Product SLA Terms and Conditions

THIS SERVICE LEVEL AGREEMENT DEFINES THE SERVICE LEVELS PROVIDED TO YOU BY THE COMPANY (“sideEffekt Pty Ltd”)

 

“You” means you our client and your executors, administrators, successors and permitted assigns (and if more than one person or entity each of you jointly and severally).

 

1. Service Definition. sideEffekt will provide Hosted Application Services as defined by the proposal from sideEffekt (the “Services”).

 

1. Technical Support. sideEffekt will provide You through your authorized account contacts with technical support on setting up and configuring your account, access to the Services, and other issues related to the Services. Only your authorized account contacts may request information, changes or technical support pursuant to the proposal. sideEffekt uses commercially reasonable efforts to maintain a standard response time to technical support issues.

 

This response time will depend on the complexity of the inquiry and support request volume. The Technical Support Department assigns the highest priority to customer inquiries related to server unavailability. The estimated time to respond does not apply to inquiries that require extensive research and testing.

 

III. Billing Disputes

sideEffekt must receive notice of billing disputes within seven (7) days of the date your account was invoiced for the Services or You shall be deemed to have accepted such charges.

 

1. Control Panels and Server Management

 

1. Account Management Tools. sideEffekt will perform account management tasks such as adding new user accounts, disabling user accounts, setting up web site spaces and other basic set up tasks as part of the monthly fee. Any local work such as configuring PC’s will be charged at the standard rate.

 

1. Custom Configuration. Requests for modification to the standard configuration will be considered on a case-by-case basis. Approval of such modifications will be at sideEffekt’ssole discretion. sideEffekt does not guarantee any particular result from non-standard configurations nor can it be held liable in any way for Service performance changes or failures which result from non-standard configurations.

 

1. Additional Services. For the tasks that cannot be performed through the administrative control panel or for services that are not included in the plan or plans purchased by You, You may request sideEffekt perform professional services on a time and materials basis through the administrative control panel or Technical Support. The request shall include a detailed description of work and the authorized amount of time, in half hour increments, to perform the work. sideEffekt may evaluate and revise the request (including the estimated number of hours to perform the work) and reserves the right, in its sole discretion, to decline any request. The services shall be performed at sideEffekt’s standard published rates, provided that any emergency services that require commencement within 24 hours shall be charged at 1.5x sideEffekt’s standard published rate. sideEffekt will use commercially reasonable efforts to perform requested services. However, it does not guarantee any particular result from performance of services or make any representations or warranties regarding such services nor can it be held liable in any way (including for any credits) for Service performance changes or failures which result from performing tasks requested by You.

 

1. Maintenance

 

1. Scheduled Maintenance. To ensure optimal performance and security of the Services, sideEffekt will routinely perform maintenance on a regularly scheduled basis within its published maintenance windows. This may require specific Services to be suspended during the maintenance period. sideEffekt schedules maintenance windows according to its policies, which can be referred to in the administrative control panel. Service unavailability due to scheduled maintenance will be excluded from Your uptime calculations for availability. sideEffekt will use commercially reasonable efforts to notify You in advance of any scheduled maintenance that may adversely affect Your Services.

 

1. Emergency Maintenance. Under certain circumstances sideEffekt may need to perform emergency maintenance, such as security patch installation or hardware replacement. sideEffekt will not be able to provide You with advanced notice in case of emergency maintenance. Service unavailability due to emergency maintenance will be excluded from the uptime calculations.

 

1. Hardware Replacement. sideEffekt will use industry standard practices to determine whether server hardware is functioning properly and will replace non-functioning hardware with similarly functioning hardware. sideEffekt shall use commercially reasonable efforts to implement hardware replacement within four hours from the time the problem is identified. In the case where this time is exceeded, the excess downtime is counted against the Service Availability credit.

 

1. Service Availability.

 

1. Uptime. sideEffekt shall aim to provide 99% Service Availability, measured on a per calendar month basis. Service Availability is defined as the ability of a user on Your Exchange account to (a) access and retrieve information from his or her mailbox, and (b) send and receive messages via his or her mailbox using the Services, each on per mailbox basis, provided that Your account is active, in good standing and enabled. Unavailability caused by issues beyond sideEffekt’s reasonable control, including denial of service or similar attacks, mail bombs, DNS resolution, Domain Name expiration, Internet availability, SYN attacks, and other events or any other Force Majeure event will be excluded from Service Availability calculations.

 

1. Service Availability Monitoring. sideEffekt monitors its servers and the Services as a whole but does not monitor individual mailbox or mobile device availability. To verify Service Availability, sideEffekt uses a combination of methods to validate availability, including but not limited to Exchange HTTP access availability and internal mail flow monitoring between Edge and Mailbox servers. These checks are run on predetermined intervals with specific failure thresholds with respect to the service being provided. If two or more consecutive tests fail, the lack of Service Availability will be noted as the number of minutes between the first and the last failed tests. Any unavailability less than five minutes in duration will not be recorded. sideEffekt does not guarantee incoming and outgoing mail delivery time and thus it is not included in its calculations or considered an outage if mail flow is delayed. If a delay in mail flow is due to a complete Service, server, or network outage, Service Availability will be calculated related to those services only. sideEffekt will use commercially reasonable efforts to provide reasonable times for incoming and outgoing mail flow.

 

VII. Credit for Non-Compliance

 

1. Service Availability. If Service Availability for the first 30 day period (or any calendar month thereafter) is below 99%, sideEffekt will issue a credit to You according to the schedule below:

98.0% to 98.99% 3% of monthly fee credited

95.0% to 97.99% 5% of monthly fee credited

90.0% to 94.9% 10% of monthly fee credited

89.9% or below 25% of monthly fee credited

 

To receive a credit, Your account must

(i) be in good standing with sideEffekt, and

(ii) send an email or written credit request to the Billing Department in the month immediately following the month for which You are seeking a credit. Credit requests must include Your account username (invoice number) and the dates and specific times that the Service availability was below the prescribed levels. The Billing Department will compare information provided by You to the monitoring data sideEffekt maintains. A credit is issued only if sideEffekt confirms from the monitoring data warranting the credit.

*sideEffekt will calculate the credit based on the type of particular Service for which Service Availability was below the prescribed level, the fees for the particular Service and the percentage of overall individual mailboxes or other units adversely affected. For example, if the credit pertains to the Service Availability of two mailboxes of 200 mailboxes, the credit would be calculated as 1% x the monthly fee for the mailboxes x the % of monthly fee credited.

 

1. Total Credit Limits; Sole and Exclusive Remedy. The total credit to You for any account may not exceed 50% of the monthly fees charged to that account during the month for which the credit is to be issued, unless the amount to be credited is less than $1.00 in which case the credit amount will be $1.00. Only one credit and credit level is available in any given month. Notwithstanding anything set forth in the Agreement or this Service Level Agreement, the credit described in this Section VII shall be Your sole and exclusive remedy in connection with any outages, unavailability or breach by sideEffekt of the Agreement or this Service Level Agreement.

 

VIII. Server Software

 

1. Software Configuration. sideEffekt will exercise industry standard practices to ensure that all preinstalled software is correctly configured. In case there is more than one way to configure the software, sideEffekt will choose the configuration it determines, in its sole discretion, to be the most appropriate.

 

1. Patches, Updates and Service Packs. sideEffekt will use commercially reasonable efforts to promptly install security patches, updates, and service packs. Software updates may change system behaviour and functionality and as such may negatively affect the Services purchased by You. sideEffekt cannot foresee nor can it be responsible for service disruption or changes in functionality or performance due to implementation of software patches and upgrades. If such disruption or changes occur, sideEffekt will use commercially reasonable efforts to remedy the situation as soon as possible after being notified of the problem by You.

 

1. Required Upgrades. sideEffekt may be required by its software licensors to upgrade to the latest versions of the software. Licensor-required upgrades will be performed free of charge and upon reasonable notice to You. Software upgrades on sideEffekt’s servers will occur at sideEffekt’s discretion upon reasonable notice to You.

 

1. Incompatibilities. sideEffekt is not responsible for problems that may arise from incompatibilities between new versions of the software and Your content, regardless of whether it was a requested, required or a discretionary upgrade. Nevertheless, sideEffekt will use commercially reasonable efforts to assist You in finding a solution.

 

1. Third Party Use. You are supplied software by sideEffekt and use of this software by any third party is strictly prohibited.

 

1. Storage Capacity; Data Transfer; Server Resources

 

Each account is allotted storage capacity and data transfer amounts on sideEffekt’s servers. sideEffekt configures servers, Services and storage in such a way that You are separated from other customers ensuring confidentiality.

 

1. Hosted Exchange Limitations

 

1. Mailbox and Public Folder Storage Capacity. Each mailbox and public folder has their own storage limits. When the storage limit is reached on an individual mailbox or folder, the Exchange servers will stop sending and/or receiving messages or data leading to possible Service unavailability or data loss. To prevent this occurring, you can archive your email or permanently delete items not deemed to be necessary. sideEffekt is not responsible for unavailability or data losses caused by any mailbox or folder exceeding its storage limit. Should you require extra storage space for your mailbox sideEffekt can increase this for you.

 

1. Log Files. sideEffekt adheres to a daily log maintenance and clean-up schedule in order to optimize disc space for our Services.

 

1. Address Lists. sideEffekt provides one Global Address List and one Offline Address List for Your account. The Global Address List and Offline Address List are available to all users within Your account. The Global Address List contains all mailboxes, contacts and distribution lists for Your account, unless You explicitly choose to hide any of these objects from Your Global Address List. Your Offline Address List is a replica of Global Address List. Your Offline Address List is used when You are working offline.

 

1. Anti-Virus Checking. sideEffekt uses third-party, anti-virus software. This software is configured to check all inbound messages. The virus-detecting heuristics of the software are regularly updated. Messages sent between mailboxes on the server are not scanned. If a virus is detected or if a message attachment cannot be scanned (for example, when it is encrypted or corrupted), the message and its attachments may be permanently deleted. For Secure Mail customers, encrypted messages will not be deleted. Messages with attachments larger than 5MB are not scanned. sideEffekt advises You to use up-to-date, local anti-virus software. sideEffekt is not responsible for any damages due to viruses, including infection of end-user devices or lost or corrupted messages.

 

1. Anti-Spam Message Filter. sideEffekt installs third-party, anti-SPAM software on its servers. This software is configured to check all incoming messages according to the SPAM-detecting heuristics provided with the software. As a part of the anti-SPAM software service, the SPAM-detecting heuristics are regularly updated. sideEffekt is not responsible for any damages due to anti-SPAM filtering, including lost or corrupted messages.

 

1. Wireless Exchange Server Access. As an add-on service, sideEffekt provides wireless access to the Exchange server through the use of third-party software. Limited customer control of wireless Exchange server access and configuration is available via the administrative control panel. Success in configuration and set up of wireless Exchange server access is highly dependent upon the device and the wireless access provider chosen by You. Therefore sideEffekt can only assure that it will make commercially reasonable efforts to assist You in configuring and supporting Your wireless Exchange server access for the portions of the access not under sideEffekt’s control.

 

1. Privacy; Confidentiality

 

1. Privacy. sideEffekt is committed to protect Your privacy and the confidentiality of Your data to the maximum extent permitted by law and/or accepted by industry standards. We will not access, view or review any of Your private data accessible to us (including but not limited to that contained in Your web server files, email messages, calendars, notes, contacts, memos or public folders, data or any other hosted Application) unless:

 

1. either You or a government agency or regulatory body specifically requests us to do so;

 

2. when performing routine backup and restore operations, virus scan and virus removal, spam and content filtering; or

 

3. if such access, view or review is urgent and necessary to protect personal safety, perform troubleshooting, restore systems operation in the event of a server failure, remove illegal or offending (e.g. pornographic, violating our policies, etc.) content or prevent a server failure, Service outage or other damage.

 

Under no other circumstances will sideEffekt access Your private data or share Your confidential data with any third parties without Your prior permission, except to the extent required by law or governmental or regulatory body or necessary to render our services to You.

 

XII. Data

 

1. Data Integrity and Server Backup. sideEffekt will utilise various technologies to ensure the integrity of Your data on sideEffekt’s servers and to prevent data loss in the event of disk failure. sideEffekt performs routine server backups for disaster recovery purposes only. Server backup scope and scheduling is at sideEffekt’s sole discretion. Additional service charges may apply if sideEffekt recovers lost data that sideEffekt is not required to restore according to Your service plan.

 

XIII. Data Retention

 

While Your account is active, sideEffekt shall retain Your data, including but not limited to the content of private mailboxes and public folders within the database information store, active directory, log files and backup copies. sideEffekt shall not be responsible for retaining any of Your data after account termination. All data is deleted from the servers after Your account is terminated and from backups during scheduled backup rotation. sideEffekt shall not restore, provide on any storage media or send out any data pertaining to terminated accounts, unless specifically noted in a customized service agreement.

 

XIV. Managed Devices

 

Should your contract include supply of hardware including but not limited to servers, PC’s, routers, switches or any other IT equipment on a rental basis at your site YOU agree to: Protect such equipment from malicious damage

 

Insure the equipment as part of your business Insurance. sideEffekt will provide a valuation of all equipment supplied to allow You to gain correct insurance advice. The devices must be insured for:

 

Accidental damage Fire Theft Loss

 

Allow inspection of this equipment at any time during the contract – sideEffekt shall give twenty-four (24) hours notice prior to any inspection being requested. Request will be in writing

Allow auditing of any Microsoft software to be performed by Microsoft at their request. Microsoft will provide twenty-four (24) hours notice in writing to request performance of such audit

 

Return all equipment including any associated items such as cables, manuals, disks at the end of the term

Allow sideEffekt access to your premises to remove such items in the event of non payment and termination of contract

 

The goods will remain the property of sideEffekt whilst under the rental agreement. You will not sell, allow third parties to borrow or in any way claim to have title to the goods. In the event of your business closure it will be disclosed to Administrators or Receivers that this equipment is the property of sideEffekt.

 

sideEffekt will ensure these devices remain in good working order via maintenance, updates and any other work required. Should an item become defective not by malicious damage, sideEffekt will replace the item via manufacturers warranty

 

1. Customer Responsibilities.

 

To access sideEffekt services You must provide at the very minimum:

 

• an Internet connection with sufficient bandwidth and quality to allow trouble-free browsing, data uploading and downloading and that does not constrain Microsoft® Exchange functionality, and agree that You are responsible for any third party fees payable to your ISP for the internet connection and associated data usage;

 

• Windows XP or later
• a fully functional Internet browser

 

Advise sideEffekt of the required data for inclusion/transfer to the hosted system XVI. Acceptable Usage and No-Spam Policies

 

You must not use sideEffekt systems to promote spam, store illicit or illegal material. Any instances found will result in instant termination of services.

 

XVII. Fair Usage of Systems

 

sideEffekt allows fair usage of systems including the amount of data, internet traffic and resource usage. Should this fair usage be exceeded you will be contacted and advised of the issue. Alternative solutions will be offered to reduce this usage where possible. Should alternative solutions not be possible sideEffekt will quote you the excess amount that will be charged.

 

XVIII Account Information.

 

Invoices for hosted services will issue on the 1st of each month. These invoices will be for the usage of the previous month. Invoices are due 7 days from date of issue. Should invoices remain outstanding for 30 days interest charges will apply to that invoice. Should invoices remain outstanding for 45 services, suspension of services will occur. sideEffekt will send reminders to the account contact at regular intervals throughout this period with an explanation of the consequences and the due dates for same. Should accounts remain outstanding for a further 45 days post suspension, all services will be deleted including data.

 

You will advise the need for any changes to your plan, including cancellation, deletion of a user, to us in writing. Failure to advise of service cancellation will result in invoices continuing to issue and be due until such time as notice in writing is received

 

XIX Contract and termination

 

Contract

 

The initial contract will be deemed to be twelve months from the acceptance of the proposal. Longer timeframes such as 24 months can be requested by You.

 

At the expiration date of the contract, this contract will automatically renew for a further twelve months unless otherwise advised in writing at least 60 days prior to expiration date.

 

Should the contract be terminated by You, sideEffekt will assist in the provision of all data to You for use by the new provider only if your account is in good standing.

Should fees remain outstanding data will be provided after the account is paid in full.

 

Termination

 

Either party can terminate this contract via 60 days written notice.

 

sideEffekt will terminate the contract should accounts remain outstanding for longer than 90 days as outlined in Section XIII – Account Information or illegal or illicit activities are carried out on its systems as outlined in Section XV – Acceptable Usage.

 

XX Exclusions, Liabilities, Warranty and General Information

 

Exclusions We do not warrant that our servers will be available at all times. Our target availability is 99%.

 

We do not warrant that our servers are free from unauthorized physical or remote access.

We do not warrant that data stored on our servers is secure against all possible forms of intrusion or abuse.

 

We do not warrant that data stored on our servers is secure against loss or corruption under all circumstances.

 

We do not warrant that our software will operate correctly on all computer systems.

 

We do not scan your uploaded data for viruses or other threats.

 

We are not liable for delays, interruptions, computer viruses or communication line failures.

 

Warranty

 

Exclusion of Warranty

 

sideEffekt and its suppliers make, and you receive, no warranties, conditions or representations, express or implied, statutory or otherwise, about the Services and without limitation the implied terms of merchantability and fitness for purpose are excluded. sideEffekt does not warrant that the operation of the Software will be error free or uninterrupted. It is your responsibility to ensure that the service is suitable for your needs and the entire risk as to the performance and results of the Service is assumed by you.

 

You agree that to the extent permitted by law, our liability is limited to the resupply of services you have ordered and paid for in full or the sum of $1.00.

 

You agree to indemnify us (our directors, employees and officers) against any cost incurred or damage or loss suffered as a result of any breach of any obligation you owe us.

 

Consequential Loss

 

sideEffekt is under no liability to you in respect of consequential loss suffered or incurred by you which may arise directly or indirectly in respect of services supplied under these conditions or in respect of a failure or omission on part of sideEffekt to comply with its obligations under these conditions.

 

Force Majeure

 

Our obligations under this agreement are suspended during the period and to the extent that we are prevented or hindered from complying by causes or circumstances:

 

(a) beyond our reasonable control;

(b) which we are by the exercise of reasonable diligence, unable to prevent, including:

(i) act of God;

(ii) strike, lock-out or other labour difficulty outside our reasonable control;

(iii) act of public enemy, war (whether declared or undeclared), blockade, revolution, riot, insurrection, malicious damage, civil commotion;

(iv) lightning, landslide, cyclone, storm, drought, flood, fire, earthquake, explosion, tidal wave, epidemic;

(v) order of any court or authority, restraint, restriction, requirements, prevention, frustration or hindrance by or of any person, government or competent authority;

(vi) embargo, unavailability or shortage of essential equipment, chemicals or other materials, goods, labour or services, lack of transportation or communication, breakage of facilities or machinery, electricity supply failure that extends beyond two consecutive days; and

(vii) any shutdown, interruption to or corruption of the Internet outside our reasonable control. Implied Terms

 

sideEffekt gives no warranties to you, expressed or implied with respect to the Service provided to you under this Agreement, and all warranties are excluded

 

General:

 

These Terms and Conditions shall be governed by the laws in the State of Queensland, Australia and the parties agree to submit to the non-exclusive jurisdiction of the courts in that State.

 

Dollars are Australian dollars.

 

If any provision or part of a provision of these Terms and Conditions is invalid or otherwise unenforceable it may be severed with the fullest meaning possible to be given to the remainder.

 

We may assign our rights and obligations under our agreement with you by notice in writing to you.

 

Notices may be given by email, fax, mail or delivery. The addresses for the client shall be taken to be those advised to us at the point of subscription or as notified to us in writing (specifically requesting that our records be updated with the changed details).

 

Non-enforcement or any right or remedy does not amount to a waiver or prevent us from insisting on strict performance.