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Dedicated & Cloud Hosting Agreement

1. DEFINITIONS
1.1 Dictionary. In this Agreement, unless the context otherwise requires, capitalised words have the meaning given in the Dictionary at the back of this Agreement.
1.2 Interpretation. Reference to:

  1. the singular includes the plural and the plural includes the singular;
  2. a person includes a body corporate;
  3. a party includes the party’s executors, administrators, successors and permitted assigns;
  4. a reference to a clause is a reference to a clause or subclause of this Agreement;
  5. a reference to a subclause is a reference to a subclause of the clause in which that reference is made.

1.3 If a party consists of more than one person, this Agreement binds them jointly and each of them severally.
1.4 Headings are for convenience only and do not affect the interpretation of this Agreement.

2. DURATION OF AGREEMENT
2.1 Subject to clause 11, the term of this Agreement is:

  1. the Contract Period; and
  2. thereafter will continue on a monthly recurring basis until the Services are ceased by the giving of written notice of termination under clause 11 (2).

3. PURPOSE OF AGREEMENT.
3.1 During the term of this Agreement you desire receipt of the Services from INDIGO and INDIGO shall provide the Services to the Customer subject to the terms and conditions of this Agreement. The provision of Services pursuant to this Agreement shall be initiated by the receipt and acceptance by INDIGO of this agreement signed by the Customer describing the Hardware, Firewall, Managed Services, Managed Backup, System Software, Bandwidth, and IP Addresses that the Customer requires. In addition to the Service Specification, each agreement will contain the prices and other information specified above.

4. PAYMENT TERMS AND PRICING.
4.1 Payment Terms. Upon the Effective Date the full amount of the Setup Fee is due and payable to INDIGO. Upon the Commencement Date you will be charged at the Monthly Fee in advance for the term of this Agreement and all such payments are due within 21 days of invoice. The first and final payments due will be pro-rated for the part periods so that invoices are generally issued on the 1st of each month.
4.2 Automated Payments. If you elect to pay for the Services by credit card (as indicated by your provision to INDIGO of the credit card details for the Customer) or direct debit:

  1. you hereby authorise INDIGO to charge all recurring fees and charges to the credit card, or bank account, on file with INDIGO on or around the date due;
  2. you will receive a notice by e-mail if the Customer's payment is declined for any reason; and
  3. INDIGO may make one final attempt to charge Customer’s credit card, or bank account, on or around the due date if that payment is declined for any reason.

4.3 Invoice Payments. You will incur a $4.40 account keeping fee per Billing Term for payments via invoice which include cheque, Money Order and BPAY.
4.4 Late Payments. You are liable to pay INDIGO (a) an $25 late payment fee for all payments that fall  7 days or over the invoice due date plus (b) interest calculated monthly at the rate of 12% annually from the invoice due date.
4.5 G.S.T. All payments required by this Agreement are inclusive of Goods and Services Tax, of which the Customer will be responsible for and must pay in full.
4.6 Pricing Disputes. You must notify INDIGO in writing of any disputed charges within 60 days of the date of the billing for such charges and you agree not to withhold any disputed amount.
4.7 Collection. INDIGO may suspend, interrupt, or terminate Services on any account that is not paid by its due date by disabling telnet, ftp, http access and/or disabling the connection to the Dedicated Server. In the event of a disconnection of the Services pursuant to this subclause, the Customer must pay INDIGO a fee of $150 to reinstate the Services. After receiving this fee and any other amounts outstanding under this Agreement, INDIGO will reactivate the Services during INDIGO’s normal business hours. INDIGO may send all accounts that have not been fully paid to a debt collection agency or a solicitor and you are responsible for paying all costs of collection including, but not limited to, legal and collection agency fees. All accounting issues should be directed to accounts@serversaustralia.com.au.
5. MAINTENANCE AND SUPPORT.
5.1 Ordering Maintenance & Support Services. INDIGO shall provide the Customer with the Hardware & Cabinet Hardware Maintenance and Support and the Managed Services (or elements of them), if and to the extent such services are specified in the Service Specification and as may be requested by you verbally, by email or in writing in the future.
5.2 Exclusions. The Hardware & Cabinet Hardware Maintenance and Support, the Managed Services and the Firewall shall not include services for problems arising out of:

  1. tampering, modification, alteration, or addition to the Hardware, or the Cabinet Hardware, which is undertaken by persons other than INDIGO or its authorised representatives; or
  2. problems with the System Software
  3. software or hardware supplied by the Customer.

The Customer indemnifies INDIGO against any claim whatsoever for loss or damage in relation to any problem arising out of items (a) or (b) above.
5.3 Customer’s Duties. 5.3.1 In respect of each of (i) the Hardware & Cabinet Hardware Maintenance and Support and (ii) the Managed Services:

  1. the Customer shall document and promptly report all errors or malfunctions of the Hardware, Firewall, Cabinet Hardware or System Software to INDIGO in a reasonable time frame; and
  2. the Customer shall maintain a current archive copy of all software and data stored on the Dedicated Server.

5.3.2 Disaster Recovery Measures. In the event of a critical system failure as covered by your election of the Hardware & Cabinet Maintenance and Support involves replacement of Hardware, Firewall or Cabinet Hardware; INDIGO shall restore the Services according to original configuration as at date of the Services’ commencement and the Customer shall be responsible for restoring all data. You acknowledge and agree disaster recovery measures are an additional component to the base service and will be charged at the Hourly Rate - Professional Services. You also acknowledge and agree that if you do not utilise:

  1. a RAID capable system; and/or
  2. the Managed Backup; and/or
  3. Outsourced Managed Backup and/or
  4. independent disaster recovery measures,

the Customer may experience increased risk of 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 Security Measures and Application Security Measures. You acknowledge and agree that if you do not utilise TCP/IP Packet Filtering Technologies or any other technologies which could prevent system penetration, the Dedicated Server and Application may be vulnerable to network attacks. Even if you elect to use a Firewall and Firewall Management service, you recognize that INDIGO supplies those products and services in consultation with you, under your instruction and/or based on an assumption of what is the best possible configuration based on information supplied by you. It does not imply your Services are impenetrable from malicious attacks.
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 INDIGO.
5.3.5 You are responsible for maintaining the Customer's Internet access and all necessary telecommunications equipment, software and other materials at the Customer’s facilities necessary for Users to access their information and materials through the Services.
5.3.6 You shall nominate the Customer's contact personnel as at the Commencement Date and promptly report all changes in contact personnel via the INDIGO website, and receive written verification from INDIGO that changes have been received.
5.3.7 You shall follow support procedures as outlined on the INDIGO website when support is required.
5.3.8 Even if you have elected to receive the Systems Administration Services, for the term of this Agreement you are responsible for the role of Systems Administrator.
5.3.9 You acknowledge that technical support included with the Hardware & Cabinet Maintenance and Support option is limited to failures of the Hardware and/or the Cabinet Hardware and/or failures of the Indigo Network. Technical support relating to usage of any software or code (including, without limitation, the Applications) will be considered a chargeable service at the Hourly Rate - Professional Services.
5.4 Remote Access Passwords. You agree to provide INDIGO with root level password and inform INDIGO if and when the root level password changes. In the event that the Customer changes passwords or usernames that prevent INDIGO from remotely accessing the Dedicated Server, the Customer waives all rights to Hardware & Cabinet Hardware Maintenance and Support Services.
5.5 IP Addresses. INDIGO may designate for Customer’s use on a temporary basis the number of IP Addresses specified in the Service Specification from the address space allocated to INDIGO by Asia-Pacific Network Information Centre (APNIC). You accept that the IP Addresses are the sole property of INDIGO and are designated to the Customer to use on a temporary basis and are not portable. INDIGO reserves the right to change the IP Addresses’ designations at any time but in doing so shall use reasonable endeavours to minimise inconvenience to the Customer, and shall give you reasonable notice of changes. You agree that upon termination of this Agreement the Customer will have no right to use IP Addresses assigned to the Customer and that any change in IP Addresses the Customer may need to make after termination of this Agreement shall be the sole responsibility of the Customer.

 

6. SOFTWARE AND LICENSE RIGHTS.
6.1 Operating System and Web Server Software License. During the term of this Agreement, INDIGO grants the Customer a non-transferable, non-exclusive license to use the System Software, to be used solely on the Hardware provided, and solely in conjunction with the Services.
6.2 Software License Restrictions. You agree that the Users will not, directly or indirectly (and that you will not allow others to):

  1. copy the System Software, except as necessary to install on the Hardware and for internal, archival purposes (and in the event you make copies of the System Software, you shall reproduce all proprietary notices on such copies);
  2. sell, lease, license, transfer, give possession of, or sub license the System Software or its documentation to others;
  3. write or develop any derivative or other software programs, based, in whole or in part, upon the System Software

6.3 Proprietary Rights. You shall not have any ownership or proprietorial right in or to the System Software, the Hardware, the Firewalls or their documentation. Nor shall you have any right, title, or interest in or to any copyrights, patents or trademarks, embodied or used in connection therewith, except for the limited license to use provided in clauses 6.1 and 6.2.
6.4 Microsoft EULA. You also acknowledge and agree to your usage of the System Software being subject to the provisions contained in the Microsoft Volume Licensing End User License Terms.
6.5 Licensing Variation. You acknowledge and agree to report to INDIGO on a monthly basis  any variation to the number of user or CAL or SAL units utilised by software in relation to any software license products that are installed  on your server or servers as required by licensing vendors.

7. SERVICE LEVEL AGREEMENTS.
7.1 SLA. During the term of this Agreement, the Customer shall have the benefit of a Service Level Agreement for any Hardware Downtime, Service Downtime or Firewall Downtime reported to INDIGO by the Customer.
7.2 Force Majeure Event. Other as expressly provided in this clause (7), INDIGO shall not be liable for failure or delay in performing its obligations under or pursuant to this Agreement if such failure or delay is due to:

  1. any Force Majeure Event; and/or
  2. any reckless, malicious or negligent activity of the Customer or any third party; and/or
  3. any circumstances beyond INDIGO’s reasonable control, including, without limitation, 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 the Supplied Services.

7.3 99.99% Uptime Guarantee. Subject to clauses 7.2 and 7.7, in the event of Service Downtime, such that the Bandwidth connection from the Dedicated Server to the outbound port of your cabinet switch fails for more than 4 minutes cumulative in any one calendar month, INDIGO will at the Customer’s request, providing the request is made no more than one calendar month from time of service disruption, credit the Customer’s account for the failed service 10% of your Monthly Fee.  Thereafter, INDIGO will credit your account for Service Downtime according to the following schedule:

Greater than 4 minutes but not exceeding 7.2 hours

10% of the Monthly recurring fee

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

7.4 Hardware Downtime. If Hardware Downtime occurs then, subject to clauses 7.2 and 7.7, INDIGO will at the Customer's request credit the Customer's account in respect of a calendar month 10% of your Monthly Fee for every one hour of cumulative Hardware Downtime in excess of the first hour, up to a maximum of 100% of that Monthly Fee.
7.5 Commencement of Downtime. For the purposes of this clause (7), any Downtime begins at the time the Customer reports Services failure to INDIGO. If the Customer does not report Services failure or Hardware Fault or Firewall Downtime before INDIGO resolves the problem, then Downtime will not be accumulated pursuant to clause 7.3 or clause 7.4.
7.6 Type of Downtime. For the purposes of this clause (7), INDIGO shall in its sole discretion determine whether an incident of Hardware or Services failure reported to INDIGO is to be treated as either (a) Service Downtime; or (b) Hardware Downtime or (c) an incident not comprising Downtime.
7.7 Maintenance Windows. In order to maintain and upgrade the INDIGO IP Network Infrastructure, INDIGO performs scheduled maintenance on its 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 clause (7). INDIGO shall make all commercially reasonable efforts to provide the Customer with reasonable prior notification of all scheduled and emergency maintenance procedures.
7.8 Investigation of Service Interruptions. At your request, INDIGO will investigate any report of any Hardware or Services failure and attempt to remedy any Downtime expeditiously. If INDIGO reasonably determines that all facilities, systems and equipment furnished by INDIGO are functioning properly, and that the reported Hardware or Services failure arose from some other cause, INDIGO can continue to investigate such downtime at your request and expense being at the Hourly Rate - Professional Services plus disbursements.
7.9 Sole Remedy. The terms and conditions of this clause 7 shall be the Customer’s sole remedy and INDIGO's sole obligation for any Downtime and for any other Hardware or Services failure.

8. USER CONTENT AND CONDUCT.
8.1 You are solely responsible for the content of any postings, data or transmissions using the Supplied Services (the “Content”), or any other use of the Supplied Services by a User. You represent and warrant that the Users will not use the Supplied Services:

  1. for unlawful purposes including, without limitation, infringement of copyright or trademark, misappropriation of trade secrets, fraud, invasion of privacy, illegal pornography, obscenity, defamation and any illegal use; and/ or
  2. to interfere with, or cause or contribute to disruption(s) of other network users, network services or network equipment.
  3. to run game servers, IRC servers or proxy servers

8.2 For the purposes of subclause 1 "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 INDIGO may suspend or terminate the Supplied Services immediately, without prior notice to you, if INDIGO believes, in good faith, that the Customer or any other User is utilising the Supplied Services for any such unlawful purpose or any such disruption.
8.4 You shall defend, indemnify, and hold harmless INDIGO 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 Supplied Services, including, but not limited to, use of the Supplied Service without the consent of the Customer.

9. 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 Confidential Information. 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.

10. DISCLAIMER OF WARRANTIES.
10.1 INDIGO specifically disclaims all implied warranties, including but not limited to, the implied warranties of merchantability and fitness for a particular purpose to the extent that INDIGO is permitted to do so by the Governing Law. Except as otherwise provided in this Agreement, any written materials by INDIGO, or information on INDIGO’s website, shall be for informational purposes only and, whether delivered or disseminated before or after the Commencement Date, shall not create any express or implied warranties, guarantee of performance, or contractual obligations. Specifically the Customer should recognise that data loss and software errors can result in Backup
10.2 No Other Warranty. Except for the Service Level Agreement set out in clause 7 above, the Supplied Services are provided on an "as is" basis, and the Customer's use of the Supplied Services is at its own risk. INDIGO does 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, non-infringement and title, and any warranties arising from a course of dealing, usage, or trade practice. INDIGO does not warrant that the Supplied Services will be uninterrupted, error-free, or completely secure.

11. TERM AND TERMINATION.
11.1 Term. This Agreement will commence on the Commencement Date and will be effective until terminated according to the provisions of this clause 11.
(a) Virtual Firewall. Virtual firewall products are subject to a 12 month license agreement which automatically renews for an additional 12 month period at the anniversary date of this agreement. Further renewal periods apply at each successive anniversary date. Payment for a full 12 month period is required (paid monthly or annually) and non-refundable on cancellation.
11.2 Termination.
(a) For Upgrade. The Customer may terminate this Agreement with no penalty, if they sign a new Agreement for Services with a higher Monthly Fee than this Agreement.
(b) For Convenience. The Customer may terminate this Agreement by giving INDIGO at least 30 days prior written notice. INDIGO may terminate this Agreement by giving the Customer at least fourteen (14) days prior written notice.

If this Agreement is terminated by the Customer pursuant to this clause 11.2(b), then:
(i) if the effective date of termination is on or before the end of the Contract Period, all amounts due from the Customer to INDIGO for the entire Contract Period shall be payable by the Customer; or
(ii) if the effective date of termination is after the end of the Contract Period, only those amounts due from the Customer to INDIGO for the period up to and including the effective termination date shall be payable by the Customer. All amounts due from the Customer to INDIGO must be settled in full before any termination notice is accepted.
If this Agreement is terminated by INDIGO pursuant to this clause 11.2(a), then only those amounts due from the Customer to INDIGO for the period up to and including the effective termination date shall be payable by the Customer.

(c) For Cause. Either party will have the right to terminate this Agreement immediately by notice in writing 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 same, except in the case of the Customer’s failure to pay fees charged by INDIGO, which must be cured within seven (7) days after receipt of written notice from INDIGO; or
(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.

(d) For Other Reasons. Without limiting the generality of any other clause in this Agreement, INDIGO may terminate this Agreement immediately by notice in writing if:

  1. the Customer, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;
  2. the Customer, being a natural person, dies; or
  3. the Customer ceases or threatens to cease conducting its business in the normal manner;
  4. the service on either party of a notice from a Court or Tribunal of competent jurisdiction with an order that one or a number of the Customer's websites that are loaded onto Dedicated Server be unloaded, taken down or removed from the Internet;
  5. the occurrence of any malicious, reckless or negligent activity (including without limitation, DOS attacks, hacking or virus) which causes or is likely to cause a risk to the stability of the Indigo Network and/ or the INDIGO IP Network Infrastructure;
  6. any over-loading of the Dedicated Server and/or the Indigo Network beyond its or their reasonable capacity including, but not limited to, stress-testing it or them by sending a large number of contemporaneous requests via the Dedicated Server.

11.3 INDIGO’s Remedies. If notice is given to the Customer pursuant to clause 11.2 (b) or clause 11.2 (c) INDIGO may, in addition to terminating this Agreement:

  1. retain any moneys paid;
  2. charge a reasonable sum for work performed in respect of which work no sum has been previously charged;
  3. be regarded as discharged from any further obligations under this Agreement; and
  4. pursue any additional or alternative remedies provided by law.

12. LIMITATION OF LIABILITY.
12.1 INDIGO’s liability (including, for the purpose of this clause (12) only, and all of its employees, agents, representatives) to the Customer and any other User (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 Supplied Services (including, without limitation, maintenance and support) shall be limited to the amount of fees paid by the Customer to INDIGO under this Agreement within one year preceding the date Customer contends the claim arose. In no event shall INDIGO be liable for any loss or damage including without limitation 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 INDIGO has been made aware or advised of the possibility of such damages.

13. MISCELLANEOUS PROVISIONS.
13.1 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 without limitation any Force Majeure Event, 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.
13.2 Marketing. You agree that INDIGO may refer to the Customer by trade name and trademark, and may briefly describe the Customer’s business in INDIGO's marketing materials and website, provided the text and format have been approved in writing in advance by an authorised officer of the Customer.
13.3 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.
13.4 Non-Solicitation. Should the Customer or its related bodies corporate or its affiliates, directly or indirectly, solicit or attempt to solicit for employment any persons employed by INDIGO during the period beginning on the Commencement Date and ending 1 year after the termination or expiration of this Agreement in accordance with its terms, the Customer must pay INDIGO an amount equal to 35% of INDIGO’s total salary package for that employee.
13.5 Governing Law; Waiver. This Agreement is made under and will be governed by and construed in accordance with the laws of the State of NSW, Australia and, the parties submit to the non-exclusive jurisdiction of the Courts of that State. 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.
13.6 Assignment; Notices. The Customer may not assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of INDIGO, except that the Customer 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. INDIGO 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 INDIGO to the customer 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 Customer indicated on page one hereof, or at such other address as may hereafter be furnished in writing by INDIGO to the Customer. Such notice will be deemed to have been given as of the date it is delivered. Any notice or communication required or permitted to be given hereunder by the Customer to INDIGO must be delivered either by confirmed facsimile at INDIGO’s fax number or emailed to dh-support@serversaustralia.com.au. Such notice will be deemed to have been given as at the date INDIGO provides a return receipt by e-mail.
13.7 Relationship of Parties. INDIGO and the Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between INDIGO and the Customer. Neither INDIGO nor the Customer 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.
13.8 Entire Agreement; Counterparts. This Agreement, including all documents incorporated herein by reference, constitutes the entire 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.
13.9 Severability. If any provision of this Agreement is determined to be unenforceable in full, that provision shall be enforced to the maximum extent permissible under the applicable law, and the other provisions of this Agreement shall remain in full force and effect.
13.10 Substitution. INDIGO may substitute, change or modify the System Software or Hardware at any time, but shall not thereby substantially alter the technical parameters of the Services.
13.11 Release of Information. INDIGO reserves the right to release the contact information of Customer involved in violations of system security to administrators at other sites, in order to assist them in resolving security incidents. INDIGO will also fully co-operate with any government departments in investigations of suspected violations of law.
13.12 Indigo T&C’s. You also agree to the terms and conditions visible at http://www.Indigo.com.au/customer-service/legals/.
13.13 Precedence. The documents comprising this Agreement shall be read in the following order of precedence:

  1. the clauses of this Agreement;
  2. the Microsoft Volume Licensing End User License Terms;
  3. the terms and conditions visible at http://www.Indigo.com.au/customer-service/legals/
  4. the Service Level Agreement referred to in clause 7.1 above.

Where any conflict occurs between the provisions contained in two or more of the documents forming this Agreement, the document lower in the order of precedence shall where possible be read down to resolve such conflict. If the conflict remains incapable of resolution by reading down, the conflicting provisions shall be severed from the document lower in the order of precedence without otherwise diminishing the enforceability of the remaining provisions of that document.
Customer’s and INDIGO’s authorised representatives have read the foregoing and all documents incorporated therein and agree and accept such terms effective as of the Commencement Date.

 

 

THE DICTIONARY

Application” means any application or software used by or on behalf of the Customer including, without limitation, the System Software.
"Application Fault" means any Supplied Services fault, interruption or downtime arising at least in part from an Application.
"Application Security Measures" means measures taken or to be taken throughout an Application's life cycle to prevent exceptions in the security policy of an Application or the underlying vulnerabilities through flaws in the design, development, deployment, upgrade or maintenance of the Application.
"Bandwidth" means the Internet connectivity services of the data/bandwidth specified in the Service Specification.

  1. Bandwidth is measured using Netflow data directly from the routers, and is calculated as all traffic in + out;
  2. Bandwidth usage is counted from the first to the last day of the month. In the first partial calendar month of service, bandwidth quota is pro-rated from the day the Service was ordered to the last day of the month;
  3. Usage to and from backup servers inside the Indigo Network is not counted against your usage;
  4. Bandwidth may be purchased in advance prior to the commencement of the monthly bandwidth cycle at the rate listed on the website. If bandwidth is purchased after the commencement date, then the standard overage rate of $5.00/GB will apply;
  5. Unused bandwidth does not carry over to the next month;
  6. Indigo will audit your bandwidth usage on the first business day of each month. Overage will be automatically invoiced and charged on your account;
  7. Indigo does not monitor bandwidth consumption or provide usage level warnings throughout the month. It is your responsibility to monitor your bandwidth via your NetFlow Analyzer client area or via some other method of your choice

"Cabinet Hardware" means the network from outside the Dedicated Server to outside the Customer's cabinet switch.

"Confidential Information" means the confidential information of a party hereto which relates to the subject matter of this Agreement and includes but is not limited to information relating to its business plans, customers, customer information, technology, products and its proprietary software, other than information which:

  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;
  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;
  3. becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or
  4. is independently developed by the receiving party.

"Commencement Date" means the date of INDIGO’s receipt and acceptance of this Agreement signed by you, as confirmed by a notification e-mail sent by INDIGO to the Customer.

"Contract Period" means the period so specified in the Service Specification during which INDIGO shall initially provide the Services to the Customer, starting from the Commencement Date.

"Customised Software Installation" means INDIGO’s installation of software on the Hardware, other than the System Software, at the request of the Customer and at the discretion of INDIGO.

"Data Centre" means the business premises provided by or for INDIGO to store and operate the Hardware;

"Downtime" means collectively:

  1. Hardware Downtime;
  2. Service Downtime.

"Dedicated Server" means the server operated on the Hardware using the System Software and the Bandwidth;

"Effective Date" means the date of INDIGO’s receipt and acceptance of this Agreement signed by you, as confirmed by a notification e-mail sent by INDIGO to the Customer.

Firewall” means the Packet Filtering Technology so specified in the Service Specification.

"Firewall Downtime" means any downtime of the Firewall installed by INDIGO on your Dedicated Server.

Firewall Management” means configuring a Firewall to a Customer’s specification.

"Force Majeure Event" means a circumstance beyond the reasonable control of the parties which results in a party being unable to observe or perform on time an obligation under this Agreement. Such circumstances shall include but shall not be limited to:

  1. acts of God, lightning strikes, earthquake, flood, storms, explosions, fire and any natural disaster;
  2. act of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution;
  3. strike or other labour disturbance;
  4. governmental act or failure of the Internet;

“Goods and Services Tax” is a tax collected on behalf of government and is currently 10%, but may change over time

"Governing Law" means the laws of the Commonwealth of Australia or of the State of New South Wales, whichever is applicable in respect of a particular subject matter;

"Hardware" means the server equipment on which the Dedicated Server is running including the cabling therefrom to the outbound port of the Customer's cabinet switch

"Hardware Downtime" means when your Dedicated Server is not online due to Hardware Fault or Firewall Downtime and, within 15 minutes of one of INDIGO’s call centre support operators lodging an emergency ticket, your Dedicated Server fails to come online after a reboot.

"Hardware & Cabinet Hardware Maintenance and Support" means maintenance of the Hardware, Firewall and Cabinet Hardware, so as to enable provision of the Services including any maintenance, servicing and repairing of identified errors or malfunctions of the Hardware, Firewall or the Cabinet Hardware or the Indigo Network.

"Hardware Fault" means a Hardware fault arising solely or primarily from the failure of a physical component of the Hardware but excluding any arising from:

  1. any Application Fault; or
  2. any Firewall Downtime.

Hourly Rate - Professional Services” means an hourly fee payable by you to INDIGO in respect of professional services supplied to you over and above the Services charged to you on an hourly basis or part thereof.

IP Addresses” means an internet protocol (IP) address being a numerical identification and logical address that is assigned to devices participating in a computer.

"Managed Backup" means an online service provided to the Customer for the creation of a backup copy of digital files stored on the Hardware of (a) the file types, (b) image snapshots and (c) the backup frequency or scheduled to times requested by you, or provided under default settings and described under this heading in the Service Specification, or provided for free and bundled with a Service described in the Service Specification.

"Managed Services" means collectively:

  1. Managed Security Updates;
  2. Outsourced Website Monitoring;
  3. Outsourced Backup Services;
  4. Systems Administration Services.

"Managed Security Updates" means the server management service supplied by INDIGO to the Customer in order to perform security patching and monitoring of the Customer's websites loaded onto the Dedicated Server.

Microsoft Volume Licensing End User License Terms” means the document so styled as extracted at the end of this Agreement and any updated version thereof issued by Microsoft.

"Monthly Fee" means the fee so specified in the Service Specification.

Indigo Network” means the network from outside your cabinet switch to the border of the facilities of the INDIGO Carriers (that border being where INDIGO transmits a Customer's content to the relevant INDIGO Carriers at the INDIGO border router port(s)) but excluding any network arising from the circuit or link between the INDIGO IP Network Infrastructure and the relevant INDIGO Carriers.

"Network Security Measures" means security measures to prevent exceptions in the security for the network used by the User for purposes including, without limitation, to receive the Supplied Services.

"INDIGO Carriers" mean the third-party providers of the carrier services of the Bandwidth.

"INDIGO IP Network Infrastructure" means the technical infrastructure that hosts and connects INDIGO’s dedicated hosting customers to the Internet.

Outsourced Backup Services“ means INDIGO or an authorised representative of INDIGO helping you manage a Managed Backup service.

Outsourced Website Monitoring“ means INDIGO or an authorised representative of INDIGO monitoring your website and Applications as installed on the Dedicated Server for possible outages or a deterioration in performance.

"Packet Filtering Technologies" means one technique (among many) for implementing security firewalls specifically by controlling access to a network by analysing the incoming and outgoing packets and letting them pass or halting them based on the IP Addresses of the source and destination.

"Packet Loss" means when one or more packets of data traveling across a computer network fail to reach their destination as a result of Hardware failure or Cabinet Hardware failure and excludes loss as a result of DOS attacks, hacking attacks, or any non-hardware related issue.

"RAID" means a Redundant Array of Independent Disks being a system of multiple hard drives for sharing or replicating digital data.
 
"Service Specification" means the entirety of the equipment, software, services and pricing set out under heading in the box on page one of this document.

"Service Downtime" means:

  1. 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:
    1. a failure by INDIGO to use reasonable endeavours to manage a situation so as to cause interruption in network availability, or
    2. a disruption in the Indigo Network; or
  2. If Packet Loss is in excess of 20 percent (20 %) and is sustained for five minutes or more; or
  3. If 100% Packet Loss is identified and continues for one minute or more; or
  4. If the latency across the INDIGO IP Network Infrastructure exceeds one hundred and twenty (120) milliseconds; but excluding any Service downtime itemised in subparagraphs (a) to (d) above arising from:
  5. Hardware Fault; or
  6. Application Fault; or
  7. Firewall Downtime.

"Services" means a dedicated server package for you comprised of:

  1. the Setup Services;
  2. the Bandwidth;
  3. the Indigo Network;
  4. the Hardware;
  5. the System Software;
  6. the Firewall; and
  7. the Data Centre.

"Setup Fee" means the fee so specified in the Service Specification.

"Setup Services" means the tasks involved in initialisation and commencement of supply of the Services by INDIGO including the installation of the System Software onto the Dedicated Server and their configuration to receive the Bandwidth.

SMS Monitoring” means the applications so named accessible via INDIGO’S online admin panel which can be used by the Customer to enable SMS alerts in the event of downtime such as to render out of action the Customer's websites or applications which are loaded onto the Dedicated Server and described under this heading in the Service Specification.

"Supplied Services" means any service, software or equipment supplied or to be supplied to you pursuant to this Agreement, including:

  1. the Services; and
  2. any optional services nominated by you over and above the base Services such as:
    1. the Hardware & Cabinet Hardware Maintenance and Support;
    2. IP Addresses;
    3. Website Monitoring;
    4. Systems Administration Services;
    5. Managed Services;
    6. Managed Backup;
    7. Firewall Management; and
    8. any services supplied to you hereunder at the Hourly Rate - Professional Services.

"System Software" means the operating software named in the Service Specification being the operating system and web server software associated with providing the Bandwidth and/or operating the Hardware.

"Systems Administration Services" means INDIGO undertaking a role of assisting the Systems Administrator with basic tasks.

"Systems Administrator" means the collection of tasks related to maintaining and utilising System Software including, without limitation, maintaining users, maintaining websites, maintaining email setting, configuration of databases, uploading content and associated programming.

"User" or "Users" means the Customer or any other person or entity that the Customer permits or allows to access the Supplied Services.

"Website Monitoring" means the applications so named accessible via INDIGO’S online admin panel which can be used by the Customer to enable e-mail alerts, or as an optional extra SMS Monitoring, in the event of downtime such as to render out of action the Customer's websites or applications which are loaded on the Dedicated Server.

MICROSOFT VOLUME LICENSING END USER LICENSE TERMS
TERMS AND CONDITIONS REGARDING USE OF MICROSOFT SOFTWARE

This document governs the use of Microsoft software, which may include associated media, printed materials, and “online” or electronic documentation (individually and collectively, “Licensed Products”) provided by (hereinafter referred to as “Customer”). Customer does not own the Licensed Products and the use thereof is subject to certain rights and limitations of which Customer must inform you. Your right to use the Licensed Products is subject to the terms of your agreement with Customer, and to your understanding of, compliance with, and consent to the following terms and conditions, which Customer does not have authority to vary, alter, or amend.

1. DEFINITIONS.
“Client Software” means software that allows a Device to access or utilize the services or functionality provided by the Server Software.
“Device” means each of a computer, workstation, terminal, handheld PC, pager, telephone, personal digital assistant, “smart phone,” server or other electronic device.
“Server Software” means software that provides services or functionality on a computer acting as a server.
“Software Documentation” means any end user document included with server software.
“Redistribution Software” means the software described in Paragraph 4 (“Use of Redistribution Software”) below.

2. OWNERSHIP OF LICENSED PRODUCTS. The Licensed Products are licensed to Customer from an affiliate of the Microsoft Corporation (collectively “Microsoft”). All title and intellectual property rights in and to the Licensed Products (and the constituent elements thereof, including but not limited to any images, photographs, animations, video, audio, music, text and “applets” incorporated into the Licensed Products) are owned by Microsoft or its suppliers. The Licensed Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Your possession, access, or use of the Licensed Products does not transfer any ownership of the Licensed Products or any intellectual property rights to you.

3. USE OF CLIENT SOFTWARE. You may use the Client Software installed on your Devices by Customer only in accordance with the instructions, and only in connection with the services, provided to you by Customer. The terms of this document permanently and irrevocably supersede the terms of any Microsoft End User License Agreement that may be presented in electronic form during your use of the Client Software.

4. USE OF REDISTRIBUTION SOFTWARE. In connection with the services provided to you by Customer, you may have access to certain “sample,” “redistributable” and/or software development (“SDK”) software code and tools (individually and collectively “Redistribution Software”).

YOU MAY NOT USE, MODIFY, COPY, AND/OR DISTRIBUTE ANY REDISTRIBUTION SOFTWARE UNLESS YOU EXPRESSLY AGREE TO AND COMPLY WITH CERTAIN ADDITIONAL TERMS CONTAINED IN THE SERVICES PROVIDER USE RIGHTS (“SPUR”) APPLICABLE TO CUSTOMER, WHICH TERMS MUST BE PROVIDED TO YOU BY CUSTOMER. Microsoft does not permit you to use any Redistribution Software unless you expressly agree to and comply with such additional terms, as provided to you by Customer.

5. COPIES. You may not make any copies of the Licensed Products; provided, however, that you may (a) make one copy of Client Software on your Device as expressly authorized by Customer; and (b) you may make copies of certain Redistribution Software in accordance with Paragraph 4 (Use of Redistribution Software). You must erase or destroy all such Client Software and/or Redistribution Software upon termination or cancellation of your agreement with Customer, upon notice from Customer or upon transfer of your Device to another person or entity, whichever occurs first. You may not copy any printed materials accompanying the Licensed Products.

6. LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION AND DISASSEMBLY. You may not reverse engineer, decompile, or disassemble the Licensed Products, except and only to the extent that applicable law, notwithstanding this limitation, expressly permits such activity.

7. NO RENTAL. You may not rent, lease, lend, pledge, or directly or indirectly transfer or distribute the Licensed Products to any third party, and may not permit any third party to have access to and/or use the functionality of the Licensed Products except for the sole purpose of accessing the functionality of the Licensed Products in the form of software services in accordance with the terms of this agreement and any agreement between you and Customer.

8. TERMINATION. Without prejudice to any other rights, Customer may terminate your rights to use the Licensed Products if you fail to comply with these terms and conditions. In the event of termination or cancellation of your agreement with Customer or Customer’s agreement with Microsoft under which the Licensed Products are licensed, you must stop using and/or accessing the Licensed Products, and destroy all copies of the Licensed Products and all of its component parts.

9. NO WARRANTIES, LIABILITIES OR REMEDIES BY MICROSOFT. ANY WARRANTIES, LIABILITY FOR DAMAGES AND REMEDIES, IF ANY, ARE PROVIDED SOLELY BY CUSTOMER AND NOT BY MICROSOFT, ITS AFFILIATES OR SUBSIDIARIES.

10. PRODUCT SUPPORT. Any support for the Licensed Products is provided to you by Customer and is not provided by Microsoft, its affiliates or subsidiaries.

11. NOT FAULT TOLERANT. THE LICENSED PRODUCTS MAY CONTAIN TECHNOLOGY THAT IS NOT FAULT TOLERANT AND ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS OR APPLICATIONS IN WHICH THE FAILURE OF THE LICENSED PRODUCTS COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, PROPERTY OR ENVIRONMENTAL DAMAGE.

12. EXPORT RESTRICTIONS. The Licensed Products are of U.S. origin for purposes of U.S. export control laws. You agree to comply with all applicable international and U.S. laws that apply to the Licensed Products, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by the U.S. and other governments. For additional information, see http://www.microsoft.com/exporting/

13. LIABILITY FOR BREACH. In addition to any liability you may have to Customer, you agree that you will also be legally responsible directly to Microsoft for any breach of these terms and conditions.

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