General Terms and Conditions
Ensuring your rights and responsibilities.
Basis of Agreement
Live CX Pty Ltd ABN 60 670 745 294 (the Managed Service Provider) carries on the business of providing the IT management services. The Managed Service Provider has agreed to provide the Services to the Client as identified in the Proposal and the Client has agreed to procure the Services from the Managed Service Provider in accordance with these terms and conditions, the agreed to Proposal and any Schedules (which together form this “agreement”).
1. How to read this agreement
1.1 MEANING OF CAPITALISED WORDS AND PHRASES
Capitalised words and phrases used in these terms and conditions have the meaning given:
(a) by the word immediately preceding any bolded and bracketed word(s) or phrase(s); or
(b) in the definitions in clause 16 of this agreement.
1.2 APPLICATION
(a) This agreement, including any Proposal, will become binding on the Client on the earlier of the date that a) the Client indicates their acceptance to the terms (such as by accepting a Proposal); b) the Client instructs the Managed Service Provider to proceed with any Services; or c) the Client pays any amount to the Managed Service Provider in respect of the Services.
(b) The Client cannot terminate this agreement except to the extent as expressly permitted by this agreement.
(c) Unless otherwise agreed all Proposal are valid for 30 days from the date of the quotation, and will only become binding on the Managed Service Provider when the Managed Service Provider expressly acknowledges acceptance. Any fees stated in a Proposal are provided on the basis of the information current to the Managed Service Provider at the date of the invoice. The Managed Service Provider reserves the right to increase the fees where applicable in accordance with the terms of this Agreement.
(d) The Client acknowledges and agrees that the supply of Services remains subject to availability and if, for any reason the Managed Service Provider is unable to proceed with the supply, the Managed Service Provider reserves the right to cancel the Services (and issue a refund for the cancelled Services if applicable). This is the Client’s only remedy in these circumstances and the Managed Service Provider will not be liable to pay any other amount to the Client.
(e) No invoice, terms or other document issued by or on behalf of the Client (including the terms on any warranty or other agreement given to the Managed Service Provider) will vary or form part of this agreement unless otherwise agreed by the Managed Service Provider in writing. This agreement replaces and supersedes any invoice, terms or other document given by the Client to the Managed Service Provider whether before or after the time that this agreement is supplied to the Client.
2. Duration and renewal of this agreement
2.1 TERM
(a) This agreement will commence on the Start Date as set out in the Proposal and continues for the Initial Term set out in the Proposal, following which it will automatically renew for a period of 12 months unless either party gives the other party written notice of termination at least 30 days’ prior to the expiry of the Initial Term (in which case the termination will take effect at the end of the Initial Term).
(b) The Client authorises the Managed Service Provider to store the Client’s payment method details and to automatically charge the Fees for the renewed Term.
(c) The Term will automatically renew in accordance with this clause in order to avoid interruption to the Services and the Client acknowledges and agrees that this is fair and reasonable.
2.2 EARLY TERMINATION FEE
(a) In the event the Client terminates this agreement prior to the expiry of the Initial Term (except where the Managed Service Provider is in default under clause 11.2) or the Managed Service Provider terminates this agreement under clause 11.2, the Client agrees to pay an Early Termination Fee.
(b) The parties acknowledge that a significant portion of the Managed Service Provider’s Services and resource allocation occurs at the outset and early phases of the engagement. As such, early termination places an undue burden on the Managed Service Provider as the Fees are calculated on the basis of continuance of the agreement for at least the Initial Term. The Client acknowledges that the Early Termination Fee is not a penalty, but a genuine estimate of the loss that the Managed Service Provider will suffer in the event this agreement is terminated early.
(c) The “Early Termination Fee” will equal the balance of the Fees due for the remainder of the Initial Term (calculated pro rata for any part month).
3. The Services
3.1 SCOPE OF SERVICES
(a) The Managed Service Provider will perform the Services in accordance with this clause 3 and the Proposal. Unless otherwise stated in the Proposal, the Services include:
(i) the Professional Services, as set out in the Proposal; and
(ii) the Support Services, as set out in Schedule 1.
(Services).
If any activity is stated in Schedule 1 as only applying to a particular Subscription Tier, then that activity will only be performed if the Proposal states that Subscription Tier applies.
(b) The Services do not include the specific exclusions set out in Schedule 2 and any other activities that are not expressly stated as included in accordance with clause 1(a) (Excluded Services).
(c) If any Excluded Services are required by the Client from time to time in the Managed Service Provider’s reasonable opinion (Additional Services) the parties will follow the process set out in Schedule 2.
(d) The Client may not downgrade its Subscription Tier during the Term. The Client may upgrade its Subscription Tier at any time by written notice to the Managed Service Provider and with an adjustment to the Fees commensurate with the Managed Service Provider then current fee for the upgraded Subscription Tier.
3.2 INFRASTRUCTURE RECOMMENDATIONS
The Client acknowledges and agrees that:
(a) any information or recommendations provided to the Client in relation the Client’s IT System in the course of providing the Services is based on:
(i) the information provided by the Client to the Managed Service Provider; and
(ii) the Managed Service Provider’s knowledge of current best practice and technological developments;
(b) the Client must make its own assessments of its business requirements and infrastructure needs; and
(c) the Client must ensure that it complies with applicable regulations relevant to the Client’s business, including industrial relations laws and privacy laws.
3.3 SOFTWARE LICENCES & TERMS AND CONDITIONS
(a) The Client acknowledges and agrees that third party terms & conditions may apply to any part of the Services, including the Client’s Software (Third Party Terms).
(b) The Managed Service Provider will endeavour to notify the Client of Third Party Terms that apply to the Services, in which case:
(i) the Client must immediately notify the Managed Service Provider if they do not agree to the Third Party Terms; and
(ii) if the Managed Service Provider does not receive a notice in accordance with clause 5.6(b)(i) the Client will be taken to have accepted those Third Party Terms, and the Managed Service Provider will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.
(c) The Client acknowledges and agrees that if the Client does not agree to any Third Party Terms, this may affect the Managed Service Provider’s ability to perform the Services.
(d) All Software licences are the responsibility of the Client and not that of the Managed Service Provider. It is the Client’s duty to store all licences for all Software used, so that they can be reproduced if and when required. This includes all Software installed by the Managed Service Provider.
(e) The Client indemnifies and holds the Managed Service Provider harmless against any claim, allegation, loss, damage, or expense arising directly or indirectly from:
(i) any unauthorised Software use by the Client;
(ii) any breach of any Software licence in respect of Software provided to the Managed Service Provider by the Client to be installed on one of the Client’s computers;
(iii) any issues resulting from the Managed Service Provider installing Software where the Client is not authorised to use the Software; and
(iv) any problem, defect, or malfunction associated with any Software (or related services) supplied by third parties.
3.4 KEY PERSONS
(a) The Managed Service Provider will endeavour to ensure that the Services are performed by:
(i) personnel who are suitably qualified, with appropriate skills and experience to perform the Services to an acceptable standard;
(ii) by the people set out in the Proposal, or people of similar skills and experience.
(b) The Managed Service Provider will endeavour to ensure that each Key Person performs the role assigned to them in the Proposal (if any).
(c) If a Key Person becomes unavailable to perform the Services, the Managed Service Provider will take steps to provide a suitable replacement (with similar skills and experience to the Key Person being replaced) within a reasonable timeframe
3.5 AUTONOMY AND DISCRETION
The Managed Service Provider will have absolute control and discretion over working times, methods, and decision making in relation to the provision of the Services. The Managed Service Provider will be responsive to the reasonable needs and concerns of the Client.
3.6 SUBCONTRACTS
The Client acknowledges and agrees that the Managed Service Provider may, in its absolute discretion and without further notice to or approval from the Client, subcontract any part of the Services. The Managed Service Provider will be responsible for any subcontractors’ performance of the Services.
4. Client data roles and responsibilities
4.1 OBLIGATIONS
(a) The Managed Service Provider will establish, maintain, enforce and continuously improve safety and security procedures and safeguards against the unauthorised use, destruction, loss or alteration of the Client Data. The Client must not, and ensure that its personnel do not, undertake any action that may have the potential to compromise the Managed Service Provider’s ability to comply with this clause.
(b) The Managed Service Provider will not make any undocumented, unreported or authorised configuration changes to the Managed Service Provider’s systems or to the information security controls that secure the Client Data, if those changes would materially decrease the protections afforded to the Client Data.
(c) The Managed Service Provider will notify and keep the Client notified of the Managed Service Provider’s current safety and security procedures and safeguards that are made from time to time.
4.2 DATA BREACH
(a) The Client or the Managed Service Provider (as the case may be) will immediately notify the other party after learning of any potential, actual or suspected loss, misappropriation or unauthorised access to, or disclosure or use of Confidential Information or Personal Information or other compromise of the security, confidentiality, or integrity of Confidential Information or Personal Information (collectively, Security Breaches).
(b) The Managed Service Provider will promptly investigate each potential, actual or suspected Security Breach and assist the Client and its personnel in connection with any investigation that the Client may desire to conduct with respect to the Security Breach.
(c) The Managed Service Provider will take all steps requested by the Client to limit, stop or otherwise remedy any potential, actual or suspected Security Breach. The Client must take all steps necessary to ensure that data integrity is maintained if the IT System crashes, suffers a power surge or is otherwise compromised, including by immediately notifying the Managed Service Provider and following any directions given by the Managed Service Provider.
(d) The Client will be solely responsible for any obligations in relation to any Notifiable Data Breaches and the Office of the Australian Information Commission.
5. General Client Obligations
5.1 PROVIDE INFORMATION
The Client must provide the Managed Service Provider with all documentation, information and assistance reasonably required by the Managed Service Provider to perform the Services.
5.2 ACCESS
The Client agrees to provide the Managed Service Provider with access to:
(a) the Client’s premises and personnel, to the extent required to perform the Services;
(b) the Client’s systems, to the extent required to perform the Services; and
(c) any other third party or other accounts used by the Client (including login details and passwords),
as reasonably required by the Managed Service Provider to perform the Services.
5.3 SPECIFIED CONFIGURATION AND SOFTWARE
(a) The Client must maintain the Client’s hardware, Software licences and internet connection as necessary for the Managed Service Provider to perform the Services.
(b) The Client must, and ensure must ensure that its personnel, comply with all Software licences. Unless permitted by the relevant Software licence, the Client must not attempt to circumvent any technological protection mechanism or other security features of any Software.
(c) The Managed Service Provider will not be responsible for any access or performance related issues arising out of or in connection with the Client’s failure to comply with this clause 5.3.
5.4 COMPLIANCE WITH LAWS
The Client agrees that it will not, by receiving or requesting the Services:
(a) breach any applicable laws, rules and regulations (including any applicable privacy laws); or
(b) infringe the intellectual property rights or other rights of any third party or breach any duty of confidentiality.
5.5 DELAYS
The Client acknowledges that if it fails to comply with its obligations under this agreement, this may affect the Managed Service Provider’s ability to perform the Services, and as such cause delay. The Managed Service Provider will not be responsible for any loss as a result of such delays.
5.6 AUTHORITY
The Client authorises the Managed Service Provider, as its agent, to act on behalf of the Client when dealing with third party vendors, for the purposes of managing, coordinating and facilitating the Services (this includes any new vendors following commencement of this agreement). If the Managed Service Provider is not authorised for a particular vendor, it may, in its absolute discretion, charge the Client an additional fee for any time it takes to obtain authorisation to deal with that vendor on the Client’s behalf when needed.
6. Fees and Payment
6.1 FEES
(a) The Client must pay the Fees in the amounts, and on or before the Due Date(s), set out in the Proposal. If there is no Fee amount set out in a Proposal, then the Fee will be determined based on the Managed Service Provider’s current price list as at the Due Date.
(b) To the maximum extent permitted under the Competition and Consumer Act 2010 (Cth) any Fees paid in accordance with this agreement are non-refundable.
(c) If there is no Due Date set out in the Proposal in relation to a Fee, that Fee must be paid at the time set out the relevant invoice issued by the Managed Service Provider.
6.2 INVOICES
The Managed Service Provider will issue a valid tax invoice to the Client for payment of the Fees. The Client must pay the Fees in accordance with the remittance method set out in an invoice.
6.3 TRIAL
(a) In the Managed Service Provider’s sole discretion, the Managed Service Provider may offer free or discounted pricing for various Services.
(b) The terms of such use and any limitations will be as specified by the Managed Service Provider. If the Managed Service Provider offers the Client a trial program, once the terms of that trial program have expired the Client agrees that the Managed Service Provider’s normal billing rates shall apply.
(c) The Client agrees to comply with any restrictions or limitations placed on the Services during any free or discounted pricing term.
6.4 SUSPENSION OF SERVICES
The Managed Service Provider reserves the right to suspend all or part of the Services indefinitely where the Client fails to pay the Fees in the amounts and times specified in the Proposal.
6.5 EXPENSES
Unless otherwise agreed in writing:
(a) the Client will bear all travel, accommodation, office stationery, computer storage, media and related expenses reasonably incurred by the Managed Service Provider in connection with the Proposal; and
(b) any third party costs incurred by the Managed Service Provider in the course of performing the Services may be billed to the Client, unless specifically otherwise provided for in the Proposal.
6.6 GST
Unless otherwise indicated, amounts stated in the Proposal do not include GST. In relation to any GST payable for a taxable supply by the Managed Service Provider, the Client must pay the GST subject to the Managed Service Provider providing a tax invoice.
6.7 CARD SURCHARGES
The Managed Service Provider reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).
7. Confidentiality and Privacy
7.1 PRIVACY
(a) The parties must comply with:
(i) if applicable, their respective obligations under the Privacy Act 1988 (Cth); and
(ii) the Managed Service Provider’s privacy policy as in force from time to time.
(b) The Managed Service Provider will keep the Client informed of any changes to the Managed Service Provider’s Privacy policy during the term.
7.2 CONFIDENTIAL INFORMATION
The parties will not, during or at any time after the Term, disclose Confidential Information directly or indirectly to any third party except:
(a) with the other party’s prior written consent;
(b) as required by Law; or
to their Personnel on a need to know basis for the purposes of performing its obligations under this agreement (Additional Disclosees).
7.3 BREACH
If either party becomes aware of a suspected or actual breach of clause 7.2 by that party or an Additional Disclosee, that party will immediately notify the other party and take reasonable steps required to prevent, stop or mitigate the suspected or actual breach. The parties agree that damages may not be a sufficient remedy for a breach of this clause 7.2.
7.4 PERMITTED USE
A party may only use the Confidential Information of the other party for the purposes of exercising its rights or performing its obligations under this agreement.
7.5 RETURN
On termination or expiration of this agreement, each party must immediately return to the other party, or (if requested by the other party) destroy, any documents or other Material in its possession or control containing Confidential Information of the other party.
7.6 ADDITIONAL DISCLOSEES
Each party will ensure that Additional Disclosees keep the Confidential Information confidential on the terms provided in this clause 7.6. Each party will, when requested by the other party, arrange for an Additional Disclosee to execute a document in a form reasonably required by the other party to protect Confidential Information.
8. Intellectual Property
8.1 DEFINITIONS
In this clause, the following terms have the following meanings in relation to Intellectual Property Rights:
(a) Existing Material means Material, other than New Material;
(b) New Material means Material that is created, written, developed or otherwise brought into existence during the Term for the purposes of this agreement; and
(c) Material means tangible and intangible information, documents, reports, software (including source and object code), inventions, data and other materials in any media whatsoever.
8.2 EXISTING MATERIAL
(a) Except to the extent otherwise stated in the Proposal or in this clause 8:
(i) each party retains ownership of the Intellectual Property Rights in its Existing Material; and
(ii) nothing in this agreement transfers ownership of, or assigns any Intellectual Property Rights in, either party’s Existing Material to the other party.
(b) The Client grants to the Managed Service Provider (and its Personnel) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use its Existing Material to the extent reasonably required to perform any Services.
(c) The Client warrants that the Managed Service Provider’s use of the Client’s Existing Material will not infringe the Intellectual Property Rights of any third party and will indemnify the Managed Service Provider from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.
(d) The Managed Service Provider grants to the Client a non-exclusive, royalty free, non-transferable and revocable licence to use its Existing Material, to the extent:
(i) such Existing Material is incorporated into the New Material; and
(ii) such use is reasonably required for the Client to enjoy the benefit of the Services.
8.3 NEW MATERIAL
(a) Unless otherwise stated in the Proposal, Intellectual Property Rights in New Material are immediately assigned to and vest in the Managed Service Provider as those rights are created.
(b) The Managed Service Provider grants to the Client a non-exclusive, royalty free, non-transferable and revocable licence to use the New Material to the extent such use is reasonably required for the Client to enjoy the benefit of the Services.
9. Goods
9.1 GOODS
If the Services involve the ordering and delivery of equipment and other goods (Goods) then the terms of this clause will apply.
9.2 DELIVERY, TITLE AND RISK
(a) The Managed Service Provider will use all reasonable endeavours to dispatch Goods by their scheduled due date but does not accept any liability for non-delivery or delays caused by circumstances beyond its reasonable control, including (but not limited to) supply chain issues or delays caused by third-party entities such as delivery services or manufacturers.
(b) The Client must be available to accept the Goods at the nominated delivery address during business hours unless otherwise agreed with the Managed Service Provider.
(c) Risk of loss, damage, or any other risk related to the Goods passes to the Client once delivery is made to the Client’s specified address. This clause does not affect the title to the Goods.
(d) The Client must ensure that Goods are adequately insured from the time of delivery.
(e) Until the Managed Service Provider receives full payment in cleared funds for any moneys due by the Client on any account or for any reason:
(i) title and ownership of the Goods supplied to the Client remains vested in the Managed Service Provider and does not transfer to the Client;
(ii) the Client must hold those Goods as fiduciary bailee and agent for the Managed Service Provider and must not sell them;
(iii) the Client must keep those Goods separate from other goods and maintain the Goods and their labelling and packaging intact;
(iv) if the Client sells the Goods in breach of this agreement, the Client is required to hold the proceeds of such sale on trust for the Managed Service Provider in a separate account (however, any failure to do so will not affect the Client’s obligation to deal with the proceeds as trustee and remit them to the Managed Service Provider);
(v) the Managed Service Provider may, without prior notice, enter any premises where it suspects the Goods are located, take possession of the Goods, and remove them (even if they are attached to other goods not owned by the Managed Service Provider). The Client hereby irrevocably authorises the Managed Service Provider (and its employees and agents) to enter such premises as its duly authorised agent and indemnifies the Managed Service Provider against any costs, claims, allegations, demands, damages, or expenses arising from or related to such entry, repossession, or removal;
(vi) the Client irrevocably appoints the Managed Service Provider as its attorney to take any actions the Managed Service Provider deems necessary to enter such premises and repossess the Goods as outlined in this clause.
9.3 RETURNS OF GOODS
(a) The Client acknowledges that the Managed Service Provider supplies Goods subject to all applicable conditions, including the returns and claims policies of any relevant manufacturer or supplier. The Client will accept Goods subject to the terms of this agreement and the terms of such policies, indemnifying and holding the Managed Service Provider harmless in respect of any further obligations or any failure or default on the part of the manufacturer or supplier.
(b) The Client will inspect all Goods immediately upon their delivery. Within 7 days of such delivery, the Client may give written notice to the Managed Service Provider of any defect for which the Client might wish to return the Goods, request a refund, or make a claim. If no such notice is given on time, the Client will accept the Goods without any right to return, refund, or claim (subject to applicable laws).
(c) Where the Client is entitled to return Goods under this agreement, the Goods must be returned in their original condition and unopened. However, if upon opening the packaging, it becomes apparent that the Goods are different from what is described on the packaging or are faulty, the Goods may be returned.
(d) The Client will pay all costs and expenses incurred by the Managed Service Provider in arranging the return of the Goods to a manufacturer or supplier and/or the cancellation of any related services unless that manufacturer or supplier pays such costs.
(e) The Client will indemnify and hold the Managed Service Provider harmless in respect of all allegations and claims related to the Goods once such Goods have been used, installed, customised, or resold by the Client (without prejudice to the recourse of such a customer to the manufacturer of the Goods).
9.4 WARRANTIES
(a) The Client will rely on the warranties provided by the manufacturer of Goods supplied by the Managed Service Provider (where applicable) and will deal directly with such manufacturer rather than the Managed Service Provider for all claims covered by such warranties.
(b) The Client indemnifies and holds the Managed Service Provider harmless in respect of the performance or otherwise, by any manufacturer of Goods supplied to the Client by the Managed Service Provider, of any of the obligations of such manufacturer in respect of such Goods. This includes any damages or moneys due to the Client arising under, or in connection with, any breach by the manufacturer of any of the manufacturer’s warranties in respect of the Goods.
10. Warranties and Liability
10.1 WARRANTIES
(a) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement are excluded.
(b) Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Client may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services we provide.
10.2 LIABILITY
(a) (Liability) Subject to the other terms of this clause, the Managed Service Provider excludes all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Services that are not expressly set out in this agreement to the maximum extent permitted by law. To the maximum extent permitted by applicable law, the Managed Service Provider limits all liability in aggregate of all claims to the Client (and any third parties who encounter the services or goods through the Client’s business) for loss or damage of any kind, however arising whether in contract, tort (including negligence), statute, equity, indemnity or otherwise, arising from or relating in any way to this agreement or any goods or services provided by the Managed Service Provider to the amount paid by the Client to the Managed Service Provider in the 3 months preceding the date of the event giving rise to the relevant liability.
(b) (Program or data loss) The Client indemnifies and holds the Managed Service Provider harmless in respect of any allegation, claim, loss, or expense of the Client or any third party for any program or data loss or damage suffered by the Client or that third party arising directly or indirectly from the supply of the Goods or Services by the Managed Service Provider to the Client. The Client acknowledges that it is solely responsible for backing up its programs and data to mitigate potential loss of programs and data.
(c) (Indemnity) The Client indemnifies the Managed Service Provider and its employees, contractors and agents in respect of all liability for any claim(s) by any person (including any third party who encounter the services or goods through the Client’s business) arising from the Client’s or the Client’s employee’s, client’s, contractor’s or agent’s:
(i) breach of any third party intellectual property rights;
(ii) breach of any term of this agreement;
(iii) negligent, wilful, fraudulent or criminal act or omission; or
(iv) use of any goods or Services provided by the Managed Service Provider.
(d) (Consequential loss) To the maximum extent permitted by law, under no circumstances will the Managed Service Provider be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with this agreement or any goods or services provided by the Managed Service Provider (except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth)).
(e) (Limitation Options) To the extent that any legislation implies a condition or warranty that cannot be excluded but can be limited, the Managed Service Provider’s liability for any breach of that condition or warranty is limited to (at its election):
(i) replacing the Goods or supplying equivalent Goods or Services;
(ii) repairing the Goods or rectifying the Services;
(iii) paying the cost of replacing the Goods or acquiring equivalent Goods or Services; or
(iv) paying the cost of having the Goods repaired.
10.3 DISCLAIMER
(a) The Client acknowledges that a reasonable incident of the Services may involve trial and error and that it is a science applied often in novel or unknown circumstances and involving experiment. In particular, the Client acknowledges that the Services may involve tests, troubleshooting, advice, and recommendations that may prove incorrect or inappropriate, particularly in an attempt to cure a problem the Client is having. While the Managed Service Provider will make what it considers (in its absolute discretion) to be all reasonable endeavours to provide appropriate tests, troubleshooting, sound advice, and good recommendations in order to assist the Client, the Client will always indemnify and hold the Managed Service Provider harmless in the provision of its Services to the Client.
(b) The Managed Service Provider is only obliged to provide what it considers, in its absolute discretion, to be reasonable assistance in the circumstances (including with the installation and customisation of new software or hardware for the Client or any other Work) under any plan and the Client will pay for additional work at the Managed Service Provider’s standard rates unless otherwise agreed. Without limiting the discretion of the Managed Service Provider to determine what reasonable assistance is, normally, reasonable assistance is limited to work done during business hours over a period of time not exceeding any period that the Managed Service Provider has allowed or allows for the work or has estimated or estimates the work will take, whether or not notice of the time allowed or estimated is given by the Managed Service Provider to the Client.
(c) The Client acknowledges that:
(i) the Managed Service Provider has no control over many factors involved with the suitability, function, or fitness for purpose of the Goods and Services, including (without limitation):
(A) the compatibility of the Goods with the Client’s systems and environments;
(B) the behaviour of third-party suppliers, e.g., in relation to support;
(ii) the Client accepts the sole responsibility for, and indemnify and hold the Managed Service Provider harmless in respect of:
(A) decisions as to whether or not to follow recommendations by the Managed Service Provider;
(B) decisions as to whether or not to purchase or customise Goods or obtain Services for that or any other purpose; and
(C) any failure or defect in suitability, function, or fitness for purpose of any Goods and/or Services, including a responsibility to obtain the Client’s own independent advice or second opinion from a suitably qualified person.
(iii) where the Managed Service Provider provides Services with a view to achieving the Client’s purposes, suitability, function, or fitness for purpose (whether expressed, agreed, or otherwise), the Client must pay for those Services on time without any set-off or counter-claim, whether or not the Managed Service Provider is able to achieve any of such purposes, suitability, function, or fitness for purpose, provided always that the Managed Service Provider has acted in good faith and has made what it considers, in its absolute discretion, to have made all reasonable endeavours to achieve those outcomes.
(d) The Client will follow the instructions of the Managed Service Provider with regard to testing or troubleshooting any problems, and if those do not resolve the outstanding problems, the Managed Service Provider will, subject to these Conditions, allocate such resources as it considers reasonable in the circumstances towards their resolution
11. Termination
11.1 TERMINATION FOR CONVENIENCE
(a) Either party may end this agreement without cause, by providing 30 days’ written notice to the other party. Except as set out under clause 2, termination will take effect at the end of the current Term (the End Date).
(b) On the End Date, the Managed Service Provider will provide an invoice to the Client for:
(i) any Fees for Services already performed up to the End Date (including Services performed to prepare not yet completed deliverables);
(ii) any pre-approved third party costs the Managed Service Provider has incurred on the Client’s behalf up to the End Date,
(together, the Outstanding Amounts)
(c) The Client will pay the Outstanding Amounts to the Managed Service Provider within a further 10 Business Days after the End Date, unless otherwise agreed in a written payment plan between the parties.
(d) Once the Outstanding Amounts have been paid, the Managed Service Provider will hand over any completed deliverables.
(e) If the Managed Service Provider terminates this agreement pursuant to this clause, the Managed Service Provider will make reasonable efforts to handover the remaining scope of Services to the Client, so the Client can source an alternative provider.
11.2 TERMINATION FOR BREACH
(a) If a party (the Notifying Party) considers that the other party is in breach of this agreement (the Breach), the Notifying Party may provide a notice to the other party.
(b) The notice must include the nature and details of the Breach, with reference to the relevant clause/s of this agreement. The Notifying Party may, if it wishes to do so, make suggestions for resolving the Breach.
(c) The other party will have 10 Business Days (or longer, in the Notifying Party’s discretion) to rectify the Breach (the Rectification Period).
(d) After the Rectification Period, the Notifying Party will:
(i) if the Breach has been successfully rectified, notify the other party that the agreement will continue; or
(ii) if the Breach has not been successfully rectified, notify the other party that this agreement is terminated (Termination for Breach Notice).
(e) Following a Termination for Breach Notice, the parties will stop all work under this agreement unless otherwise agreed.
11.3 OTHER CONSEQUENCES FOR TERMINATION
If this agreement ends, in addition to the specific consequences set out in clause 11.1 or 11.2 (as applicable), the parties will:
(a) return all property and Confidential Information to the other party;
(b) comply with all obligations that are by their nature intended to survive the end of this agreement; and
(c) stop using any materials that are no longer owned by, or licensed to, them when this agreement ends in accordance with clause 8.
12. Non-Solicitation
(a) Subject to clause 12(b), during the Term and for a period of 12 months thereafter, the Client must not, without the Managed Service Provider’s prior written approval:
(i) canvass, solicit, approach, interfere, or entice away, or attempt to canvass, solicit, approach, interfere, or entice away (or be knowingly involved in either employing or engaging) any officer, employee or contractor of the Managed Service Provider (Restricted Staff), to leave their employment or engagement with the Managed Service Provider or with a view to engage such Restricted Staff;
(ii) interfere in any way with the relationship between the Managed Service Provider and its Restricted Staff; or
(iii) engage in any combination of the above activities
(b) The Client acknowledges and agrees that:
(i) any combination of the acts in this clause would be unfair and calculated to damage the Managed Service Provider;
(ii) the restraint provisions of this clause are reasonable in scope, duration and time, and reasonably necessary to protect the Managed Service Provider’s goodwill and legitimate interests and are not greater than is reasonably necessary for the proper protection of the legitimate interests of the Managed Service Provider, given the nature of their business;
(iii) the Client has sought independent legal advice regarding the effect of the restraints provisions of this clause (or has had a reasonable opportunity to do so and has elected not to).
13. Force Majeure
(a) A ‘Force Majeure Event’ means any occurrence beyond the control of the Affected Party which prevents the Affected Party from performing an obligation under this agreement (other than an obligation to pay money), including any:
(i) act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
(ii) strike or other industrial action;
(iii) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
(iv) decision of a government authority in relation to COVID-19, or other epidemic or pandemic,
to the extent the occurrence affects the Affected Party’s ability to perform the obligation.
(b) If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under this agreement (other than an obligation to pay money) due to a Force Majeure Event, the Affected Party must give to the other party prompt written notice of:
(i) reasonable details of the Force Majeure Event; and
(ii) so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.
(c) Subject to compliance with clause 13(b), the relevant obligation will be suspended during the Force Majeure Event to the extent that the obligation is affected by the Force Majeure Event.
(d) The Affected Party must use its best endeavours to overcome or remove the Force Majeure Event as quickly as possible and resume performing the relevant obligation.
14. Notices
(a) Any notices required to be sent under this agreement must be sent via email using the party’s email addresses set out in the Proposal and the email’s subject heading must refer to the name and date of this agreement.
(b) If no email address is stated in this agreement, the notice may be sent to the email address most commonly used by the parties to correspond in relation to this agreement at the time the notice is sent.
(c) The notice will be considered to be delivered 24 hours after it was sent, unless the sender has reason to believe the email failed to send or was otherwise not delivered or received.
15. General
15.1 RELATIONSHIP
In providing the Services under this Agreement it is expressly agreed that the Managed Service Provider is acting as an independent contractor and not as an employee. The parties agree that this Agreement does not create a partnership or joint venture between them.
15.2 GOVERNING LAW AND JURISDICTION
This agreement is governed by the law applying in New South Wales. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
15.3 BUSINESS DAYS
If the day on which any act is to be done under this agreement is a day other than a Business Day, that act must be done on or by the immediately following Business Day except where this agreement expressly specifies otherwise.
15.4 AMENDMENTS
(a) The Managed Service Provider may vary this agreement immediately, without notice to the Client, where the Managed Service Provider considers that the change is likely to benefit the Client or otherwise have a neutral impact on the Client.
(b) The Managed Service Provider may also vary this agreement on giving 3 days’ notice if the Managed Service Provider considers that the change will have a minor detrimental impact on the Client or where such change is necessary and reasonable (for example to reflect any changes to the Services or to comply with legal requirements). The Managed Service Provider may lessen this period of time where necessary to comply with any legal requirements or notices (where urgent).
(c) The Managed Service Provider may also vary this agreement on giving 30 days’ notice if the Managed Service Provider considers that the change will have more than a minor detrimental impact on the Client. In such circumstances, if the Client does not agree to the change then they may reject the change and terminate this agreement within 30 days of the Provider giving notice of the change.
15.5 WAIVER
No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
15.6 SEVERANCE
Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.
15.7 JOINT AND SEVERAL LIABILITY
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
15.8 ASSIGNMENT & NOVATION
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.
15.9 COUNTERPARTS
This agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this agreement and all together constitute one agreement.
15.10 COSTS
Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.
15.11 ENTIRE AGREEMENT
This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.
15.12 INTERPRETATION
(a) (singular and plural) words in the singular includes the plural (and vice versa);
(b) (currency) a reference to $; or “dollar” is to Australian currency;
(c) (gender) words indicating a gender includes the corresponding words of any other gender;
(d) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(e) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(f) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(g) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
(h) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
(i) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(j) (includes) the word “includes” and similar words in any form is not a word of limitation; and
(k) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.
(l) (time) a reference to a day or time is a reference to that day or time in Sydney, New South Wales.
16. Definitions
In this agreement, the following words and phrases have the following meaning:
(a) Additional Services: Has the meaning given in clause 3.1(c).
(b) Additional Services Fees: Any amounts payable for the performance of Additional Services, calculated on the basis of the rate card in clause 2.3 of Schedule 2.
(c) After Hours: Means from 17:00 – 09:00 hours Monday to Friday and all day Saturday and Sunday, including Public Holidays.
(d) Business Hours: Means Monday to Friday from 09:00 to 17:00 hours excluding Public Holidays in New South Wales.
(e) Business Day: A day, other than a Saturday, Sunday or any other day which is a public holiday in New South Wales.
(f) Client Data: Any data that contains Confidential Information or Personal Information relating to the Client’s business which the Managed Service Provider manages under this agreement.
(g) Confidential Information: Information of, or provided by, a party that is by its nature confidential information, is designated as confidential, or that the recipient of the information knows or ought to know is confidential (including all commercial information exchanged between the parties), but does not include information which is, or becomes, without a breach of confidentiality, public knowledge.
(h) Early Termination Fee: means the fee set out in clause 2.2.
(i) Excluded Services: Has the meaning given in clause 3.1(a).
(j) Fees: The fees set out in the Proposal.
(k) Initial Term: Means the initial term set out in the Proposal.
(l) Intellectual Property Rights: means any and all present and future intellectual and industrial property rights throughout the world (whether registered or unregistered), including copyright, trade marks, designs, patents, moral rights, semiconductor and circuit layout rights, trade, business, company and domain names, and other proprietary rights, trade secrets, know-how, technical data, confidential information and the right to have information kept confidential, or any rights to registration of such rights (including renewal), whether created before or after the date of this agreement.
(m) IT System: The Client’s hardware, Software, data communications lines, network and telecommunications equipment and internet-related information technology infrastructure, including computers, laptops and phones.
(n) Key Persons: The persons identified in the Proposal as the persons who the Managed Service Provider intends to provide to perform the Services.
(o) Personal Information: Has the meaning given to that term under the Privacy Act 1988 (Cth).
(p) Professional Services: Means the Services described in the Proposal.
(q) Proposal: Means the quote, order, plan, offer, contract, agreement, tender, proposal, or other arrangement in connection with the supply of Goods and/or Services provided by the Managed Service Provider to the Client and as attached to this agreement.
(r) Services: Has the meaning given in clause 3.1(a).
(s) Software: Any programs, applications and other operating information licensed to the Client from third party providers and installed on the Client’s IT System.
(t) Start Date: The date written to be the start date on the cover page of this agreement, being the date that this agreement is signed and becomes effective and binding on the parties.
(u) Subscription Tier: Means the designation given in the Proposal, which determines the scope of Professional Services that apply to this agreement.
(v) Support Services: Means the Services described in Schedule 1.
(w) Third Party Terms: Has the meaning given in clause 3.3(a).
(x) Term: The duration of this agreement being the period from the Start Date as set out on the cover page of this agreement.
Schedule 1 - Support Services
Schedule 2 - Excluded Services and Additional Services
1. SERVICE LEVELS
(a) The Managed Service Provider will use its best endeavours to perform the Services in accordance with the Service Levels in Table 2.
(b) The Service Desk (as described in the Proposal) will be available 24 hours, 7 days a week, including during Business Hours and After Hours. Additional Fees may apply for After Hours support.
(c) All Response Times and Resolutions Targets do not include any time that falls not on a Business Day.
Table 2: Service Levels
|
Priority |
Description |
Response
Time |
Resolution
Time |
|
|
1 |
Critical
|
1 hour |
4 Hours |
|
|
2 |
High
|
2 hours |
24 Hours |
|
|
3 |
Medium
|
4 hours |
2 Days |
|
|
4 |
Low
|
8 Hours |
1 Week |
(d) The Service Levels are indicative. If the Managed Service Provider is not able to meet a Service Level set out in this clause, for any reason, the Client will not have any claim for delay and the Managed Service Provider will use its best endeavours to respond to or resolve the relevant issue as soon as possible.
(e) The Managed Service Provider will use its best endeavours to provide the Client with 8 hours prior notice of any downtime. However, the Client acknowledges and agrees that:
(i) downtime is outside of the Managed Service Provider’s reasonable control; and
(ii) the Managed Service Provider will not pay any credit of the Fees or other compensation in connection with any downtime.
2. LODGING OF SERVICE REQUESTS
(a) Critical and high priority service requests must be lodged via phone only; otherwise, the Managed Service Provider’s response time (as set out above) will only be applicable at the medium priority level for these requests.
(b) Service Requests that must be addressed outside of Business Hours must be lodged by phone. If not, the Service Request will be viewed on the next Business Day.
(c) It is important that the Client follow this process to ensure they are guaranteed to receive support at the levels as set out above by the Managed Service Provider.
(d) The Client agrees to ensure that its team is aware of any restrictions in place regarding who is authorised to lodge service requests, as all requests received by the Managed Service Provider will be chargeable and/or allocated against this Agreement.
1. EXCLUDED SERVICES
The Services do not include, and Additional Services Fees will be incurred for, any of the following activities:
(a) any parts, equipment, or hardware costs, fees or charges;
(b) any software, licensing, software assurance, renewal, or upgrade fees;
(c) any shipping, handling, courier, or postage charges;
(d) any third party vendor, OEM, or other manufacturer support fees or incident fees;
(e) any premise wiring services (voice/data/video cabling);
(f) training of any person in any context, unless otherwise specified;
(g) travel, travel time, gas or gas mileage, per diem or accommodations, when applicable, when visiting Client offices or any other third party site on Client’s behalf;
(h) any non-IT materials needed to provide services or requested by Client, including but not limited to office supplies or media;
(i) any type of service, repair, reconfiguration, maintenance or management occasioned or made necessary by the alteration of systems, devices, software or other resources, with or without administrative access to such resources, by anyone other than authorized the Managed Service Provider’s IT personnel;
(j) any change or service occasioned by acts or omissions by the Client’s own employees, principals, consultants, subcontractors, third party vendors, or any other third parties who may have or have had physical, logical or remote access to the Client’s IT systems;
(k) maintenance of third party applications, software, software packages or add-ons, whether acquired through the Managed Service Provider or any other source. The only exception to this is software made or modified by the Managed Service Provider IT in order to provide managed services;
(l) any software programming or scripting (creation or modification of software code) or program (software) maintenance;
(m) any work, project, service or support of any kind, whether one-time, periodic, or ongoing, that involves a new resource that was not present at the Start Date;
(n) any work that does not involve proactive management, routine administration, or troubleshooting (whether client-prompted/requested or otherwise) malfunctioning or non-functioning systems or resources under management.
2. ADDITIONAL SERVICES
2.1 AVAILABLE ADDITIONAL SERVICES
Additional Services that may be ordered by the Client in accordance with this Schedule 2 include but are not limited to:
(a) any Excluded Services set out in clause 1 of this Schedule 2;
(b) additional Professional Services, including:
(i) re-configuring resources;
(ii) integrations with newly acquired/introduced hardware, software or networks, or with other formerly non-existent third party resources; and
(iii) changes to managed resources, when such configuration, integration or changes are not warranted or necessary (in the Managed Service Provider’s reasonable opinion);
(c) any Support Services outside of the Subscription Tier scope.
2.2 ORDERING ADDITIONAL SERVICES
(a) If the Client requires additional Services, whether:
(i) requested by the Client; or
(ii) suggested by the Managed Service Provider,
the Managed Service Provider will provide a quote for the Additional Services in accordance with the Additional Services Fees set out in clause 2.3 of this Schedule 2.
(b) If the Client accepts a quote provided in accordance with clause 2(a) of this Schedule 2:
(i) the Managed Service Provider will provide the Additional Services; and
(ii) the Client will be liable to pay the Additional Services Fees,
in accordance with the terms and conditions of this Managed Services Agreement.
2.3 ADDITIONAL SERVICES RATE CARDS
(a) If Additional Services are agreed to between the parties in accordance with clause 2 of this Schedule 2, the Additional Services Fees set out in Tables 3 will apply.
(b) Additional Services can be purchased on an ad-hoc basis, or pre-paid, as set out in Table 3. Any pre-paid hours are valid for a period of 12 months from the date of payment.