1.0 INTRODUCTION
1.1 Some words or expressions have a special meaning in this document. These words are in bold type when they are used with that meaning.
1.2 This document sets out the general terms and conditions under which we agree to provide Dedicated Hosting Services to you. It is formulated as a Standard Form of Agreement for the purposes of section 479 of the Telecommunications Act 1997 (Cth) (“the Act”).
1.3 This document does not contain details of the specific services we have agreed to provide to you. These details were agreed with you when you purchased the service and may be indicated in the application forms, other documentation or product packaging.
1.4 If anything in this document is inconsistent with something specifically agreed in writing with you, then the particular arrangement agreed with you applies instead of the inconsistent part of this document to the extent of the inconsistency only.
1.5 We may vary the agreement made with you including the charges, at any time in accordance with the requirements of the Act.
1.6 You may obtain a copy of this document from our business office at Level 1, Suites 2-4, 12a Aplin St, Cairns Qld 4870, or by visiting our website (www.websecure.net.au).
2.0 DEFINITIONS
“we”, “our” and “us” means All Web Pty Ltd t/a Websecure ABN 97129911673, its successors or assigns.
“you”, “your” and “yourself” means the entity that has purchased the service from us.
“Acceptable Use Policy” means the policy published on our website (www.websecure.net.au).
“Customer Service Guarantee” means any applicable performance standard of that name made pursuant to the Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth) (see www.acma.gov.au).“equipment” means anything we provide to you except by outright sale.“notice” means any written notice that we send to you at the physical address, postal address, email address or fax or telephone number in our records.
“the service”, “service” and “services” means any of the services that we provide to you under this agreement, including any advice that we may give you.
“third party” means any entity we engage to assist with provision of the services.
“this agreement” means the agreement made between us consisting of:
these general terms and conditions;- the Acceptable Use Policy;
- terms specific to the service, as described on the application forms, our website,
the product packaging and other published documentation; and
- everything else agreed between us in writing, and with the consent of our Chief
Executive Officer, when you ordered the services (as amended from time to time).
3.0 PURPOSE OF AGREEMENT
3.1 Subject to the terms and conditions of this agreement, during the term of this agreement, we will provide internet connectivity services (the “Bandwidth”), certain equipment used in internet connectivity services (the “Hardware”), space in its business premises to store and operate such Hardware (“Space”) and licensing of the associated operating system and web server (the “Software”), together comprising a dedicated server package (together, the “Services”).
3.2 We desire to provide Services to you, and you desire to receive and compensate us for such Services. The provision of Services pursuant to this Agreement shall be initiated by the receipt and acceptance by us of this agreement issued by the you describing the Hardware, Software and Bandwidth that the you require.
3.3 Each Agreement will contain the prices, initial terms of Service and other information. The terms of this Agreement shall control the service.
4.0 PAYMENT TERMS AND PRICING
4.1 Payment Terms. Upon acceptance of the Service by us, the full amount of the initial fee , which includes any set-up fees and the Billing Term Fee and charges, is due and payable to us. Thereafter, all payments are due within 7 days of commencement of recurring term. Payments to us may be made by Cheque, Money Order, and accepted credit cards in Australian dollars.
4.1.1 We can refuse payment by credit card for amounts over AUD$3,000 or charge a 2.5% additional fee for the transaction value. Payment by credit card includes the authorisation to charge all recurring fees and charges to the Credit card on file with us on or around the date due. If the your credit card is declined for any reason, you will be sent a notice by email.
4.1.2 If payment is not received by us by the date due, we may make one final attempt to charge your credit card on or around the due date.
4.1.3 Payments via Invoice which include cheque, Money Order incur a $10.40 account keeping fee per Billing Term.
4.1.4 You are liable to pay us an $15 late payment fee for all payments that fall 14 days or over the invoice due date.
4.2 G.S.T. All payments required by this Agreement do not include Goods and Services Tax, of which you will be responsible for and will pay in full.
4.3 Pricing Disputes. You must notify us in writing of any disputed charges within 60 days of the date of the billing for such charges. If you do not notify us within that time period, you have waived any right to dispute such amounts, either directly or indirectly.
4.4 Collection. We may suspend, interrupt, or terminate Services on any account that is past due date by disabling telnet, ftp, http access and/or disabling the connection to the server. In the event of a disconnection, You must pay us a fee of $250 to reinstate the service. After receiving this fee and any amounts outstanding, we will reactivate the service during its normal business hours. We may send all accounts that have not been fully paid to a debt collection agency. You are responsible for paying all costs of collection including but not limited to legal and collection agency fees and interest at the rate of 15% per annum calculated from the date the payment was due. All accounting issues should be directed to accounts@websecure.net.au
5.0 MAINTENANCE AND SUPPORT
5.1 Ordering Maintenance and Support Services. We shall provide you with maintenance and support services for Hardware or Software, if such services are specified in this Agreement.
5.2 Exclusions. Maintenance and support services shall not include services for problems arising out of (a) tampering, modification, alteration, or addition to the Hardware or Software, which is undertaken by persons other than us or our authorised representatives; or (b) software or Hardware supplied by the you.
5.3 Yours Duties.
5.3.1 You shall document and promptly report all errors or malfunctions of the Hardware or Software to us in a reasonable time frame.
5.3.2 You shall maintain a current archive copy of all Software and data. In the event of a critical system failure that involves hardware replacement, we shall restore system to original configuration as at date of the Service commencement and you shall be responsible for restoring all data. You agree that disaster recovery measures are an additional component to the base service. Your not utilising a RAID capable system, utilising an additional our backup service, or utilising independent disaster recovery measures may experience data loss of both configuration and content with potentially no means of data recovery in the event of hard drive failure.
5.3.3 You are responsible for Network and Application Security measures and acknowledge that they may be vulnerable to network attacks should they not utilise TCP/IP packet filtering technologies which may or may not prevent guarantee system penetration prevention.
5.3.4 You acknowledge that Microsoft Windows and Linux operating systems along with additional 3rd party software may contain bugs or may be dysfunctional and are simply endorsed but not guaranteed by us.
5.3.5 You are responsible in maintaining your own Internet access and all necessary telecommunications equipment, software and other materials at your facilities necessary for your end user’s to access its information and materials through the Service.
5.3.6 You shall promptly report all changes in contact personnel via our Web Site, and receive written verification from us that changes have been received.
5.3.7 You shall follow support procedures as outlined on our web site when support is required.
5.3.8 You are responsible for the role of system administrator. System administrator as deemed by this Agreement is the collection of tasks related to utilising system software. This includes maintaining users, maintaining websites, maintaining email setting, configuration of databases, uploading content and associated programming.
5.3.9 You acknowledge that technical support is limited to hardware/network failures. Technical support relating to usage of software or code will be considered a chargeable service at our standard rates.
5.4 Remote Access Passwords. You agrees to provide us with root level password and inform us if and when the root level password changes.
5.4.1 In the event that you change passwords or usernames that prevent us from remotely accessing dedicated server, you waive all rights to Maintenance and Support Services.
5.4.2 You may sign a waiver to decline the use of such usernames and passwords and assume the risks, losses, and liability that may arise by electing to receive Services without Remote Access Passwords.
5.5 IP Addresses. We may designate for your use on a temporary basis the number of Internet Protocol Addresses (“IP Addresses”) specified on this Agreement from the address space allocated to us by APNIC.
5.5.1 You accept that the IP Addresses are the sole property of us and are designated to you to use on a temporary basis and are not portable.
5.5.2 We reserves the right to change the IP address designations at any time but in doing so shall use reasonable efforts to minimise inconvenience to you, and shall give you reasonable notice of changes.
5.5.3 You agree that you will have no right to use IP Addresses assigned to you upon termination of this Agreement, and that any change in IP Addresses you may need to make after termination of this Agreement shall be the sole responsibility of you.
6.0 SOFTWARE AND LICENCE RIGHTS
6.1 Operating System and Web Server Software Licence. During the term of a Service Order, we grant you a non-transferable, nonexclusive licence to use the Software specified in the Service Order, for its internal needs, to be used in solely on the Hardware provided, and solely in conjunction with the Services.
6.2 Software Licence Restrictions. You agree that you will not, directly or indirectly (and you will not allow others to), (a) copy the Software, except as necessary to install on Hardware and for internal, archival purposes.
6.2.1 In the event you make copies of the Software, You shall reproduce all proprietary notices on such copies; (b) sell, lease, licence, transfer, give possession of, or sub licence the Software or the documentation to others; (c) write or develop any derivative or other software programs, based, in whole or in part, upon the Software or any Confidential Information (“Confidential Information”)
6.3 Proprietary Rights. You shall not have any right, title, or interest in the Software, Hardware, documentation, or any copyrights, patents or trademarks, embodied or used in connection therewith, except for the limited licence to use provided in Sections 5.1 and
7.0 SERVICE LEVEL AGREEMENTS
7.1 During the term of this Agreement, you shall have a Service Level Agreement (SLA) for the any Downtime reported to us by you.
7.1.1 Other than as provided in this Service Level Agreement, we shall not be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any government authority, war, sabotage, fire, flood, strike or other labour disturbance, interruption of or delay in transportation, unavailability of or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of Services.
7.2 99% Uptime Guarantee. In the event of Downtime as defined in 5.2,we will at the your request, credit your account for the failed service as described below.
If the total downtime in the calendar month is:
Greater than 7.2 hours but not exceeding 14.4 hours |
20% of the Monthly recurring fee |
Greater than 14.4 hours but not exceeding 21.6 hours |
40% of the Monthly recurring fee |
Greater than 21.6 hours but not exceeding 28.8 hours |
60% of the Monthly recurring fee |
Greater than 28.8 hours |
80% of the Monthly recurring fee |
7.2.1 For purposes of this section, Downtime as defined in section 6.2 begins at time that you report service failure to us. If you do not report Service failure before we resolves problem, then Downtime will not be accumulated.
7.3 Downtime. For the purposes of this Section, Downtime shall mean any interruption of ninety (90) seconds or more in the availability to users of any application, directly or indirectly made available through the Services, only if such interruption is due to either:
failure by us to manage a situation so as to cause interruption in Network availability, or
A disruption in the connection between any such server and the Internet. For purposes of this Section, the Internet is deemed to consist of services that commence where we transmit a Customer's content to our carrier(s) at our border router port(s). Such carriers provide us with private and dedicated bandwidth. We undertake no obligation for the circuit or link between our facilities and such carrier’s services. If router packet loss is in excess of fifty percent (50%) and is sustained for one hundred and twenty (120) seconds or more, We will classify this as an “outage.” If an “outage” continues for a time period of more than four (4) minutes, then such outage will be deemed Downtime. If the latency across the Websecure IP network exceeds one hundred twenty (120) milliseconds, we will classify this as Downtime, or A fault in server hardware by which the services are provided. If time between your formal indication of service fault and our acknowledgement and response to begin resolution of the hardware fault exceeds four (4) hours, NR will classify this as Downtime.
7.3.1 For purposes of this section, Resolution is either the replacement of faulty parts, or the provision of new system as per section 4.3, or the escalation to professional services. In all cases we will deem whether a service fault is due to hardware.
7.4 Maintenance Windows. In order to maintain and upgrade our IP Network infrastructure, we perform scheduled maintenance on our equipment. Outages or performance degradation during scheduled maintenance windows as a result of router, switch or server maintenance, are not considered Downtime for purposes of this section. We shall make all commercially reasonable efforts to provide the you with reasonable prior notification of all scheduled and emergency maintenance procedures.
7.5 At your request, we will investigate any report of Downtime, and attempt to remedy any Downtime expeditiously. If we reasonably determines that all facilities, systems and equipment furnished by us are functioning properly, and that Downtime arose from some other cause, we can continue to investigate the Downtime at your request and expense under our Professional Services Agreement.
7.6 Sole Remedy. The terms and conditions of this Section 5 shall be your sole remedy and our sole obligation for any Downtime.
8.0 USER CONTENT AND CONDUCT
8.1 You are solely responsible for the content of any postings, data or transmissions using the Services (the “Content”), or any other use of the Services by you or by any person or entity you permit to access the Services (a “User”).
8.2 You represent and warrant that neither you nor any User will use the services for unlawful purposes (including, without limitation, infringement or copyright or trademark, misappropriation or trade secrets, fraud, invasion of privacy, illegal pornography, obscenity, defamation and illegal use or to interfere with, or disrupt, other network users, network services or network equipment. Disruptions include, without limitation, distribution of unsolicited advertising or chain letters, repeated harassment of other network users, wrongly impersonating another user, falsifying one’s network identity for improper or illegal purposes, sending unsolicited mass email, propagation or distribution of computer viruses, using the network to make or attempt to make unauthorised entry to another machine accessible location, via the network, and distributing tools designed for compromising security (i.e. including, but not limited to, password guessing programs, cracking tools or network probing tools).
8.3 We may suspend or terminate the services immediately, without prior notice to you, if we believes, in good faith, that you or a user is utilising the Services for any such illegal or disruptive purpose.
8.4 You shall defend, indemnify, and hold harmless us from and against all liabilities, judgements, claims, damages, settlements, expenses and costs (including legal fees and litigation expenses) arising out of or relating to any and all claims by any person relating to use of the Services, including, but not limited to, use of the Service without consent of the you.
9.0 CONFIDENTIAL INFORMATION
9.1 Confidential Information. Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party's business, plans, Customer, technology, and products, including the terms and conditions of this Agreement. Confidential Information will include, but not be limited to, each party's proprietary software and your information.
9.2 Each party agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by this Agreement, nor disclose to any third party (except as required by law or to that party’s attorneys, accountants and other advisors as reasonably necessary), any of the other party's Confidential Information and will take reasonable precautions to protect the confidentiality of such information.
9.3 Exceptions. Information will not be deemed Confidential Information hereunder if such information:
9.3.1 Is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party;
9.3.2 Becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party;
9.3.3 Becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or
9.3.4 is independently developed by the receiving party
10.0 DISCLAIMER OF WARRANTIES
10.1 We specifically disclaim all implied warranties, including but not limited to, the implied warranties of merchantability and fitness for a particular purpose. Except as otherwise provided in this Agreement, any written materials by us, or information on our web site, shall be for informational purposes only and, whether delivered or disseminated before or after the date of this Agreement, shall not create any express or implied warranties, guarantee of performance, or contractual obligations.
10.2 We do not and cannot control the flow of data to or from our Internet Data Centres and other portions of the Internet. Such flow depends in large part on the performance of internet services provided or controlled by third parties. At times, actions or inactions caused by these third parties can produce situations in which we’ Your’ connections to the Internet (or portions thereof) may be impaired or disrupted. Although we will use commercially reasonable efforts to take actions it deems appropriate to remedy and avoid such events,we cannot guarantee that they will not occur. Accordingly, We disclaim any and all liability resulting from or related to such events.
10.3 No Other Warranty. Except for the Service Level Agreement set out in section 5 above, the Services are provided on an "as is" basis, and your use of the Services is at your own risk. We do not make, and hereby disclaims, any and all other Express and/or implied warranties, including, but not limited to, warranties of merchantability, fitness for a particular purpose, noninfringement and title, and any warranties arising from a course of dealing, usage, or trade practice. We do not warrant that the Services will be uninterrupted, error-free, or completely secure.
11.0 TERM AND TERMINATION
11.1 Term. This Agreement will be effective for a period set out in the Service Order Form and will commence on the Effective date, unless earlier terminated according to the provisions of this Section 9.
11.2 Termination
11.2.1 For Convenience. You may terminate any Service Order after the expiration of the Contract Term by giving us at least 30 days written notice. If you give less than 30 days notice then you will be billed for Services until the end of the Contract Term, which is at least 30 days after such notice. We may terminate any Service Order by giving at least fourteen (14) days prior written notice of the date of termination of Services. All amounts due from the you for the account to which the Service Order relates must be paid in order for you to terminate a Service Order.
11.2.2 For Cause. Either party will have the right to terminate this Agreement if: (i) the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same, except in the case of failure to pay fees, which must be cured within seven (7) days after receipt of written notice from us; (ii) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (iii) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.
12.0 LIMITATION OF LIABILITY
12.1 Our liability (including, for the purpose of this paragraph only, and all of its employees, agents, representatives), to you (either directly or as a third party defendant in any action or proceeding) for any claim arising out of or relating to this Agreement or the provision of any Services (including, without limitation, maintenance and support) shall be limited to the amount of fees paid by you to us under this Agreement within one year preceding the date Customer contends claim arose. In no event shall we be liable for any loss of data, loss of profits, cost of cover, or any other special, incidental, consequential, indirect or punitive damages, however caused and regardless of theory or liability. This limitation will apply even if we have been made aware or advised of, the possibility of such damages.
12.2 Miscellaneous Provisions.\11.1 Force Majeure. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including act of war, acts of God, earthquake, flood, embargo, riot, sabotage, labour shortage or dispute, governmental act or failure of the Internet, provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to correct promptly such failure or delay in performance.
12.2 Marketing. You agrees that we may refer to you by trade name and trademark, and may briefly describe your Business, in our marketing materials and web site.
12.3 Government Regulations. You will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside Australia in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the Australian Government and any country or organisation of nations within whose jurisdiction Customer operates or does business.
12.4 Non-Solicitation. During the period beginning on the Installation Date and ending 1 year after the termination or expiration of this Agreement in accordance with its terms, Customer agrees that it will not, and will ensure that its affiliates do not, directly or indirectly, solicit or attempt to solicit for employment any persons employed by us during such period.
12.5 Governing Law; Dispute Resolution, Severability; Waiver. This Agreement is made under and will be governed by and construed in accordance with the laws of the State of QLD, Australia.Any dispute relating to the terms, interpretation or performance of this Agreement (other than claims for preliminary injunctive relief or other pre-judgment remedies) will be resolved at the request of either party through binding arbitration. Arbitration will be conducted in Qld, Australia. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.
12.6 Assignment; Notices. You may not assign your rights or delegate your duties under this Agreement either in whole or in part without the prior written consent of us, except that you may assign this Agreement in whole as part of a corporate reorganisation, consolidation, merger, or sale of substantially all of its assets. Any attempted assignment or delegation without such consent will be void. We may assign this Agreement in whole or part. This Agreement will bind and inure to the benefit of each party's successors and permitted assigns. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party indicated on the signature page hereof, or at such other address as may hereafter be furnished in writing by either party hereto to the other. Such notice will be deemed to have been given as of the date it is delivered, mailed or sent, whichever is earlier.
12.7 Relationship of Parties. We and you are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between us and you. Neither us nor you will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.
12.8 Entire Agreement; Counterparts. This Agreement, including all documents incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument.
12.9 Severability. In the event any of the provisions of this Agreement is determined to be unenforceable in full, that provision will be enforced to the maximum extent permissible, under applicable law, and the other provisions of this Agreement will remain in full force and effect.
12.10 Substitution. We may substitute, change or modify the Software or Hardware at any time, but shall not thereby substantially alter the technical parameters of the Services.
12.11 Release of Information. We reserves the right to release the contact information of your involved in violations of system security to administrators at other sites, in order to assist them in resolving security incidents. We will also fully co-operate with any government departments in investigations of suspected violations of law.
12.12 You and our authorised representatives have read the foregoing and all documents incorporated therein and agree and accept such terms effective as of the Effective Date.
