4Sprung Pty Ltd STANDARD TERMS AND CONDITIONS FOR THE SUPPLY OF SERVICES (“STANDARD TERMS”)
1.APPLICATION OF THESE STANDARD TERMS
1.1 A person or company that accepts an order from 4Sprung for the provision of internet services (“the Services”) enters into a binding legal agreement with 4Sprung (“User Agreement”) which consists of:
these Standard terms of Service ; and
the Service Level Agreement which can be viewed here.
1.2 By, accepting the order, the Customer agrees to be bound by the User Agreement.
2.1 In the User Agreement, unless the context requires otherwise:
The singular includes the plural and vice versa.
A reference to any gender includes all other genders.
A reference to a statute means that statute as in force from time to time, and to any statute passed in substitution for that statute.
The word “includes” means “includes but is not limited to”.
Where one part of speech of a word is defined, other parts of speech of that word have corresponding meanings.
A reference to A$, $A, dollar or $ is to Australian currency.
If a day on or by which an obligation must be performed or an event must occur is not a business day in the place where it is to be performed, the obligation must be performed or the event must occur on or by the next business day.
Headings are for ease of use and reference only, and do not affect interpretation.
3. PROVISION OF THE SERVICES
3.1 4Sprung Services are provided only to Customers 18 years and above.
3.2 4Sprung will commence supplying the Services to the Customer within seven days of the date of first payment for the Services unless otherwise agreed with the Customer.
3.3 4Sprung will continue to provide the Services unless suspended in accordance with paragraph 8 or until the User Agreement is terminated in accordance with paragraph 10.
3.4 4Sprung will provide the Customer with all identification and log-in information necessary for the Customer to access and use the Services.
4.1 Charges for the Services (“Charges”) will be calculated according to the billing option and pricing structure for the Services selected by the Customer.
4.2 Charges for Services not prepaid by the Customer will be invoiced monthly.
4.3 Charges are exclusive of taxes, duties and government charges, other than income tax (“Taxes”) imposed or levied in Australia or overseas in relation to the supply of the Services. GST and other Taxes imposed on 4Sprung shall be added to the Charges, and shall be paid in accordance with paragraph 5.
4.4 The Customer is liable for all Charges for Services accessed through the Customer’s identification or log-in information whether authorised by the Customer or not, other than unauthorised access resulting from the negligence or wrongful conduct of 4Sprung or its employees or agents.
4.5 Charges may be modified in accordance with paragraph 12.
5.1 4Sprung provides a pre-paid service. Therefore the Customer must pay any Charges by the due date specified to the Customer (“Customer Account”) to receive 4Sprung Services.
5.2 4Sprung is not required to refund any prepaid charges and will only do so at 4Sprung’s discretion pursuant to paragraphs 8.1(d) and 105.3 All overdue Customer Accounts will incur interest at the rate set out in the Penalty Interest Rate Act (NSW).
5.4 4Sprung may refer Customer Accounts (which it has notified to the Customer are more than 30 days in arrears) to a debt collection agency, without further notice to the Customer.
5.5 The Customer must pay 4Sprung on demand any expenses incurred by 4Sprung as a result of the Customer’s failure to pay the Charges by the due date, including debt collection fees and 4Sprung’s legal costs on an indemnity basis, regardless of whether 4Sprung has commenced legal proceedings to recover the amount due.
5.6 If the Customer disputes the Charges payable on the Customer’s Account (“Dispute”), and has notified 4Sprung of the Dispute and the reasons for it, the Customer may withhold the disputed amount of the Charges until the Dispute is resolved, but must not withhold any other part of the Charges.
5.7 The Customer must pay 4Sprung the disputed amount of the Charges within 60 days of the due date for payment unless the Dispute has been resolved or referred by a party to a court, tribunal or other body with authority to resolve it.
6. USE OF THE SERVICES
6.1 The Customer is responsible at its own expense for the provision of all equipment, including computer hardware and telecommunication connections, needed to use and access the Services.
6.2 The Customer must comply with:
all laws and all reasonable directions from 4Sprung in relation to the use of the Services; and any other reasonable policies 4Sprung may notify to the Customer from time to time in connection with the provision or use of, or access to the Services.
6.3 If the Services include hosting services which incorporate material created by third parties, the Customer must obtain, at its own expense, all necessary authorisations for 4Sprung to use or reproduce the material to the extent necessary to provide the Services.
6.4 The Customer must ensure any person who accesses the Services does not, use or attempt to use, the Services:
to infringe the intellectual property rights of any person, including use, sale or transmission of software or other material which infringes copyright;
to publish, distribute or issue any information or material which is obscene, defamatory, threatening or abusive, or which vilifies any group of persons;
for any purpose or activity which is illegal, or to promote any such activity;
to sell or offer to sell pornography or sex-related merchandise;
to provide links to another website which contains any content referred to in paragraph (b) or is used for the purposes set out in paragraphs (c) and (d);
to interfere with or disrupt 4Sprung or its business, other Internet users or other service providers, or their computers, software or hardware, including by the propagation of computer worms and viruses; or
to access without authorisation any other computer accessible via the Services.
For any software that enables online anonymity, misleading IP identification, provides a hidden service or prevents 4Sprung from complying with legal obligations.
6.5 The Customer shall take all reasonable steps to ensure that the Customer’s hardware, software or network configuration (including IP addresses) are not used to cause any security breach or attack on 4Sprung’s or other Customers’ hardware, software or network configurations.
6.6 The Customer may use CGI-Scripts with the Services, unless 4Sprung considers a CGI Script not provided by 4Sprung adversely affects 4Sprung Server performance or the integrity of the 4Sprung computer network. The Customer may not share CGI-Scripts with domains not hosted by 4Sprung.
6.7 The Customer must not run Background Daemons, other than on Virtual Private Server (VPS) accounts.
6.8 The Customer must use passwords of a least eight characters, which include at least one of each of a number, an uppercase letter and a lowercase letter, for the purpose of the Services.
6.9 The Customer must ensure that the information it provides to 4Sprung is complete, accurate and up to date throughout the period that 4Sprung provides Services to the Customer.
6.10 The Customer must not run Game Servers or Game Server related applications on any 4Sprung service
7.1 4Sprung will only perform backups of Customer Content if the Services are purchased in 4Sprung’s Standard Hosting or Reseller Plans as outlined on the website www.4sprung.com.au, or there is an agreement between 4Sprung and the Customer in writing for 4Sprung to perform backups of Customer Content. While we take all necessary care to ensure back ups are available we do not guarantee that back ups are complete or free of faults and can be relied upon under every circumstance.
7.2 If 4Sprung is not required to perform backups of Customer content under paragraph
7.1, the Customer agrees to perform any backups necessary to protect the Customer from incurring financial loss as a result of data loss.
8. SUSPENSION OF SERVICES AND REMOVAL OF CUSTOMER CONTENT
8.1 4Sprung may from time to time without notice to the Customer suspend the Services or disconnect or deny the Customer access to the Services if:
the Customer breaches the User Agreement;
the Customer provides 4Sprung with false, incomplete or out of date information; or
the Customer’s Account is more than 14 days in arrears.
it is necessary to do so due to any technical failure of, or for the upgrading or preventative or remedial maintenance of 4Sprung’s computer systems and software;
in 4Sprung’s reasonable opinion, it is required by law to do so; or
in 4Sprung’s reasonable opinion, the Customer’s use of the Services adversely affects 4Sprung Server performance or the integrity of the 4Sprung computer network.
in 4Sprung’s reasonable opinion, the relationship with the Customer is not economically viable.
The Customer must consult 4Sprung for any actions they plan to take that do not fall inside the day to day operation of their service, including but not limited to running any load or penetrating testing. Failure to do so may result in immediate suspension of the service if the actions are seen as a threat to the network.
8.2 Services suspended under paragraph 8.1 will not be reinstated until the breach is remedied if capable of being remedied, or the account and interest is paid in full, and a fee of $75 for the administrative costs of reinstatement is paid.
8.3 The 14 day grace period outlined in 8.1c, is a privilege provided to our customers. This cannot and will not be extended under any circumstances. 4Sprung reserves the right to increase the reinstatement fee in the event that there are multiple instances of non-payment by the same Customer.
8.4 4Sprung shall compensate the Customer for suspension of service pursuant to paragraph 8.1(d) only, in accordance with the Service Level Agreement.
8.5 4Sprung may remove Customer Content in accordance with its Removal of Customer Content Policy available here
9. WARRANTIES AND LIMITATION OF LIABILITY
9.1 4Sprung does not give any express warranties in relation to the Services, including warranties that:
Customers will have continuous access to, or usage of the Services; or
data stored on 4Sprung Servers will not be lost or corrupted;
it will be possible to restore Customer Content from 4Sprung’s back up media; or it will be able to prevent unauthorised persons obtaining access to Customer Content.
9.2 Any condition or warranty which would otherwise be implied into this User Agreement is excluded, unless it would be unlawful to do so.
9.3 4Sprung’s liability to the Customer in relation to the Services on any legal basis is limited, to the extent it is lawful to do so, to one or more of the following:
the supplying of the Services again; or
the payment of the reasonable costs of having the Services supplied again.
9.4 The Customer acknowledges that 4Sprung does not and cannot control, supervise or edit any information or material accessed through the Services and that 4Sprung is not responsible for any content or information accessed via the Services.
10.1 Either party may terminate the User Agreement by giving notice to the other if the other commits a material breach of any provision of the User Agreement which:
can be rectified, and fails to rectify the breach within thirty days of notice being given by the party alleging the breach, describing the breach and the action which must be taken to rectify it; or cannot be rectified.
10.2 4Sprung may terminate a User Agreement by giving notice to the Customer if the Customer knowingly provides false or misleading information to 4Sprung, abuses or threatens staff or the relationship is not economically viable.
10.3 4Sprung at its own discretion may choose not to renew a customer’s subscription. In such instances, twenty one day’s notice will be given.
10.4 The Customer may terminate a User Agreement by giving 4Sprung notice at least two business days before the end of any period for which the Customer has paid for provision of Services (“Paid-up Period”) with effect from the end of that Paid-up Period.
10.5 If the User Agreement is terminated by 4Sprung under paragraph 10.1 or 10.2, all outstanding Charges will become payable upon the giving of notice of termination.
10.6 4Sprung is not required to refund any prepaid Charges, unless the User Agreement is terminated by the Customer under paragraph 10.1.
11.1 4Sprung may sub-contract the performance of its obligations under the User Agreement without obtaining the Customer’s consent.
12. VARIATION OF USER AGREEMENT
12.1 4Sprung may modify the User Agreement at any time by posting a revised User Agreement on this website. Customer is responsible for regularly reviewing this website to obtain timely notice of such modifications. Customer shall be deemed to have accepted such modifications to the User Agreement by continued use of the Services after such modifications have been posted.
12.2 The User Agreement may only be modified by a written agreement between 4Sprung and the Customer, or in accordance with paragraph 12.1. The User Agreement and any such written agreement constitute the entire agreement between 4Sprung and the Customer.
13.1 Any notice issued by 4Sprung or the Customer pursuant to the User Agreement shall be in writing. Notices may be delivered by hand, by receipted mail, or by email to the last email address provided to 4Sprung by the Customer, or 4Sprung’s address as identified on the www.4sprung.com.au website.
13.2 Notice will be treated as given:
in the case of hand delivery, on the date of delivery;
in the case of postal delivery, on the date of delivery recorded by the postal authority;
in the case of email, on receipt by the sender of notification that the email has been received by the recipient’s email server, but if the delivery or receipt is not on a business day or is after 5.00pm on a business day in the place where it is received, the notice is taken to be received at 9.00am on the next business day.
13.3 It is the Customer’s responsibility to notify 4Sprung of any changes to its contact details.
14.1 The User Agreement (and the validity and enforceability of the User Agreement) are governed by and to be interpreted in accordance with the law of the State of NSW in the Commonwealth of Australia, without reference to its conflict of laws rules. The parties submit to the non-exclusive jurisdiction of the courts of the State of NSW, and the federal courts of the Commonwealth of Australia. The parties irrevocably waive any right they may have to object to those courts exercising jurisdiction on the ground that the court is not a convenient forum.
14.2 If any provision of the User Agreement is illegal, unenforceable or void in any jurisdiction, then, with respect to that jurisdiction only:
that provision shall be read down if possible so that it is no longer illegal, unenforceable or void in that jurisdiction; and
if it is not possible to read down that provision, it shall be severed from theremaining provisions of the User Agreement, with respect to that jurisdiction only.
14.3 No act or omission by a party shall constitute a waiver of any of its rights under the User Agreement, other than an express waiver of those rights in writing signed by the party to be bound.
14.4 4Sprung may assign or novate its rights and obligations under this User Agreement at any time.
14.5 The User Agreement supersedes all prior agreements and understandings between the parties, and constitutes the entire agreement between the parties relating to the subject matter of the User Agreement