In order to become a reseller or user of any Xtreme’s services, you must agree to the following terms and conditions. Your agreement to these terms will be indicated to us by sending to us an application or commencement of use of any Xtreme’s services, whichever occurs first.
“We,” “us” or “Xtreme” – refer to Xtreme.com.au Pty Ltd, ACN 109 052 495.
“Client,” “you,” “your,” “customer” or “user” – refer to the user of the service.
“Service” – refers to all products and services offered by Xtreme from time to time, which you use.
“Server” – refers to the computer server equipment operated by us in connection with the provision of the Services.
“Supplier” – refers to third party software vendors.
2. General Terms & Conditions
The following terms and conditions apply to all contracts and provision of all Services. By utilising Xtreme’s services you are deemed to have accepted these terms and conditions and are bound by them.
2.1. Service availability
2.1.1. We shall use reasonable endeavours to provide continuing availability of the Server and the Services but we shall not, in any event, be liable for Service interruptions or down time of the Server.
2.1.2. In no event will we be liable to you for loss of data, or the inability to retrieve data, resulting from or incidental to the use of a Service.
2.2. Intellectual property rights and other consents
You are solely responsible for obtaining any and all necessary intellectual property rights clearances and/or other consents and authorisations, including without limitation, clearances and/or consents in respect of your proposed domain name, any materials given by you to Xtreme, and merchant services agreements between you and the relevant financial institutions.
You agree to indemnify and keep indemnified and hold us harmless from and against any claim brought against us by a third party resulting from the provision of Services by us to you and your use of the Server, and in respect of all losses, costs, actions, proceedings, claims, damages, expenses (including legal costs and expenses), or liabilities, whatsoever suffered and howsoever incurred by us in consequence of your breach or non-observance of these terms.
2.4.1. We may terminate this agreement forthwith if you fail to pay any sums due to us as they fall due. We may suspend all services within an account prior to termination should any invoice in the account be outside of our trading terms.
2.4.2. We may terminate this agreement immediately if you breach any of these terms and conditions, or if you are a company you go into insolvent liquidation, or if you are a person you are declared bankrupt.
2.4.3. We may also terminate this agreement with immediate effect if you fail to comply with the End User Agreement (EUA) of a third-party supplier (Supplier) of Software or a Hosted Application.
2.4.4. On termination of this agreement we shall be entitled immediately to block your service and to remove all data located on it. We will hold such data for a period of 14 days and allow you to collect it, at your expense ($150/hr.), failing which we shall be entitled to delete all such data.
2.4.5. Without limiting the section below on our Exclusion and limitation of liability, Xtreme will not be liable to you for any cost, expense, damage or loss whatsoever for terminating this agreement.
2.4.6. If the Supplier seeks to terminate your use of a Software or a Hosted Application for reasons other than your noncompliance with an EUA or these terms and conditions, Xtreme will use reasonable endeavours to honour the remaining period of any then current and existing right hereunder for you to use that Service but Xtreme will not otherwise be obligated to continue the Service if this is not possible or viable due to events beyond the reasonable control of Xtreme.
2.4.7. Xtreme shall not be liable for any delay or failure to perform its obligations pursuant to this agreement if such delay or failure is due to termination of access to the Hosted Application or to Software by the Supplier or a change by the Supplier to the conditions of supply thereof.
2.4.8. If you wish to terminate your account with Xtreme, you must do so by written correspondence, otherwise your account will be automatically renewed for the same subscription period and you will be liable for, and immediately invoiced upon the commencement of, such additional subscription period. Specifically, Xtreme will not accept verbal instructions to terminate an account.
2.4.9. Xtreme does not offer refunds or credits for new purchases in the event of termination or cancellation of these services.
2.4.10. In the event of a ‘customer requested cancellation’ of any service, 30 days written notice will be required for the cancellation request to be accepted. In all instances, Xtreme will confirm in writing that the cancellation request has been accepted or denied and will outline any additional terms of the cancellation – i.e. any outstanding payments must be paid out prior to the end of the 30 day notice period for the cancellation to be successfully processed. Xtreme will complete the cancellation process at the first available opportunity, however Xtreme acknowledges the date of lodgement of the cancellation request, as the first day of the 30 day written notice period. Any final funds/payments owed for services will be invoiced once the cancellation date has been put in place, in which all funds must be paid and the account balanced before the final date of service. No refunds or credits will be issued for funds that have been pre-paid.
2.5.1. All charges payable by you to us for the Services shall be in accordance with the relevant scale of charges and rates published from time to time by us on our Web site and explicitly on the invoice shall be due and payable within seven (7) days of invoice issue.
2.5.2. The provision by us of the Services is contingent upon our having received payment in full from you in respect to any Services provided by Xtreme. Without prejudice to our other rights and remedies under this agreement, if any sum payable is not paid on or before the due date, we reserve the right, forthwith and at our sole discretion, to suspend the provision of Services to you.
2.5.3. If you fail to make payment within the terms of this agreement, you will become liable for the cost of collection. This will include interest on any overdue amount, calculated at the daily rate of 20% per annum, from the due date of the payment.
2.5.4. Upon provision of a credit card account, you give us authorisation to automatically debit your credit card for all charges on issuance of a valid invoice.
2.6. Late payment fee
If you exceed our payment terms, you may be charged an $11.00 late payment fee. A revised invoice will be sent to your nominated e-mail address.
2.7. Exclusion and limitation of liability
2.7.1. TO THE FULL EXTENT PERMITTED BY LAW WE HEREBY EXCLUDE ALL CONDITIONS AND WARRANTIES NOT EXPRESSLY SET OUT HEREIN. EXCEPT AS SPECIFICALLY SET FORTH IN ELSEWHERE IN THIS AGREEMENT, WE MAKE OR GIVE NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, WITH RESPECT TO ANY GOODS OR SERVICES PROVIDED UNDER OR INCIDENTAL TO THIS AGREEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US, OUR RESELLERS, AGENTS, REPRESENTATIVES OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE EXPRESS WARRANTIES HEREBY GIVEN, AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
2.7.2. Our total aggregate liability to you for any claim in contract, tort, negligence, equity or otherwise arising out of or in connection with the provision of the Services shall be limited to the charges paid by you in respect of the Services which are the subject of any such claim and provided that you notify us of any such claim within one year of it arising.
2.7.3. In no event shall we be liable to you for any loss of business, contracts, profits or anticipated savings or for any other indirect or consequential or economic loss whatsoever, even if advised us to the possibility thereof. Nor will we be liable in any event for any damages including, without limitation, indirect, special, incidental, consequential or exemplary damages, arising out of or in connection to this agreement or the Services.
2.7.4. In no event will we be liable to you for loss of data, or the inability to retrieve data, resulting from or incidental to the use of a Service.
2.7.5. Except as otherwise specified herein, Xtreme is not liable for default or failure in performance of its obligations pursuant to these terms and conditions resulting directly or indirectly from acts of God, civil or military authority, acts of public enemy, war, accidents, fires, explosions, earthquakes, floods, the elements, strikes, labour disputes, shortage of suitable parts, components, materials, labour or transportation or any other cause beyond the reasonable control of Xtreme.
The benefit of this agreement may be assigned by us, but not our obligations to you – to do that, you agree that we may give notice to you in writing, and your failure to respond will be deemed acceptance. You may transfer this agreement provided that you give us notice in the form we require (setting out the details of the assignee) accompanied by payment of any transfer fee specified by us. No other method of transfer by you is permitted.
2.9. Change to terms on renewal
We may change the terms and conditions of this Agreement at any time. Any renewal of a Service will be in accordance with the terms and conditions in place as at that time.
2.10. Entire agreement, governing law
2.10.1.These terms and conditions plus the Xtreme terms and conditions of supply (if any) for each specific type of service supplied by Xtreme constitute the entire agreement between Xtreme and you (“the Contract”), and supersede all prior agreements, understandings and representations whether oral or written. No oral explanation or oral information given by any party shall alter the interpretation of these terms and conditions. Except as provided above, no variation may be made to the Contract unless it is in writing and signed by authorised representatives of you and Xtreme.
2.10.2.The Contract is to be interpreted in accordance with the laws of the State of Queensland. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of that State, the Federal Court of Australia and appeal courts therefrom in relation to any dispute arising hereunder.
2.11. Joint liability
If you (the customer) consist of more than one person then the liability of those persons in all respects under the Agreement shall be a joint liability of all of those persons and a liability of each of those persons severally.
2.12. Consent to communications
In addition to general Account, Billing and Service communications, Xtreme will, from time to time, issue email notifications relating to our services, including, but not limited to Newsletters, Announcements, Promotional and Seasonal offers, and Surveys. By entering into agreement with these terms and conditions, you agree to receive email communications by inferred consent until such time as you decide to opt-out of such communications. You may opt out of our mailing list at any time by following ‘unsubscribe’ instructions contained within the communications.
3. Email / Virus Protection
3.1. We specifically exclude any warranty as to the accuracy or quality of information received by any person via the Server and in no event will we be liable for any loss or damage to any data stored on the Server. You are responsible for maintaining insurance cover in respect of any loss or damage to data stored on the Server. You warrant to us that you will only use your assigned Web Site for lawful purposes. In particular, you further warrant and undertake to us that:
3.1.1. you will not, nor will you authorise or permit any other person to, use the Server in violation of any law or regulation;
3.1.2. you will not knowingly or recklessly post, link to or transmit any material:
184.108.40.206. that is unlawful, threatening, abusive, harmful, malicious, defamatory, violent or teaching violence, obscene, pornographic, profane or otherwise objectionable in any way