Terms of Service
1. ACCEPTANCE OF TERMS
Welcome to Website Checker. Website Checker is operating by Aykira Pty Ltd (herein called Aykira) and provides its service to you, subject to the following Terms of Service (“TOS”), which may be updated by us from time to time without notice to you. In addition, when using particular Website Checker services, you and Aykira shall be subject to any posted guidelines or rules applicable to such services which may be posted from time to time. All such guidelines or rules are hereby incorporated by reference into the TOS.
2. DESCRIPTION OF SERVICE
Aykira currently provides website performance analysis and reporting through the interactivity of the Internet. You are responsible for obtaining access to the Service and that access may involve third party fees (such as Internet service provider or airtime charges). You are responsible for those fees, including those fees associated with the display or delivery of advertisements. In addition, you must provide and are responsible for all equipment necessary to access the Service.
3. YOUR REGISTRATION OBLIGATIONS
In consideration of your use of the Service, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form (such information being the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Aykira has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Aykira has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
5. MEMBER ACCOUNT, PASSWORD AND SECURITY
You will receive a password and account designation upon completing the Service’s registration process. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify Aykira of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Aykira cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 5.
6. SERVICE TERMS
You may use the Services for lawful, authorized purposes and only in accordance with these Terms of Service. You must be 13 years or older in order to use the Services. Accounts registered by “bots” or other automated methods are not permitted.
You understand that all information, data, text, messages or other materials (“Content”), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not Aykira, are entirely responsible for all Content that you upload, email, transmit or otherwise make available via the Service. Under no circumstances will Aykira be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Service.
You may not submit any material, or otherwise engage in any conduct that:
- Impersonates any person, business or entity, including Aykira and its employees and agents;
- Contains viruses or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, or otherwise permit the unauthorized use of a computer or computer network;
- Encourages conduct that would constitute a criminal offence, or that gives rise to civil liability;
- Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
- You may not use the Services in any manner that could damage, disable, overburden, or impair our servers or networks, or interfere with any other party’s use and enjoyment of the Services.
- You may not attempt to gain unauthorized access to any of the Services, user accounts, computer systems or networks, through hacking, password mining or any other means. We may take any legal and technical remedies to prevent the violation of this provision and to enforce these Terms of Service.
- Collect or store personal data about other users.
You acknowledge that Aykira does not pre-screen Content, but that Aykira and its designees shall have the right (but not the obligation) in their sole discretion to refuse or move any Content that is available via the Service. Without limiting the foregoing, Aykira and its designees shall have the right to remove any Content that violates the TOS or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by Aykira or submitted to Aykira in providing the Service, including without limitation information in Website Checker Message Boards, Website Checker Clubs, and in all other parts of the Service.
You acknowledge and agree that Aykira may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the TOS; (c) respond to claims that any Content violates the rights of third-parties; or (d) protect the rights, property, or personal safety of Aykira, its users and the public.
You acknowledge and understand that Aykira may delete data to maintain the limits of your Subscription, in particular the oldest generated Website Reports, without notification.
You understand that the technical processing and transmission of the Service, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
When Aykira performs a security scan of a website on your behalf, you acknowledge and agree that:
- You are either the legal owner of the website in question, or an authorised representative of the legal owner;
- You given full permission to Aykira to crawl your website looking for security flaws and are so authorised to give such permission;
- You indemnify Aykira completely against all damages that may result from such a security scan, in particular: interruption or loss of service, the revealing of company confidential information to Aykira, 3rd party costs arising in response to the security scan.
7. SPECIAL ADMONITIONS FOR INTERNATIONAL USE
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from Australia or the country in which you reside.
8. CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION ON THE SERVICE
Aykira does not claim ownership of Content you submit or make available for inclusion on the Service. However, with respect to Content you submit or make available for inclusion on publicly accessible areas of the Service, you grant Aykira the following world-wide, royalty free and non-exclusive license(s), as applicable:
- With respect to Content you submit or make available for inclusion on publicly accessible areas of Website Checker, the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display. This license exists only for as long as Aykira removes such Content from the Service.
9. WEBSITE DATA ACQUISITION AND AGGREGATION
In implementing this Service the facilities of other web based data sources may be accessed in relation to the website being analysed, you hereby:
- Where appropriate permit and authorise Aykira to access such data sources on your behalf, and,
- Permit Aykira to store, manipulate and aggregate data so accessed for enacting the Service.
You agree to indemnify and hold Aykira, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Content you submit, post, transmissions or make available through the Service, your use of the Service, your connection to the Service, your violation of the TOS, or your violation of any rights of another.
11. NO RESALE OF SERVICE
You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any portion of the Service, use of the Service, or access to the Service.
12. MODIFICATIONS TO SERVICE
Aykira reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, its Services (or any part thereof) with or without notice. You agree that Aykira shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
You agree that Aykira, in its sole discretion, may terminate your password, account (or any part thereof) or use of the Service, and remove and discard any Content within the Service, for any reason, including, without limitation, for lack of use or if Aykira believes that you have violated or acted inconsistently with the letter or spirit of the TOS. Aykira may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this TOS may be effected without prior notice, and acknowledge and agree that Aykira may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Aykira shall not be liable to you or any third-party for any termination of your access to the Service.
14. DEALINGS WITH ADVERTISERS
Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You agree that Aykira shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Service.
The Service may provide, or third parties may provide, links to other World Wide Web sites or resources. Because Aykira has no control over such sites and resources, you acknowledge and agree that Aykira is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that Aykira shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
A valid credit card is required to pay for subscriptions to the Service. Fees, rate limits and effective dates for these Services are negotiated separately from the TOS. The Services are billed in advance on a regular period (Period), usually monthly, and the fee is refundable within 48 hours by sending a written email request in English to firstname.lastname@example.org. There will be no refunds or credits for partial Periods of service, upgrade/downgrade refunds, refunds for Periods unused with an open account after this 48 hour period. All fees, unless specifically detailed, are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only VAT when a valid number is provided.
17. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
a. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. AYKIRA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
b. AYKIRA MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE CONTENT INCLUDED IN OUR SITE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH OUR SITE WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
c. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
d. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM AYKIRA OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
18. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT AYKIRA SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF AYKIRA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (Iv) ANY OTHER MATTER RELATING TO THE SERVICE.
19. EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 17 AND 18 MAY NOT APPLY TO YOU.
Notices to you may be made via either email or regular mail. The Service may also provide notices of changes to the TOS or other matters by displaying notices or links to notices to you generally on the Service.
21. COPYRIGHT AND COPYRIGHT OWNERSHIP
We claim no intellectual property rights over the material you provide to the Service. Your profile and the materials you upload are yours. We retain the right, but not the obligation, in our sole discretion, to refuse or remove any content that violates this TOS or violates the ability of the Service to serve its consumers. All trademarks not owned by Aykira that appear on this Site are the property of their respective site owners, who may or may not be affiliated with, connected to, or sponsored by Aykira. Aykira originated content included on the Site, such as text, graphics, logos, data compilations, statistics and the compilation of all content on the Site, is the property of Aykira and its licensors and protected by Australian and International copyright laws. Except as set out in these Terms, no reproduction of any Aykira originated content is permitted without written permission from Aykira. User-generated content is the property of the source sites listed. Such content is copyrighted, and any use or reproduction must comply with the terms of the respective license(s) and must include a label indicating such license.
22. GENERAL INFORMATION
The TOS constitute the entire agreement between you and Aykira and govern your use of the Service, superseding any prior agreements between you and Aykira with respect to this Service. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content or third-party software. The TOS and the relationship between you and Aykira shall be governed by the laws of the State of New South Wales without regard to its conflict of law provisions. You and Aykira agree to submit to the personal and exclusive jurisdiction of the courts located within the city of Sydney, New South Wales. The failure of Aykira to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.
The section titles in the TOS are for convenience only and have no legal or contractual effect.
Last reviewed 30th May 2015