Just X-Cart Terms & Conditions - Hosting Agreement

Part A: Service Agreement

Objectives of the Agreement

This agreement sets out the minimum level of service that Just X-Cart is required to meet and the corresponding penalties for not meeting such levels. Our objective is to provide a continuously operating service that is well beyond the minimum levels specified.

Network Uptime

The guaranteed up-time for network services is 99.9% each month. This uptime is determined by monitoring performed from remote locations by Just X-Cart, and does not take into consideration outages or issues with upstream providers, network carriers or clients local area networks.

Customer Support

All support requests will be handled as soon as possible, target time to action all support requests is within 30 minutes.
Requests for software upgrades and or installation of new software packages will be processed as soon as possible. Target time to complete such requests is within 2 workings days of receipt, however, should the involvement of X-Cart (Russia) be required, or any other external organisation, Just X-Cart make no guarantees in relation to the length of time upgrades and installation will take.

Restoration of Client Data

Restoration of client data is defined as returning the server to its original configuration, as per the date the server first went live on the network. If hardware failure causes corrupted operating system, data files, or damaged service configurations, Just X-Cart will restore the system to its original state however possible.

Just X-Cart is not responsible for the restoration of data to server. If hardware failure is experienced and subsequent data loss occurs, client is ultimately responsible for data restoration. Just X-Cart shall not be liable for loss of data under any circumstances.

Just X-Cart have in place on all servers a backup function which enables disk-based data protection and disaster recovery for Linux servers and workstations running Microsoft Windows and Linux operating systems. The system protects disk volume data using replication and synchronization over the network storing point-in-time snap shots in disk-based storage.

It is a near-Continuous Backups system capable of providing hundreds of recovery points per day scheduled as little as 5 or 10 minutes apart.

It works by reading your hard disk volumes at the sector level, bypassing the file system for the ultimate in performance and recovery. This disk sector synchronization is performed while the server is online and provides no interruption to other I/O requests even on a busy server. By reading the disk at the lowest possible level point-in-time recovery images contain your files and all the formatting, partition tables, and volume configuration needed for complete and instant disaster recovery.

Despite this system however, ultimately the client is responsible for protection and restoration of their own data.

Network Performance

All Network services are continuously monitored to ensure rapid response to any faults, which may occur. Monitoring is carried out on all primary services. Monitoring feedback is provided to technical support staff via email, SMS and paging services 24hours, 7 days.

Scheduled Outages

Scheduled outages: From time to time upgrades to hardware and or software may be required, such upgrades will generally be performed outside of business hours to avoid interruptions. Clients will be notified, where possible as far as practicable in advance of such upgrades. Scheduled network outages under normal conditions should not exceed 5 hours per year.

Under normal conditions the client will be advised via email and or telephone no less than 24 hours in advance of any scheduled outage. Under normal conditions, where possible, the clients input will be sought to identify the most suitable time for a scheduled outage to take place.

Outages caused by Upstream providers, such as the Data Centre and or the network carriers are not covered by this Service Level Agreement as such outages are beyond the control of Just X-Cart.

Un-Scheduled Outages

Un-scheduled outages: From time to time unscheduled upgrades and or maintenance to hardware and or software may be required, where deemed to be urgently required in order to maintain network stability and operation. Just X-Cart, reserves the right to perform such unscheduled activities where it deems it necessary to maintain network stability and operation.

Outages caused by Upstream providers, such as the Data Centre and or the network carriers are not covered by this Service Level Agreement as such outages are beyond the control of Just X-Cart.

Service Agreement Exclusions

This Service Level Agreement does not cover Service Downtime caused by problems in the following:

Client's local area network.
Client-provided Internet connectivity or end-user software.
Entities inside Client's internal network including, but not limited to, firewall configuration and bandwidth shaping, local area workstations, or other servers, equipment, and software that have a potential bearing on the local networking environment.
Any predetermined Scheduled Service Downtime.
Any problems beyond the immediate Pegasus Data Centre network.
Failures and or any issues relating to software ie X-Cart Gold and X-Cart Pro, running on Just X-Cart servers

Any interruptions, delays or failures caused by Client or Client's employees, agents, or subcontractors, such as, but not limited to, the following:

Inaccurate configuration.
Non-compliant use of any software installed on the server.
Client managing their own email services ie not utilising email hosting offered with Just X-Cart hosting plans
Client managing their own DNS/MX records ie not allowing full DNS management from our servers
Client initiated server over-utilisation.
Any problems related to attacks on the machine such as hacking, bandwidth-based attacks of any nature, and service or operating system exploits.
Problems associated with Operating System, Software, or Applications.

Service Level Guarantee

The service level guarantee will be measured by Just X-Cart and is based on the Network up-time. If Just X-Cart determines that primary services were unavailable for period exceeding the maximum allowable under the prescribed up-time target, and extending for a continuous duration of 1 hour or more per instance, upon the customers request, Just X-Cart will credit the customers monthly invoice the prorated charges of one (1) day of the Just X-Cart services fee for each consecutive hour, up to a maximum of 30 days per month. To receive credit if this guarantee has not been met, the customer must contact Just X-Cart within 30 days of the end of the month for which credit is requested and must provide specific data, dates and times of outages.

This guarantee applies only to clients whose accounts with Just X-Cart are not in arrears at the time the Service Level Agreement is actioned.

Just X-Cart reserves the right to modify this agreement at any time.

Cessation of Hosting

Just X-Cart clients are required to provide in writing their intent of service cessation within a minimum of 48 hours prior to next billing cycle. Upon receipt of such confirmation, client web hosting account will be deleted from our services on the date of service renewal. Clients are therefore expected to have all contents copied and or moved to an alternate provided prior to date of renewal should they be leaving our services.

We do hate to lose your business however, and as such, would sincerely appreciate your contacting us prior to sending us notification of your intent to cancel your services so that we may possibly discuss alternate options depending on your circumstances and reasons for wanting to leave.

Payment for Hosting

Clients will be issued quarterly invoices which must be paid on or before due date to avoid disruption to email and web hosting services. Failure to pay invoices, without contacting Just X-Cart office before due date, will result in suspension of hosting account. Should this occur, in order to restore services in full, a $110.00 fee is applicable, in conjunction with payment of outstanding invoice.

Should you elect to move your site (email/web hosting services) to an alternate provider no refund shall be given for any months remaining upon your leaving.

Purchase or Written Order

Work will only commence on receipt of an appropriate work order, written request or purchase order. This will form a legally binding contract and you agree to our terms and conditions.

Copyright

Copyright of all scripts and designs will remain the property of Just X-Cart Australia Pty Ltd until final payment is made.

Cancellation of Project

If you cancel the project at any stage, you will be required to make payment for the works completed. The unfinished work will remain the property of Just X-Cart Australia Pty Ltd. Payment must be made within 14 days of the cancellation request. Failure to do so will result in legal action.

Part B: Acceptable Use Policy

Network Uptime

Just X-Cart’s Acceptable Use Policy ("AUP") is designed to protect Just X-Cart’s ("Customers") and third parties, further compliance with all relevant laws and regulations, and promote the security and availability of Just X-Cart's network, servers and physical infrastructure. This AUP applies to each Customer's use of the services provided to it by Just X-Cart’s ("Services") and every server or network device that is under Just X-Cart’s or each Customer's control and attached to Just X-Cart’s infrastructure as a part of the Services ("Server").

This AUP is incorporated by this reference into each Customer's service agreement. Just X-Cart 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 Just X-Cart’s web site http://www.justxcart.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 Just X-Cart to monitor, review, or police the data and content residing on its network or (b) create any obligation of Just X-Cart to any party that is not a Customer. Just X-Cart 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 www.justxcart.com.au website contact form or helpdesk.

Prohibited Content

Customers shall not allow the posting, transmission, or storage of data and content on or through the Services which, in Just X-Cart'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 Just X-Cart's servers or network, any material believed by Just X-Cart to constitute child pornography. In addition to the any other actions it may take under this AUP, Just X-Cart reserves the right to cooperate fully with any criminal investigation of content located on a Server that constitutes alleged child pornography.

Customer is solely responsible for the content of any postings, data or transmissions using the Services (the “Content”), or any other use of the Services by Customer or by any person or entity Customer permits to access the Services (a “User”). Customer represents and warrants that neither it nor any User will use the services for unlawful purposes (including, without limitation, infringement or copyright or trademark, misappropriation or trade secrets, fraud, invasion of privacy, illegal pornography, obscenity, defamation and illegal use or to interfere with, or disrupt, other network users, network services or network equipment. Disruptions include, without limitation, distribution of unsolicited advertising or chain letters, repeated harassment of other network users, wrongly impersonating another user, falsifying one’s network identity for improper or illegal purposes, sending unsolicited mass email, propagation or distribution of computer viruses, using the network to make or attempt to make unauthorised entry to another machine accessible location, via the network, and distributing tools designed for compromising security (i.e. including, but not limited to, password guessing programs, cracking tools or network probing tools). Just X-Cart may suspend or terminate the Services immediately, without prior notice to Customer, if Just X-Cart believes, in good faith, that Customer or a User is utilising the Services for any such illegal or disruptive purpose. Customer shall defend, indemnify, and hold harmless Just X-Cart from and against all liabilities, judgements, claims, damages, settlements, expenses and costs (including legal fees and litigation expenses) arising out of or relating to any and all claims by any person relating to use of the Services, including, but not limited to, use of the Service without consent of the Customer.

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. Just X-Cart reserves the right to disconnect without provision of service credit any Server or Account which disrupt Just X-Cart's servers, network or any hardware objects on the network as a result of a security compromise.

Network Abuse

Customers are prohibited from engaging in any activities that Just X-Cart determines in its sole discretion to constitute network abuse, including the following:

Introducing or executing malicious programmes into any network or server, such as viruses, worms, Trojan Horses, and key loggers.
Causing or initiating security breaches or disruptions of network communication and/or connectivity, including port scans, flood pings, email-bombing, packet spoofing, IP spoofing, and forged routing information.
Executing any form of network activity that will intercept data not intended for the Customer's server or account.
Evading or circumventing user authentication or security of any host, network or account, including cracking, brute-force, or dictionary attacks.
Interfering with or denying service to any user, host, or network other than the Customer's host, such as a denial of service attack or distributed denial of service attack.
Conduct designed to avoid restrictions or access limits to specific services, hosts, or networks, including the forging of packet headers or other identification information.
Using any program, or sending messages of any kind, designed to interfere with or disable a user's terminal session.
Being in breach of the Anti Spam Laws of any country

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. Just X-Cart 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.

Just X-Cart reserves the right to suspend permanently or terminate the Services of any Customer that repeatedly violates Just X-Cart's Intellectual Property Infringement Policy or any copyright law.

E-mail Policy

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 Just X-Cart upon its request. If a Customer cannot provide positive and verifiable proof of such consents and opt-ins, Just X-Cart 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 Just X-Cart upon its request. If a Customer cannot provide positive and verifiable proof of such consents and opt-ins, Just X-Cart 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:

Use of Just X-Cart's servers and network for the receipt of replies to unsolicited mass e-mail
Forgery of e-mail headers ("spoofing")
Spamming via third-party proxy, aggregation of proxy lists, or installation of proxy mailing software
Configuration of a mail server to accept and process third-party messages for sending without user identification and authentication
Hosting web pages advertised within "spam e-mail" sent from another network ("spamvertising")
Any other unsolicited bulk messages, postings, or transmissions through media such as weblog posts, IRC/chat room messages, guestbook entries, HTTP referrer log entries, usenet posts, pop-up messages, instant messages, or SMS messages.

Block Removal – If, as a result of a Customer's actions, Just X-Cart’s mail servers or IP address ranges are placed on black hole lists and other mail filtering software systems, Just X-Cart shall charge Customer $100 up front and $100 per hour thereafter for any necessary remedial actions.

IP Allocation

A Customer shall not use IP addresses that were not assigned to it by Just X-Cart. Just X-Cart reserves the right to suspend the network access of any account or server utilising IP addresses outside of the assigned range.

IRC Policy

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, Just X-Cart may null-route, filter, suspend, or terminate that Customer's service.

Usenet Policy

Usenet posts and content must conform to standards established by the Internet community and the applicable newsgroup charter. Just X-Cart reserves the right to determine whether such posts violate the AUP.

Legal Investigations

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"). Just X-Cart reserves the right to comply with any Investigation without notice to a Customer. Customers shall not be entitled to service credits, and Just X-Cart 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

Just X-Cart may enforce this AUP with or without notice to a Customer by any actions it deems necessary in its sole discretion, including the following:

Disabling access to a Customer's content that violates this AUP
Removal of DNS records from Servers
Blocking mail or any other network service
Effecting IP address null routing
Suspending or terminating of a Customer's service
Taking direct action against a Customer's users and customers.

The aforementioned list of actions shall not be construed in any way to limit the actions or remedies that Just X-Cart may take to enforce and ensure compliance with this AUP. Just X-Cart 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.

Just X-Cart 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.

Part C: Terms of Service

The following terms and conditions (these "Terms") govern the provision by Flying Haggis Propriety Limited trading as Just X-Cart. ("Company") of the services and/or products (referred collectively herein as "Services and Products") described on the Server Order Form, the Service Level Agreement and Service Exhibit attached hereto (collectively the "Service Descriptions”) and defined in any of the Company’s 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 writing confirmation to commence hosting, Customer hereby agrees to the following:

The term of this agreement, and the provision by the Company of the services hereunder, is on a periodic basis and renewable on the anniversary of such period unless cancelled earlier by pursuant to the express terms of this agreement.
Customer agrees to pay for all services in advance of each payment term on the billing date specified in the invoice it receives from the Company.
Clients on monthly payment plans are required to set up an automatic payment facility to arrive in our account on or before the due date each month
Customer agrees to be bound by the service term selected on the online order form or via applicable promotional codes.
All set-up fees and monthly service fees are non-refundable. Customer shall not be entitled to any refunds, pro-rated or otherwise in the event of early termination of this agreement by Company according to the terms herein.
Server rental charges will be incurred immediately at signup and are prorated by 3 days to allow for hosting account provisioning and delivery.
Non-Payment of services shall result in suspension or disconnection. All payment failures must be cured within 5 days of notice. Customers failing to secure payment within 5 days of notice will incur service interruption and $50 reconnection fee.
Customer must submit service cancellations in writing at least 3 days before the due date of their next billing cycle.
Company is not responsible for data integrity on equipment reclaimed for non-payment.
Customer agrees to adhere to the Company's Acceptable Use Policy, as amended from time to time by the Company.
Customer agrees to adhere to the Company Data Center Rules and Procedures.
Company reserves the right to terminate service immediately to any subscriber it deems, in its sole discretion, violates any condition of service including the Acceptable Use Policy, Data Center Rules and Procedures, and Terms of Services.

Additionally, in consideration for hosting services to be delivered, Customer agrees to be bound to the following terms:

Indemnification

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 judgments (collectively, "Losses") to which an Indemnified Party may become subject and which Losses arise out of, or relate to this Agreement or Customer’s 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.

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 COMPANY’S 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.

Governing Law
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.

Miscellaneous
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.

Client Acceptance

It is expected that upon confirming in writing your desire to host your X-Cart site with Just X-Cart, you are also confirming that you have read, understood and accept all conditions outlined above. Confirmation from client in writing via email is sufficient to authorise hosting commencement and as such it is expected, even if hosting disclaimer document is not signed by the client, that they have read, understood, accepted and agree to comply to all contained herein.

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