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Definitions

Unless the context otherwise requires:

"Agreement" means the signed Managed Hosting Agreement between you and us;

"Fees" means the charges payable as specified in the Managed Hosting Agreement and any additional charges associated with providing the Service such as travel costs, or additional Professional Services that you request;

“Professional Service” means any non-standard professional or consulting service provided by us to you from time to time as required and agreed by you;

“Service” means the service(s) referred to in the Managed Hosting Agreement and defined by the service inclusions as defined at Managed Services, Managed Hosting, Managed Co-Location, and/or Remote Backup Services that we have agreed to supply to you;

"we" and "us" means Sapo Blue Pty Ltd; and

“our” or “ours” means pertaining or belonging to “us”;

"you" means the Customer identified in the Managed Hosting Agreement;

“your” or “yours” means pertaining or belonging to “you”;

“Initial Term” or "Contract Period" means the minimum term for which we will provide the Service to you as indicated in the Managed Hosting Agreement;

“Renewal Term” means any service term following the Initial Term, as specified below.

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Supply of Services

By signing the Managed Hosting Agreement, you agree to take and pay for the Service during the Initial Term and for any Renewal Term.

And by signing the Managed Hosting Agreement, we agree to provide the Service during the Initial Term and for any Renewal Term.

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Term

The Agreement will commence on the 1st day of the month following the date we set up your Service and, unless terminated pursuant to clause 10, continue for the term specified in the Managed Hosting Agreement (the “Initial Term”)

1. The Agreement will continue automatically for additional terms equal to one (1) month (“Renewal Term”) or such Renewal Term as is specified in the Managed Hosting Agreement, and for the relevant fees applicable to the Renewal Term, which may be different from the Fees during the Initial Term, unless you notify us in writing at least fourteen (14) days prior to the end of the Initial Term or a Renewal Term, that you have elected to terminate the Service, in which case the Service will terminate at the end of the Term.

2. Additions to the Service, including hardware upgrades, co-location or bandwidth upgrades, or increased management services, and any term with related fees after the Initial Term, if any, will be negotiated between parties and, if accepted, shall initiate a new Agreement applicable to the modified Service.

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Payment

1. You must pay us the Fees within fourteen (14) days of our invoice, except where specified to the contrary in the Agreement. Each payment is non-refundable.

2. If you dispute any part of an invoice you must notify us within 7 days of its receipt and pay that part which is not in dispute.

3. We reserve the right to charge additional Fees where your supply of information, access or contribution necessary to provide the Service is delayed by you.

4. We reserve the right to suspend any or all of the Service if payment of the Fees within thirty (30) days of our invoice is not received.

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Taxes

1. You must pay and indemnify us against all taxes and duties payable in respect of this Agreement, any supply made under the Agreement and the Fees (excluding any income tax payable by us).

2. In this clause, "GST" means the tax imposed by The New Tax System (Goods and Services Tax) Act 1999 (Cth) and related imposition Acts of the Commonwealth.

3. If GST is imposed on any supply made by us under the Agreement, you must pay, in addition to any Fees (unless those fees already include GST), an additional amount equivalent to the GST payable.

4. We will provide you with a valid tax invoice for the amount of GST which we require you to pay to us.

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Your Obligations

1. You acknowledge any limitations of the Service pertinent to the Service as defined at Managed Hosting, Managed Hosting, and Remote Backup Services.

2. You must comply with all reasonable directions issued by us in relation to the use of the Service.

3. You must not knowingly use the Service for any illegal or fraudulent activities including activities which breach the Telecommunications Act 1997 (Cth), the Copyright Act 1968 (Cth), the Australian Broadcasting Services Act 1992 (Cth) as amended 2000 (Cth), or other applicable laws, whether relating to crime, intellectual property, censorship, defamation or otherwise.

4. You must not knowingly use the Service in a way which interferes with or disrupts other Internet users, service providers, their computers, software or hardware including without limitation:

   1. propagating computer worms, trojans or viruses;

   2. using the Hosting Service to gain unauthorised access to another computer or network;

   3. sending harassing, obscene, indecent, offensive or threatening electronic mail;

   4. forgery (or attempted forgery) of electronic mail messages; and

   5. placing, transmitting or storing any defamatory material.

5. You must keep all identification and log-in information that is used as part of the Service, secret and secure. You agree not to disclose to any other person any identification or log-in information, whether in use or not, nor any other confidential information relating to us which you obtain through the use of the Service.

6. Your must ensure that remote access to your managed systems by Sapo Blue engineers, as required from time to time is not prevented by your actions.

7. You must ensure that, once notified of any activities as described in clause 6.3 and 6.4, you will take appropriate and timely action to stop any such activities.

8. You acknowledge that any equipment provided by Sapo Blue as part of the Managed Hosting Agreement will remain our property, and you agree to return to us any equipment supplied by Sapo Blue as part of the Agreement upon termination of the Agreement, except where you excersise the Option to Purchase Equipment as described in clause 12.8.

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Our Obligations

1. Our “Service Warranty” means we will make reasonable commercial efforts to provide the Service indicated in the Managed Hosting Agreement.

2. Except for the express warranties set out in Section 7, the Service is provided on an “AS IS” basis and your use of the service is at your own risk. We do not make, and hereby disclaim any and all other express and/or implied warranties, including but not limited to, warranties of merchantability, fitness for a particular purpose, non-infringement and title. We do not warrant that the Service will be Uninterrupted, Error-free or completely secure.

3. During the Term of the Agreement and subsequent Renewal Terms, we will replace any equipment, provided by us as part of the Agreement, in case of hardware failure (excluding any hardware failures as specified subclause 7.3.3).

   1. We reserve the right to replace equipment under Supplier Warranty where applicable, or elect to replace the equipment with the same Brand/Model or with a similar product including different Brand and/or Model.
      

   2. We will endeavour to replace the equipment within 10 business days.

   3. We will not replace equipment with hardware failures caused by: intentional, neglectful or wilful damage, immersion of the equipment in water, water damage, failure or shortage of power supplies, power spikes, floods, drought, lightening or fire strike.

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Confidentiality, Security and Workplace Policies

1. Each of us agrees to keep the other’s information confidential and use it only for the purposes of the Agreement. A recipient shall use at least the same degree of care to protect and prevent unauthorized disclosure of any confidential information as it, he, or she would use to protect and prevent unauthorized disclosures of its, his or her own confidential information. This obligation will not apply to any information that a recipient already knew before disclosure or information that comes into the public domain (except by breach of confidentiality).

2. Except as may be required by law, none of the parties is authorised to disclose confidential information without the prior written consent of the other party.

3. Neither party shall be liable for disclosure of confidential information if made in response to a valid order of a court or authorised agency of government; provided, that ten (10) business days notice is first given to the party whose Confidential Information is to be disclosed so that such party may seek a protective order and/or engage in other efforts to minimize the required disclosure. The receiving party shall cooperate the the disclosing party in seeking the protective order and engage in such other efforts as directed by the disclosing party at the latter's expense.

4. Any previous Confidentiality Agreement between us which applies to information disclosed under this Agreement will prevail over this clause to the extent of any inconsistency.  The obligations under this Paragraph shall apply during the Initial Term and for a period of five (5) years after the expiration of an Agreement.

5. When on your premises we will comply with those work place policies and security regulations which you notify to us in writing.

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Liability

1. The only terms implied into the Agreement are those which cannot be lawfully excluded. Where the Agreement involves the supply of goods or services which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, our liability for breach of those terms (other than section 69 of the Trade Practices Act) will be limited, at our option as the case may be, to any one or more of: the replacement, repair or payment of the cost of replacement or repair of the goods; and supplying the services again or payment of the cost of the services being supplied again.

2. Subject to clause 9.1 and otherwise to the maximum extent permitted by law, our liability to you for all loss or damage suffered or incurred by you in connection with the Agreement, or the Services (including all loss arising from any breach by us of the Agreement, our negligence or any breach of statute) is limited as follows:

   1. we will not be liable to you for any indirect or consequential loss (including loss or corruption of data or loss of profit); and

   2. we will be liable to you for other types of loss or damage but our entire liability to you for each claim will be limited to the Fees paid to us by you under the Agreement in the 12 months prior to the date the cause of the loss or damage occurred, less:

      1. all GST paid in relation to those Fees; and

      2. all amounts already paid or payable to you by us during that period for any other claims made by you relating to this Agreement.

3. You have not relied on any representations made by us which are not set out in the Agreement.

4. You indemnify us and our related bodies corporate and their officers and employees from and against all losses, damages, claims, actions, expenses and other liability arising from your performance, non-performance or breach of the Agreement or your use of the Service.

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Termination

1. Either of us may terminate the Agreement:

   1. on 30 days notice. If you terminate under this sub-clause you must pay us in full for those parts of the Fees that have not been paid for the Term except where we are in breach of this agreement.

   2. immediately if the other is in material breach and does not remedy or commence to remedy the breach within 14 days written notice or if the other becomes or is in jeopardy of becoming subject to any form of insolvency administration (including receivership, administration or liquidation). Without prejudice to our other rights, you will immediately pay us all amounts due as of termination for those services or parts of the Fees that have been provided but are unpaid, with no obligation to pay for services or parts beyond the date of termination.

2. On any termination each party must return to the other party or destroy all our confidential information and certify in writing to that effect.

3. If the agreement is terminated for any of the above clauses except where We are in breach of this contract for any reason including for subclause 10.1.2, the fees outstanding for the remainder of the Initial Term or the Renewal Term of the Agreement must be paid to us in full without delay.

4. Please note that services are billed in whole months and that 30 days' notice is required for service termination.

5. We may assign any rental agreements we maintain to provide the Service to you or your nominee, pursuant to our financier’s approval of such an assignment.

6. If the agreement is terminated for any of the above clauses, including subclause 10.1.2, any equipment supplied by Sapo Blue as part of the Agreement will decommissioned and may no longer be used by you, and you must return to us any equipment supplied by us as part of the Agreement.

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Force Majeure

1. Notwithstanding any other provision of this agreement, neither party will be liable for any failure to fulfil any term of the Agreement if such fulfilment is delayed, prevented, restricted or interfered with for any reason outside that party’s control, including without limitation any act of god, terrorism, inclement weather, failure or shortage of power supplies, floods, drought, lightening or fire strike, lock-out, trade dispute or labour disturbance, any act or omission of any governmental agency, highways or authorities.

2. The party unable to perform its obligations must:

   1. notify the other party promptly of any delay; and

   2. use its best efforts to resume performance in accordance with the Agreement as soon as possible.

3. If any event referred to in this clause 11 continues for more than 1 month, then the Agreement may be terminated forthwith by either party giving notice to the other party and you will have no obligation to pay for services or parts beyond the date of termination. Any pre-payment by you will be reimbursed by us.
   

12

General

1. Neither party may solicit for employment the employees of the other until 6 months have expired after the completion of the Services.

2. A party will not be liable for any non performance of its obligations (except payment) where that non performance results from matters beyond its reasonable control except to the extent of the provisions of 11.3.
   

3. Time is not of the essence in the Agreement.

4. You will not unreasonably withhold your approval to us using or referring to you in promotional material in a manner that does not compromise the confidentiality of your affairs.

5. We may assign or novate the Agreement to a related body corporate without consent. You will not unreasonably withhold your consent to any other assignment or novation.

6. We may subcontract all or any part of the Service.

7. This Agreement may only be amended by agreement in writing signed by the parties. This Agreement is governed by, and must be construed in accordance with the laws of the State of New South Wales. Notices may be served on the parties at the addresses specified in the Agreement.

8. Option to Purchase Equipment
   If any equipment was provided by Sapo Blue as part of the Agreement, you have the option to purchase the equipment. The following clauses apply to the Option to Purchase Equipment:

   1. You will have the Option to Purchase Equipment, 6 months after either of the following dates: the date of the end of the Initial Term, or the date we replaced the equipment in case of hardware failure (as described in clause 7.3), which ever of occured last.

   2. The Option to Purchase Equipment is not available for any equipment which is, or primarily has been, located in our data centre(s) or our office(s) during the Agreement, nor is the Option to Purchase Equipment available for any equipment shared with other Sapo Blue customers.

   3. The Option to Purchase Equipment is only available upon termination of the Agreement. You will need to give us the following written notices:

      1. You will need to give us written notice of termination of the Agreement (as described in section 10).
         

      2. You will need to give us written notice of your intent to exercise your Option to Purchase the Equipment no later than 7 days before the termination date of the Agreement.

   4. The purchase price for the equipment, which we supplied as part of the Agreement, is equal to one month fee, as specified in the Agreement.
      

   5. We will transfer the title of the equipment, once all outstanding fees in relation to the Agreement, as well as the purchase price as described in subclause 12.8.3 have been paid in full.

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Disputes

1. If a difference between the parties under or in connection with the Agreement cannot be resolved within 30 days, then the matter is defined as a ‘dispute’ for the purposes of the Agreement (Dispute).

2. If a Dispute arises between the parties, either party may deliver to the other party a notice of dispute in writing, which notice shall identify and provide reasonable details of the Dispute (Notice of Dispute).

3. Within 10 Business Days of the delivery of the Notice of Dispute, the representatives of both parties (signatories to the Agreement or their nominated proxies) must meet or hold discussions and use their reasonable endeavours, acting in good faith, to resolve the Dispute, or else to agree a process for the resolution of the Dispute, which may include but is not limited to mediation or expert determination (Dispute Meeting).

4. If the Dispute is not resolved, or a process for the resolution of the Dispute has not been agreed, within 10 Business Days of the date of the Dispute Meeting, either party may refer the dispute to mediation by the Australian Commercial Disputes Centre (ACDC) for resolution in accordance with its guideline for commercial dispute resolution.

5. Either party may, at its sole discretion, determine that the findings made in clause 13.4 are not satisfactory and may then proceed to legal action within sixty (60) days of the finding made in clause 13.4, by giving written notice of their intention to the other party.

6. The party that raised the Dispute may withdraw the Dispute at any time by giving written notice (Notice of Dispute Withdrawal).

7. If the parties resolve the Dispute, a countersigned declaration of the Dispute’s resolution must be delivered to each party (Notice of Dispute Resolution).

8. Subject to clause 10, notwithstanding any Dispute or difference, the parties must continue to perform their obligations under the Agreement.

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Changes to these Terms and Conditions

1. We reserve the right to change the Terms, Conditions and Service Inclusions and Limitations pertinent to the Service from time to time with 14 days' notice to you

2. If you do not agree to the revised Terms, Conditions or Service Inclusions and Limitations, you may terminate the Agreement pursuant to Clause 10