Cloud Infrastructure Management Services - Terms of Service

 

Project and Managed Services Terms

These terms set out Our obligations to You and Your obligations to Us under the agreement between You and Us,

1. What We will do

a. Provide the project deliverables outlined within the Scope of Work to You.
b. Provide You with an invoice for Your project which is payable within 7 days. Work will not commence on Your project until payment is received in full.
c. Create a ticket within Our support management system (http://www.habitat3.net.au/support). Communication between You and Us will be by email within that ticket. Should You need to contact Us by telephone, Our support team can be reached on 1300 550 941.
d. Take reasonable steps to maintain confidentiality of Your confidential information, however this does not apply to information that is in the public domain through no action of Ours or information that We are required to disclose by law.
e. Provide the services outlined within the Scope of Service to You.
f. Provide You with AWS Monitoring and Remediation services which are limited in scope to the details provided in the Scope of Service and are specific to services tagged by Us and invoiced to You as part of Your subscription.
g. Provide You with Server Maintenance as described in the Scope of Service and are specific to services tagged by Us and invoiced to You as part of Your subscription.
h. Provide You with Technical Services as described in Your Technical Support Subscription. Technical Support Subscriptions allow for up to a certain number of hours of support each month. Unused hours do not accumulate.
i. Provide You with additional hours of Technical Services in excess of Your Technical Support Subscription at an hourly fee of $220 incl. GST per hour.
j. Provide You with comprehensive training on how to request support.
k. Provide You with an invoice for Your Technical Support subscription which is valid for 7 days. After 7 days services will no longer be available. Service prices are subject to change from time to time. Technical Support subscription hours become available once the invoice has been paid and expire after one calendar month.
l. Always create AWS services within Your AWS Account within the Asia Pacific (Sydney) Region unless otherwise instructed in writing.
m. Set out Our obligations in terms of protecting Your Personal Information within Our Privacy Policy published at: www.habitat3.net.au/privacy-policy
n. Provide you with written notice of the cancellation of Your service, which we may do at any time by emailing you at the Account Holder email address.
o. If you decide to cancel your subscription at any time, provide You with a 1-hour handover to allow you to take over management of Your AWS environment.
p. These terms may be amended from time to time and those changes will be communicated to You by email. Your continued use of Our service after changes have been communicated to You will be deemed acceptance of those changes.

q. General Support Hours: 8am to 6pm, Mon to Fri, Critical Support Hours: 6am to 12midnight, 7 days.


2. What We will not do

a. Cancel Your AWS subscription. That can only be done by You directly with AWS.
b. Record the password set by Account Holders for the Account Holder Web-Portal.

3. What you must do with Us

a. Provide information or responses to queries from Us so that we can provide the Project deliverables. We are not liable for any failure to provide those deliverables within the timeframes set out in the Scope of Work if that failure is due to Your delay or Your provision of incomplete or incorrect information.
b. Provide Us with delegated access to the AWS Billing Console to allow for budget alert management.
c. Use Our AWS Monitoring and Remediation service and have an AWS Organisation designed and built by Us or reviewed, assessed and approved by Us.
d. Payment of the invoice is acceptance of these terms.
e. You may add/remove/cancel all support subscriptions once per calendar month. These changes will take effect on the billing cycle date.
f. You must advise us if you wish us to monitor/remediate services you create within your AWS environment (including Wordpress instances). This is done through the Habitat3 Support Centre Portal.
g. The service can be cancelled by you at any time by submitting a request via the Habitat3 support centre secure web-portal. Habitat3 Support Centre
h. You agree to allow Habitat3 to temporarily enable AWS Developer Support within your accounts to allow us to escalate issues to AWS Support for resolution (AWS response times for general guidance is less than 24 business hours* and system impaired is less than 12 business hours.) You are able to authorise Habitat3 to enable higher level support plans if appropriate.
i. Nominate an Account Holder by providing Us with their name, mobile number and email address. This email address must be the same as the AWS account holder email address. This person should be an office holder of Your legal entity.
j. Maintain the security of the Account Holder’s email address and passwords. We will not be responsible for actions taken by a person having access to the Account Holder’s email address and passwords.
k. If You would like to do so, nominate an Authorised Representative by providing Us with their name, mobile number and email address. This email address must have the same email domain name as the Account Holder’s email address. The Authorised Representative can manage the account on behalf of the Account Holder but cannot do the following:
i. Cancel Your Habitat3 Cloud Infrastructure Management Service;
ii. Nominate other Authorised Representatives;
iii. Change the Account Holder’s password.
l. Use the Support Centre to log support requests known as tickets.
m. Use the Account Holder Web-Portal to make security and billing related requests of Habitat3.
n. The Support Centre and the Account Holder Web Portal are hosted by FreshWorks – privacy policy located at https://www.freshworks.com/privacy/.
o. Make a monthly payment via direct debit using our Payment Processor - Payrix Australia (Payrix).

p. You are able to make payment via Credit Card or using your bank account's BSB and Account number. Payrix fees are as follows:
i. A credit card surcharge is applicable on all transaction paid for by credit card. The surcharge will be included in the total transaction amount appearing on your bank statement and will, therefore, be slightly different to the invoiced amount.
ii. Bank account direct debits do not attract a surcharge.
q. Should the direct debit fail for any reason and We ask you to make a manual payment you are to make the monthly payment within 14 days from the issue date of Our invoice.

r. If payment has not been received for 28 days, we will suspend or terminate your Service and advise you of the suspension/termination via email and text message.
r. If You wish to reactive Your service after a suspension or termination, You must pay a reinstatement fee of $1,100 including GST.

4. What you need to do with AWS

a. Agree to the AWS customer agreements.
b. Make all necessary payments to ensure that Your AWS account is active.
c. Set strong passwords for Your AWS accounts. We recommend using a Strong Password Generator site such as http://www.lastpass.com/features/password-generator and a good password management system to store Your passwords. (See article for more details.) We will not be able to change or recover Your AWS passwords.
d. Have an AWS Developer Support Plan (at a minimum) in place with AWS at all times.
e. Obtain data from Your AWS account when necessary, including prior to cancelling Your AWS account.
f. Cancel or delete Your AWS account. Termination of Your service with Us will not affect Your AWS account.

5. Waiver and Severance

a. No delay or failure by Us to enforce any provision of this agreement will be deemed to be a waiver or in any way prejudicial of Our rights under the agreement.
b. If anything in this agreement is unenforceable, illegal or void, it is severed and the remainder of the agreement remains in force.

6. Limitation of Liability

a. To the extent permitted by law, We are not liable for any indirect, special or consequential loss or damage incurred by You, including but not limited to liability for loss of profits, loss of business opportunity, loss of savings, or loss of data or access to data.
b. In the event that We are held liable for any loss of any kind suffered by You, You agree that the damages to which You are entitled in respect of that loss is capped, in the aggregate, at an amount equivalent to the fees paid by You to Us in the 12 months preceding the breach (or where there are multiple breaches, at an amount equivalent to the fees paid by You to Us in the 12 months preceding the last breach).
c. Further, We will not be liable for any direct or other loss or damage to the extent You caused or were responsible for such loss or damage or the loss or damage was caused by a matter beyond Our control, including but not limited to where caused by any of Our suppliers.
d. In all cases software vendors are responsible for the functionality of the software they provide including when it is hosted on Our platform. We do not warrant or guarantee any of the functionality of the software and do not accept any liability for any direct or indirect damages suffered by You through the use of the software.
e. Neither party shall be liable to the other party for any loss caused by any failure to observe the terms and conditions of this Agreement, where such failure is occasioned by causes beyond its reasonable control including but not limited to by fire, flood, riot, strike, war, restrictions and prohibitions or any other actions by any government or semi government authorities. No delay or failure by Us to enforce any provision of this Agreement will be deemed to be a waiver or in any way prejudice its rights.
f. You indemnify Us and Our officers, employee and agents (Indemnified Parties) against any direct, indirect and consequential liabilities, losses, damages, expenses and costs (including legal expenses on a solicitor and own client basis) incurred or suffered by any of the Indemnified Parties as a result of any allegation, claim or proceedings brought by a third party against any Indemnified Party in connection with:
i. any material, data and/or content generated, uploaded and/or submitted by You (or any of Your customers or clients) to your Virtual Desktop service managed by Us, in the course of Your or their use of any services that We make available to You;
ii. any material, data and/or content that You host on your Virtual Desktop service managed by Us;
iii. Your breach of the Privacy Act and/or any other applicable law (including, but not limited to, the General Data Protection Regulation (GDPR)); and/or
iv. Your breach of this Agreement

7. Australian Consumer Law

a. Any services supplied by Us to You may come with implied non-excludable guarantees which are regulated by the Australian Consumer Law (ACL). The extent of the implied guarantees depends on whether You are a ‘consumer” as defined in the ACL.
b. Nothing in this Agreement excludes, restricts or modifies any condition, warranty, guarantee, right or remedy to which you are entitled under the ACL.
c. However, if you are entitled to the benefit of the ACL and the services provided by Us are not ordinarily acquired for personal, domestic or household use or consumption, then pursuant to section 64A of the ACL, We limits Our liability for breach of any such non-excludable warranty, guarantee, right or remedy implied by the ACL or expressly given by Us to You, in respect of each of the services, at Our option, to one or more of the following:
i. the supplying of the services again; or
ii. the payment of the cost of having the services supplied again

8. Definitions

a. “We”, “Our” and “Us” means Habitat 3 Pty Limited ACN 102 628 893.
b. “You” and “Your” means the entity who holds the ABN provided when activating Our services.
c. “Account Holder” means the person authorised by You to be responsible for the Habitat 3 Support Service subscription.
d. “Authorized Representative" means the person authorized by the Account Holder to manage the Habitat 3 Support Service subscription on behalf of the Account Holder.
e. “AWS” means Amazon Web Services.
f. “Account Holder Web-Portal” is a password protected method of making security and billing related requests of Habitat3. https://portal.habitat3.net.au/support/login
g. “Support Centre” is a website which allows Habitat3 clients to access General and Urgent Support. - https://www.habitat3.net.au/support
h. “General Support” means support required to ensure your AWS/Azure Infrastructure is functioning as expected. 
i. “Critical Support” means support required because Your AWS Infrastructure is not functioning and is negatively impacting your hosted environment. 
j. “Account Holder Web-Portal” is a password protected method of making security and billing related requests of Habitat3. https://portal.habitat3.net.au/support/login
k. “Support Centre” is a website which allows Habitat3 clients to access General and Urgent Support. - https://www.habitat3.net.au/support

l. "Service" means the Habitat3 Cloud Infrastructure Management Service as outlined in our scope of services proposal.