Standard Terms and Conditions

Last Updated 26th March 2014

This is a legally binding agreement between you (you or your) and OrionVM (we, us or our).

1.        FORMATION

This Agreement consists of (in order of precedence) the Proposal (if applicable), these Standard Terms and Conditions and any annexures to these Standard Terms and Conditions (Agreement).

  1. TERM

2.1      Subject to either:

(a)      us receiving the signed Proposal from you before the expiry date set out therein; or

(b)      you clicking “yes” when creating a Web Order,

this Agreement starts on the Commencement Date and continues for the Term.

2.2      This Agreement will automatically renew for further successive terms of one calendar month on each anniversary of the Commencement Date, unless terminated earlier in accordance with this Agreement.

  1. OUR SERVICES

3.1      We will provide the Services in accordance with this Agreement.

3.2      If requested (or specified in the Proposal), we will also provide:

(a)      the Additional Services in accordance with this Agreement; and

(b)      any out-of-scope services at our then current time and materials rates or in accordance with a proposal.

  1. SERVICE LEVELS

4.1      We will use reasonable endeavours to meet the Service Levels.

4.2      If we fail to meet any Service Levels, your sole and exclusive remedy is to claim a Service Credit in accordance with the terms and conditions set out in Annexure A.

4.3      You must promptly notify us of any faults in relation to the Services and/or Additional Services.

4.4      We may charge you for fault resolution services at our then current time and materials rates if we respond to a request from you and determine that the fault was not caused by our acts/omissions or any breach of our obligations under this Agreement.

4.5      You acknowledge and agree that we are not responsible for resolving faults caused by any software, hardware or other components outside our network, circumstances beyond our reasonable control or Scheduled Outages.

  1. THIRD PARTY PRODUCTS

5.1      The Services and/or Additional Services may include Third Party Products. You acknowledge that:

(a)      your use of the Third Party Products will be subject to the Third Party Contract(s); and

(b)      the Third Party Contract(s) will be between you and the Third Party Supplier.

5.2      You authorise us to enter into the Third Party Contract(s) on your behalf.

6.        OUR WEBSITE

6.1      We do not represent or warrant that the operation of our Website will be secure, confidential, uninterrupted, error-free, accurate, complete or current.

6.2      We regularly update and carry out scheduled maintenance on our Website, so we may have to suspend access to, or functionality on, our Website from time to time.

7.        FEES AND PAYMENT

7.1      You must pay us the Fees in accordance with this Agreement.

7.2      We will calculate, and invoice you for, the Fees in accordance with the Proposal and terms and conditions set out in this clause 7.

7.3      We may charge interest on overdue amounts at the rate of 1.5% per month and may suspend your account and our performance of the Services and Additional Services until all overdue amounts are paid.

7.4      All amounts specified in this Agreement are exclusive of GST unless specified otherwise. If GST is payable on any supply made by us under this Agreement, you must pay us an additional amount equivalent to the GST at the time that payment to us is due.

  1. YOUR ACCOUNT

8.1      In order for us to provide you with the Services and/or the Additional Services, you must sign up for an account with us, which can be done on our Website.

8.2      You are solely responsible for maintaining the confidentiality and security of your account. You are also solely responsible for all activities on your account.

8.3      You must notify us immediately of any unauthorised use of your account. We will not be liable for any loss or damage arising in connection with any unauthorised use of your account.

  1. YOUR OBLIGATIONS

9.1      You must do all things necessary to enable us to perform our obligations under this Agreement including, without limitation:

(a)      performing or connecting any services as required by us; and

(b)      providing information, documentation and access to your resources and premises as requested by us.

9.2      You must not:

(a)      withhold any information or materials which could impact our performance of our obligations under this Agreement;

(b)      use the Services to send unsolicited emails to third parties;

(c)      use the Services for any unlawful activities; or

(d)      use the Services to publish any materials or store content that is unlawful, pornographic, defamatory, abusive, insulting, threatening, obscene, inflammatory, offensive or otherwise inappropriate or objectionable.

9.3      You must ensure all information and material you provide to us:

(a)      is accurate, complete and current;

(b)      is provided promptly or otherwise within the agreed timeframes;

(c)      does not infringe the intellectual property or other rights of any person; and

(d)      is not misleading, deceptive, unlawful, fraudulent or defamatory.

9.4         You must comply with all our Policies, as amended and updated from time to time.

  1. INTELLECTUAL PROPERTY RIGHTS

10.1    You own all rights (including intellectual property rights), title and interest to Your Content. You grant us a non-exclusive licence to use Your Content for the purpose of performing our obligations under this Agreement.

10.2    You consent to us using your company name and reproducing your logos for promotional and publicity purposes.

10.3    We own all rights (including intellectual property rights), title and interest to the Contract Materials. We grant you a non-exclusive and non-transferable licence to use the Contract Materials for the Term.

11.      CONFIDENTIALITY

11.1    The parties must:

(a)      take all reasonable precautions to maintain the confidentiality of the Confidential Information and to protect the Confidential Information from authorised use, disclosure or availability;

(b)      not disclose the Confidential Information to any person other than their Associates on a need-to-know basis or as required by law; and

(c)      use the Confidential Information for the sole purpose of performing its obligations under this Agreement.

11.2    The parties must:

(a)      take all reasonable precautions to maintain the confidentiality of the Confidential Information and to protect the Confidential Information from unauthorised use, disclosure or availability; and

(b)      promptly notify the other if it appears that Confidential Information has been compromised, or if the parties are required by law to disclose the Confidential Information.

11.3    Upon request, the parties must immediately return or destroy the Confidential Information and all documents and materials containing the Confidential Information which are in that party’s possession or control.

11.4    The parties acknowledge that a breach of its obligations under this clause 11 is likely to cause damage to the other party, and agree that the party not in breach will be entitled to seek injunctive relief to prevent a breach of this clause 11 and to compel specific performance of this clause 11.

12.      LIABILITY

12.1    We make no representations or warranties in relation to any Third Party Products.

12.2    Our liability for breach of a statutory guarantee which cannot be excluded by law is limited, at our option, to either the supply of the services (or equivalent services) again or the payment of the cost of having the services supplied again.

12.3    You indemnify, defend and hold us harmless against all loss, damage, claims, liabilities, costs and expenses (including legal fees) arising from, or in connection with:

(a)      any Third Party Products, including any failure by a Third Party Supplier to provide the Third Party Product(s) or comply with a Third Party Contract;

(b)      any claim or demand brought by third parties, including a claim that the intellectual property rights of any third party are infringed;

(c)      any negligent, wrongful, unlawful or fraudulent act or omission or any breach of this Agreement by you or your Associates.

12.4    We exclude liability for:

(a)      any issues or failure of installation or integration of the Third Party Products due to incompatibility with your hardware, software, firmware, protocols, systems or infrastructure;

(b)      any costs, expenses, claims or liability suffered or incurred by you as a result of us complying with your directions; and

(c)      loss of profit or revenue, loss of business opportunities, loss of software or data and any indirect or consequential loss arising in connection with this Agreement.

12.5    To the extent permitted by law, our aggregate liability in connection with this Agreement will not exceed the Fees paid by you to us in the 30 days preceding the date of the claim.

12.6    We will not be liable for any delay or non-performance of our obligations under this Agreement if it is caused by strike, fire, flood, failure of suppliers, or any other circumstances beyond our reasonable control.

13.      SUSPENSION AND TERMINATION

13.1    Without limiting any remedies available to us under this Agreement or at law, we may suspend the Services and/or terminate this Agreement with notice to you if:

(a)      you fail to remedy a breach within 7 days of a notice from us requesting you to do so;

(b)      your Fees are outstanding for more than 7 days past the due date; or

(c)      you become insolvent, bankrupt, enter into administration, are wound up or a receiver or creditor is appointed over any part of your business.

13.2    You may terminate this Agreement at any time by sending a cancellation request to us at support@orionvm.com, subject to the following terms:

(a)      if we receive your cancellation request at least 4 Business Days prior to the end of the then current Term, this Agreement will be terminated at the end of the then current Term; and

(b)      if we do not receive your cancellation request at least 4 Business Days prior to the end of the then current Term:

(i)   this Agreement will automatically renew for a further term on the last day of the then current term in accordance with clause 2.2;

(ii)  we will charge you, and you must pay, the Fees for the renewed Term of this Agreement; and

(iii)this Agreement will terminate on the last day of the renewed Term.

13.3    We may terminate this Agreement at any time by giving you at least 30 days’ prior written notice. In this instance, we will refund any prepaid Fees applicable to the unused portion of any Services and/or Additional Services.

13.4    Upon the termination of this Agreement for any reason, you must pay all outstanding Fees to us and any reasonable costs incurred by us as a result of the termination (including third party cancellation fees and administrative costs).

  1. CHANGES TO FEES AND TERMS

14.1    If we provide the Services to you under a Web Order:

(a)      we may change, remove or add to, the Fees, Service Levels, Service Credits and any of the terms and conditions in this Agreement at any time during the Term; and

(b)      we will notify you of any changes by emailing you or posting a notice on our Website at least 24 hours before the date on which the changes are effective. Your continued use of the Services will constitute your acceptance of the changes.

14.2    If we provide the Services to you under a Proposal:

(a)      the Fees shall be fixed for the duration of the Term (but we reserve the right to increase the Fees on any renewal or extension of the Term); and

(b)      otherwise, no changes will be made to this Agreement unless both parties agree in writing to such changes.

  1. GENERAL TERMS

15.1    Except as otherwise provided for in this Agreement, nothing in this Agreement will be taken as giving rise to a relationship of employment, agency or partnership.

15.2    We may sub-contract the performance of any part of the Services or Additional Services to any third party or assign this Agreement or any of our rights or obligations under this Agreement.

15.3    This Agreement contains the entire understanding between the parties concerning the subject matter of the Agreement and supersedes all prior communications.

15.4    The failure of either party to enforce any provisions under this Agreement will not waive the right of such party thereafter to enforce any such provisions.

15.5    All notices and consents relating to this Agreement must be in writing.

15.6    If any term or provision of this Agreement is held by a court to be illegal, invalid or unenforceable under the applicable law, that term or provision will be severed from this Agreement and the remaining terms and conditions will be unaffected.

15.7    This Agreement is governed by, and construed in accordance with the laws of New South Wales. The parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales.

  1. DEFINITIONS

16.1    In this Agreement:

(a)      Additional Services mean any additional product(s) or service(s) that you have requested us to provide, including, without limitation, the provisioning of space on one of our servers, and connection to and from the internet for web, email and FTP functions.

(b)      Associates mean the officers, directors, employees, subcontractors, consultants or agents of a party.

(c)      Beta means when a product is released to the market for testing and feedback.

(d)      Business Day means any day which is not a Saturday, Sunday or a public holiday in Sydney, Australia.

(e)      Commencement Date means either the date specified in the Proposal or the date on which the Web Order is accepted (as applicable).

(f)       Confidential Information means, regardless of the time or method of disclosure: (i) all information of, or used by the disclosing party relating to that party’s transactions, operations and affairs and includes the Order; (ii) all other information treated by the disclosing party as confidential; and (iii) all information the receiving party knows, or reasonably ought to know is confidential; but does not include information that is public knowledge, required to be disclosed under law or otherwise within the knowledge of the receiving party (otherwise than as a result of a breach of a confidentiality obligation of the receiving party).

(g)      Contract Materials mean all materials, reports, diagrams, code, processes, methods, specifications and other works created or produced by us arising in connection with the provision of the Services or Additional Services including our Pre-Existing Materials.

(h)      Documentation means manuals or other documentation that we make available with the Services or Additional Services.

(i)       Fees mean the fees payable by you for the Services and Additional Services (as applicable) in accordance with the terms and conditions set out in Annexure B.

(j)       GST Law means A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any regulations made pursuant to that Act.

(k)      Order means either the Website Order or the Service Order issued by us to you (as applicable).

(l)       OrionVM Cloud Services means the on-demand infrastructure service provided by us under this Agreement using the OrionVM Cloud Platform.

(m)     Polices means any of our policies which can be accessed on the Website, including without limitation, our privacy and security policy and our acceptable use policy.

(n)      Pre-Existing Materials mean any of our materials existing at the date of this Agreement, including all trade marks, designs, design specifications, software, hardware or other documentation and materials used in our business or operations.

(o)      Proposal means the proposal attached to these Standard Terms and Conditions issued by us to you in relation to the Services and/or Additional Services (as applicable).

(p)      Scheduled Outages is defined in Annexure A.

(q)      Service Credits means the service credits set out in Annexure A.

(r)       Service Levels means the service levels set out in Annexure A.

(s)      Services mean the OrionVM Cloud Services as requested by you, either: (a) as described in the Proposal; or (b) in the case of a Web Order, selected by you on our Website.

(t)       Term means either: (a) in the case of a Proposal, the term specified in the Proposal; or (b) in the case of a Web Order, one calendar month.

(u)      Third Party Contract(s) means the contract(s) entered into between you and the Third Party Supplier.

(v)      Third Party Product(s) means the product(s) supplied by the Third Party Supplier.

(w)     Third Party Supplier means the supplier that supplies the Third Party Products (other than us).

(x)      Time to Repair Window means the 1.5 hour window, during which we will use all commercially reasonable effects to restore availability to your instance.

(y)      Web Order means an order for the Services and Additional Services placed by you on our Website.

(z)      Website means the website located at www.orionvm.com.au.

(aa)    Your Content means all information and materials provided by you to us in connection with this Agreement.

Annexure A   Service Levels

Service Level

  1. We will use reasonable endeavours to ensure that the OrionVM Cloud Platform provides Service Availability of at least 99.95% measured over a calendar month, subject to the terms and conditions set out in this Annexure.

Definition of Service Availability

  1. “Service Availability” describes the availability of:

(a)     a cloud instance (where the instance is up and available to the internet); and

(b)     the hosting environment (being the servers, storage, routers, switches and internet connectivity) under our exclusive control.

  1. Service Availability is measured as a percentage of time that the OrionVM Cloud Platform is operational and contactable from the internet, calculated over a calendar month, excluding any Scheduled Outages.

Service Level inclusions and exclusions

  1. The Service Level applies only to a released product.
  2. The Service Level does not apply to:

(a)     any scheduled outages, being any outage windows scheduled by us when maintenance is required to be performed on the OrionVM Cloud Platform (Scheduled Outages);

(b)     any services running within the cloud instances;

(c)     any Beta product (being any product released to the market for testing and feedback);

(d)     any outages or downtime initiated or caused by your acts or omissions, any software of configuration issues relating to your software, hardware or services.

  1. We have no obligation to meet the Service Level if any undisputed invoice is overdue for payment or if your account is suspended for any reason in accordance with this Agreement.

Outages

  1. We will use reasonable endeavours to notify you of any Scheduled Outages at least 5 Business Days prior to the date on which the Schedule Outage is proposed to occur.
  2. If we anticipate that the Services and/or Additional Services will be offline for more than 30 consecutive minutes at any time, we will notify you by posting details on our Website.

Service Credits

  1. If we fail to meet any Service Level (Service Level Failure), your sole and exclusive remedy is to claim a Service Credit equal to 10% of the monthly fees paid or payable for the Services (excluding GST) in the calendar month in which the Service Level Failure occurred, subject to the terms and conditions set out in this Annexure.

10.       To claim a Service Credit, you must email us at support@orionvm.com within 30 days of the Service Level Failure and provide the following details:

(a)     your registered email address, contact name and phone number;

(b)     details of the date(s) and time(s) of the Service Level Failure; and

(c)     details of the outage you experienced (Service Credit Claim).

  1. We will assess your Service Credit Claim within 20 Business Days of receipt of all information required to be provided pursuant to clause 10 of this Annexure.

12.       If we are satisfied that a Service Level Failure occurred in accordance with your Service Level Claim, we will apply the Service Credit to any fees and charges invoiced by us to you within 3 months of the date of your Service Level Claim. We are not obliged to apply the Service Credit to any invoice after this timeframe.

  1. Service Credits cannot be transferred or applied to another account, and are not redeemable for cash.

Annexure B   Fees, invoicing and payment

Fees

  1. You must pay:

(a)     the fees and charges for the Services and/or the Additional Services at the rates specified in the Order; and

(b)     any additional fees and charges (as set out on our Website) applicable to this Agreement (including, without limitation, late payment fees and administration fees).

  1. You will incur the Fees on an hourly basis, starting from the second in which time of your first instance provisioning. You will be billed in 1 second intervals, at the rates quoted by the hour

Invoicing

  1. We will invoice the Fees on a monthly-in-arrears basis on the first Business Day of each calendar month.

Payment

  1. You must pay the Fees by credit card.
  2. You authorise us to charge your credit card for the Fees and for any additional amounts incurred in connection with your account (including, without limitation, late payment fees, interest charges, cancellation fees and any adjustments to the Fees).
  3. If any charge to your credit card is declined, you authorise us to continue to charge your credit card account for the outstanding amount, together with any other applicable fees and charges until payment has been received.
  4. If your credit card has insufficient funds or has expired, you must make alternative arrangements to pay the invoiced amount in full within 3 days of the due date for payment.   If you fail to do so, we may suspend the Services and/or Additional Services without notice to you.

Annexure C   Additional Services

Traffic

  1. You must pay for traffic charges based on either of the following options::

(a)     on a flat rate, where your traffic charges are fixed and do not vary in relation to traffic usage; or

(b)     based on usage, where your traffic charges are calculated at the rates specified in the Order.

  1. We calculate the volume of inbound and outbound traffic by the number of gigabytes. Our calculations are final and binding on the parties.

Power Requirements

  1. If you have servers co-located within our facilities, you will be allocated a certain amount of power for each piece of server equipment (Equipment), as outlined in the Order.
  2. If your Equipment exceeds the amount of power allocated, you must purchase additional power capacity to meet the requirements of your Equipment. This additional power capacity will be billed at the same rate as specified in the relevant Order.

Access to Equipment

  1. If you are entitled to access the Equipment, you will be charged at the rate outlined in the Order for such access.
  2. We reserve the right to charge additional fees if you access the Equipment outside our standard business hours and if you require access more than once in any calendar month.

Upgrades

  1. We will process an upgrade immediately upon our receipt of your request, unless you specify an alternative date.
  2. If the upgrade is effective on the monthly anniversary of the Commencement Date, we will charge you an increased fee to reflect the upgrade. However, if the upgrade is effective after the monthly anniversary of the Commencement Date, we will pro-rate the increased fee based on the number of days remaining in the current billing cycle.

Downgrades

  1. We will process a downgrade immediately upon our receipt of your request, unless you specify an alternative date.
  2. We will apply a credit to your account for the difference of any pro-rated pre-paid amount less the pro-rated cost of the new plan.
  3. We may charge you an administration fee for a downgrade request. You may also be required to pay additional fees if we have to perform work to process your request (for example, reseller hosting to single hosting, intercontinental transfers, inter-server transfers).

Supply of Microsoft Products

  1. At your request, we may provide products from the Microsoft Corporation, or an affiliate of the Microsoft Corporation (“Microsoft Products”), including software, media, printed material and electronic documentation, to you.
  2. You acknowledge and agree that we can only provide Microsoft Products to you under our existing Microsoft Services Provider License Agreement with the Microsoft Corporation and only in accordance with the Microsoft Volume Licensing Services Provider Use Rights found at http://www.microsoftvolumelicensing.com/DocumentSearch.aspx?Mode=3&DocumentTypeId=2 and you agree to be bound by any provision of these terms that Microsoft Corporation and its licensors require to apply to any person to whom we licence Microsoft Products.
  3. In addition to the terms referred to at paragraph 13, if you choose to use the Microsoft Products, the Microsoft Corporation and its licensors require that you agree to these additional terms and conditions, which OrionVM does not have the authority to vary, alter or amend:

(a)   OWNERSHIP OF MICROSOFT PRODUCTS: The Microsoft Products are licensed to OrionVM and all title and the Microsoft Corporation owns all rights and intellectual property in relation to them. Your possession, access, or use of the Microsoft Products does not transfer any ownership of the Microsoft Products or any intellectual property rights to you.

(b)   USE OF MICROSOFT PRODUCTS: The Microsoft Products are neither sold nor distributed to you and you may use it solely in conjunction with the services provided to you by OrionVM

(c)   COPIES: You may not make any copies of the Microsoft Products or any printed materials accompanying the Microsoft Products.

(d)   PROHIBITION ON IP: You are prohibited from removing, modifying or obscuring any copyright, trademark or other proprietary rights notices that are contained in or on the Products

(e)   LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION AND DISASSEMBLY: You may not reverse, engineer, decompile, or disassemble the Microsoft Products, except and only to the extent that applicable by law

(f)     NO RENTAL: You may not rent, lease, lend, pledge, or directly or indirectly transfer or distribute the Microsoft Products to any third party, and you may not permit any third party to have access to and/or use the functionality of the Microsoft Products

(g)   PRODUCT SUPPORT: The Microsoft Corporation does not provide support for the services provided to you by OrionVM. OrionVM should provide all support for these services. Do not contact the Microsoft Corporation for support.

(h)   NO WARRANTIES, LIABILITIES OR REMEDIES BY MICROSOFT: The Microsoft Corporation disclaims all warranties, liabilities or remedies as provided by OrionVM. These are OrionVM’s representations and not made by the Microsoft Corporation.

(i)     TERMINATION: Without prejudice to any other rights, OrionVM may terminate your rights to use the Microsoft Products if you fail to comply with these terms and conditions. In the event of termination or cancellation, you must stop using and/or accessing the Microsoft Products, and destroy all copies of the Microsoft Products and all of its component parts.

(j)     MICROSOFT END USER: Microsoft will be an intended third party beneficiary of the End User Agreement, with the right to enforce provisions of the End User Agreement and to verify the compliance of the End User

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

(l)     The Microsoft Products may contain technology that is not fault tolerant and is not designed, manufactured, or intended for use in environments or applications in which the failure of the Microsoft Products could lead to death, personal injury, or severe physical, property or environmental damage.

(m)  NO HIGH RISK USE: You are not granted any right to use the Microsoft Products in any application, controlling aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, weaponry systems, or any similar scenario (collectively, “High Risk Use”). The Microsoft Corporation and its suppliers disclaim any express or implied warranty of fitness for High Risk Use. High Risk Use does not include utilization of the Microsoft Products for administrative purposes, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non-controlling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function.

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