Terms of Service Agreement and Acceptable Usage Policy

The following is the entire Terms of Service ("TOS") Agreement and Acceptable Usage Policy ("AUP") between Rack Servers Pty Ltd, ABN: 16 143 877 356 ("RACK SERVERS/WE/US/OUR") and the personal or corporate account holder ("YOU/YOUR/CUSTOMER"). Rack Servers provides web hosting, virtual private servers ("VPS"), domain names, SSL certificates, website design and development. Rack Servers has certain legal and ethical responsibilities consisting with the use of its servers and equipment involved in these services. Rack Servers general policy is to act as a provider of Internet presence. Rack Servers reserves the right to suspend or cancel a customer's access to any or all services provided by Rack Servers when we decide that the account has been inappropriately used.



SERVER ABUSE

Any attempt to undermine or cause harm to a server or customer of Rack Servers is strictly prohibited. Rack Servers will strongly react to any use or attempted use of an Internet account or computer without the owner's authorisation. Such attempts include "social engineering" (tricking other people into releasing their passwords), password theft, security hole scanning, phishing, etc. Any unauthorised use of accounts or computers by you, whether or not the attacked account or computer belongs to Rack Servers, will result in action against you. Possible actions include warnings, account suspension or cancellation, as well as civil or criminal legal action, depending on the seriousness of the attack. IMPORTANT NOTE - Rack Servers 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. You may not run IRC, bots or clients on shared servers. Unacceptable uses also include, but are NOT limited to: unsolicited emailing ("spamming"), newsgroup spamming, refused classification ("RC") pornographic content, illegal content, copyright infringement, trademark infringement, warez sites (including links to/from), cracks, software serial numbers, proxy-relaying, link farming (the act of or by use of scripts), link grinding, link-only sites, spamdexing, FFA (Free-For-All) and/or anything else determined by Rack Servers to be unacceptable use of our services including abuse of server resources.

WEB APPLICATIONS and WEB ACCESSIBLE SCRIPTS - All web applications that are out-of-date and actively being exploited will be shut down immediately without prior notice. You are responsible for and should evaluate your web-based applications and scripts on a regular basis to ensure their security and orderliness.

Shared hosting accounts may also be terminated if it includes the following content or have links to the following content: 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; promoting physical harm or injury against any group or individual; 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.



STORAGE SPACE ABUSE

Rack Servers will not tolerate any form of storage space abuse on shared hosting accounts. At least 80% of your web pages (HTML, PHP, ASP, etc) must be 'linked' with files (GIF, JPG, etc.) stored on our servers. Websites that are found to contain no web pages or a large number of unlinked files are subject to file deletion or account cancellation at the discretion of Rack Servers Management ("MANAGEMENT"), with or without prior notice. Rack Servers will be the sole arbiter as to what constitutes a violation of this provision.



UNSOLICITED EMAIL AND SPAMMING

Unsolicited commercial advertisements ("SPAM") are not allowed in e-mail, and will likely result in account cancellation. Rack Servers takes a zero-tolerance approach to SPAM originating from its servers or for spam advertising of domains hosted within our network. If found, we will charge you up to $25.00 per unsolicited email message sent and delete your account without any prior notice. The following activities are not allowed: SPAM, which includes, but is not limited to, bulk mailing of commercial advertising, informational announcements, charity requests, petitions for signatures, and political or religious tracts (such messages may only be sent to those who have explicitly requested it from your domain); Forging, altering or removing electronic mail headers - any domain sending stealth spam will be terminated without warning and without refund. Sending numerous copies of the same or substantially similar message with the intent to disrupt a server or account ("mail bombing"); Spamming Newsgroups: Commercial advertisements are unwelcome in most Usenet discussion groups and on most e-mail mailing lists. Inappropriate posting may result in account cancelation. See the newsgroup or mailing list's charter for whether advertising is allowed or not. Sending a message to many different off-topic newsgroups, is particularly unethical and will be treated as such; Mail may not be used to harass or intimidate others. Harassment, whether through language, frequency of messages, or size of messages, is prohibited. Sending a single unwelcome message may be considered harassment. If a recipient asks to stop receiving e-mail, you must not send that person any further messages. NOTE - If you use the services of another provider to promote a website hosted by or through Rack Servers ("spamvertising"), then the provisions of the above policy shall apply as if the SPAM were sent through our servers.



99.9% UPTIME GUARANTEE

  1. COVERAGE - This 99.9% uptime guarantee applies to any Customer in good financial standing with Rack Servers at the time of a service outage.

  2. SERVICE LEVEL AGREEMENT ("SLA") & SPECIFICATIONS - Rack Servers endeavours to have the content of your website available for http access by any party in the world 99.9% of the time. Network downtime ("unavailability") is defined as 100% packet loss from Rack Servers to its backbone providers. Downtime is measured past 10 minutes after notification of network failure via Rack Servers online ticketing system. If the ticketing system itself is unreachable, the ticket must be started by calling Rack Servers on 1300 975 334. Rack Servers administrators will determine the end of the downtime by a trace route to your machine from outside the Rack Servers network.

  3. SHARED HOSTING CREDITS - In the event that your website is unavailable for less than 100%, Rack Servers will credit the following month's service fee as follows. Your credit shall be retroactive and measured in 24 hours a day of a calendar month, with the maximum credit not exceeding 50% of the monthly service charge for the affected month. Monthly Uptime Credit:

    • 95% to 99.9% - your account will be credited 10% of your monthly hosting fee
    • 90% to 94.9% - your account will be credited 20% of your monthly hosting fee
    • 89.9% or below - your account will be credited 50% of your monthly hosting fee

  4. VIRTUAL PRIVATE SERVERS - For all VPS Customers, if the uptime is between 98.9% and 99.9% for any particular month, credit shall be retroactive and equivalent to the difference between the guaranteed level of availability of the Customer's services during the month and the calculated actual level of availability of the Customer's services, multiplied by the actual charges incurred by you for the services during that monthly period. In addition, for Gold Managed VPS Customers, you may be entitled to additional credits as calculated below measured 24-hours a day in a calendar month, with the maximum credit not to exceeding 25% of the monthly service charge for the affected month. In order for you to receive a credit on your account, you must request such credit within seven (7) days after you experienced the downtime. You must request credit by sending an e-mail message to . For security, the body of this message must contain your name, the dates and times of the unavailability of your website, and such other customer identification requested by Rack Servers. Credits will usually be applied within sixty (60) days of your credit request. Credit to your account shall be your sole and exclusive remedy in the event of an outage.

  5. RESTRICTIONS - Credit shall not be provided to you in the event that you have any outage resulting from:

    • Scheduled maintenance as posted from time to time on our announcements section at Rack Servers.
    • Your behaviour or the performance or failure of your equipment, facilities or applications,
    • Circumstances beyond Rack Servers reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labour disturbance, interruption of or delay in transportation, unavailability of interruption or delay in telecommunications or third party services, including DNS propagation, domain name registration/transfer, failure of third party software or hardware or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of your web site,
    • You breaking any agreement policy in Rack Servers "Terms & Conditions and AUP" causing a machine to fail as a result.


TECHNICAL SUPPORT BOUNDARIES

Rack Servers provides technical support for you that encompasses within our area of expertise only. Such expertise includes assistance, troubleshooting, and debugging of our cPanel and Parallels Plesk control panel interfaces, servers within our immediate responsibility, software which we have provided, websites we have designed and built and any other hosting related issues. However, while we will help you where we can, under no circumstances is Rack Servers neither obligated to help you in the installations of new application modules, templates and/or programming languages, nor in providing assistance for any errors produced by any applications that have been modified by you previously. We will only provide assistance in making sure any Installatron applications that are installed through the cPanel and/or Parallels Plesk control panel interface are installed as directed.



CGI SCRIPTS

Each shared web hosting account comes with its own CGI-BIN. You are free to use any CGI scripts you wish, however we reserve the right to disable any CGI script that effects normal shared server operation without prior notice (this section does not apply to virtual private servers).



CHAT ROOMS

We do not allow you to install your own chat rooms within a shared hosting account, without approving it first with Rack Servers. This includes, but not limited to, chat applications written in PHP, Perl, CGI, Python, Ruby, etc. Any web application that provides 'real-time' chat is also not permitted. Most chat rooms tend to be large system hogs and we cannot allow it as an account option. However, web based forums such as vBulletin, phpBB or similar forum scripts are acceptable.



SMTP MAIL SERVER ABUSE

We do not allow you to send outbound mail to more than 100 recipients at any one given time and/or more than 1,000 pieces of e-mail per day from a shared hosting account without prior approval from Rack Servers with a maximum file size of 20MB per email message. If you violate Rack Servers policies persistently in email activities, your account will be suspended and deleted.



BACKGROUND RUNNING PROGRAMS

We may allow programs to run continually in the background only after consultation with us. 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 (this section does not apply to virtual private servers). You are allowed to run cron jobs but at a maximum of once every 10 minutes. Please contact our technical support department at if you require background programs to run more frequently.



IRC

We currently do not allow IRC or IRC bots to be operated on our servers. IRC servers are not permitted on our network. The installation and/or execution of a script and/or binary that runs in the background or listens to any given port are also strictly prohibited. You can however, install IRC clients on our virtual private servers.



AFFILIATES / PARTNER PROGRAM

We currently do not allow you to be an affiliate of yourself and you can not be an affiliate for any special deals which are not advertised on our site. This means you can be an affiliate for clients who purchase using promotions we have on our site, however you can not be an affiliate for clients who choose to purchase using promotions we have running on other sites (i.e., Oz Bargain). All affiliate payments will be made to your account with us as credit only, we do not provide a cash payment.



SUPPORT FOR SPECIAL DEALS

Support for special deals posted by Rack Servers on sites such as Oz Bargain will be by the ticket system or by online chat only. We do not provide phone support on these deals. If you require phone support on those deals, you can purchase it at $4.95 per month in addition to the hosting cost. This excludes deals that we post on our own site as we provide full support for those.



EXTRA BANDWIDTH

If you go over your allocated bandwidth for the billing month you will be charged $3.30 / GB for shared hosting clients and $2.20 / GB for VPS clients.



GAME SERVERS

Due to increased risk of DDoS attacks, we do not allow game servers to be hosted on our network. If you are found to be hosting a game server, forum or website related to game servers, we will terminate your account without refund.



PAYMENT POLICIES

With the exception of website design, all accounts are set up on a pre-pay basis. All pricing is guaranteed for the term of pre-payment. Rack Servers reserves the right to change prices at any time, unless other terms have been agreed upon. Any account not brought current within a week (7 days) of e-mail notice or exceeding this time frame in any way is subject to suspension. You are responsible for all fees owed on the account from the time it was established to the time that you notify Rack Servers to request for termination of services. All payment is in Australian Dollars and all prices include Goods and Services Tax (GST). Rack Servers will bill each client $50.00 per bounced cheque and per credit card chargeback received. All Rack Servers accounts are setup on anniversary billing cycles. Your particular billing cycle corresponds to the contract length that was initially chosen at setup. Your account will automatically renew at this length. There is no fee to change to a shorter or longer billing cycle at the end of the current cycle. However, if you wish to change to a shorter billing cycle during a current cycle, there will be a $50.00 fee. Please contact the billing department at should you wish to change your anniversary billing cycle.



CANCELLATION OF SERVICE

Rack Servers reserves the right to cancel a service at any time. All fees paid in advance of cancellation will be pro-rated and paid by Rack Servers if we institute our right of cancellation prior to the end of your billing period. If, after you are notified that we are cancelling your account, you decide to leave before the end of your billing period, we will NOT provide any refunds. Any violation of policies which results in extra costs will be billed to you (i.e. transfer, space etc.). All of Rack Servers PLANS are backed by a 30-day money back guarantee. If you are not completely satisfied with our services or support within the first 30 days of your contract, you will be given a full refund of the contract amount excluding any setup fees, domain registration fees, SSL certificate fees, add-on/upgrade fees and overages. If you cancel, the full contract amount less any fees and overages will be refunded if Rack Servers is notified within the first 30 days following activation. We DO NOT provide refunds for any services beyond the first 30-day money back guarantee. This policy does not apply to any additional services such as overages, referrer logs, real audio/video, additional disk space, additional pop accounts, domain registration fees, etc. For security reasons, all account cancellations must be done via our cancellation form in your Rack Servers account client area. Phone or email requests will not constitute acceptance of any cancellation.



PROMOTIONAL RATES AND SPECIAL OFFERS

Rack Servers may offer subsequent promotional rates or special offers, the terms of which may or may not be more favourable than the terms and conditions for your services. Any such promotions or modifications shall not affect your obligations under this Agreement. Promotional fees may be subject to additional terms and conditions which, to the extent they conflict with the terms of this Agreement, shall govern. Unless specifically stated, different promotional fees and special offers may not be combined together.



INTELLECTUAL PROPERTY RIGHTS

Material accessible to you through Rack Servers services may be subject to protection under Australian or other copyright laws, or laws protecting trademarks, trade secrets and proprietary information. Except when expressly permitted by the owner of such rights, you must not use Rack Servers or its servers and network in a manner that would infringe, violate, dilute or misappropriate any such rights, with respect to any material that you access or receive through the Rack Servers network. If you use a domain name in connection with Rack Servers or similar service, you must not use that domain name in violation of any trademark, service mark, or similar rights of any third party.



NETWORK SECURITY

Customers may not use the Rack Servers 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 you, logging into a server or account you are not expressly authorised to access, password cracking, probing the security of other networks in search of weakness, or violation of any other organisation's security policy. You may not attempt to interfere or deny service to any user, host, or network. This includes, but is not limited to, flooding, mail bombing, denial of service (DOS) attacks, distributed DOS (DDOS) attacks, or other deliberate attempts to overload or crash a host or network. Rack Servers will cooperate fully with investigations for 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.



ELECTRONIC COMMERCE

You will be solely responsible for the development, operation and maintenance of your online store and products along with all content and materials appearing online or on your products, including without limitation:


  1. The accuracy and appropriateness of content and materials appearing within the store or related to your products,
  2. 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
  3. Ensuring that the content and materials appearing within the store or related to your products are not libellous 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 enquiries 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 website. You will keep all such information confidential and will use the same degree of care and security as you use with your confidential information.



STATIC AND DYNAMIC CONTENT CACHING

You expressly


  1. Grant to Rack Servers a licence to cache the entirety of your website, including content supplied by third parties, hosted by Rack Servers under this Agreement and
  2. Agree that such caching is not an infringement of any of your intellectual property rights or any third party's intellectual property rights.

IP ADDRESS OWNERSHIP

Rack Servers shall maintain and control ownership of all IP numbers and addresses that may be assigned to you by Rack Servers. Rack Servers reserves, in its sole discretion, the right to change or remove any and all such IP numbers and addresses.



DOMAIN NAME REGISTRATION

You agree to pay Rack Servers prior to the effectiveness of the desired domain name registration, the then-current amount set forth in the Rack Servers price schedule for the initial registration of the domain name and, should you choose to renew the registration, subsequent renewals of the registration. All fees are non-refundable, in whole or in part, even if your domain name registration is suspended, cancelled or transferred prior to the end of your then current registration term. Rack Servers reserves the right to change fees, surcharges, renewal fees or to institute new fees at any time, for any reason, at its sole discretion. Your requested domain name will not be registered unless and until we receive actual payment of the registration fee, and have verified any information as indicated in your registration application. In the event of a chargeback by a credit card company (or similar action by another payment provider allowed by Rack Servers) in connection with the payments of the registration fee for your domain name registration, you agree and acknowledge that the domain name registration shall be transferred to Rack Servers 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. Rack Servers will reinstate your domain name registration solely at Rack Servers discretion, and subject to our receipt of the initial registration or renewal fee and our then-current reinstatement fee. For domain transfers to Rack Servers you agree to pay Rack Servers prior to the effectiveness of the desired domain name transfer request, the then-current amount set forth in the Rack Servers price schedule for the initial transfer request of the domain name. You agree and acknowledge that the domain name transfer will fail, and all fees are non-refundable, for the following reasons, but not limited to:


  • No response from the Registered Name Holder or Administrative Contact
  • Domain name in Registrar Lock Status
  • For non .au domains, domain name registration period time expires or other constraints, other than during the first 60 days of initial registration or during the first 60 days after a registrar transfer Rack Servers reserves the right to change fees, surcharges, renewal fees or to institute new fees at any time, for any reason, at its sole discretion.

SSL CERTIFICATES

You agree to pay Rack Servers prior to the effectiveness of the desired SSL Certificate registration, the then-current amount set forth in the Rack Servers price schedule for the initial registration of the SSL Certificate and, should you choose to renew the registration, subsequent renewals of the registration. All fees are non-refundable, in whole or in part, even if your domain name registration/website is suspended, cancelled or transferred prior to the end of your then current registration term. Rack Servers reserves the right to change fees, surcharges, renewal fees or to institute new fees at any time, for any reason, at its sole discretion. Your requested SSL Certificate will not be registered unless and until we receive actual payment of the registration fee. Some SSL Certificates require certain information to be provided to the Certification Authority prior to the certificate being issued. It is your responsibility to provide this information either by phone, fax or email. You agree not to chargeback a credit card (or revoke payment of any kind) if your SSL certificate has not been issued due to you not providing information or replying to emails or any other reason where Rack Servers has not been involved.



LAWFUL PURPOSE

Rack Servers reserves the right to refuse service to anyone. You may only use Rack Servers server for lawful purposes and our services may not be used for illegal purposes or in support of illegal activities. We reserve the right to cooperate with legal authorities and/or injured third parties in the investigation of any suspected crime or civil wrongdoing. If anything is not legal in Australia, it is not permitted to reside on our servers. Transmission, distribution or storage of any material in violation of any applicable law or regulation is prohibited. This includes but not limiting material protected by copyright, trademark, trade secret or other intellectual property right used without proper authorisation, and material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws. Examples of non-acceptable content or links: "Pirated Warez", "Hacker programs or archives", "Copyrighted Digital Movie Copies (DIVX)" and "Unlicenced MP3s". The designation of any materials as such described above is left entirely to the discretion of Rack Servers management.

If illegal content or usage is found, the account will be suspended and/or terminated. You agree that Rack Servers may disclose any and all your information including assigned IP numbers, account history, account use, etc. to any law enforcement agent who makes a written request without further consent or notification. Regardless of the place of signing this agreement, you agree that for purposes of venue this contract is entered in Brisbane, Queensland, and any dispute will be litigated or arbitrated in Brisbane, Queensland. Defendants further waive all objections to venue and acknowledge that venue in any such litigation will be held in Brisbane courts. IN NO EVENT SHALL RACK SERVERS MAXIMUM LIABILITY EXCEED FIVE HUNDRED ($500.00) DOLLARS.



INDEMNIFICATION

YOU AGREE THAT IT SHALL DEFEND, INDEMNIFY, SAVE AND HOLD RACK SERVERS HARMLESS FROM ANY AND ALL DEMANDS, LIABILITIES, LOSSES, COSTS AND CLAIMS, INCLUDING REASONABLE LAWYERS FEES ASSERTED AGAINST RACK SERVERS, ITS AGENTS, ITS CUSTOMERS, OFFICERS AND EMPLOYEES, THAT MAY ARISE OR RESULT FROM ANY SERVICE PROVIDED OR PERFORMED OR AGREED TO BE PERFORMED OR ANY PRODUCT SOLD BY YOU, YOUR AGENTS, EMPLOYEES OR ASSIGNS. YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS RACK SERVERS AGAINST LIABILITIES ARISING OUT OF:


  1. ANY INJURY TO PERSON OR PROPERTY CAUSED BY ANY PRODUCTS SOLD OR OTHERWISE DISTRIBUTED IN CONNECTION WITH OUR SERVERS.
  2. ANY MATERIAL SUPPLIED BY THE CUSTOMER INFRINGING OR ALLEGEDLY INFRINGING ON THE PROPRIETARY RIGHTS OF A THIRD PARTY,
  3. COPYRIGHT INFRINGEMENT AND
  4. ANY DEFECTIVE PRODUCTS SOLD TO CUSTOMER FROM OUR SERVERS.

DISCLAIMER

RACK SERVERS WILL NOT BE RESPONSIBLE FOR ANY DAMAGES YOUR BUSINESS MAY SUFFER. RACK SERVERS MAKES NO WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED FOR SERVICES WE PROVIDE. RACK SERVERS DISCLAIMS ANY WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THIS INCLUDES LOSS OF DATA RESULTING FROM DELAYS, NON-DELIVERIES, WRONG DELIVERY, AND ANY AND ALL SERVICE INTERRUPTIONS CAUSED BY RACK SERVERS AND ITS EMPLOYEES. RACK SERVERS RESERVES THE RIGHT TO REVISE ITS POLICIES AT ANY TIME. ALL SUB-NETWORKS, RESELLERS AND VIRTUAL PRIVATE SERVERS OF RACK SERVERS MUST ADHERE TO THE ABOVE POLICIES. FAILURE TO FOLLOW ANY TERM OR CONDITION WILL BE GROUNDS FOR IMMEDIATE ACCOUNT CANCELLATION.