Service Agreement

connect.com.au Service Agreement

Last updated: 15 March 2013
(current customers: See What’s Changed)

This Service Agreement and the Service Terms contain the terms and conditions that govern your access to and use of the Services and is an agreement between AAPT Limited (trading as connect.com.au) (“connect.com.au” or “we” or “us”) and you or the entity you represent (“you”) (this “Agreement”). This Agreement takes effect when you click the “click-to-accept” box linked to this Agreement, or earlier if you use any of the Services (“Start Date”). If you are entering this Agreement on behalf of an entity, you represent that you have legal authority to bind that entity.

1. THE SERVICES

1.1 Services

You may access and use the Services in accordance with this Agreement and the Acceptable Use Policy.
If the Service Terms set out Service Levels for a Service then we will endeavour to provide that Service in accordance with those Service Levels. Our liability for a failure to meet a Service Level will be as set out in those Service Terms and you acknowledge this is your only remedy in relation to a failure by us to meet a Service Level.

1.2 Your Account

To access the Services, you must create a connect.com.au account associated with a valid email address. You may only create one account per email address.
You are responsible for all activities that occur under your account, regardless of whether the activities are undertaken by you, any End User, your employees or a third party and, except to the extent caused directly by our breach of this Agreement, we are not responsible for unauthorised access to your account.
We are entitled to assume that any request in connection with the Service we receive from your account is authorised by you. You must contact us immediately if you believe an unauthorised third party may be using your account or the Service or if your account information is lost or stolen.

1.3 Changes

We may change, replace or discontinue a Service or any feature or functionality of a Service at any time. We will notify you of any material adverse change to or discontinuation of a Service.
We may change, discontinue or add Service Levels at any time.

1.4 General Responsibilities

Whenever we provide a Service to you, you will:

comply with this Agreement and all applicable laws, regulations, standards and codes, including the Acceptable Use Policy;
unless expressly stated otherwise in the Service Terms, not resupply or resell the Service;
follow our reasonable directions about the use of the Service; and
be responsible for any of your End Users who have access to the Service.

1.5 Third Party Content

You acknowledge that we do not and cannot supervise, edit or control any Content you or any End User may access through use of the Service. We are not responsible in any way for that Content or for access to or use of that Content by you or any End User.

1.6 Interception of Services

You acknowledge that we, or our authorised delegate, may:

intercept the Services or the data being transmitted over the Service if you fail to comply with this Agreement or any applicable laws or to enable us to comply with our obligations at law; and
investigate any misuse of the Services by you including in conjunction with any law enforcement agencies.

2. YOUR CONTENT

You are solely liable for Your Content carried over our network or a third party network as a result of your use, or deemed use, of the Service.
You agree that we may block access to, remove, amend or alter Your Content:
1. if it breaches our Acceptable Use Policy;
2. upon being made aware of any order, judgement, decree, or direction by any relevant authority with legal jurisdiction that Your Content is illegal, offensive, objectionable or in breach of a third party’s rights;
3. if directed to do so by the Australian Broadcasting Authority under a ‘Take Down Notice’ in accordance with its obligations under the Broadcasting Services Amendment (Online Services) Act 1999 (Cth); or
4. where we are legally required to do so as a result of a notified infringement of a third party’s Intellectual Property rights.
You are responsible for your End Users’ use of the Services and Your Content. You must ensure that the terms of your agreement with each End User are consistent with this Agreement. If you become aware of any breach of your obligations under this Agreement by an End User, you must immediately terminate that End User’s access to the Services and Your Content.

3. SECURITY

You are responsible for properly configuring and using the Services, and for taking steps to maintain appropriate security, protection and backup of Your Content at all times, including by keeping your account login information secret, using encryption technology and regularly archiving Your Content.
We do not warrant that the Services will be uninterrupted or error-free or that Your Content will be secure or not otherwise lost or damaged.

4. CHARGES AND PAYMENT

4.1 Charges

We calculate and invoice charges monthly. You must pay the charges for use of the Services as posted on the connect.com.au website.
We will send an invoice to your connect.com.au account and/or the email address then associated with that account prior to processing payment. Payment will be processed on the due date as a direct debit on your nominated credit card, in accordance with your Direct Debit Agreement with us. If your credit card has insufficient funds, or has expired, you must make alternative payment arrangements. If you fail to pay an invoice by the due date, we may charge you interest on the unpaid amount at the rate of 3% above the Commonwealth Bank Corporate Overdraft Reference Rate published on the first day of the month of the due date.
All amounts payable under this agreement will be made without setoff, counterclaim, deduction or withholding.
We may delegate invoicing for the Services to one of our Related Bodies Corporate. If this happens, you agree that you will pay the invoices in accordance with the terms of this Agreement as if they had been received from us.

4.2 Changes to charges

Charges for a new Service or a new feature of a Service will be effective from the time we notify you.
We may vary the charges for an existing Service at any time:
1. without notice, if there is an increase in the amount we must pay our suppliers in providing the Service to You; or
2. unless stated otherwise in the applicable Service Terms, by giving you at least 14 days’ prior notice.

4.3 GST

Unless otherwise expressly stated, the charges are inclusive of GST. If a charge is stated as exclusive of GST, you must pay us, in addition to the charges, an amount equal to any GST payable on the supply of the Service. That additional amount is payable at the same time as any part of the charges is payable. We will issue a tax invoice to you for the supply of the Service at or before that time.

5. SERVICE DISRUPTION

We may temporarily suspend or restrict any Service:
1. if we believe it necessary to do so to comply with any law or an order or request of any Regulator;
2. to protect any person, equipment, our network or a supplier’s network and/or to attend to any emergency;
3. during any scheduled maintenance period;
4. in the event that you are, or any End User is, in breach of this Agreement or the terms of our Acceptable Use Policy; or
5. if the Service is used in an excessive or unusual way (though we are not obliged to do so and you remain liable to pay for any charges incurred for any excessive or unusual usage).
If we suspend or restrict any Service:
1. you remain liable for all charges you have incurred up to the time of suspension or restriction of that Service;
2. you will not be entitled to any service credits for the period of suspension or restriction of that Service; and
3. we will not delete any of Your Content as a result of the suspension or restriction, unless we are otherwise entitled to do so under this Agreement.

6. LIABILITY AND INDEMNITY

6.1 Limitation of Liability

To the extent permitted by law we exclude all statutory or implied conditions or warranties. We do not warrant that Services will be free of interruptions, delays or faults.
To the extent permitted by law our liability in relation to the Agreement under any term, condition, warranty, undertaking, inducement or representation that by law cannot be excluded or that is not otherwise excluded by this Agreement, is limited at our option to:
1. in the case of services: the cost of the resupply or payment of the cost of resupplying the services; and
2. in the case of goods: the replacement of the goods, the repair of the goods, the payment of the cost of replacing the goods or acquiring equivalent goods or the payment of the cost of having the goods repaired.
To the extent permitted by law our total liability in respect of all claims in connection with this Agreement (whether in contract, negligence or any other tort, under any statute or otherwise) will be the sum of the charges paid by you under this Agreement in the 12 month period preceding the date of the event that gave rise to the last claim.
We will not be liable to you (under the law of contract, tort, equity or otherwise):
1. for any damages of any kind arising out of or in connection with this Agreement that are indirect or consequential (meaning not arising in the ordinary course as a direct, natural or probable consequence of the act or omission complained of); or
2. for any loss of data, loss of revenue, loss of sale, loss of profits, loss of business or any other economic loss or any loss of goodwill; regardless of the cause of such damages or whether we had been advised of the possibility of such damage.
We will not be liable for failing to meet our responsibilities under this Agreement because of a Force Majeure Event.

6.2 Indemnity

You indemnify us and our Related Bodies Corporate, and will keep us and our Related Bodies Corporate fully indemnified, from and against any losses, damages, costs and/or expenses (including legal costs assessed on a solicitor client basis) which we and/or our Related Bodies Corporate may suffer or incur arising out of or in connection with your (or any of your End Users’) use of the Services including, without limitation, as a result of:

the transmission of any illegal, fraudulent or offensive material by you (or any of your End Users);
any breach of this Agreement by you; or
any wilful, unlawful or negligent act or omission by you (or by any of your End Users).

7. INTELLECTUAL PROPERTY RIGHTS

7.1 Services

We either own the Intellectual Property in the Services provided to you or, where we use any Intellectual Property belonging to anyone else, we have a licence to do so.
None of our Intellectual Property is transferred to you and, unless specifically authorised by this Agreement, you cannot and will not use or reproduce such Intellectual Property for any purpose outside this Agreement.
All Intellectual Property in any improvements or changes to any Service devised or made by anyone during the time we are providing the Service belongs to us.

7.2 Software

Where we provide you and/or any End User with any software to use:
1. we remain the owner or licensee of the software;
2. you and/or any End User may use the software only for the purposes for which it is provided under the Agreement;
3. your right and/or any End User’s right to use the software may not be assigned or otherwise transferred to anyone else without our prior written consent;
4. you and/or any End User must not change or interfere with the software in any way;
5. you and/or any End User must not use the software to recreate or reverse engineer any source code or copy any part of the software except for the purposes of our approved backup or testing procedures; and
6. you and/or any End User will comply with any further requirements we impose in relation to the software or, where relevant, any requirements of the owner or licensor of the software.
We may at any time install upgrades or new versions of the software and you shall co-operate to the extent necessary for us to be able to do so.

7.3 Your Content

Subject to this clause 7.3(a), we obtain no rights under this Agreement from you or your licensors to Your Content. You grant us a non-exclusive royalty free licence to use, transmit, adapt, display, distribute, disclose and reproduce Your Content to provide the Services to you and any End Users. We may disclose Your Content to comply with any request of a Regulator , if required to do so by law or to the extent necessary for the purposes of clause 2(b).
You represent and warrant to us that:
1. you or your licensors own all right, title and interest in and to Your Content;
2. you have all rights in Your Content necessary to grant the rights contemplated by this Agreement; and
3. none of Your Content or your End Users’ use of Your Content or the Services will be in breach of the Acceptable Use Policy.
You agree to indemnify, defend, and hold us, and/or our Related Bodies Corporate, harmless from all Loss incurred or suffered by us and/or our Related Bodies Corporate, arising from any claims (including third party claims) or demands against us and/or our Related Bodies Corporate where such Loss was caused by any infringement or alleged infringement of any person’s Intellectual Property by you when using the Service or Your Content.

8. INFORMATION

8.1 Confidential Information

You agree to:

use Our Confidential Information only in connection with your use of the Services as permitted by this Agreement;
not copy or reproduce any of Our Confidential Information in any way;
disclose Our Confidential Information only to employees and contractors who need access to the information and who have agreed to keep it confidential;
disclose Our Confidential Information only to your legal advisers and insurance providers if those persons undertake to keep such information confidential; and
not disclose Our Confidential Information to any person not referred to in this clause except with our prior written consent or if required by law, any stock exchange or any Regulator.

8.2 Personal Information

During your relationship with us, we may collect information from you or from a credit provider or credit reporting agency (“Personal Information”).
You agree that we may:
1. hold the Personal Information and share it with our employees, contractors and other agents or where relevant other credit providers but only where this is necessary to enable us to provide you with the Services, send you invoices, check your creditworthiness, check that your responsibilities are being met or otherwise to administer and enforce this Agreement. If this Personal Information is not provided to us, we may be unable to provide the Service to you;
2. share with other network operators or suppliers any information needed to provide certain services to you, or to enable you to send or receive messages of any kind through those networks;
3. use any information about you for statistical purposes, so long as you are not identified; and
4. use any information about you for the purposes set out in our Privacy Policy.

9. TERM AND TERMINATION

9.1 Term

This Agreement commences on the Start Date and continues in effect until terminated by you or us in accordance with clause 9.2 or 9.3.

9.2 Termination for convenience

You may terminate this Agreement or a Service at any time using your account control panel.
We may terminate this Agreement at any time by giving you 30 days’ prior notice.

9.3 Termination for cause

Either party may terminate:
1. a Service on notice where the other party has materially breached this Agreement as it relates to that Service and, if that breach is capable of remedy, has failed to remedy the breach within 20 Business Days of receipt of notice from the non-defaulting party requiring the breach to be remedied; or
2. this Agreement immediately on notice where the other party suffers an Insolvency Event.
We may terminate this Agreement or a Service immediately on notice to you:
1. if we reasonably determine that you have failed our credit check requirements or that you are no longer credit worthy;
2. if you materially breach this Agreement and, if that breach is capable of remedy, you have failed to remedy such breach within 20 Business Days of receipt of our notice requiring the breach to be remedied;
3. if we believe it is necessary to do so to comply with any law or an order or request of any government or regulatory body, to protect any person, equipment or our network or to attend to any emergency; or
4. if we are unable to supply, or continue to supply the Services for whatever reason (including if our relationship with a third party supplier terminates or requires us to change the way we provide the Services or if we believe providing the Services is not commercially or technically viable or poses a material security risk to us).

9.4 Suspension Rights

If you are in material breach of this Agreement (including by non-payment of our charges when due) we have the right to suspend performance of any or all of our obligations under the Agreement if you fail to comply with our notice requiring you to remedy such breach by the date specified in such notice.

9.5 Effect of Termination

Upon any termination of this Agreement:
1. all your rights under this Agreement immediately terminate;
2. you remain responsible for all charges you have incurred up to and including the date of termination;
3. you must immediately return, or if instructed by us, destroy all of Our Confidential Information in your possession; and
4. the parts of the Agreement which are by their nature intended to survive termination will do so, including clauses 1.2(c), 4, 6, 7, 8, 9, 11 and 12.
After a Service is terminated, we may delete any of Your Content associated with that Service from our network. You are responsible for copying and/or downloading Your Content before your Service terminates.

10. CHANGES TO THIS AGREEMENT

We may amend this Agreement at any time by posting a revised version on the connect.com.au website or by providing notice to you. This Agreement was last modified on the date displayed at the beginning of this Agreement. It is your responsibility to check the connect.com.au website regularly for updates.
Any amendment to this Agreement will take effect upon posting on the website or otherwise in accordance with clause 11. By continuing to use the Services after any amendment takes effect, you agree to be bound by the amended terms.

11. NOTICES AND INVOICES

We may provide any notice under this Agreement by:
1. posting a notice on the connect.com.au website;
2. posting a notice to your account; or
3. sending a message to the email address associated with your account. Notices we provide by posting on the connect.com.au website or to your account will take effect upon posting. Notices we provide to the email address will be effective upon sending. It is your responsibility to keep your email address current.
Any notice to us under this Agreement must be in writing and sent:
1. by personal delivery or registered post to connect.com.au, Level 23, 680 George Street, Sydney, New South Wales; or
2. by fax to (+61) 2 9009 9945. Any notice sent by registered post to that address will be assumed to have been delivered 2 Business Days after it is posted. Any notice sent by fax to that fax number will be assumed to have been delivered once a correct transmission confirmation slip is received. Any notice sent by email to that email address will be assumed to have been delivered once it has been opened or read by an employee or officer of connect.com.au.

12. GENERAL

You cannot assign your rights and responsibilities under this Agreement without our prior written consent. We may assign our rights and responsibilities under this Agreement at any time by providing notice to you.
No legal partnership, employer/employee, principal/agent or joint venture relationship is created or evidenced by the Agreement.
The Agreement is the entire agreement between you and us in relation to its subject matter.
No failure, delay or indulgence by either party in exercising any power or right conferred by this Agreement on that party will operate as a waiver of that power or right.
If a provision of this Agreement is void, voidable, unenforceable or the invalid part severed, the remainder of this Agreement will not be affected.
This Agreement will be governed by the laws of New South Wales. Both parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales and courts entitled to hear appeals from such courts.
If there is any inconsistency between the provisions of this Service Agreement and any Service Terms, the Service Terms will prevail to the extent of the inconsistency.

13. DICTIONARY

“Acceptable Use Policy” means the acceptable use policy currently available at connect.com.au, as updated by us from time to time;
“Business Day” means any day excluding Saturday, Sunday, a bank or public holiday in the place where the obligation is required to be performed.
“connect.com.au website” means connect.com.au or any successor or related site designated by us;
“Content” means software (including machine images), data, text, audio, video, images or other content.
“Direct Debit Agreement” means the direct debit agreement you accepted to authorise payment for use of the Services via direct debit on your nominated credit card; “End User” means any individual or entity (including your agents, employees, contractors or other service providers) that directly or indirectly:

accesses or uses Your Content; or
otherwise accesses or uses the Services under your account.

“Force Majeure Event” means an event or cause beyond our reasonable control including, without limitation, acts or omissions of third party network operators or suppliers, fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, strikes or lockouts.
“GST” means GST within the meaning of A New Tax System (Goods and Services Tax) Act 1999 (Cth).
“Insolvency Event” means where an administrator, liquidator, receiver, manager and receiver or any other administrator is appointed over the assets of the business of the entity, or if the entity enters into any composition with its creditors.
“Intellectual Property” means any intellectual or industrial property anywhere in the world including, but not limited to, any registered or unregistered copyright, patent, trade mark, design rights, trade secret or Confidential Information relating to the Service or any licence or other right to use, or to be the registered proprietor of, any of the above.
“Loss” means all losses, damages, liabilities, claims and expenses (including legal fees on a solicitor and client basis).
“Our Confidential Information” means information of connect.com.au or its Related Bodies Corporate of a confidential nature whether oral, written or in electronic form including, but not limited to, this Agreement, our Intellectual Property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information and pricing details. Our Confidential Information excludes:

information generally available in the public domain (without unauthorised disclosure under this Agreement);
information received from a third party entitled to disclose it;
information that is independently developed.

“Privacy Policy” means the privacy policy currently available at connect.com.au, as updated by us from time to time;
“Regulator” means the Australian Competition and Consumer Commission or any other relevant government regulator.
“Related Body Corporate” has the meaning given in the Corporations Act 2001 (Cth).
“Service” means the service(s) ordered by you using your account and agreed to be supplied by us under this Agreement.
“Service Agreement” means the terms set out in clauses 1 - 13 of this document, including the preamble;
“Service Levels” means the levels of service (if any) in respect of a Service as set out in the relevant Service Terms;
“Service Terms” means the terms and conditions applicable to particular Services, set out at the end of this Service Agreement; and
“Your Content” means Content you or any End User:

run, display or distribute using the Services;
cause to interface with the Services; or
upload to the Services under your account or otherwise transfer, process, use or store in connection with your account.

SERVICE TERMS

Last updated: 15 March 2013

These Service Terms only apply to the specific Service to which they relate.

connect.com.au CLOUD SERVICE

1. Software Licences

You must not use third party applications in connection with the Cloud Service which have licence terms and conditions which conflict with or could cause you to breach the Agreement.
Without limiting any other rights, we may terminate your use of the Cloud Service and/or remove any unauthorised software or applications immediately if you fail to comply with the Agreement.
You are responsible for maintaining licenses and complying with the license terms of any software you run on the Cloud Service.
You agree to indemnify us and our third party service providers against any loss, cost, liability or damage incurred in connection with your hosted content, any data stored using the Cloud Service and any software or configuration data you install on the Cloud Service.

2. Microsoft Software

In connection with the Cloud Service, you may choose to use certain software and documentation owned by Microsoft Corporation or its licensors (collectively, the “Microsoft Software”). The Cloud Service does not support customer supplied Microsoft software and you must select one of our pre-packaged operating systems for use in connection with the Cloud Service. If you choose to use the Microsoft Software, Microsoft and its licensors require that you agree to the following terms:

you must not remove, modify or obscure any copyright, trademark or other proprietary rights notices that are contained in or on the Microsoft Software;
you must not reverse engineer, decompile or disassemble the Microsoft Software, except to the extent expressly permitted by applicable law;
Microsoft disclaims, to the extent permitted by applicable law, all warranties by Microsoft and any liability by Microsoft or its suppliers for any damages, whether direct, indirect, or consequential, arising from the Services;
we are responsible for providing you with technical support in connection with the Cloud Service. Microsoft (and its suppliers) will not provide any support for the Cloud Service;
Microsoft does not transfer any ownership rights in the Microsoft Software;
you acknowledge that you may use the Microsoft Software solely in conjunction with the Cloud Service;
you acknowledge that the Microsoft Software is not fault tolerant and is not guaranteed to be error free or to operate uninterrupted. You must not use the Microsoft Software in any application or situation where the failure of the Microsoft Software could lead to death or serious bodily injury of any person, or to severe physical or environmental damage (“High Risk Use”). Examples of High Risk Use include, but are not limited to: aircraft or other modes of mass human transport, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles or weaponry systems. High Risk Use does not include use of the Microsoft Software 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. You agree to indemnify and hold harmless Microsoft from any third party claim arising out of your use or any End User’s use of the Microsoft Software in connection with any High Risk Use.

3. Linux Software

In connection with the Cloud Service, you may choose to use a Linux operating system, which is a third party free software program (“Linux Software”). If you choose to use the Linux Software, you agree to the terms of the GNU General Public Licence, a copy of which is available at http://www.gnu.org/licenses/.

4. IP Addresses

We will arrange for appropriate IP addresses to be allocated for you to use in connection with the Cloud Service. You must comply with the requirements of any Regulator or other body which administers IP addresses.
As between you and us, all IP addresses allocated to you remain our property. For that reason, you may not sell, lease, licence or otherwise deal with any IP addresses allocated to you. You acknowledge that on cancellation of the Cloud Service, your right to use any related IP address may cease.
If it is necessary to do so, we may, by giving you one month’s notice or a shorter timeframe if required by law, a Regulator or a body that administers IP addresses, change or replace any electronic address allocated to you.

5. Cloud Service Storage

You may delete a storage component of your Cloud Service at any time using your account control panel. You acknowledge and agree that if you delete a storage component of your Cloud Service, all of Your Content then stored in that storage component will be removed and unable to be retrieved. You are responsible for copying and/or downloading Your Content before you delete a storage component of your Cloud Service.

6. Service Levels

We will use commercially reasonable endeavours to ensure that your Cloud Service achieves an availability target of at least 99.95% (“Availability Target”). Availability is measured by us as the percentage of time that your Cloud Service is operational and contactable from the wider Internet. Availability is measured over a calendar month and does not include any scheduled outages or downtime initiated by you.
Failure to achieve the Availability Target does not entitle you to a rebate.

connect.com.au CDN SERVICE

1. CDN Service Acceptable Use Policy

You may access and use the Content Delivery Network Service (“CDN Service”) in accordance with the CDN Service Acceptable Use Policy at http://www.edgecast .com/aup.html. The CDN Service Acceptable Use Policy may be updated from time to time. It is your responsibility to check this website regularly for updates.
We may suspend the CDN Service if your use, or any End User’s use, of the CDN Service is in breach of the CDN Service Acceptable Use Policy.

2. Restrictions

Neither you or any End Users will export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information using the CDN Service to anyone outside a jurisdiction without first complying with all applicable export control laws and regulations which may be imposed by any country or organisation of nations within whose jurisdiction you, the End User, us or a third party supplier operate.
You and each End User acknowledge that neither we nor our supplier’s own or control the local circuit link, leased co-location space, leased space cross-connects, Internet service provider partners providing connectivity to us or to our suppliers, or networks outside such connectivity, nor are we or our suppliers responsible for performance (or non-performance) within such networks or within interconnection points not operated by us between the connectivity and such networks.
You are responsible for assessing your own computer and transmission network needs, content aggregation and delivery needs, streaming needs and the suitability of the CDN Service to meet those needs. We make no warranty as to the security of the CDN Service or the Internet connections used, operation of your equipment or End User equipment, ability of any backup service to re-establish operation of your equipment or End User equipment, or that the CDN Service will perform at or above any latency times.