Terms of Service

Spirit Communications Pty. Ltd. trading as Oz Colocation ("Oz Colocation") agrees to provide use of our services ("Service") to the Subscriber ("Customer") subject to these Terms of Service ("ToS") outlined below and our Acceptable Use Policy ("AUP").
Use of any of the services provided by Oz Colocation constitutes acceptance and agreement to the Oz Colocation Acceptable Use Policy as well as the Oz Colocation ToS (Terms of Service) by the Customer.

We occasionally may have promotions and make special offers available for limited time duration on a particular Service we offer, all promotions are offered subject to this Terms of Service agreement and only differ with regards to the the promotional or special offer Service price unless otherwise stated.

1. LAWS:
The AUP specifically prohibits the use of our service for illegal activities. Therefore, Customer agrees that Oz Colocation may disclose any and all Customer information including assigned IP numbers, account history, account use, etc. to any law enforcement agent who makes a verifiable written request without further consent or notification to the Customer. In addition Oz Colocation shall have the right to terminate all service set forth in this Agreement.

These ToS shall be governed by and construed in accordance with the laws of the state of Queensland. Customer and Oz Colocation agree to submit to the exclusive jurisdiction of the courts of the state of Queensland.

If any provision(s) of these Terms and Conditions is held by a court of competent jurisdiction to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect.
Oz Colocation' failure to exercise or enforce any rights or provisions of these ToS shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Oz Colocation in writing.

Customer and Oz Colocation agree all disputes against Oz Colocation by Customer must first go to non-binding mediation, and attempt to resolve the dispute in good faith, in the venue and jurisdiction of Oz Colocation choice. Failure of Customer to attempt a good faith resolution in non-binding mediation shall prohibit Customer from proceeding in a civil court action, any cause of action arising out of or related to this Service which cannot be resolved by mediation must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred and you and Oz Colocation forever waive any such cause of action.

2. SERVICE RATES:
Customer acknowledges that the nature of the service furnished and the initial rates and charges have been communicated to Customer. Customer is aware that Oz Colocation may prospectively change the specified rates and charges periodically as necessary. Any promotional offers are contingent upon Oz Colocation achieving and maintaining its cost of service goals including but not limited to rates charged to Oz Colocation by its suppliers.

3. SERVICE PAYMENT:
Establishment of Service is dependent upon receipt by Oz Colocation of payment of stated charges. Subsequent payments are due on the anniversary date of the month for that month's service. All accounts and services provided by Oz Colocation are subject to the current GST tax rate as imposed by the Australian Federal Government which is currently 10%.
The above applies to all accounts and services provided by Oz Colocation.

4. FEE PAYMENTS:
Credit card payments that are declined for any reason may be subject to a small administrative payment declination charge. Service will be interrupted on accounts that reach 14 days past due. Service interrupted for non-payment is subject to a reconnection charge, any relevant reconnection charges will be detailed in Customer's disconnection notice. Accounts not paid by due date may be subject to a late payment fee. Accounts that are not collectable by Oz Colocation may be turned over to an outside collection agency for collection. If your account is turned over for collection, you agree to pay Oz Colocation a "Processing and Collection" Fee of not less than $100 nor more than $300. If you desire to cancel your account, please follow the proper procedure to do this as outlined in this ToS.

5. DISPUTES AND REFUNDS:
All valid payments to Oz Colocation are Non-Refundable. This includes the one time initial setup fee and subsequent charges regardless of usage. All overcharges or billing disputes must be reported within 60 days of the time the disputed charge occurred. If you dispute a charge to your credit card issuer ("Chargeback") that, in Oz Colocation' sole discretion is a valid charge under the provisions of the ToS and / or AUP, you agree to pay Oz Colocation an "Administrative Fee" of not less than $50 AUD and not more than $150 AUD.

6. PAYMENT FAILURE:
Oz Colocation may temporarily deny Service or terminate this Agreement upon the failure of Customer to pay charges that are due. Such termination or denial will not relieve Customer of their responsibility for the payment of all accrued charges, plus reasonable interest and any collection fees.

7. CANCELLATION:
Requests for cancelling accounts must be made in writing on company letterhead or comparable identifiable method with at least 30 days notice but not more than 60 days prior written notice and sent to:

Oz Colocation
ATTN : Cancellations
GPO Box 17
Brisbane, Q. 4001

Or alternatively by faxing the cancellation request on (07) 3123 4919

You must have all account information to cancel.

8. SERVICE INTERRUPTION:
Customer acknowledges that the service provided is of such a nature that service can be interrupted for many reasons other than the negligence of Oz Colocation and that damages resulting from any interruption of service are difficult to ascertain. Therefore, Client agrees that Oz Colocation shall not be liable for any damages arising from such causes beyond the direct and exclusive control of Oz Colocation. Subscriber further acknowledges that Oz Colocation' liability for its own negligence may not in any event exceed an amount equivalent to charges payable by subscriber for services during the period damages occurred. In no event shall Oz Colocation be liable for any special or consequential damages, loss or injury.

9. SPAM AND UCE (Unsolicited Commercial Email):
Oz Colocation takes an absolute zero tolerance approach to the sending of Unsolicited Commercial Email (UCE) or SPAM over our network. Very simply this means that Customers of Oz Colocation may not use or permit others to use our network to transact in UCE.
Customers of Oz Colocation may not host, or permit hosting of, sites or information that is advertised by UCE from other networks. Violations of this policy carry severe penalties, including termination of service.

PLEASE, DO NOT SPAM from your account.

(i) Violation of Oz Colocation' SPAM policy will result in severe penalties. Upon notification of an alleged violation of our SPAM policy, Oz Colocation will initiate an immediate investigation (within 48 hours of notification). During the investigation, Oz Colocation may restrict customer access to the
network to prevent further violations. If a customer is found to be in violation of our SPAM policy, Oz Colocation may, at its sole discretion, restrict, suspend or terminate customer's account. Further, Oz Colocation reserves the right to pursue civil remedies for any costs associated with the investigation of a substantiated policy violation. Oz Colocation will notify law enforcement officials if the violation is
believed to be a criminal offence.
(ii) First violations of this policy will result in an "Administrative Fee" of $400 AUD and your account will be reviewed for possible immediate termination. A second violation will result in an "Administrative Fee" of $800 AUD and immediate termination of your account. Users who violate this policy agree that in addition to these "Administrative" penalties, they will pay "Research Fees" not to exceed $300 AUD per hour that Oz Colocation personnel must spend to investigate the matter.
(iii) As our Customers are ultimately responsible for the actions of their clients over the Oz Colocation network, it is advisable that Customers develop a similar, or stricter, policy for their clients.

IMPORTANT NOTICE:
Anyone hosting websites or services on their server that supports spammers or cause any of our IP space to be listed in any of the various Spam Databases may have their server immediately removed from our network. The server will not be reconnected until such time that you agree to remove ANY and ALL traces of the offending material immediately upon reconnection and agree to allow us access to the server to confirm that all material has been COMPLETELY removed. Severe violations may result in immediate and permanent removal of the server from our network without notice to the customer. Any server guilty of a second further violation will be immediately and permanently removed from our network without notice.

10. NETWORK:
(i) IP Address Ownership: If Oz Colocation assigns Customer an Internet Protocol address for Customer's use, the right to use that Internet Protocol address shall belong only to Oz Colocation, and Customer shall have no right to use that Internet Protocol address except as permitted by Oz Colocation in its sole discretion in connection with the Service, during the term of this Agreement. Oz Colocation shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to Customer by Oz Colocation, and Oz Colocation reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion.
Our allocation of IP addresses is limited by APNIC's policies. These policies state that use of IP addresses for IP based virtual hosts will not be accepted as justification for new IP addresses. What this means to you is that you MUST use name-based hosting wherever possible. We will periodically review IP address usage, and if we find that clients are using IP addresses where name-based hosting could be used, we will revoke authorization to use those IP addresses that could be used with name-based hosting.
(ii) Bandwidth and Disk Usage: Customer agrees that bandwidth and disk usage shall not exceed the number of megabytes per month for the Services ordered by Customer on the Order Form (the "Agreed Usage"). Oz Colocation will monitor Customer's bandwidth and disk usage. In relation to Bandwidth monitoring a Megabyte is considered 1000 Kilobytes and a Gigabyte is 1000 Megabytes. Oz Colocation shall have the right to take corrective action if Customer's bandwidth or disk usage exceeds the Agreed Usage. Such corrective action may include the assessment of additional charges, disconnection or discontinuance of any and all Service, or termination of this Agreement, which actions may be taken is in Oz Colocation' sole and absolute discretion. If Oz Colocation takes any corrective action under this section, Customer shall not be entitled to a refund of any fees paid in advance prior to such action. In the event
that a customer exceeds the included allocation, Oz Colocation may, at its sole discretion, collect a deposit, in an amount determined by Oz Colocation, against customer's credit card on file with Oz Colocation.
(iii) System and Network Security: Users are prohibited from violating or attempting to violate the security of the Oz Colocation Network. Violations of system or network security may result in civil or criminal liability. Oz Colocation will investigate occurrences, which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Users who are involved in such violations.

These violations include, without limitation:
a. Accessing data not intended for such user or logging into a server or account, which such user is not authorized to access.
b. Attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization.
c. Attempting to interfere with Service to any user, host or network, including, without limitation, via means of overloading, "flooding", "mail bombing" or "crashing".
d. Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.
e. Taking any action in order to obtain services to which such user is not entitled.

11. VIOLATION NOTIFICATION:
(i) Oz Colocation is under no duty to look at each Customer's or user's activities to determine if a violation of the AUP has occurred, nor do we assume any responsibility through our AUP to monitor or police Internet-related activities.
(ii) First violation: Any User, which Oz Colocation determines to have violated any element of this Acceptable Use Policy, shall receive notification, warning them of the violation. The Service may be subject at Oz Colocation' discretion to a temporary suspension pending a User's agreement in writing, to refrain from any further violations.
(iii) Second Violation: Users that Oz Colocation determines to have committed a second violation of any element of this Acceptable Use Policy shall be subject to immediate suspension or termination of service without further notice.
(iv) We reserve the right, to drop the section of IP space involved in Spam or Denial-of-Service complaints if it is clear that the offending activity is causing great harm to parties on the Internet.
In particular, if open relays are on your network or a customer's network, or if denial of service attacks are originating from your network. In certain rare cases, we may have to do this before attempting to contact you. If we do this, we will contact you as soon as is feasible.

12. SERVICE SUSPENSION OR CANCELLATION:
Oz Colocation reserves the right to suspend network access to any Customer if in the judgment of the Oz Colocation network administrators the Customer's server is the source or target of the violation of any of the other terms of the AUP or for any other reason which Oz Colocation chooses. If inappropriate activity is detected, all accounts of the Customer in question will be deactivated until an investigation is complete. Prior notification to the Customer is not assured.
In extreme cases, law enforcement will be contacted regarding the activity. The Customer will not be credited for the time the Customer's machines were suspended.

13. AMENDMENTS:
Oz Colocation reserves the right to amend its policies at any time. All Sub-Networks, resellers and managed servers of Oz Colocation must adhere to the ToS and AUP. Failure to follow any term or condition will be grounds for immediate Cancellation. You will be held responsible for the actions of your clients in the matter described on these Terms of Service. Therefore, it is in your best interest to implement a similar or stricter Terms and conditions or otherwise called Acceptable Terms of use policy.

14. INDEMNIFICATION:
Oz Colocation wishes to emphasize that in agreeing to the Oz Colocation AUP and ToS, Customer indemnifies Oz Colocation for any violation of the Acceptable Use Policy (AUP) and Terms of Service (ToS) that results in loss to Oz Colocation or the bringing of any claim against Oz Colocation by any third-party. This means that if Oz Colocation is sued because of a Customer's or a client of a Customer's activity, the Customer will pay any damages awarded against Oz Colocation, plus all costs and legal fees.

15. MISCELLANEOUS:
You must provide us with, and keep current, good contact information for you.
E-mail, fax, and telephone contacts are used, in that order of preference.
(i) A waiver by Oz Colocation of any breach of any provision of this Agreement by Customer shall not operate as or be construed as a continuing or subsequent waiver thereof or as a waiver of any breach of any other provision thereof.
(ii) Customer shall not transfer or assign this Agreement without the prior written consent of Oz Colocation. Oz Colocation may assign Agreement at anytime without consent from or notice to Customer. Oz Colocation reserves right to cancel Customer's rights under this contract at anytime without further obligation.
(iii) Oz Colocation takes no responsibility for any material input by others and not posted to the Oz Colocation Network by Oz Colocation. Oz Colocation is not responsible for the content of any other websites linked to the Oz Colocation Network; links are provided as Internet navigation tools only. Oz Colocation disclaims any responsibility for any such inappropriate use and any liability to any person or party for any other person or party's violation of this policy.
(iv) Oz Colocation is not responsible for any damages your business may suffer. Oz Colocation does not make implied or written warranties for any of our services. Oz Colocation denies any warranty or merchantability for a specific purpose. This includes loss of data resulting from delays, non-deliveries, wrong delivery, and any and all service interruptions caused by Oz Colocation.

16. CHANGE:
We may vary these terms, the amount we charge for any service, or the terms of the operation of any services provided by Oz Colocation at any time by general notice displayed publicly on our website on the internet at www.ozcolocation.com, the changes become effective upon publication of the notice. Where we vary the prices for Service, we will give at least 14 days notice of the change by the same means, and the new prices will apply at the end of that period.

If you use the Service after that publication, your use will constitute an acceptance of the amended terms. These terms constitute the agreement in its entirety and supersede prior agreements. Customer understands that change to the AUP or Terms of Service or any other relevant policy by Oz Colocation shall not be grounds for early contract termination or non-payment.

17. CONTENT RESPONSIBILITY:
Customer is solely responsible for the content stored on and served by their server.