Above.com Pty Ltd Monetization AutoPilot Terms of Service
This Agreement governs your use of Above services and features of the Monetization AutoPilot (Services). By using the Services, you are agreeing to be bound by these terms of service ("Monetization AutoPilot Terms of Service").
In order to utilize the Service you MUST agree to the applicable Terms of Service, which agreement is achieved by creating and using an Above user account.
Changes and Modifications
Above reserves the right to make technical, interface and service changes without notice. Recourse available to you in cases of any modifications is to cancel the relevant service Agreement. Continued use of the Service following changes and modifications will constitute your binding acceptance.
Above reserves the right to make pricing change displayed on our website without notice. Existing customers will be given at least 30 days notice prior to any pricing changes taking effect.
During the 30 days notice period, existing customers have the ability and right to unsubscribe to Service before the new pricing is set.
Above is based on a subscription service model, where ongoing services are provided in exchange for subscription fees. You have the ability to unsubscribe or cancel Services provided at anytime. Cancellations need to be made at least 2 day before the current subscription expiry date to avoid renewal charges.
Service Levels and Access
We will use our best endeavors to make our website available at all times, but cannot guarantee it will operate without interruptions or be error free. We can not accept liability for any cases of its unavailability. In cases where Service is unavailable for more than five (5) days in any one calendar month, any subscription fees applicable will be waived for that particular month. Any loss of revenues during down times is neither covered nor recoverable.
Access to the website is free to all. Access to password protected sections of the website is limited and can be accessed with a valid account. Use of the Above service for domain monetization requires Above approval at which point Above subscription fees apply.
Automated solutions, including tools, software applications and online systems used to access Above user accounts can only be used with permission. Please contact us to obtain permission.
We reserve the right to: (i) refuse the provision of services to any user; (ii) cancel user accounts; (iii) cancel, change, suspend and modify services offered to users at any time without notice or liability; or (iv) block any domain or traffic with the potential of causing disruption to the Above service or that are in violation of the Restrictions section.
Third Party Services
Above can not be held liable for delays, data skews or inconsistencies provided by third party providers.
Above can not accept any liability for interruption of services due to third party service interruptions.
Direct to Advertiser Services
Above offers a range of direct to advertiser services, either through direct advertiser relationships or through various third party solutions that have advertiser relationships.
You grant Above, subject to the terms of this agreement, the right to: (i) redirect and sell Domain Traffic from the Domains to any Direct Advertiser; (ii) collect information, including usage data, conversion data, click through data relating to any Domains you have listed with the Above service; and (iii) disclose such data and information to any Direct Advertisers buying such Domain traffic.
Domain Restrictions. Above Clients shall not use in connection with the Above Service any Domain (i) to which it does not own or have the right to all intellectual property rights; (ii) that infringes upon any intellectual property right of a third party; (iii) that would, if used in connection with the Service, infringe upon any intellectual property right of a third party; or (iv) that is unlawful, defamatory, libelous, harassing, abusive, fraudulent, or contains viruses.
Direct to Advertiser Fees, Payment Terms and Reporting
Domain Revenues generated from Direct to Advertiser services shall be paid to Above Clients as agreed on a monthly basis, within forty-five (45) days after the end of the calendar month in which the Domain Revenues were earned. To reduce administrative costs, the parties agree that Above shall not be required to make payment to Domain Company until such time that the amount owed to Domain Company equals or exceeds US$100.00 (in words: One Hundred Dollars).
Above shall have no obligation to pay Domain Revenues that arises from conduct specified in the Restrictions section or in the event where direct advertisers default on payments for Above Clients domain revenues.
Upon any termination or expiration of this Agreement, Above shall pay Above Client all amounts due prior to such termination or expiration under this section within forty-five (45) days after such termination or expiration.
Reporting is provided in real time or on a monthly basis depending on the Direct to Advertiser solution. Above will provide a report detailing the Domain Revenues generated from Above Client domains participating in Direct to Advertiser services.
Taxes. Domain Company agrees and acknowledges that taxes will not be withheld or paid directly or indirectly by Above and that it is the responsibility of Above Clients to pay all local, state, federal, and/or foreign taxes on income received from Above.
Hosting and Content
Above Services rely on domain names to be pointed to specific Above name servers. Above provides real time domain traffic statistics for such domains. Above warrants that domain statistics are only used for the purposes of providing the Above Service. Above does not provides domain hosting services for content and neither controls the content displayed on such domains. Above Service redirects domain traffic to third party name servers. The content displayed on said domains are controlled and supplied by the third party providers. Above and related entities can not be held liable for any content displayed on such domains.
Notices shall be in the form an email, system message alerts or as a post on the Above.com forum.
By opening an Above.com account you agree to receive emails from Above.com and related entities. You have the ability to unsubscribe at anytime.
Termination for Cause. This Agreement may be terminated by one of the parties for cause immediately by providing notice upon the occurrence of any of the following events; (i) If the other ceases to do business, or otherwise terminates its business operations; or (ii) If the other shall fail to promptly secure or renew any license registration, permit, authorization or approval for the conduct of its business in the manner contemplated by this Agreement or if any such license, registration, permit, authorization or approval is revoked or suspended and not reinstated within thirty (30) days; or (iii) If the other breaches any material provision of this Agreement and fails to fully cure such breach within thirty (30) days (ten (10) days in the case of failure to pay) of written notice describing the breach; or (iv.) If the other becomes insolvent or seeks protection under any bankruptcy receivership trust deed, creditor's arrangement composition or comparable proceeding, or if any such proceeding is instituted against the other and not dismissed within thirty (30) days.
Termination for Convenience. You may terminate and cancel your service at any time with the discontinued use of this website.
Termination for Breach. Above may terminate and cancel your service with immediate affect if Above Client violates our Direct to Advertiser Services policies.
Survival. Except as otherwise specified in this Agreement, all Sections will survive any termination or expiration of this Agreement.
The Above Service relies on data sourced from a number of providers, including third party providers. We endeavor to provide real time domain statistical data and apply quality filters as an when applicable, but as a general guide we believe that pure data can be more valuable and be more representative. We can not accept liability for any cases of data skews and/or quality levels.
We also warrant that Above will not violate any third party contractual obligations in relation to third party providers.
Except as expressly set forth in this Agreement, neither party makes and each party expressly disclaims any warranties as to the subject matter of this Agreement, including implied warranties of title, non-infringement, merchantability, or fitness for a particular purpose. For the avoidance of doubt, (a) the Service is provided "as is"; and (b) Above makes no representations or warranties regarding the number, quality, or content of any Advertisements or the timing of delivery of such Advertisements, and, accordingly, Above Customers expressly assumes all risk and responsibility with respect thereto. Neither party shall be liable for any interrupted or inoperability of the Internet, technical malfunction, computer error, corruption or loss of information.
Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY PROVISION OF THIS AGREEMENT SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFIT OR LOST BUSINESS, COSTS OF DELAY OR FAILURE OF DELIVERY, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE.
If for any reason we are held liable, our liability is limited to the amount paid by you for applicable service(s) concerned. The parties acknowledge and agree that this section is an essential element of the Agreement and that, in its absence, the economic terms of this Agreement would be substantially different.
Release and Indemnification
Above customers releases and forever discharges Above and any related entities from all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with Above services.
Neither party shall be liable for the failure to perform any of its obligations under this Agreement, except for payment obligations, if such failure is caused by the occurrence of any event beyond the reasonable control of such party, including without limitation, fire, flood, strikes and other industrial disturbances, failure of raw materials suppliers, failure of transport, accidents, riots, insurrections, acts of God or orders of governmental agencies.
This Agreement shall be governed by Australian Law and the State of Victoria shall have exclusive jurisdiction in connection herewith. Above will comply with all applicable laws under this jurisdiction.
If a court of law or other tribunal of competent jurisdiction finds any provision of this Agreement invalid, illegal or unenforceable, the remaining portions of this Agreement shall remain in full force and effect and construed so as to best effectuate the original intent and purpose of this Agreement as expressed herein.
The parties agree that the terms and conditions of this Agreement shall prevail over any contrary or additional terms in any purchase order (unless agreed to in writing by both parties), sales acknowledgment, confirmation or any other document issued by either party.