Where's My Server?
Terms & Conditions of Service
Last updated July 2014
1. Definition of Terms
This Agreement details the terms and conditions governing your use of the services provided to you by CK Net Limited trading as "Where's My Server?"
The following words and expressions shall have meanings hereby assigned to them except where the context otherwise requires: ”Where's My Server?”, “WMS”, "We" and "Our", means CK Net Limited trading as "Where's My Server?" “You", “Your”, means the party or parties who utilise the Service. "Service” means any services we provide to You. “VM” means Virtual Machine.
All services provided by WMS are to be used for lawful purposes only. Certain content is prohibited. WMS will be the sole arbiter as to what constitutes a violation of this provision.
Spamming, i.e. the sending of unsolicited email, is prohibited under New Zealand law.
Any attempt to cause harm to a server, whether inside or out side the WMS network is strictly prohibited. This includes but is not limited to:
• Logging into a server or account that You are not authorised to access
• Accessing data or taking any action to obtain services not intended for You or Your use
• Attempting to probe, scan or test the vulnerability of any system, subsystem or network
• Hacking or breaching security or authentication measures of any system without proper authorization
• Transmitting material with the intent of damaging or interfering with any computer system or network
• Interfering with, intercepting or expropriating any data or information.
4.a Unnecessary Server Load. We do not permit the use of any applications on our platform which generates artificial disk, CPU, or memory load.
5. PCI-DSS environments
WMS does not provided PCI-DSS certified VMs.
You are responsible for the systems administration of your VM, whether this is provided by you or via a third party. This includes configuring, maintaining, monitoring, and securing the operating system of the VM. WMS agrees to support and maintain the hardware on which the VM is located. Except with respect to the use or configuration of the WMS interface, WMS does not provide phone, e-mail or any other technical assistance for the administration of your VM operating system.
7. Administrative Access
Access to VMs are limited to You and anyone You authorise. Certain WMS interface features rely on VMware tools to be running in Your VM, therefore VMs are required to have a suitable version of the VMware tools service installed and running whenever the operating system of the VM is loaded, in order to ensure optimal VM performance. WMS reserves the right to require, at its discretion, software upgrades for the purposes of maintaining security and stability of the services provided and may require You to install such upgrades to Your VM environment.
WMS agrees to provide the service to You, for Your exclusive use, at the price agreed on upon deployment of the service. All physical servers and other equipment are the property of WMS and are not subject to customer demands.
You agree that if the security of any of Your VMs is compromised in any way, You will notify WMS immediately. You will be held fully responsible for any misuse or compromise of Your VMs. You agree that if any security violations are believed to have occurred in association with Your VMs, WMS has the right to immediately suspend the VM pending an investigation and resolution. You agree that WMS has the right to co-operate in any government or legal investigation regarding any aspect of the service.
10. Backups and Data Loss
You use Our service at Your sole risk. While we provide a paid for VM back-up service, We are not responsible for individual files or data residing on your VM. You agree to take full responsibility for files stored on your VM and agree that it is Your responsibility to control operating system level backups.
11. Scheduled Maintenance
Periodically, WMS will perform maintenance to the software or physical servers and other equipment that provide the WMS service. We will inform You of any scheduled maintenance that may affect service delivery in a timely manner via Our announcement page www.twitter.com/wms_alerts.
12. Changing these terms
WMS reserves the right to change these terms and conditions, and will give you at least 5 working days notice of changes via www.twitter.com/wheresmyserver
We will use the email address you sign up with to communicate with you. It is your responsibility to keep this up to date. Any general announcements will also be made via www.twitter.com/wheresmyserver.
14. Payments and Credit Card information
Invoices are generated at the end of each calendar month for services used during that month.
Payments can be made via Bank Transfer or Credit Card.
In the case of credit card payments WMS do not save or record input of credit card data. We use Paypal as a fully certified PCI-DSS compliant payment gateway.
15. Overdue accounts
Accounts that are in arrears on the 25th of the month will have services suspended until full payment is received. Suspended accounts will continue to generate some charges for services still in use. Accounts in arrears for more than two consecutive calendar months will have services halted and will be removed from the platform. The account will then be closed.
Fees may be payable for reinstating suspended accounts and debt retrieval. These fees must be paid before the reinstatement of the service.
13. Ending your relationship with WMS
The Terms and Conditions will continue to apply until terminated by either you or WMS as set out below. If you want to terminate your legal agreement with WMS, you may do so by closing your account and paying in full the final outstanding fees. WMS may at any time, terminate its legal agreement with you if:
•You have breached any provision of the Terms and Conditions (or have acted in manner which shows that you do not intend to, or are unable to comply with the provisions of the Terms); or
•WMS is required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful).
17. Indemnity and Disputes
You shall indemnify WMS against all claims, expenses, damages, or other liabilities arising directly or indirectly from using the provided service, including all claims from any third parties, legal and debt-recovery costs following any breach by You of any of Your obligations under these Terms and Conditions. WMS and You will negotiate in good faith and make reasonable efforts to settle any dispute that may arise out of, or relate to the Terms & Conditions or any breach of them.
18. Disclaimer of Warranties
The service is provided on an "as is, as available" basis. WMS specifically disclaims any other warranty, expressed or implied, including any warranty of merchantability or fitness for a particular purpose. In no event shall WMS be liable for any consequential, indirect, special or incidental damages, even if WMS has been advised by You of the possibility of such potential loss or damage. If WMS's service to You is disrupted, or malfunctions for any reason, WMS shall not be responsible for losses of income due to disruption of service, beyond the fees paid by You to WMS for services, during the period of disruption of malfunction.
19. Force Majeure
Neither party shall be liable for any failure or delay in performance of the service, which is caused by circumstances beyond the reasonable control of that party including but not limited to fires, explosions, severe weather, industrial disputes, insurrection, riots, requirements or regulations or any civil or military authority, acts of war (whether declared or not), civil unrest, acts of God, earthquake, flood, riot, embargo, government act, terrorist action, DNS caching, propagation or other DNS issues outside WMS’s reasonable control or failure or outage of any telecommunications links or other connections forming part of the Internet which are not under the control of WMS.
20. Governing Law
The Terms & Conditions will be construed in accordance with and governed by the laws of New Zealand. Each party agrees to submit to the exclusive jurisdiction of the New Zealand courts.
Each provision of the Terms & Conditions shall be construed separately. If the whole or any part of any such provision may prove to be illegal or unenforceable, this shall not affect the legality or enforceability of any other provision of the Terms & Conditions and the parties shall try to agree a substitute provision for that which is invalid or unenforceable.