Version 3 . Created 22 September 2012,UID 1209221402
Part A | The Parties To, Scope and Purpose of This Agreement.
1. This is the Service Provision and/or Use of Service Agreement, hereafter referred to as “SPUSA”, “SPUS” or the “Agreement”. It explains the terms of services, the responsibilities, benefits, restrictions and liabilities you agree to when entering into a service or purchase arrangement with the Provider through use of this site or by any other means. This agreement (SPUSA) should be read within the context of the Policies named within it, and this agreement and these policies are integral to and influenced by the interpretation and workings of each other.
2. As a user of this website or as a user of services provided by the operator of this website, or as a user of products and/or services of the provider defined in paragraph 3, you enter into the following legally binding agreement. Where this Agreement makes reference to “user”, “you”, “your” and/or “yourself” it is referring to any and all persons or entities using services provided via this website or accessing services and/or products provided by this website or its owner/operator, including business owners and their representative operators as direct or indirect result of accessing this site.
3. This Agreement, this website and the services and/or products promoted, explained, appearing or accessed here are (unless clearly stated otherwise) the copyrighted intellectual property of Faith Computing Pty Ltd, hereafter referred to as ” Provider”, “we”, “our” or “us” ).
4. Where you use this site or purchase goods or services on the authority of another (e.g. your employer) you enter this person or enterprise into this agreement by virtue of that authority granted. To represent yourself as acting on another’s authority is a fraudulent activity and may make you liable for civil and/or criminal investigation and/or consequences.
8. Your decision to use this website, any service or product or make commercial enquiry of us, indicates your acceptance of the full terms of this agreement, whether seen or unseen, read or unread, understood or misunderstood as well as the policies mentioned in this Agreement. These policies include (but may not be limited to those indicated by, or inferred from the following titles and included content):
9. We are not responsible for, and expressly disclaim all liability for damages of any kind arising out of use, reference to, or reliance on any information contained within the site, our product or services.
10. We make no representations as to currentness, suitability, accuracy, completeness or validity of any information on this site and will not be liable for any omissions, errors or delays in this information or any injuries, losses or damages arising from its use or display.
11. If you do not agree to these Terms, you should not review information or obtain goods or products from this site. If there is an existing arrangement that needs to be cancelled contact us immediately.
12. We reserve the right to change the terms of this Agreement and our policies at any time by posting changes on-line. We will make reasonable efforts to inform you of changes, however you are responsible for informing yourself of any changes by regularly reviewing these pages. If you access the site or use our products and/or services after changes are posted, you agree to all changes (including
those which you are then unaware have been posted).
13. You also agree under the Terms of this agreement, to observe and comply with any policies in place by a service provider accessed by you though our network.
14. These terms constitute the entire and only agreement between you, and us and supersede all prior or contemporaneous agreements, conduct, representations, warranties and understandings with respect to the site or the subject matter of these terms.
15. The disclaimers, liability limitations and indemnities do not exclude any rights that by law may not be excluded.
Part B | Interpretations and Jurisdictions
1. Legitimate meanings are not altered or invalidated if you misunderstand these or other verbal explanations, or where minor grammatical variants do not alter the intended meaning.
2. These terms have been prepared in the English language and must be construed accordingly.
3. Subject to any over-riding conflict of laws, these terms and your dealings with us are governed by the laws in force in New South Wales, Australia. You irrevocably and unconditionally submit to the non-exclusive jurisdiction of courts exercising jurisdiction there.
4. Any provision of these terms that is prohibited or unenforceable in any jurisdiction will be ineffective in that jurisdiction to the extent of the prohibition or unenforceability. That will not invalidate the remaining terms nor affect the validity or enforceability of that provision in any other jurisdiction.
5. We do not warrant that the content of this site complies with the laws of your country or jurisdiction. If you access this site and/or useproducts and/or services, you do so at your own risk and you accept responsibility for ensuring or confirming compliance with all laws that apply to you as a result of that access or any consequent transactions or dealings with us.
6. You are responsible for ensuring that your use of this site is lawful, does not infringe any third party’s rights and does not breach any standards, content requirements or codes promulgated by any relevant authority (including relevant Internet industry codes of practice).
7. You warrant that you are of legal age and capacity. Children must not use this site without the express permission of their parents, guardians or other responsible adults.
8. Nothing on this site constitutes an offer to provide products or services in any jurisdiction if to do so would contravene the laws of that jurisdiction.
9. The following terms are specifically defined:
a) “Effective Date” means the date which you commence using the services or purchase a product.
b) “Subscription Period” means the period from the Effective Date until this Agreement is terminated in accordance with the provisions herein.
Part C | Use Is At Your Own Risk. No Advice is Given And Opinions Where Given May Not Be Representative. Liability is Limited and Indemnities Are Applied.
1. We, our affiliates nor any of our or their respective directors, officers, employees, agents, contributors, third party content providers or licensors makes:
a. Any express or implied representation or warranty about, or shall be liable, in contract, tort (including negligence) or otherwise, for any direct, indirect, special or consequential loss, damages or reliance in connection with this site, its use, its content or any products or services used within, referred to or accessed through this site or our services (whether on this site or not).
b. Retain limited liability to you as user of products, services or this site. Our total liability to you (if any) for loss, damage or reliance shall be limited, at our election, in the case of information or services supplied or offered by us – the re-supply of the information or services or payment of the cost of doing this; in the case of products supplied or offered by us – repair or replacement of the products, supply of equivalent products, or payment of the cost of doing this; or the amount paid by you (if any) for accessing this site.
2. The limitation and terms explained herein includes (but is not restricted to) loss or damage you might suffer as a result of:
a. Reliance on the completeness, accuracy, suitability or currency of the site or its content (including third party material and advertisements on this site), our products or our services irrespective of any verifying measures taken by us. This site is designed for general interest only. It is not advice and you should not rely on it as individual circumstances and purposes vary.
b. Failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records.
c. Accessing any sites or servers maintained by other organisations through links on this site. Links are provided for the convenience of our site users only and without responsibility for the content or operation of those sites. Unless otherwise stated, we do not endorse linked sites nor their products and services and your accessing any such site is at your own risk.
d. The provision of credit card or other financial information, the failure to complete (or delay in completing) any transaction, or other loss or damage arising from any e-commerce transacted or attempted to be transacted on this site.
e. Defamatory, threatening, offensive or unlawful conduct of third parties or our publication of any materials relating to or constituting such conduct.
3. Opinions expressed on this site are at times those of relevant contributors. We do not necessarily share those opinions in such circumstance.
4. Where observations or commentary are offered on this site, please be aware that individual application of those observations or commentaries may vary significantly in their application and relevance dependant upon any particular individuals circumstances.
5. If you require specific advice for your individual circumstances, consult an appropriate expert directly, disclosing all relevant matters. Do not rely on the general material on this site. We will endeavour to assist you if you specifically inquire about matters in which we have expertise, but cannot accept any responsibility for doing this beyond those required of us at law and not excludable under the law within our jurisdiction and this Agreement.
6. You indemnify us, our affiliates and our respective employees, agents, contributors, third party content providers and licensors from and against all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred or suffered by you or by us as a direct or indirect consequence of your accessing, using or transacting on this site or your attempts to do so (except for our costs of making this site available to you that you have not agreed to meet); and any breach by you or your agents of the Terms.
Part D | Other Responsibilities and Rights Retained and the Exclusion Of Implied Warranties.
1. To the maximum extent permitted by law, we exclude all warranties by us that otherwise would be implied in any transactions for the supply by us of this site, products or services (including warranties of satisfactory quality, merchantability and fitness for purpose). All warranties and guarantees offered are expressly as stated and limited to that clearly stated therein.
2. All warranties and guarantees are offered strictly to those services named within the text of the warranties and/or guarantee and under the terms and provisions stated. There is no implied extension of the warranties and guarantees of one service or product applying to another product or service.
3. We reserve the right to monitor your compliance with this Agreement by any means and to take action if we deem it necessary.
4. We reserve the right to act on any complaint received and will cooperate and assist fully with law enforcement agencies if required.
5. We will report breaches of this policy to appropriate law enforcement agencies where deemed appropriate.
Part E | Continued Services, Product Availability, Conditions and Access.
1. We do not warrant that we will continue to make this site available generally or at all and reserve the right at any time to impose or increase fees for your future access to any material appearing on this site and/or use products and or services provided by us.
2. We reserve the right at any time to alter the site in such a way as to change the equipment needed by you to access or use the site or any part of it.
3. We reserve the right, at our discretion, to modify or remove portions of this policy at any time.
Part F | Grant of Rights and Restrictions.
1. Subject to all the terms and conditions of this agreement, we shall supply products and/or services to you and grant you a personal, non-transferable, terminable licence to use them from the Effective Date for the Purchase Date or Subscription Period.
2. You may request, and we may agree to upgrade or downgrade a product or service provided to you.
3 We shall use all reasonable endeavours to ensure that access to the product lines and services are available at all times subject to planned and emergency downtime. We shall use all reasonable endeavours to notify you of planned downtime and unavailability of our products and/or services however notwithstanding such obligation, we shall not be liable for any unavailability which arises as a result of emergency downtime and unavailability.
4. Unauthorized use of our products and/or services, is expressly prohibited.
5. Resale of our products and/or services without our prior written consent, is expressly prohibited.
6. You agree not to use the our products and/or services for any use that by implication or inference (direct or indirect) is:
a) Obscene, libellous, blasphemous, defamatory, inciting hatred, terrorism or any similar offence.
b) Unlawful or misleading,
c) Breaches third party copyright, including, without limitation, storing or sharing copyrighted material that has not been legally obtained,
d) Undertaken on behalf of third parties.
e) In contravention of any applicable local, state, national and foreign laws, treatises and regulations.
7. If you are in breach of any clause or in our opinion, reasonably likely to become in breach, we may suspend or act in other manner according to our various policies. You hereby indemnify us in full for any loss or damage suffered by us as a result of your breach of these terms and any subsequent actions undertaken by us.
Part G | Terms and Termination
1. This agreement shall commence on the Effective Date and shall continue in effect for the Subscription Period or in the case of products, for the period of time subscribed in our policies or as applicable by laws of our jurisdiction.
2. If either party breaches this agreement in any material respect, the other party may give written notice to the breaching party of its intent to terminate, and if such breach is not cured within thirty (30) days after the breaching party’s receipt of such notice, this agreement shall terminate without any further notice required. Without prejudice to the foregoing, in the event that you breach the provisions of this agreement, we may suspend and/or terminate the services forthwith without notice.
3. In the case of an ongoing account, if you do not access your account for a period of one hundred and twenty (120) days or more, we may at our own discretion remove and/or purge your data and account from the system and terminate the services forthwith without notice.
4. If this agreement is terminated, )the rights and licenses granted to you herein shall terminate, you shall cease all use of the services and we shall at our own discretion remove and/or purge your data and account from the system.
Part H | Warranties and Liabilities
1. We do not represent or warrant that:
a) the use of the Services will be timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data,
b) the Services will meet your requirements or expectations,
c) errors or defects will be corrected,
d) any Services or technology that make the Services available are free of viruses or other harmful components.
2. The Services are provided to you strictly on an “as is” basis. All conditions, representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement of third party rights, are hereby disclaimed to the maximum extent permitted by applicable law.
3. Your sole remedy with respect to any claims arising out of this Agreement shall be limited in the aggregate to the monies paid by you to us under this Agreement during the twelve (12) month period preceding the event giving rise to such liability.
4. In no event shall we be liable for:
a) any special, indirect, incidental or consequential damages, including loss of profits and goodwill, business or business benefit, or the cost of procurement of substitute products or services by you even if advised of the possibility of such damages,
b) any delay or failure to provide the Services that is due to third parties, including, without limitation, internet service providers, data centres, server hosting companies and telecommunications companies;,
(c) credit card fraud committed against you by any third party provider of credit card services.
Part F | Other Matters
1. You consent to the use by us of your name in customer lists and other publicity, including interviews, case studies, and conference discussions, provided that such publicity accurately describes the nature of the relationship between you and us.
2. You agree that a demonstrated breach of this Agreement by you would irreparably harm us.You agree that we shall be entitled to preliminary and permanent injunctive relief, as determined by any court of competent jurisdiction to enforce the provisions of this Agreement.
3. If any provision of this Agreement or the Services thereof is declared void, illegal, or unenforceable, the remainder of this Agreement will be valid and enforceable to the extent permitted by applicable law. In such event, the parties agree to use their best efforts to replace the invalid or unenforceable provision by a provision that, to the extent permitted by the applicable law, achieves the purposes intended under the invalid or unenforceable provision.
4. Any failure by any party to this Agreement to enforce at any time any term or condition under this Agreement will not be considered a waiver of that party’s right thereafter to enforce each and every term and condition of this Agreement.
5. Neither party will be responsible for delays resulting from circumstances beyond the reasonable control of such party, provided that the nonperforming party uses reasonable efforts to avoid or remove such causes of nonperformance and continues performance hereunder with reasonable dispatch whenever such causes are removed.
6. This Agreement:
a) constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements, oral and written, made with respect to the subject matter hereof, and
b) cannot be altered except by agreement in writing executed by an authorised representative of each party. No purchase order and/or standard terms of purchase provided by you shall supersede this Agreement.
7. Nothing in this Agreement shall give, directly or indirectly, any third party any enforceable benefit or any right of action against us and such third parties shall not be entitled to enforce any term of this Agreement against us.
Part H | Questions
1. Email questions re. this policy or Agreement to email@example.com.