HD IT Support Agreement – Terms and Conditions
Definitions and Interpretation
In these Conditions, the Rate Schedule and every Quote, Proposal, Order, Plan contract, or other arrangement in connection with the supply of Goods or Services by HD IT the following words have the following meanings:
After Hours means any time outside of the ‘Support Coverage Hours’ in the ‘Agreement Summary’ section above. This will vary depending on your selected agreement plan option.
Business Hours means the days and times defined in ‘Support Coverage Hours’ in the ‘Agreement Summary’ section above. This will vary depending on your selected agreement plan option;
Client, You or Your means a person or business entity who seeks or obtains a quote for, or who orders, Goods or Services from HD IT, and includes both a person whose name is on the Order, Proposal, or on an email attached to which is an order, a person who places an order, and a person on whose behalf an Order is placed or on whose behalf it appears an order is placed, and in any case each of their heirs, successors and assigns;
Conditions means these terms and conditions;
Goods means any goods and/or services sourced by Us or provided by Us in connection with any such goods and/or services including computer hardware and Software and any goods or services provided in connection with any of those things;
GST has the meaning given to it under A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Order means any order, or approved quote, or approved proposal, requested by You to Us for Goods or Services in any form;
Quote or Proposal means a quote provided to You by Us;
Period or Term means a particular number of half-days, days, weeks, fortnights, months, or any other period, as may be agreed between Us and the You as the period during which some Services will be provided;
Plan or Agreement means any arrangement between Us and You (whether alone or in conjunction with any other person) for Services and/or the provision of Goods provided by Us under an arrangement in connection with Work agreed to be done or progressed for or on behalf of You or any other person at Your request, including as set out in a Plan Schedule;
Plan Schedule means the key terms applicable to Plans as set, and as may be varied by Us, from time to time in its absolute discretion without notice to You;
Public Holidays means any day which is a public holiday throughout New South Wales other than a bank holiday;
Rates means the hourly rates and other charges for Services (including any call-out fees and any Return/Cancellation Fees) set out in the Agreement Summary, Investment Summary, Rates Schedule, a Plan, Plan Schedule, Quote, Proposal, contract or arrangement entered into by Us and You or in these Conditions, and includes any monies payable to Us on a quantum merit basis for any work it has done;
Rate Schedule means the schedule of rates, charges and conditions for the services of Ours as set, and as may be varied, by Us from time to time in its absolute discretion without notice to You;
Reasonable Assistance Limits has the meaning set out in clause 18;
Return/Cancellation Fee means a fee charged pursuant to clause 13 as set by Us from time to time;
Service request means a request for service such as additions (adds), moves, changes and technical assistance;
Services means the provision of any services by Us including Work, advice and recommendations;
Software includes software and any installation, update, associated software and any services provided in connection with any of these things;
Us, Our or We means HD IT ABN 59 339 678 158 and its heirs, successors and assigns; and
Work means anything We may do, provide, customise, produce or acquire, whether or not in connection with, or for the purposes of, You or Your use or benefit, and includes testing, troubleshooting, installation and configuration of new equipment or software, consulting, scoping, planning, documenting and quoting for complex items;
Working days or Business days means Monday to Friday, excluding Australian Federal and State Public holidays;
In these Conditions, the Rate Schedule and every Quote, Proposal, Order, Plan, contract, or other arrangement in connection with the supply of Goods or Services by Us, unless the contrary intention appears:
Words denoting the singular number only shall include the plural number and vice versa;
Reference to any gender shall include every other gender;
Reference to any Act of Parliament, Statute or Regulation shall include any amendment currently in force at the relevant time and any Act of Parliament, Statute or Regulation enacted or passed in substitution therefore;
Headings and words put in bold are for convenience of reference only and do not affect the interpretation or construction of these Conditions;
All references to dollars ($) are to Australian Dollar (AUD) unless otherwise denoted or specified;
A reference to time is to Sydney, Australia time unless otherwise denoted or specified;
A reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa;
A reference to a recital, clause, schedule, annexure or exhibit is to a recital, clause, schedule, annexure or exhibit of or to these Conditions;
A recital, schedule, annexure or description of the parties forms part of these Conditions;
A reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions), as amended, novated, supplemented or replaced from time to time;
Where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
A reference to includes means includes without limitation;
A reference to will imports a condition not a warranty; and
A reference to bankruptcy or winding up includes bankruptcy, winding up, liquidation, dissolution, becoming an insolvent under administration, being subject to administration and the occurrence of anything analogous or having a substantially similar effect to any of those conditions or matters under the law of any applicable jurisdiction and to the procedures, circumstances and events which constitute any of those conditions or matters.
Terms and Conditions
Unless otherwise agreed by Us in writing, these Conditions are deemed incorporated in and are applicable to (and to the extent of any inconsistency will prevail over) the terms of every Quote, Proposal, Order, Plan, Agreement, contract, or other arrangement in connection with the supply of Goods and/or Services by Us to You.
The invalidity or enforceability of any one or more of the provisions of this Agreement will not invalidate, or render unenforceable, the remaining provisions of this Agreement.
1. All contracts of sale made by Us shall be deemed to incorporate these terms and conditions, which shall prevail over any other terms from the party (“the Customer”) with whom We are dealing.
2. Nothing in these terms and conditions is intended to impinge upon a Consumer’s statutory or contractual rights to reject faulty goods.
3. Payment, late payment and default
a. Payment due date: All invoices issued to You are due and payable to Us within the terms stated on the invoice (unless otherwise agreed in writing), by cash, cheque, credit card or direct deposit in accordance with these Terms and Conditions and in the way set out in the Invoice.
b. 7 days late: Where You fail to pay an invoice within seven (7) days of the due date, We may, in Our absolute discretion and without prior notice, suspend or discontinue the supply of Goods and/or Services to You.
c. Recoveries: All legal and other costs and expenses incurred in connection with the recovery of late payments will be added to the amount due by You to Us and will be recoverable from You, in addition to the original invoice cost. If You default in payment of any invoice on time, moneys which would have become due by You at a later date shall be immediately due and payable without any further notice to You. Collectively, all of these moneys are referred to in these Conditions as a “Sum Due” or “Amount Due” or “Amount Owing”.
d. Interest: If payment of any Sum Due is not made on time, We will charge interest daily on the Sum Due at the maximum rate allowed by law, calculated and charged daily on and from the due date until the Sum Due is paid in full.
e. Application of funds: All payments of the Sum Due made by You to Us will be applied as follows:
i. first in or towards payment of any costs (including legal costs), charges, expenses or outgoings paid by Us in relation to any dishonoured cheque fees, collection costs or any other action taken by Us for the recovery of any amounts owing by You to Us;
ii. secondly, in or towards payment of any interest due or payable hereunder, and
iii. thirdly, in or towards payment of Your debts to Us in order from the longest standing due to the most recently incurred.
f. Security: We may require You to provide security over Your property (including the Goods or any other property of Yours) as collateral to be held as security for any Sum Due or as a condition precedent to the continuation of supply of Goods or Services by Us to You.
g. Payment arrangements: In the event that a repayment arrangement is made in relation to any Sum Due and the supply of Goods or Services is resumed, but then a repayment due under that arrangement is not made on time, We may, in Our absolute discretion and without prior notice, again suspend or discontinue the supply of Goods or Services to You.
h. Power of Attorney: You hereby irrevocably appoint Us as Your attorney to do anything We consider fit for the recovery of the Sum Due or the creation, perfection or enforcement of any collateral held or to be held as security for any Sum Due.
i. Other remedies: We may exercise any of Our rights and remedies including taking legal action against You for the recovery of any moneys due to Us, notwithstanding it may have exercised other rights under these Conditions.
j. Payment is required via Direct Debit Authority. Payment will only be deducted from the nominated/approved Direct Debit Account on the invoice due date.
4. Quotes/Proposals
a. Term and effect: Quotes will only be valid for 30 days unless otherwise specified in the Quote, or otherwise advised in writing. A Quote is merely an invitation to You to place an Order with Us and the acceptance of a Quote by You will not create a binding contract between You and Us.
b. Quote is valid for period specified on the quote/proposal. Expiry dates on quotes are set to be able to inform Us when the quote is still active or to be discarded. Once discarded the quote will need to be requested again.
c. Once a quote has been confirmed by Us, then the prices in the quote will be confirmed as the final agreed price. A quote is confirmed as ‘final’ as soon as both parties agree with the final price after any last changes requested by You.
d. The price in the final quote may vary from the original request if there is any price or product changes requested by You. We reserve the right to alter product and prices in the quote, as long as the quote has not been confirmed with You.
e. Quotes and estimates shall be deemed to correctly interpret the original specifications and are based on the cost at the time the quote or estimate is given. If You later require any changes to the quotes, and We agree to the changes, these changes will be charged at Our prevailing rate.
f. Once the Quote has been confirmed and converted to an Order, the Order will be subjected to our normal Terms and Condition of Sale.
g. The general minimum turnaround time for Quote request to be actioned is usually 24 hours. In the event that a quote is required urgently please let us know so that we can respond to it accordingly.
h. When a special price or discount offer has been applied to this Quote, no other special promotion, discount or bonus offer will be applicable.
i. In the event that products in the Quote are subjected to any price and supply fluctuations that is outside of Our control We reserve the right to update the price and product in the Quote accordingly before or after quote approval. If a product has undergone a price drop or a price increase, the Quote will then be adjusted accordingly. If there is a product that is no longer available, the product will then be replaced or substituted based on Your request and is subject to Your final approval.
j. Price on non-stocked products are subjected to Price and stock fluctuations and can only be confirmed once the Quote is turned into an Order. While We endeavour to honour every price quoted, if there is a price increase that is beyond our control, We reserve the right to increase the price as necessary.
k. Once a Quote has already passed the expired date, We may cancel the quote or estimate without having to notify or receive an approval from You.
l. ETA information is based on an estimate given by our vendors and cannot be held as the actual promised date.
m. Freight charges will be added to the Order unless otherwise stated. Any included delivery charges are estimates only.
n. We do not keep inventory and as such only order items once we receive a completed order from a client. If You would like to return an item or cancel an order, a restocking fee may apply. We will need to get approval from the distributor that the stock is returnable before being able to issue a refund as not all products can be returned.
o. Prices are based upon total Quote Purchase
p. Unless Specified, all items on quote are covered by manufacturer’s warranty covering parts and labour for hardware only on a return to depot basis.
q. Varying or withdrawing Quotes: We may vary or withdraw a Quote at any time in Our absolute discretion and without prior notice to You. We may do so for any reason We consider fit, including, e.g. where the Goods or Services become unavailable or the cost price of Goods or Services increases after the date of the Quote.
a. Order forms: You may place an Order for Goods and/or Services with Us. Normally, We will require that You provide either a completed Order form, Official Purchase Order, or You approve the quote electronically via either an email or a web based system with the date and Your details, including Your full legal name or description and any applicable ABN or ACN number (including the full name or description of any person on whose behalf the order is placed), Your address together with any relevant Quote number and date.
b. Approval of Orders: You will need to sign the Order or have it duly executed on Your behalf, unless the Order is sent by email or via the web based ordering system, in which case the Order will be treated or deemed as if signed by or on behalf of You by the person whose name appears as the sender of the email or submitter of the form.
c. Reliance on appearance of validity: Absent actual knowledge to the contrary, We may rely upon the apparent validity of an Order. If any Order is signed or sent by email or approved through the web based ordering system by a named person, that person warrants that the Order is, and it is acknowledged the Order is deemed in favour of Us to be:
i. signed by, and duly authorised by, both the person who signed the Order and the person who sent the email; and
ii. duly authorised by the person on whose behalf the Order is placed or apparently placed.
d. Acceptance and Orders: An Order has no effect unless or until it is accepted by You in writing and, until We have received from You payment in clear funds for the Order and any related freight, delivery and (where applicable) in-transit insurance costs in clear funds.
e. No obligation to deliver: We are not obliged to deliver any Order until we have received payment in clear funds from You for the Order, any related freight, delivery and (where applicable) in-transit insurance costs or where We are unwilling or unable to complete the Order for any reason provided it refunds any payment made by You in respect of the Order.
f. Credit checks: For the purposes of ascertaining the credit standing or history of a prospective customer to whom We are considering extending credit or payment terms, You hereby consents to Us undertaking a credit reference check in respect to You.
g. Cancellation of Orders: You will not cancel an Order unless We agree to do so in writing in Our absolute discretion. You acknowledge that, amongst other things, We cannot cancel an Order once the manufacturer or supplier has despatched the relevant Goods and that such despatch often occurs the same day as the Order is placed by Us.
h. Processes and Procedures: We have processes and procedures that We follow in the course of the provision of Our Services and the supply of Goods. You agree to co-operate with Us and to comply with such processes and procedures as advised to You from time to time.
a. Rates exclude Tax: All rates and amounts charged or quoted for Goods and/or Services by Us are exclusive of Tax and any other applicable taxes or government charges (unless otherwise stated in writing by Us).
b. Rates Schedule: You must pay for Goods and Services at the Rates set out in any applicable Plan and the Rate Schedule as applicable from time to time during the provision of the Goods and/or Services.
c. Vary Rates: We reserve the right to vary any Rate and/or the Rate Schedule from time to time (subject to any fixed pricing for specific periods in any Plan), in its absolute discretion and without notice to You.
d. Call-out fees: You acknowledge that call-out fees may be charged in addition to the Rates at Our absolute discretion and that the amount of the call-out fee will depend upon where the Services are provided.
f. Expenses: You must pay any out of pocket expenses incurred by Us in providing the Services to You in addition to the Rates, charges and call-out fees, upon written demand. Such expenses will include travel costs, flights, car hire, petrol, insurance, taxi fares, accommodation and related meal allowance, tolls and car parking expenses. Where appropriate, We will obtain prior written authorisation from You before such expenses are incurred.
g. Separate charges for Goods and Services: We may in Our absolute discretion charge for Goods separately from Services or may charge for Goods and Services together.
h. Calculation of increments: Where a charge is calculated based on increments of time, e.g. 1 hour or 30 minutes, We will charge the applicable rate for the whole increment of time even if work is done during part of, but not for the whole of, that increment of time.
i. Change in underlying costs: Without prejudice to any other rights of Ours under these Conditions, where there is any increase in the underlying costs incurred by Us in connection with the supply of Goods or Services to You, We may, in our absolute discretion, vary any of Our Rates.
j. Pre-Paid Blocks of Service: Where You agree to buy Pre Paid Blocks of Service during a Period, payment must be made in advance for the Pre-Paid Blocks of Service at the rate applicable pursuant to the Rates Schedule for all Services. Each such rate being less any discount agreed in writing between Us and You in respect of the Pre-Paid Blocks of Service. Services included in a Pre-Paid Block of Service rate during the Period:
i. are calculated in accordance with the applicable minimum time periods and increments set out in the Rates Schedule; and
ii. are only provided by Us during the applicable Period. Where Services are provided for a specified Period:
iii. the Services remaining unused for that Period cannot be rolled over into any subsequent Period; and
k. We are not liable to refund, reimburse, pay damages or otherwise compensate or indemnify You in respect of those unused Services.
l. Term: Where a Plan sets out an applicable term, e.g. six months or a year, unless you give Us written notice of the cancellation of your Plan up to 60 days before the end of any applicable term, We will extend the term of your Plan automatically for another term equal to the original term (or such other term as may be agreed between Us and You stated in the Agreement Summary) provided that You continue to Pay the current maintenance fee to the Provider, or unless either party terminate this agreement in accordance with the termination clause.
m. The amount payable in this quote is equal to the value of the products and services set out in this quote plus any GST payable in accordance with the guidelines set by the Australian Taxation Office.
n. Each party agrees to provide the necessary invoices and other documentation needed to enable or assist the other party to claim any credit, set-off, rebate or refund in relation to any amount of GST paid or payable to any supply under this contract.
a. Service and Plan Variations: Currently, We offer the Services and Plans referred to in the Rates Schedule and any Plan Schedule. We may withdraw the provision of, or vary the scope or terms of, or add to or change, the Services without notice to You, from time to time in Our absolute discretion.
b. Copies on Request: We will provide You with a copy of the current Rates Schedule upon request. Plan Schedules are tailored for particular Plans and are available to Clients participating in the Plan.
c. Included Services: Services rendered under this Agreement includes the following features:
i. All items listed as part of your selected Service Plan in the Agreement Summary.
ii. Any items listed in the Additional Inclusions section of the Agreement Summary.
d. Excluded Services: Services rendered under this Agreement do not include:
i. Parts, equipment, software or users not covered under the Service Plan or as specified in the Additional Inclusions of the Agreement Summary.
ii. Parts, equipment or software not covered by vendor/manufacturer warranty or support.
iii. The Professional Services labour costs associated with the setup of new computers and other hardware/software. These setup costs will be quoted as part of the support of the computer/hardware/software, etc.
iv. The cost of any parts, equipment, or shipping charges of any kind.
v. The cost of any Software, Licensing, or Software Renewal or Upgrade Fees of any kind.
vi. The cost of any 3rd Party Vendor or Manufacturer Support or Incident Fees of any kind.
vii. The cost to bring Client’s environment up to minimum standards required for Service Compliance.
viii. Failure due to acts of God, building modifications, power failures or other adverse environmental conditions or factors.
ix. Service and repair made necessary by the alteration or modification of equipment other than that authorized by Service Provider. This includes alterations, software installations or modifications of equipment made by Your employees or anyone other than Service Provider.
x. Maintenance of Application software packages, whether acquired from Service Provider or any other source unless as specified in the Additional Inclusions of the Agreement Summary.
xi. Programming (modification of software code) and program (software) maintenance unless specified in the Additional Inclusions of the Agreement Summary.
xii. Training Services of any kind not specifically included.
xiii. Services performed outside of the Service Plan hours as outlined in the Agreement Summary.
xiv. Any work, activities, or costs associated with restoration of services in a Disaster Recovery event. This work will be billable on an ‘as-used’ basis.
xv. Microsoft Office 365 Migration Services, and any other Data Migration services.
xvi. Travel Costs: Travel expenses outside of those included in this Agreement. Airfare, Hotel and Car Rental will be billed at cost, and Per Diem Expenses will conform to Australian Taxation Office (ATO) standards.
a. Delivery liability: We will use all reasonable endeavours to despatch Goods by the due date, but do not accept any liability for non-delivery or failure to deliver on time where this is caused by circumstances beyond the reasonable control of Ours, including, for example, due to failures in supply to Us or delays caused by third parties, such as delivery companies, manufacturers, unexpected illness, or absence, etc.
b. Availability to accept delivery: You must be available to accept the Goods at Your nominated delivery address during Business Hours unless otherwise arranged.
d. Obligation to insure: You will ensure that Goods are adequately insured from the time of delivery.
i. title to, and property in, Goods supplied to You remain vested in Us and does not pass to You;
ii. You must hold those Goods as fiduciary bailee and agent for Us and must not sell them;
iii. You must keep those Goods separate from other goods and maintain the Goods and their labelling and packaging intact;
iv. Where You sell the goods in breach of these Conditions, You are required to hold the proceeds of any sale of those Goods on trust for Us in a separate account (however any failure to do so will not affect Your obligation to deal with the proceeds as trustee and remit them to Us);
v. We may, without prior notice, enter into any premises where We suspect those Goods may be, take possession of those Goods and sever and remove those Goods (notwithstanding that they may have been attached to other goods not the property of Ours) and for this purpose, You hereby irrevocably authorise and direct Us (and Our employees and agents) to enter into such premises as its duly authorised agent and You hereby indemnify and hold harmless Us from and against any costs, claims, allegations, demands, damages or expenses or any other acts or omissions arising from or in connection with, such entry, repossession or removal.
vi. You irrevocably appoint Us as Your attorney to do anything We consider necessary in order to enter such premises and repossess the Goods as contemplated by this clause.
9. Returns and claims for goods and services
a. General Returns Policy: Notwithstanding anything in these Conditions, You acknowledge that We supply Goods subject to all applicable conditions, including returns and claims policies, of any relevant manufacturer or supplier. You will accept Goods subject always to these Conditions and the terms of such conditions and will indemnify and hold Us harmless in respect of any further or other obligation or any failure or default on the part of that manufacturer or supplier.
b. Customised Goods not returnable: Where Goods have some element of customisation for You, are supplied pursuant to an Order for Goods that is in the opinion of Ours special or unusual, the Goods are obtained from overseas, the Goods are obtained from a supplier who is no longer trading, or the Goods are otherwise not readily returnable by Us to the manufacturer or supplier or any related services may not be cancelled, You may not return the Goods to Us or cancel the related services.
c. Duty to inspect: You will inspect all Goods immediately upon their delivery. Within 7 days of such delivery You may give written notice to Us of any matter or thing, by reason of which You might wish to return the Goods, ask for a refund, or make a claim. If no such notice is given on time, You will accept the Goods without any such return, refund or claim.
d. Return Condition: Where You are entitled to return Goods under these Conditions, You must return the Goods in their original condition and unopened, provided always that where, upon opening the packaging it becomes apparent that the Goods are different to what is described on the packaging or that the Goods are faulty, the Goods may be returned.
e. Return costs: You will pay all costs and expenses incurred by Us in arranging the return of the Goods to a manufacturer or supplier and/or the cancellation of any related services unless that manufacturer or supplier pays such costs.
f. Consequences of use, installation, customisation or sale: You will indemnify and hold Us harmless in respect of all allegations and claims in respect of Goods once such Goods have been used, installed, customised or re-sold by You (without prejudice to the recourse of such a customer to the manufacturer of the Goods).
10. Computer utility, functionality and fitness for purpose
a. Service limitations given the science of computing: You acknowledge that a reasonable incident of the Services may involve trial and error and that it is a science applied often in novel or unknown circumstances and involving experiment. In particular, You acknowledge that the Services may involve tests, troubleshooting, advice and recommendations that may prove incorrect or inappropriate, particularly in an attempt to cure a problem You are having. While We will make what We consider (in Our absolute discretion) to be all reasonable endeavours to provide appropriate tests, troubleshooting, sound advice and good recommendations in order to assist You, You will always indemnify and hold Us harmless in the provision of our Services to You.
i. Cost of consumables, replacement parts, hardware, software, network upgrades and associated services are outside the scope of this agreement. We will provide consultative specification, sourcing guidance and/or Time and Material/Project offerings.
ii. Manufacturer warranty parts and labour/services are outside the scope of this agreement.
iii. Periodic reboots for such devices as firewalls, routers, and servers are required to apply/activate critical update patches and configuration changes. Our support services within this agreement are predicated upon Your support and commitment to providing time/scheduling for network device reboots with its staff and/or users support unless urgently required to rectify a critical issue.
iv. Application software support is limited to the manufacturer’s product support and an active support agreement between You and the application vendor.
v. Printer hardware maintenance support is not included and should be managed between You and their printer management provider or printer vendor.
vi. Virus mitigation within the scope of this agreement is predicated on You satisfying recommended backup schemes and having appropriate Endpoint and Server Protection Software with current licensing and updates.
vii. Restoration of lost data caused by systems/hardware failure is outside the scope of this agreement.
viii. This agreement and support services herein are contingent on Your permission of Us having secure remote access into Your network (e.g. VPN, Remote Desktop Services, Telnet, SSH, RMM or other solution expressly approved by Us). Depending on the remote access solution used, additional charges may apply to the contract.
ix. Support services required or requested outside the scope of this agreement may not be exchanged for days or services within this agreement. Outside of scope support services are available and will be provided on either a Time and Material, or Project basis.
c. Recommendations, suitability, functionality and fitness for purpose: The parties acknowledge that:
i. We may recommend that You purchase Goods provided by third parties from time to time;
ii. Recommendations may be made in situations where You have made known to Us the purpose for which the Goods will be used or some function sought to be fulfilled;
iii. You acknowledge that We have no control over many factors involved with the suitability, function or fitness for purpose of Goods in an existing or new computer environment, e.g.
1. the compatibility or ability of the Goods to fit into or perform to expectations in the receiving computer/internet environment; or
2. the behaviour of third party supplier, e.g. in relation to support;
iv. You acknowledge that for a whole number of reasons outside of Our control, the Goods may fail to meet Your expectations, may not turn out to be fit for all or any of the purposes sought, may not be suitable or may not function properly in all or any respects;
v. You acknowledge that the Services provided by Us may involve the very task of seeking to customise Goods so they may be fit for particular purposes and that customisation may be a very substantial project in itself;
vi. Accordingly You will accept the sole responsibility for, and indemnify and hold Us harmless in respect of:
1. decisions as to whether or not to follow recommendations by Us;
2. decisions as to whether or not to purchase or customise Goods or obtain Services for that or any other purpose; and
3. any failure or defect in suitability, function or fitness for purpose of any Goods and/or Services, including a responsibility to obtain Your own independent advice or second opinion from a suitably qualified person;
vii. Where We provide Services with a view to achieving Your purposes, suitability, function or fitness for purpose (whether expressed, agreed or otherwise), You must pay for those Services on time without any set-off or counter-claim, whether or not We are able to achieve any of such purposes, suitability, function or fitness for purpose, provided always that We have acted in good faith and have made what We consider, in Our absolute discretion, to have made all reasonable endeavours to achieve those outcomes.
viii. Minimum Service Compliance Standards: We require that Your IT environment meets a minimum standard to ensure that We can meet the obligations of this agreement. As such, there may be remedial actions required to lift Your IT environment to the minimum standard. We will communicate the required changes (if any) with the customer upon completion of an IT audit and/or onboarding exercise. In order for Your existing environment to qualify for Service Provider Services, the following requirements must be met:
1. All Servers with Microsoft Windows Operating Systems must not be in an End of Life state, and have all of the latest Microsoft Service Packs and Critical Updates installed.
2. All Desktop PC’s and Notebooks/Laptops with Microsoft Windows Operating Systems must not be in an End of Life state, and have all of the latest Microsoft Service Packs and Critical Updates installed.
3. All Server and Desktop Software must be Genuine, Licensed and Vendor-Supported.
4. The environment must have a currently licensed, up-to-date and Vendor-Supported Antivirus Solution protecting all Servers, Desktops, Notebooks/Laptops, and Email.
5. The environment must have a currently licensed, Vendor-Supported Backup Solution.
6. The environment must have a currently licensed, Vendor-Supported Hardware Firewall between the Internal Network and the Internet.
7. Any Wireless data traffic in the environment must be secured with a minimum of 128bit data encryption
ix. Costs required to bring Your environment to Minimum Standards are not included in this Agreement and will be quoted and billed separately.
x. We will recommend changes and improvements to the customers IT environment over time. This will be based on, but not limited to, best practices, changes in the technology landscape, industry trends, and emerging threats/risks. Should You choose to decline, or not implement fully, such changes, We will not be liable for any negative impact to You which has been incurred by not implementing the recommendation(s) presented by Us.
xi. Should any required recommendations, solutions, or critical fixes not be accepted by You, We may exercise Our right to refuse service until the required recommendation/change is accepted and implemented.
xii. Up until any required recommendations, solutions, or critical fixes are accepted by You and implemented by Us, You release Us from any Service Level Agreement (SLA) obligations.
d. Testing Procedures: You will follow the instructions of Ours with regard to testing or troubleshooting any problems and that if those do not resolve the outstanding problems, We will, subject to these Conditions, allocate such resources as We consider reasonable in the circumstances towards their resolution.
11. Liability
a. Exclusion: Except as specifically set out herein and so far as may be permitted by law, any term, condition or warranty in respect of the quality, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Goods or Services, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded.
b. No liability for program or data loss: You indemnify and hold Us harmless in respect of any allegation, claim, loss or expense of Yours or any third party for any program or data loss or damage suffered by You or that third party arising directly or indirectly from the supply of the Goods or Services by Us to You. You acknowledge You are solely responsible for backing up Your programs and data in order to mitigate Your own potential loss of programs and data.
c. Limit on consequential damage: You indemnify and hold Us harmless in respect of any allegation or claim as to any indirect or consequential losses or expenses suffered by You or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to You or any third party.
d. Limit on damage from a failure in supply: You indemnify and hold Us harmless for any allegation or claim for loss or damage by You or a third party where We have failed to meet any delivery date or cancels or suspends the supply of Goods or Services.
e. General limit on liability: Except as otherwise expressly stated in these terms and conditions, We are not liable for any loss or damage of any kind however caused (including, but not limited to, by the negligence of Us) which is suffered or incurred by You in connection with:
i. Goods or Services provided to You or any Work;
ii. these Terms and Conditions;
iii. Your use of Our website (including the use of a credit card or other debit device) or any linked website;
iv. the non-availability of Goods or Our Services for any reason;
v. any act or omission of Ours or the provision of inaccurate, incomplete or incorrect information by You, or
vi. for any other reason whatsoever.
f. Limitation options: To the extent that any legislation implies a condition or warranty that cannot be excluded but can be limited, this does not apply to that liability and Our liability for any breach of that condition or warranty is limited to Our doing any one or more of the following (at its election):
i. replacing the Goods or supplying equivalent Goods, Services or Work;
ii. repairing the Goods or the Work;
iii. paying the cost of replacing the Goods or the Work or acquiring equivalent Goods, Services or Work; or
iv. paying the cost of having the Goods or the Work repaired.
12. The prices shown above are valid for until the noted Proposal Expiry date under the Client Particulars section.
13. The prices above are based on the information provided by the client and discoverable by Us at the time. Should any of this information change then the pricing may also increase or decrease based on the new information.
14. We reserve the right to adjust prices quoted if the scope of work is changed or if the defined assumptions are found to be incorrect. The prices and quantities above are based on the information provided or obtained at the time of this proposal. Actual invoiced charges will vary from month to month depending on actual consumption and quantities at the time of invoicing. We reserve the right to review and adjust unit pricing based on volume changes, or any other major change which may impact Our operating costs (such as client location changes, etc).
15. Software
a. All Software licences are the responsibility of You and not that of Us. It is the duty of Yours to store all licences for all Software used, so that that they can be reproduced if and when required. This includes all Software installed by Us.
b. You indemnify and hold Us harmless against any claim, allegation, loss, damage or expense arising directly or indirectly from:
i. any unauthorised Software use by You;
ii. any breach of any Software licence in respect of Software provided to Us by You to be installed on one of Your computers;
iii. otherwise as a result of Us installing Software on Your computers where You are not authorised to use the Software; and
iv. any problem, defect or malfunction associated with any Software (or related services) supplied by third parties.
c. All copyright in custom software remains the sole property of Ours unless alternate arrangements are made as part of a separate software agreement.
16. Copyright and confidentiality
a. Warranty and breach: You warrant that any confidential or copyright information or intellectual property (of any kind and in any form held) or provided by You to Us belongs to You. In the event of any breach of this warranty, You will pay all sums due to Us as If such warranty had not been breached (and regardless of any non-performance of any obligation by Us on account of or in connection with the breach of such warranty). You indemnify and hold Us harmless in respect of any allegations, claims, loss, costs or expenses in connection with such breach of warranty by You.
b. Retention of title: All copyright and other intellectual property rights in any Work created, commissioned or acquired by Us in the course of the supply of Services by Us to You will be the exclusive property of Ours unless otherwise agreed in writing by Us and You.
c. Confidential Information: We acknowledge that in the course of providing Services to You, We may learn from You certain non-public personal and otherwise confidential information relating to You, including Your customers, consumers or employees. We shall regard any and all information We receive which in any way relates or pertains to You, including Your customers, consumers or employees as confidential.
d. You also acknowledge that all information and services, consulting techniques, proposals, and documents disclosed by Us or which comes to Our attention during the course of business and provided under this agreement constitute valuable assets of, and confidential and/or proprietary information to Us.
e. You acknowledge and accept that We record telephone, ticket, and email transactions for staff training and quality control purposes.
f. As such, both parties shall take all commercially reasonable steps to not disclose, reveal, copy, sell, transfer, assign, or distribute any part or parts of such information in any form, to any person or entity, or permit any of its employees, agents, or representatives to do so for any purpose except unless permitted in writing by the disclosing party or as required by applicable law.
17. Any waiver of a breach of this Agreement must be in writing.
19. We utilise third-party providers to deliver support, services, or goods, that are outside of Our internal capacity. Our liability will be limited by the third-party provider’s liability agreements and limitations.
20. Where You have engaged your own third-party providers (or internal staff) to complete IT-related works, We will not be held liable for any issues that arise from poor workmanship, faulty goods/services, and/or implementation that does not adhere to best practices. This includes any faulty data cabling, electrical works, or IT professional services. We reserve the right to charge You for all remediation works required on a time and materials basis.
21. Reasonable Assistance Limits: We are only obliged to provide what We consider, in Our absolute discretion, to be reasonable assistance in the circumstances (including with the installation and customisation of new software or hardware for You or any other Work) under any Plan and You will pay for additional work at the Rates unless otherwise agreed. Without limiting the discretion of Us to determine what reasonable assistance is, normally, reasonable assistance is limited to work done during Business Hours over a period of time not exceeding any period that We have allowed or allows for the Work or has estimated or estimates the Work will take, whether or not notice of the time allowed or estimated is given by Us to You.
22. Where We have agreed that You can use nominated internal staff for the primary point of contact for IT related requests, You agree that all IT requests will be logged by the nominated contact only. We may refuse to accept and action IT requests from Your staff that are not on the nominated and approved IT contact list.
23. Any variation of this Agreement must be in writing and signed by Our duly authorised official and Your duly authorised official.
24. Agreement Term: This IT services agreement is for the Agreement Term as specified in the Agreement Summary section above. A review will be conducted every twelve months and the costs will be adjusted by the published CPI rates and an analysis on market rates and/or changes to the system landscape.
25. Termination: We and/or You shall have the right to terminate this Agreement under any of the following conditions
a. If one of the parties shall be declared insolvent or bankrupt.
b. If a petition is filed in any court and not dismissed in ninety days to declare one of the parties bankrupt and/or for a reorganization under the Bankruptcy Law or any similar statute.
c. If a Trustee in Bankruptcy or a Receiver or similar entity is appointed for one of the parties.
d. If You do not pay Us within thirty (30) days from receipt of Our invoice and/or otherwise materially breaches this Agreement.
e. Either party may terminate this Agreement upon thirty days (30) written notice.
f. Upon termination, all hardware and software installed by Us that was required to conduct network support services are the property of Us and will be surrendered and returned to Us at end of the agreement.
g. You may terminate this agreement immediately at any time provided that You pay the remainder of the maintenance payments through to the end of the term plus any outstanding materials expenses will apply. Additional off-boarding charges will also apply.
26. Non-Hire/Non-Disclosure/Privacy: Because employees are one of our most valuable assets, policy and professional ethics require that our employees not seek employment with, or be offered employment by You during the course of engagement and for a period of one (1) year thereafter. Your signature on this document confirms your organization’s agreement to adhere to this professional standard of conduct.
a. You acknowledge that We are involved in a highly strategic and competitive business. You further acknowledge that You would gain substantial benefit and that We would be deprived of such benefit, if You were to directly hire any personnel employed by Us. Except as otherwise provided by law, You shall not, without the prior written consent of Us, solicit the employment of Our personnel during the term of this Agreement and for a period of one (1) year following expiration of this Agreement.
b. You agree that Our damages resulting from breach by You of this provision would be impracticable and that it would be extremely difficult to ascertain the actual amount of damages. Therefore, in the event You violate this provision, You shall immediately pay Us an amount equal to 60% of employee’s total annual compensation, as liquidated damages and We shall have the option to terminate this Agreement without further notice or liability to You. The amount of the liquidated damages reflected herein is not intended as a penalty and is reasonably calculated based upon the projected costs We would incur to identify, recruit, hire and train suitable replacements for such personnel. This Confidentiality, Privacy and Compliance portion of this Agreement is in addition to other terms and conditions set forth in any and all contracts currently existing or hereafter created between You and Us. This agreement shall under no circumstances be deemed to alter any such contract except as specifically provided below.
c. We are collecting Your personal information for the fulfilment of Quotes, Orders and the provision of Goods or Services to you and We may retain and use it for any such purposes (“Authorised Purposes”).
d. You are required to provide your personal information to Us for Authorised Purposes.
e. We may disclose Your personal information to other persons for the purposes of the fulfilment of Quotes, Orders and Work for you or in order to provide Goods or Services to You, to verify the information You provide, for enquiries about Goods or Services that may be suitable for your purposes, or to confirm Your requirements, to anyone proposing to supply Goods or Services to You, or to acquire Goods or Services on Your behalf, or in respect of enquiries relating to any of the foregoing.
f. Otherwise We will not disclose Your personal information without Your consent unless authorised by law.
g. Your personal information will be held by Us at Our principal place of business, or in a secure Cloud or offsite location and You can contact Us to request to access or correct it.
h. We rely on You to submit correct information and details where requested. You accept that You may incur additional expenses if you submit incorrect information.
27. Your Responsibilities
a. Lodging of support tickets: In order for Us to provide You with the agreed Service, You agree to follow Our process for lodging of support tickets which will be provided to you during the on-boarding phase.
b. Access to systems, site and people: In order to provide You with the agreed Service, You agree to give Us access to various items of Yours including but not limited to, equipment, people and sites as and when required.
c. You agree to allow Us to install software on Your Equipment that allows Our technicians to access Your systems at any time. This software allows Us to view system statuses, send monitoring information, see users’ desktops and control Your PC’s. This may require that devices are left on overnight or weekends.
d. Third party authorisations: At times We may need to contact Your third party providers on Your behalf, such as Your internet provider. Some of these providers may require Your authorisation for Us to deal on Your behalf. It is Your responsibility to ensure that We are able to deal freely with these providers.
28. Insurance
a. We shall maintain at its sole expense Public Liability Insurance; Professional Indemnity insurance; worker’s compensation insurance as required by law; and hired and non-owned automobile liability insurance. At Your request, We further agree to furnish You with certificates, including renewal certificates, evidencing such coverage within thirty (30) days of commencing performance under this Agreement, at every renewal and at other times as may be reasonably requested by You.
29. General Provisions
a. Sole Agreement: This Agreement constitutes the entire and only understanding and agreement between the parties hereto with respect to the subject matter hereof and, except as expressly set forth herein, may be amended only by a writing signed by each of the parties hereto.
b. Severability/Severance: If a court of competent jurisdiction determines that any terms or provision of this Agreement are invalid or unenforceable; such determination shall not affect the validity or enforceability of the remaining terms and provisions of this Agreement, which shall continue to be given full force and effect.
c. Captions: The captions of the paragraphs of this Agreement are for convenience only and shall not affect in any way the meaning or interpretation of this Agreement or any of the provisions hereof.
d. Binding Effect: This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their heirs, legal representatives, personal representatives, administrators, successors, and permitted assigns, as the case may be.
e. Waiver: Any failure of either party to comply with any obligation, covenant, agreement, or condition herein may be expressly waived, but only if such waiver is in writing and signed by the other parties. Any such waiver or failure to insist upon strict compliance with such obligation, covenant, agreement, or conditions shall not operate as a waiver of and/or set precedence with respect to any subsequent and/or other failure.
f. Governing Law: Notwithstanding the place where this Agreement may be executed by any party, this Agreement, the rights and obligations of the parties, and any claims and disputes relating hereto shall be subject to and governed by the laws of the State of NSW as applied to agreements among NSW residents to be entered into and performed entirely within the State of NSW, and such laws shall govern all aspects of this Agreement. The parties agree to submit to the personal jurisdiction and venue of the state and federal courts in the State of NSW, in the Judicial Circuit where We have Our principal office, for resolution of all disputes and causes of action arising out of this Agreement, and the parties hereby waive all questions of personal jurisdiction and venue of such courts, including, without limitation, the claim or defence therein that such courts constitute an inconvenient forum.
g. Assignment: This Agreement and the rights and duties hereunder shall not be assignable by either party hereto except upon written consent of the other.
h. Force Majeure: We shall not be liable for any problems due to external causes beyond its control including, but not limited to, terrorist acts, natural catastrophe, fire, flood, or other act of God, and/or power failure, virus propagation, improper shut down of the Network and related Network Systems/Services.
i. Dispute Resolution: Except as otherwise specifically set forth in this Agreement, the parties hereby agree to resolve any and all controversies, claims and/or disputes arising out of this Agreement and/or any Services (each, a “Dispute”) solely pursuant to the terms of this Section.
j. Management Resolution: All Disputes shall first be referred to the parties’ authorized representatives for discussion and resolution of the Dispute (“Management Resolution”), which representatives are the individuals who have executed this Agreement on behalf of their party.
k. Attorneys’ Fees. In any action between the parties to enforce any of the terms of this Agreement, the prevailing party shall be entitled to recover all expenses, including reasonable attorneys’ fees.
l. You acknowledge that a Digitally/Electronically signed Agreement, Contract, Proposal, Quote, or document is legally binding to the full and same extent as physically signed hard copy document.
m. You acknowledge that typographical errors and omissions in any Agreement, Contract, Proposal, Quote, or document do not nullify, void, or otherwise change the legal binding of said agreement.
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