Terms of Service.

In these Terms of Service an “account holder” refers to the customer of Fabnet Group Pty Ltd and the “services” refers to the services or products supplied to the account holder including (but not limited to) access to and use of a server or servers. Fabnet Group Pty Ltd reserves the right to suspend or cancel an account holder's access to any or all services provided by Fabnet Group Pty Ltd when Fabnet Group Pty Ltd decides (at its absolute discretion) that the account has been in contravention of the Acceptable Use Policy, inappropriately used, involved in abuse of staff, or for any other reason as decided by Fabnet Group Pty Ltd. These terms and conditions apply to the initial and all subsequent orders howsoever placed by the account holder or its authorised representatives. Any pricing mentioned is exclusive of GST unless otherwise stated.

1. Accepting the Terms of Service

In order to use the services, you must first agree to the Terms of Service. You may not use the services if you do not accept the Terms of Service. You can accept the Terms of Service by: (1) clicking to agree to the Terms of Service on an order form; or (2) by actually using the services. In this case, you understand and agree that Fabnet Group Pty Ltd will treat your use of the services as acceptance of the Terms of Service from that point onwards. You may not use the services and may not accept the Terms of Service if you are not of legal age to form a binding contract with Fabnet Group Pty Ltd.

2. Use

Fabnet Group Pty Ltd reserves the right to refuse service and/or access to its servers or networks to anyone for any reason whatsoever, at any time.

Use of the services is subject to the Acceptable Use Policy, which forms part of these Terms of Service. In particular, the account holder is not permitted to store, access or provide access to any of the following on its servers or networks:

1. Illegal material, including copyrighted works, commercial audio, video or music files, and any material of any type in violation of any Federal, State or Local law or regulation anywhere in the world.
2. BitTorrents.
3. Warez, including pirated software, ROMs, emulators, phreaking, hacking, password cracking, IP spoofing, etc., and encrypting of any of the above. This also includes any sites which provide “links to” or “how to” information about such material.

This and any other agreement with Fabnet Group Pty Ltd does not grant or entitle, expressly or otherwise, any right, title or interest in the hardware (including, but not limited to, any server) of Fabnet Group Pty Ltd.

3. Bandwidth

Each server is either charged on a per-terabyte basis or allocated a set amount of data transfer allowance per month (calculated as both inbound and outbound) as specified on the order page. Bandwidth allowance is strictly on a per-server basis and cannot be pooled with any additional service(s) the account holder may have. If the bandwidth allowance is exceeded, the account holder is liable for the cost of the exceeded bandwidth amount. Bandwidth usage will be based solely on Fabnet Group Pty Ltd monitoring. Monitoring is calculated on the switch port the service is connected to, or via NetFlow. Fabnet Group Pty Ltd reserves the right to remove services that exceed their bandwidth allowance without notice. Excess bandwidth is charged at the rate displayed for your relevant service(s) on the Fabnet Group Pty Ltd website (https://fabnet.au) in excess of that originally allocated for the service.

Unmetered services and fair use. Where a service is offered as “unmetered” at a stated port speed, no monthly data transfer allowance applies and no excess bandwidth charges are raised, provided the account holder’s usage remains within normal network fair use. Fair use means the ordinary, intermittent traffic patterns typical of comparable services on the Fabnet Group Pty Ltd network. It does not include sustained transfer at or near the full port speed, traffic generated for the purpose of consuming capacity, or any use that degrades the service available to other customers or to the network as a whole.

Fabnet Group Pty Ltd monitors unmetered services in the same way as metered ones. Where usage exceeds normal network fair use, Fabnet Group Pty Ltd will ordinarily contact the account holder to discuss a metered plan, a dedicated port or an increase in port speed. Where the usage is causing, or is likely to cause, degradation to other customers, Fabnet Group Pty Ltd may shape or rate-limit the service, or apply the High Resource User Policy in section 4, in either case without prior notice.

4. High Resource User Policy

Resources are defined as bandwidth.

When a server is found to be excessively using the resources available, Fabnet Group Pty Ltd reserves the right, at its sole discretion, to shut down that server immediately. This policy is only implemented in extreme circumstances and is intended to prevent the misuse of our servers and network. Where appropriate, account holders may be offered an option whereby Fabnet Group Pty Ltd reactivates the server with additional resources for an additional fee. If the account holder is expecting a major change in bandwidth usage, please contact us to avoid services being shut down for mass legitimate traffic increases.

While reasonable efforts will be made to limit inbound and outbound attacks on servers, Fabnet Group Pty Ltd is not obliged to prevent, limit or stop such attacks, and the account holder shall be responsible for all bandwidth used whether or not used or contributed to by an attack.

5. Service Level Agreement

Fabnet Group Pty Ltd guarantees 100% availability of (a) the network connection between the account holder's service and the internet at the Fabnet Group Pty Ltd network edge, and (b) electrical power to the rack space or dedicated server supplied to the account holder (together, the “Covered Infrastructure”). This guarantee applies to dedicated server and colocation services.

Service credits. If the Covered Infrastructure is unavailable, the account holder is entitled, on request, to a credit of 5% of the monthly fee for the affected service for each full hour of unavailability, up to a maximum of 100% of one month's fee for that service. Unavailability is measured from the earlier of Fabnet Group Pty Ltd monitoring detecting the outage or the account holder notifying support@fabnet.au, until service is restored, as determined by Fabnet Group Pty Ltd monitoring. Credits must be requested in writing within 7 days of the incident, are applied to future invoices for the affected service, and are not redeemable for cash or payable on cancellation.

Exclusions. This guarantee does not cover, and no credit is payable for, unavailability caused by:

1. scheduled maintenance notified to the account holder at least 24 hours in advance, or emergency maintenance reasonably required to protect the network or other customers;
2. failure of the account holder's own equipment, operating system, software, configuration or data, including colocated equipment and any operating system installed on a dedicated server whether by the account holder or by Fabnet Group Pty Ltd at the account holder's request;
3. hardware failure of a dedicated server (see below);
4. suspension or termination of the service under these Terms of Service or the Acceptable Use Policy, including for non-payment or exceeding a bandwidth allowance;
5. denial-of-service attacks or other malicious activity directed at the account holder's service, or the actions of the account holder or any third party;
6. failures of systems or networks outside the Fabnet Group Pty Ltd network edge, including upstream carriers beyond the point of interconnection, DNS or routing outside our control, and the wider internet; or
7. events beyond the reasonable control of Fabnet Group Pty Ltd, including natural disasters, fire, flood, industrial action, government action, utility failure not caused by Fabnet Group Pty Ltd, or failure of the datacentre operator's facility.

Dedicated server hardware. The hardware of a dedicated server is not Covered Infrastructure and no uptime percentage applies to it. Fabnet Group Pty Ltd will repair or replace failed dedicated server hardware as quickly as reasonably possible, 24 hours a day, at no charge to the account holder. Restoration of the operating system and data after a hardware replacement is the account holder's responsibility unless otherwise agreed, and data and backups remain the account holder's responsibility at all times.

Sole remedy. The service credits described in this section are the account holder's sole and exclusive remedy for any unavailability, downtime or failure of the services, and section 13 (Disclaimer) applies to all other loss.

6. Payment Policies

All account terms are 14 days from date of invoice; however, Fabnet Group Pty Ltd reserves the right in its absolute discretion to require payment sooner. Although Fabnet Group Pty Ltd reserves the right to change prices of accounts or services at any time, all pricing is guaranteed for any period of prepayment. Charges will be invoiced either on each yearly anniversary or monthly, 14 days prior to the service period. Part months will be charged pro rata from the date the account or service(s) was established. All accounts are automatically renewed at the end of each payment period unless cancelled in accordance with our cancellation policy set out in section 8 of these Terms of Service.

All services on a 12-month contract are only payable on a prepaid basis. Any additions, such as excess bandwidth, will be billed monthly.

Where the account holder has provided debit or credit card details and the debit is declined, Fabnet Group Pty Ltd may immediately suspend the account until outstanding charges are processed successfully. In addition, Fabnet Group Pty Ltd reserves the right to suspend any other services for that account until the outstanding charges are paid. The account holder is responsible for all outstanding charges on the account. The account holder may be charged a $22 administration fee for each declined or dishonoured payment.

All invoices will be sent directly to the account holder via email and will be deemed to have been delivered if no bounce-back is received. Any discrepancy in invoices must be declared within 7 days of receipt. No bills or invoices will be sent by regular mail.

All invoices must be settled in full before any cancellation notice is accepted.

7. Contract Term, Period and Payment Options

When ordering a service an account holder may select either a monthly account or a yearly account (discounts usually apply). Yearly accounts are binding for the full 12-month term and the remaining term value shall become immediately payable if a service is cancelled prior to the end of the term.

When ordering a service on a contract term, without limitation to any other rights or remedies of Fabnet Group Pty Ltd, if this agreement is terminated during the term by the customer, Fabnet Group Pty Ltd may charge a cancellation fee calculated by multiplying the number of months remaining in the term by the average fixed and variable monthly charges. The parties agree that this is not a penalty but an accurate estimate of the loss and damage that Fabnet Group Pty Ltd will suffer as a result of early termination of this agreement, for which the customer will be liable.

In order to streamline our accounting procedures and keep costs down, Fabnet Group Pty Ltd offers a limited number of payment options:

• Direct deposit. The account holder is responsible for clearly identifying the payment reference as either their company name or invoice number; ensuring payment is made allowing time for the transfer to complete prior to the due date; and ensuring a remittance notice is sent to accounts@fabnet.au.
• Credit / debit cards. Mastercard and Visa.
• Cheque payment. This option is only available to account holders who prepay annually for their primary service(s). A credit or debit card is required if account holders wish to purchase add-ons, upgrades, bandwidth overage and other services online.

Fabnet Group Pty Ltd cannot guarantee that a service will be provided until after payments have cleared.

8. Cancellation and Refunds

Fabnet Group Pty Ltd reserves the right to cancel the services at any time if it reasonably believes the account is being misused, the Acceptable Use Policy is contravened or these Terms of Service are materially breached, or for any other reason. In such event(s) account holders will not be entitled to any refund.

Upon cancellation any incentives offered to account holders when opening the account will also be cancelled. Account holders may be given the option to purchase services which were offered as start-up incentives in the event of a cancellation.

Fees charged on a prepaid basis are non-refundable. In addition, some accounts incur set-up fees; these charges are also non-refundable.

Refunds. Fabnet Group Pty Ltd does not offer refunds. Please ensure any service(s) are adequate for your needs before ordering. From time to time account credit may be offered; cancellation of your account forfeits any account credit you may have, and it is not redeemable via any other means.

9. Extra Charges

These apply under the following terms:

Fabnet Group Pty Ltd reserves the right to pass on any fee(s) it may receive in relation to your service(s) to the account holder.

10. Governing Laws

The agreement between you and Fabnet Group Pty Ltd shall be governed in all respects by the laws of New South Wales, Australia. The parties irrevocably submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of each section.

11. Severability

Each provision of the agreement between you and Fabnet Group Pty Ltd, including these Terms of Service, is severable. If any provision of this agreement or these Terms of Service is held to be invalid or unenforceable, such provision may be removed and the remaining provisions may be enforced.

12. Indemnification

The account holder agrees that it shall defend, indemnify, save and hold Fabnet Group Pty Ltd harmless from any and all demands, liabilities, losses, costs and claims, including legal costs (on an indemnity basis or solicitor/client basis, whichever is higher), claimed or asserted against Fabnet Group Pty Ltd, its agents, its account holders, officers and employees, that may arise or result from any service provided or omitted, performed or agreed to be performed, or any product sold by the account holder, its agents, employees or assigns. The account holder agrees to defend, indemnify and hold harmless Fabnet Group Pty Ltd against liabilities arising out of: (1) any injury to person or property caused by any products sold or otherwise distributed in connection with Fabnet Group Pty Ltd servers; (2) any material supplied by the account holder infringing or allegedly infringing on the proprietary rights of a third party; (3) copyright infringement; and (4) any defective products sold to the account holder from a Fabnet Group Pty Ltd server, and any defamatory or allegedly defamatory material on Fabnet Group Pty Ltd servers.

13. Disclaimer

Except for the service credits provided under section 5 (Service Level Agreement), Fabnet Group Pty Ltd will not be responsible for any damage, loss or liability the account holder or any third party may suffer. Fabnet Group Pty Ltd makes no warranties of any kind, expressed or implied, for the services we provide. Fabnet Group Pty Ltd disclaims any warranty of merchantability or fitness for a particular purpose. This includes loss of revenue, profits or data resulting from server failure, downtime, delays, non-deliveries, wrong delivery, and any and all service interruptions caused by Fabnet Group Pty Ltd and its employees or otherwise. Data, data backup(s) and the integrity of such backup(s) remain the account holder's responsibility at all times. Fabnet Group Pty Ltd reserves the right to revise its policies at any time.

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