Terms

Contents

Eightball Media refers to Incontext Solutions Pty Ltd T/A Eightball Media ABN 23 125 456 724.

1. Agreement

This Agreement (the “Agreement”) is between Eightball Media Pty Ltd (“Eightball Media”, “we”, “our”, or “us”), a corporation incorporated in Queensland, Australia, and you, the client (“Client” or “you”) of the services provided by Eightball Media. By using the services provided by Eightball Media, you agree to the following terms and conditions.

2. Payment Terms

All fees are due upon receipt of the invoice. In the event that payment is not received by the due date, Eightball Media reserves the right to suspend or cancel services.

Service Fees – Client agrees to pay Eightball Media the fees associated with the Services outlined in the signed Proposal, Agreement, or Scope of Work. Unless otherwise agreed, all invoices will be billed monthly.
Late Payments – A late fee of 1.5% per month will be added to any outstanding invoices not paid within 15 days of the due date.
Termination Fees – In the event of cancellation, the Client will remain responsible for all fees due to Eightball Media until the cancellation date.

3. Terms, Termination & Reinstatement

Terms & Termination

Term of Agreement – Subject to the terms and conditions hereof, this Agreement shall be effective on the date you register for the Services and shall continue on a month-to-month basis unless otherwise specified by separate agreement (the “Term”) unless terminated earlier pursuant to the provisions of this Section.
Termination by Client – Client may terminate this Agreement at any time by providing written notice to Eightball Media. All cancellation requests from the Client must be received by the 25th of the respective month of cancellation.
Termination by Eightball Media – Eightball Media may terminate this Agreement at any time, with or without cause, and may refuse service to anyone.

Suspension

If Eightball Media suspends any type of account for non-payment, Client shall be allowed to reinstate Client’s use of the Services within Five (5) business days of suspension upon approval from Eightball Media and the receipt of full payment of balances due.

Termination

Written notice to terminate a hosting account should be sent to [email protected] at least 7 days prior to the next billing cycle. If a Client terminates their account, Eightball Media will disable and remove the account(s). This usually happens within 2 days of when the client specifies the cancellation to take place, and all archives of the client’s website(s) and files will be removed. Should the client be in arrears for 30 days or more, as per section 2, the client’s site(s) may be terminated without further notice, and Eightball Media may not maintain or provide an archival copy of the Clients Web site(s) or files of any type. It is the sole responsibility of the Client to backup and copy any data off the server prior to the date provided in their cancellation notice or termination date.

4. Disclaimer of Warranty

The services, including without limitation, all products and services displayed or offered in this agreement are provided to the client on an ‘as is’ basis and without warranty of any kind. Eightball Media disclaims all warranties, express or implied, with respect to each of the foregoing, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement, or arising from a course of dealing. Without limiting the generality of the foregoing, Eightball Media specifically disclaims any warranty that:

the services will be uninterrupted or error-free
defects will be corrected as soon as possible
there are no viruses or other harmful components
the security methods employed will be sufficient

5. Limitation of Liability

In no event shall Eightball Media be liable for damages resulting from loss of data, profits, use of any Eightball Media products or services, or for any incidental, indirect, punitive, or consequential damages in connection with this agreement or in connection with any products or services provided hereunder. In no event shall Eightball Media’s cumulative liability exceed an amount greater than one hundred dollars ($100.00).

6. Agreement

If any of the provisions, or portions thereof, of this Agreement are found to be invalid under any applicable statute or rule of law, then, that provision notwithstanding, this Agreement shall remain in full force and effect and such provision or portion thereof shall be deemed omitted. This Agreement (including the Exhibits, attachments and/or addenda, if any,) represents the entire agreement of the parties with respect of the subject matter hereof and supersedes all prior and/or contemporaneous agreements or understandings, written or oral between the parties with respect to the subject matter hereof.

This Agreement and the rights granted and obligations undertaken hereunder may not be transferred, assigned or delegated in any manner by Client, but may be so transferred, assigned or delegated by Eightball Media. Any waiver or any provision of this Agreement, or a delay by any party in the enforcement of any right hereunder, shall neither be construed as a continuing waiver nor create an expectation of non-enforcement of that or any other provision or right. In any legal proceeding between the parties under this Agreement, the prevailing party shall be entitled to recover its costs, expenses and reasonable attorneys’ fees.

This Agreement is made under and shall be governed by the laws of Australia, except with regard to its conflict of law rules. This Agreement and Eightball Media’s policies are subject to change by Eightball Media without notice. Continued usage of the Services after a change to this Agreement by Eightball Media or after a new policy is implemented and posted on the Eightball Media Site constitutes your acceptance of such change or policy. We encourage you to regularly check the Eightball Media Site for any changes or additions.

Website Hosting Terms & Conditions

This Services Agreement (the “Agreement”) contains the complete terms and conditions which govern your subscription of Web hosting services provided by Eightball Media (the “Services”). In this Agreement, “Client”, “you”, or “your” means you. By signing this agreement, you acknowledge that you have read the Agreement, and you agree to its terms and conditions. As referred to in this Agreement, “Site” refers to a World Wide Web site and “Eightball Media Site” refers to the Site located at the URL http://www.8bm.com.au, or any other successor Sites owned or maintained by Eightball Media.

1. Appropriate Use of The Service

Eightball Media provides the Services exclusively and makes no effort to edit, control, monitor or restrict the content of data other than as necessary to provide such Services.

Client Content – Client agrees that it will not distribute, electronically transmit or display any materials supplied by Client – or through Client by a third party – to any

Eightball Media server in connection with Client’s use of the Services which:
violate any state, federal or foreign laws or regulations
infringe on any intellectual property rights (e.g. copyright, trademark, patent or other proprietary rights) of Eightball Media or any third-party
are defamatory, slanderous or trade libellous, threatening or harassing content of any type
proxy server software (any type) used to hide users IP or cache content
are discriminatory based on gender, race, age or promotes hate
contain viruses or other computer programming defects which result in damage to Eightball Media, its servers or any third-party

Disk Space/Data Transfer -The Client may occupy only the amount of disk space on the Eightball Media Server and utilise no more than the network data transfer that is allocated by Eightball Media. Additional fees will be charged for exceeding the disk space and/or network bandwidth allowance of your selected plan.

Spam Policy – Client shall not use our Services for chain letters, junk mail, spamming, bulk mailing (more than 100 recipients) or any use of distribution or mailing lists to any person who has not given specific permission to be included in such a process. Client also shall not engage in any unsolicited email practices that mention or reference any domain hosted on Eightball Media servers or parked on Eightball Media DNS servers.

Server Loads – Client agrees that any hosting account that uses excessive CPU or Memory resources (25% or more) for a sustained period of time (ten minutes or more) may be suspended at any time without notice. Eightball Media reserves the right to terminate sites that are repeatedly using excessive resources at any time with prior notification. Eightball Media will provide the offer to upgrade the site to a larger hosting plan on Eightball Media services.

Back-Up Files and Processing – Eightball Media takes steps to safeguard the Eightball Media Servers and the data contained therein, however, Eightball Media will not be responsible for any loss of Client data stored or intended to be stored on the Eightball Media Servers and/or back-up devices. The Client will not be entitled to any form of compensation from Eightball Media in the event of data loss. You as the client are responsible for your own backups. Whilst Eightball Media actively performs a variety of backups, there may be times when the backups fail or become unavailable. As such the final responsibility for all your data stored on Eightball Media Servers is ultimately your own. By acknowledging and signing this agreement you free Eightball Media from any legal action in the event of data loss and you agree that you will not be entitled to any form of compensation for said loss.

Software Updates – The client agrees that applications and scripts running on the server are the responsibility of the client and must be kept reasonably up-to-date.

Failure to do so may expose our servers to possible exploits.

2. Payment Obligations

Service Fees – Eightball Media shall either (i) debit the Client’s credit card (when such information is provided by the Client), or (ii) produce an invoice which will be delivered to the Client by email with additional payment methods. The account will be automatically suspended if unpaid ten (10) days after the due date, and a notice will be issued advising of the suspension. If Client terminates this Agreement in accordance with Section 4 hereunder, Client shall be responsible for any outstanding fees owed to Eightball Media and agrees to pay any and all fees incurred by Client. Because the Services are provided on a monthly basis, unless a contract is in place, Client will be responsible for Service fees incurred each month regardless of when Client provides notice of termination. Unless the client terminates this Agreement in accordance with Section 4 hereunder, payments continue on a monthly basis. Thus, for example, if Client provides notice to terminate on the 15th of a particular month, Client will still owe fees for the entire month and such fees will not be pro-rated or refunded. If Client has retained the Services for one (1) year and has pre-paid Eightball Media for such Services, refunds will be issued for any unused full month portions less one month of the Services upon Client’s request. Therefore, if the Client’s account is cancelled at any point during the one (1) year term, the Client will be entitled to a refund for all but one of the full months remaining after notice is given by the 25th of the preceding month.

Late payments – Any payment not received within 10 business days after the due date may incur a late payment fee of $16.50. Customer also shall pay to Eightball Media all expenses incurred by Eightball Media in exercising any of its rights under this Agreement or applicable law with respect to a Payment Default or other breach by Customer, including, but not limited to, reasonable Solicitors fees and the fees of any collection agency retained by Eightball Media.

Refunds – Web hosting customers of Eightball Media are eligible for a 30 day full money back guarantee. Should the customer choose to take advantage of the 30 day money back guarantee, all monies the customer paid for their hosting services will be refunded to them. If the customer has paid their fees via money order or cheque, a cheque will be issued and sent to the customer’s address on file. Note: this policy does not apply to domain names or SSL certificates.

Termination – Written notice to terminate a hosting account should be sent to [email protected] at least 7 days prior to the next billing cycle.

3. Client Liability and Indemnification

Liability – The parties agree that in no event shall Eightball Media be liable to any third party for Client’s breach or alleged breach of any of the terms and conditions set forth in this Agreement. Client agrees to defend, indemnify and hold harmless Eightball Media from any and all expenses, losses, liabilities, damages or third party claims resulting from Client’s breach or alleged breach of any Client obligations set forth hereunder.

4. Terms, Termination & Reinstatement

Terms & Termination – Subject to the terms and conditions hereof, this Agreement shall be effective on the date you register for the Services, and shall continue in effect on a month-to-month basis unless otherwise specified by a separate agreement (the “Term”) unless terminated earlier pursuant to the provisions of this Section 3. Either party will have the right to terminate this Agreement upon notice to the other party. All cancellation requests from Client must be received by the 25th of the respective month of cancellation. Sections 2 – 6 shall survive termination or expiration of this Agreement. Eightball Media reserves the right to refuse service to anyone. Eightball Media, in its sole discretion, may immediately terminate this Agreement.

Suspension – If Eightball Media suspends any type of account for non-payment, Client shall be allowed to re-instate Client’s use of the Services within Five (5) business days of suspension upon approval from Eightball Media and the receipt of full payment of balances due.

Termination – Written notice to terminate a hosting account should be sent to [email protected] at least 7 days prior to the next billing cycle. If a Client terminates their account, Eightball Media will disable and remove the account(s). This usually happens within 2 days of when the client specifies the cancellation to take place and all archives of the clients website(s) and files will be removed. Should the client be in arrears for 30 days or more, as per section 2, the clients site(s) may be terminated without further notice and Eightball Media may not maintain or provide an archival copy of the Clients Web site(s) or files of any type. It is the sole responsibility of the Client to backup and copy any data off the server prior to the date provided in their cancellation notice or termination date.

5. Disclaimer of Warranty

Warranty – The services, including without limitation, all products and services displayed or offered in this agreement are provided to client on an ‘as is’ basis and without warranty of any kind. Eightball Media disclaims all warranties, express or implied, with respect to each of the foregoing, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement or arising from a course of dealing. Without limiting the generality of the foregoing, Eightball Media specifically disclaims any warranty that:

the services will be uninterrupted or error-free
defects will be corrected as soon as possible
there are no viruses or other harmful components
the security methods employed will be sufficient

6. Limitation of Liability

Limitations of Liability – In no event shall Eightball Media be liable for damages resulting from loss of data, profits, use of any Eightball Media products or services, or for any incidental, indirect, punitive, or consequential damages in connection with this agreement or in connection with any products or services provided hereunder. In no event shall Eightball Media cumulative liability exceed an amount greater than one hundred dollars ($100.00).

7. Agreement

Agreement – If any of the provisions, or portions thereof, of this Agreement are found to be invalid under any applicable statute or rule of law, then, that provision notwithstanding, this Agreement shall remain in full force and effect and such provision or portion thereof shall be deemed omitted. This Agreement (including the Exhibits, attachments and/or addenda, if any,) represents the entire agreement of the parties with respect of the subject matter hereof and supersedes all prior and/ or contemporaneous agreements or understandings, written or oral between the parties with respect to the subject matter hereof.

This Agreement is made under and shall be governed by the laws of Australia, except with regard to it’s conflict of law rules. This Agreement and Eightball Media’s policies are subject to change by Eightball Media without notice. Continued usage of the Services after a change to this Agreement by Eightball Media or after a new policy is implemented and posted on the Eightball Media Site constitutes your acceptance of such change or policy. We encourage you to regularly check the Eightball Media Site for any changes or additions.