Habitat3 Hosted Virtual Private Server Usage Agreement
 
 
 

A - Definitions and Agreement between Habitat3 and our clients

Definitions

  1. “We”, “Our”, “Us” means Habitat3 Pty Ltd

  2. “You”, “Your”, “Habitat3 Client”,"Client", “ Data Owner”,  means the company or organisation identified in the Hosted Virtual Private Server (VPS) signup form and to whom we specifically supply our services.

  3. We identify the company or organisation to whom we supply our services by the Australian Business Number (ABN) supplied to us by you at the time you submitted your Service Activation Form.

  4. “Account Holder” means the person identified as being authorised to make changes to the Habitat3 service on behalf of the Client organisation. Account Holders are identified by the email address and mobile phone number provided on the Service Activation form.

  5. "Authorised Representative" means the person authorised by the Account Holder to make billing and security related requests.

  6. Primary business software means software used by you which is provided by one of our partners.

  7. “Services” includes any of the following or a combination thereof: remote desktop access to virtual servers hosted within an Australian DataCentre, general technical advice and the setup/configuration/support of any IT equipment in your office.

  8. Virtual Private Server (VPS) is a Habitat3 hosted instance of a Windows virtual server dedicated to the use of a Habitat3 client.

  9. Habitat3 is a Managed IT Service Provider.

  10. Habitat3 Partner Software vendors (HPSV) is a formal software partner of Habitat3.

  11. HPSV list

    1. Monkey Software

    2. Biotronic

    3. Sage Australia

    4. FilePro Australia

    5. AMPL Software

    6. MedicalDirector

  12. “Habitat3 HelpDesk” refers to technical support services provided by Habitat3 to clients using a hosted VPS.

  13. “User Account” is a single user profile made accessible on a VPS.

  14. "Terms of Service" means all clauses and terms set out in the Habitat3 Hosted Virtual Private Server Usage Agreement.

  15. "Service Activation Form" means the web-based form completed by the Client to activate their Habitat3 Hosted Virtual Private Server.

Agreement Details

  1. This usage agreement sets out the obligations of both parties to the agreement in relation to the provision and use of Habitat3 Hosted Virtual Private Servers (VPS). 

  2. You agree to the terms of this agreement when you submit the online Habitat3 Service Activation (Sign-Up) form titled “Activate your Habitat3 Private Hosted Server” and submitting the above mentioned Form, forms the contractual agreement between you and us.

  3. In the event of conflict between this agreement and any previous terms of service or terms and conditions, this agreement will prevail.

  4. We reserve the right to change this agreement at any time and any amended terms will be effective upon posting to the Habitat3 website (www.habitat3.net.au).

  5. We will make every effort to communicate any significant changes to you via email or notification via the service. Your continued use of our service after any changes have been posted will be deemed acceptance of any amendments.

  6. This agreement can be terminated by either party at any time with no cause given which will result in the cancellation of all services provided by Habitat3 to the client. If Habitat3 terminates this Usage Agreement a client will be notified via email at least 30 days prior to services being cancelled. 

  7. No delay or failure by us to enforce any provision of these Terms of Service will be deemed to be a waiver or in any way prejudice our rights.

  8. Habitat3 clients should seek legal advice in relation to their obligations as personal data controllers for data subjects in different legal jurisdictions around the world including Europe to ensure the Data Processors they select warrant compliance with the data privacy laws for that jurisdiction.

  9. This agreement includes our Privacy Policy and our Data Processing Agreement.

  10. This agreement (including our Privacy Policy and our Data Processing Agreement) comprise the entire agreement between you and us and supersede all prior discussions, understandings, agreements or representations between you and us.

  11. The laws of the State of New South Wales shall govern these Terms of Service.

  12. If any term of these Terms of Service is or may become for any reason invalid and unenforceable at law, the validity and enforceability of the remainder will not be affected.

 

B - Service Level Agreement

Habitat3 will;

  1. Ensure clients’ Virtual Private Servers (VPS) are available 24 hours a day, 7 days a week at 99.9% availability across a 12 month period (this does not include advertised maintenance windows which will be completed outside of business hours whenever possible).

  2. Host clients’ VPS on a server hardware cluster located in an Australian data-centre facility.

  3. Backup clients’ VPS once every 24 hours allowing for full server and granular file restores. Email that is not downloaded from your email service to the VPS prior to the backup running will not be included in the backed up data.

  4. Ensure a minimum of 14 days history of backups is available for restores.

  5. Provide support between 8am and 6pm (Sydney time) Monday to Friday excluding national public holidays.

  6. Provide support for a server which is not accessible due to a Habitat3 fault 24 hours a day, 7 days a week (after hours).

  7. Arrange with clients to complete specific technical work that clients require to be done after hours for an agreed service fee (over and above the monthly subscription fees).

  8. Respond to client requests within 4 business hours of logging the request via the Habitat3 website.

  9. At it's own discretion charge additional support fees to provide support for clients’ local computers and networks to allow connectivity between the local network and the hosted server.

  10. Provide comprehensive training on how clients’ are to request support.

  11. Setup clients’ VPS including;

    1. Windows Server 2016 operating system - installation and configuration

    2. MS Office installation

    3. SQL Server installation

    4. Partner Software Applications and associated tools

    5. Printer drivers

    6. FTP folders to allow for scanning

    7. Virtual Private Networks if required

    8. All AntiVirus and other security tools

  12. Migrate client data from the local network to the VPS on a scheduled weekday at (or prior to) 2pm at no charge . If a date and time outside of these hours is selected by the client additional fees will apply.

  13. Charge a rescheduling fee if the data migration date is changed by the client.

  14. Charge additional fees if more than one set of data is required to be migrated. 

  15. Provide sufficient RAM and CPU for the VPS to function at a sufficient performance in an ongoing way at all times.

  16. Ensure a minimum of 5% of Hard Drive space is available to the VPS at all times.

  17. Specifically reserve the right to restrict access to unlawful or unreasonable online information (websites) and other file sharing or internet based services from the VPS. However, internet access from onsite PCs will not be restricted in any way.

  18. Reserve the right to disconnect access to your VPS if any activities are found to be initiated on that VPS that negatively impact the overall service including denial of service or other activities including uploading or downloading large data sets.

  19. Reserve the right to restrict access to your Habitat3 VPS to any entity that would be considered a competitor of ours or our HSVPs.

  20. Reserve the right to temporarily deactivate a server in the event that its storage is full and you are unwilling to delete data or increase your storage.

  21. Expect you to complete web-based support tickets to request technical support services

  22. Expect to be able to complete training with you to ensure that you are sufficiently briefed in how to use the habitat3 support service.

  23. Expect any data drives you send to us to allow for data uploading into the data centre must be clearly labelled with your business name. If this is not done we cannot guarantee the return of your drive (eg. flash or USB external hard drive). To allow for return of your drive please enclose an Express Post envelope fully addressed to the location you wish to have it sent.

  24. Attempt to enable access to your Habitat3 VPS from Apple OSX and IOS but we may be unsuccessful. In addition we cannot ensure all Windows based printing functionality will function as expected from a Mac OS as printer drivers on the server and on Windows PCs are needed to provide full printing functionality.

  25. Install supported software into your VPS as user accounts do not have server administrative rights and therefore users will not be able to install some software. In some cases a fee may be charged for this service.

  26. Complete a maximum of 10 full VPS or file restores on request per month. Additional fees will be charged per additional restore requested within that same month.

  27. Export your data from your VPS to an FTP location to allow for download or to an xternal hard drive and post it to you on request. A fee will be charged to complete this export process. To receive data clients must send us an appropriate sized USB3 hard drive and a self-addressed express post envelope/satchel.

  28. Expect Webserver clients to install all appropriate security and AntiVirus software, manage IIS and all webserver related functionality including security and encryption, be responsible for ensuring the use of the VM complies with the law (eg. copyright infringements etc) and submit support tickets for Habitat3 via Habitat3’s website.

  29. Charge a fee per GB of data that is sent out of the client's VPS over 5GB per active user in a single calendar month charged on the 1st of the month for the prior month's usage at a rate of $0.55 per GB (inc GST) over the 5GB per active user level. Example: If you have 5 users you have a 5 x 5GB allocation = 25GB of outgoing data. More than 25GB will be charged at $0.55 per GB.

  30. Provide a report on request to show client VPS data traffic volumes. 

  31. Hold the appropriate levels of Cyber Insurance

  32. Email clients via a subscriber email list to provide information about the service including price increases and service notifications. If a client unsubscribes from the list they will no longer receive these important updates. 

Habitat3 Clients will;

1. Ensure funds are available in their chosen account to allow direct debits to process success.

2. Ensure the following site requirements are met:

  1. Up to a maximum of four users are able to use ADSL (as long as the download is at least 8Mbps and the upload is at least .5 Mbps)

  2. Five or more users on a single connection must have an Internet connection which provides for a minumum of 0.25 Mbps per user upload and 1.5 Mbps per user download.

  3. A ping result of under 100 milliseconds is required to use the Habitat3 service.

  4. Any printers that do not have manufacturer drivers for the operating system of the end user’s virtual server may not function (ie. print from the virtual server to your local printer) and we will not be able to make any changes that will allow them to function.

  5. All printers must be able to print from an onsite PC first if printing from the virtual server to the local printer is required. Support will only be provided for printing issues if the onsite printer can print successfully from the onsite PC

  6. A modem with port forwarding functionality is required to allow for complex printing capabilities (eg. multi-tray network printers).

  7. Habitat3 can provide specific information to assist end users (and their local IT support provider) in completing the Printer Vendor’s Installation forms however Habitat3 does not complete the Printer Vendor’s Installation form on their behalf.

  8. Scanning can be completed direct to the hosted virtual server via FTP.

  9. Using a shared internet service (eg. from a serviced office) is not supported or recommended due to the variable quality of the internet service on a shared service.

  10. Internet service must not be a shared service with a 3rd party

  11. Internet service must not be shared with a VOIP service

  12. Recommended VPN modem/router if VPN connections are requested

  13. Although access to your VPS is available from Apple OSX 10.11 and above we are unable to ensure optimal performance from these devices. In additional Habitat3 cannot ensure all Windows based printing functionality will function as expected from a Mac OS as printer drivers on the server and on Windows PCs are needed to provide full printing functionality.

  14. Hold the appropriate levels of Cyber Insurance.

  15. Ensure their compliance with the Australian Privacy Act as appropriate.

 

C - Billing and payment process

First Invoice
1.    Your first VPS subscription invoice will be issued on your nominated "go live" date.
2.    The go live date is the date your server is required to be accessible to you or your software vendor to deploy their software.
3.    You will confirm in writing your required go live date prior to the commencement of the server build process.
4.    Habitat3 will confirm the go live date with you and book that into our schedule.
5.    If you delay your go live date for any reason we will still invoice you on the initial nominated and agreed go live date as we will have built and deployed the server within our platform.

Monthly billing cycle
6.    Your monthly subscription invoice will be issued on the same date each month. Payment of this invoice is due within 7 days of the invoice date. Your Direct Debit will be processed as per the date detailed in the email you received with this invoice. 
7.    All invoices are issued for all services in advance  (eg. adding or removing user accounts or data storage) that are active at midnight (Sydney time-zone) on the date of invoicing.
8.    Any changes to your service (eg. adding or removing user accounts or data storage) will be reflected on the next invoice following the date the changes were requested.

Payment process and fees
9.    You agree to pay each invoice via the Integrapay direct debit service (this can be done using your bank account or credit card).
10.  Your relationship is directly with Integrapay for making payments. Habitat3 does not collect or store or control your personal information in relation to your payments including your credit card or bank account details.

11.  Integrapay does store and collect your personal information including your credit card or bank account details. The Integrapay Privacy Policy outlines how this information is managed.

12. Integrapay charges fees as follows:
- Credit Card direct debit: A credit card surcharge is applicable on all direct debit transactions paid with a credit card. This surcharge fee will be included in the total transaction amount appearing on your credit card bank statement and will therefore not match your invoice total. Habitat3 is not able to include the processing fee in your monthly invoice as this surcharge is garnered directly by Integrapay (our payment processing provider).  Surcharge is $0.33 plus 1.98% of invoice (3.50% for AMEX)
- Bank Account direct debit: Surcharge is FREE
13.    Payments are processed within 4 business days of your invoice being issued.
14.    If a direct debit payment is declined a $4.40 fee will be added to your invoice.
15.    If payment is not received within 7 days after the date of issue an email reminder will be sent to your nominated email address.
16.    If payment is still not received within 9 days after the date of issue a text message reminder will be sent to your nominated mobile phone, your server will no longer be accessible and a reconnection fee of $55 inc GST will be added to your invoice.
17.    The server will not be reconnected until the full invoice has been paid including the reconnection fee.
18.    If we have not received payment after 30 days of the date of issue your unpaid invoice will be made void and your service will be terminated. Once your service has been terminated your virtual server and all associated data will be permanently deleted from our system. You will be advised of the termination of server and data deletion by email at least 24 hours prior to the termination date.

18.1  If we determine that there has been no access to your service for more than 6 months we will convert the billing process to a "pay now" option which if not paid will start the process of terminating your service. We will make contact with you prior to termination. This policy means a client will not be charged for significant amounts of time inappropriately.

Pricing amendments
19.    Monthly Fees may be amended from time to time and any change in our fees will be communicated to you by email providing at least one days’ notice before your next invoice.
20.    We are an online merchant located in Australia.
21.    All time-billed invoices are treated in the same way as your subscription fees. After-hours service requests will incur additional fees. 
22.    Habitat3's pricing is linked to the Australian CPI rate and prices will increase between 2-5% per year (in July each year) unless otherwise advised.

D – Virtual Private Server and Data Security

a) Secure support web-portal website

  1. Account Holders are provided with access to a secure, support web-portal to make requests relating to security (eg. updating a password) and billing (eg. adding a user account)

  2. Account Holders can nominate an authorised representatives to act on their behalf. This is done via the support web-portal or on the initial service activation web-form.An Authorised Representative can only be nominated on the service activation form if the Account Holder is completing the form. Authorised Representatives can be nominated by the Account Holder at a later date.

  3. Authorised Representatives can access the support web-portal and therefore can make all billing and security requests.

  4. Exceptions are that Authorised Representatives cannot; 

    1. cancel a subscription/service

    2. nominate another Authorised Representative

    3. remove an Account Holder

    4. request a full copy of data via FTP or Hard Drive

    5. change the password of the Account Holder on the VPS

  5. The requests above must be made by the Account Holder not an Authorised Representative.

  6. Authorised Representatives must have an email address that uses the same domain name as the Account Holder and the Account Holder must provide the first and last name and the mobile phone number of the nominated Authorised Representative.  

  7. Habitat3 does not record the password set by Account Holders for the support web-portal.

  8. The support web-portal and all associated support ticket information (including Habitat3 client personal details are hosted by FreshWorks - privacy policy located at: https://www.freshworks.com/security/

b) Server/Data Access and Control

  1. Habitat3 is committed to keeping your VPS and the data stored within the VPS environment secure and we take all reasonable precautions to protect it from unauthorised access, modification or disclosure.

  2. Habitat3 uses DataCentres located in Australia only to store VPS data. At no time does Habitat3 send VPS data outside of Australia.

  3. VPS and all associated data and primary backups are stored by Habitat3’s infrastructure partner – Rackspace in specialist HVAC operator Digital Realty’s Sydney DataCentre which maintains both ISMS ISO 27001:2013 and EMS ISO 14001:2015 accreditation. 

  4. Rackspace holds IRAP Certification - https://acsc.gov.au/infosec/irap/certified_clouds.htm 

  5. Account Holder's warrant that the data they upload (or ask Habitat3 to upload) to their Habitat3 VPS is lawfully theirs to access and control.

  6. Habitat3 clients’ store, modify and delete their business data as required and are able to request Habitat3 provide a full copy of their complete data set at any time. Fees do apply to complete these requests.

  7. Habitat3 staff have access to the Hypervisor and VPS layers to provide support and therefore do have access to information stored on the VPS unless password protected by clients. Hypervisor access is via a VPN protected Gateway VPS with two factor authentication enabled.

  8. Habitat3 completes rigorous background checks on all Habitat3 staff including an Australian National Police Check.

  9. Habitat3 recommends all clients password protect all their applications and data for additional security.

  10. It is the client's responsibility to select strong passwords for all Habitat3 related services (eg; servers and secure web-portal), to change them regularly and to safeguard them appropriately.

  11. Habitat3 grants third party entities (eg. software vendors) temporary access to clients’ VPS when requested to do so by clients.

  12. Habitat3 provides clients with the ability to nominate and Authorised Representative to control their account as per Section D part A.

  13. The client hereby unconditionally and irrevocably indemnifies Habitat3 against any and all damages and losses to persons or property, including but not limited to the VPS and the data contained within the VPS, and all costs and expenses which are incurred by or claimed from  Habitat3 arising from or in relation to the activities of any third parties with access or the client's Authorised Representative which must be paid to Habitat3 immediately on demand. This indemnity continues until one business day after the client notifies Habitat3 in writing that the authority of the Authorised Representative has been revoked and during the period third parties have access to the VPS. 

  14. Habitat3 grants the appropriate Habitat3 Partner Software Vendors permanent access to clients’ VPS when requested to do so by clients.

  15. Habitat3 will permanently delete all client data 30 days after the client cancels their subscription by completing the Cancel My Subscription form.

  16. Under all and any circumstances client data stored on Habitat3 servers remains the property of the organisation (identified by the ABN) recorded in the Hosted Virtual Private Server signup form.

  17. The account is controlled by the Account Holder nominated on the Hosted Virtual Private Server signup form.

  18. Habitat3 sends clients’ full server and data backups (which are encrypted) to a second Sydney DataCentre which holds EMS ISO 14001:2015 accreditation.

  19. Each VPS is a fully complete installation of Windows Server (2008R2, 2012R2 or 2016) using Microsoft’s Remote Desktop Services.

  20. Each VPS is made accessible via Windows Remote Desktop using a unique (non-standard) RDP port number.

  21. If VPS passwords are entered incorrectly 3 times the user account will be “locked” to prevent brute force access.

  22. Each VPS server’s access can be limited to Virtual Private Network access if requested.

  23. Each VPS access can be limited to source IP address if requested.

  24. Habitat3 segregates and separates client VMs using Access Control Lists (ACLs) based on each individual VPS network adapter.

  25. Each VPS is protected by a secure firewall as well as mandatory web filtering, anti-virus and anti-spyware.

  26. Cryptolocking trojans (often called Ransomware) are activated by user actions (eg. malicious website or email attachment) and cannot always be detected by Habitat3's security protocols. If clients identify any encrypted files or know they have activated this type of attack on your VPS clients must advise Habitat3 as soon as possible as restoring encrypted files from backup is the only solution (each nightly backup is retained for a maximum of 14 days).

  27. Each VPS has a unique set of user passwords for user access which can be changed by you on demand by accesing the Habitat3 support portal.

  28. Habitat3 conducts penetration testing which is completed by an independent 3rd party on a regular basis (at least every 6 months) to identify any potential security risks.

  29. Each VPS logs when users on that specific VPS log in and log out

  30. Each VPS is accessible using two-factor authentication and it is our recommendation that two factor authentication is used at all times. You may choose not to use this security feature against our recommendation. If you do choose to not use two factor authentication Habitat3 does not accept any liability for any damages incurred due not using this feature.

  31. Habitat3 will always notify you via email as soon as possible if a data security breach affecting your data is identified.

  32. The Office of the Australian Information Commissioner’s Guide to securing personal information: ‘Reasonable steps’ to protect personal information discusses security considerations that may be relevant under APP 11 when outsourcing your server hosting requirements.

  33. If any illegal activities (eg. copyright infringement) are conducted by any Habitat3 clients within any Habitat3 hosting services then Habitat3 holds the Habitat3 client responsible and liable to all relevant authorities.

 

E – Data Protection Laws

 

  1. Habitat3 is an Australian company with Australian shareholders focused on providing Australian based companies only with Australian-based technology services.

  2. Habitat3 does not consider itself an APP Entity based on the criteria set by the Office of the Australian Information Commissioner.

  3. Habitat3 does not warrant compliance with Data Protection Laws designed to protect those located in jurisdictions outside Australia including Europe.

  4. Habitat3 does not have a Data Processing Addendum in place with the providers of its Australian (Sydney) located infrastructure – Rackspace International GmbH.

  5. Habitat3 clients as personal information controllers must not store the personal information of individuals located in the EU on Habitat3’s Hosted Virtual Private Servers (personal information processor) as Habitat3 does not warrant compliance with the GDPR.

F – Personal Information Privacy

 

  1. By agreeing to this Usage Agreement you consent to Habitat3 collecting and using your personal information as set out in Habitat3's Privacy Policy located at: http://www.habitat3.com.au/privacy-policy

  2. Habitat3 requires and expects that all Habitat3 clients comply with the Australian Privacy Act where and when appropriate.

 

G – Software Support within the VPS

  1. Software hosted by clients within their VPS is only supported by the Habitat3 HelpDesk if the software is supported by the associated software vendor under the operating system used by Habitat3 (eg. Windows Server 2016 using Windows Remote Desktop).

  2. Habitat3 does not accept any responsibility for application or data related problems associated with any software you choose to host within your Habitat3 VPS.

  3. We reserve the right to refuse to support any software you have installed or requested to be installed on the Habitat3 VPS other than provided by a Habitat3 HSPV.

  4. Habitat3 may charge additional fees to host a non-HSPV provided software. Examples include CCH, MYOB and Reckon.

  5. MYOB Specific Support - Habitat3 provides support for MYOB when hosted within a client VPS for a monthly fee based on the application year version (2016, 2017) and the application edition (eg AccountRight and Essentials).  

  6. If you use the OzBiz/Optomate/MYOB link solution OzBiz are responsible for ensuring your MYOB is functioning correctly and can import the data from Optomate (via OzBiz). If you use sync software to receive your Optomate export data to be imported into MYOB via OzBiz a monthly fee will apply.

  7. Habitat3 supports the VPS to ensure your software performs as expected. In some cases if you require Habitat3 to complete software maintenance activities that are not related to the server's functionality or a standard upgrade process we will charge an hourly rate to complete the work.

  8. We expect you to have a basic working understanding of Windows PC operating systems and the basic functions required to access the Habitat3 service.

  9. Video or voice conferencing and/or remote access software are not supported on your VPS. These types of programs can negatively impact your internet quota, can reduce bandwidth and performance, can introduce a range of trojans and malware/viruses and ultimately can allow your data to be sent to external server outside of Australia which we specifically do not allow as part of our commitment to ensure all data stored on our system does not leave Australian borders.

  10. If you do not use Microsoft's MS Exchange online email service we may not be able to restore emails due to your email service provider's functionality. We strongly recommend the use of MS Exchange online.

  11. Although in some cases we complete software upgrades for our clients, there are occasions where our clients do need to complete parts of an upgrade process specific to their needs (eg. Roll-Over of clients in HandiSoft

  12. We reserve the right to charge additional fees if you wish to host two or more instances and associated databases of your primary software (eg. HandiSoft, Optomate, FittingWizard, MedicalDirector, FilePro etc).

  13. We reserve the right to introduce additional support fees to maintain software hosted on your VPS which is in addition to your primary software.

  14. we reserve the right to introduce additional support fees to host and maintain SQL databases.

  15. Connecting your Noah software on your PC to your Noah Database on your Habitat3 server is not officially tested or supported by Noah and therefore is not recommended by Habitat3 and Habitat3 does not accept any responsibility for any security or data loss related issues associated with the Noah database. However, Habitat3 will implement the solution as securely as possible at all times. Therefore Habitat3 requires all clients to use a Habitat3 provided VPN connection to link the Noah software on their PCs to the Noah database on the Habitat3 server. Habitat3 also expects you to use a unique password to protect your Noah database (functionality provided by Noah) when hosted on your Habitat3 server and setup a Noah specific backup (also functionality provided by Noah).

  16. Software associated with VOIP and Video Conferencing (eg. SKYPE) is not support on the Habitat3 virtual servers. This software is designed to be used only on a PC operating system and will also generate large amounts of data download and negatively impact server access and performance.

  17. All HandiSoft software updates released/published via the HandiSoft website can be completed by you our client. 

  18. MedicalDirector/PracSoft/Bluechip updates are completed on your behalf at no additional charge.

  19. FilePro updates are completed by FilePro .

  20. FittingWizard updates are completed by Biotronic.

  21. Optomate has an auto-update feature which automatically upgrades the software to the latest version.

  22. If you require us to complete any software upgrades for you a fee may apply.

  23. We do not support file syncing applications including Dropbox, Google Drive and OneDrive. We do support the use of AusDrive.

 

H – Microsoft End User Licensing Terms

  1. We license Microsoft software under a Service Provider Licensing Agreement between us and Microsoft (SPLA).

  2. It is a requirement of the SPLA that our clients (users of the habitat3 service) agree: not to remove, modify or obscure any copyright, trademark or other proprietary rights notices that are contained in or on the Microsoft products (Products); not to reverse engineer, decompile, or disassemble the Products, except to the extent that such activity is expressly permitted by applicable law; to disclaim, to the extent permitted by applicable law, all warranties by Microsoft and any liability by Microsoft or its suppliers for any damages, whether direct, indirect, or consequential, arising from the provision of software services associated with the Products; to abide by all of Microsoft’s intellectual property rights protections; not to use the Products in a manner that Microsoft considers a “high risk use” – for example manufacturing machinery (we are able to provide Microsoft’s full definition of this type of use on request); to indemnify and hold harmless Microsoft from any third-party claim arising out of your use of the Products in connection with any High Risk Use, and you agree to all of those terms.

  3. We agree to: provide technical support to the end user of the habitat3 service in relation to the Products and disclose end user related information (company name and address) to Microsoft if/when requested by Microsoft.

  4. Please note that Microsoft will be an intended third party beneficiary of the end user using the habitat3 service as Microsoft licensing is used by the users of the habitat3 service and license fees are paid by us to Microsoft. Microsoft also has the right to enforce provisions of the End User Agreement as part of the SPLA and to verify compliance by you of your obligations under the SPLA.

  5. In all cases, on all VPS machines hosted by us, the SPLA applies. This includes the use of “SPLA on SPLA DataCentre licensing” whereby other SPLA holders may use their agreements with Microsoft to license components of servers resold. No other Microsoft licenses may be used for software installed/used on any Habitat3 servers. 

  6. At all times Habitat3 clients must comply with Microsoft's End User Licensing Agreement.

 

I – Microsoft SQL Licensing

  1. Some software may require the use of Microsoft SQL 

  2. In some cases software which initially required only SQL Express may require SQL Standard to accommodate a larger growing database or larger growing number of users accessing the database. In these cases additional SQL license fees will apply for Standard Edition.

  3. Habitat3 is able to install support and license SQL

  4. Habitat3 supports SQL WebEdition, Standard Edition and Express 

  5. We reserve the right to introduce additional hosting fees if an additional server is required to host large SQL databases.

 

J – Microsoft Webservers and MS Exchange Online

Webservers

  1. Webservers will have as standard a non-default RDP port open to allow administrative access.

  2. Webservers will have port 80 open to allow http traffic.

  3. A static IP on administrator’s internet connection will be required to ensure RDP access is locked down to source IP.

  4. If 3 unsuccessful attempts are made to access the administrative RDP account the account will be temporarily locked for 30 minutes and can be unlocked by our helpdesk on request.

  5. All encryption of data stored is either your responsibility or the responsibility of the web server manager/administrator. This can be done via a number of methods and our support team can assist you to implement the method of your choice. http://support.microsoft.com/kb/316898 for how to enable SSL encryption for an instance of SQL Server.

  6. Web site functionality built on a habitat3 virtual web server is your responsibility as a web server manager/administrator but our support staff will provide assistance to restore the SQL server, server operating system and network environment functionality as it was when first deployed to you.

  7. We will not be liable if a web server is compromised via Port 80 due to insufficient security measures put in place by you or the manager of your web server. This includes accessing encrypted or unencrypted data stored within your web server and/or database/s.

MS Exchange Online

1.     Habitat3 provides a service to setup new MS Exchange accounts on behalf of our clients.

2.     All MS Exchange subscription fees are paid by Habitat3 clients directly to Microsoft

3.     If MS Exchange Online accounts are setup on behalf of our clients, our clients consent to allow Habitat3 access to their MS Exchange accounts for the purposes of setup and ongoing support and maintenance.   

4.     All setup fees are outlined on the Habitat3 website and by completing the Migrate to MS Exchange Online form clients agree to make payment via Direct Debit.

5.     All email is hosted by Microsoft  

K – Virtual Private Networks

  1. We will assist you in creating an IPSEC VPN link between your office and your Habitat3 VPS via ADSL2+ connections.

  2. We are able to do so via hardware (modem) or software (installed on your PC)

  3. You will be charged a monthly fee for VPN connections which will be quoted prior to proceeding with the setup.

  4. You will be responsible for purchasing your own VPN modem/router and we will provide details of a recommended router.

  5. Using the recommended router is important as we will not provide additional assistance in connecting a non-recommended router to the your VPS.

  6. You must ensure a static IP is provided for your internet connection by your internet service provider (ISP).

  7. We will provide the required VPN configuration details to allow you (or your onsite technical representative) to complete the router VPN setup.

  8. If you are using the modem/router we have recommended and cannot establish a functional VPN connection for the first time we will work with you to complete a successful connection.

  9. If you are not using a recommended router and we are unable to successfully create a VPN connection then we can provide your onsite technical representative with the appropriate details to attempt to make the connection via the non-recommended router.

  10. If you are not using the recommended router and we are unable to successfully create a VPN connection to the VPS then we will require you to obtain the recommended router before further assistance can be provided.

  11. Using an Internet connection to access your VPS that is also used for VOIP services is not recommended due to the negative impact each service will have on the other.

  12. Accessing your Habitat3 VPS via a VPN will incur monthly fees.

 

L – Service Cancellation

1.       Our service is provided on a month to month basis. The service will continue until one party gives the other party written notice that it wishes to terminate the service and provides a termination date. No reason need be given by either party for any termination of the service.

2.       You must terminate your service by completing and submitting the Service Cancellation form located within the secure helpdesk web-portal.

3.     The last date of your billing cycle after we receive your cancellation will be your cancellation date and the full service fees for that billing cycle will apply

4.     To receive a full copy of your data stored on the Habitat3 VPS you must complete the relevant sections of the Service Cancellation Form located in the secure support web-portal. You are also able to request a copy of your primary software database separately if required. This can be obtained more quickly than your full data set as it will be much smaller. If you are not using MS Exchange Online email you may also request separate copies of each mailbox exported to a PST file. 

5.     We will commence data extraction at 2pm (AEDST) and your full data set will be available for you to download once extraction and encryption is complete.

6.       Data will be made available to you via compressed zip files which will require a secure password to open which will be provided to you.

7.       Instructions will be provided to you on how to open the compressed zip file and access your data.

8.       We will make your zip file/s available via FTP (File Transfer Protocol) download. Instructions will be provided to allow you to do this.

9.       You can request to receive your data via a USB external hard drive (please note fees apply for this service).

10.     To allow us to do this you are required to send an external USB hard drive to our DataCentre as well as an enclosed self-addressed Express Post bag to allow us to return it to you. Specific instructions will be provided to you when we receive your request.

11.      Your VPS will be deactivated and inaccessible at the end of the last day of your billing cycle.

12.      We will delete all data associated with your service 14 days after the last day of your billing cycle.

13.      A minimum of two working days’ notice is required prior to the data transfer taking place. Please ensure you complete the Cancel My Subscription Form at least two days prior to the data export/transfer to your external hard drive.

14.   No accessible virtual machine images (eg. VHD files) will be provided at termination. Only your Data will be provided.

15.   If you require the use of your VPS after the nominated termination date and this use includes a portion of the billing period that is after the termination date then you must pay the subscription for the following month on the 1st day of your billing cycle.

16.  We will make contact with  you to confirm that you have successfully downloaded your data. However, if you do not respond we will comply with our policy and the Australian Privacy Act and delete all your data from our systems 14 days after the last day of your last billing cycle.

 

M – APP Entity Clients : Obligations under the Privacy Act 1988 (Cth)

 

  1. APP Entities have obligations pursuant to the Privacy Act 1988 (Cth) (the Privacy Act).  If you are an APP Entity for the purposes of the Privacy Act, it is your responsibility to make yourself aware of and understand those obligations. You must, whether or not you are an APP Entity, ensure that you are aware of all legal obligations that you may have.  If you are unsure of your legal obligations, you should seek independent legal advice.

  2. Outsourcing the hosting of your applications and data to Habitat3 does not relieve you of your obligations that you have pursuant to the Privacy Act or any other law.

  3. Habitat3 recommends you undertake a Privacy Impact Assessment in accordance with the guidelines published by the Office of the Australian Information Commissioner (OAIC). 

  4. Please see Section D of these Terms of Use for information about Habitat3 security practices.

N – Limitation of Liability and Indemnity

  1. Except in respect of liability for breach of a guarantee implied by the Australian Consumer Law, neither party is liable to the other party for any indirect, special or consequential loss or damage incurred by the other party, 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.

  2. Habitat3 is only liable for direct loss (i.e for any loss which falls under the first limb of Hadley v Baxendale (1854) 9 ex 341 being that which arises naturally, according to the usual course of things) incurred by you as a direct result of one or more breaches by Habitat3 of its obligations under these Terms of Services. However, to the extent permitted by law, and except with respect to any direct loss excluded by this Terms of Service, Habitat3’s liability for all such direct loss is capped, in the aggregate, at an amount equivalent to the fees paid by you to Habitat3 in the 12 months preceding the breach (or where there are multiple breaches, at an amount equivalent to the fees paid by you to Habitat3 in the 12 months preceding the last breach).

  3. Further, Habitat3 will not have any liability 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 Habitat3’s control, including but not limited to where caused by any upstream supplier of Habitat3.

  4. Any services supplied by Habitat3 to you may come with implied non-excludable guarantees which are regulated by the Australian Consumer Law. The extent of the implied guarantees depend on whether you are a ‘consumer’ of those services within the meaning of that term pursuant to the Australian Consumer Law as amended.

  5. If the services supplied by Habitat3 to you are supplied to you as a 'consumer' of those services within the meaning of that term in the Australian Consumer Law as amended you will have the benefit of certain non-excludable rights and remedies in respect of the services and nothing in these Terms of Service exclude, restrict or modify any condition, warranty, guarantee, right or remedy which pursuant to the Competition and Consumer Act 2010 (Cth) is so conferred. However, if the services are subject to a non-excludable condition, warranty, guarantee, right or remedy implied by the Australian Consumer Law and the services are not ordinarily acquired for personal, domestic or household use or consumption, then pursuant to section 64A of the Australian Consumer Law, Habitat3 limits its liability for breach of any such non-excludable warranty, guarantee, right or remedy implied by the Australian Consumer Law or expressly given by Habitat3 to you, in respect of each of the services, at the option of Habitat3, to one or more of the following:

    1. the supplying of the services again; or

    2. the payment of the cost of having the services supplied again.

  6. You indemnify Habitat3 and its 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 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 with Habitat3; (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 these Terms of Service.

  7. In all cases (unless otherwise specified) software vendors are responsible for the functionality of the software they provide including when it is hosted on the habitat3 platform. We do not warrant or guarantee any of the functionality of this software and do not accept any liability for any direct or indirect damages suffered by you through the use of this software.

O – Acceptable Use Policy

a) Habitat3 Clients must act appropriately in all respects when using Habitat3 Hosted Virtual Private Servers. Therefore, users must not send or access or make available communications or content that infringes on the privacy rights or other rights of others. Users must not view, download, copy, send, post or access information that is illegal. Users must not use Habitat3 Hosted Virtual Private Servers in any way prohibited by this Acceptable Use Policy or which would otherwise cause Habitat3 Pty Ltd} loss and/or damage.

 

b) Without limiting the above provisions of this policy, in the course of you using Habitat3 Hosted Virtual Private Servers, the following is prohibited:

 

  1. using Habitat3 Hosted Virtual Private Servers to violate all or any legal rights of any person or company or other entity in any jurisdiction is strictly prohibited;

  2. using Habitat3 Hosted Virtual Private Servers in breach of the Privacy Act 1988 (Cth), the EU General Data Protection Law (GDPR) or any other applicable data protection laws;

  3. using Habitat3 Hosted Virtual Private Servers in relation to crimes such as theft and fraud is strictly prohibited;

  4. using Habitat3 Hosted Virtual Private Servers in breach of any laws, including but not limited to, laws relating to the protection of copyright, trade secrets, patents or other intellectual property and laws relating to spam or privacy and whether such violation is by way of the installation or distribution of "pirated" software or otherwise, is strictly prohibited;

  5. unauthorised copying of copyrighted material including, but not limited to, digitization and distribution of photographs from magazines, books or other copyrighted sources, copyrighted music or video and the installation of any copyrighted software for which you do not have an active licence is strictly prohibited;

  6. exporting software, technical information, encryption software or technology, in violation of domestic export control laws, is strictly prohibited;

  7. introduction of malicious programs into our network, computer or servers (e.g., viruses, worms, Trojan horses, e-mail bombs) is strictly prohibited;

  8. revealing your account password to others or allowing use of Habitat3 Hosted Virtual Private Servers by others is strictly prohibited;

  9. using Habitat3 Hosted Virtual Private Servers to actively engage in procuring or transmitting material that is in violation of sexual harassment or workplace relations laws is strictly prohibited;

  10. using Habitat3 Hosted Virtual Private Servers to make fraudulent offers of goods or services is strictly prohibited;

  11. using Habitat3 Hosted Virtual Private Servers to carry out security breaches or disruptions of network communication is strictly prohibited. Security breaches include, but are not limited to, accessing data of which you are not an intended recipient or logging into a server or account that you are not expressly authorized to access or corrupting any data. For the purposes of this paragraph, "security breaches" includes, but is not limited to, network sniffing, pinged floods, packet spoofing, denial of service, and forged routing information for malicious purposes;

  12. using Habitat3 Hosted Virtual Private Servers to execute any form of network monitoring which will intercept data not intended for you is strictly prohibited;

  13. using Habitat3 Hosted Virtual Private Servers to circumvent user authentication or security of any of our hosts, networks or accounts or those of our customers or suppliers is strictly prohibited;

  14. using Habitat3 Hosted Virtual Private Servers to interfere with or denying service to anyone is strictly prohibited;

  15. using any program/script/command, or sending messages of any kind, with the intent to interfere with, or disable, any persons' use of Habitat3 Hosted Virtual Private Servers is strictly prohibited;

  16. sending unsolicited email messages through or to users of Habitat3 Hosted Virtual Private Servers in breach of the Spam Act 2003 (Cth) is strictly prohibited;

  17. using Habitat3 Hosted Virtual Private Servers to send email to any email address, with the intent to spam or harass is strictly prohibited;

  18. use of Habitat3 Hosted Virtual Private Servers in breach of any person's privacy (such as by way of identity theft or "phishing") is strictly prohibited.

 

c) Failure to comply with the Habitat3 Acceptable Use policy may result in the cancellation of your service.

These Terms of Service Last Updated - 06/10/2018

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Habitat3 | 1300 550 941 | sales@habitat3.net.au

Level 5, 20 Bond Street, Sydney, NSW 2000