1. PURPOSE OF AGREEMENT.
1.1 Subject to the terms and conditions of this Agreement, during the term of this Agreement, Nexus One will provide internet connectivity services (the “Bandwidth”), certain equipment used in internet connectivity services (the “Hardware”), space in its business premises to store and operate such Hardware (“Space”) and licensing of the associated operating system and web server (the “Software”), together comprising a dedicated server package (together, the “Services”). Nexus One desires to provide Services to the Customer, and the Customer desires to receive and compensate Nexus One for such Services. The provision of Services pursuant to this Agreement shall be initiated by the receipt and acceptance by Nexus One of this agreement issued by the Customer describing the Hardware, Software and Bandwidth that the Customer requires. Each Agreement will contain the prices, initial terms of Services and other information.
2. PAYMENT TERMS AND PRICING.
2.1 Payment Terms. Upon acceptance of the Service Order by Nexus One, the full amount of the initial fee, which includes any set-up fees and the Billing Term Fee and charges, is due and payable to Nexus One. Thereafter, all payments are due within 30 days of commencement of recurring term. Payments to Nexus One may be made by either Cheque, Bank Transfer or accepted credit cards, in Australian dollars. Nexus One can refuse payment by credit card for amounts over AUD$3,000 or charge a 2.5% additional fee for the transaction value. Payment by credit card includes the authorisation to charge all recurring fees and charges to the Credit card on file with Nexus One on or around the date due. If the Customer’s credit card is declined for any reason, Customer will be sent a notice by email. If payment is not received at Nexus One by the date due, Nexus One may make one final attempt to charge Customer’s credit card on or around the due date. Payments via Invoice which include cheque or Money Order incur a $4.40 account-keeping fee per Billing Term. Customers are liable to pay Nexus One an $11 late payment fee for all payments that fall 14 days or over the invoice due date.
2.2 G.S.T. All payments required by this Agreement are inclusive of Goods and Services Tax, of which the Customer will be responsible for and will pay in full.
2.3 Pricing Disputes. Customer must notify Nexus One in writing of any disputed charges within 60 days of the date of the billing for such charges. If the Customer does not notify Nexus One within that time period, the Customer waives any right to dispute such amounts, either directly or indirectly.
3. MAINTENANCE AND SUPPORT.
3.1 Ordering Maintenance and Support Services. Nexus One shall provide the Customer with maintenance and support services for Hardware or Software, if such services are specified in this Agreement.
3.2 Exclusions. Maintenance and support services shall not include services for problems arising out of (a) tampering, modification, alteration, or addition to the Hardware or Software, which is undertaken by persons other than Nexus One or its authorised representatives; or (b) software or Hardware supplied by the Customer without advising Nexus One.
3.3 Customer’s Duties.
(b) In the event of a critical system failure that involves Hardware replacement, Nexus One shall restore system to last good configuration. Customer agrees that disaster recovery measures are an additional component to the base service.
(c) Customer is responsible for Network and Application Security measures and acknowledge that they may be vulnerable to network attacks should they not utilise TCP/IP packet filtering technologies (eg firewall) which may or may not prevent guaranteed system penetration prevention. Nexus One will work with the customer to lock system down.
(d) Customers acknowledges that Microsoft Windows and Linux operating systems along with additional 3rd party software may contain bugs or may be dysfunctional and are simply endorsed but not guaranteed by Nexus One.
(e) Customer is responsible in maintaining its own Internet access and all necessary telecommunications equipment, software and other materials at Customer’s facilities necessary for its end users to access its information and materials through the Service.
(g) Customer shall follow support procedures as outlined on Nexus One web site (www.nexusone.com.au) when support is required.
(h) Customer is responsible for the role of system administrator. System administrator, as deemed by this Agreement, is the collection of tasks related to utilising system software. This includes maintaining users, maintaining websites, maintaining email setting, configuration of databases, uploading content and associated programming.
(i) Customer acknowledges that technical support is limited to Hardware/network failures. Technical support relating to usage of software or code will be considered a chargeable service at standard Nexus One rates.
3.4 Remote Access Passwords. Customer agrees to provide Nexus One with root level password and inform Nexus One if and when the root level password changes. In the event that Customer changes passwords or usernames that prevent Nexus One from remotely accessing dedicated server, Customer waives all rights to Maintenance and Support Services. Customer may sign a waiver to decline the use of such usernames and passwords and assume the risks, losses, and liability that may arise by electing to receive Services without Remote Access Passwords.
3.5 IP Addresses. Nexus One may designate for Customer’s use on a temporary basis the number of Internet Protocol Addresses (“IP Addresses”) specified on this Agreement from the address space allocated to Nexus One by APNIC. Customer accepts that the IP Addresses are the sole property of Nexus One and are designated to Customer to use on a temporary basis and are not portable. Nexus One reserves the right to change the IP address designations at any time but in doing so shall use reasonable efforts to minimise inconvenience to Customer, and shall give Customer reasonable notice of changes. Customer agrees that it will have no right to use IP Addresses assigned to Customer upon termination of this Agreement, and that any change in IP Addresses Customer may need to make after termination of this Agreement shall be the sole responsibility of Customer.
4. SOFTWARE AND LICENCE RIGHTS.
4.1 Operating System and Web Server Software Licence. During the term of a Service Order, Nexus One grants Customer a nontransferable, nonexclusive licence to use the Software specified in the Service Order, for its internal needs, to be used in solely on the Hardware provided, and solely in conjunction with the Services.
4.2 Software Licence Restrictions. Customer agrees that it will not, directly or indirectly (and it will not allow others to), (a) copy the Software, except as necessary to install on Hardware and for internal, archival purposes. In the event Customer makes copies of the Software, Customer shall reproduce all proprietary notices on such copies; (b) sell, lease, license, transfer, give possession of, or sub license the Software or the documentation to others; (c) write or develop any derivative or other software programs, based, in whole or in part, upon the Software or any Confidential Information (“Confidential Information”)
4.3 Proprietary Rights. Customer shall not have any right, title, or interest in the Software, Hardware, documentation, or any copyrights, patents or trademarks, embodied or used in connection therewith, except for the limited licence to use provided in Sections 5.1 and 5.2.
5. SERVICE LEVEL AGREEMENTS.
During the term of this Agreement, Customer shall have a Service Level Agreement (SLA) for any Downtime reported to Nexus One by the Customer. Other than as provided in this Service Level Agreement, Nexus One shall not be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any government authority, war, sabotage, fire, flood, strike or other labour disturbance, interruption of or delay in transportation, unavailability of or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of Services.
5.1 99.9% Uptime Guarantee. In the event of Downtime as defined in 5.2, Nexus One will credit the Customer’s account for the failed service as described below.
If the total downtime in the calendar month is:
Greater than 0.7 hours but not exceeding 7.2 hours
10% of the Monthly recurring fee
For purposes of this section, Downtime as defined in section 6.2 begins at time the downtime occurs.
5.2 Downtime. For the purposes of this Section, Downtime shall mean any interruption of ninety (90) seconds or more in the availability to users of any application, directly or indirectly made available through the Services, only if such interruption is due to either:
(a) failure by Nexus One to manage a situation so as to cause interruption in Network availability, or
(b) A disruption in the connection between any such server and the Internet. For purposes of this Section, the Internet is deemed to consist of services that commence where Nexus One transmits a Customer's content to Nexus One carrier(s) at the Nexus One border router port(s). Such carriers provide Nexus One with private and dedicated bandwidth. Nexus One undertakes no obligation for the circuit or link between Nexus One facilities and such carrier’s services. If router packet loss is in excess of fifty percent (50%) and is sustained for one hundred and twenty (120) seconds or more, Nexus One will classify this as an “outage.” If an “outage” continues for a time period of more than four (4) minutes, then such outage will be deemed Downtime. If the latency across the Nexus One IP network exceeds one hundred twenty (120) milliseconds, Nexus One will classify this as Downtime.
(c) For purposes of this section, Resolution is either the replacement of faulty parts, or the provision of new system as per section 4.3, or the escalation to professional services. Nexus One will deem whether a service fault is due to hardware.
5.3 Maintenance Windows. In order to maintain and upgrade the Nexus One IP Network infrastructure, Nexus One performs scheduled maintenance on its equipment. Outages or performance degradation during scheduled maintenance windows as a result of router, switch or server maintenance, are not considered Downtime for purposes of this section. Nexus One shall make all commercially reasonable efforts to provide the Customer with reasonable prior notification of all scheduled and emergency maintenance procedures.
5.4 Investigation of Service Interruptions. At Customer’s request, Nexus One will investigate any report of Downtime, and attempt to remedy any Downtime expeditiously. If Nexus One reasonably determines that all facilities, systems and equipment furnished by Nexus One are functioning properly, and that Downtime arose from some other cause, Nexus One can continue to investigate the Downtime at Customer request and expense under Nexus One's Professional Services Agreement.
5.5 Sole Remedy. The terms and conditions of this Section 5 shall be Customer’s sole remedy and Nexus One's sole obligation for any Downtime.
6. USER CONTENT AND CONDUCT.
Customer is solely responsible for the content of any postings, data or transmissions using the Services (the “Content”), or any other use of the Services by Customer or by any person or entity Customer permits to access the Services (a “User”). Customer represents and warrants that neither it nor any User will use the services for unlawful purposes (including, without limitation, infringement or copyright or trademark, misappropriation or trade secrets, fraud, invasion of privacy, illegal pornography, obscenity, defamation and illegal use or to interfere with, or disrupt, other network users, network services or network equipment. Disruptions include, without limitation, distribution of unsolicited advertising or chain letters, repeated harassment of other network users, wrongly impersonating another user, falsifying one’s network identity for improper or illegal purposes, sending unsolicited mass email, propagation or distribution of computer viruses, using the network to make or attempt to make unauthorised entry to another machine accessible location, via the network, and distributing tools designed for compromising security (i.e. including, but not limited to, password guessing programs, cracking tools or network probing tools). Nexus One may suspend or terminate the Services immediately, without prior notice to Customer, if Nexus One believes, in good faith, that Customer or a User is utilising the Services for any such illegal or disruptive purpose. Customer shall defend, indemnify, and hold harmless Nexus One from and against all liabilities, judgements, claims, damages, settlements, expenses and costs (including legal fees and litigation expenses) arising out of or relating to any and all claims by any person relating to use of the Services, including, but not limited to, use of the Service without consent of the Customer.
7. CONFIDENTIAL INFORMATION.
7.1 Confidential Information. Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party's business, plans, Customer, technology, and products, including the terms and conditions of this Agreement. Confidential Information will include, but not be limited to, each party's proprietary software and Customer information. Each party agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by this Agreement, nor disclose to any third party (except as required by law or to that party’s attorneys, accountants and other advisors as reasonably necessary), any of the other party's Confidential Information and will take reasonable precautions to protect the confidentiality of such information.
7.2 Exceptions. Information will not be deemed Confidential Information hereunder if such information:
(a) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party;
(b) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party;
(c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or
(d) is independently developed by the receiving party.
8. DISCLAIMER OF WARRANTIES.
8.1 Nexus One specifically disclaims all implies warranties, including but not limited to, the implied warranties of merchantability and fitness for a particular purpose. Except as otherwise provided in this Agreement, any written materials by Nexus One, or information on Nexus One’s web site, shall be for informational purposes only and, whether delivered or disseminated before or after the date of this Agreement, shall not create any express or implied warranties, guarantee of performance, or contractual obligations.
8.2 Nexus One does not and cannot control the flow of data to or from Nexus One’s Internet Data Centres and other portions of the Internet. Such flow depends in large part on the performance of internet services provided or controlled by third parties. At times, actions or inactions caused by these third parties can produce situations in which Nexus One’ Customer’ connections to the Internet (or portions thereof) may be impaired or disrupted. Although Nexus One will use commercially reasonable efforts to take actions it deems appropriate to remedy and avoid such events, Nexus One cannot guarantee that they will not occur. Accordingly, Nexus One disclaims any and all liability resulting from or related to such events.
8.3 No Other Warranty. Except for the Service Level Agreement set out in section 5 above, the Services are provided on an "as is" basis, and Customer's use of the Services is at its own risk. Nexus One does not make, and hereby disclaims, 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, and any warranties arising from a course of dealing, usage, or trade practice. Nexus One does not warrant that the Services will be uninterrupted, error-free, or completely secure, but will make reasonable endeavours to ensure they are.
9. TERM AND TERMINATION.
9.1 Term. This Agreement will be effective for a period set out in the Service Order and any continuation of service after the initial contract period. Th is agreement will commence on the effective date, unless earlier terminated according to the provisions of this Section 9.
(a) For Convenience. Customer may terminate any Service Order after the expiration of the Contract Term by giving Nexus One at least 30 days written notice. Once the initial Contract Period expires the Agreement will continue on a monthly basis. If Customer gives less than 30 days notice then Customer will be billed for Services until the end of the Contract Term, which is at least 30 days after such notice. Nexus One may terminate any Service Order by giving at least 30 days prior written notice of the date of termination of Services. All amounts due from the Customer for the account to which the Service Order relates must be paid in order for Customer to terminate a Service Order.
(b) For Cause. Either party will have the right to terminate this Agreement if: (i) the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same, except in the case of failure to pay fees, which must be cured within seven (7) days after receipt of written notice from Nexus One; (ii) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (iii) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.
10. LIMITATION OF LIABILITY.
Nexus One’s liability (including, for the purpose of this paragraph only, and all of its employees, agents, representatives), to the Customer (either directly or as a third party defendant in any action or proceeding) for any claim arising out of or relating to this Agreement or the provision of any Services (including, without limitation, maintenance and support) shall be limited to the amount of fees paid by the Customer to Nexus One under this Agreement within one year preceding the date Customer contends claim arose. In no event shall Nexus One be liable for any loss of data, loss of profits, cost of cover, or any other special, incidental, consequential, indirect or punitive damages, however caused and regardless of theory or liability. This limitation will apply even if Nexus One has been made aware or advised of, the possibility of such damages.
11. MISCELLANEOUS PROVISIONS.
11.1 Force Majeure. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including act of war, acts of God,
earthquake, flood, embargo, riot, sabotage, labour shortage or dispute, governmental act or failure of the Internet, provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable
commercial efforts to correct promptly such failure or delay in performance.
11.2 Marketing Removed.
11.3 Government Regulations. Customer will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside Australia in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the Australian Government and any country or organisation of nations within whose jurisdiction Customer operates or does business.
11.4 Non-Solicitation. During the period beginning on the Installation Date and ending 1 year after the termination or expiration of this Agreement in accordance with its terms, Customer agrees that it will not, and will ensure that its affiliates do not, directly or indirectly, solicit or attempt to solicit for employment any persons employed by Nexus One during such period.
11.5 Governing Law; Dispute Resolution, Severability; Waiver. This Agreement is made under and will be governed by and construed in accordance with the laws of the State of NSW, Australia. Any dispute relating to the terms, interpretation or performance of this Agreement (other than claims for preliminary injunctive relief or other pre-judgment remedies) will be resolved at the request of either party through binding arbitration. Arbitration will be conducted in NSW, Australia. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.
11.6 Assignment; Notices. Customer may not assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of Nexus One, except that Customer may assign this Agreement in whole as part of a corporate reorganisation, consolidation, merger, or sale of substantially all of its assets. Any attempted assignment or delegation without such consent will be void. Nexus One may assign this Agreement in whole or part. This Agreement will bind and inure to the benefit of each party's successors and permitted assigns. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party indicated on the signature page hereof, or at such other address as may hereafter be furnished in writing by either party hereto to the other. Such notice will be deemed to have been given as of the date it is delivered, mailed or sent, whichever is earlier.
11.7 Relationship of Parties. Nexus One and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Nexus One and Customer. Neither Nexus One nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.
11.8 Entire Agreement; Counterparts. This Agreement, including all documents incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument.
11.9 Severability. In the event any of the provisions of this Agreement is determined to be unenforceable in full, that provision will be enforced to the maximum extent permissible, under applicable law, and the other provisions of this Agreement will remain in full force and effect.
11.10 Substitution. Nexus One may substitute, change or modify the Hardware at any time, with notice to Customer. But shall not thereby substantially alter the technical parameters of the Services.
11.11 Release of Information. Nexus One reserves the right to release the contact information of Customer involved in violations of system security to administrators at other sites, in order to assist them in resolving security incidents. Nexus One will also fully cooperate with any government departments in investigations of suspected violations of law.
Customer’s and Nexus One’s authorised representatives have read the foregoing and all documents incorporated therein and agree and accept such terms effective as of the Effective Date.