Terms & Conditions

1. Agreement

   This agreement represents the complete agreement and understanding between Ultima Computer Systems (ABN: 28 566 590 804) and it’s Customer, and supersedes any other written or oral agreement. Please read the following terms and conditions carefully since they govern your use of Ultima Systems network and servers. By accessing this network and any of the equipment therein, you agree to be bound by the terms and conditions below.

2. Acceptable Use Policy (AUP)

   Ultima Systems services may be used only for lawful purposes. Transmission, distribution or storage of any material in violation of any International Agreement or Australian regulation is prohibited.

   1. Customer agrees not to allow Ultima Systems equipment and services to be used for activities specifically prohibited by the Acceptable Use Policy (AUP). It is the Customer's responsibility to review this agreement prior to executing this contract. The AUP may be updated from time to time and it is the Customer's responsibility to regularly check for updates at: URL: http://www.ultimahosts.net/tos.aspx . Customers must not allow Ultima Systems resources to be used for:
      • Any criminal or illegal activity
      • No phishing Websites
      • Unlicensed distribution of copyrighted materials
      • Material that is defamatory or threatening
      • Customer shall not engage in SPAM (distribution of unsolicited emails)
      • Hacking, network scanning
      • Child pornography, Animal Abuse
      • Virus distribution
      • Any Other Notified (in writing) Disallowed Service/s as specified by Ultima Systems
      Ultima Systems will be the sole arbiter as to what constitutes a violation of these content provisions. Content which is deemed not within the AUP will be removed without prior notice to the Subscriber, and may result in the Subscriber's account being suspended.
   2. Customer agrees to compensate Ultima Systems for any expenses Ultima Systems may incur resulting from Customer's violation of the posted AUP, including any fines, fees, legal expenses, and labor for investigation and resolution. The cost of any investigations will be charged to the Customer at $99 inc. GST per hour during normal business operating hours. Emergency investigations are charged at $199 inc. GST per hour with a one hour minimum.
   3. Customer is responsible for any activity conducted on their server, including unauthorized activity by hackers. This includes any AUP violations or bandwidth or transfer usage caused by hackers. Ultima Systems will endeavor to assist Customer but Ultima Systems is not responsible for protecting Customers from hackers and their actions and use of Customer's server/s.
   4. Ultima Systems does not issue refunds for terminated service due to suspected AUP violations.

3. Service Level Agreement (SLA)

   Ultima Systems is committed to provide a reliable, high quality network to support our customers worldwide. Delivering consistent access to your data and equipment is a high priority for us and is part of the reason we offer a SLA.

   1. Network & Power availability: Ultima Systems guarantees to maintain Internet and AC Power connectivity to the hosted equipment no less than 99.99% of the time in a given calendar month (4.32 minutes of unscheduled downtime per month), excluding scheduled maintenance. Ultima Systems will credit the customer 1/30th of the monthly fee for every hour the Network is down, not to exceed 50% of their base monthly fee.
   2. Hardware Guarantee: Ultima Systems guarantees the functioning of all managed and leased hardware components and will replace any failed component at no cost to the customer. Hardware replacement will begin immediately upon identification of the hardware failure and is guaranteed to be complete within 4 hours from the problem identification. Managed Hardware components are defined as processors, RAM, hard disk(s), NIC, switches, routers, firewalls, and other related hardware included under the ownership of Ultima Hosts.
   3. Exceptions: Customer will not receive any credits under this SLA in connection with any failure or deficiency of the Data Center LAN SLA caused by or associated with circumstances beyond Ultima Systems reasonable control, including, without limitation:
      • Acts of any governmental body, war, insurrection, sabotage, armed conflict, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, virus infection, virus attacks or hackers, failure of third party software (including, without limitation, e-commerce software, payment gateways, chat, statistics or free scripts) or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of this SLA;
      • Outages elsewhere on the Internet that prevent access to an account. This SLA applies only to those areas under the direct control of Ultima Systems, including links to the Internet and Ultima Systems routers. Degradation of service due to high packet loss or similar conditions, which may be indicative of the Internet as a whole;
      • Server hardware failure; (refer to hardware and/or web site SLA)
      • Failure of access circuits to the Ultima Systems Network, unless such failure is caused solely by Ultima Systems;
      • Scheduled maintenance and emergency maintenance and upgrades;
      • DNS (Domain Name Server) issues outside the direct control of Ultima Systems;
      • Issues with FTP, POP, IMAP, or SMTP customer access;
      • False outages reported as a result of any Ultima Systems measurement system problems or errors.
      • Customer's acts or omissions (or acts or omissions of others engaged or authorized by customer), including, without limitation, custom scripting or coding (e.g., CGI, Perl, HTML, ASP, etc.);
      • Any negligence, willful misconduct, or use of the Services in breach of Ultima Systems Terms and Conditions and Acceptable Use Policy by the Customer or other users.

4. Payment and Terms

   Customer shall pay the initial fees set forth by Ultima Systems, prior to the commencement of service. Thereafter, Customer's account shall be automatically renewed upon expiration and its credit card charged, or other payment received, in advance for the next service period on the day of expiration. Late fees may be applicable for deferred payments which exceed the Specified Due Date of Payment. In the event that Customer shall fail to pay for such services in advance of, for that service period, Ultima Systems is entitled to unilaterally terminate this agreement and discontinue the service provided to the Customer or the applicable account for which payment has not been received. Any service disconnection or suspension will incur a further $25 AUD reinstatement fee.

5. Refunds

   If a Refund is granted it will apply for complete months only, with the exception of plans including a 7-day money-back guarantee. Dedicated servers are not eligible for a 7-day money back guarantee. Notice of intent to cancel account must be given prior to the commencement of the month in question, and at least ten days prior to the billing date. Setup fees are non-refundable. In cases where the setup fee has been waived for a plan, cancellations will attract a non-refundable setup fee of $25 AUD. Accounts terminated due to a violation of these Terms of Service are not eligible for refunds.

6. Service Termination

   A Service Contract can only be terminated: (i) on at least 30 days notice by either party given after the Minimum Term has expired for that Service; or (ii) in accordance to Sections (2) or (5)

   The Customer may choose to terminate any service contract at any time by: (i) giving at least 30 days notice to Ultima Systems; (ii) paying all fees accrued of that service up to the point of termination; and (iii) paying any service fees that would have been payable between the date of termination and the end of its minimum term if the service contract had not been terminated.

7. Limitation of Liability

   To the maximum extent permitted by law, Ultima Systems liability for all claims, actions, costs, losses, damages and other liabilities arising out of or in connection with this agreement (including the relationship established by this agreement or any conduct under it) whether in contract or in tort including negligence, shall be limited to the amount of fees paid by the client to Ultima Systems under this agreement. In no event shall Ultima Systems be liable for any loss of data, loss of profits, cost of cover or other special, incidental, consequential or indirect damages arising out of or in relation to this agreement or the provision or use of the services, howsoever caused and regardless of the theory of liability or form of action, whether in contract or tort including negligence. This limitation will apply even if Ultima Hosts has been advised or is aware of the possibility of such damages.

8. Data Backups

   Clients of Ultima Systems are solely responsible for their own data backups. This includes but is not limited to web, database and email files. In the event of a server crash, disk corruption or deletion of files UItima Hosts will not be responsible for restoring this data. Ultima Systems is also not responsible for any data loss incurred by client's due to inadequate backups.

   Client's at all time should have a backup copy of their sites and databases. We encourage you to have a copy of your data located at a different data center and to update this data on a daily basis.

   Ultima Systems offers a number of backup solutions including scheduled tasks. These can be purchased via your customer portal. We are also introducing an offsite solution for backing up the entire dot net panel space. VPS's will also be provided with offsite backup solutions.

9. Abusive Behavior

   Ultima Systems reserves the right to suspend or cancel a client's account if the client engages in any abusive behaviour. Abuse behaviour includes making threat, using derogatory or abusive language against Ultima Systems or its staff members. Ultima Hosts reserves the right to withhold any refunds if a client engages in abusive behavior. Abusive behavior also extends to public comment on forums as well as personal emails and tickets.

10. Applicable Jurisdiction

    This Service Contract & any Services Agreement is governed by the law of Victoria, (Australia). Any legal proceedings relating to them can only be taken in courts with jurisdiction in Victoria.

Updated 2nd March, 2009