The short version
SOFTWARE COPYRIGHT
- Upon full payment of funds described in proposals submitted by eSolutions, the design of the website and design files become the ownership of the client.
PAYMENT
- Cheques are to be made payable to eSolutions.
- Payment terms will be provided with your invoices, we reserve the right to charge whatever is the greater of $10.00 or 1.5% a month, as interest on late payments. Services may also be suspended until payment is received in full.
- All moneys paid to eSolutions are non refundable.
- The customer is required to inform eSolutions in writing giving 30 days notice by email when the account or service is no longer required.
- All pricing is subject to change with 30 days notice.
- eSolutions reserves the right to modify the terms and conditions from time to time and will make all such changes available on line.
- The laws in force in the Commonwealth of Australia, New South Wales jurisdiction, govern this contract.
The long version – basically everything will be done to ensure uptime and with the latest equipment, but things being mechanical, if it does fail it it will be fixed ASAP with data restored from daily back ups – and if something does go wrong caused by an act of good or a third party (Telstra or Optus) we needed to cover ourselves.
1. Supply of Services
1.1 Agreement for Supply of Services: eSolutions will supply the Services to Customer utilising the eSolutions Network on the terms and conditions set out in:
(a) These General Terms and Conditions; and
(b) The Service Level Agreement, the Acceptable Use Policy and the Privacy Policy.
2. Proprietary rights in Software and Hardware
Customer shall have no right, title, or interest of any kind whatsoever in the Software, Hardware, documentation, or any copyrights, patents or trademarks, embodied or used in connection therewith, except for:
(a) the limited licence to use them provided in this Agreement; and
(b) Hardware supplied by Customer for use on its premises or supplied for Co-location Services.
3. Maintenance of Hardware and Network
3.1 eSolutions Hardware: eSolutions will maintain and support Hardware (other than Hardware on premises of Customer) in accordance with best industry practice or, where applicable, vendor specifications.
3.2 Scheduled Maintenance: eSolutions will perform all regularly scheduled maintenance to maintain Hardware and the eSolutions Network outside Business Hours. eSolutions will give Customers notice by email at least 48 hours in advance if scheduled maintenance requires interruption to Service for more than 30 minutes.
3.3 Replacement of Hardware: eSolutions may substitute, change or modify the Hardware at any time, but shall not thereby substantially alter the technical parameters of the Services without the prior approval of Customer unless the effect of the substitution, change or modification is to enhance the capacity or specifications of the Hardware.
3.4 Technical Support: eSolutions will provide technical support by enabling Customer access through the Control Panel to correct operational procedures for tools and modules specified in this Agreement and to links to operational resources on the eSolutions Website. eSolutions will charge for any additional technical support at its Technical Account Management Services rates then in effect. Customer acknowledges that technical support is limited to hardware/network failures and utilities provided by eSolutions.
3.5 Exclusions: eSolutions is not responsible for maintenance and support of Hardware where:
(a) problems arise from tampering, modification, alteration, or additions to the Hardware by persons other than eSolutions or its authorized representatives;
(b) Hardware has been supplied by Customer; and/or
(c) Hardware is located on premises of Customer,
unless in the case of Hardware referred to in clause 3.5(b) and (c) Customer has entered into a maintenance agreement with eSolutions relating to that Hardware.
3.6 Customer’s Obligations: Customer shall: (a) Follow and observe all operational support procedures and policies specified through the Control Panel;
(b) Where applicable, document and promptly report all errors and malfunctions in the Hardware using relevant procedures specified through the Control Panel;
(c) Ensure that its employees have been trained in the operation of the Hardware in accordance with Vendor specifications; and
(d) Be responsible for maintaining its own telecommunications equipment, hardware, information technology and software and all other materials at its premises unless it has entered into a maintenance agreement with eSolutions relating to that equipment.
4. Software
4.1 Operating System and Web Server Software License: During the Term eSolutions grants the Customer a non-transferable, nonexclusive license to use and install the Software specified in the Cover Sheet on the Hardware specified in the Cover Sheet for purposes of the Services. eSolutions warrants that it has full right, title and interest in the Software to grant sublicenses by virtue of a license granted by the vendor of the Software (“Vendor License”) to eSolutions to use and sub-license the Software. eSolutions does not warrant third party Vendor Software in any way whatsoever, but undertakes to pass onto Customer the benefit of all warranties and indemnities relating to use of the Software under the Vendor License.
4.2 Software License Restrictions: Customer agrees that it will not, directly or indirectly (and it will not allow others to):
(a) copy the Software, except as necessary to install on Hardware and for internal, archival purposes. In the event Customer makes authorized copies of the Software, Customer shall reproduce all proprietary notices on such copies;
(b) sell, lease, license, transfer, give possession of, or sub-license the Software to others, other than as permitted in the Vendor License; and/or
(c) write or develop any derivative or other software programs, based, in whole or in part, upon the Software or any Confidential Information.
4.3 Exclusions: Customer acknowledges that breach of clause 4.2 may result in invalidation of warranties relating to Software, including the benefit of third party Vendor warranties.
4.4 Software Provided by Customer: Where Customer provides Software, Customer warrants that it has full right title and interest under a valid license to use the Software and to grant a valid sub-license to eSolutions to install and run the Software during the Term solely in connection with providing Services under this Agreement.
5. Acceptable Use Policy and Use of Services
5.1 Acceptable Use Policy: Customer agrees and acknowledges that it has read eSolutions’s Acceptable Use Policy published on the eSolutions Website, and agrees and undertakes that it will at all times observe and comply with that Acceptable Use Policy, as may be amended from time to time by publishing of amendments on the eSolutions Website.
5.2 Sole Responsibility: Customer acknowledges and agrees that it is solely responsible for all information, material, content or data (“Content”) of any postings, data or transmissions utilizing the Services or any other use of the Services by Customer or User.
5.3 Removal of Offending Content: Customer acknowledges that eSolutions has the right to remove Content in accordance with the terms of the Acceptable Use Policy, including without limitation and without notice to Customer any Content deemed by it in its sole opinion to breach or offend its Acceptable Use Policy, or to suspend Services or disconnect or deny access to Services if in its sole opinion it deems Content to breach or offend its Acceptable Use Policies.
5.4 Excessive Use: Customer covenants and agrees that it will at all times observe and comply with and not breach usage limitations, including bandwidth, traffic (inbound, outbound and aggregated), data storage and backup, server resources and mailboxes, applicable to the plan or product chosen by the Customer. Customer also agrees and covenants that it will not use the Services in an excessive or unusual way.
5.5 Suspension: Customer acknowledges that eSolutions is entitled to suspend or cancel Services, permanently or temporarily, if Customer breaches clause 5.4, and that if at any time eSolutions does suspend or cancel the Services, the Customer remains liable for any charges incurred:
(a) through excessive or unusual usage; and
(b) where the suspension is temporary, during such suspension.
5.6 Indemnity: Customer agrees to and shall hold harmless and indemnify eSolutions against any loss, expenses, liability, damages or claim made against it by any party whatsoever (including without limitation Customer, a User or any party claiming through Customer) which eSolutions may suffer, directly or indirectly, resulting from or arising out of Customer’s or User’s breach of the Acceptable Use Policy or the misuse or abuse of the Services in any way whatsoever by Customer or any User.
6. Warranties
6.1 Consumer Warranties: where the Customer is a consumer (as defined in the Trade Practices Act), eSolutions warrants that the Service will be supplied with due care and skill and that any material supplied in connection with the Service is reasonably fit for the purposes for which it is supplied.
6.2 Exclusion: Except as otherwise expressly provided in these General Terms and Conditions (including without limitation clause 6.1) and the documents listed in clause 1.1, and to the full extent permitted by law, all express or implied warranties, representations, terms and conditions regarding Services, Hardware and/or Software and their use (including without limitation their merchantability or fitness for any particular purpose) or regarding the Agreement and these General Terms and Conditions are hereby expressly excluded.
6.3 Sole Remedy: Customer acknowledges that its sole remedy under this Agreement for interruption to availability of Services which constitutes “Downtime” as defined in the Service Level Agreement is to claim rebates in accordance with the Service Level Agreement.
6.4 Statutory Provisions: Provisions of the Trade Practices Act 1974 (as amended) and other statutes from time to time in force in Australia may imply warranties or conditions or impose obligations on eSolutions which cannot be excluded or modified. These General Terms and Conditions must be read and interpreted subject to any such statutory provisions. If any such statutory provisions apply, then to the extent permitted by law, eSolutions’s liability will be limited at its option to the resupply of Services, or payment of the cost of having the Services supplied again.
7. Limitation of Liability:
eSolutions’s aggregate liability to any Customer who is not a consumer (either directly or as a third party defendant in any action or proceeding) for any claim arising out of or relating to this Agreement or the provision of any Services (including, without limitation, maintenance and support) under this Agreement shall be limited to the amount of fees paid by the Customer to eSolutions under this Agreement within one year preceding the date Customer contends its claim arose. In no event shall eSolutions be liable for any loss of data, loss of profits, cost of cover, or any other special, incidental, consequential, indirect or punitive damages, however caused and regardless of theory or liability, notwithstanding eSolutions has been made aware or advised of the possibility of such damages.
8. Confidential Information
8.1 Confidential Information. Each party acknowledges that it may have access to certain confidential information (“Confidential Information”) of the other party concerning the other party’s business, plans, customers, technology (including software), and products, including the terms and conditions of this Agreement. 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 all reasonable precautions to protect the confidentiality of such information.
8.2 Exceptions: Information will not be deemed Confidential Information hereunder if such information:
(a) 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;
(b) 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;
(c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or
(d) is independently developed by the receiving party.
9. Release of Information to Authorised Agencies
9.1 Monitoring Use of Services. In order to comply with, and subject to, any applicable laws, including without limitation the Telecommunications Act 1997 and the Telecommunications (Interception) Act 1979, eSolutions may at any time:
(a) When required by a warrant issued by an authorised agency or court, intercept or monitor Services, or enable another person authorised by a warrant issued by an authorised agency or court, to intercept or monitor Services, including data hosted on or being transmitted through Services;
(b) Monitor and/or examine use of Services, including email, records and other data in the course of installation, connection or routine maintenance of the Services, but only to the extent permitted by legislation;
(c) Suspend Services; and/or
(d) Release information obtained by any of these actions to any authorized governmental or other agency.
9.2 Indemnity. Customer agrees to and shall hold harmless and indemnify eSolutions against any loss, expenses, liability, damages or claim made against it by any party whatsoever (including without limitation Customer, a User or any party claiming through Customer or a User) which eSolutions may suffer, directly or indirectly, resulting from or arising out of any actions taken by it pursuant to clause 9.1.
10. Public Addressing Identifiers
10.1 Use: eSolutions may use one or more identifiers (“Identifiers”) such as telephone numbers, Internet Protocol Addresses (“IP Addresses”) and domain names in providing Services, and may designate one or more of them for use on a temporary basis by Customer from those Identifiers allocated to eSolutions by regulatory authorities. Customer acknowledges and agrees that eSolutions does not control the allocation of Identifiers, and that eSolutions may be required to change Identifiers by a Reulatory Authority responsible for administering Identifiers. Customer further acknowledges and agrees that the IP Addresses are the sole property of eSolutions, are designated for Customer’s use on a temporary basis, and may not be portable.
10.2 Change of Identifiers: eSolutions reserves the right to change Identifiers and IP Addresses at any time and for any reason, including without limitation at the direction of a Regulatory Authority but in doing so shall:
(a) use reasonable efforts to minimize inconvenience to Customer, and
(b) shall give Customer reasonable notice of changes.
10.3 Justification Processes: Customer acknowledges that it is bound by the justification processes imposed by Regulatory Authorities under policies for the responsible use of Identifiers and IP Address space which may from time to time be in force.
10.4 On Termination of Agreement: Customer agrees that:
(a) it will have no right to use Identifiers and IP Addresses assigned to it upon termination of this Agreement, and
(b) it will be solely responsible for any change in Identifiers and IP Addresses required after termination of this Agreement.
11. Termination
11.1 This Agreement shall be terminated prior to the expiration of the Term set out in the Cover Sheet in the following circumstances:
(a) either party gives written notice of a material breach of this Agreement, and the breach is not remedied within 30 days after receipt of the notice; or
(b) if either party goes into administration or liquidation either compulsorily or voluntarily (save for the purpose of reconstruction or amalgamation) or if a receiver is appointed in respect of the whole or any part of its assets or if either party makes an assignment for the benefit of or composition with its creditors generally or threatens to do any of these things, and in either event the other Party gives notice that it elects to terminate the Agreement which notice shall be effective immediately.
(c) The Customer gives written notice of a material ongoing or recurring breach of the Service level Agreement that has recurred or has continued to occur for three consecutive months, and a remediation plan has not been agreed within 30 days after receipt of the notice. Customer must not withhold agreement to the remediation plan if eSolutions can demonstrate that the plan will have:
(i) no additional cost to Customer;
(ii) no negative consequences to the Customer’s use of the Service; and
(iii) a reasonable chance of success.
11.2 eSolutions may terminate this Agreement by giving reasonable notice to the Customer prior to the expiration of the Term set out in the Cover Sheet if:
(a) a Reulatory Authority directs it to do so; or
(b) a Supplier terminates an agreement to supply services to eSolutions, and as a consequence eSolutions is unable to supply Service(s) to Customer through an alternative Supplier on reasonable commercial terms.
11.3 11.3 After the expiration of the Term either party may terminate this Agreement by giving one month’s written notice to the other.
12. Consequences of Termination
12.1 In the event of termination of the Agreement prior to the expiration of the Term set out in the Cover Sheet by reason of a default by Customer under clause 11.1(a) or by reason of actions by or on behalf of Customer under clause 11.1(b), all amounts which would have become due and payable under the Agreement had it continued in effect until the expiration of the Term shall immediately become due and payable, and Customer shall immediately pay all amounts so becoming due and payable.
12.2 In the event of termination of the Agreement prior to the expiration of the Term set out in the Cover Sheet under clause 11.2, and on the expiration of the Term set out in the Cover Sheet, eSolutions will bill Customer for all services up to date of termination, and Customer will immediately pay that invoice and any other outstanding invoices.
12.3 On the expiration of the Term set out in the Cover Sheet or on termination of the Agreement pursuant to clause 11, eSolutions will immediately cancel Services, and Customer will:
(a) Immediately cease using Services and any Software and Hardware provided under this Agreement.
(b) Return all Hardware, Software and Confidential Information to eSolutions; and
(c) Do all things and execute all such documents as may be required by eSolutions to give effect to clause 12.3(a) and (b).
13. Suspension of Services
13.1 Events of Suspension. eSolutions may, in its sole discretion and without derogating from its right to terminate this Agreement purusuant to clause 11, at any time suspend, restrict or disconnect the supply of Services to the Customer and/or any of its customers or Users on the occurrence of any of the following events:
(a) Customer fails to pay any outstanding invoices within 7 days of written demand byeSolutions;
(b) Customer breaches eSolutions’s Acceptable Use Policy and fails to rectify that breach immediately on written demand by eSolutions;
(c) eSolutions is directed by any authorized government administrative, regulatory and/or law enforcement agency to do so; and/or
(d) eSolutions deems it necessary for purposes of scheduled or unscheduled maintenance.
13.2 Consequences of Suspension. eSolutions will not reconnect or re-activate Services suspended pursuant to clause 13.1(a), (b) and (c) until Customer has paid any re-connection fee then in effect for each Service. Customer will remain liable under this Agreement for all payments falling due within the period for suspension of Services, including without limitation for all fees accruing and accrued during the suspension.
13.3 Indemnity. Customer agrees to and shall hold harmless and indemnify eSolutions against any loss, expenses, liability, damages or claim made against it by any party whatsoever (including without limitation Customer, a User or any party claiming through Customer) which eSolutions may suffer, directly or indirectly, resulting from or arising out of any actions taken by it pursuant to clause 13.1.
14. Charges and Invoices
14.1 Payment of Charges: Customer agrees to pay the charges and fees set out in the Cover Sheet, and such other charges and fees as may properly be incurred under this Agreement, or in accordance with the terms and conditions of invoices from time to time rendered by eSolutions. Such charges and fees include excess usage fees and any additional charges and fees incurred by eSolutions under its contracts with third party suppliers, software licensors, carriage service providers and service providers, and include, without limitation:
(a) Charges for excess data, traffic, bandwidth and/or power usage by Customer; and
(b) Additional license fees charged to eSolutions under software licenses where fees are calculated by reference to usage or number of users or mailboxes.
14.2 Usage Charges: Where applicable, Usage Charges are measured by the billing data collection devices that measure IP traffic at the eSolutions router interface at the edge of the eSolutions Network, and are calculated according to the billing method selected by Customer and set out on the Cover Sheet. In the event of a billing dispute, Customer acknowledges and agrees that it will accept these data traffic records as accurate and final records of the data traffic to which they relate.
14.3 Invoices: eSolutions will issue invoices in accordance with its billing cycle, as from time to time notified to Customer:
(a) For fixed or recurring charges, in advance;
(b) For variable charges including Usage Charges and excess Usage Charges, in arrears;
(c) For Hardware and Software, on or after delivery, or otherwise in accordance with the Cover Sheet;
(d) For any installation charges, on or after installation, or otherwise in accordance with the Cover Sheet;
(e) Otherwise as notified by eSolutions from time to time.
14.4 Billing Periods: eSolutions will use its best endeavours to bill all charges for the relevant billing period in the invoice relating to that period. Where charges relating to that billing period arise for any reason after the invoice is issued, including without limitation late notification of a Supplier of billing errors, eSolutions may include such charges on a later invoice.
15. Payment Authorities
Customer hereby authorises eSolutions to debit all fees under any invoices rendered by it under this Agreement, as the Customer chooses, to its nominated Bank Account or to Customer’s nominated credit card and all subsequent renewals of that credit card.
16. Privacy
eSolutions may collect, use and disclose information relating to Customer for purposes related to the supply fo Services, including without limitation billing and account management, business management and product development, and to the provision of information about promotions , products and services of eSolutions, in accordance with the Privacy Policy set out on the eSolutions Website, but will not use such information so as to breach any Privacy Law.
17. Credit Information
The Customer hereby agrees and consents to eSolutions acquiring a credit report from any credit reporting agency containing personal information (as well as information concerning commercial creditworthiness and activities) for purpose of assessment by eSolutions of an application for credit (whether commercial or private) or for the collection of payments which are overdue. The Customer also agrees and consents to eSolutions reporting information to any credit reporting agency that the Customer is in default of the trading terms of this Agreement or that it has handed over collection of the Customer’s account to a collection agency.
18. Force Majeure
Neither party will be responsible for any delay or failure to perform its obligations under this Agreement (except obligations relating to payment), resulting from any cause beyond its reasonable control, including but not limited to: acts of God; inclement weather, fire, explosion or flood; strikes, work stoppages, slow-downs or other industrial disputes; riots or civil disturbances; and acts of government. eSolutions and the Customer will give each other notice of the event as soon as practicable after the event and will as soon as the event ceases to effect performance of the obligations under the Agreement in question resume compliance with their obligations.
19. Notices
Any notice to be served on either of the parties by the other shall be sent by prepaid recorded delivery or registered post or by facsimile or by electronic mail and shall be deemed to have been received by the addressee within 72 hours of posting, within 24 hours if sent by facsimile to the correct facsimile number (with correct answerback), or within 24 hours if sent by electronic mail to the correct electronic mail address of the addressee.
20. Assignment
eSolutions may assign its rights and obligations under this Agreement to any third party able to perform those obligations and otherwise on such terms and conditions as it may deem acceptable.
21. Governing Law
This Agreement shall be governed by the law in effect in the State of New South Wales, and the parties submit to the jurisdiction of the Supreme Court of New South Wales.
22. General Provisions
If any provision or portion of this Agreement is held to be unenforceable, it shall be enforced to the maximum extent permissible consistent with the terms hereof, and the remainder of this Agreement shall continue in full force and effect. This Agreement may not be amended or modified, and no provision may be waived, without a writing signed by the Parties. This Agreement represents the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior and/or contemporaneous agreements and understandings between the Parties with respect to the subject.
23. Definitions
Acceptable Use Policy means the policy set out at URL http://www.esolutions.com.au/termsandconditions.htm which defines acceptable and unacceptable use of the Services by the Customer.
eSolutions Network or eSolutions IP Network means the data communications network (based on TCP/IP and other Internet protocols) between the eSolutions IP routers owned and operated by eSolutions.
eSolutions Website means the website located at the URL, http://www.esolutions.com.au.
Business Hours means the hours between 8 am and 6 pm on normal business days.
Control Panel means an interface on the eSolutions Website which enables a Customer, by logging in using assigned UserIDs and Passwords, to access tools and modules provided by eSolutions or specified in the Agreement for monitoring, managing and maintaining various functions of hosted websites such as user accounts, file managers, server logs, databases and other analytical tools.
Regulatory Authority means and includes the Australian Communications and Media Authority, the Australian Competition and Consumer Commission, the Australian Communications Industry Forum Limited, the Telecommunications Industry Ombudsman, the Internet Industry Association, the Asia Pacific Network Information Centre, authorized domain name registrars, and any other competent government or statutory body or authority having jurisdiction over eSolutions.