This is a legal agreement between you and Vanilla Networks Pty Ltd ("Vanilla Networks") trading as Cherry VAs. This Agreement replaces any prior written or oral agreement between the parties.
By making at least one payment to Vanilla Networks for our services or submitting to us a request to trial our Service, you agree to the following Terms and Conditions of Service. If you do not wish to be bound by the terms and conditions of the Agreement, you MUST NOT submit an order or trial request to, or agree to or allow any service to be provided by, or otherwise make any purchase from, Vanilla Networks.
"account" means all aspects of the Service provided to you under this Agreement.
"Agreement" means these Terms and Conditions of Service.
"Claim" means any action, claim, demand, cost, loss, damage, (whether special, indirect, consequential, general or any other damage), expense or other liability (including for death and injury, and the costs of defending or settling any Claim) whether arising in contract, negligence or any other tortious action.
"Confidential Information" means information or material:
but does not include any information or material:
"Direct Customer" means any person who pays you directly for your service (the service we are providing support for). Direct Customers include your resellers, but not the clients of your resellers.
"Force Majeure" means circumstances beyond the control of a party which includes (but is not limited to) acts of God, perils of the sea or air, fire, flood, drought, explosion, sabotage, accident, embargo, riot, civil commotion or civil authority, including acts of local government and parliamentary authority, materials, breakdown of equipment and labour disputes of whatever nature and for whatever cause arising including (but without prejudice to the generality of the foregoing) work to rule, overtime bars, strikes and lockouts and whether between either of the parties hereto and any or all of its employees and/or any other employer and any or all of its employees and/or between any two or more groups of employees (and whether of either of the parties hereto or any other employer), acts of war (declared or undeclared) or terrorism.
"person" includes an individual, a body corporate, office, commission, authority, committee, tribunal, board, institute, organization or other body however described.
"Phone Provider" means a third-party entity which provides phone services, phone hardware, phone numbers, telecommunications services, point-to-point protocol services, voice over IP (VOIP) services or other voice-related communications services of any kind.
"Phone Support" means our team answering your customers' questions on your behalf via inbound phone calls from your customers.
"Service" means the provision to you, by us, of labour-based and IT-enabled services, and all associated systems and software.
"Service Plan" means the service plan or package you have purchased from us, as advertised on our website.
"Vanilla Networks", "we", "our" and "us" means Vanilla Networks Pty Ltd (ABN 94 098 484 934), a company incorporated under the Corporations Act 2001.
"website" means any pages, material, content, software or systems made available through the cherryvas.com and cherrya.com domain names, or through other domain names operated by Vanilla Networks which you may reasonably be aware of, including all subdomains (such as "www.cherryvas.com" and "hub.vanillanetworks.com").
"you" and "your" means the entity that agrees with Vanilla Networks to use the Service. If you provide a business name on the order form, then that business is the entity which agrees with Vanilla Networks to use the service and the person(s) who complete the order form on behalf of that entity warrant(s) that he/she/they are duly authorised by the entity to enter into this legally binding agreement on behalf of the entity. If a business name was not provided on the order form, then the individual person(s) named on the order form is/are bound by this agreement and the order form must only be submitted by the named person(s).
You confirm that the details you have provided to us when placing your order(s) with us are true, complete and correct.
We reserve the right to decline your order at any time and for any reason. If your order is declined then we will refund any unused portion of any payment you have made to us for the declined order within seven days of declining the order.
We reserve the right to decide when to start the Service, subject to the following conditions.
The setup fee (if any) and first month's fee will be charged at the time you place your order.
After your initial payment has been made, we will endeavour to commence the Service within 48 hours. Please note that the 48 hours of 'lead-time' is usually required to prepare properly for commencing the Service, and is included in the period charged for.
This sub-section applies if you have already made your initial payment for your Service Plan either via PayPal or by providing us with your credit card details and us having levied the initial charge to your credit card.
If we are not able to commence the Service within 48 hours of you making your first payment for the Service Plan then we will notify you of that fact before the 48 hours expires. You will then have the choice of:
If you choose option 2 above, then:
We can commence service in accordance with the above either with or without your explicit agreement to the start date and time.
From the time we commence the Service, the Service will be provided on an ongoing basis until cancelled. Specifically, we are not able to suspend the Service at your request and then re-commence the Service later.
You acknowledge that certain limits to the scope of our service apply to all our Service Plans and you agree that we shall not under any circumstances be obliged to carry out work of any type that is not explicitly included in your Service Plan as advertised on our website.
Each party will maintain all Confidential Information of the other party in strict confidence and will not at any time or for any reason disclose any Confidential Information of the other to any third party without the disclosing party's prior written consent.
Neither party will use any Confidential Information of the other for any purpose whatsoever except in performing its duties and exercising its rights under this Agreement.
Neither party will disclose any Confidential Information of the other to any of its agents or employees who do not participate directly in the performance of its duties or exercise of its rights under this Agreement, and each party will advise its employees who are permitted access to any Confidential Information of the other party, of the restrictions on disclosure and use set forth in this Agreement.
Notwithstanding the foregoing, either party may disclose the Confidential Information of the other if it believes in good faith that any applicable law, rule, or regulation requires the disclosure, provided that it makes a reasonable effort to give the disclosing party as much advanced notice as may be practicable.
On termination or expiration of this Agreement, each party will return or destroy all Confidential Information obtained from the other party and copies thereof.
Either party may use for any purpose without obligation to the other party's information (other than Confidential Information) in non-tangible form, which may be recalled by persons who have had access to the Confidential Information, and which results from work with the Confidential Information.
You agree that, if you dispute any payment(s) made to us, then we will have the right to disclose any information we see fit to any financial service provider(s) involved in processing each disputed transaction, and that the Confidential Information provisions in this Agreement do not apply to our communications with those entities.
Nothing in this Clause will prohibit or restrict our right to provide the same or similar products or services furnished hereunder to other parties. You acknowledge and agree that the restrictions on Confidential Information contained in this Agreement shall not apply to the general knowledge, skills and experience gained by us or our employees while engaged by you.
Where relevant, you agree to provide us with sufficient detail about, and access to, your services, policies and systems to enable us to provide the Service to you and, if applicable, your customers.
Except for the Service itself, You will not directly or indirectly, during this Agreement and for a period of two years after its expiry or termination solicit, engage, employ, contract or otherwise work in any manner with any person who is or was employed or engaged by us (including our subsidiaries). This obligation applies not only to you but also to each of your Directors and principals (where existent). In the event that You or one or more of Your Directors or principals breaches this section, then You agree to pay us a fee of US$25,000 for each breach (that is, once for each employee) plus any legal costs incurred by us in recovering such fees from you.
You acknowledge that the two-year period mentioned above is no greater than is reasonably required to protect the goodwill in the business.
You must keep confidential, all passwords created or used in relation to the Service.
You must not:
All passwords provided by you to us are kept confidential. Passwords are only provided to our employees on a need-to-know basis.
You may, at your discretion, provide us with superuser (root) access to your server(s). Alternatively, you can provide us with access to a restricted set of superuser commands by using a tool such as sudo if you wish.
If you purchase a Service Plan from us which includes Phone Support then the following applies:
You acknowledge that, due to the nature of VOIP and Internet-enabled voice/phone technology, line quality cannot be guaranteed and outages and line quality degradation may occur from time to time. You acknowledge and agree that fees will not be refunded, nor work hours repeated, due to such outages.
If you provide your assigned staff with access to your own VOIP or other Internet-enabled voice/phone account, then you have full responsibility for paying all bills and amounts due to the provider of that VOIP/phone service, and you acknowledge and agree that we will not be responsible for paying any such amounts (in whole or in part) under any circumstances.
Furthermore, if your VOIP/phone provider provides an option to make outbound calls then we may, at our sole discretion, use that feature to make outbound calls in relation to the service we are providing to your customers, such as making outbound calls to test that the phone line is working or to call your customers back in relation to their support issues.
Additionally, the responsibility for the operation and quality-level of the VOIP/voice service you provide rests solely with you.
If you require support directly from us, and if such support is covered by the Service Plan you have purchased from us, then your request(s) for support must be lodged via the method prescribed in the "Notice" section of this Agreement.
We will provide support to you as required, within reason, and at our discretion, subject to the limitations applying to your Service Plan as advertised on our site.
We endeavour to provide stable staffing but we reserve the right to assign and re-assign staff as we see fit. Changes of staff may occur with or without notice and you agree that we do not need to provide any compensation, refund or reimbursement of any kind if such staff changes adversely affect you.
All staff are entitled to:
Time spent on meal breaks in accordance with the above entitlements forms part of your paid support period and you will not be reimbursed or refunded in any way for time spent on meal breaks as per the above entitlements.
If your Service Plan requires us to provide 24-hour service (as specified in the Service Plan features as advertised on our website) then we will provide replacement staff to ensure ongoing coverage (with the exception of meal breaks). In all other cases the following applies:
We provide basic supervision only, meaning that we will ensure that your assigned staff:
Please note in particular that we do not provide project management services and so you will need to monitor the work undertaken by your assigned staff.
It is your responsibility to make good use of staff time by assigning sufficient, clearly-defined, appropriate work - charges still apply for time that your assigned staff are sitting idle.
We scan incoming and outgoing messages for viruses. However we do not guarantee that every message will be scanned, or that every virus will be detected and removed. Additionally, we reserve the right to remove attachments from incoming and outgoing email messages. Messages we answer on your behalf through your ticket system are not scanned for viruses unless your ticket system includes virus scanning facilities.
Our virus scanning facilities provide a high level of protection against viruses but you acknowledge and agree that you are solely responsible for protecting your and your customers' property and email accounts from virus threats.
You are responsible for backing up your servers and data.
You are responsible for backing up and storing any works we undertake for you. You acknowledge that we do not have any obligation to keep a copy of work we undertake for you.
You agree and acknowledge that, if any server or service which we are providing support for experiences an outage, responsibility for minimizing the length of the outage rests with you, whether or not you are aware of the outage. Our staff may assist in that process (if such assistance is within the scope of the service we are providing to you) but you agree that we will not be liable for any outage period in whole or in part. You further agree that you will take reasonable steps to ensure that you are notified promptly of any outages via your own monitoring system or a third-party monitoring system. We recommend that you always contact your assigned staff when an outage occurs.
We will not perform any task that will or is likely to require any employee(s) of ours to view or work with content which is sexually explicit, hateful, obscene, offensive, illegal, threatening, racist or contains depictions of nudity.
You agree to correspond with us via "The Hub" (https://hub.vanillanetworks.com) or by sending email messages to any email address we specify for that purpose. If we need to contact you for any reason we will do so via email, or instant messenger only.
You agree to notify us promptly of any changes to your email address or other contact details.
If you cancel the Service within 14 days of the start of this Agreement, and request a refund within 7 days of cancellation, we will refund any unused portion of the payment made by you for the cancelled services within 7 days of your refund request, as long as you have not previously claimed a refund under this clause. That is, we will issue a maximum of one refund per customer.
Other than as described in the previous paragraph, all payments are non-refundable. If however we decide that exceptional circumstances apply then we will provide a refund, or partial refund, at our discretion. Refunds will not be issued for days on which staff were assigned and on duty for you.
Service is provided on a calendar month basis and a payment for one month covers service provided during a period of one calendar month.
For monthly service plans, our billing cycle is monthly in advance. Your initial payment is due at the time you open your account.
All prices advertised on our website are in US dollars.
Payments via PayPal
This subsection applies if you have selected to pay your fees via PayPal. Fees must be paid in US dollars via PayPal (http://www.paypal.com) using PayPal's subscription payment option. That is, you need to authorize PayPal to charge your credit card (or PayPal account) automatically each month on or shortly after the monthly anniversary of your joining date. You agree to become a Verified account holder with PayPal within 30 days of the start of this Agreement, so that we can be confident in the validity of your credit card details. If PayPal are unable to charge you successfully in any month then they will notify you via email, at the address they have on record for you, that their attempt to charge you has failed. After three failures they will automatically cancel your subscription. It is solely your responsibility to update the email address which PayPal have on record for you (in relation to your PayPal subscription) if required. A current PayPal subscription for our Service is required and so if your PayPal subscription is cancelled at any time, we will cease to provide the Service until a new PayPal subscription is in place.
If your payment is overdue we will discontinue the Service until payment of all applicable fees is made via one of our supported payment methods.
Allocation of Payments
For each payment you make, we have the sole right to decide which due amount(s) to apply the payment to.
Prices are subject to change without notice. Any change in monthly fees will apply to your next service period, but will not be payable for your current service period.
This section only applies to Australian customers.
Words or expressions used in this clause which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning in this clause.
The following items do not include goods and services tax (GST):
If applicable, in addition to the amounts payable in respect of any one or more of the amounts above, you must pay, to us, GST on those amounts, as indicated in a Tax Invoice.
We will provide a Tax Invoice for each payment for you to view and print via our customer centre at https://hub.vanillanetworks.com.
GST is payable to us by you at the same time as you pay the amounts referred to above to us.
If you fail to remit GST to us as otherwise required by this Agreement, you will indemnify us for any Claim in relation to the GST that you failed to remit.
You may cancel the Agreement at any time by providing us with written authorisation to cease the Service. You acknowledge that our regular fees will continue to apply until you explicitly and unambiguously cancel service and advise us of the date of cancellation (which must be at least one day after the day you explicitly and unambiguously cancel service).
Since all fees are payable in advance, in order to avoid charges for a subsequent billing cycle, you need to cancel the Service prior to the end of the current billing cycle. We recommend that you cancel your PayPal subscription (if relevant) prior to your next billing date, and also advise us of your intentions in writing prior to the end of your current billing cycle so that we know to cease providing the service, and then no further charges will be payable.
We reserve the right to refuse or cancel the Service for any reason, and at our sole discretion.
No service will be provided after your Service Plan has been cancelled, including but not limited to bug fixes, website maintenance and data/file retrieval.
At our sole discretion, we may outsource the Service or the performance of any work, or part thereof, relating to the Services to any of our subsidiary companies.
If we outsource any part of the Services or the performance of any part of the work comprising the Services, the terms and conditions of this Agreement will apply mutatis mutandis to the subsidiary company to whom the work or Services have been outsourced. For clarity, this Agreement between you and us will continue on foot and we will hold the rights and obligations of this Agreement on trust for our subsidiary company.
We reserve the right to modify or discontinue the Service (or any part thereof) as we see fit, with or without notice. We will not be liable to you or any other party for such modifications to the Service.
We reserve the right to update these Terms and Conditions from time to time. Any updates to these Terms and Conditions will apply to the Service from the time that this Agreement is updated on our website and an email is sent to the email address we have on record for you to advise you that our Terms and Conditions of Service have been modified (whether or not that message is properly received and read by you).
You agree to indemnify, hold harmless and defend at your own expense us from and against any and all Claims for infringement of copyright, patents, trade marks, industrial designs or other intellectual property rights issued under the laws of any country where:
You further agree not to provide us with any item nor ask us to download/access/copy/use any item, including but not limited to images, software, computer code and written material, unless you have the legal right to use those items for the purpose our work relates to.
We undertake to give you prompt notice of any Claim described above that is made against us or any of our subsidiaries, dealers or customers and you will forthwith defend any such Claims and make settlements thereof at your own expense.
You acknowledge that any and all of the copyright, patents, trade marks, industrial designs or other intellectual property rights used or subsisting in or in connection with our business, marketing and/or support material relating to our business and all documentation and manuals relating thereto are and will remain our property and you will not, during or at any time after the expiry or termination of this Agreement, in any way question or dispute the ownership by us thereof.
You will not, during or after the expiry or termination of this Agreement, without the prior written consent of us, use or adopt any name, trade name, trading style or commercial designation that includes or is similar to or may be mistaken for the whole or any part of any trade mark, trade name, trading style or commercial designation used by us.
If any part of this Agreement is deemed to be unenforceable or otherwise invalid then that will not affect the validity nor enforceability of any other parts of this agreement.
This agreement shall be interpreted under the laws of Queensland, Australia, and both parties agree that any legal action or proceedings relating to this agreement shall be settled in the courts and/or tribunals in Queensland, Australia.
Neither party will be liable to the other party in respect of anything which, apart from this provision, may constitute breach of this Agreement arising by reason of Force Majeure.
Failure or neglect by us to enforce, at any time, any of the provisions of this Agreement will not be construed or deemed to be a waiver of our rights hereunder nor in any way affect the validity of the whole or any part of this Agreement or prejudice our rights to take subsequent action.
The headings of the terms and conditions contained in this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of any of the terms and conditions of this Agreement.
You may not assign, attempt to assign nor otherwise transfer any right or obligation arising out of this Agreement without our written consent.
WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PRODUCT OR SERVICE FURNISHED OR TO BE FURNISHED UNDER THIS AGREEMENT OR THE USE THEREOF (INCLUDING BUT NOT LIMITED TO DAMAGE, LOSS OR CORRUPTION OF DATA, SERVICE INTERRUPTIONS OR ERRORS, INACCURATE ADVICE PROVIDED TO YOUR CLIENTS, OR LOSS OF PROFIT, BUSINESS, REVENUE, GOODWILL OR ANTICIPATED SAVINGS), EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
THE AGGREGATE LIABILITY OF US FOR ANY CLAIMS HOWSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PRODUCTS OR SERVICES FURNISHED OR TO BE FURNISHED BY US UNDER THIS AGREEMENT WILL, IN ANY EVENT, BE ABSOLUTELY LIMITED TO THE AMOUNT PAID BY YOU TO US UNDER THIS AGREEMENT FOR THE APPLICABLE PRODUCTS AND/OR SERVICES.
YOU ACKNOWLEDGE THAT WE HAVE SET OUR PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATION OF LIABILITY SET FORTH IN THIS AGREEMENT, AND THAT THE SAME FORMS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PARTIES AGREE THAT THE LIMITATION OF LIABILITY SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF ANY LIMITATION OF REMEDIES IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED HEREIN WILL LIMIT YOUR LIABILITY FOR ITS OWN WILFUL OR WANTON CONDUCT.
NOTWITHSTANDING ANY OTHER PROVISIONS CONTAINED HEREIN, WHERE ANY ACT OF THE AUSTRALIAN PARLIAMENT IMPLIES ANY TERM INTO THIS AGREEMENT, AND THAT ACT AVOIDS OR PROHIBITS PROVISIONS IN A CONTRACT EXCLUDING OR MODIFYING SUCH TERM, THAT TERM WILL BE DEEMED TO BE INCLUDED IN THIS AGREEMENT, BUT OUR LIABILITY FOR BREACH OF THAT TERM WILL BE LIMITED IN ONE OR MORE OF THE WAYS (AT OUR OPTION) PERMITTED BY SECTION 68A(1) OF THE TRADE PRACTICES ACT 1974 (CTH).
We make no statement, warranty, representation or promise not expressly set out in the Agreement, or required by law. We expressly disclaim all warranties, representations or promises in relation to the Service.
You agree at our request, to fax a signed copy of this agreement to our Australian fax number, and/or post two signed copies of this agreement to our Australian postal address, within 7 days of our request.