Please read these Terms of Service carefully before using the Services. If You do not agree to these terms of service, You must not use the Services and You should exit the website and stop use of the services immediately.
These Terms of Service apply to all User’s of the Services, including without limitation any sub-users of User’s Service. Using the Services in any manner constitutes Your acceptance and agreement to be bound by these Terms of Service, and all other operating rules, policies and procedures that may be published from time to time on the Website by us, each of which is incorporated by reference and each of which may be updated from time to time without notice to You.
In purchasing our Services and entering into this agreement, You warrant that You are no legal impediment from doing so and that this agreement will be legally enforceable against You in accordance with its terms.
Septic Track reserves the right, at any time and from time to time, to amend or to modify these Agreements without prior notice to You, provided that if any such alterations constitute a material change to these Terms of Service, Septic Track will notify User’s listed email address. Amendments and modifications shall take effect immediately when posted on the Website. By continuing to access or use the Services after any such amendments or modifications, You agree to be bound by such amended or modified Terms of Service. For this reason, we encourage You to review the Terms of Service whenever You use the Services. If You do not agree to any change to these Terms of Services, then You must immediately stop using the Services.
If any provision of this Agreement is prohibited by law or held to be unenforceable, that provision will be severed and the remaining provisions hereof shall not be affected such that this Agreement shall continue in full force and effect as if such unenforceable provision had never constituted a part hereof.
3. LIMITATION OF LIABILITY
IN NO EVENT SHALL WE, NOR OUR DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES
- (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING),
- (II) FOR ANY NON-RENEWAL OF THE SERVICES
- (III) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION),
- (IV) IN CONNECTION WITH OUR ANTI-SPAM OR VIRUS FILTERS, OR
- (V) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) OF FEES PAID TO US FOR THE PARTICULAR SERVICES DURING THE IMMEDIATELY PREVIOUS ONE MONTH PERIOD, EVEN IF SEPTIC TRACK HAD BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF.
YOU ACKNOWLEDGE THAT THE FEES PAID BY YOU REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT SEPTIC TRACK WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS. YOU HEREBY WAIVE ANY AND ALL CLAIMS AGAINST SEPTIC TRACK ARISING OUT OF YOUR PURCHASE OR USE OF THE SERVICES, OR ANY CONDUCT OF OUR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR REPRESENTATIVES. YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE SERVICES OR ANY OTHER GRIEVANCE SHALL BE:
- (A) IN THE CASE OF A CONSUMER ABLE TO RELY UPON THE AUSTRALIAN CONSUMER LAW OR;
- (B) IN ALL OTHER CASES, YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO OR USE OF THE SERVICES.
4. WARRANTY DISCLAIMER
We have no special relationship with or fiduciary duty to you. You acknowledge that we have no duty to take any action regarding:
- (i) which you gain access to the Services;
- (ii) what Content you access via the Services; or
- (iii) how you may interpret or use the Content.
To the maximum extent permitted by law, you release us from all liability for you having acquired or not acquired Content through the Services. We make no representations concerning any Content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, or legality of material or Content contained in or accessed through the Services.
THE SERVICES AND CONTENT ARE PROVIDED “AS IS”, “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY LAW. WE, AND OUR DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT:
- (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION;
- (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED;
- (III) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR
- (IV) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK.
IF ANY LEGISLATION, SUCH AS THE AUSTRALIAN CONSUMER LAW, IMPLIES IN THIS AGREEMENT OR OTHERWISE PRESCRIBES ANY CONDITION, GUARANTEE (INCLUDING CONSUMER GUARANTEES) OR WARRANTY WHICH CANNOT BE EXCLUDED OR MODIFIED, THEN THAT CONDITION, GUARANTEE OR WARRANTY IS DEEMED TO BE INCLUDED IN THIS AGREEMENT. HOWEVER, TO THE EXTENT PERMITTED BY LAW, OUR LIABILITY FOR BREACH OF SUCH STATUTORY CONDITION, GUARANTEE OR WARRANTY IS LIMITED AT OUR OPTION TO ANY ONE OR MORE OF THE FOLLOWING:
- (A) IN THE CASE OF GOODS – THE REPAIR OF THE GOODS, THE REPLACEMENT OF THE GOODS OR THE SUPPLY OF EQUIVALENT GOODS OR TO THE PAYMENT OF THE COSTS OF REPAIR, REPLACEMENT OR SUPPLY OF EQUIVALENT GOODS; AND
- (B) IN THE CASE OF ADVICE, RECOMMENDATIONS, INFORMATION OR SERVICES, BY SUPPLYING THE ADVICE, RECOMMENDATIONS, INFORMATION OR SERVICES AGAIN, OR BY PAYING THE COST OF SUPPLYING THE ADVICE, RECOMMENDATIONS, INFORMATION OR SERVICES AGAIN.
You shall defend, indemnify, and hold harmless us, our affiliates, parents, subsidiaries, any related companies, licensors and partners, and each of our and their respective employees, officers, directors, agents, contractors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable legal fees, that arise from or relate to Your (or any third party using Your Account or identity in the Services) use or misuse of, or access to, the Services, Content, or otherwise from Your User Content, violation of these Terms of Service or of any law, or infringement of any intellectual property or other right of any person or entity. The indemnity does not apply to the extent that we cause or contribute to our own loss or damage. We reserve the right to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defences. This clause survives the termination or expiry of this Agreement.
By the account activation date of each month, Septic Track shall either:
- (i) debit the users credit card (when such information has been provided by the member); or
- (ii) deliver, by e-mail or regular mail.
An invoice in accordance with the applicable Service Fees for Services rendered for the current month.
When an invoice is delivered to the member, payment shall be remitted to Septic Track by no later than the specified payment due date. Septic Track shall be entitled to immediately terminate this agreement for member’s failure to make timely payments. You will be provided with an invoice on a monthly basis.
7. SERVICE FEES
Certain Services carry a setup fee charged by Septic Track to Subscribers, which must be paid by member in order to have use of said Services. If member terminates this agreement, member shall be responsible for any and all outstanding fees owed to Septic Track and agrees to pay any and all fees incurred by member. Because the Services are provided on a monthly basis, the member will be responsible for Service fees incurred each month, regardless of when member provides notice of termination. Thus, for example, if the member provides notice of termination on the 15th day of a particular month, the member will be responsible for Service fees for the entire month, and such fees will not be pro-rated or refunded.
- Accounts that are more than seven (7) days past the due date will be automatically suspended in additional to any outstanding fees may apply to have the Service restored.
- Accounts which are not paid in full within fifteen (15) days of the due date will be automatically deleted & purged from our servers.
8. FAILURE TO PAY
Septic Track may temporarily deny Service or terminate this Agreement upon the failure of Subscriber to pay charges when due. Such termination or denial will not relieve Subscriber of responsibility for the payment of all accrued charges, plus reasonable interest and any collection fees.
9. BACKUPS & DATA LOSS
Use of the Service is at Your sole risk. Septic track is not responsible for any and all files and data residing on Your account on our servers. Septic Track cannot guarantee that the contents of a web site will never be corrupted, or that a backup of a web site will always be available. You agree to download a data backup and sole responsibility for any and all files and data transferred to our servers and to maintain all appropriate backups of any and all files and data stored. A fee will incur in the event that an Service backup is required to be restored.
You, as Septic Track subscriber, are solely responsible for the content stored on Septic Track. member acknowledges that web site construction and management is member’s responsibility.
10. GOVERNING LAW & JURISDICTION
Any claim arising hereunder shall be construed in accordance with the substantive and procedural laws of the State of Victoria and the Commonwealth of Australia, without regard to principles of conflict of laws. You agree that any dispute arising from or relating to the subject matter of these Terms of Service shall be governed by the exclusive jurisdiction and venue of the courts of Victoria and the Commonwealth of Australia. You consent to service of process via email at the email address(es) provided by you, and waives any requirement under any judicial treaty requiring that legal process be translated into any language other than English.
- (a) Unless the context requires otherwise, a reference to a party to this Agreement includes a reference to the party’s successors and permitted assigns.
- (b) You may not assign, transfer or otherwise deal in any way with your rights, benefits and obligations under this Agreement.
- (c) SEPTIC TRACK may by notice to You, and in accordance with clause 21(d), transfer its rights, benefits and obligations under this Agreement.
- (d) If SEPTIC TRACK exercises its rights under clause 21(c) above, it is agreed that:
- (i) SEPTIC TRACK will issue a notice to you identifying the assignee (“Assignee”) and the effective time for the transfer (“Effective Time”);
- (ii) You and SEPTIC TRACK will release each other from any further obligations owed under this Agreement, except to the extent such obligations relate to the period prior to the Effective Time; and
- (iii) You and the Assignee will acquire the same rights and assume the same obligations against each other as would have been acquired and assumed had the Assignee been an original party to this Agreement as SEPTIC TRACK, provided that the Assignee is not responsible for any obligations relating to the period prior to the Effective Time.
(e) In addition to and without limiting any of the foregoing, You expressly acknowledge that:
- (i) Your continued use of the Services; and/or
- (ii) Your payment of any Service Fees, after the Effective Time, constitutes Your affirmation and consent to any transfer effected pursuant to this clause 21.
12. DISPUTE RESOLUTION
Mindful of the high cost of litigation, you and Septic Track agree to the following dispute resolution procedure: in the event of any controversy, claim, action or dispute arising out of or related to:
- (i) the Website;
- (ii) this Agreement;
- (iii) the Services;
- (iv) the breach, enforcement, interpretation, or validity of this Agreement; or
- (v) any other dispute between you and Septic Track (a “Dispute”)
The party asserting the Dispute shall first try in good faith to settle such Dispute by providing written notice to the other party (by first class or registered mail) describing the facts and circumstances (including any relevant documentation) of the Dispute and allowing the receiving party 30 days in which to respond to or settle the Dispute. Notice shall be sent
- (1) if to us at: Unit 7, 329 Pakington Street, Geelong, Victoria 3220, Australia or
- (2) if to you at: your last-used billing address or the billing and/or shipping address in your Account information.
Both you and Septic Track agree that this dispute resolution procedure is a condition precedent that must be satisfied prior to initiating any legal proceedings against the other party.