Terms Of Service

Livestate Activemedia - Terms of Service

Revision Date: 1st March 2010

Please read and ensure you understand these policies before your purchase

This Web Hosting Agreement (this "Agreement") is between Livestate Activemedia, and the person (individual or legal person) who signs Livestate Activemedia's service order and set up form (the "Order") incorporating this Agreement by reference ("Customer"). This Agreement governs Customer's use of Livestate Activemedia's Web hosting service.

1. Services

Subject to the terms of this Agreement, and contingent on Customer's satisfaction of Livestate Activemedia's credit approval requirements, Livestate Activemedia agrees to provide the web hosting services described in the Order for the fees stated in the Order.

2. Term

The initial service term of the Agreement shall begin on the date that Livestate Activemedia generates an e-mail message to Customer announcing the activation of the Customer's account (the "Service Commencement Date") and shall continue for the number of months stated in the Order (the "Initial Term"). Upon expiration of the Initial Term, this Agreement shall automatically renew for successive renewal terms of the same length as the Initial Term (each a "Renewal Term") unless Livestate Activemedia or Customer provides the other with written notice of non-renewal at least seven (7) days prior to the expiration of the Initial Term or then-current Renewal Term, as applicable. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the "Term."

3. Payments

Recurring Fees
Renewal notices are emailed seven(7) days before the actual renew date in your account. If your billing method is PayPal you will need to manually pay your invoice every month. Service will be made inactive on accounts that are not paid within five(5) consecutive days after the due date. An account means all hosting services provided to you. Livestate Activemedia reserves the right to revoke this grace period if a pattern of late payment is observed or if your payment method is listed as other.
Non-Recurring Fees
All customers exceeding their bandwidth allowance will be sent invoices due upon receipt each month. All customers are responsible for monitoring transfer or bandwidth usage each month. Bandwidth overages are charged at $1.00 per each GB used over the allowed limit of the package. Customers have the option before their billing cycle ends to upgrade increasing their disk space and bandwidth. Once your plan is upgraded you cannot request a downgrade of the same plan for at least one month.
Taxes
At Livestate Activemedia's request Customer shall remit to Livestate Activemedia all sales, GST or similar tax imposed on the provision of the service.
30 Day Money Back Guarantee
All new Livestate Activemedia Customers are eligible for a 30 day no hassle money back guarantee on all web hosting packages. A new customer is one who has never purchased a hosting package from Livestate Activemedia in the past. Also if a customer purchases a 2nd, 3rd, etc. hosting package and wishes to cancel this particular package they will not be eligible for a refund for these additional services. Please note: domain purchases and dedicated IP's are not eligible for a refund. If you exceed your bandwidth limit within the first 30 days of service you are not eligible for the 30 day money back guarantee.

4. Cancellation and Early Termination

Customer acknowledges that the amount of the fee for the service is based on Customer's agreement to pay the fee for the entire Initial Term, or Renewal Term, as applicable. In the event Livestate Activemedia terminates the Agreement for Customer's breach of the Agreement in accordance with Section 10 (Termination) the unpaid fees for each billing cycle remaining in the Initial Term or then-current Renewal Term, as applicable, are due on the business day following termination of the Agreement. Customer also acknowledges that a minimum of 7 days cancellation notice or downgrade of current package prior to the following renewal term must be given in writing to Livestate Activemedia or the Customer will be responsible for full payment of the following term. The cancellation request will be subject to the following guidelines:

Cancellation request must be submitted to either Sales Support or Hosting Support
Cancellation request must be submitted from the main email address on file with Livestate Activemedia
Cancellation request must contain the main domain of the hosting plan you wish to cancel

5. Law/AUP

Customer agrees to use the service in compliance with applicable law and Livestate Activemedia's Acceptable Use Policy (the "AUP"), which is hereby incorporated by reference in this Agreement. Customer agrees that Livestate Activemedia may, in its reasonable commercial judgment consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on Customer's use of the Services. Amendments to the AUP are effective on the earlier of Livestate Activemedia's notice to Customer that an amendment has been made, or the first day of any Renewal Term that begins subsequent to the amendment. Customer agrees to cooperate with Livestate Activemedia's reasonable investigation of any suspected violation of the AUP. In the event of a dispute between Livestate Activemedia and Customer regarding the interpretation of the AUP, Livestate Activemedia's commercially reasonable interpretation of the AUP shall govern.

6. Customer Information

Customer represents and warrants to Livestate Activemedia that the information he, she or it has provided and will provide to Livestate Activemedia for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to Livestate Activemedia that he or she is at least 18 years of age. Livestate Activemedia may rely on the instructions of the person listed as the Primary Customer Contact on the Order with regard to Customer's account until Customer has provided a written notice changing the Primary Customer Contract.

7. Indemnification

Customer agrees to indemnify and hold harmless Livestate Activemedia, Livestate Activemedia's affiliates, and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of Customer's services in violation of applicable law or the AUP by Customer or any person using Customer's log on information, regardless of whether such person has been authorized to use the services by Customer.

8. Disclaimer of Warranties

LIVESTATE ACTIVEMEDIA DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW LIVESTATE ACTIVEMEDIA DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN "AS IS" BASIS.

9. Limitation of Damages

NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES.

NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF LIVESTATE ACTIVEMEDIA AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR THREE MONTHS OF SERVICE.

10. Suspension/Termination

Suspension of Service
Customer agrees that Livestate Activemedia may suspend services to Customer without notice and without liability if: (i) Livestate Activemedia reasonably believes that the services are being used in violation of the AUP; (ii) Customer fails to cooperate with any reasonable investigation of any suspected violation of the AUP; (iii) Livestate Activemedia reasonably believes that the suspension of service is necessary to protect its network or its other customers, or (iv) as requested by a law enforcement or regulatory agency. Customer shall pay Livestate Activemedia's reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection.
Termination
The Agreement may be terminated by Customer prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability if Livestate Activemedia fails in a material way to provide the service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Customer's written notice describing the failure in reasonable detail. The Agreement may be terminated by Livestate Activemedia prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows: (i) upon five (5) days notice if Customer is overdue on the payment of any amount due under the Agreement; (ii) Customer materially violates any other provision of the Agreement, including the AUP, and fails to cure the violation within thirty (30) days of a written notice from Livestate Activemedia describing the violation in reasonable detail; (iii) upon one (1) days notice if Customer's Service is used in violation of a material term of the AUP more than once, or (iv) upon one (1) days notice if Customer violates Section 6 (Customer Information) of this Agreement. Either party may terminate this agreement upon five (5) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.

11. Resource Usage

Livestate Activemedia Customers may not initiate the following (below), if any customer does Livestate Activemedia may terminate the account with no refund. Depending on the situation there will/won't be warnings sent.

Use 25% or more of system CPU resources for longer than 90 seconds. There are numerous activities that could cause such problems; these include: CGI scripts, FTP, PHP, HTTP, etc.
Use of any kind of distributed computing software, including but not limited to SETI@home, Node Zero and Folding@home
Run any type of interactive real-time chat applications that require server resources. Remotely-hosted services are fully allowed
Run stand-alone, unattended server-side processes at any point in time on the server. This includes any and all daemons
Run any software that interfaces with an IRC (Internet Relay Chat) network.
Run any file sharing, bit torrent or other P2P network services, client or server software.
Run any gaming servers such as counter-strike, half-life, battlefield 1492, etc

12. Bandwidth Usage

You are allocated a monthly bandwidth allowance. This allowance varies depending on the hosting package you purchase. Should your account pass the allocated amount we reserve the right to suspend the account until the start of the next allocation, suspend the account until more bandwidth is purchased at an additional fee, suspend the account until you upgrade to a higher level of package, terminate the account and/or charge you an additional fee for the overages. Unused transfer in one month cannot be carried over to the next month. If you exceed your bandwidth limit within the first 30 days of service you are not eligible for the 30 day money back guarantee and you are responsible to pay for any overage.

13. Domains

Livestate Activemedia is not a domain registrar. We are a reseller of domain names and as such all Livestate Activemedia customers who purchase a domain or transfer a domain to us are bound by the terms and conditions set forth by our domain registrars. Domains purchased by or transferred to Livestate Activemedia will be monitored for expiration and you will receive notice from Livestate Activemedia once your domain is up for renewal. If you do not renew your domain by the expiration date you run the risk of loosing your domain.

14. Requests for Customer Information

Customer agrees that Livestate Activemedia may, without notice to Customer, (i) report to the appropriate authorities any conduct by Customer or any of Customer's customers or end users that Livestate Activemedia believes violates applicable law, and (ii) provide any information that it has about Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.

15. Back Up Copy

Customer agrees to maintain a current copy of all content hosted by Livestate Activemedia notwithstanding any agreement by Livestate Activemedia to provide backup services.

16. Request for Rebuild/Restore of Hosting Package

During any service term, customer may request up to two free rebuilds for a control panel change and one free rebuild/restore for any reason of choice. If a customer should need to request a rebuild/restore after this a maintenance onetime fee may be enforced.

17. Changes to Livestate Activemedia's Network

Upgrades and other changes in Livestate Activemedia's network, including, but not limited to changes in its software, hardware, and service providers, may affect the display or operation of Customer's hosted content and/or applications. Livestate Activemedia reserves the right to change its network in its commercially reasonable discretion, and Livestate Activemedia shall not be liable for any resulting harm to Customer. In all cases of changes to our network Customer's will be duly notified of the impending change.

18. Notices

Notices to Livestate Activemedia under the Agreement shall be given via electronic mail to the e-mail address posted to any of its support departments located at http://billing.livestate-activemedia.com. Notices to Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Order. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. Customer may change his, her or its notice address by a notice given in accordance with this Section.

19. Force Majeure

Livestate Activemedia shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond Livestate Activemedia's control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organised labour action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.

20. Governing Law/Disputes

The Agreement shall be governed by Australian Federal exclusive of its choice of law principles. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods.

21. Miscellaneous

Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trademarks, service marks, trade secrets, inventions, copyrights, and other intellectual property. Neither party may use the other party's name or trade mark without the other party's prior written consent. The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer/employee. Neither party will represent itself to be agent of the other. Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority. This Agreement may be amended only by a formal written agreement signed by both parties. The terms on Customer's purchase order or other business forms are not binding on Livestate Activemedia unless they are expressly incorporated into a formal written agreement signed by both parties. A party's failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party's rights with respect to that provision or any other provision of the Agreement. A party's waiver of any of its right under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not. The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties. The following provisions will survive expiration or termination of the Agreement: Fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement. There are no third party beneficiaries to the Agreement. Neither insurers nor the intended recipients of Customer's content are third party beneficiaries to the Agreement. Customer may not transfer the Agreement without Livestate Activemedia's prior written consent. Livestate Activemedia's approval for assignment is contingent on the assignee meeting Livestate Activemedia's credit approval criteria. Livestate Activemedia may assign the Agreement in whole or in part.

This Agreement together with the Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replace any prior understanding or communication, written or oral.