Terms of Trade

Terms & Conditions

These are the terms upon which Vserv Pty. Ltd. A.B.N. 72130207108 (Vserv) agrees to provide the Service to the Customer. In addition to these terms, the Customer must also comply with:

Any conditions contained in the notes to the product description for products or services you acquire;
Any additional terms which apply to the products or services you acquire (which follow these Terms and Conditions);
Our Acceptable Use Policy
Our operational procedures for use of the Service; and
Our Privacy Policy

The agreement made between us on these terms commences on the day that your server becomes active on our network.

We may vary these terms, the amount we charge for any Service, or the terms of the operation of the Service, at any time by notice via publication on our website www.vserv.net.au or via email or postal service to your nominated representative in this agreement. The changes will become effective upon publication of the notice on our website. Where we vary the prices for Services, we will give at least 30 days notice of the change by the same means, and the new prices will apply at the beginning of the calendar month in which the 30^th day falls. If you use the Service after that publication, your use will constitute an acceptance of the amended terms.

These terms constitute the agreement in its entirety and supersede prior agreements.

We may from time to time run promotions and make special offers of limited time duration ("Promotions"). All Promotions are offered subject to their terms and may be withdrawn or altered at the discretion of Vserv. The terms of this agreement will override the terms of a promotion to the extent of any inconsistency.

1. Service

1.1 Access

We will assign the Customer a username and password which will provide you with console access to your virtual server.

1.2 Scheduled Maintenance

We must perform scheduled maintenance to servers from time to time. We will attempt to perform all scheduled maintenance at times which will affect the fewest customers. If scheduled maintenance requires the service to be offline for more than 15 minutes we will post details of the scheduled maintenance to our website and notify our customers via email at least 48 hours in advance of the maintenance.

1.3 Unscheduled Maintenance

We may need to perform unscheduled maintenance. If unscheduled maintenance requires the Service to be offline for more than 30 minutes, we will post details on our website and email our customers of the issue.

1.4 Backups

We will take a copy of your virtual computer fortnightly for the purpose of backup, and keep two copies available (the current copy and a previous copy). In the event of equipment failure or data corruption, we will restore from the last known good backup copy. In the event of corruption of all of our backup copies, or in the event that an old copy is used to restore data, you should be prepared to upload your data to your server. You must maintain a recent copy of your data at your premises at all times. We will not be liable for incomplete, out-of-date, corrupt or otherwise deficient customer data recovered from our backups.

1.5 Malicious Software

You agree to use spam and virus filters to monitor and filter email traffic between our equipment and the Internet. You agree that we will not be liable for any loss or damage resulting from spam, viruses and other malicious software that may become present on your server.

1.6 Server Location

The Service is provided by Vserv from its global data centres. Vserv will determine in its absolute discretion from time to time the data centre location from which your Service is provided. Vserv reserves the right to migrate your server to a new operating platform if the server from which the service is provided fails or, in the opinion of Vserv, is unreliable. Vserv will use reasonable endeavours to notify you via the contact details in our database.

1.7 Virtual Computer Copy

In contracting with Vserv for Services, the Customer obtains no rights to the hardware and other infrastructure and facilities used by Vserv to deliver the Service. A copy of your virtual computer can be obtained from Vserv upon request for the then standard fee.

1.8 Fair Use Policy

You are entitled to unlimited upstream and downstream data transfer under the Vserv Hosting Service. The intention of Vserv is to provide ample resources for customer convenience so that you do not need to worry about exceeding limits. However, this service is subject to this, our Fair Use Policy. We may apply this Fair Use Policy where in our opinion your use of our services is excessive and/or unreasonable.

We determine whether your use of our services exceeds what we consider reasonable by referencing average client profiles and estimated customer use of our services.

If your use is excessive and/or unreasonable on an ongoing basis, Vserv may contact you to advise you that your use is in breach of this Fair Use Policy, and we may request that you stop or alter your use to come within our Fair use Policy.

If you choose to continue, having determined that your use is excessive but necessary, then we reserve the right to charge for the excessive use of our Services.

2. Payment

2.1 Contract Renewal

You must pay for the Service as notified to you by Vserv in accordance with Vserv’s published prices for Services from time to time. Your contract will be automatically rolled over for a further term of equivalent duration at the end of any term. You must give us notice before the end of the term if you wish to cancel or alter your Service.

2.2 Payment for Use

You must pay all Service charges, traffic and/or storage charges and other amounts incurred by your virtual computer, you or any designated users, or incurred as a result of any use of your virtual computer (whether authorised or not) in accordance with the billing option selected and in advance. Where a billing option does not specify otherwise, all Service charges are payable within 14 days of the date of invoice.

2.3 Prices

Prices published on our website are inclusive of any government taxes or charges unless otherwise noted. In addition you must provide and pay for:

the installation and use of telephone lines, broadband services and all other equipment needed to access the Service; and
all government taxes, duties and levies (if any) imposed on either you or us in respect of the Services or any other service or goods supplied.

2.4 Billing Cycle

You must pay all amounts billed in accordance with your billing option. Billing period is on a calendar monthly cycle beginning on the first day of the month during which your service begins.

2.5 Credit References

You consent to us obtaining a credit reporting agency report containing personal information about you (as well as information concerning commercial creditworthiness and activities) for the purpose of assessment by us of an application for credit (whether commercial or personal) or for the purpose of the collection of payments which are overdue.

2.6 Refunds

No refunds will be given for unused portions of payments in advance (including payment of yearly contracts) unless the account has been terminated due to Vserv's breach of these terms and conditions. Yearly contracts which have been automatically rolled over will only be refundable if notice of cancellation is given during the 2 week cooling off period at the beginning of the rollover term.

3. Customer Warranties and Indemnities

3.1 Warranties

You warrant that:

if you are not the Customer, you have the power and authority to enter into this agreement on behalf of the Customer and will indemnify Vserv for any breach of this agreement by the Customer;
at the time of entering into this agreement you are not relying on any representation made by us which has not been stated expressly in this agreement, or on any descriptions or specifications contained in any other document, including any catalogues or publicity material which we have produced;
you will conduct such tests and computer virus scanning as may be necessary to ensure that data uploaded by you onto or downloaded by you from your virtual computer does not contain any malicious software and will not in any way, interrupt the data or performance of any other Customer’s virtual computer;
you will keep secure any passwords used with the Service.

3.2 Enquiries

You are solely responsible for dealing with persons who access your virtual computer, and must not refer complaints or enquiries in relation to the virtual computer to Vserv.

3.3 Indemnities

You indemnify us against all costs, expenses, loss or liability that we may suffer (directly or indirectly) resulting from:

your breach of these terms;
your use or misuse of the Service;
the use or misuse of the Service by any person using your account; and,
publication of defamatory, offensive or otherwise unlawful material forming part of your service.

If your use of our Services involves storage, processing or transmission of or access to any credit cardholder data, you warrant that the tools, programs, processes and technologies you use to do so comply with the Payment Card Industry Data Security Standard ("PCI Standard") which is available at the Payment Card Industry Security Council website. You indemnify Vserv for any loss, damage, costs, claims and expenses which Vserv may incur flowing from your breach of this warranty. If you breach this warranty, Vserv may terminate this agreement immediately upon written notice to you (which may be delivered by email to the person identified in our database as your authorised contact), and without prejudice to any other rights it may have under this agreement or at law.

4. Vserv’s Warranties and Liabilities

4.1 Liabilities

4.1.1 We accept liability for the supply of the Services but only to the extent provided in this clause. We do not warrant that:

the services provided under this agreement will be uninterrupted or error free;
the services will meet your requirements, other than as expressly set out in this agreement; or
the Services will be free from external intruders (hackers), virus or worm attack, denial of service attack, or other persons having unauthorised access to the services or systems of Vserv.

4.1.2 Where the Customer is a Consumer (as that word is defined by the Trade Practices Act), we accept liability where:

the Service is not supplied with due care and skill;
any material supplied in connection with the Service is not reasonably fit for the purpose for which it was supplied;
and we are otherwise required to do so by the Trade Practices Act.

To the extent that the Service is not of a kind ordinarily acquired for personal, domestic or household use, our liability is limited to, at our option, to the resupply of the services again; or payment of the cost of having the services supplied again.

4.2 Consequential Damages

4.2.1 Except as expressly provided to the contrary in this agreement, we exclude all liability for indirect and consequential loss or damage of any kind, loss or corruption of data, loss of revenue, loss of profits, failure to realise expected profits or savings and any other commercial or economic loss of any kind, in contract, tort (including negligence), under any statute or otherwise arising from or relating in any way to this agreement and/or its subject matter.

4.2.2 Other than liability accepted by us in clause 4.1.1, our total liability for loss or damage of any kind not excluded by clause 4.2.1, however caused, in contract, tort (including negligence), under any statute or otherwise arising from or relating in any way to this agreement is limited in aggregate for any and all claims to the equivalent of one month hosting rental.

5. Suspension and Termination of Service

5.1 Suspension

5.1.1 We may from time to time without notice suspend the Service or disconnect or deny your access to the Service:

during any technical failure, modification or maintenance involved in the Service provided that we will use reasonable endeavours to procure the resumption of the Services as soon as reasonably practicable; or
if you fail to comply with any provision in this agreement (including failure to pay charges due), or do, or allow to be done, anything which in our opinion may have the effect of jeopardising the operation of the Service, until the breach (if capable of remedy) is remedied.
Notwithstanding any suspension of any Service under this clause you shall remain liable for all charges due throughout the period of suspension.

5.1.2 If your account has been suspended or terminated due to your breach, reactivation of your account will be completely at our discretion. If we agree to reactivate your account, we will require payment in full of all outstanding amounts.

5.1.3 Vserv may without notice to you suspend the Service upon being made aware of:

any claim or allegation; or
any court order, judgment, determination or other finding of a court or other competent body, that the data is illegal, defamatory, offensive or in breach of a third party's rights.

5.2. End of Agreement

5.2.1 We may end our agreement with you and cease providing Services for any reason, on 30 days written notice to you.

5.2.2 After the contract end date, you may close your account with Vserv, on 30 days written notice.

5.2.3 If your account is closed you must pay all outstanding charges immediately and we may delete all Customer Data from any storage media.

5.2.4 We are under no obligation to provide you with a copy of the Customer Data if we have suspended or terminated your access to the Service for your breach. If we provide you with a copy of Customer Data, we are entitled to charge a fee for service.

6. Domain Names and IP’s

6.1 You acknowledge that Vserv is not able to renew your domain name and is not liable for any loss or damage resulting from non-renewal of your domain name.

6.2 You indemnify Vserv against all claims arising out of your registration and use and renewal of registration of your chosen domain name.

6.3 Any IP Address allotted to the customer by Vserv, whether as a static address or dynamically allocated, remains the sole property of Vserv, and may be changed or revoked by Vserv at its discretion at any time, and is not transferable.

6.4 Where you have been advised of a static IP address allocation by e-mail, fax or other written communication, Vserv must provide thirty days notice by e-mail of any proposed change to said allocation, except that all allocations lapse immediately that the customer ceases to be a customer of Vserv.

6.5 You acknowledge and agree that:

We do not control the allocation of IP addresses and domain names;
We are not liable to you if we are required to change, withdraw, suspend or re-assign any IP address or domain name as a result of any direction given by a Regulatory Authority or other body which administers such public identifiers.

7. Miscellaneous

7.1 A provision of, or a right created under this agreement, may not be waived except in writing signed by the party granting the waiver, or varied except in writing signed by the parties.

7.2 The law in force in Western Australia governs this agreement and the transactions contemplated by this agreement.

7.3 You may not resell Services or assign your rights and obligations under this agreement without our prior written consent.

7.4 Vserv gives no warranty and makes no representation about the applications or other functionality able to be supported by the Virtual Managed Server Services. You agree that you will make your own enquiries and satisfy yourself as to the suitability of the Virtual Managed Server Services for your purposes.

7.5 Without limiting the Standard Terms & Conditions, we take no responsibility for failure to backup any files.

7.6 You give us permission to use your technical identification in a non-identifying format for problem resolution, internal troubleshooting, product functionality enhancements and fixes, and in any descriptions of problems or solutions to problems, which we record in our systems. We will not identify you or publish your confidential information in any item we record in our systems.

7.7 Any debt owed by the customer to Vserv bears interest at 18% per annum with monthly rests from the date it fell due until actually paid. In addition, Vserv may levy an account collection fee of $75 for collection of money owed where an invoice remains outstanding and undisputed for 30 days after the invoice due date.

7.8 Other than as expressly provided for by this agreement, Vserv is not obliged to make any refund of the customer's fees.

7.9 Vserv offers a range of service options that you may purchase which facilitate the copying of your virtual server and/or data from our primary operating site to storage media other than the primary storage on which your virtual server operates including:

A secondary disk array operated in the same site as the primary operating site
A secondary disk array operated by a third party in the same site as the primary array
A secondary disk array in a location that is physically separate from the primary operating site
Removable media that can be shipped to a location that is physically separate from the primary operating site

The choice of these services is at your discretion and it is your responsibility to ensure that you purchase the services you require to backup your data and your virtual server.

8. Security

8.1 It is your responsibility to maintain the security for the Virtual Managed Server Services including patching for any exploits or vulnerabilities.

8.2 We reserve the right to access the server used to supply the Virtual Managed Server Services without notice to you in order to apply urgent hotfix patching to prevent damage reasonably anticipated as likely to be caused to our systems and operations if such a patch is not immediately applied.

8.3 We will not be liable to you for any interruption of service or loss of data or functionality in such circumstances provided that we have acted with reasonable care.

9. Support Services

9.1 You are responsible for the care and maintenance of your operating system. Vserv will provide additional support services on a consultancy basis at our standard rates (provided on request). You will be invoiced upon completion of any service request.

9.2 You can vary the scope of a service request during its life. If you do so, we are not responsible for any impact on the deliverables and the timetable set out in the service request. You agree to pay any additional costs we incur as a result of the variation.

9.3 In performing each service request we will follow generally accepted industry standards and practices in carrying out the services. We warrant that the services will be provided with due skill and care but we do not warrant that they will meet a certain standard, or will be suitable and fit for your purposes.

9.4 If we are not able to carry out a service request because of an event beyond our reasonable control, you can seek to have your needs met through others without incurring any liability under this agreement.

9.5 You agree to provide to us, within the timeframe reasonably required by us, access to: your premises; employees and contractors; source code and object code; data and databases; legacy systems; and documents, as we reasonably require in order to carry out the services. We are not responsible for any loss suffered by you if you do not provide us with this access, and we will be entitled to stop work if your failure to provide access means that we cannot reasonably complete the work you have asked us to do in the service request. If we stop work under this clause before completing the work, you will still be obliged to pay us the full fee for the work as agreed in the service request.

9.6 The advice we may give you in performing the service request is personal to you and is not to be shared with others unless with our prior written agreement.

10. Software

10.1 We retain ownership of any bug fixes, workarounds, patches, beta fixes and builds, and other software that we make available in the course of providing the services and only give you a license to use them. You must use any of the software in accordance with:

The end user license agreement or other license agreement governing the product for which the software is provided; or
The end user license agreement packaged with the software or any terms expressly set out in writing by us; or

10.2. The following restrictions if no license agreement is packaged with the software:

The software may not be reverse engineered, de-compiled or disassembled to the extent this restriction is permitted by law; and
The software may not be loaned, leased, sold, sublicensed or otherwise distributed to another user; and
To the maximum extent permitted by law the software is provided 'as-is' without warranty of any kind; and

10.3 We may terminate your use of the software if you do not comply with these restrictions.