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1 ATechnology Service

Important – If you proceed to apply for, and use, ATechnology Services and / or make payment online through atwww.ATechnology.com.au, these Terms and Conditions will form a contract between you and ATechnology to govern the provision of the service. It is important that you read these terms and conditions carefully. If you accept the contract, and proceed to order the service, a contract will apply. If you do not agree to this contract you should exit the ATechnology website before placing any service order.

2. Definitions

"Agreement" means the agreement between ATechnology and a Client for use of the ATechnology service formed when a Client purchases an ATechnology service either through the ATechnology website or by contacting ATechnology directly.

“Fees” means the fees and charges levied by ATechnology for provision of services ordered either through the ATechnology website or by contacting ATechnology directly.

“Service” means the service provided to Clients by ATechnology and includes provisioning of servers, installation of operating systems and management of application level software as specifically included in the product.

“ATechnology Instructions and Procedures” means all of ATechnology’s information, bulletins, user guides, manuals, and other directions and instructions (however published or displayed) to ATechnology users for use of the ATechnology Service;

“ATechnology website” means the website at www.ATechnology.com.au;

“Client” and/or “you” means a person who enters into an agreement with ATechnology to use an ATechnology service;

“Delivery” means the provision of the service selected by an ATechnology Client;

“Fully Managed” refers to any of the services provided by ATechnology which clearly include the words “Fully Managed” in the product name or description. Such services include free support and specific additional management other than provisioning of the base service.

“Self Managed” refers to any of the services provided by ATechnology which do not clearly include the words “Fully Managed” in the product name or description. Such services do not include free support and require the Client to have adequate technical personnel or technical skills and knowledge to make use of, monitor and secure the service.

“Authorised Contact” means a person from the Client’s organisation who is responsible for management of the ATechnology service(s) including submitting support tickets, and any other communications between ATechnology and the Client.

“Cap” means a degradation of service to limit the resources used by the Client.

“GST” has the same meaning as defined in section 195 of the A New Tax System (Goods and Services Tax) Act 1999;

3. Use of Service

The Client acknowledges that the following conditions apply to the Client’s use of the ATechnology Service:

a) ATechnology accepts no liability for the consequences of the ATechnology Service not being capable of being supplied for any technical reason except where a signed Service Level Agreement is in place.

b) The Client must comply with all ATechnology instructions and procedures, and must supply full and accurate information whenever requested to do so in the course of the Client applying for, and using, the ATechnology Service. Without limitation, the Client must supply accurate information concerning such matters as the Client’s hosting information, (including all data necessary to provision the service) billing information and technology requirements.

c) The Client accepts sole responsibility for assessing and choosing an adequate level of service. Upgrades to the service will be available as necessary and will incur the relevant service fees including any set up fees as appropriate.

d) The Client accepts sole responsibility for advising accurate provisioning, management and set-up instructions to ATechnology through the ATechnology website. ATechnology will not be responsible for any failure of, or delay in, the provision of a service if the Client’s instructions are ambiguous, incomplete, inaccurate, or are not followed by the Client.

e) The Client is solely responsible for maintaining secrecy and security of any username and password which allows Client’s access to the ATechnology website. The Client accepts responsibility for all transactions processed through the website after access is allowed following acceptance of the Client’s password.

f) The Client acknowledges any services provided to an overseas entity may be subject to the laws of that country. The Client is solely responsible for ensuring compliance with the laws applicable to their own country.

g) Under the contract which will be made between ATechnology and the Client on acceptance of these terms and conditions, ATechnology may (but is under no obligation to) make special or preferential offers available to ATechnology Clients from time to time. If any such offers are made available they will be (a) subject to these terms and conditions, (b) be personal to the Client (and strictly not for transfer or re-sale to any other person or entity) and (c) offered pursuant to any offer-specific terms which may be published or advised by ATechnology from time to time.

h) The ATechnology Service is personal to the Client, and any purchase of services through ATechnology for sale or re-supply to any person or entity other than the Client is prohibited without the express written permission of ATechnology.

i) The Client may not conduct or attempt to conduct any form of penetration testing, scanning, brute force attack, denial of service attack or any other kind of security scan or attack without prior written permisson of ATech and where such written permission is accompanied by a rules of engagement document clearly outlining the specific nature of the testing that will take place along with the date, time and duration of testing. Penetration testing will only be permitted by a suitably qualified and skilled technician who is employed or contracted for that purpose by an organisation holding at least AUD$5 million in Professional Indemnity insurance. Any such form of testing will only be permitted with at least 10 days notice from the date of approval of the rules of engagement document.

4. Delivery (Provisioning of Service)

The Client acknowledges that the sole services offered for provisioning through the ATechnology service are the ATechnology:

a) VPS Hosting service;

b) Web Hosting service;

c) Email Hosting service;

d) Firewall Management service;

e) Back-up service;

f) Voice to Email service.

The services are usually provisioned within 24 hours of receipt of payment and confirmation of all necessary information. ATechnology will take up to 7 days from receipt of payment and confirmation of all necessary information for provisioning of certain services where the requirement is complex or of a large scale.

5. Account Setup / Email on file

ATechnology will setup the Client’s account after receipt of payment and screening of the order(s) in case of fraud. The Client must provide ATechnology with an email address which is not @ the domain(s) under which the Client is signing up. The primary email address on file will be used to contact the Client in case of abuse issues or for other notifications. The Client must ensure the email address on file is current and up to date at all times. Providing false contact information of any kind may result in the termination of your service(s).

6. Transfers

The Client may request assistance with transfer of an existing solution from prior hosting. Additional fees may apply for such assistance.

7. Support

ATechnology will provide free support for any ‘Fully Managed’ solution when a support ticket is lodged through the online helpdesk, and where the issue is within ATechnology’s control. Self managed or c-panel clients will be charged a fee for support.

The Client must provide details of one “Authorised Contact”. If the Client requires more than one authorized contact on file, this must be requested in writing and additional fees will apply for each additional Authorised Contact.

Support tickets may only be lodged by the Client’s listed authorized contact. Support requests lodged by anyone not listed as an authorized contact will be reported to the authorized contact. ATechnology may at their discretion choose to not provide support or information to the unauthorized contact without giving reason.

The Client warrants that the Client’s organization has adequate IT helpdesk support. ATechnology does not provide IT helpdesk support. Where requests are made for IT helpdesk support, ATechnology may at their discrection refuse to provide such support and or charge a substantial fee.

ATechnology reserves the right to terminate service if evidence of adequate IT helpdesk support is not provided on request.

ATechnology provides a Zimbra webmail service to all Zimbra email Clients free of charge. ATechnology provides free support for use of the Zimbra webmail service where support is requested by the authorized contact using the online support helpdesk.

ATechnology does not provide support for any other email clients (eg. Outlook) unless expressly included in a signed contract.

ATechnology does not provide support for mobile phones or any other handheld devices unless expressly included in a signed contract.

Support requests that do not meet the above terms will incur a fee. The fees are substantial and cumulative (ie. multiple phone calls for the same issue would incur multiple charges). The following are some specific examples of instances where a fee would be charged:

a) Support request by a person other than the listed Authorized Contact

b) An issue outside ATechnology’s control or deemed to be IT helpdesk support issue

c) Support request for Outlook

d) Not submitted using the online support help-desk without good cause (ie. critical business operational impact)

8. Hosting Security, Security Capabilities and Policy for Transmission of Payment Card Details

It is the Client’s responsibility to ensure that scripts/programs installed under the Client’s account are secure and permissions of directories are set properly, regardless of installation method. Set permissions on most directories to 755 or as restrictive as possible. The Client is ultimately responsible for all actions taken under their account. This includes the compromise of credentials such as username and password. The Client must use a secure password. If a weak password is used, the Client’s service(s) may be suspended until the Client agrees to use a more secure password. Audits may be done to prevent weak passwords from being used. If an audit is performed, and the Client’s password is found to be weak, ATechnology will notify the Client and allow time for the Client to change/update their password.

It is the Client's responsibility to ensure that an adequate firewall is in place. "Fully Managed" web and email hosting includes firewall management. VPS hosting requires firewall management to be set up by the Client, or the Client may purchase "Managed Firewall" as an add on service.

ATechnology servers are hosted in secure data center facilities in Brisbane. Data centers are fully restricted from public access and unmonitored client access and under 24/7 physical security including on-site security, monitored CCTV and biometric scanning where available. ATechnology keep in place a comprehensive firewall which is monitored and updated frequently by Network Security experts.

For credit card transactions, payment information is secured by using 128 bit Secure Sockets Layer (SSL) technology, which encrypts information input by the Client.

9 Spam

ATechnology take a zero tolerance stance against sending of unsolicited e-mail, bulk emailing, and spam. "Safe lists" and "double opt-in" will be treated as spam. Any Client who sends out spam will have their services terminated with or without notice.

Sites advertised via SPAM may not be hosted on ATechnology servers. This provision includes, but is not limited to SPAM sent via fax, email, instant messaging, or usenet/newsgroups. Any account which results in ATechnology IP space being blacklisted will be immediately suspended and/or terminated.

ATechnology reserves the right to require changes or disable as necessary any web site, account, database, or other component that does not comply with ATechnology’s established policies, or to make any such modifications in an emergency at its sole discretion. Where such changes will have an operational impact on the Client’s business, ATechnology will make every reasonable effort to notify the Client before making such modifications.

ATechnology reserves the right to charge the holder of any account used to send any unsolicited e-mail a clean-up fee.

10. Refunds

Refunds will not be granted on services which are suspended or terminated due to abuse, violation of the Terms of Service, or offensive material.

There are no refunds on administrative fees, install fees for custom software, or site move assistance. Refund requests after the initial 30 days of service will be refunded on a prorated basis of any unused time. Any incurred Support fees are non-refundable.

Only first-time accounts are eligible for a full refund within 30 days of purchase. For example, if the Client is deemed to currently have or has previously had an account with ATechnology, the Client will not be eligible for a full refund. Accounts which are not deemed first-time accounts will be refunded on a prorated basis.

11. Backups and Data Loss

The Client may purchase fully managed back-ups as an add-on ATechnology service.

For use of ATechnology Services WITHOUT a back-up service in place:

The Client’s use of ATechnology services without a managed back-up service is at the Client’s sole risk. ATechnology is not responsible for files and/or data residing on the Client’s account. The Client agrees to take full responsibility for files and data transferred and to maintain all appropriate backups of files and data stored on ATechnology servers.

While ATechnology take no responsibility for lost data, ATechnology may be able to provide a data restoration service. ATechnology do not in any way guarantee that such data will be available where a purchased back-up service is not in place. A fee will be charged for recovery whether successful or not successful where the Client does not have an appropriate back-up service in place.

For use of ATechnology Services WITH a back-up service in place:

ATechnology shall be responsible for performing and maintaining backups according to the contracted schedule. ATechnology provides backups, and regular site software updates for some Fully Managed services where expressly included in the product description.

Maintaining regular back-ups decreases the risk of service downtime due to third party abuse, operational errors, data corruption, and many other circumstances, but cannot eliminate all risk. In the event that a Client service is compromised, and that Client has an active contract for Back-Ups from ATechnology, ATechnology will restore the client site without charge. In the event that ATechnology fails to perform backups or updates in a timely manner, ATechnology will endeavour to restore and reconstruct the data to the best of their ability.

12. Resource Usage

The Client’s plan may state allocated resource usage (e.g. a monthly bandwidth allowance.) Should the Client’s service pass the allocated amount ATechnology will “Cap” the service until:

a) the start of the next allocation, or

b) until more resource is purchased at an additional fee, or

c) until the Client upgrades to a higher level of package,

whichever is the sooner.

Unused resources cannot be carried over to the next billing period.

All plans including ‘unlimited’ plans are subject to a ‘fair go’ policy with regard to server resources and bandwidth usage. Any Client found to be placing excessive load on the servers through scripts or otherwise, may be required to upgrade to a specialized account.

13. Warranties and Acknowledgements

The Client warrants that any and all data and information provided by the Client to ATechnology is, and will be, complete, up to date, true and correct, to the best of the Client’s knowledge and belief, and that the Client’s use of the ATechnology Service, will be effected in full compliance with all of ATechnology’s directions and requirements, and will comply with all laws, regulations and directions of Government or Governmental authorities whether in Australia or in the country in which the Client resides or operates.

The Client promises to pay to ATechnology, free of any deduction or set-off, any and all charges for services chargeable under the ATechnology Service.

The Client acknowledges that ATechnology may, in its sole and absolute discretion, refuse to accept data, information requests or instructions submitted through ATechnology where, in ATechnology’s opinion, the same is ambiguous, or where ATechnology has grounds for believing that the Client’s use of the Service, or request for supply of service is, or could be, unlawful either in Australia or in another country in which the Client resides or operates.

Any material that, in ATechnology’s judgment, is obscene, offensive, illegal, or threatening is prohibited from public hosting and will be removed from public access from ATechnology servers with or without notice.

All services provided by ATechnology may only be used for lawful purposes as governed in Australia.

Use of ATechnology services to infringe upon any copyright or trademark is prohibited. This includes but is not limited to unauthorized copying of music, books, photographs, or any other copyrighted work. The offer of sale of any counterfeit merchandise of a trademark holder will result in the immediate termination of service(s). If you believe that your copyright or trademark is being infringed upon, please email ATechnology with details regarding the suspected infringement. If the request is in regard to a licensing issue, ATechnology may require further documentation.

Failure to respond to email from ATechnology abuse department within 48 hours may result in the suspension or termination of the Client’s services. Violations will be reported to the appropriate law enforcement agency.

ATechnology may disclose any subscriber information to law enforcement agencies without further consent or notification to the subscriber upon lawful request from such agencies.

ATechnology will cooperate fully with law enforcement agencies, and will report hacking, phishing, spamming, or other legal violations to legal authorities – this is done to protect Clients, in the event that their site is abused by a third party.

14. Intellectual Property

All Intellectual Property rights of any kind, whether registered or unregistered, in the ATechnology Service, is the sole property of, and/or vests in ATechnology. A person cannot reproduce or authorise the reproduction of any component of the ATechnology service text or images without ATechnology’s prior written approval.

15. Payment

The Client shall pay the service charges specified by ATechnology (either on the ATechnology website or otherwise) using an approved online payment channel in advance of the time period during which such services are provided.

The Client’s application to use the ATechnology Service constitutes an authorisation by the Client to ATechnology:

a) to debit the Client’s ATechnology Business Credit Account, or nominated credit card, with the value of the service as noted on the ATechnology website or in a written quote at the time of purchase and any other charges applied pursuant to the ATechnology service;

b) to debit the Client’s ATechnology Business Credit Account, or nominated credit card, with the value of any recurring charges whether on a monthly, quarterly or annual basis which are applicable as noted in the service description or where items are clearly priced on a recurring basis (e.g. $30/mth). The Client acknowledges that they will be debited on a recurring basis until and unless they notify ATechnology of their desire to cancel any or all services received.

Charges may be varied at any time at ATechnology’s discretion. Charges are GST inclusive where GST is applicable. For fixed rates to apply a signed contract must be in place clearly identifying the term of the service.

It is the Client’s responsibility to ensure that the Client’s payment information is up to date, and that all invoices are paid on time. ATechnology provides a 7 day grace period from the time the invoice is due and when it must be paid. Any invoice that is overdue for 7 days and not paid will result in a late fee and/or suspension of services until the account balance has been paid in full.

16. ATechnology and Client Liabilities

ATechnology shall not be liable to the Client or to any other person (whether in contract, tort or otherwise) for any loss or damage suffered, or that may be suffered, as a result of any act or omission, whether negligent or otherwise, by or on behalf of ATechnology in relation to the promotion, provision, suspension or termination of the ATechnology Service, or any other matter or thing relating to this Agreement.

To the maximum extent permitted by law, ATechnology expressly disclaims all conditions and warranties, express or implied, in respect of the ATechnology service and ATechnologying of any data pursuant to this Agreement. Where the law precludes such exclusion and implies certain conditions and warranties into this Agreement, the liability of ATechnology for breach of such condition or warranty shall be limited, at the option of ATechnology, to any one or more of the following:

a) supplying the ATechnology Service again; or

b) payment of the cost of having the ATechnology Service supplied again.

The Client shall be liable to, and shall wholly indemnify, ATechnology for or against any loss claim or damage whatsoever which ATechnology may suffer or incur as a result of any action, proceeding, claim, demand or prosecution arising from this Agreement, the provision of the ATechnology service to the Client, ATechnologying of any data on behalf of the Client through the ATechnology service, or any other matter or thing arising as a result of this Agreement, and which arises out of the Client’s conduct, negligence, breach of Agreement, mis-statement of fact (intentional or otherwise) or which in any manner or form arises out of either the nature condition or characteristics of premises of the Client which are visited by ATechnology personnel, or the nature, environment, legality, or integrity of data hosted by ATechnology. The liabilities imposed by this sub-clause continue and survive notwithstanding any termination of this Agreement.

ATechnology shall not be in default under the terms of this Agreement nor liable for failure to observe or perform in accordance with any provision of this Agreement for any reason or cause which could not with reasonable diligence be controlled or prevented by it, including without limitation, war, insurrection, riot, civil commotion, strikes, lock-outs, labour or industrial disputes, acts of God, acts of Governments or flood, storm, tempest, power shortages or power failure, system outages or interruptions, inability to obtain sufficient labour, raw materials, fuel or utilities. During the period of an incident or incidents of "Force Majeure" this Agreement shall be suspended.

All the rights, immunities and limitations of liability in this Agreement shall continue to have their full force and effect in all circumstances notwithstanding any breach of contract or of any conditions hereof by ATechnology.

17. Refusal of Service & Termination

ATechnology may refuse service to anyone without cause.

ATechnology may at any time, without cause, in ATechnology’s sole and absolute discretion, suspend either the Client’s use of the ATechnology Service, or the ATechnology Service in its entirety. Unless ATechnology has an entitlement to suspend or cancel commenced ATechnology transactions (such as under these terms and conditions) all ATechnology transactions commenced before any account suspension or termination will be completed.

The Client may, at any time, without cause, suspend or terminate the Client’s participation in the ATechnology service, save that any payment liabilities which exist at the time of any such termination must be completed and effected in full irrespective of any such termination.

The Client may cancel one or all ATechnology services in writing or through the ATechnology website if online cancellation functionality is available. Once ATechnology receive cancellation notice and have confirmed all necessary information, ATechnology will confirm via email to the Client that the service / services has / have been cancelled. If the Client does not receive a confirmation of cancellation, the Client must contact ATechnology immediately to ensure further charges are not incurred.

In the event of cancellation or termination by either party, the Client may request provision of the hosted data within 30 days of the cancellation or termination of service(s). ATechnology will provide a copy of the hosted files either by email, download link or on a disc mailed to the Client. Data will be sent to the email or postal address on file.

ATechnology may charge a fee for support in transferring hosting to another hosting provider if requested by the Client.

18. Governing Law

This Agreement is governed by, and shall be construed in accordance with the laws in force in the State of Queensland, Australia, and the courts and registries of courts in that State shall have jurisdiction in the event of a dispute.

19. Privacy

ATechnology respects the privacy of its Clients and their personal information. Any and all data and information collected by ATechnology through the provision of the Service will be managed strictly in accordance with the ATechnology Privacy Policy as found on the ATechnology website.

20. Copyright

The contents of the ATechnology websites are in their entirety copyright to ATechnology and no reproduction or use of any of the text or images displayed on that site is permitted except in the limited circumstances permitted by law.

21. Sub-Contractors

ATechnology reserves the right to authorise performance of any ATechnology obligations (either in respect of the ATechnology Service, or any provisioning or other function required to be completed by ATechnology) through contractors or sub-contractors to, or of, ATechnology. Where contractors and/or sub-contractors are engaged by ATechnology the same are included within the definition of “ATechnology” and are entitled to all of the benefits and rights imposed upon and enjoyed by ATechnology by these terms and conditions, the ATechnology Service Terms and Conditions, or the service-specific terms and conditions for any service ordered or supplied through ATechnology.

22. Variation

ATechnology may vary these terms and conditions at any time by giving appropriate notice of proposed changes through the ATechnology website. Any use of the Service by a Client after any variation to the terms and conditions becomes effective will be deemed to constitute acceptance of the variations thereto, and any service supplied will be supplied on the terms and conditions as varied. If the Client does not accept any variation to the terms and conditions, the Client should terminate the Client’s participation in the Service.