial of service or (ii) the use or joining of "botnets" or the use of IRC BNC's or other proxy and re-direction software. If a Customer's IRC servers are frequently compromised or attract denial of service or distributed denial of service attacks that disrupt or denies service to other Customers or users, Fluccs Australia may null-route, filter, suspend, or terminate that Customer's service.
Usenet posts and content must conform to standards established by the Internet community and the applicable newsgroup charter. Fluccs Australia reserves the right to determine whether such posts violate the AUP.
Customers will cooperate and comply with any civil or criminal investigation regarding content located on its Accounts or Servers, including, without limitation, the following: discovery orders, subpoenas, freeze orders, search warrants, information requests, wire taps, electronic intercepts and surveillance, preservation requests, and any other order from a court or government entity (each an "Investigation"). Fluccs Australia reserves the right to comply with any Investigation without notice to a Customer. Customers shall not be entitled to service credits, and Fluccs Australia shall not be in default under any agreement for Services, if its compliance with any Investigation causes a Customer to incur downtime or requires the sequestering of all or a portion of the Servers.
|Violations of AUP|
Fluccs Australia may enforce this AUP with or without notice to a Customer by any actions it deems necessary in its sole discretion, including the following:
The aforementioned list of actions shall not be construed in any way to limit the actions or remedies that Fluccs Australia may take to enforce and ensure compliance with this AUP. Fluccs Australia reserves the right to recover any and all expenses, and apply any reasonable charges, in connection with a Customer's violation of this AUP. No service credits will be issued for any interruption in service resulting from violations of this AUP.
Fluccs Australia reserves the right at all times to investigate any actual, suspected, or alleged violations of this AUP, with such investigation to include accessing of data and records on, or associated with, any Server.