STW Backups Terms and Conditions
"STW", "Stuff That Works", "Our", “We” and “Us” means STW (ABN 61 109 606 836).
The “Customer”, “You”, “There” and “Your” means the end user of our services
“Parties” means “STW” and the “Customer”.
“Service” means the backup service(s) supplied by STW to the end user.
“Written Notice” means communication either via Email or Postal Mail to the Contact Name(s) supplied to STW.
By accepting the supply of backup services from STW, you accept these terms and conditions. You acknowledge that the terms and conditions, including relevant charges; may be varied from time to time by STW giving you not less than 14 days written notice.
- The Service
- 2.1 STW may use third party suppliers and contractors for the supply of backup services under this agreement.
- Use of the Service
- 3.1 The customer must provide the items (if any) necessary to run the backups.
- 3.2 CPE (Customer Premises Equipment) is defined as equipment located at the Customer's Premises. Purchases, Installation and configuration of equipment and or software, not provided by STW and used for connecting to STW services are the responsibility of the customer.
- 3.3 Equipment Purchased from STW will be covered by an equipment specific warranty. The connection, configuration and installation of any hardware and software purchased from us remain the sole responsibility of the customer. Where possible we will assist in configuring and supporting the hardware/software supplied by STW with your existing equipment and software.
- 3.4 Equipment Supplied by STW which forms part of the service provided by STW, remains the property of STW or its third party supplier and should not be removed from the premises where the service is located at unless advised by STW. STW will configure and provide support for the equipment, up to the point of interconnection with the customers equipment. Should the customer cease the supplied service with STW, the equipment must be returned to STW, otherwise the Customer will be charged the full price of the equipment.
- 3.5 You agree not to use, or allow another person to use, the Service:
- to infringe another person's rights;
- in a manner that may expose STW to liability;
- in any way that may damage any property or injure or kill any person;
- to violate or infringe any duty or obligation owed to any person under law; and
- to commit, or in relation to the commission of, an offence under any law of the Commonwealth or any of the States or Territories.
- You must not supply this service for re-sale, unless otherwise agreed with STW.
- Charges & Billing
- 4.1 The Service is subject to a contract term ("Minimum Service Period"). If no contract term (“Minimum Service Period”) is indicated, the Minimum Service Period will be deemed as one calendar month. Unless otherwise agreed, all services shall be automatically renewed based on the billing period of the particular service after the expiry of the Minimum Service Period.
- 4.2 You will remain responsible for all installation, configuration, equipment (if supplied), service fees, usage, calls and excess charges incurred by using the service.
- 4.3 STW will bill you on a monthly basis unless otherwise agreed. Invoices must be paid within 14 days from the date of issue. Payment must be made in full by cheque, credit card, direct debit or other methods permitted by STW.
- 4.4 STW may charge a late payment fee on any overdue amounts. In addition, STW may impose an administrative fee to cover its reasonable expenses and costs incurred in enforcing any failure or delay in your payment.
- 4.5 An Invoice may include charges for previous billing periods due to delays in receiving billing information from our suppliers.
- 4.6 Payments will be first applied to any outstanding balances first before any current balances from the most recent invoice.
- 4.7 STW may, in its discretion, notify you that the acceptance of your Application and on going use of the service(s) supplied is conditional on you paying a deposit (the amount of which will be specified) in advance. The amount is payable before any services will be delivered. The parties agree that STW will apply the amount of the deposit at its absolute discretion, in payment of invoices issued by it, until such time as the amount of the deposit is exhausted. Once the deposit is exhausted, a further deposit may be required. Alternatively STW may apply a Credit Limit on your Account, which will be determined by STW from time to time based on your payment history.
Personal information that STW collects from you is collected for the primary purposes of enabling STW to supply services to you and for the administration of your account with STW; including creditworthiness assessment, billing and debt collection in accordance with the Privacy Act 1988 and its amendments. You agree that STW may release your personal information and other information provided to us by you to another carriage service provider if that release is required to enable STW to supply the services to you and to a credit reference agency in connection with STW obtaining from or supplying to that agency information about your creditworthiness.
- Period Of Agreement
This Agreement shall commence on the date your application is accepted by STW and shall continue until terminated in accordance with these terms and conditions. The Minimum Service Period shall commence on the date the Service is activated. If during the Minimum Service Period this Agreement is terminated by you or is terminated by STW under clause 7.2, you will pay to STW an Early Termination Charge calculated by multiplying the total recurring monthly service fees by the number of months between the date of termination and the expiry of the Minimum Service Period.
- Service Suspension and Termination
- 7.1 STW may terminate this agreement by providing you not less than 30 days written notice. You may terminate this agreement at any time by giving us at least 14 Days notice but, if the termination is during the Minimum Service Period, you will be liable for the Early Termination Charges.
- 7.2 STW may by written notice immediately suspend supply of the Service to you and/or terminate this agreement if:
- You fail to pay by the due date any charges payable for the Service and fail to rectify that default within 7 days of receiving from STW a written notice requiring you to do so;
- You are declared bankrupt or deceased or if a receiver, liquidator, provisional liquidator or administrator is appointed to your undertakings or assets and that appointment continues for a period of 5 Business Days, or if you enter into any arrangement with any of your creditors or any class of such creditors or if you cease to carry on business;
- STW has reasonable evidence that you have breached clause 3 of this Agreement.
- 8.1 STW does not warrant that the Backup Service will be uninterrupted or fault free.
- 8.2 STW excludes any liability to you for any indirect or consequential loss, costs, or damage (including, but not limited to, loss of profits, loss of revenue, and expected loss) arising out of this Agreement, including, but not limited to, STW's supply of (or failure to supply) the Service, whether arising as a result of any act, omission or negligence of STW or otherwise.
- 8.3 To the maximum extent permitted by law, STW limits its liability to you for any liability which may arise out of or in relation to this Agreement, (whether based in contract, tort, including negligence, or statute) to an amount in aggregate for all claims which is the amounts paid by the Customer for the Services under this Agreement.
- 8.4 You indemnify us against any loss or damage we may suffer as a result of your attempted use or any use of the Service.
- Service availability and quality
- 9.1 General acknowledgement
The parties acknowledge that it is technically impracticable for STW to guarantee that the Service will be available in each area, that capacity will be available at all times, or that the Service will be free from faults or errors. STW undertakes to provide the Service using reasonable care and skill.
- 9.2 Maintenance
- Without limiting clause 9.1, you agree that STW may from time to time, conduct maintenance on the infrastructure through which the Backup Service is provided. STW will try to conduct such maintenance outside Business Hours, but you acknowledge that it may not always be possible for STW to do so.
- 9.3 Acknowledgement
You confirm that STW does not warrant, and has not represented, that the Service is or will be free of errors, defects or interruptions, or that it will be available at all times.
- 9.1 General acknowledgement
- 10.1 Headings are for ease of reference only and not as an aid to interpretation.
- 10.2 The Customer may not transfer legal responsibility for the Service without STW's written consent.
- 10.3 The Customer acknowledges that where STW requires the consent of the Customer to undertake certain actions, then provided STW acts in good faith, STW may rely upon the authority of any employee of the Customer who warrants that he or she is authorised to provide that consent on behalf of the Customer.
- 10.4 STW may set off or apply any credit balance in any of your accounts with STW or any amounts owed by STW to you against any amount due and payable by you to STW.
- 10.5 Failure by either party to exercise or enforce any right conferred by this Agreement will not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement of the right or of any other right on any later occasion.
- 10.6 If part or all of any clause of this Agreement is illegal, invalid or unenforceable it will be read down to the extent necessary to ensure that it is not illegal, invalid or unenforceable or if this is not possible, the affected clause or part will be severed from this Agreement, the remaining provisions of this Agreement will continue to have full force and effect and the parties will attempt to replace that severed part with a legally acceptable alternative clause that meets the parties' original intention in relation to the subject matter severed.
- 10.7 The Agreement constitutes the entire agreement between the parties as to its subject matter and supersedes any prior understanding or agreement between the parties (including any Memorandum of Understanding) and any prior condition, warranty, indemnity or representation imposed, given or made by STW.
- 10.8 The Agreement is governed by the laws applicable in the State of Victoria in the Commonwealth of Australia and each party irrevocably submits to the non-exclusive jurisdiction of the courts of that State.