Terms And Conditions

This page contains the following sections:


The following terms are used throughout this document:

Terms And Conditions - Usage Of This Web Site

Trademarks

Please note that many of the products referred to on this web site (www.stuartelvish.com and advice.stuartelvish.com) are owned / developed by other companies and therefore are trademarks of that particular company. In particular, Asterisk is a registered trade mark of Digium. If you have any further questions regarding trade marks please contact us for further information.

Copyright

All material (text, images and any other media) is copyrighted. You may not use it without prior written permission from the owner of this web site.

Our Own Content

Whilst we make every effort to ensure that this web site is kept up to date, we can not be held liable for any errors or omissions. Additionally, we disclaim all responsibility where you rely on advice of this web site and matters don't evolve as expected. You should always seek tailored advice to your specific circumstances from the staff of stuartelvish.com before relying on the generic information contained on this web site.

Referenced Content

Where we provide you with referenced content (i.e. content from another person or their web site. but printed within the text of our web site.), we will put forth every effort to ensure the accuracy and validity of the information presented. However, we nor our contractors nor our agents can be held liable for any damages or other liability arising from your use of the information.

External / Third Party Content & Web Sites

We can not be held responsible or liable for any content on third party web sites or networks. We make every effort to ensure the appropriateness and validity of information on third party web sites, however updates and changes may be made which we can't monitor. You accessing all links to third party content and web sites acknowledges that you relieve us of any responsibility and liability.

Privacy Information

No matter which web site or internet based service you are using, privacy can not be guaranteed. We will put forth effort to ensure that any data that we obtain about you (including your email address or any information stored in our customer relationship management system) is adequately protected from access by any person not associated with stuartelvish.com.

advice.stuartelvish.com

The information provided at advice.stuartelvish.com is based around personal experience. This personal experience is predominantly with open source solutions including the Linux operating system, the Asterisk PBX software solution including various third party open source applications, as well as several vendors who provide hardware products for the Asterisk PBX software solution. The advice is provided on an 'as is basis' and we hold no responsibility or liability for your reliance on the information. Personalized, commercial advice is available by consultation with Stuart Elvish via www.stuartelvish.com.

Terms And Conditions - Quotation, Sale and The Provision of Services

Quotations And Estimates

Quotations and estimates we issue are valid for 14 days by default except where indicated on the quotation or estimate supplied to you (the client). Any variations to the 14 day quotation or estimate validity must be indicated on the original quotation or estimate, or a new quotation or estimate number must be issued with the correct validity.

Any offer made by the customer will not be binding upon us until we have been furnished with written confirmation of the customers offer and have provided written acceptance.

All Work Time And Materials

All work completed at the clients request will be time and materials based. This means that you will be charged an hourly rate to work towards achieving a set outcome as defined by you (the client) and any additional advice (technical or otherwise) that we supply to you during the works.

You as the client are not expected to bare the cost of internet usage or communications with your organization. From time to time however, you may be asked to provide a reimbursement for costs related to communicating to third parties on your behalf. The rates for this will be provided prior to starting a project.

Disputes

You must bring to our attention any work or provided services that you wish to dispute within 3 days of the invoice being issued. If you raise a dispute, we may at our discretion extend the due date of the invoice until the dispute has been resolved. When payment is received for an invoice, it is assumed that you agree with all the charges and that you have no outstanding issues with the work or provided services and therefore will not raise a dispute in relation to that invoice.

Payment

All payments must be made electronically, within 7 days of invoicing to our nominated bank account. Confirmation of this payment must be made by faxing back the last page of the invoice the payment relates to, or you must send us a confirmation email. Once we receive this payment and it has cleared, we will mark the invoice as being paid. If you feel you can't make payment by the due date, then please notify us in writing prior to the due date and we will attempt to make alternative payment arrangements. If you fail to make payment by the due date, we may at our sole discretion stop providing any products or services we have agreed to provide and will start charging interest at 18.4% per annum compounded daily.

Where a deposit has been noted on the quotation, this deposit will need to be paid and cleared by our bank in entirety before work will commence. If the payment clears less than 7 days before work is due to commence, any agreed delivery dates are subject to our review. Please also note that we may ask for a deposit (when one is not indicated on the original quotation) where we must defer or reject other work to accept your project.

If progress payments are prescribed either in a quotation (in the notes field) or in any other documentation associated with the sale, you will need to ensure the funds have cleared by the required date. Clearing by our bank normally takes approximately 3 business days depending on the deposit method. If you so desire, we are happy to provide you with confirmation of your payment being cleared.

If we fail to receive a payment (deposit, progress or final) then we at our sole discretion may decide to cease any works on your project. Where we cease work due to non-payment, we will not be liable in any way for direct or in-direct damages that you may incur. Additionally, if the payment is not received and cleared within 14 days of the original invoice falling due, we will begin taking action to re-posses any property / goods provided as part of the project up to the value of the amount that hasn't been paid. This may include property / goods that you paid for in an earlier invoice.

Software

Many of our solutions include either the configuration of existing / client supplied software or software provided by us to you. Any software supplied is done so under the original terms and conditions of that software package as set out by the vendor. You must acknowledge your agreement to the terms and conditions and abide by all license agreements and obligations. Title to any software products remains with the applicable licensor/s at all times.

Cancellation

If you have been provided a quotation with a deposit and have provided us with an installation or execution date with your purchase order, and you decide to reschedule or cancel your order, we reserve the right to charge additional fees. In cases of rescheduling, we reserve the right to charge a rescheduling fee up to 15% of the total order if we can reschedule to a time that is mutually convenient. If you decide to cancel the order, or you request that we reschedule your installation or execution date and we can't mutually agree on another date, we may at our discretion keep the entire deposit and additionally charge you for any hardware that we have ordered in for your job. (We will attempt to ship this to you according to your instructions.) At our discretion, we may waive any cancellation or rescheduling fees. Any notice of changes to these fees will be provided in writing once we have agreed on the final status of the work to be completed.

Right To Sub-Contract

By accepting a product or service, either as part of a quotation or an ongoing service or support arrangement, you acknowledge that we may appoint sub-contractors to complete either part of the work or the entirety. It is at our absolute discretion to appoint contractors to specific tasks.

Contracts Requiring Travel

Where we accept a contract which may require travel, we will explicitly advise you if we are willing to complete the required travel. If we fail to advise you of the terms and conditions of our completing the required travel and fail to explicitly advise you of our acceptance of your request for us to complete travel as part of our contract, we can only make our best effort if we have available resourcing. If we do explicitly accept travel and commit to completing the travel at a certain time, it will be your responsibility to cover any costs associated with our travel including, but not limited to, air fares, airport lounge entry / membership fees, car rental and any other transportation services required, insurance, accommodation, meals and refreshments, and any security services required. You will be asked to cover the direct cost and the cost of the time used for business travel including trips to and from airports, site, accommodation and our office. If the dates of travel required for the project change, you will be required to provide us at least 8 weeks notice, and we have the right to refuse the adjusted date of travel.

Contracts Requiring Specialist Training

Except where explicitly noted otherwise in official documentation provided by us, we require you as the client to cover the cost of any time and travel required to attend training courses specifically required to complete our job. This may include, however is not limited to, site safety inductions, state or territory based government work safety certification, and company occupational health and safety policy training. If you believe our staff, contractors or agents will be required to go through any certifications, you should advise us before we prepare an estimate for you.

Support Work & Rates

We have several different rates that we charge. They are categorized as follows:

Please note that we may use a range of sub-contractors to complete your work and these sub-contractors may complete the work outside of standard business hours at their discretion. We will make every effort to keep you informed of when your work is scheduled to be completed allowing you the opportunity to advise if this time won't suit your requirements. Please note that if you require after hours work to be completed, we reserve the right to charge you a higher than standard rate.

An additional fee of $99.00 per case (excluding GST) applies, both during and outside of our standard business hours, if your case is urgent and needs to be prioritised over other cases we have in our queue. This fee is only paid once we confirm we will start work on the case within 1 hour.

GST (Goods and Services Tax)

By Australian law we are not required to charge goods and services tax (GST). All quotations are GST exempt. Should it become necessary for us to charge GST, this will be charged at 10% on top of any invoice issued.

Limitation of Liability

Whilst all staff, contractors and agents will exercise due care in the execution of all assigned tasks and work orders, and attempt to limit inconvenience or the amount of time any of your systems, products or services may be unavailable, we accept no responsibility or liability (either financial or otherwise) for any inconvenience or damage (direct or consequential) that may have been caused or arises as a consequence of us completing our work. Where we have agreed to provide a service at a fixed price and that service is found to be faulty, we will at our discretion provide a full refund to you which will terminate our agreement, or we will complete any necessary work to deliver the originally or subsequently mutually agreed specification or configuration.

Governing Law

These terms and conditions shall be governed by and construed in accordance with the laws of the state of Victoria. Additionally, they shall be subject to the jurisdiction of the courts of Victoria. Any disputes arising in relation to these terms and conditions will either be arbitrated or settled in a court of law within the physical locality of the state of Victoria, Australia.

If it is determined that any of these terms and conditions are unenforceable or illegal, it shall not render any other term or condition invalid or unenforceable.

Right To Use As A Reference

Please be aware that we may use your company name on our references page. This may also include a listing, either partial or complete, of the services that we provide your company. If you have any concerns or don't want us to list your company, please contact us in writing.

Terms And Conditions - Service Level Agreements

Please Read The General Terms And Conditions

These terms and conditions are in addition to our general terms and conditions found under the heading "Terms And Conditions - Quotation, Sale and The Provision of Services". Please make sure that you are familiar with these terms and conditions before reading the information below.

Remote Access

Remote access via an ADSL connection of at least 1.5/256 is required. Whilst a fibre optic connection is our preferred option, ADSL2+ will generally deliver enough bandwidth. You are also required to provide an onsite technician for any hardware related failures.

Reporting Faults

Faults must be reported via our main telephone number, 03 8888 5361 or +61 3 8888 5361 for international customers. Standard technical support requests (tasks that can be scheduled for a later date and time) should either be emailed to support@stuartelvish.com or lodged by telephone.

When you ring in to lodge a support request (standard, urgent or critical), you will be required to provide the following information:

Normally, you will reach our communications system and be asked to enter your agreement number and your details compared against our database. You will then be presented with a menu to select the severity of outage (standard, urgent or critical) and another menu prompting for data about the outage. You will then be asked to key in your telephone number, record your personal and organization name as well as a more detailed description of the fault. Once this is done, we will forward your call to one of our staff members. If one of our staff members is not available immediately to take your call, we will ask you to hang up the phone and pager messages will be sent to the appropriate staff; the first one available will call you back.

From time to time, you may be sent directly to our paging service (if for example there is a problem with our telephone line). If your call is answered directly by our backup messaging service, please provide your name, telephone number, agreement number, fault severity and a brief message. This will be paged to us and we will respond as soon as possible.

Onsite Technicians

We do not provide on site technicians. You are required to provide an onsite technician whenever you have lodged a service request to assist us with hardware related testing and replacement. This onsite technician must have the appropriate qualifications and security clearances to access all areas where the equipment related to the SLA is located.

Spare Hardware

An initial fee is charged for setting up an SLA agreement with each client. This fee is nominal and covers a portion of the time taken to advise of the spare hardware we will require you to store on site. You must keep, at all times, the minimum level of hardware we request for use during a service request. Failure to do so will possibly interfere with our ability to fix your problem, and in exceptional circumstances, to correctly identify the problem.

Equipment Covered Under Our SLA

We only cover equipment supplied by one of our approved partners. The exact equipment that we cover under the SLA will be clearly written on the initial SLA agreement. Generally, we only agree to cover Asterisk software and the required components of Linux to run Asterisk, as well as advice on which hardware components may require replacing to make the system fully operational again.

Under our service level agreements, we do not cover any external network or exchange line outages. These types of outages must be covered by the supplier of these links. You will be responsible for covering all costs incurred in diagnosing any faults including those related to third parties products, including but not limited to, exchange lines, external network links and internal network issues.

Response Times

We aim to have a technician talking to your technical staff within the response time indicated on your SLA. The response time is generally indicated by the monthly fee you pay. For example, the monthly fee will say "SLA - 24x7 - 2 Hour Response" which means you have 24 hours a day, 7 days a week of coverage where we have to contact you within 2 hours to start resolving your issue.

Resolution Times

The response time is not related to the resolution time. Resolution refers to our being able to provide you with a clear definition of what the problem is and how it can be fixed, or a list of factors that may be creating the problem which will require further investigation. Based on this, we will have completed our requirements under the service level agreement if:

We do not provide a service level agreement with an agreed resolution time.

'Man Hours'

When you log a critical task with us, we will normally only require one technician to be assigned to your case. If we believe that we can resolve the fault affecting your system in a more effective manner and expedite resolution by assigning additional resources to the task, we reserve the right to put additional 'man hours' into resolving the fault. This will be reflected on your invoice; basically for every hour that an additional technician assists in resolving the task, there will be multiple 'man hours' charged to your account.

Contact During An Open Critical Task

When you lodge a critical task with us which requires resolution within the times promised by your service level agreement, we will contact you initially when a technician is assigned to your task and the technician will provide you with some direct contact details. Once this initial contact has been provided, we will contact you every hour to provide you with an update. You are free to contact our technician as many times as you like whilst they are working to restore your service, however in some circumstances this may reduce the effectiveness of our staff as it may interfere with them completing the fault diagnosis and resolution as quickly as possible.

Availability

We service the requirements of many different clients. There may be times when we are unable to start work on your critical support request because we have already assigned all our resources to other clients, or where another client has a high level of service agreement. Where we are unable to provide you the required response times, we will provide you with compensation.

If we are already working on your task and a critical support request from a client with a higher service level agreement is logged, and the task is more critical, we reserve the right to attempt to finish your task, or where this is not practicable, to temporarily re-assign resources. In the rare event of this happening, we will be in contact to with you to discuss any impact on your task.

Failure To Meet Service Level

If we fail to respond to your request for critical support within the time agreed in your maintenance and service level agreement, we will provide you with a partial refund of your monthly maintenance and service level agreement fee excluding any credits for consulting or support work. This refund will be as follows:

Please note that a maximum of one rebate per month will be applied to your account. The rebate offered will be the first event in the month. For example, if the first rebate is $1,000 and the second rebate is $1,500, we would only provide a reimbursement of $1,000. If, for example, we reverse the situation and the first rebate is $1,500 and the second $1,000, we would rebate $1,500 in accordance with the other terms and conditions set out in this document.

If we fail to respond due to system outages, natural disasters or any other major event which prevents us receiving notification of your service request (even though some of our systems may have logged your request), we will still provide a refund according to the conditions above.

Rebates are applied to the next invoice we issue you. For example, if you qualified for a rebate in February, we would apply the rebate to the invoice issued for March. The rebate would be the appropriate percentage of February's service level agreement monthly fee.

Limitation Of Liability

Whilst our technicians will take due care whilst restoring service to your system or providing advice, human error does occur and you release us from any direct or consequential damages which may arise from our work on your system.

Service Level Agreements Including Credit

Some of our Service Level Agreements include a certain amount of credit which can be used for lodging urgent and scheduled service requests as well as requesting additional consulting. This credit is only valid for the month which the service level agreement membership fee is paid and can not be carried over to another month, or retrospectively applied to a previous invoice.

Price Changes

Whilst we don't foresee the need to change pricing, we reserve the right to make changes to the monthly minimum commitment as required. We will be provide you with a minimum of one months notice, however we will aim to provide three months notice of any expected price increases or changes. We also reserve the right, after giving appropriate notice, to either discontinue the maintenance and service level agreements that we offer, or to adjust the credit we include with each package.

Payment Of Fees

All service level agreement monthly membership fees are due, and must be cleared, at the first of the month or we will be able, at our sole discretion, to determine whether or not we will provide coverage under the SLA. Any fees incurred above the included credit (if any) of your service level agreement will be invoiced immediately and fall due within 7 days.

Please note that if you fail to pay any additional or standard monthly membership charges by the due date, we will not be obliged to render assistance to you should you require support under an SLA.

Terms And Conditions - Online Backup Services

Please Read The General Terms And Conditions

These terms and conditions are in addition to our general terms and conditions found under the heading "Terms And Conditions - Quotation, Sale and The Provision of Services". Please make sure that you are familiar with these terms and conditions before reading the information below.

Limitation Of Liability

Compensation in all circumstances is limited to the monthly total price you pay for your online data backup service. We do not provide any additional compensation and will not cover any loss or damage suffered by you or a third party whether it be directly or in-directly related to the use of our products, services or advice and whether or not it involves negligence on our part.

Availability Of Service

Whilst we aim for a 99% uptime, our service is subject to the normal constraints of the Internet and a steady supply of power. We have taken steps to ensure that during short power outages our systems will remain operational. We also provide compensation if you need to restore data and our network is not available. (Please see the section below entitled 'Availability Guarantees And Compensation'.)

Additional Support On A 'Pay Per Use' Basis

If you require support for our online backup services, the fee which is indicated in your contract will be charged. This fee may vary from time to time and you will be notified of any such variation by electronic mail, and where possible, standard postal service with the letter sent to the last address we have on file. If however, the fault affects several users or is a fault which is determined to be our fault, it will be rectified free of charge.

Scheduled Maintenance / Scheduled Maintenance And Availability Guarantees

From time to time we will need to conduct maintenance on our server equipment. We will communicate at least 48 hours in advance any scheduled maintenance that we plan to carry out. Generally the scheduled maintenance will be completed within an 8 hour window, however scheduled maintenance may take up to 24 hours to complete. During a period of scheduled maintenance, we do not provide a guarantee that the server your data is located on will be available for either backing up to or restoring from and therefore will not provide you with any compensation if you are unable to complete one of these tasks within the scheduled maintenance period. If you receive notification of scheduled maintenance which will coincide with a period of time where you plan to complete either a backup or restoration you should contact our office as soon as possible to see what arrangements can be made so as to reduce the inconvenience to you.

'Owner Onus' - Your Data And Its Integrity

We take no responsibility for the data stored on our servers. You must ensure that at a minimum, but not limited to:

Data Destruction

You may at any time request that we destroy your data on our server. We will make every effort to ensure this request is actioned within 14 days. If you decide to cancel your hosting plan with us we will ensure that all data we have on our servers from you is destroyed within 14 days.

Refunds As Credits

To obtain a refund you must follow any prescribed procedure. If there is no specific procedure which applies to your situation (for example you are not wishing to lodge a refund request under our "Restoration Guarantee") you should send an electronic mail to support@stuartelvish.com and include a request for a return receipt to confirm our receipt of your message. All refunds are provided as credits on your next invoice.

Claiming Credits - "Restoration Guarantee"

If you wish to claim a refund based on our service not being available when you wanted to restore some data, you must telephone our main office telephone number and either speak to a representative from the hosting team or leave a message identifying your issue. You must also state the date and time you attempted the restoration, the error messages and anything you have done to try and resolve the issue. Send an email with a copy of these details to support@stuartelvish.com would also assist in quickly resolving any issues. If there is a failure within our network preventing you from restoring your data (as distinct from a failure with your equipment or infrastructure), we may offer to provide you with a set of physical media from which you can restore. If you accept physical media for your restoration, we will at our discretion decide what proportion of your monthly fees will be refunded.

No Physical Access

Nobody, except the staff and contractors of stuartelvish.com, will be permitted access to the server equipment your data is housed on. This ensures security of your (and other clients) data. If you have a valid concern about the data hosted on one of our servers, as long as you are a duly authorised officer of the company paying for the space, we may provide you assistance with either destroying the data or providing a copy on physical media.

Single Site Storage

At this stage we only backup your data on a single server in a single location as specified in the documentation provided when you asked us to provide data backup services. Whilst a single storage site is adequate for most clients, if you require additional backup services (for example automatic replication of the backup to an overseas or interstate server) please consult our staff.

Availability Guarantees And Compensation

We guarantee that our servers will be available for you to restore your data from or we will credit your account your base monthly fees on the next invoice. To qualify for compensation under the availability guarantee, you must comply with the terms and conditions in this document which explain how faults affecting your data restoration process should be lodged with us. It usually takes around 14 days to complete claims.

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