Terms of Service
Last updated: 22 April 2015
Standard Terms & Conditions
These Trading Terms & Conditions (“Terms”) apply (unless otherwise previously agreed in writing) to the supply of Services by Axelera to a Customer from time to time. Any supply of Services by Axelera to the Customer made after the date of acceptance of these Terms is a supply pursuant to the supply agreement constituted by these Terms and the relevant order accepted by Axelera and any such supply does not give rise to a new or separate agreement.
The essence of this agreement
- In plain English, we both agree not to sue each other and we both agree to act in the spirit of mutual cooperation for mutual benefit and each to manage their own risk.
Limitation of Liability
- The limitations on liability included in this agreement are an essential aspect of this agreement and the standard prices of Services offered to a Customer are based on acceptance of these Terms.
- Liquidated damages in all possible instances are limited to the SLA credits pertaining to the Service offered. If no specific SLA has been negotiated with a Customer then the Axelera Standard SLA takes effect unless a specific product SLA has been referred to in the product description.
- You agree to indemnify, defend and hold us harmless from any legal claims or actions, arising from a breach of your obligations and responsibilities under this agreement whether through action, inaction, omission, misuse (including misuse by a 3rd party for example by unauthorised access) or otherwise and to pay the cost of defending the claim and any damages, compensation, fines or penalties.
- Neither party shall be liable to the other party for any direct, special, incidental, consequential or indirect loss or damages, even if advised of or being reasonably foreseeable or not foreseeable, including but not limited to loss of data, loss of profits, loss of customers, loss of contracts, loss of time, loss of opportunity, increased or wasted costs or expenses, business interruptions or other costs suffered by the other party or any third-parties in connection with any performance, non-performance, degraded performance or delayed performances of service used by any party.
- Notwithstanding clause 4 & 5, our liability is at all times and in all cases, where permissible by law, limited to what credit remedies are provided within the applicable SLAs. If you require greater protection than provided for in the SLAs, you should prudently seek independent insurance to protect yourself. Examples of this insurance are business interruption insurance and cyber liability insurance.
- We will endeavour to provide services in a professional and timely manner in order to achieve or exceed offered SLAs, within the constraint of being provided on commercially reasonable basis and may rely on the provision of services, telecommunications links, systems, software and/or hardware from 3rd parties over which we have no control. We are not an insurance provider and this agreement does not constitute a form of insurance.
Nature of technology
- Due to the nature of the technology, we do not warrant to provide a continuous or uninterrupted or fault or defect or degradation or error free, or a completely secure service. Nor do we warrant our services will meet all of your requirements. You should ensure that you have satisfied yourself that the services are appropriate and are suitable for their intended purpose. You should not rely on our services for life support or medical emergency systems.
- Our security services are provided on commercially reasonable basis and while we take security seriously we do not warrant that we can keep any servers or systems free from annoying, malicious or illegal cyber events, such as spam, viruses, malware, trojans, or other cyber penetrations, interruptions, denial of service attacks, data loss or damage, privacy loss, data theft or damage or any other cyber events.
- We do not provide any warranty in relation the security of Your data and You are ultimately responsible for the security of your own data.
- Our data and compute services including data storage, data backups, High Availability (HA) or CDN data services, disaster recovery, etc. are provided on a commercially reasonable basis and while we take data reliability and integrity seriously we do not warrant that we can keep data from being damaged, lost, stolen, corrupted, or kept private. You should acquire systems from us such that they are architected appropriately taking into account the requisite reliability required based on the value of the specific data or service to you.
- We do not provide any warranty in relation to the integrity of your data and you are ultimately responsible for the integrity of your own data.
- Where we use file system, SAN or hypervisor or other forms of snapshots, we will not provide you with access to these, nor should you rely on these as any form of backup.
- Our computer, data, communications or networking services, where these are sourced from a 3rd party (for example Telstra, AAPT, AWS, MS Azure etc.) are provided without SLA beyond what the underlying provider offers, if any. You authorise us to claim SLAs remedies on your behalf.
- In the event of inapplicability of or severing of clause 6 or any other limitation of liability clause or where we have been found to be negligent, it is an essential term that our liability is limited to the amount equal to the monthly value of the services that have actually been paid in that calendar year, for ongoing services, or for one off services: the price of that service or, the value of goods sold.
- In the case of failing of even clause 15, our liability is superessentially limited to the value of cover of our applicable liability insurance policy.
- We will maintain the following insurance as required by legislation and as is prudent for our business operations;
- Financial Injury (Professional Liability) $1,000,000 each act and $2,000,000 in the aggregate
- Public Liability $20,000,000 each occurrence
- Products Liability $20,000,000 each occurrence and in the aggregate
- Workers Compensation Insurance
Australian Consumer Rights Protection
- Where we provide goods or services that are legislated to fall under the protection of Australian Consumer Law: Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
Promptly Rectifying Issues
- We will endeavour to rectify any faults or errors or interruptions of our services to meet and if possible exceed agreed SLAs promptly or within the timeframes stated in the SLA based on the relevant issue level, but due to the nature of the technology and services we do not guarantee that we are able to rectify all issues or that we are able to do so in any particular timespan.
- Upon service failure or un-rectifiable fault or defect, we reserve the right to replace or resupply an equivalent or similar service.
- Timely mutual cooperation is essential for us to be able provide the customer with a high level of service.
- We both agree to act as promptly as reasonably possible to cooperate to rectify issue brought to the other’s attention.
- Where you purchase services that require software agents installed on servers, you agree to allow the deployment of these and not to remove or interfere with or block or degrade these in any way.
- In addition to this agreement, you are also bound by the following documents:
Axelera Standard SLA (https://www.axelera.com.au/sla)
Customer Rights and Responsibilities (https://www.axelera.com.au/customer-rights-and-responsibilities)
Where applicable, you are also bound by the following service specific terms:
Axelera Connectivity Terms (https://www.axelera.com.au/connectivity-terms-service)
- We may mutually agree to amend any of the combined terms, these amendments will be detailed in a separate document titled "Service amendment schedule" and signed by both parties.
Cause for suspension or termination
- You should use reasonable efforts to ensure that 3rd parties do not gain unauthorised access to your accounts or services. We retain the right to immediately or at any time without notice suspend or terminate this agreement based on information, which may lead us to suspect malicious activity, intent or misuse despite a contracted minimum term for which you will still be liable.
- The services must not be used directly or indirectly for unlawful purposes.
- We do not tolerate spam. If you spam, send bulk unsolicited emails or forum posting, or any other similar inappropriate method of promotion, then your access to our services may be immediately suspended or terminated depending on the severity at our discretion.
- If you become insolvent we may terminate this contract immediately without notice.
- Where you as a new Customer signs up or uses our services without payment, either by accident or via a trial, we have no obligation to continue providing services and may terminate without notice.
Customer to provide Access to servers for licensing
- Where we provide software licences or services to be used by you. You agree to allow us to use any licence verification methods necessary to fulfil our reporting obligations to our vendors, including but not limited to direct access to the servers, software agents, required open ports etc. It is an essential condition that you import any obligations to licensing that we are contracted to in the provision of those licenses to you.
Invoices to be paid on time
- We do not provide banking or credit services. All invoices must be paid by due date.
- Where part of an invoice is in contention Customer must pay at minimum any part of the invoice that is not disputed.
- We reserve the right to suspend services if you fail to pay invoices by the due date. Failure to pay invoices by the due date will also suspend access those remedies and credits under the SLAs. We may charge a reasonable late payment fee to cover costs of processing late accounts. Persistent or excessively late payments are grounds for termination.
- You are still liable for applicable fees if your access to services is suspended.
- We have no obligation to commence or provide any services until we receive cleared funds.
- If you are terminated for malicious activity we may use any of your remaining credit towards our costs of dealing with the activity.
Pricing may change
- Unless otherwise agreed in writing, We may vary pricing from time to time by providing a 1-month notice to You.
- Deposits or pre-payments for services are binding and refunds can only be requested if we fail to provide the agreed services within a reasonable time or as defined by product specifications.
- Our prices are quoted exclusive of GST.
- We both agree not to assign, novate or transfer this agreement in whole or part without prior written agreement, which will not be unreasonably be withheld.
- This agreement is between Axelera and the Customer only; there are no third-party beneficiaries to this agreement.
No Transfer of Intellectual property
- We both agree that there is no transfer of intellectual property rights implied in this agreement unless specifically agreed to in writing.
No Violating Moral Rights
- We both agree not to place each other in breach of anyone’s moral rights.
- We both agree not to disclose each other’s Confidential Information without prior permission.
- We may use Confidential Information for legal process or divulged it to law enforcement agencies as required by law or where we believe you are carrying on illegal activity.
Ongoing Service term
- The default minimum term for services is 1 month, paid for in advance unless otherwise stated or mutually agreed.
- Customer may cancel service by providing 1-month notice of impending cancelation where we have not agreed to a fixed term. Cancellation requests must be made in writing and submitted to the relevant account manager or as otherwise specified. Services cancelled in effect prior to minimum term still attract full fees for that term.
- You may up to the end of service term, by giving 7 days written notice, request a physical copy of any and all data held by us on your behalf. You are liable for reasonable time and materials for provision of this data, which must be paid for in advance. We will endeavour to provide data on USB stick or external hard drive where volume of data permits. For large volumes of data we may provide data using internal hard drives or other means. We will not transfer this data via networks.
- We may, unless requested, keep terminated account data for a period of up to 14 days, after which it may be deleted permanently without notice.
Title and Risk of goods
- We retain any title to any goods we sell you, until these are paid for in full with cleared funds.
- Risk in any goods passes on delivery to You.
- We may revise these terms and conditions from time to time by posting a new version of this document on our website with immediate effect for new Services or Customers and 30 days effect for existing services and customer with written notice.
Termination for convenience
- We both may terminate for convenience outside the minimum term as specified in proposals, product material or schedules with 30 days written notice.
- Any provision or term of this agreement that is found to be void, illegal or unenforceable may, to that extent be severed from the agreement.
- We both agree that all obligations relating to payment of invoices, indemnity and confidentiality survive termination of this agreement.
- These Terms contain all of the terms and conditions of the contract between the parties, unless mutually agreed and detailed in a separate document titled "Service amendment schedule" and signed by both parties.
- You warrant that you are legally empowered to enter into this agreement and that you are relying solely on information contained in this agreement and the schedules listed herein not in reliance on any other information.
No Partnership or Agency
- We both agree that no partnership, joint venture or agency relationship is contemplated by this agreement.
We can advertise our relationship
- We may use your name and logo in promotion, advertising or marketing material.
- Any defect, delay or degradation or failure in the performance by either of us is excused to the extent it is being caused by Force Majeure.
- The laws of the state of New South Wales in the Commonwealth of Australia govern this agreement.
- No waiver of any of these Terms or failure to exercise a right or remedy by Company will be considered to imply or constitute a further waiver by Company of the same or any other term, condition, right or remedy.
“Customer”, “you”, imports the Customer’s employees, agents, contractors and Related Bodies Corporate having the meaning of the Corporations Act 2001 or anyone that may act under instruction of the Customer.
“Axelera”, “us”, “we” imports the Axelera’s employees, agents, contractors and Related Bodies Corporate having the meaning of the Corporations Act 2001 or anyone that acts under instruction from Axelera.
Axelera is Bucan Holdings Pty Ltd (ACN 003737040) trading as Axelera.
Axelera Standard SLA means those terms available at https://www.axelera.com.au/sla
Confidential Information means all information, whether written or oral, relating to the Customer or Axelera, and includes any communication between the parties and all information in relation to a party’s business or method of carrying on business, trade secrets, technical information, any data regarding sales, marketing and distribution of products or services.
“We both” means Customer and Axelera.
“SLA” means Service Level Agreement.
“Cyber” means virtual, digital or through any other electronic means.
“Spam” is defined to have the same meaning as Australian government Spam Act 2003 or later.
“Force Majeure” means any even over which either party has no control including acts of God, fires, floods, explosions, riots, civil disorder, wars, extreme weather, sabotage or terrorism, vandalism, accidents, electricity failure, communications cable failure, governmental acts and/or change of laws, injunctions and/or directions of national security, cyber attacks including denial of service attacks.
“Written notice” includes email, fax, postal services, courier but excludes SMS, or other non-email digital delivery (unless those services specifically reported on successful delivery)
“Commercially reasonable” means activity which maintains integrity, reliability, efficiency and safety of Axelera’s infrastructure, services, staff, systems, software, relationships, solvency, capital and profitability, while providing fair value.
“Services” includes the supply of compute servers, data services, networking & communications links and intra-links, shared hosting and other servers, backup, disaster recovery, systems, Software systems, support, management and other professional services.
“CDN” means Content Display Network.
“SAN” means Storage Area Network as a form of data storage.
“Malicious” in addition to its general usage imports activity or intent that may
- breach this agreement,
- be unauthorised access to servers, data centres, systems or backups,
- bring disrepute to or defame Axelera,
- legally require Axelera to remove or take down online content,
- be incompetent action causing damage, deliberate or not,
- constitute misuse, as in for other than intended purpose,
- damage goodwill, reputation, efficiency, reliability or safety,
- place undue burden or congestion on resources and/or networks,
- cause menace or harassment,
- be abusive, violent or distressing,
- avoiding debt or trade insolvent,
- be illegal or that may be the target of malicious intent or activity.
“Misuse” is used in common sense and interchangeably with malicious.
“Month” intends to be calendar month at that period.