1. Definitions
“Additional Charge” means a charge levied to the Client’s account in relation to the supply of a service or product or goods of and incidental to the Agreement that is:
- not included in the Agreement; and
- deemed by the Supplier to be reasonably necessary to give effect to the performance of the Agreement
“Agreement” means this Managed Services Agreement.
“Business Hours” means Monday to Friday, between the hours of 8:30AM to 6:00PM, Australian Eastern Daylight Time or Australian Eastern Standard Time, which ever applies.
“Commencement Date” means the date for the commencement of the service as specified in the Agreement.
“Confidential Information” means:
- all pricing information, business and financial information, sales and supply details, marketing strategies, customer and supplier listings, staff information, business listings, information concerning the business or customers relating to the Client or the Services;
- all processes, procedures, techniques, concepts, systems, manuals, licence agreements, disclosure documents, documents, agreements, contracts, notes, file and database structures and software relating to the Services;
“Due Date” means the date payment is due and payable by the Client to the Supplier for the supply of the Services or other matters or things of and incidental to the Agreement.
“Force Majeure” means any act of God or other occurrence outside the reasonable control of the party affected including, but not limited to war, riot, civil commotion, strikes (other than by the employees of the party affected), earthquake, flood, storm, explosion, damage by aircraft and nuclear activity.
“GST” means:
- the same as in the GST Law;
- any other goods and services tax, or any tax applying to the Agreement in a similar way; and
- any additional tax, penalty tax, fine, interest or other charge under a law of such a tax.
“Managed IT Services” is referred to as the provision of onsite and remote technical support of supported software and hardware equipment as outlined in the Schedule section of this document.
“Party” means the parties to the Agreement, namely the Supplier and the Client and may be used interchangeably in the Agreement.
“Personal Information” to the extent applicable to this Agreement has the same meaning as it has in sub-section 6(1) of the Privacy Act 1988 (Cth).
“Service Level Agreement (SLA)” means the service level agreement to which the Client and the Supplier have agreed to as defined in the Schedule section of this document.
“Tax Invoice” means a tax invoice within the meaning of the GST Law.
“Term” means: the Initial Term and any Subsequent Term as set out in the Agreement.
“Travel Time” means to and from the Client’s account address.
2. Interpretations
In this Agreement:
- Headings and underlinings are for convenience only and do not affect the construction of this Agreement.
- A provision of this Agreement will not be interpreted against a party because the party prepared or was responsible for the preparation of the provision, or because the party’s legal representative prepared the provision.
- Currency refers to Australian dollars.
- A reference to a statute or regulation includes amendments thereto.
- A reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annexure to, the Agreement, and a reference to the Agreement includes any schedule or annexure.
- A reference to a party is to a party to this Agreement unless specified otherwise.
- A reference to time is to the time in Victoria, Australia.
- A reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity.
- the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions.
3. Payment
The Client agrees to pay the Supplier for the managed IT services provided under this Agreement calculated at the rates specified in the Schedule.
- The Fees are payable monthly and are to be paid by the first day of each month.
- Any additional fees are to be paid within 7 days of the first day of each month.
- Fees which do not appear on a Tax Invoice for a particular period may appear on future Tax Invoices
- The Client elects to pay by Direct Debit and the Supplier will debit the credit card or nominated direct debit account for the amount of the Tax Invoice and any other Fees by the Due Date.
- If the Client does not pay an invoice by the Due Date, the Supplier will charge a $35 late fee.
- The Client will be liable for all reasonable and necessary collection costs that the Supplier incurs to collect an outstanding amount.
- If the Client disputes an amount in an invoice, the Client must notify the Supplier in writing within 7 days of the date of invoice. This notice must set out reasons for the dispute and the amount in dispute. The Supplier will review the invoice for the purposes of resolving such dispute within 14 days of the date of receipt of the notice.
- Accounts remaining in debit 14 days past the Due Date will be placed on credit hold without notice.
- Fees may be adjusted on the anniversary of the Commencement Date and each subsequent anniversary of the Commencement Date by an agreed amount.
- The Supplier will increase or decrease on a monthly basis the Fees. These increases or decreases will be calculated using the costing method upon which your current signed agreement was calculated (per device pricing or per user/server pricing).
4. Confidentiality
Each party agrees and acknowledges that it may receive information of the other party from the other party during the Term of this Agreement that is marked as confidential or is deemed confidential by law.
The parties agree to keep confidential any Confidential Information provided by one party to the other, except:
- with the prior consent of the party which provided the information
- as required by law
- where the information is in the public domain
- to disclose or use the information in the performance of the responsibilities and duties of the respective parties under this Agreement.
5. Client Obligations
The Client must:
- provide the Supplier with all information, access details (including username and passwords), building clearances (including keys and access passes) and cooperation as reasonably necessary for the Supplier to carry out its obligations under this Agreement.
- comply promptly with the Supplier’s reasonable directions in relation to the provision of the Services.
6. Liability
- Subject to clause 6(d), the Supplier is not liable to the Client for any loss or damage whatsoever or howsoever caused arising directly or indirectly in connection with the Agreement, except to the extent that such liability may not lawfully be limited or excluded. To avoid any doubt, this extends to any employees, contractors, agents, representatives, licensees or permitted assigns of the Supplier.
- Notwithstanding the generality of clause 6(a), the Supplier expressly excludes liability for consequential loss or damage which may arise in relation to the services or for loss of data, loss of, or claim for revenue, profits, actual or potential business opportunities or anticipated savings or profit, whether direct, indirect, economic, consequential howsoever arising by way of act or omission in contract or in tort. The Client hereby agrees to release and indemnify the Supplier to that extent.
- Where the Supplier cannot by law exclude such liability, its liability to the Client will be limited, at the Supplier’s choice, to:
- if the breach relates to goods – the replacement or repair of the goods, or;
- if the breach relates to services – the supply of those services or the payment of the cost of those services supplied again.
- Notwithstanding clause 6(a), the limitation of liability set out in clause 6(a) will not apply to any liability arising as a result of, or in connection with:
- fraud of wilful misconduct by the Supplier
- breach of confidentiality by the Supplier
- breach of privacy by the Supplier; or
- infringement of a third party’s Intellectual Property rights by the Supplier.
- To the fullest extent permitted by law, the Supplier excludes all warranties implied by law except as expressly set out in the Agreement.
This clause applies despite anything else in the Agreement and to the fullest extent permitted by law.
7. Termination or Suspension
- Either party may terminate this Agreement if the other party is in breach of this Agreement and the breach is not capable of remedy by providing the other party with seven (7) days written notice.
- The Supplier may suspend the supply of Services with notice (which may be written or verbal) to the Client if:
- it is an emergency
- the Supplier is directed/required to do under the law
- the Client fails to pay an amount due that is 30 days past the Due Date which is not the subject of a good faith dispute and for which a valid Tax Invoice has been issued.
- This Agreement will commence on the commencement date and will continue until the termination date. In the event of an early termination initiated by the Client, the Client will reimburse the Supplier the total monthly agreement amount until the termination date.
- Upon termination of this Agreement, the Supplier shall uninstall all remote monitoring and management software from all Client equipment. The Client acknowledges that this may leave its computers and other equipment without adequate systems for updates to operating systems, software, and virus scanning programs. The Supplier shall not be held responsible for any damages or consequences resulting from the removal of remote monitoring and management software.
8. Force Majeure
- The non-performance or delay in performance by a party of any obligation under the Agreement is excused during the time and to the extent that such performance is prevented by a circumstance or event beyond its reasonable control (Force Majeure Event), provided that the party affected by the Force Majeure Event uses its best endeavours to perform as soon as possible its obligations under the Agreement (including by the use of reasonable workarounds and interim measures).
- If a Force Majeure Event continues for more than 30 days, either party may terminate the Agreement immediately by notice in writing to the other party.
9. Governing Law
This Agreement is governed by and is to be construed and take effect in accordance with the laws of the State of Victoria.
10. Goods and Services Tax (GST)
- Any consideration to be paid or provided for a supply made under or in connection with the Agreement, unless specifically described in the Agreement as ‘GST Inclusive’, does not include an amount on account of GST.
- If GST is imposed on any Supply made under or in accordance with this Agreement, the Recipient of the Taxable Supply must pay to the Supplier an additional amount equal to the GST payable on or for the Taxable Supply, subject to the Recipient receiving a valid Tax Invoice in respect of the Supply at or before the time of payment.
- Payment of the additional amount must be made at the same time and in the same way as payment for the Taxable Supply is required to be made in accordance with this Agreement.
Terms and Conditions current as of 04/10/2022