General Terms and Conditions
Table of Contents
- 1. Introduction, Interpretation & Scope
- 2. Commencement
- 3. Availability of Service
- 4. Passwords and content
- 5. Warranties, Liabilities and Undertakings
- 6. Our Warranties and Liabilities
- 7. Suspension and Termination of the Service
- 8. Fees, Charges and Payments
- 9. Backup
- 10. Spam and Virus Filters
- 11. Intellectual Property
- 12. Severability
- 13. Assignment
- 14. Changes to Terms
- 14. Entire Agreement
- 15. Governing Law
- 16. Notifications & Communications
1. Introduction, Interpretation & Scope
(a) In this document, ‘we’, ‘our’ and ‘us’ means Sprite Networks and ‘you’ and ‘your’ mean the reseller.
(b) This agreement outlines the terms and conditions that apply to your use of our services.
(a) The scope of the services are as follows (“Services”):
2.1 This agreement commences at the time we accept your order for Services.
3. Availability of Service
3.1 We endeavour to provide continuing availability of the Service but we will not be liable for Service interruptions or down time of the Service except if agreed separately in writing with us.
3.2 In these terms and conditions ‘Service’ primarily refers to our provision of software on one of our Servers and a connection to and from the Internet for web-based services in accordance with the Scope.
3.3 Details of all maintenances will be provided online at http://sprite.net.au/status. Scheduled maintenances will be conducted at such times which will affect the fewest users. If a scheduled maintenance requires a service to be offline for more than 30 minutes details of the scheduled maintenances will be provided at least 2 days in advance. If we need to perform unscheduled maintenance that requires a service to be offline for any period of time, we will post details of the event as soon as information is available.
3.4 We will not be liable for any costs incurred by you due to technical failure, modification, or maintenance of the Service.
4. Passwords and content
4.1 It is your responsibility to keep any passwords or log-in details used in connection with the Service secure.
4.2 You are solely responsible for any content of your Service and you must hold and continue to hold the copyright in your data or trade mark in any name and logo that you use, or that you are licensed and will continue to be licensed to use that data or name or logo.
4.3 Any explicit content on your web site must be classified and you will restrict access to it where required by law. You will not use the Services to supply any form of content prohibited by law.
4.4 You will conduct such tests and computer virus scanning as may be necessary to ensure that data uploaded by you onto or downloaded by you from the server does not contain any computer virus and will not in any way, corrupt the data or systems of any person.
4.5 You are solely responsible for dealing with persons who access your data and you will not refer complaints or inquiries in relation to such access to us.
4.6 You agree that if, in our sole discretion, you are using the Services in a way which is not legitimate, is not in compliance with this agreement or any law that we may suspend, disable, limit or terminate the Services or deny you access to the Service without notice, including taking down any of your data or content.
5. Warranties, Liabilities and Undertakings
5.1 You indemnify and keep indemnified, defend and hold us harmless from and against any claim howsoever arising brought against us by a third party resulting from the provision of Services by us to you and your use of the Services, and in respect of all losses, costs, actions, proceedings, claims, damages, expenses (including reasonable legal costs and expenses), demands, or liabilities, whatsoever suffered and howsoever incurred by us in consequence of your breach or non-observance of this agreement.
5.2 At the time of entering into this agreement you are not relying on any representation made by us which has not been stated expressly in this agreement, or on any descriptions or specifications contained in any document.
5.3 You will not use the Services for any illegal, dishonest, deceptive, defamatory or unfair trade practices.
6. Our Warranties and Liabilities
6.1 We accept limited liability for the supply of the Services to the extent provided in this agreement.
6.2 We do not warrant nor accept liability arising therefrom that the Services:
(a) provided under this agreement will be uninterrupted or error free;
(b) will meet your requirements or be suitable for your needs, other than as expressly set out in this agreement;
(c) will be free from hackers, virus or worm attack, denial of service attack, or other persons having unauthorised access to the services or systems of ours; or
(d) will produce any particular results, data, sales or other return.
6.3 Subject to the provisions in clause 6.4:
(a) we exclude all liability for indirect, incidental, special and consequential loss or damage of any kind, loss or corruption of data, loss of use, loss of revenue, loss of profits, failure to realise expected profits or savings and any other commercial or economic loss of any kind, in contract, tort (including negligence), under any statute or otherwise arising from or relating in any way to this agreement and/or its subject matter;
(b) the Services are provided on an ‘as is’ and ‘as available’ basis;
(c) we make or give no express or implied warranties including, without limitation, the warranties of merchantability or fitness for a particular purpose, or arising from a course of dealing, usage or trade practice, with respect to any goods or services provided under or incidental to this agreement;
(d) no oral or written information or advice given by us, agents, representatives or employees shall create a warranty or in any way increase the scope of the express warranties hereby given, and you may not rely on any such information or advice;
(e) our total aggregate liability to you for any claim in contract, tort, negligence or otherwise arising out of or in connection with the provision of the Services will be limited to the charges paid by you in the 6 months preceding the claim in respect of the Services which are the subject of any such claim. Any claim must be notified to us within 6 months of it arising.
6.4 In the event that this agreement constitutes a supply of goods or services to a consumer as defined in the Competition and Consumer Act 2010 (Cth) nothing contained in this agreement excludes, restricts or modifies any remedies or guarantees where to do so is unlawful. To the full extent permitted by law, where the benefit of any such remedy or guarantee is conferred upon you ursuant to the Act, our sole liability for breach of any such remedy or guarantee shall be limited to the remedies available under the Competition and Consumer Act 2010 (Cth).
6.5 We specifically exclude any warranty as to the accuracy or quality of information received by any person via your server and in no event will we be liable for any loss or damage to any data stored on the server. You are responsible for maintaining insurance cover in respect of any loss or damage to your data stored on the Server.
7. Suspension and Termination of the Service
7.1 Your account may be suspended or terminated if:
(a) you become insolvent/bankrupt;
(b) you breach this agreement; or
(c) we are ordered to do so by a court.
7.2 There might be occasion when we may have to suspend or disconnect the service without notice or deny your access to the Service during any technical failure, modification or maintenance involved in the Service. In these circumstances, we will use reasonable endeavours to re-connect/establish the services as soon as reasonably practicable. You will continue to remain liable for all charges due throughout the period of suspension.
7.3 If your account has been suspended or terminated by reason of your breach of this agreement, it will be at our sole discretion if we re-activate your account. Full payment including all outstanding amounts and re-activation fees will have to be made prior to re-activation of your account.
7.4 You may terminate your account or any individual Service with us for any reason at any time by doing so through the customer control panel on our website. Unless you are terminating your account due to a breach of this agreement by us or unless we have agreed separately in writing with you, refunds for monies paid in advance are provides as follows:
(a) For one-time Services such as digital certificates no refunds are available.
(b) No refunds are available for Services with 30 days or less of time to run. For Services with more than 30 days of time to run the refund of unused credit will be a whole month pro-rata of the time to run less an early cancellation fee set by us and notified on our website.
7.5 We may terminate your services by giving you 30 days written notice. In this circumstance, we will refund any remaining unused credit on your account.
7.6 If your account is suspended or terminated for whatever reason you must pay all outstanding charges immediately.
7.7 We are under no obligation to provide you with a copy of your data if we have suspended or terminated your access to the Service for your breach. If we provide you with a copy of your data in such circumstances, we are entitled to charge a fee for doing so. If we terminate your account or any Service in such circumstances we may also at our discretion destroy your data. If your data is destroyed it may not be recoverable.
8. Fees, Charges and Payments
8.1 All charges payable by you to us for the Services will be in accordance with the relevant scale of charges and rates as may be varied from time to time and will be due and payable within 14 days of receipt of our invoice.
8.2 If you exceed our 14 day credit terms, you will be charged administration fees of $10.
8.3 Prices are provided to you in our customer portal (http://portal.sprite.net.au) and are inclusive of any
government taxes and charges.
8.4 Failure to make payment in accordance with the terms of this agreement, results in you being liable for any reasonable costs incurred by us in recovering the debt (including any legal fees, collection agency charges or any other reasonable costs) and interest on the outstanding amount, calculated at the daily rate of 6% per annum, from the due date of the payment.
8.5 No refunds will be given for unused portions of payments in advance (including payment of yearly contracts) unless the account has been terminated due to our breach of these terms and conditions, we exercise our rights under clause 7.5.
9.1 You are solely responsible for the back-up of all your data. We will not be liable for incomplete, out-of-date, corrupt or otherwise deficient data recovered from our backups.
10. Spam and Virus Filters
10.1 We may use spam and virus filters. This may require us to use third party equipment or services to monitor and filter email traffic between our equipment and the Internet. We will not be liable for any loss or damage resulting from the use of spam or virus filters.
11. Intellectual Property
11.1 We retain ownership, all rights, title and interest in any technology, techniques, software or trade mark that is used in, or provided by us, as part of the Services.
12.1 If any clause of these terms and conditions is held to be invalid or unenforceable in whole or in part, the invalid or unenforceable wording shall be deemed to be omitted.
13.1 You may transfer this agreement provided that you give us notice in the form we require (setting out the details of the assignee) accompanied by payment of any transfer fee specified by us. No other method of transfer by you is permitted.
13.2 We will not assign this agreement if you are in breach or default of the non-payment of the transfer fee.
14. Changes to Terms
14.2 Changes to this agreement other than price changes will become effective upon notice provided to you.
14. Entire Agreement
15.1 These terms and conditions constitute the entire agreement between us and you. It supersedes all prior agreements, understandings and representations whether oral or written.
15. Governing Law
16.1 These terms and conditions are governed by the laws in force in the Western Australia. Both parties agree to submit to the exclusive jurisdiction of the Courts of that State.
16. Notifications & Communications
17.1 All notifications under this agreement will be sent by email to you nominated email address. By entering into this agreement you agree to receive other email communications of a marketing and promotional nature unless you opt out of our mailing list. You will not be able to opt-out of critical service notifications, renewal, billing and account notifications, scheduled downtime notifications or any other communications deemed to be an essential part of our Service to you.