Terms of Service
This Terms of Service Agreent (this “Agreement”) is between CatsNine, a division of Roehr Pty. Ltd. which is a business formed under the laws of the State of New South Wales with its principal office at Lismore, NSW, Australia. CatsNine and the person (individual or legal person) whose signs CatsNine's service order and set up form (the “Order”) incorporating this Agreement by reference (“Customer”). This Agreement governs Customer’s use of CatsNine's Web hosting service.
Table of Contents
Services
Term
Payments
Law/AUP
Customer Information
Indemnification
Disclaimer of Warranties
Limitation of Damages
Suspension of Services/Termination
Request for Customer Information
Back Up Copy
Notices
Force Majeure
End-User Support
Promotion information
Miscellaneous
1. Services. Subject to the terms of this Agreement, and contingent on Customer’s satisfaction of CatsNine's credit approval requirements, CatsNine 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 CatsNine generates an e-mail message to Customer announcing the activation of the Customer’s account (the “Service Commencement Date”) and shall continue for the first partial month of service plus the number of full calendar months stated in the Order (the “Initial Term”). Upon expiration of the Initial Term, this Agreement shall automatically renew for unlimited renewal terms of having the same number of full calendar months as the Initial Term (each a “Renewal Term”) unless CatsNine or Customer provides the other with written notice of non-renewal at least ten (10) 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. Fees are payable in advance on the first day of each billing cycle. Customer’s billing cycle shall be a calendar month, three calendar months or six calendar months as indicated on the Order. The first service fee shall include a the fee for the first full billing cycle. CatsNine may require payment in full of the first fee before beginning service. If the Order provides for credit/debit card billing, Customer authorizes CatsNine to bill subsequent fees to the credit/debit card on or after the first day of each billing cycle during the Term of this Agreement; otherwise CatsNine will invoice Customer via electronic mail to the Primary Customer Contact listed on the Order. Invoiced fees may be issued on or before the 1st day of each billing cycle, and the fees shall be due on the 5th day following invoice date, but in no event earlier than the first day of each billing cycle.
Payments must be made in United States dollars. Customer is responsible for providing CatsNine with changes to billing information (such as credit card expiration, change in billing address) At its option, CatsNine may accrue charges to be made to a credit/debit card until such charges exceed $10.00. CatsNine may charge interest on overdue amounts at the lesser of 6.5% per month of the total amount due, or the maximum non-usurious rate under applicable law. Payments overdue by three (3) days will be suspended. Payments overdue by five (5) days will instantly attract a $5.00 surcharge, increasing by $0.25 per day after that, unless prior arrangements with CatsNine have been made. Customer is responsible for the management, including cancellation, of all automatic recurring payments. CatsNine may refund in part or whole any accidental payment. If Customer or payment processor informs CatsNine that Customer will be filing a chargeback or similar dispute with their payment processor, CatsNine may suspend all Customer's services and will only deal with payment processor until issue has been resolved. CatsNine may refuse to issue a refund to Customer if Customer files chargeback or similar dispute. Fees not disputed within fifteen (15) days of due date are conclusively deemed accurate. Customer agrees to pay CatsNine's reasonable reinstatement fee following a suspension of service for non-payment, and to pay CatsNine's reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs.
(b) Fee Increases. CatsNine may increase its fees for services effective the first day of a Renewal Term by giving notice to Customer of the new fees at least fifteen (15) days prior to the beginning of the Renewal Term, and if Customer does not give a notice of non-renewal as provided in Section 2 above, the Customer shall be deemed to have accepted the new fee for that Renewal Term and any subsequent Renewal Terms (unless the fees are increased in the same manner for a subsequent Renewal Term).
(c) Taxes. At CatsNine's request Customer shall remit to CatsNine all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on CatsNine), regardless of whether CatsNine fails to collect the tax at the time the related services are provided.
(d) 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 CatsNine terminates the Agreement for Customer’s breach of the Agreement in accordance with Section 9 (Termination), or Customer terminates the service other than in accordance with Section 9 (Termination) for CatsNine's breach, 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. In the event you request account cancellation, once your service cancellation has been received your account will be be terminated within twenty four (24) hours.
(e) Refunds. If you are unsatisifed with CatsNine's service within the first twenty-one (21) days, CatsNine shall issue a refund. No refunds will be issued if abuse of our stated policies forces CatsNine to suspend or terminate your services prematurely. No refunds will be issued for setup fees, domain names, or optional extras. If Customer requests a refund when they have received free additional services, they will be issued a partial refund, which is their full service fee minus any surcharges for the additional services (such as WHMCS, SSL Certificate, Dedicated IP Address). CatsNine reserves the right to refuse any refund without reason. Please make sure that you have a copy of all data on our servers before sending in a cancellation request, as your account will be removed within 24 hours. No refunds will be issued after the first twenty-one (21) days. Refunds may take up to 30 days to process. If Customer purchases plan which includes WHMCS Billing Software license at no additional cost, customer forfeits their right to a full refund. Customer will be refunded in accordance with above, minus a nine dollar and fifty cents ($9.50) surcharge for the WHMCS license. If the total amount to be refunded before WHMCS surchage is less than or equal to nine dollar and fifty cents ($9.50), customer will not receive any refund. If Customer requests CatsNine transfer Customer's websites from another provider, and customer cancels within first twenty-one (21) days, customer forfeits their right to a full refund. Customer will be refunded in accordance with above, minus a fifty (50) cent charge per account transferred. If account transfer charges exceed or meet refund amount, Customer will receive no refund.
4. Law/AUP. Customer agrees to use the service in compliance with applicable law and CatsNine's Acceptable Use Policy posted at http://www.CatsNine.com/aup.html. (the “AUP”), which is hereby incorporated by reference in this Agreement. Customer agrees that CatsNine 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 CatsNine'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 CatsNine's reasonable investigation of any suspected violation of the AUP. In the event of a dispute between CatsNine and Customer regarding the interpretation of the AUP, CatsNine's commercially reasonable interpretation of the AUP shall govern.
5. Customer Information. Customer represents and warrants to CatsNine that the information he, she or it has provided and will provide to CatsNine for purposes of establishing and maintaining the service is accurate. If Customer is an individual, Customer represents and warrants to CatsNine that he or she is at least 18 years of age. CatsNine 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.
6 Indemnification. Customer agrees to indemnify and hold harmlessCatsNine, CatsNine'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.
7. Disclaimer of Warranties.
CatsNine DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW CatsNine 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.
8. 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 CatsNineS 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 ONE MONTH OF SERVICE.
9. Suspension/Termination.
(a) Suspension of Service. Customer agrees that CatsNine may suspend services to Customer without notice and without liability if: (i) CatsNine 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) CatsNine 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 CatsNine's reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection.
(b) 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 CatsNine 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 CatsNine prior to the expiration of the Initial Term or any Renewal Term without further notice and without liability as follows: (i) upon ten (10) 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 CatsNine 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 5 (Customer Information) of this Agreement. Either party may terminate this agreement upon ten (10) 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.
10. Requests for Customer Information. Customer agrees that CatsNine 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 CatsNine 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.
11. Back Up Copy. Customer agrees to maintain a current copy of all content hosted by CatsNine. CatsNine is not responsible for any of Customer's data. Customer is responsible to backup their data and CatsNine does not accept any liability for any of Customer's data.
12. Changes to CatsNine's Network. Upgrades and other changes in CatsNine'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. CatsNine reserves the right to change its network in its commercially reasonable discretion, and CatsNine shall not be liable for any resulting harm to Customer.
13. Notices. Notices to CatsNine under the Agreement shall be given via electronic mail to the e-mail address posted for customer support. 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.
14. Force Majeure. CatsNine shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond CatsNine'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 organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
15. Governing Law/Disputes. The Agreement shall be governed by the laws of the State of New South Wales, exclusive of its choice of law principles, and the laws of Australia, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN NEW SOUTH WALES, AUSTRALIA, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.
16. End-User Support. Unless Customer has purchased an account with CatsNine where CatsNine explictily agrees in writing to provide technical support to Customer's clients, Customer will be responsible for providing all support to Customer's clients. If CatsNine has agreed to provide end-user technical support Customer's Clients, the following applies: CatsNine is only responsible for providing Customer's clients with TECHNICAL SUPPORT. Customer is always solely responsible for Customer's clients billing, customer service, sales and other general support. Customer agrees to not direct Customer's clients to CatsNine for any other support related requests besides technical support. This service is not automatically provisioned - it must be requested by Customer. The response time to technical support tickets under normal circumstances will be no more than one hour, however CatsNine makes no guarantee on the response time. If CatsNine deems Customer's use of End-User Support excessive CatsNine may stop providing the service or charge the customer no more than $2.50 per excess ticket. CatsNine may provide Customer with a hosted helpdesk solution. CatsNine makes no guarantee of the availability or anonymity of this service.
17. Promotion information. CatsNine makes no guarantee of the availability of promotions. Please contact CatsNine before ordering to ensure availability. Conditions of all promotions are listed below.
(a) Cat Ownership. Customer may receive a discount if Customer sends in a photograph of Customer's cat prior to ordering. CatsNine may refuse this offer at anytime without reason. If Customer is found to not own a cat and used a photograph which is not Customer's property, Customer's account will be terminated with no refund.
18. 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 CatsNine 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. If CatsNine provides Customer with a WHMCS license, Customer may only use this license on a website hosted on the CatsNine network. CatsNine makes no guarantee of the suitability of WHMCS for Customer, nor any guarantee of the functionality of WHMCS. CatsNine will, at Customer's request (if eligible), create a brandable helpdesk for Customer. CatsNine is not responsible for the upkeep of Customer's helpdesk, nor for any damage caused to it. If Customer, in CatsNine's opinion, abuses or uses this service in an inappropriate manner, CatsNine will immediately terminate Customer's account with no refund or guarantee of access to files. If Customer's payment is declined, cancelled, or reversed, CatsNine will suspend Customer's accounts and assume ownership of any additional services Customer has ordered, such as domains or SSL certificates. Customer's additional services will be released to Customer upon full payment of any outstanding invoices. Communication between Customer and CatsNine is completely confidential, and may not be disclosed to a third-party without written consent from both Customer and CatsNine. Disclosing confidential information is a breach of this agreement and may result in termination or suspension of Customer's account. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement. Customer may not transfer the Agreement without CatsNine's prior written consent. CatsNine's approval for assignment is contingent on the assignee meeting CatsNine's credit approval criteria. CatsNine may assign the Agreement in whole or in part. IP addresses will only be provided with justification, if a valid reason cannot be provided then CatsNine may refund in part or whole the dedicated IP address fee. All prices listed on this website are in USD and do not contain any taxes.
This Agreement together with the Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supercedes and replace any prior understanding or communication, written or oral. CatsNine reserves the right to change this agreement at any time without prior notice.
