Please read these Terms and Conditions (“Terms”) carefully before using Sapo Blue’s Managed & Hosted Services (“the Services”). These Terms govern your use of the Services provided by Sapo Blue (“we,” “us,” or “our”). By accessing or using the Services, you agree to be bound by these Terms. If you do not agree to these Terms, please refrain from using the Services.
Unless the context otherwise requires:
“Agreement” means the acceptance of these Terms & Conditions, either by a signed Managed Services Agreement, or Statement of Work (“SOW”), or by continued use of the Services provided by Sapo Blue Pty Ltd;
“Fees” means the charges payable as specified in the Managed Services Agreement and/or as listed on the Sapo Blue website, or provided to you by way of other written means;
“Service” or “Services” means the service(s) referred to in the Managed Services Agreement and defined by the service inclusions as defined at Managed Services and/or Managed Hosting that we have agreed to supply to you; Sapo Blue’s Managed Services refer to a range of services offered by us, including but not limited to IT infrastructure management, software support, network monitoring, and system maintenance;
“we” or “us” or “Sapo Blue” means Sapo Blue Pty Ltd; and
“our” or “ours” means pertaining or belonging to “us”;
“you” means the Customer;
“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 Services Agreement, if the minimum term is not specifically defined, a 12 Month term applies;
“Renewal Term” means any service term following the Initial Term, as specified below;
“SaaS” or “SaaS Provider” means a third-party Software as a Service Provider, who’s services may be part of this Agreement;
“Cloud” or “Cloud Provider” means a third-party Cloud Services Provider or SaaS Provider, who’s services may be part of this Agreement;
3. Supply of Services
3.1 By signing the Managed Services Agreement, or using Sapo Blue’s services, you agree to take and pay for the Service during the Initial Term and for any Renewal Term.
3.2 The specific details and scope of the Services will be outlined in a separate Managed Services Agreement or Statement of Work (“SOW”) between Sapo Blue and the client.
3.3 And by signing the Managed Services Agreement, we agree to provide the Service during the Initial Term and for any Renewal Term.
4.1 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 15, continue on a month by month basis.
4.1.1 The Agreement will continue automatically for additional terms equal to one (1) month (“Renewal Term”), 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.
4.1.2 Additions or changes to the Service, including monitoring services, increased management services, and any term with related fees after the Initial Term, if any, shall initiate a new Initial Term applicable to the modified Service.
5.1 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.
5.2 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.
5.3 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.
5.4 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.
5.5 We reserve the right to cancel the domain registration if payment of the Fees within sixty (60) days of our invoice is not received.
6.1 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).
6.2 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.
6.3 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.
6.4 We will provide you with a valid tax invoice for the amount of GST which we require you to pay to us.
7. Client Obligations
7.1 You agree that:
7.1.1 You have read and understand these Terms of Service, and agree to be bound by them.
7.1.2 You agree to provide accurate and complete information necessary for the provision of the Services.
7.1.3 You have and will satisfy yourself that the use (whether directly or indirectly) of the Service will not infringe the legal rights (including, without limitation, the intellectual property rights) of any third party. You agree to protect each Relevant Party from any such claim.
7.1.4 You will make sure all information you give Sapo Blue Pty Ltd is accurate and complete, keep Sapo Blue Pty Ltd informed of changes to any information you give us, and that you have the authority to enter in to this agreement.
7.1.5 You will only use the Services for lawful purposes.
7.1.6 You will ensure that any use of the Service by you does not interfere with other users of the Internet.
7.1.7 You will comply with any orders of any authority having jurisdiction in relation to the Services.
7.1.8 You will 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.
7.1.9 You will keep the user IDs, and any passwords associated with the Service, together with any other security provided to you in connection with the Service (Password Information), confidential, safe and secure. Sapo Blue Pty Ltd is not responsible for the misuse of any Password Information whether by yourself, or, by any other person (including, without limitation, any employee or contractor of Sapo Blue Pty Ltd ).
7.1.10 You are responsible for obtaining and maintaining any necessary licenses, authorisations, or consents related to your systems, software, or data. Unless agreed differently in our Agreement.
7.1.11 You shall cooperate with Sapo Blue and provide timely access to systems, networks, and relevant documentation as reasonably required for the delivery of the Services.
7.2 You warrant that:
7.2.1 You are an identifiable individual over the age of 18, or a legally constituted organisation.
7.2.2 Any person or legal entity which uses the Service complies with the obligations set out in Clause 7.1.
7.3 You acknowledge that:
7.3.1 Sapo Blue Pty Ltd must adhere to the relevant SaaS/Cloud Provider Policies and any instructions received from time to time from the relevant SaaS/Cloud Provider. Accordingly, you agree that Sapo Blue Pty Ltd is entitled to take all actions that may be reasonably necessary or prudent to comply with the relevant Policies or any such instructions received from time to time from the SaaS/Cloud Provider without incurring any liability to you or any person for whom you are responsible.
8. Our Obligations
8.1 When providing any Management Services, Sapo Blue Pty Ltd will:
8.2 Comply with all relevant Policies and accurately represent these Policies to you.
8.3 Disclose accurately and completely all the terms and conditions (including price and billing information) associated with the provision of the registration of a Service to you.
8.4 Comply with your lawful directions in a diligent and timely manner regarding the Service (including, without limitation, relating to registration, cancellation, amendment, deletion and associated technical support and billing).
8.5 Process any changes to the Service with the SaaS/Cloud Provider within 5 business days from the time that Sapo Blue Pty Ltd receives all the information required to complete the change.
8.6 Use your personal information only as authorised by you and otherwise, in accordance with these Terms of Service.
8.7 Take all reasonable commercial steps to safeguard and protect all information about you stored in Sapo Blue Pty Ltd databases and systems.
8.8 Comply with any order or authority having jurisdiction regarding the Service used by you.
8.9 Use best endeavours to deal with any complaints you may have about the Service.
9.1 You agree that:
9.1.1 You have appointed Sapo Blue Pty Ltd to manage your Service, and the fees payable for any Service are as set out in the relevant ‘pricing’ pages of the Sapo Blue Pty Ltd website, or the Agreement;
9.1.2 Sapo Blue Pty Ltd charges you a monthly fee for the Services provided as part of the Agreement; you are liable to pay the monthly fee on an ongoing monthly basis. Sapo Blue automatically renews to Services on or before the end of the Term. You agree to pay the monthly fees for the Domain Name until the end of the Term, unless the Service is cancelled pursuant to Clause 11.
9.1.3 You will pay the fees for any Managed Service or any associated service to Sapo Blue Pty Ltd in accordance with the payment terms set out in the Agreement, or, as otherwise specified on the Sapo Blue Pty Ltd Website or these Terms of Service;
9.1.4 Sapo Blue Pty Ltd may alter any fees set out in this clause 9 at any time on 30 days prior written notice; and the payment terms related to any Service including the following:
9.1.5 All monthly fees are payable in advance unless specified otherwise.
9.1.6 All fees are non-refundable.
9.1.7 Sapo Blue Pty Ltd has no obligation to provide the Service, if Sapo Blue Pty Ltd has not received the applicable fees for that Service.
9.1.8 Failure to pay the fee in respect of a Service will result in cancellation of that Service.
9.1.9 If you select to transfer the Service to another entity or Service Provider all charges owing to Sapo Blue Pty Ltd as at the date of the transfer, including any transfer fees as set out in clause 12, are immediately due for payment. Sapo Blue Pty Ltd is under no obligation to assist with the transfer of a Service unless full payment for any outstanding service has been received by us.
10. Reserved Clause
11. Reserved Clause
12. Reserved Clause
13. Confidentiality, Security and Workplace Policies
13.1 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 unauthorised 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).
13.2 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.
13.3 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.
13.4 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.
14.1 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.
14.2 Subject to clause 14.1 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:
14.2.1 we will not be liable to you for any indirect or consequential loss (including loss or corruption of data or loss of profit); and
14.2.2 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:
22.214.171.124 all GST paid in relation to those Fees; and
126.96.36.199 any fees which were paid more than 7 days past the due date stated on the invoice;
188.8.131.52 all amounts already paid or payable to you by us during that period for any other claims made by you relating to this Agreement.
14.3 You have not relied on any representations made by us which are not set out in the Agreement.
14.4 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.
15.1 Either of us may terminate the Agreement:
15.1.1 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.
15.1.2 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.
15.2 On any termination each party must return to the other party or destroy all our confidential information and certify in writing to that effect.
15.3 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 15.1.2, the fees outstanding for the remainder of the Initial Term or the Renewal Term, plus any other outstanding fees, must be paid to us in full without delay.
15.4 Please note that services are billed in whole months and that 30 days’ notice is required for service termination.
16. Force Majeure
16.1 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.
16.2 The party unable to perform its obligations must:
16.2.1 notify the other party promptly of any delay; and
16.2.2 use its best efforts to resume performance in accordance with the Agreement as soon as possible.
16.3 If any event referred to in this clause 15 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.
17.1 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).
17.2 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).
17.3 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).
17.4 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.
17.5 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.
17.6 The party that raised the Dispute may withdraw the Dispute at any time by giving written notice (Notice of Dispute Withdrawal).
17.7 If the parties resolve the Dispute, a countersigned declaration of the Dispute’s resolution must be delivered to each party (Notice of Dispute Resolution).
17.8 Subject to clause 10, notwithstanding any Dispute or difference, the parties must continue to perform their obligations under the Agreement.
18. Changes to these Terms and Conditions
18.1 We reserve the right to change the Terms, Conditions and Service Inclusions and Limitations pertinent to the Service from time to time, where these changes are substantive we will give you 14 days’ notice.
18.2 Substantive changes in Clause 18.1 refer to modifications that materially affect your rights, obligations, or the core nature of the service provided. Minor changes, such as typographic corrections or formatting adjustments, will not require prior notice.
18.3 If you do not agree to the revised Terms, Conditions or Service Inclusions and Limitations, you may terminate the Agreement pursuant to Clause 15.