TERMS & CONDITIONS
1. TERM
By engaging with us in any capacity, all parties acknowledge and accept the terms outlined herein.
These terms and conditions apply in full to all parties interacting with us, whether as clients, partners, suppliers, or other stakeholders.
The terms remain in effect for the duration of any ongoing engagement or interaction, unless ended earlier in accordance with these terms and conditions.
These terms and conditions will continue to apply as long as parties maintain any form of relationship or transaction with us, unless terminated earlier as specified herein.
We reserve the right to amend or terminate these terms and conditions at any time, in accordance with the processes described within this document.
If a party wishes to terminate their relationship or engagement, they must do so in line with the procedures set out in these terms and conditions.
These terms and conditions are effective for all parties who engage with us, regardless of the nature or scope of the relationship.
2. SERVICES
2.1 Scope of Services
This Agreement serves as a master agreement governing all Services and Goods we provide, sell or resell to you. The specific Services, and agreed service levels (if any), will be described in a Managed Services Agreement, one or more service agreements, statements of work, or schedules (each a “S OW”). Each SOW, once mutually agreed upon by both Parties, will be governed by this Agreement.
In case of any conflict between a SOW and this Agreement, the SOW will prevail, except in matters concerning warranties, limitations of liability or termination, where this Agreement will control unless expressly stated otherwise in the SOW.
We shall provide the Services using the level of skill, care, and diligence that a Client would reasonably expect from a professional Service Provider, ensuring compliance with all relevant laws and regulations.
3. GENERAL REQUIREMENTS
3.1 Environment
You agree not to modify or move the Environment or install software on it without our prior written approval to avoid delays or additional costs. Any services required to remediate issues caused by your unauthorised modifications to the Environment are considered out-of-scope and are not covered under any SOW.
3.2 Products
The Service Provider provides all hardware with the manufacturer’s warranty only. The Client acknowledges that the Service Provider is not the manufacturer of the products and, to the extent permitted by law, does not provide any additional warranties in relation to the products.
3.3 Software Requirements
All software in the Environment must be genuine and licensed, and you agree to provide proof of such licensing upon request. If we specify minimum hardware or software requirements in a SOW, you agree to implement and maintain these requirements throughout the term of the Services. The Service Provider cannot and does not knowingly work on non-licensed software. The Service Provider may assist you in purchasing the necessary software, if required.
Certain services necessitate the installation of software agents within the Environment (“Software Agents”) to enable remote access for IT support. You agree not to remove, disable, circumvent, or otherwise interfere with these Software Agents unless explicitly instructed by us. Access to the Software Agents is strictly monitored by the Service Provider. Upon termination of this Agreement, we will remove the Software Agents, and you must provide reasonable access to facilitate this. You agree to indemnify, defend, and hold us harmless against any liability arising from your failure to comply with this clause.
3.4 Updates
Updates and patches for hardware and software are created and distributed by third parties (such as equipment or software manufacturers). Where available, we will periodically install updates within the Environment, following the manufacturers’ guidelines. However, (i) we do not warrant or guarantee the performance of any update, (ii) we are not liable for any downtime or losses caused by the installation, use, or inability to use any update, and (iii) we may withhold an update if we reasonably determine it is incompatible with the Environment’s configuration or does not significantly improve its features or functionality. If we withhold an update that addresses a known critical security vulnerability, we will notify you. Any decision by us to withhold an update will not expand our liability, and our liability (if any) remains subject to the exclusions and limitations set out in this Agreement.
3.5 Vendor Authorisation
The Client shall ensure that the Service Provider is duly authorised to liaise with all necessary external vendors to facilitate the provision of Services. This authorisation includes, but is not limited to, the Client’s internet service provider, web hosting provider, and domain hosting provider. If authorisation is lacking, the Service Provider may charge for time spent obtaining it. The Client agrees to ensure authorisation for any new vendors as relationships commence.
3.6 Advice
From time to time, we may offer specific recommendations and guidance regarding the Services (“A dvice”). You are strongly encouraged to promptly act on our Advice, which may necessitate additional purchases or investments in the Environment at your expense. Unless explicitly stated in a SOW, any services required to remediate issues caused by your failure to follow our Advice are considered out-of-scope and are not covered under any SOW.
We are not liable for any issues or problems that arise from your failure to promptly implement our Advice including but not limited to downtime or security-related issues. You acknowledge that our Advice is not legal, financial, or other professional advice, and we accept no responsibility for reliance placed on it beyond the scope of the Services. If we determine that your failure to follow our Advice results in the Services becoming economically or technically unreasonable to provide, we may terminate the relevant SOW for cause. We provide recommendations regarding third party products or services as advisory only and do not guarantee their suitability or compatibility within the Environment. You assume responsibility for implementing these recommendations and may seek independent advice if necessary. You agree to indemnify and hold us harmless for any issues arising from following or not following our recommendations.
3.7 Client Responsibilities
The Client must, at no cost to the Service Provider:
(i) fulfil all obligations under this Agreement and any SOW in accordance with their terms;
(ii) conduct business in a courteous and professional manner with the Service Provider and its Personnel;
(iii) comply promptly with the Service Provider’s reasonable directions regarding the Services;
(iv) use the Services only for the purpose specified in this Agreement, and not permit any use for unauthorised purposes, which includes:
a. attempting to access, modify, or disrupt any service, system, or infrastructure not expressly authorised;
b. distributing unsolicited advertising, spamming, or propagating harmful code;
c. infringing third party intellectual property rights or violating any law.
(v) provide all necessary information, facilities, services, and assistance required by the Service Provider to deliver the Services, including diagnosing any issues within the Client’s Environment;
(vi) promptly inform the Service Provider of any changes that may materially affect the Services or their provision;
(vii) promptly notify the Service Provider of any deficiencies in performance of Services under this Agreement and to take all reasonable steps to mitigate the impact of such deficiencies;
(viii) refrain from altering, tampering with, or repairing the Services, or appointing a third party to do so;
(ix) comply with all applicable laws and regulations regarding the use of the Services; and
(x) promptly notify the Service Provider if unable to comply with any requests, explaining the reasons and suggesting alternatives to enable the continued provision of Services.
3.8 Authorised Contact(s)
Upon commencement of this Agreement, the Client must designate a representative authorised to act on the Client’s behalf in all matters related to the Services. This representative will remain in place until the Client provides notice of a replacement. The Client must ensure that the representative is reasonably available for contact by the Service Provider at all times.
3.9 Ownership of Goods
All Goods supplied by the Service Provider to the Client remain the property of the Service Provider until paid for in full, unless the Goods are provided under a lease or licence arrangement, in which case ownership does not transfer to the Client. Until such time as title passes to the Client (or where no title transfer occurs), the Client holds the Goods on trust and as bailee for the Service Provider. The security interests related to the Goods, including rights under the Personal Property Securities Act 2009 (Cth) (“PPS A “), are set out in clause 4.8 of this Agreement.
3.10 Insurance
Both Parties agree to maintain appropriate insurance coverage necessary to cover their respective risks and liabilities under this Agreement.
This insurance coverage shall include, but is not limited to, general liability, professional liability, and where applicable, cyber liability, as applicable to each Party’s operations. In addition, if we provide you with equipment or software, you agree to maintain commercial property insurance covering the full replacement value of such equipment or software. As part of the execution of this Agreement, the Client shall be required to confirm whether they have an active cyber liability insurance policy in place:
(i) in the event that the Client confirms the existence of such coverage, the Agreement shall proceed without further action in this regard; or
(ii) in the event that the Client does not maintain cyber liability insurance, the Client shall expressly acknowledge their understanding of the risks associated with cyber-related incidents and irrevocably waive any right to seek recourse or remedy from the Service Provider, its affiliates, or its insurers in the event of any loss, damage, or claim arising out of a cyber-related incident. It is hereby agreed that the amount of insurance carried by the Service Provider constitutes a commercially reasonable amount of insurance for the Service Provider to maintain.
3.10.1 Proof of Insurance
Prior to the commencement of Services, the Client shall provide the Service Provider with proof of insurance demonstrating the required coverage is in effect. Throughout the term of this Agreement, either Party may request satisfactory proof of insurance from the other, which must be provided within ten (10) business days of the request.
3.10.2 Notice of Changes
Each Party agrees to notify the other in writing at least thirty (30) days prior to any cancellation, modification, or lapse in the required insurance coverage.
3.10.3 No Limitation of Liability
The insurance requirements set forth herein are not intended to and shall not be construed to limit or modify any of the liabilities or obligations assumed by either Party under this Agreement.
3.11 Compliance with Laws
Each Party must comply with all laws and regulations directly applicable to the performance of its obligations under this Agreement.
4. FEES AND PAYMENT
You agree to pay the fees described in each SOW. If no fee schedule is included, you shall compensate us on an hourly basis according to our prevailing standard hourly rate.
4.1 Schedule
4.2 Expenses
Unless otherwise specified in an applicable SOW, the Client shall reimburse the Service Provider for all reasonable and necessary out-of-pocket expenses incurred during the performance of the Services. Such expenses include, but are not limited to, travel, accommodation, freight and delivery charges. The Service Provider shall substantiate such expenses with appropriate documentation if requested by the Client.
4.3 Annual Fee Increase
The Service Provider reserves the right to adjust the fees for Services annually, in line with changes in the Consumer Price Index (CPI) for Australia as published by the Australian Bureau of Statistics. The adjustment will be based on the percentage change in the CPI over the preceding twelve (12) month period and will take effect on the annual anniversary of this Agreement. Adjusted rates and fees will not be lower than the previous rates and will remain in effect until the next adjustment.
The Client agrees that this CPI-based adjustment does not constitute a material alteration to the Agreement and shall not be grounds for termination of this Agreement.
4.4 Fee Adjustments
The Service Provider reserves the right to vary fees for the Services from time to time due to external factors beyond the Service Provider’s control, such as increases in labour or material costs, currency fluctuations, or freight charges. The Client will be given at least thirty (30) days prior written notice of any such adjustment. This right to adjust fees is separate from the Annual Fee Increase outlined in clause 4.2 and applies to fee changes not related to CPI. During the thirty (30) day notice period, the Client may review and discuss the fee changes with the Service Provider.
4.5 Non-Refundable Fees
All fees paid under this Agreement, including any fees paid in advance and those for hardware and software, are non-refundable, regardless of any termination or suspension of services, except as otherwise required by applicable law. Returns of hardware or software after purchase are at the sole discretion of the Service Provider, unless required by law.
4.6 Taxes
You are responsible for all freight, insurance, and taxes or governmental fees associated with the Services (including, but not limited to goods and services tax, import or export duties, and excise taxes). Should you qualify for a tax exemption, you must provide us with a valid certificate of exemption or other appropriate proof.
4.7 GST
Unless stated as ‘GST inclusive,’ any price for a supply under this Agreement does not include GST, meaning GST will be added to the amount. If the supply is taxable, the Service Provider can charge the Client an additional amount for GST, calculated by multiplying the price by the current GST rate. The Client must pay the GST amount at the same time as the original price, provided the Service Provider has issued a valid tax invoice.
4.8 Security Interest
If required, the Service Provider may request the Client to provide a security interest over specific property, including Goods or other assets, as collateral for any outstanding sums owed. This Agreement constitutes a security agreement under the PPSA. The security interest applies to all Goods supplied by the Service Provider to the Client, including any present or after-acquired property, proceeds of Goods, and Goods that have been attached to or incorporated into other property. Where Goods are supplied on credit, the Service Provider retains a PMSI in the Goods under the PPSA until full payment is received.
The Service Provider may register a financing statement or financing change statement on the Personal Property Securities Register in relation to its security interest, including any PMSI, and will promptly release the security interest upon full payment of the sums due.
In the event of non-payment or default, the Service Provider may exercise its rights as a secured party under the PPSA. The Client grants the Service Provider the right to enter the Client’s premises during normal business hours to search for, retrieve, and remove secured Goods, provided reasonable notice is given, and disruption to the Client’s business is minimised.
The Service Provider may resell any retrieved Goods and apply the proceeds of the sale to amounts owed, with any surplus returned to the Client.
4.9 Non-Payment
Fees that remain unpaid after the Due Date will incur interest on the outstanding amount until payment is received, at the lower of 1% per month or the maximum allowable rate of interest under applicable law. A $45 charge applies to all dishonoured cheques. We reserve the right to immediately suspend part or all of the Services without further notice, if any undisputed fees are not received by the Due Date. Monthly or recurring charges will continue to accrue during any suspension period. The Client acknowledges that the Service Provider shall not be liable for any loss, damage, or costs incurred by the Client, directly or indirectly, as a result of such suspension, including but not limited to delays, data loss, or business interruptions.
4.10 Credit Terms and Authorisation
The Service Provider does not extend credit to new Clients. However, the Service Provider offers block-hour discount rates to reduce labour costs for upfront purchases. The Client acknowledges that any credit extended by the Service Provider over time is subject to review and may be reduced or withdrawn if the Service Provider, in its reasonable discretion, determines that the Client’s financial situation or ability to pay has become impaired. By submitting this application, the Client authorises the Service Provider to conduct inquiries into the banking, business, and trade references provided. The Client further acknowledges and consents to the Service Provider obtaining information from a credit reporting agency or other credit providers when assessing this application, or if any payment becomes overdue. Such information may include the Client’s creditworthiness, credit history, or credit capacity, as permitted under applicable privacy laws.
4.11 Limited Power of Attorney
The Client irrevocably appoints the Service Provider as its attorney, with specific and limited powers solely to recover any outstanding sums or to create, perfect, or enforce any security interest held as collateral for such sums due. The following conditions apply:
(i) Notice and Remedy Period: The Service Provider shall provide the Client with written notice of any default and a reasonable period to remedy it before exercising the power of attorney.
(ii) Scope and Duration: This power of attorney is irrevocable while any sum due remains unpaid and is strictly limited to actions necessary to enforce the security interest under this Agreement.
(iii) Good Faith: The Service Provider agrees to act reasonably and in good faith in exercising this power and will notify the Client in writing before undertaking any significant action.
(iv) Access to Premises: The Client grants the Service Provider access to its premises to retrieve secured assets under the power of attorney if sums remain unpaid after the notice and remedy period. The Service Provider agrees to notify the Client in writing before retrieval.
4.12 Underpayments or Overpayments
If an invoice is found to be incorrect after payment, any underpayment or overpayment will be recoverable by or from the Service Provider, as applicable. In the case of an overpayment, the excess amount will be set off against future amounts due by the Client under this Agreement.
4.13 Fee Disputes
Notices of fee disputes must be received by us within seven (7) days after the applicable Service is rendered or the invoice date, whichever is later; otherwise, you waive your right to dispute the fee thereafter. The Client must state the invoice number, disputed amount, and reasons for the dispute (“Invoice Dispute Notice”).
Upon receiving an Invoice Dispute Notice, the Service Provider will not debit the disputed amount until a determination is made. The Client must still pay any undisputed amounts. The Service Provider will review the dispute within seven (7) days of receiving the Invoice Dispute Notice and notify the Client of the outcome, including any amount payable and reasons for the decision. The Service Provider may decline a disputed invoice claim if the Client asserts that a subscription, specified seat-count, or any part thereof was unnecessary, as this will not relieve the Client from its obligation to pay for the Services and does not constitute a valid reason for disputing an invoice.
If the Client disputes the Service Provider’s determination, it must initiate the dispute resolution process set out in clause 14 of this Agreement within seven (7) days of notification. If not, the Client will be deemed to have accepted the determination.
5. ACCESS
You agree to grant us and our designated vendors the right to monitor, diagnose, manipulate, communicate with, retrieve information from, and otherwise access the Environment on a 24×7 basis solely for the purpose of enabling us to provide the Services. Our right to monitor, diagnose, or manage the Environment does not create any obligation for us to do so unless expressly stated in a SOW. It is your responsibility to secure, at your own expense and prior to the commencement of any Services, all necessary rights of entry, licenses, permits, or other permissions required for us to deliver the Services both physically and virtually.
You must ensure proper and safe environmental conditions at all times. We shall not be required to provide any Services under conditions that pose a safety or health risk or that would necessitate extraordinary or non-industry standard efforts.
We shall not be liable for any delay in performance or non-performance of any term or condition of this Agreement resulting directly or indirectly from your denial of full and free access to the Environment, your Personnel, or your premises as required under this Agreement. If there is anything that interferes with our access, we may, at our sole discretion, bill you for additional time incurred to gain access.
6. LIMITED WARRANTIES AND LIMITATIONS OF LIABILITY
6.1 Exclusion of Warranties
To the maximum extent permitted by law, the use of the Services by the Client (which includes the contents thereof and any storage or use of information) is at the Client’s sole risk.
The Services are provided on an ‘as is’ basis and except as provided under this clause 6 and in any express warranties contained in a SOW, to the extent permitted by the laws of the State of Victoria, all warranties, terms, and conditions (including, without limitation, warranties and conditions as to fitness for purpose and merchantability) implied by legislation or otherwise, are excluded by the Service Provider.
6.2 Warranties
Each Party represents and warrants to the other that:
(i) it has the full legal capacity and authority to enter into this Agreement;
(ii) it possesses all necessary licenses and consents required to enter into and perform its obligations under this Agreement;
(iii) entering into this Agreement will not result in a breach of any existing agreements with third parties; and
(iv) this Agreement is executed by individuals who have been duly authorised to bind the respective Parties.
The Service Provider warrants that the Services shall be performed:
(v) by qualified personnel in a professional and competent manner;
(vi) in accordance with the terms of this Agreement and any applicable SOW; and
(vii) in compliance with the commercial standards generally accepted within the Service Provider’s industry.
6.3 Statutory Guarantees and Non-Excludable Rights
Nothing in this Agreement excludes, restricts, or modifies the statutory guarantees, or any condition, warranty, right, or remedy conferred on either Party by any State or Federal legislation, or any other applicable law that cannot be excluded, restricted, or modified by agreement.
6.4 Liability Limitations
6.4.1 Limitation of Liability
To the extent permitted by law, neither Party shall be liable for any indirect, special, exemplary, consequential, or punitive damages, including but not limited to lost revenue, lost profits (except for fees owed to the Service Provider), savings, or other indirect or contingent economic losses arising from or related to this Agreement, any SOW, or the Services provided, nor for any data loss, data breaches, cybersecurity incidents or service interruptions, or for any delays in furnishing Services, even if advised of the possibility of such damages.
Nothing in this Agreement shall exclude or limit liability for: (i) death or personal injury caused by negligence; (ii) fraud or fraudulent misrepresentation; (iii) damages arising from the gross negligence, or wilful misconduct of the Party seeking to limit its liability; or (iv) any other liability that cannot be excluded or limited under applicable law.
Each Party’s liability shall be proportionately reduced to the extent that the claim arises from, or is contributed to by, the other Party’s actions, omissions, or failure to comply with its obligations under this Agreement.
6.4.2 Aggregate Liability
Except for these enumerated exceptions, the total liability of the Service Provider for damages from any and all claims arising out of or related to this Agreement, regardless of the action’s form (whether in contract, tort (including negligence), indemnification, or otherwise), including the breach of a condition or warranty that cannot be excluded, restricted, or modified by law, shall be limited to: (i) for breaches related to goods, the replacement or repair of the goods, or payment of the cost of replacement or repair; (ii) for breaches related to services (excluding service level failures), the re-supply of the services or the payment of the cost of re-supply; or (iii) if none of the above apply, the Service Provider’s total liability shall be limited to the total fees paid by the Client for the specific Service related to the claim (excluding hard costs for licenses, hardware, etc.) during the three (3) months immediately preceding the date on which the cause of action accrued.
The limitations in this paragraph do not apply to (i) reasonable legal fees awarded to a prevailing Party, (ii) your indemnification obligations, and (iii) amounts due under the non-solicitation provision of this Agreement.
6.4.3 Specific Limitations of Liability
In addition to the above limitations, the Service Provider shall not be liable for any damages, losses, or claims arising from:
(i) the Client’s failure to follow the Service Provider’s advice or instructions;
(ii) the provision of inaccurate or incorrect information by the Client to the Service Provider;
(iii) unauthorised modifications to the Environment or Services by the Client;
(iv) use of non-compliant or unlicensed hardware or software within the Environment by the Client;
(v) unauthorised use of software by the Client or any breach of software licences for software provided by the Client for installation by the Service Provider;
(vi) the Client’s failure to back up data properly, or its interference with any backup systems or processes implemented by the Service Provider;
(vii) any issues resulting from the Service Provider’s installation of software where the Client lacks proper authorisation to use that software;
(viii) security breaches resulting from the Client’s failure to implement recommended security measures;
(ix) the Client’s failure to secure its own systems, including but not limited to inadequate passwords, unpatched software, or unsecured devices; and
(x) errors or omissions by the Client or any related parties in the operation or management of the Environment or Services.
6.5 Survival
The provisions of this clause will survive any termination of the Agreement.
7. INDEMNIFICATION
Each Party (the “Indemnifying Party”) agrees to indemnify, defend, and hold harmless the other Party (the “Indemnified Party”), including each of its information providers, licensors, licensees, employees, officers, directors, and representatives, from and against any and all losses, damages, costs, expenses, or liabilities, including reasonable legal fees, arising out of or related to any breach of this Agreement, any acts or omissions by the Indemnifying Party, or any claims made by third parties against the Indemnified Party.
The indemnification under this clause shall not apply to any claim to the extent that such claim arises from or is caused by the Indemnified Party’s negligence, wilful misconduct, or breach of this Agreement.
The Indemnified Party shall promptly notify the Indemnifying Party in writing of any claim or cause of action for which indemnification is sought, and such failure to provide prompt notice shall not relieve the Indemnifying Party of its indemnification obligations unless the delay materially prejudices its ability to defend the claim.
The Indemnifying Party may assume and control the defence and resolution of any claim, provided that the Indemnified Party may participate in the defence at its own expense. No settlement may be made without the Indemnified Party’s prior written consent, not to be unreasonably withheld or delayed.
The provisions of this clause shall survive any termination or expiration of this Agreement.
8. TERMINATION
This Agreement shall commence on the Effective Date and shall continue until terminated as provided herein. Each SOW will have its own term and shall be terminated only as specified herein. The termination of one SOW shall not, by itself, cause the termination of this Agreement or affect the status or progress of any other SOW between the Parties.
8.1 Termination for Convenience
Neither Party may terminate this Agreement for convenience while an SOW is in progress, unless otherwise agreed in writing. An SOW may not be terminated for convenience before its natural expiration unless expressly permitted in the applicable SOW. If all active SOWs have been completed and no further Services are required, either Party may terminate this Agreement for convenience by providing thirty (30) days written notice to the other Party. If the Client otherwise terminates this Agreement or any SOW without cause and without the Service Provider’s consent, the Client will be responsible for the Termination Fee outlined in clause 8.2.
Notwithstanding the foregoing, the Service Provider may terminate this Agreement or any SOW at any time, without cause, by providing thirty (30) days written notice. The Service Provider may also cancel this Agreement at any time before the commencement of Services by notifying the Client if the Service Provider determines that providing the Services is not technically, commercially, or operationally feasible. Further, if the Service Provider ceases to offer a service generally, it may terminate the applicable SOW (or any part of it) with at least one hundred and twenty (120) days written notice to the Client.
8.2 Termination for Cause
Notwithstanding any other provisions expressed or implied in this Agreement, either Party may immediately terminate this Agreement or the relevant SOW by providing written notice to the other Party in the event that the other Party:
(i) goes into liquidation (other than a voluntary liquidation for the purpose of amalgamation or reconstruction) or receivership or becomes insolvent or enters into an agreement or composition with its creditors;
(ii) becomes subject to bankruptcy, dissolution, or any similar event affecting its ability to fulfil its obligations under this Agreement;
(iii) is subject to a force majeure event, as defined in clause 15.14, that continues for more than ninety (90) days;
(iv) commits any breach of this Agreement or of a SOW and fails to remedy that breach within thirty (30) days after receiving notice from the other Party requiring the breach to be remedied.
8.2.1 Consequences Upon Termination
On termination, the Client’s right to use the Services ceases immediately. If the Service Provider terminates this Agreement or any SOW for cause, or if you terminate any SOW for convenience prior to its expiration date, we shall be entitled to receive and you agree to pay all amounts that would have been paid to us had this Agreement or SOW remained in effect (“Termination Fee”). The Termination Fee represents the actual and reasonable costs incurred by the Service Provider in reliance on the Agreement. It is due within thirty (30) days of the termination date, which is defined as the date on which the Agreement is formally ended.
The Client shall continue all scheduled payments, including any outstanding amounts, for all work, purchases made on behalf of the Client, and expenses accrued and owing up through the termination date. Upon termination of this Agreement, the Parties shall mutually agree in writing whether any current SOWs shall remain in effect until the end of their respective term. In such cases, the terms set out herein shall continue to govern any ongoing SOWs, unless otherwise specified in the individual SOW or mutually agreed in writing by both Parties.
The termination or expiry of this Agreement shall not affect those rights or liabilities of each Party which accrued prior to the date of termination, nor shall it affect any provision expressly stated or implied to operate after termination. Any rights and obligations under a SOW that remains in effect after the termination date shall continue until the SOW’s completion.
8.2.2 Client Activity as a Basis for Termination
If (i) Client-supplied equipment hardware, software, or any actions undertaken or not taken by you cause malfunctions to the Environment requiring remediation by us on three (3) or more occasions, and you fail to resolve the issue as directed, or (ii) you or any of your Personnel, or representatives engage in behaviour that makes it impractical or unreasonable for us to provide the Services, we may terminate this Agreement or the applicable SOW for cause with fourteen (14) days written notice, or amend the SOW to exclude coverage for the malfunctioning items.
8.3 Repayment of Discounted Fees
If you are provided with a price discount or fee waiver under a SOW based on your commitment to retain our Services for a minimum term, and we terminate this Agreement or any SOW for cause, or you terminate this Agreement or any SOW without cause, you agree to pay us the amount of the fee waiver or the difference between the discounted rates and the non-discounted rates under that SOW, calculated from the effective date of the SOW through the date of termination.
8.4 Mutual Consent
The Client and Service Provider may mutually agree in writing to terminate a SOW or this Agreement at any time.
8.5 Licensed Equipment and Software Removal
Any equipment or software provided by the Service Provider to the Client under this Agreement, which is leased or licensed and not sold or transferred, must be returned or made accessible for removal upon termination of this Agreement or any SOW. The Client shall grant the Service Provider access during normal business hours for this purpose. If access is denied, or if any equipment is missing, damaged (excluding normal wear and tear), or Service Provider-supplied software is missing, the Service Provider may invoice the Client for the full replacement value, which the Client agrees to pay immediately. This clause applies only to leased or licensed items and excludes Goods intended for purchase under this Agreement or any applicable SOW.
8.6 Transition
If you request our assistance to transition away from our Services, we will provide such assistance if (i) all fees due to us are paid in full prior to our assistance, and (ii) you agree to pay our then-current hourly rate for such assistance, with up-front amounts as we may require.
8.7 Data Retention
Unless expressly stated in a SOW, we have no obligation to store or maintain any Client data beyond fifteen (15) days following the termination of this Agreement. We will be held harmless and indemnified by you against any claims, costs, fees, or expenses arising from or related to our deletion of your data beyond the specified timeframe.
9. CONFIDENTIALITY
9.1 Defined
For the purposes of this Agreement, “Confidential Information” refers to any non-public information disclosed by one Party (the “Discloser”) to the other Party (the “Receiver”) that is designated as confidential or should reasonably be understood to be confidential. This includes, but is not limited to business plans, financial data, customer and supplier lists, customer data, technical specifications, software code, research and development details, internal policies and documents, personal information, legal matters, and related information.
Confidential information also includes personal information. The Receiver shall treat personal information as Confidential Information and handle it in compliance with applicable privacy laws, including obligations to prevent unauthorised access, use, or disclosure.
Confidential Information does not include information that has entered the public domain through no wrongful act or omission of the Receiver, was independently developed by the Receiver, or was lawfully and independently provided to the Receiver by a third party not under an obligation of confidentiality.
9.2 Use
The Receiver agrees to maintain the confidentiality of the Discloser’s Confidential Information and not to use or disclose such information to any third party, except as expressly permitted in writing by the Discloser or as necessary to fulfil the Receiver’s obligations under this Agreement.
The Receiver agrees not to disclose or use Confidential Information, including personal information, in any manner that could result in harassment, harm, or doxxing of individuals. The Receiver shall ensure that data is disclosed only in compliance with applicable laws and with the Discloser’s written consent.
The Receiver shall ensure that any of its Personnel, or representatives who have access to the Discloser’s Confidential Information are bound by written confidentiality obligations that are at least as stringent as those contained in this Agreement.
9.3 Due Care
The Receiver shall exercise the same level of care to protect the Discloser’s Confidential Information as it uses to safeguard its own confidential and proprietary information, which must be at least a commercially reasonable standard of care. Should the Parties enter into any agreement related to Confidential Information (such as a business associate agreement) after the Effective Date, the agreement imposing higher confidentiality standards will govern the use of Confidential Information.
9.4 Compelled Disclosure
If the Receiver is legally required to disclose any Confidential Information, the Receiver shall promptly notify the Discloser in writing, allowing the Discloser to seek a protective order or other remedy. The Receiver will assist, at the Discloser’s expense, in obtaining such protection. If a protective order or waiver is not obtained, the Receiver may disclose only the portion of Confidential Information that legal counsel advises is legally required to be disclosed. The Receiver must take all reasonable steps to minimise any harm or data protection risks resulting from such disclosure, consistent with its legal obligations.
9.5 Return or Destruction of Information
Upon termination of this Agreement, or at any time upon the written request of the Discloser, the Receiver shall promptly return to the Discloser all documents and materials containing, reflecting, incorporating, or based on the Discloser’s Confidential Information. If the Discloser so directs, the Receiver shall instead destroy all such documents and materials and provide written certification of their destruction. This obligation includes, but is not limited to, the return or destruction of Confidential Information stored electronically or in hard copy form. The Receiver shall ensure that any third parties to whom it has disclosed the Discloser’s Confidential Information comply with these obligations. The Receiver shall confirm in writing its compliance with this section within ten (10) business days of such termination or request.
9.6 Survival of Confidentiality Obligations
Notwithstanding any termination or expiration of this Agreement, the Receiver’s obligations with respect to the confidentiality and protection of the Discloser’s Confidential Information shall survive for a period of three (3) years following such termination or expiration. The Receiver’s obligation to maintain the confidentiality of any trade secrets of the Discloser shall continue for as long as such information remains a trade secret under applicable law. Obligations regarding personal information and protections against doxxing shall remain in effect for as long as required by applicable law.
10. DATA PROTECTION AND PRIVACY
10.1 Compliance with Privacy Laws
The Service Provider shall comply with all applicable laws and regulations relating to the protection, use, storage, and processing of personal information, including but not limited to data breach notifications, Australian Privacy Principles and other privacy obligations under applicable Australian law. Both Parties agree to cooperate to address and comply with any changes or updates to relevant data protection and privacy laws during the term of this Agreement.
10.2 Service Provider Security Measures
10.2.1 Data Protection and Security Measures
The Service Provider shall implement and maintain appropriate technical and organisational measures to protect personal information against unauthorised access, disclosure, or loss, including reasonable cybersecurity measures in accordance with industry standards. The Service Provider shall further take all reasonable steps to prevent serious invasions of privacy, including unauthorised surveillance or misuse of personal information. The Service Provider shall ensure that all employees, agents, and contractors involved in handling personal information are trained on relevant privacy and data security measures to maintain compliance with Australian privacy laws and the terms of this Agreement.
The Service Provider shall use, collect, and store Client data, including personally identifiable information, only to the extent necessitated by this Agreement and any SOWs, and solely for the purposes specified therein. We will not use, disclose, or transfer such data or information except as necessary to perform our obligations under this Agreement, as specifically authorised by you, or in accordance with applicable law. The Service Provider shall ensure that the collection, use, and processing of Client data complies with all applicable data protection and privacy laws. The Service Provider shall only use personal information to fulfil its obligations under this Agreement.
10.2.2 Transparency and Consent
The Service Provider shall provide clear and accessible information to the Client and any affected end-users regarding:
(i) the purposes for which personal information is collected, used, and shared;
(ii) the types of personal information collected; and
(iii) any third parties or sub-processors to whom personal information may be disclosed.
The Service Provider shall obtain explicit and informed consent for any data processing activities, as required by law. The Client shall have the right to request details of how their personal information is used and shared, and access copies of any personal information held by the Service Provider.
10.2.3 Cross-Border Data Transfers
The Service Provider shall ensure that any overseas transfer of personal information complies with applicable Australian privacy laws. Before initiating such transfers, the Service Provider shall:
(i) verify that the foreign recipient provides privacy protections comparable to Australian standards through binding legal obligations or enforceable contracts;
(ii) obtain the Client’s explicit consent where required; and
(iii) notify the Client in writing of any new cross-border transfers or overseas data processing arrangements.
The Service Provider shall conduct due diligence on the recipient’s data protection practices to ensure ongoing compliance.
10.2.4 Liability Limitation
While the Service Provider shall implement and maintain robust security measures, it does not warrant or guarantee that these measures will prevent all security breaches, malware infections, cyberattacks, unauthorised access or other malicious activities. The Client acknowledges that no security measures can fully eliminate all risks of unauthorised access or breaches. The Service Provider shall not be held liable for any damages or losses resulting from such incidents, except to the extent caused by the Service Provider’s failure to comply with applicable laws, or its gross negligence or wilful misconduct.
The Service Provider shall not be liable for damages arising from a serious invasion of privacy unless caused by its intentional or reckless acts. Liability under this provision will be limited as set out in clause 6.3, or to the extent allowed by law.
10.2.5 Automated Decision-Making
Where decisions involving the use of personal information or affecting the Client are made using automated processes, the Service Provider shall:
(i) inform the Client of the use of such processes;
(ii) set out the categories of personal information processed;
(iii) describe the types of decisions determined solely by automated decision-making processes;
(iv) explain the types of decisions for which an action, substantially and directly related to the decision-making process, is performed by automated means;
(v) provide details about how the automated decisions are made and their potential impact on individuals; and
(vi) allow the Client to request a review of significant automated decisions by a human representative, where feasible.
10.3 Data Breach Notification
In the event of any unauthorised access, disclosure, or loss of personal information (a “Data Breach”), the affected Party shall notify the other Party without undue delay. The affected Party shall comply with its legal obligations, including providing notice to relevant authorities and affected individuals where required. Both Parties agree to cooperate and provide reasonable assistance to one another to facilitate compliance with these obligations. Notification must:
(i) Be made within seventy-two (72) hours of discovering the Data Breach.
(ii) Include a description of the nature of the Data Breach, the types of personal information affected, and steps being taken to mitigate the breach.
Each Party is responsible for all reasonable and proportionate costs related to investigating, mitigating and remediating Data Breaches caused by their own systems, actions, or omissions. For breaches involving both Parties, costs will be allocated proportionately based on their degree of fault.
The Service Provider will assist the Client with the investigation and mitigation of any breaches caused by their systems, actions, or omissions at the Client’s expense, billed at standard hourly rates.
Both Parties agree to maintain comprehensive logs of their most critical data and activities for a reasonable amount of time, as determined by the operational needs and regulatory requirements of each Party. These logs shall include, but are not limited to, access logs, transaction logs, system events, data-handling activities and any other relevant activities that could aid in diagnosing and responding to any data breaches or security incidents.
10.4 Client Security Measures
The Client is responsible for maintaining the security of its own systems and data, including implementing and maintaining appropriate security measures such as firewalls, antivirus software, and encryption. The Client shall ensure that all end-user devices accessing the Environment comply with the Service Provider’s security policies and guidelines, as updated and provided by the Service Provider from time to time.
10.4.1 Data Accuracy and Sharing
The Client warrants that all data, information, and materials provided to the Service Provider under this Agreement are accurate, complete, and up-to-date. The Client further warrants that it has the legal right and all necessary permissions to share such data with the Service Provider for the purposes of delivering the Services. The Client agrees to indemnify and hold harmless the Service Provider against any claims, losses, or damages arising from the Client’s failure to obtain the necessary permissions to share such data.
10.4.2 Obligation to Mitigate
The Client agrees to take all reasonable steps to mitigate any damages, losses, or liabilities arising from or related to a breach of this Agreement or any data breach involving the Client’s information.
10.5 Data Loss
Under no circumstances will the Service Provider be responsible for any data lost, corrupted, or rendered unreadable due to communication and/or transmission errors, related failures, equipment failures (including but not limited to silent hardware corruption-related issues), or our failure to backup or secure data from portions of the Environment that were not expressly designated in the applicable SOW as requiring backup or recovery services. The Client acknowledges that there are inherent risks in providing support to computer systems, including but not limited to security breaches, data loss, data corruption, or complete loss of files or directories. The Service Provider shall not be liable for damages arising from such risks or from the failure of any maintained storage device, data backup device, or load balancing functionality to operate in an error-free manner, unless expressly stated in a SOW.
10.6 Data Backup and Recovery
The Service Provider shall provide data backup and recovery services as specified in the applicable SOW. The Client is responsible for ensuring that critical data is regularly backed up in accordance with the agreed schedule unless the Service Provider has been expressly engaged to manage backups. It is the responsibility of the Client to ensure that prescribed backup operations performed by the Service Provider are adequate.
Successful implementation of the Service Provider’s backup procedures depends on the Client’s compliance with the Service Provider’s instructions and procedures. The Client shall not alter, disable, or interfere with any software or hardware systems implemented by the Service Provider to facilitate the backup process. In the event of data loss, the Service Provider will assist in recovery efforts as per the terms of the SOW.
10.7 Data Retention and Destruction
The Service Provider shall retain personal information only for as long as necessary to fulfil its obligations under this Agreement or as required by applicable law. Upon termination of the Agreement, the Service Provider will securely delete or return personal data within thirty (30) days at the Client’s request and confirm completion, unless retention is required by law.
11. INTELLECTUAL PROPERTY AND OWNERSHIP
11.1 Defined
For the purpose of this Agreement, “Intellectual Property” shall mean all intellectual property rights, including but not limited to patents, trademarks, service marks, trade names, copyrights, moral rights, trade secrets, know-how, confidential information, proprietary processes, designs, databases, database rights, inventions, and any other proprietary rights or forms of intellectual property, whether registered or unregistered, and all applications for registration thereof, which may now or in the future subsist.
11.2 Pre-Existing Intellectual Property
All Intellectual Property in any pre-existing materials, products, software, documentation, or other work products that were created, developed, or acquired by either Party prior to the commencement of this Agreement shall remain the sole and exclusive property of the respective Party. Each Party grants the other a non-exclusive, non-transferable, non-sublicensable license to use its pre-existing Intellectual Property solely to the extent necessary to fulfil its obligations under this Agreement and any applicable SOW. This license shall terminate immediately upon the expiration or termination of this Agreement or the applicable SOW.
11.3 Client Data
Client data provided to the Service Provider remains the Client’s property. The Service Provider will use such data and Intellectual Property solely for fulfilling its obligations under this Agreement.
11.4 Deliverables
Unless otherwise expressly agreed in writing, all Intellectual Property in Deliverables created in connection with the Services remains the property of the Service Provider or its licensors. “Deliverables” shall mean any and all materials, products, software, documentation, reports, analyses, and other work products developed or provided by the Service Provider to the Client pursuant to this Agreement and any applicable SOW.
11.5 Usage Rights
Subject to this Agreement, the Service Provider grants the Client a non-exclusive, non-transferable, non-sublicensable licence to use the Deliverables for the purposes contemplated by the relevant Services or Engagement Document.
Any other use requires the Service Provider’s prior written consent. The Client’s license to use the Deliverables shall terminate immediately upon expiration or termination of this Agreement or applicable SOW. Upon termination, the Client shall cease use and return or destroy all copies of the Deliverables, as directed by the Service Provider.
11.6 Restrictions on Use
Unless otherwise agreed in writing, the Client must not:
(i) modify, alter or create derivative works based on the Deliverables;
(ii) distribute, sell, lease, license, sublicense, assign, or otherwise transfer the Deliverables to any third party;
(iii) reverse engineer or otherwise attempt to derive the source code of any software Deliverables, except as permitted by law; and
(iv) remove or alter proprietary notices , labels, or marks on the Deliverables.
11.7 Residuals
Notwithstanding any other provision of this Agreement, the Service Provider shall be free to use, for any purpose, the Residuals resulting from the Services provided to the Client, provided that such use does not result in the disclosure or use of the Client’s Confidential Information or trade secrets. The term “Residuals” means information in non-tangible form which is retained in the unaided memory of persons who have had access to the Client’s information, including ideas, concepts, know-how, skills or techniques.
12. THIRD PARTY PRODUCTS AND SERVICES
12.1 Reliance on and Substitution of Third Party Products and Providers
The Client acknowledges that the Services provided under this Agreement may rely on third party products and services. Not all third party products and services may be explicitly identified as such in a SOW. The Service Provider reserves the right to utilise or change third party providers at its sole discretion, provided that such changes do not materially diminish the Services provided to the Client.
12.2 Third Party Support
You acknowledge that any issues or defects with third party products must be addressed directly with the manufacturer or third party reseller, and we shall not be responsible for any consequential, incidental, or indirect damages arising from the use or inability to use such products. If you request our assistance with resolving any issues associated with third party products you agree to pay our then-current hourly rate for such assistance, with up-front amounts as we may require.
Should we determine that a hardware or software issue necessitates support from a vendor or manufacturer, we may contact the vendor or manufacturer on your behalf and pass onto you all associated fees and costs.
12.3 Third Party Cost Increases
Prices for subscriptions provided by third party suppliers may be subject to change. Any such changes will be communicated to the Client and automatically reflected in the Client’s billing cycle. The Client agrees to indemnify and reimburse us for all third party and supplier costs incurred on behalf of the Client and invoiced by us.
12.4 Liability Disclaimer
The Client acknowledges that the Service Provider cannot be held responsible for any loss, damage, or disruption arising from vulnerabilities, faults, failures, performance issues, or unavailability of any third party networks, systems, infrastructure, products, or services, which are provided “as is”. Any and all risks associated with third party products or services are assumed by the Client. The Service Provider disclaims all liability for the quality, functionality, performance, uptime, or operability of any third party products and provides them without any warranties, including but not limited to implied warranties, unless explicitly stated in a SOW.
12.5 Adherence to Third Party Policies
Where the Service includes the provision of internet or other wholesale transmission services, or any third party products, the Client agrees to abide by the relevant standard usage policies and terms of those providers, which may change from time to time.
We will make reasonable efforts to assign, transfer, and facilitate all applicable warranties and third party service level commitments for third party products to you.
12.6 Third Party Software Obligations
If the Client terminates this Agreement or any associated services before the end of their term, and the Service Provider has procured any term-based third party software, licenses, subscriptions, or services on behalf of the Client, the Client shall remain responsible for all amounts payable under such third party agreements for the full duration of the committed term. This obligation includes any fees or costs that would have become due during the remainder of the term, regardless of the termination of this Agreement or any SOW. The Client’s payment responsibility under this clause shall survive the termination of the Agreement.
12.7 Microsoft NCE License Termination or Transfer Costs
Should the Service Provider elect to purchase a twelve (12) month commitment for a Microsoft New Commerce Experience (NCE) license, the Service Provider reserves the right to pass on any and all costs associated with the transfer or early termination of the NCE license to the Client if the business relationship is terminated before the end of the twelve (12) month period. This includes, but is not limited to, any costs incurred in transferring the license to another Cloud Solution Provider partner or any early termination fees if the license cannot be or is not transferred. The costs passed on to the Client will be based on the rules, policies, and fee structures stipulated by Microsoft at the time of termination or transfer. The Service Provider will inform the Client of any changes to Microsoft’s policies that might impact these costs as soon as reasonably practicable after becoming aware of such changes.
12.8 Telecommunications or Network Solutions Termination Costs
Should the Service Provider purchase a term-based telecommunications or network solution on behalf of the Client, it is agreed that if the business relationship between the Service Provider and the Client is terminated prior to the conclusion of the term for any reason, the Service Provider reserves the right to pass on to the Client any and all costs incurred as a result of such termination, including but not limited to early termination fees, remaining service charges, and any other related costs.
13. ADDITIONAL TERMS
13.1 EULAs
13.2 BYOD
The Service Provider is authorised to access all devices, peripherals and/or computer processing units, including mobile devices (such as laptops, computers, smart phones and tablet computers) that are connected to the Environment (collectively, “Devices”), irrespective of whether such Devices are owned or otherwise controlled by the Client. Unless otherwise stated in a SOW, Devices will not receive or benefit from the Services while the Devices are detached from, or unconnected to, the Environment. The Service Provider shall not be responsible for diagnosing or remedying any issues within the Environment caused by the connection or use of unknown Devices, nor shall the Service Provider be obligated to provide Services to any unknown Devices.
13.3 User Count Audit and Billing Adjustments
It is the Client’s responsibility to promptly inform the Service Provider of any changes to the number of managed users, including user offboarding. The Service Provider shall periodically review the managed user count in accordance with its internal audit schedule. If the audit reveals discrepancies in the reported user count, the Service Provider reserves the right to adjust the service fees accordingly. Reductions in user counts will take effect in the next billing cycle, and no credits will be issued for overcharges incurred prior to the adjustment.
13.4 Artificial Intelligence
The Service Provider may use Artificial Intelligence (AI) technologies to enhance and optimise the Services. The Service Provider will ensure that all AI-related activities comply with applicable data protection laws. While AI technologies will be implemented to meet industry standards for performance and reliability, the Service Provider does not guarantee that AI technologies will be error-free or achieve specific results. The Client agrees to use AI-driven recommendations responsibly and acknowledges that the Service Provider is not liable for any damages arising from the use or misuse of AI technologies, except in cases of gross negligence or wilful misconduct.
If the Client implements or uses AI tools, including those provided or configured by the Service Provider, the Client assumes full responsibility for ensuring compliance with applicable laws, managing data access and permissions, and addressing any risks associated with their use or outcomes. The Service Provider is not liable for risks or losses arising from the Client’s use or misuse of AI tools.
14. DISPUTE RESOLUTION
Subject to this clause, a Party may not commence legal proceedings without first complying with the procedure set out in this clause.
14.1 Good Faith Negotiations
In the event of any dispute arising out of or in connection with this Agreement, the Parties shall first seek to resolve the dispute through good faith negotiations. Either Party may initiate this process by providing written notice to the other Party, outlining the nature of the dispute.
14.2 Mediation and Arbitration
14.2.1 Mediation
If the dispute cannot be resolved through negotiations within fourteen (14) days, the Parties agree to attempt to resolve the dispute through mediation. The mediation will be conducted in accordance with the rules and procedures of the Australian Disputes Centre (ADC), or other alternative dispute resolution body as mutually agreed upon by the Parties. The mediation shall be held in a mutually agreed upon location, and the Parties agree to participate in good faith to resolve the dispute.
Each Party shall bear its own legal and other costs incurred in connection with the mediation, and the mediator’s fee shall be split equally between the Parties.
14.2.2 Arbitration
If the dispute is not resolved through mediation within thirty (30) days from the date of the mediation notice, either Party may submit the dispute to binding arbitration. The arbitration will be conducted in accordance with the rules of the ADC, or other arbitration organisation or forum as mutually agreed upon by the Parties. In case of any conflict between those rules and the procedures herein, this clause shall prevail. The arbitration shall be held in a mutually agreed upon location, before an arbitrator mutually agreed upon by the Parties.
The arbitrator shall have expertise in contract law, intellectual property, and information technology transactions, where possible. If the Parties cannot agree on an arbitrator within seven (7) days after a demand for arbitration is filed, the arbitration organisation or forum shall appoint the arbitrator.
The costs of the arbitration, including the arbitrator’s fees, shall be borne by the Parties as determined by the arbitrator in the final award. Each Party shall bear its own legal and other costs incurred in connection with the arbitration. The decision of the arbitrator shall be final and binding on the Parties.
14.2.3 Electronic Mediation and Arbitration
The Parties agree that mediation or arbitration under this Agreement may be conducted electronically via secure, legally compliant video conferencing platforms that ensure confidentiality and data protection. Protocols for electronic hearings, including document sharing, will be mutually agreed upon and may be amended by consent. Outcomes will be legally binding and enforceable under the laws of the State of Victoria, with all proceedings complying with applicable Australian legal standards.
14.2.4 Court Proceedings
If any dispute, controversy, or claim arising out of or in connection with this Agreement is not resolved through mediation or arbitration as provided above, or if either Party seeks injunctive or equitable relief, then either Party may initiate court proceedings.
15. MISCELLANEOUS
15.1 Acknowledgment of Risk Allocation
Each Party acknowledges that the terms of this Agreement have been drafted in good faith to reflect a fair and transparent allocation of risks and responsibilities.
15.2 Publicity
Neither Party will advertise or publicly announce any matter relating to the existence of this Agreement or disclose any of its terms, without the other Party’s prior written consent, which will not be unreasonably withheld.
15.3 Compliance
Unless otherwise expressly stated in a SOW, the Services are not designed, nor shall they be used, to attain the Client’s full regulatory compliance with any rules, regulations or requirements applicable to the Client’s business or operations. The Client remains solely responsible for determining and achieving its compliance obligations.
15.4 Disclosure
The Client warrants no law or regulation impedes our provision of Services. The Client agrees to notify us if the Client becomes subject to any of the foregoing which, in our discretion, may require a modification to the scope or pricing of the Services.
15.5 Exclusion of Consumer Guarantees
The Client agrees that the Services are supplied or acquired in trade or commerce, within the meaning of Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)). Where the Client is not a consumer for the purposes of Australian Consumer Law, the Parties further agree that the consumer guarantees under Australian Consumer Law do not apply to this Agreement, and that it is fair and reasonable to exclude them. However, nothing in this Agreement excludes, restricts, or modifies any rights or remedies that cannot be lawfully excluded under Australian Consumer Law or any other applicable law.
15.6 Assignment
Neither this Agreement nor any SOW may be assigned or transferred by either Party without the prior written consent of the other Party. Notwithstanding the above, the Service Provider may assign its rights and obligations under this Agreement to a successor in ownership in connection with any merger, consolidation, or sale of substantially all the assets of its business, or any other transaction in which more than fifty percent (50%) of its voting securities are transferred. The Service Provider shall give the Client at least thirty (30) days prior written notice of such assignment. The assignee must be reasonably capable of fulfilling the assignor’s duties and obligations under this Agreement, including financial obligations, and must confirm this in writing. This Agreement will be binding upon any Parties to whom it is permitted to be assigned or transferred.
Unless the Service Provider consents to an assignment by the Client and the assignee assumes all rights and obligations under this Agreement, the Client shall remain liable for the Termination Fee. Any attempted assignment without consent is void. Unless we expressly agree in writing to release you, you remain liable for all obligations under this Agreement even after an assignment. All applicable termination and repayment provisions (including early Termination Fees) will continue to apply.
15.7 Amendment
Any modification or amendment to this Agreement or any SOW must be in writing and agreed upon by both Parties.
15.8 Time Limitations
The Parties agree that, unless otherwise prohibited by law, any action arising from this Agreement or any SOW must be initiated within twelve (12) months from the date the cause of action accrues, or the action will be permanently barred.
15.9 Severability
If any provision of this Agreement or a SOW is declared invalid, such provision will be ineffective only to the extent of the invalidity, and the remainder of that provision and all remaining provisions of this Agreement or any SOW will be valid and enforceable to the fullest extent permitted by applicable law.
15.10 Collections
If the Service Provider is required to initiate any collections-related action due to non-payment of the Client’s account, the Client will be liable for all costs incurred by the Service Provider in connection with the enforcement of its rights. These costs include, without limitation, legal costs on a solicitor and own client basis, fees charged by debt collection agencies or mercantile agents, and dishonour or bank fees incurred in connection with failed payments or remittances made, or that should have been made, by the Client.
15.11 Other Terms
The Service Provider will not be bound by any terms or conditions printed on or included in any purchase order, invoice, memorandum, or other written communication provided by the Client, unless duly incorporated into this Agreement, a SOW, or unless the Service Provider has expressly accepted those terms in writing.
15.12 No Waiver
The failure of either Party to enforce or insist upon compliance with any term of this Agreement or any SOW does not constitute a waiver of that term.
15.13 Entire Agreement
This Agreement, along with all SOWs, constitutes the entire agreement between the Parties. No representation or statement not embodied herein is binding.
15.14 Force Majeure
Neither Party shall be liable for costs, delays, or failures to perform any obligations under this Agreement or any SOW due to circumstances beyond their reasonable control. Such circumstances include, but are not limited to, acts of God, natural disasters, pandemics, government actions, acts of terrorism, labour disputes, widespread cybersecurity incidents (e.g., infrastructure and ransomware attacks or critical software vulnerabilities), and other force majeure events.
If a Party seeks to rely on this clause, it must notify the other Party in writing as soon as reasonably practicable, detailing the force majeure event and the extent to which it is unable to perform its obligations; and use reasonable endeavours to minimise the duration and adverse consequences of the force majeure event.
For the avoidance of doubt, this clause does not apply to obligations relating to routine data security or confidentiality measures where the affected Party could reasonably have mitigated the risk. This clause also does not apply to any obligation to pay amounts due and payable under this Agreement.
15.15 Non-Solicitation
For the duration of this Agreement and any SOW and for a period of twelve (12) months following their termination, the Client agrees not to directly or indirectly solicit, induce, or influence any of the Service Provider’s Personnel to terminate or reduce their employment, agency, or business relationship with the Service Provider For the purposes of this clause, Personnel includes only those employees and contractors, consultants, suppliers, agents and subcontractors with whom the Client had direct interactions.
15.15.1 Compensation
In the event of a breach of the terms of this section, the Parties acknowledge and agree that the damages to the other Party would be difficult or impracticable to determine, and in such event, the Client shall pay the Service Provider liquidated damages, not as a penalty, equivalent to twenty-five percent (25%) of the first-year salary of the solicited Personnel. This percentage reflects a genuine pre-estimate of the loss that the Service Provider would suffer due to such a breach.
The Client shall also reimburse the Service Provider for all reasonable recruitment and training costs incurred to replace any solicited Personnel, and for any lost revenue attributable to the solicitation of the Service Provider’s Personnel. The Service Provider may seek injunctive relief to prevent further breaches of this clause.
If any provision of this clause is deemed invalid or unenforceable, it will be adjusted to the minimum extent necessary to preserve the intent and effect of this clause.
15.16 Survival
The provisions contained in this Agreement and any SOW that by their context are intended to survive termination or expiration of this Agreement will survive.
15.17 Governing Law
This Agreement shall be governed, construed and enforced in accordance with the laws of the State of Victoria and the Parties submit to the exclusive jurisdiction of the State of Victoria courts.
15.18 No Third Party Beneficiaries
This Agreement and any SOW is entered into solely for the benefit of the Parties involved. It is not intended to confer any rights or benefits upon any third party, nor shall any third party have the right to rely on or enforce any part of this Agreement.
15.19 Usage in Trade
No trade usage, or other regular practice of dealing between the Parties shall be used to modify, interpret, supplement, or alter the terms of this Agreement or any SOW in any way.
15.20 Notices
Where any notice, amendment, or similar communication is required under this Agreement or any SOW, it may be sent by mail, overnight courier, or email. Such communications will be deemed delivered:
(i) three (3) business days after being deposited in the mail, provided it is sent by registered or certified mail, postage prepaid;
(ii) one (1) business day following delivery by an overnight courier service;
(iii) immediately upon sending when sent by email, provided the recipient’s system is functioning properly and capable of receiving the email.
Notices sent by email must be addressed to the recipient’s last known email address, all other notices must be sent to the addresses contained herein. Each Party agrees to promptly update the other Party in writing of any changes to their contact information to ensure proper delivery of all notices.
All electronic documents and communications between the Parties will satisfy any writing requirement under this Agreement.
15.21 Independent Contractor
The Service Provider is an independent contractor and not an employer, employee, partner, joint venture, agent, principal, affiliate, or any other form of representative of the Client, and nothing in this Agreement shall be construed to create such a relationship.
15.22 Subcontractors
Should the Service Provider elect to subcontract any portion of the Services, it will ensure the quality of the subcontracted work as if the Service Provider itself had performed the Services.
15.23 Counterparts
This Agreement can be signed in multiple counterparts, electronically or otherwise, each of which will be considered an original, and together they will constitute one agreement.
16. INTERPRETATION
This clause shall apply to and govern the interpretation of both this Agreement and any SOW:
(i) (singular and plural) words in the singular includes the plural (and vice versa);
(ii) (currency) a reference to $; or “dollar” is to Australian Dollar;
(iii) (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 the corresponding meaning;
(iv) (legislation) reference to any legislation includes any statutory modification or re-enactment of that Act for the time being in force;
(v) (headings) clause headings are included for convenience only and do not affect the interpretation of any provisions, and references to a clause number includes its sub-clauses;
(vi) (includes) the word “includes” and similar words in any form is not a word of limitation;
(vii) (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.
17. DEFINITIONS
“Advice” means recommendations or guidance provided by the Service Provider in the course of delivering the Services. Advice is limited to IT operational, technical, and configuration matters directly related to the Services. Advice may be provided via email, service tickets, reports, or other documented communications.
“Agreement” means these Terms and Conditions, as varied, novated, ratified or replaced from time to time.
“Authorised Contacts” means representatives of the Client designated as having the authority to provide directions or consent.
“Business Day” means any day other than a Saturday, Sunday, or any public holiday recognised in the State of Victoria. 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. For clarity, any reference to a “day” in this Agreement means a calendar day unless specifically stated to be a Business Day.
“Client” means any individual or entity that engages, interacts, transacts, or otherwise has a business or commercial relationship with us, including but not limited to clients, customers, partners, suppliers, contractors, service providers, or other stakeholders, and includes their respective employees, contractors, agents, representatives, and any authorised users.
“Confidential Information” means any non-public information disclosed by one Party to the other Party that is designated as confidential or should reasonably be understood to be confidential. This includes, but is not limited to business plans, financial data, customer and supplier lists, customer data, technical specifications, software code, research and development details, internal policies and documents, personal information, legal matters, and related information.
“Data Breach” means any unauthorised access, disclosure, or loss of personal information, whether accidental or intentional, that compromises the security, confidentiality, or integrity of such information, and which may require notification to affected individuals or authorities under applicable privacy laws.
“Deliverables” means any materials, products, software, documentation, reports, analyses, and other work products developed or provided by the Service Provider pursuant to this Agreement and any SOW.
“Device” means all devices, peripherals, or computer processing units including mobile devices, that are connected to the Environment.
“Discloser” means the Party disclosing Confidential Information.
“Due Date” means the date by which payment for invoices must be received by the Service Provider.
“Effective Date” means the latest date of the signatures of the Parties on this Agreement.
“Environment” means the portion of any computer network, system, peripheral, or device that the Service Provider maintains, monitors, or operates under a SOW.
“EULA” means end-user licence agreements, terms of service, customer agreements, subscription terms, or other similar third-party terms established between the licensor and the Client.
“Goods” means any tangible items supplied or sourced by the Service Provider, including but not limited to computer hardware, software, and any related or ancillary items provided in connection with these products, including third-party products. Goods do not include labour, configuration, or installation services, which are classified as Services.
“Indemnified Party” means the Party seeking indemnification.
“Indemnifying Party” means the Party providing indemnification.
“Intellectual Property” means all intellectual property rights, including but not limited to patents, trademarks, service marks, trade names, copyrights, moral rights, trade secrets, know-how, confidential information, proprietary processes, designs, databases, database rights, inventions, and any other proprietary rights or forms of intellectual property, whether registered or unregistered, and all applications for registration thereof, which may now or in the future subsist.
“Invoice Dispute Notice” means a written notice from the Client specifying the invoice number, the disputed amount, and the reasons for disputing the invoice.
“Party/Parties” means the entities that have entered into this Agreement. 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.
“Personnel” means all employees and contractors, consultants, suppliers, agents and subcontractors of either Party.
“PMSI” means a Purchase Money Security Interest as defined in the PPSA.
“PPSA” means the Personal Property Securities Act 2009 (Cth) and any regulations made pursuant to it.
“Receiver” means the Party receiving Confidential Information.
“Residuals” means information in non-tangible form retained in the unaided memory of persons who have had access to the Client’s information, including ideas, concepts, know-how, skills, or techniques.
“Service Provider” means iQtec Consulting (Aust) Pty Ltd, also referred to as “we,” “us,” or “our”.
“Services” means all intangible services provided by the Service Provider to the Client, including but not limited to consulting, support, labour, system configuration, installation, software licenses, and any third-party Services procured or managed by the Service Provider, together with any Goods sold or resold as part of service delivery.
“Software Agents” means software components installed within the Environment that facilitate supporting, monitoring, diagnosing, manipulating, communicating, retrieving information from, and otherwise accessing the Environment.
“SOW” means any managed services agreement, service agreements, schedules or other documents between the Parties that describe the technical and procedural details of the Services provided by the Service Provider.
“Termination Fee” means the amount payable by the Client to the Service Provider if the Client terminates this Agreement or any SOW without cause prior to its expiration date, or if the Service Provider terminates this Agreement or any SOW for cause.