Service Level Agreement (SLA)
This Agreement represents a Service Level Agreement (“SLA” or “Agreement”) between Emocean Studios Pty Ltd and the Client for the provisioning of Secure Managed Web Hosting. Where the context admits: “We”, “Us” &; “Our” includes Emocean Studios Pty Ltd or any party acting on Emocean Studios Pty Ltd implicit instructions. “You” &; “Your” includes the person/company purchasing the Services or any party acting on the customer’s instructions. “The Registrant” includes the person/company applying for a domain name or any party acting on the Registrant’s instructions. “The Registry” the relevant domain names Registry.
Under this Agreement We provide Internet connectivity services (the “Bandwidth”), the equipment (the “Server”), the availability of space to store and operate such equipment (the “Space”) and the licensing of software (the “Software”), together comprising the dedicated server package under this Agreement (together, the “Services”).
The relationship entered into between You and Us is governed by these following terms, which shall apply during, and where necessary after, the period of the commercial relationship between You and Us.
1. Server Hardware
We will be the owner of the Server. The Server shall be installed and operated in the Space by Us. You will have no right of physical access to the Server or the Space. We shall have no liability for any loss or damage to any data stored on the Server.
You acknowledge that, We cannot guarantee that the Server will be free from defects. Nor can We guarantee that it will operate uninterrupted or without failure. We shall use our reasonable endeavours to make available to You at all times the Services but We shall not, in any event, be liable for interruptions of service or down-time of the Server and We shall be under no liability for non-receipt or misrouting of email or for any other failure of email.
Should We become aware of a Server fault, We will at our option repair the Server or provide an equivalent Server as a replacement as soon as practicably possible.
Any replacement Server will be provided in the default configuration as the Server was originally supplied. We do not warrant that any data, content or settings present on the original Server will be transferred to the replacement.
2. Network Connectivity & Bandwidth
We will provide a means to monitor the data transfer usage of the Server. You accept that if the Server exceeds its data transfer quota in any billing period, We will charge You for the additional data transfer at our standard rate.
Any access to other networks through the Services must comply with the rules appropriate for those other networks.
We may assign to the Server on a temporary basis a number of Internet Protocol Addresses (“IP Addresses”) from the address space assigned to Us by the RIPE. You acknowledge that the IP Addresses are the sole property of Emocean Studios Pty Ltd, and are assigned to You as part of the Services, and agree that You will have no right to IP Addresses upon termination of this Agreement. We reserve the right to change the IP Address assignments at any time.
We make no representation and give no warranty as to the accuracy or quality of information received by any person via the Services. We do not limit traffic, but operate a fair use policy. However, if traffic regularly exceeds 3000GB / month we may review the position. 3000GB (3TB) / month is roughly 10mb/s sustained. If a Client continually uses more than this we will evaluate the additional bandwidth usage and charge accordingly. Our bandwidth overage charge is $5 per mb/s in excess of the 10 mb/s fair usage allowance.
3. Service Guarantee
We guarantee the Client’s Service will exist in High Availability an our ultimate goal is to achieve year on year 99% or higher uptime rates.
+ This level of availability is achieved through the replication of data between physical devices, True HA and the duplication of critical components of a systems physical hardware.
+ The True HA mechanism will automatically recover from hardware failure.
+ Each Dedicated Server is connected to an A + B power Grid.
+ Each Dedicated Server is connected to an A + B network system.
We guarantee High Availability of the Server. This covers the hardware or hypervisor and not the software running on the servers. The Server will be deemed available if Emocean Studios Pty Ltd monitoring can reliably reach the Server.
4. Configuration and application changes
All changes made to the server are to be made exclusively by Emocean Studios Pty Ltd. All changes including application configuration and installation will be handled by Emocean Studios configuration management system. Any changes made by the Client are likely to be overwritten by Our configuration management system.
Requests for changes to the system should be made via “3. Non-critical issues, change requests or support requests” or “4. Critical issues, change requests or support requests”. The addition of websites, users and other common hosting tasks are provided as part of the Secure Managed Server service charge.
5. Non-critical issues, change requests or support requests:
Requests should be made by raising a ticket via the ticketing system or emailing firstname.lastname@example.org . Any non-critical issues will have a response within 4 hours during business hours. Any work required to be actioned out of hours, on behalf of the Client, needs to be scheduled in and approved by the Emocean Studios Pty Ltd support team 48 hours beforehand.
6. Critical issues, change requests or support requests:
Requests should be made by raising a ticket via the ticketing system or emailing email@example.com, critical issues will have a response within 1 hour during business hours. Issues regarding the availability of the Service need also to be reported to a member of the support team by calling 1800 912 029, if a call is made out of hours this number will be diverted to the on-duty engineer as part of our Out of Hours Operational Support.
Out of Hours Operational Support is intended to provide support for Clients with critical issues with regards to the services provided by Emocean Studios. Out of Hours Operational Support requests should be made by raising a ticket via the ticketing system, emailing firstname.lastname@example.org, or calling 1800 912 029. Critical issues with regards to the Service will be dealt with immediately and you will have a response within 24 hours.
File level backups of the server are made after 1am every morning. Should the backup be interrupted (including but not limited to network disruption) or the backup become corrupted, the latest restore point will be that of the last successful backup.
Backup completions are monitored by Emocean Studios Pty Ltd, should any issues arise they will be treated as “Critical issues”.
Backups of databases are made by using MySQL dump and are stored locally on the server. Should the password for the root MySQL be altered these backups will fail.
Backup retrieval must be initiated by contacting your Emocean Studios Pty Ltd representative and providing the following details;
+ The server’s hostname.
+ Full path of the file or directory to be recovered.
+ The date from which you would like the backup to be retrieved.
+ A valid location to copy the backup to.
Our backup system offers 200GB of backup storage. Over usage of this resource is charged at $1 per 1GB, monthly in arrears. Additional backup space can be purchased in blocks of 50GB, charged at $37 per month per 50GB packet ($1 / 1GB equivalent). This Service Level Agreement forms part of the Agreement with Emocean Studios Pty Ltd, along with Terms and Conditions and Acceptable Use Policy, and is subject to all the terms and conditions stated in these documents.
8. Monitoring and Availability
Emocean Studios Pty Ltd monitor all aspects of the Server via our external monitoring systems.
Issues regarding the availability of the server will be alerted to the support team, within business hours, or the on-call engineer, out of business hours, and will be treated as a “critical issue”.
Any security based issues that have been brought to our attention via upstream providers will be relayed to the Client and must be addressed by Client, as advised by Emocean Studios Pty Ltd. If the issue has not been resolved within 2 working days then the service may be restricted or suspended.
Security updates will be automatically installed on all servers and are applied between 6:00am and 12:00am. Should the update require a reboot of the dedicated server this will commence immediately after the updates have been installed.
10. Limitations and Exemption
The following items or situations are exempt from Emocean Studios Pty Ltd contractual responsibilities or obligations;
+ Acts or omissions of you or your users
+ Unmanaged software installed and running on your server.
+ Violations of our Acceptable Use Policy.
+ Scheduled maintenance, emergency maintenance, Client requested maintenance or Client requested changes.
+ Factors outside our control, including but not limited to any force majeure events, Denial of Service attacks, compromised software, unauthorised software running on your server, upstream providers or failures of the internet.
+ Inadequate resource to meet levels of traffic
+ Law enforcement activity.
+ All invoices for the service must be up to date for Client to be eligible for support services provided by Emocean Studios Pty Ltd in relation to the services.
All work will be logged by the engineer working on the server. Any additional work required or requested by Client will be calculated at the end of each calendar month and billed to the Client.
12. Domain Names.
We make no representation that the domain name You wish to register is capable of being registered by or for You or that it will be registered in You name. You should therefore not assume registration of Your requested domain name(s) until You have been notified that it has or they have been registered. Any action taken by You before such notification is at Your risk.
The registration and use of Your domain name is subject to the terms and conditions of use applied by the relevant Registry; You shall ensure that You are aware of those terms and conditions and that You comply with them.
You shall have no right to bring any claim against Us in respect of any refusal to register a domain name by the relevant registration authority.
Any administration charge paid by You to Us shall be non-refundable notwithstanding refusal by the Registry to register You desired name.
We shall have no liability in respect of the use by You of any domain name; any dispute between You and any other person must be resolved between the parties concerned in such dispute. If any such dispute arises, We shall be entitled, at our discretion and without giving any reason, to withhold, suspend or cancel the domain name. We shall also be entitled to make representations to the relevant Registry but will not be obliged to take part in any such dispute.
We shall not release any domain to another provider unless full payment for that domain has been received by Us.
13. Use Of The Services
You shall keep secure any identification, password and other confidential information relating to Your account or the Services and shall notify Us immediately of any known or suspected unauthorised use of the Services or breach of security, including but not limited to loss, theft or unauthorised disclosure of Your password or other security information. You shall observe the procedures which We may from time to time prescribe and shall make no use of the Services which is detrimental to Our other customers. In the case of an individual User, You warrant that You are at least 18 years of age and if the User is a company, You warrant that the Services will not be used by anyone under the age of 18 years. You are solely responsible for the content of any postings, data or transmissions using the Services or any other use of the Services by You or by any person or entity. You represent, undertake and warrant to Us that neither You or any person or entity will use the Services for illegal, disruptive or objectionable purposes.
In particular, You represent, warrant and undertake to Us that.
+ You will not use the Services in any manner which infringes any law or regulation or which infringes the rights of any third party, nor will You authorise or permit any other person to do so.
+ You will not upload, post, link to or transmit:
.......any material which is unlawful, threatening, abusive, malicious, defamatory, obscene, blasphemous, profane or otherwise objectionable in any way.
.......any material containing a virus or other hostile computer program.
.......any material which constitutes, or encourages the commission of, a criminal offence or which infringes any patent, trademark, design right, copyright or any other intellectual property right or similar rights of any person which may subsist under the laws of any jurisdiction.
+ All email sent using the Services, or which refers to content hosted on the Services will be in accordance with applicable legislation (including data protection and electronic communications legislation).
+ You will not use the Services in any manner which interferes with, or disrupts, other network users, services or equipment including, without limitation, unsolicited advertising or chain letters, inappropriate news group or forum posts, wrongly impersonating another user and falsifying one’s network identity.
+ You will not use the Services to make or attempt to make unauthorised entry to any other machine accessible location, via the network.
+ You will not use the Services to host an Internet Relay Chat (IRC) server or bot that is part of or connected to another IRC network or server.
If We have reasonable grounds to believe that You are or have been utilising the Services for any such illegal, disruptive or objectionable purpose, We may immediately, without prior notice to You:
+ Suspend the Services.
+ Terminate this Agreement.
+ Amend, remove from the Server or prevent access to the offending material or content.
+ You shall defend, indemnify and hold harmless Us from and against all liabilities and costs (including reasonable solicitor’s fees and litigation expenses) from any and all claims by any entity arising out of Your use of the Services, including those without consent.
14. Service Level Agreement
The Service Level Agreement, hereinafter referred to as the SLA sets out our aims with regard to the level of service provided.
Our failure to provide meet an aim set out in the SLA will not constitute a breach of this contract.
For the purpose of the ‘Network Uptime’ aim, network downtime is defined as 100% packet loss occurring in the transmission of data from Your Server hosted in our data centre to the Internet backbone. Events which do not constitute network downtime include but are not limited to:
+ A problem in Your access provider’s network or that of their upstream providers which prevents You from accessing the Emocean Studios network.
+ A problem with Your Server’s hardware or software which renders it or an application or service on it inoperable.
+ The period during which network protocols such as STP, OSPF and BGP are re-converging after an equipment or link failure.
In the event that You wish to make a claim for a service credit in accordance with the SLA, You will notify Us including full details of and the time at which the incident occurred within 7 days of the incident to which the claim relates occurring.
We reserve the right to determine whether any service credit is due. Should We determine that a service credit is due, it will be provided in the form of additional days of service up to a maximum of 30 days in any 30 day period. Only charges for the basic Server rental will be waived as a result of a service credit under the SLA. Charges for domain names, additional data transfer and optional extras added to You Server will not be waived. Service credits will not be provided in the form of cash or equivalent.
All charges payable by You for the Services shall be in accordance with the scale of charges and rates published from time to time by Us on our web site, errors and omissions excepted and shall be due and payable in advance of provision of the Services. We reserve the right to change pricing at any time although all pricing is guaranteed for the period of pre payment.
Payment is due each anniversary month, quarter or year following the date the Services were established until closure notice is given in accordance with
All payments must be in Australian Dollars.
Without prejudice to our other rights and remedies under this Agreement, if any sum payable is not paid on or before the due date, We shall be entitled but not obliged forthwith to suspend the provision of Services to You.
16. Termination And Refunds
We shall be entitled to suspend the Services and/or terminate this Agreement forthwith without notice to You If You:
+ fail to pay any sums due to Us as they fall due.
+ break any of these terms and conditions.
are a company and You go into liquidation or suffer the appointment of an administrator or administrative receiver or enter into a voluntary arrangement with Your creditors.
+ No refunds will be made under any circumstances for Services suspended
+ Without prejudice to Our other rights and remedies, We may at Our sole discretion suspend the provision of the whole or any part of the Services (temporarily or permanently) and will have no liability to provide the Services on the occurrence of any of the following events:
+ Notified or unscheduled upgrade or maintenance of Our IT systems.
+ Issue by any competent authority of an order which is binding on Us which affects the Services.
+ We deem at our sole discretion that the network or system resources used by You in relation to the Services warrants suspension to protect the services provided by Us to all or any of Our other customers.
+ We reserve the right to suspend the Services and/or terminate this Agreement at any time. In the event of this You will be entitled to a pro rata refund based upon the remaining period of prepayment.
+ You may cancel the Services at any time. To do so You must request cancellation of the Services in writing including Your server number and Your account username and password. We will cancel the Services within 2 working days of receipt of Your request.
+ During the first 7 days of Services, You are entitled to a refund of the basic Server rental fee should You decide to cancel the Services. No full refunds or pro rata refunds will be made after the first 7 days of service should You decide to cancel the Services.
+ Domain name registration fees, charges for additional data transfer and charges for optional extras added to Your account are not refundable under any circumstances.
+ You will not be entitled to a refund on this basis if You have previously held an account with Emocean Studios.
+ Where payment has been made by credit or debit card, any refund will only be issued to the same credit or debit card.
+ On termination of this Agreement or suspension of the Services We shall be entitled immediately to stop access to You Server and to remove all data located on the Server.
You shall indemnify Us and keep Us indemnified and hold Us harmless from and against any breach by You of these terms of business and any claim brought against Us by a third party resulting from the provision of Services by Us to You and Your use of the Services (including use without Your consent) including without limitation, all claims, actions, proceedings, losses, liabilities, damages, costs, expenses (including reasonable legal costs and expenses), howsoever suffered or incurred by Us in consequences of You breach or non-observance of any of the terms of this Agreement.
18. Limitation Of Liability
All conditions, terms, representations and warranties relating to the Services supplied under this Agreement, whether imposed by statute or operation of law or otherwise, that are not expressly stated in these terms and conditions including, without limitation, the implied warranty of satisfactory quality and fitness for a particular purpose are hereby excluded to the extent applicable under NSW law, subject always to sub clause;
+ Nothing in these terms and conditions shall exclude our liability for death or personal injury resulting from our negligence.
+ Our total aggregate liability to You for any claim in contract, tort, negligence or otherwise arising out of or in connection with the provision of the Services shall be limited to the charges paid by You in respect of the Services which are the subject of any such claim.
+ In any event no claim shall be brought unless You have notified Us of the claim within one month of it arising.
+ In no event shall We be liable to You for any loss of business, contracts, profits or anticipated savings or for any other indirect or consequential or economic loss whatsoever.
19. Force Majeure
We shall have no liability to You in respect of anything which, apart from this provision, may constitute a breach of this Agreement arising by reason of force majeure which means, circumstances beyond our reasonable control including acts of God, acts of any governmental or supra-national authority, war or national emergency, riots, civil commotion, fire, unauthorised use or access to the IT systems, explosion, flood, epidemic, strikes and other industrial disputes (in each case, whether or not relating to Our workforce), restraints or delays affecting shipping or carriers, inability or delay in obtaining supplies of adequate or suitable materials and currency restrictions.
Any notice to be given by either party to the other may be sent by either email, fax or recorded delivery to the address of the other party as appearing in this Agreement or ancillary application forms or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent or if sent by fax shall be deemed to be served on receipt of an error-free transmission report, or if sent by recorded delivery shall be deemed to be served two days following the date of posting.
Any forbearance or failure by Us to enforce a contractual provision to which You are subject shall not affect our right to require such performance at any subsequent time, nor shall the waiver or forbearance by Us of any breach of any provisions of the agreement herein be taken to be or held to be a waiver of the provision or provisions itself of themselves.
This Agreement shall be governed by and construed in accordance with NSW law and You hereby submit to the exclusive jurisdiction of the NSW courts.
Headings are included in this Agreement for convenience only and shall not affect the construction or interpretation of this Agreement.
24. Entire Agreement
These terms and conditions together with any documents expressly referred to in them, contain the entire Agreement between Us relating to the subject matter covered and supersede any previous Agreements, arrangements, undertakings or proposals, written or oral: between Us in relation to such matters. No oral explanation or oral information given by any party shall alter the interpretation of these terms and conditions. In agreeing to these terms and conditions, You confirm that You have not relied on any representation other than those expressly stated in these terms and conditions and You agree that You shall have no remedy in respect of any misrepresentation which has not been made expressly in this Agreement.