Terms of Service
Last updated: 11 May 2011
These terms of service (referred to as the "Terms of Service") apply to the software, tools, information, products and services (collectively "Services") offered by Arbre Media Pty Ltd ("Arbre Media", "we", or "us") and to the use by you of the Arbre Media Services or website. Please read the Terms of Service carefully before using the Services and the website. Usage of the Services and website is conditional upon your agreeing to be bound by the Terms of Service.
Minimum Age
Children (persons under the age of 18 years) are not eligible to use our Services and we ask that children do not submit any personal information to us.
Acceptable Use
We impose restrictions on the use of our Services to ensure that the system operates fairly for all clients and to safeguard our good name and reputation.
What constitutes unacceptable use by customers
You must not use our Service, attempt to use the Service, or allow the Service to be used in any way that:
Breach of law
results in you or Arbre Media breaching, or being involved in a breach of law, order or regulation;
Obscene, defamatory, offensive, abusive
sends, displays, accesses, makes available, publishes, or distributes or otherwise is involved in material that a reasonable person would consider obscene, defamatory or offensive;
The rights of others
infringes on any person's rights (including intellectual property rights and moral rights);
constitutes a misuse of any person's confidential information;
results in a breach by you of any obligation that you owe to any person;
Prohibited and Restricted content
sends, displays, accesses, makes available, publishes or distributes or otherwise is involved in material that is likely to be considered unsuitable for minors;
sends, displays, accesses, makes available, publishes or distributes or otherwise is involved in material which is classified RC or X by the Australian Classification Board;
Protection of minors
enables a minor to access material inappropriate for a minor or to establish (or try to establish) contact with a minor not otherwise known to you;
Illegal business practices and gambling
engages in any misleading or deceptive business or marketing practice;
involves providing or promoting illegal pyramid selling schemes or unlawful gambling or gaming activities;
Damage to property or people
results, or could result, in damage to property or injury to any person;
harasses, menaces or stalks people;
Arbre Media reserves the right to remove such illegal material from its server immediately.
In addition, Arbre Media does not allow any of the following:
- You may not use the Service as a remote storage server only.
- You may not access the Service through automated methods. Use of robots or other computer code which calls the Service, except where explicitly allowed, is absolutely forbidden.
- You may not send unsolicited messages (also known as junk mail or SPAM) to promote any website published on the Service. You agree to pay the costs of actual damages relating to any unsolicited e-mails transmitted.
- You may not use the Services in any manner which could damage, disable, overburden or otherwise impair the ability of Arbre Media to make this website or any Services available to other users or to interfere with the use and enjoyment of this website or any Services by other users, and
- You will not attempt to gain unauthorised access to any Services, accounts or information of Arbre Media or any other users.
The final choice of whether an account is in violation of any of these policies is at the sole discretion of Arbre Media.
Any violation of the above will be notified using your current email address on file. Arbre Media will suspend the Services of the member account until a resolution is met between you and Arbre Media. A repeated violation of this policy may cause cancellation of service without refund of any fees, and a permanent restriction from holding an account on the Service.
Trademarks and Copyrights
You warrant that you have the right to use any trademarks, processes, or other materials used with the Services, if any.
You warrant that content published by you using our Services does not infringe any third party copyrights or patents.
Copyright / Intellectual Property
You agree that the Services, which includes all software and documentation, both electronic or printed media, contain copyrighted material, trade secrets, patent pending material, and other proprietary intellectual property. The Services are the proprietary property of Arbre Media. They may only be used or accessed as specifically provided for in this Terms of Service.
You agree not to remove, modify or obscure any copyright, trademark or other proprietary rights notices. You further agree that you will not copy, modify, rent, lease, loan, sell, distribute, transfer, transmit, display, decompile, disassemble, reverse engineer, reverse assemble, or otherwise attempt to discover any programming code or any source code used in or with the Services.
You further agree that you may not reference Arbre Media or its suppliers in any promotional materials or press releases without the prior written consent of Arbre Media, which permission may be withheld or withdrawn in the sole discretion of Arbre Media.
You are not granted a license or any other right to store any of the Services (including any portion of the software or documentation) on any computer or other device, or copy or otherwise use such information to create derivative works.
Privacy
We collect, at the time of your registration, certain "user-specific information" (information that personally identifies you) including but not limited to your name, email address, home or work address, telephone number, and possibly information about your domain and complementary hosting services.
The primary purpose in collecting personal information is to provide you with a smooth and efficient experience. This allows us to provide services and features that most likely meet your needs, and to customise our services to make your experience easier.
If you send us personal correspondence, such as emails or letters, we may collect such information into a file specific to you.
As a matter of policy, we do not sell or rent any personal information about you to any third party.
Fees and Payments
All prices are subject to change and we will communicate any changes to you within 30 days of their effect.
Accounts are in default if payment is not received on the due date.
Accounts in default for 14 days may have their service interrupted. Such interruption does not relieve you from the obligation to pay any outstanding or ongoing fees. If your payment defaults, you agree to pay us our reasonable expenses, including legal and other related collection costs, incurred in enforcing our rights under these Terms of Service.
Other Services
If you request that we provide services beyond the provision of the application and website hosting, then you agree to pay the price specified by us, and agreed to by you prior to commencement of such services, for such services promptly on completion, along with any preliminary deposits that may be required.
Refund Policy
All payments to Arbre Media are non-refundable. This includes any set-up fees and monthly fees regardless of usage.
If you have a question about charges made to your account, please contact us immediately. If the charges were made in error, we will immediately credit your account or credit card account for the appropriate amount.
Subscriber Data
Your website content is stored on the server using a proprietary system and so consequently no guarantees are given that any of your website content can easily migrate to any other content management system.
In the event of default, all of your files and information stored on the servers provided by us will be preserved for 14 days from the date of default. If full payment is not received within 14 days, all of your files and information stored on the servers may be deleted.
Upon notice of termination of Services by Arbre Media to you via contact e-mail provided in your personal information, or voluntary termination of service by you, Arbre Media has the right to delete all data, files, or other information that is stored in your account for any reason.
Cancellation / Termination of Service
You may cancel the Service at any time by giving us 3 days notice in writing. Any amounts outstanding, including and up to the date of cancellation, will be due and payable on the date the notice to cancel is received by you.
Arbre Media shall have the right to refuse, suspend or cancel service to you at any time, and for any reason, without penalty and without notice. Cancellation of service by us does not relieve you from the obligation to pay any outstanding fees including and up to the date of cancellation.
You acknowledge and agree that Arbre Media may suspend or terminate your access to this website and the provision of Services to you immediately and without notice in the event that Arbre Media determines in its sole discretion that you have violated any of these Terms of Service.
You agree that Arbre Media has the right to delete all data, files or other information that is stored in your account if either party terminates your account for any reason.
Modification or Discontinuation of Service
You acknowledge and agree that Arbre Media may modify or discontinue any or all features of this website or the Services immediately and without notice to you. In the event that you are dissatisfied with any material modifications to the Services, your sole and exclusive remedy will be to terminate Services and request a pro rata refund of any prepaid fees.
Warranty and Disclaimer
You acknowledge and agree this website and all Services provided to you by Arbre Media and its suppliers are provided on an "as is" basis without any representations or warranties whatsoever. Without limiting the generality of the foregoing, you acknowledge and agree that Arbre Media does not represent or warrant that this website or any Services, will meet your requirements, or that the receipt or use of this website or any Services will be uninterrupted or error-free. Arbre Media hereby disclaims all warranties not expressly set forth in this Terms of Service, including but not limited to implied warranties of merchantability, fitness for a particular purpose and non-infringement. You acknowledge and agree that Arbre Media and its suppliers will not be liable to you or any third party, under any circumstances, for any direct, special, indirect, incidental, consequential, exemplary, punitive or cover damages, whether based in contract, tort, negligence, strict liability or otherwise, even if Arbre Media has been advised of the possibility of such damages. Without limiting the generality of the foregoing, Arbre Media and its suppliers will not be liable to you or any third party for any damages resulting from the use or inability to use this website, the use or inability to use any Services, the provision or failure to provide any Services, any loss of profits, any loss of information, data or content, or any loss of goodwill. In the event that you are dissatisfied with this website or any Services, your sole and exclusive remedy is to discontinue your use of this website or the applicable Services.
Limited Liability / Indemnification
You agree to indemnify, defend and hold harmless Arbre Media, its directors, officers, shareholders, employees, agents and suppliers from and against all claims, damages and liabilities arising out of or relating to your use of this website, your receipt or use of any Services or your violation of these Terms of Service.
Any liability incurred by Arbre Media, including without limitation any liability for damages caused or allegedly caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction of or unauthorised access to, alteration of, or use of records, whether for breach of contract, tortious behaviour, negligence, or under any other cause of action, shall be strictly limited to the amount paid by or on behalf of you to Arbre Media for the current month.
Traffic and Storage / Excessive Use
Any site that is deemed as impairing the performance of the servers either by high storage utilisation, high bandwidth usage, or high CPU usage will be deemed to be an "Excessive Use" site. "Excessive Use" sites are classified at the sole discretion of Arbre Media, although they will always be in excess of the daily average of the established limits.
A subscriber who has been deemed as an "Excessive Use" site will be subject to the following:
The subscriber will be offered a migration program including associated fees and charges to move to a more suitable server configuration. Time is of the essence as the overall performance of the shared server will be compromised and all sites sharing the server will be affected. If the subscriber does not accept the migration program and associated fees they may be given 14 days notice of suspension. In extreme circumstances they may be suspended without notice if the provider deems that other clients will be adversely affected.
External Links
Any links to external sites provided to you by Arbre Media or through the Arbre Media website are provided to you only as a convenience. Arbre Media accepts no responsibility for the content of any linked website, any link contained in a website, any changes or updates to such websites, web casting or any other form of transmission received from any linked website. You acknowledge the accuracy and performance of linked websites are beyond Arbre Media's control and are not warranted or supported by Arbre Media. The inclusion of any link or the content in any link does not imply endorsement by Arbre Media of the site or the contents therein.
Technical Support
Arbre Media does not provide technical support on issues that do not relate to our Services. The provider may not respond to emails pertaining to such requests. This includes but is not limited to, all 3rd party software, MySQL, FTP, and Email Clients.
Arbre Media will endeavour to address all support enquiries in a timely and professional manner. Answers to support enquiries will generally be provided within 24 hours but may be provided beyond 24 hours of receipt of support enquiries. Where enquiries concern matters that must be researched or tested, replies may be delayed. Resolution may be delayed if specific information describing the problem or question is not provided by you.
All reasonable care will be used to try to resolve problems. No warranty can be given that all problems will be resolved.
Data Backup and Transition Services
You acknowledge and agree that you are solely responsible for the protection and backup of all your information, data and content. You further acknowledge and agree that prior to the termination of any services from Arbre Media, you will be responsible for the transition of all your information, data and content to your own server or a third party service provider. In the event that you require assistance from Arbre Media in accessing or transitioning any of your information, data and content, such transition services shall be provided at the sole option of Arbre Media at the then current rates charged by Arbre Media for such services. Notwithstanding the foregoing, Arbre Media shall not be liable to you or any third party for the loss of any information, data or content.
Assignment of Services
You may not assign any of your rights or obligations under these Terms of Service, or resell any Services provided to you by Arbre Media, without the prior written consent of Arbre Media which may be withheld in the sole discretion of Arbre Media.
You acknowledge and agree that Arbre Media and its suppliers are the sole owners of all right, title and interest in and to the Services and any deliverables and work product provided to you by Arbre Media. Nothing contained in these Terms of Service, or any ordering documents, shall be construed to assign, transfer or convey to you any right, title or interest in or to any Services, deliverables or work product, or any patent, copyright, trademark, trade secret or other intellectual property right of Arbre Media or its suppliers.
Independent Contractors
Nothing in this agreement or in the course of dealing between you and Arbre Media shall be deemed to create between you and Arbre Media (including their respective directors, officers, employees and agents) a partnership, joint venture, association, employment relationship or any other relationship other than that of independent contractors with respect to each other.
Choice of Law
This Agreement shall be governed by and construed in accordance with the laws of Queensland, Australia, without regard to choice of law provisions that would cause the application of the law of another jurisdiction.
Severability
In the event that any provision of these Terms of Service is deemed unenforceable by a court or administrative agency of proper jurisdiction, the balance of these Terms of Service shall continue in full force and effect, and the unenforceable provision(s) shall be deemed replaced by a provision(s) that carries out the intent of the parties to the maximum extent enforceable.
Survival
Provisions contained in these Terms of Service relating to use of trademarks, proprietary rights, disclaimer of warranties, limitation of liability, indemnification, choice of law, exclusive jurisdiction and attorney's fees shall survive the expiration or termination of Services.
Headings
Any section headings or captions appearing in these Terms of Service are included solely for convenience of reference and shall not be construed or interpreted to affect the meaning or interpretation of these Terms of Service.
Terms of Acceptance / Entire Agreement
You acknowledge and agree that the the Terms of Service incorporate and supersede all proposals, understandings, prior agreements, oral or written representations, and all other communications between Arbre Media and you and shall prevail.
Arbre Media retains the right to change any or all of the Terms of Service at any time without notification. It is your responsibility to periodically review the Terms of Service and your continued use of this website, or continued use or receipt of any Services from Arbre Media, shall constitute your acceptance of any changes to these Terms of Service.