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Effective: 8th January 2015 Version: 3.0
Within the Agreement, unless the context otherwise requires, the below definitions will apply:
2.1 These terms and conditions are the terms on which the Supplier provides services or goods to its Customer, modified by any written variation as agreed between the Supplier and the Customer in the contract.
3.1. The Agreement will commence on the date of the Agreement and remain in force for the Contract Term unless terminated earlier in accordance with the terms of the Agreement.
3.2. If the Agreement is terminated, the Customer shall pay the Supplier all sums payable for work performed and associated expenses incurred prior to termination.
3.3. The Customer may elect to renew the Agreement for a further period of 12 months from the expiry of the Term by providing at least 30 days written notice prior to expiry of the initial Term.
4.1. The payment terms between the Supplier and Customer is 14 days from the date of issue of an invoice.
4.2. Invoices for Hosting Services and Professional Services will be issued on the eighth day of each calendar month in advance.
4.3. Supplier reserves the right to suspend access to the hosting environment and all support services in the event of failure to pay within payment terms without prior arrangement.
4.4. All overdue invoices are subject to a late payment charge of 2.5% of the invoice value.41.5. All charges for Hosting Services and Professional Services are exclusive of local taxes such as GST or withholding tax.
5.1 A party may terminate the Agreement if:
i. The other party breaches the Agreement and fails to remedy that breach within 14 days of receiving written notice of that breach from the non-breaching party; or
ii. An Insolvency Event occurs in respect of the other party.
5.2. Upon termination of the Agreement for any reason, the Customer shall pay to the Supplier all amounts due for Hosting Services or Professional Services provided by the Supplier through the effective date of termination.
6.1 The Customer and the Supplier, including its respective employees, contractors and agents shall not disclose Confidential Information of the other party to any third party, without prior written consent of the other party.
6.2 In the event of any uncertainty as to whether any information is Confidential Information or is lawfully within the public domain, such information will be deemed to be Confidential Information, unless both parties agree in writing to the contrary.
6.3 The Supplier acknowledges that the Customer’s data is the Confidential Information of the Customer and always remains the property of the Customer. The Supplier agrees to use its best endeavours to store the Customer’s data in a safe and secure manner.
6.4 The Customer and the Supplier shall indemnify the other party against any loss or damage that the requesting party may sustain or incur as a result of the indemnifying party failing to comply with this clause. This clause remains in effect for the term of the Agreement and will survive for a period of two (2) years after termination of the Agreement.
7.1 If a Dispute arises under the Agreement, a party must not commence court proceedings unless it has first complied with this clause.
7.2 A party must give Notice to the other party that a Dispute exists specifying the nature, and providing details of the Dispute.
7.3 Within 7 days of service of a Notice, the parties must hold discussions in good faith in an attempt to resolve the Dispute.
7.4 If the Dispute is not resolved within 14 days of service of the Notice, then the parties shall refer the Dispute to the appropriate senior officer of each party who has authority to resolve the dispute and who shall promptly meet and endeavour to resolve the Dispute.
7.5 If the Dispute has not been resolved within 21 days of service of the Notice, then the parties shall refer the Dispute to mediation. Such arbitration shall be conducted by a mutually agreed independent mediator and the engagement costs shall be shared equally between both parties.
8.1 The Customer may not assign, novate or sublicense its rights and obligations under the Agreement without the Supplier’s prior written consent.
8.2 Supplier may only assign the Agreement where the proposed assignment is to a parent or subsidiary of the assignor or to a successor firm carrying on the business of the assignor. Any transferee of the Agreement must agree in writing to be bound by these terms and conditions.
Neither party shall be liable for any failure or delay in performing any obligation under the Agreement by reason of a Force Majeure Event. Force Majeure is not considered a reasonable justification for non-payment of services.
10.1 All notices under the Agreement must be in writing and must either be hand delivered or sent by registered post to the representative of a party at the address specified in the Agreement. Notices will be deemed to be received:
i. If hand delivered, on the date of delivery; or
ii. If sent by registered post, 3 days after the date of posting.
11.1 Support relating to issues with the hosting environment (as implemented under the Agreement) failing to function as required are covered without further charge as part of the hosting arrangement.
11.2 Modifications or changes to the hosting setup may be arranged by the Customer via a Request for Change. Such modifications or changes are charged at the rate stipulated in contract and will be invoiced by the Supplier to the Customer on a monthly basis.
Except as provided in Clause 19 the Supplier is not liable to the Customer or any other party or person for:
i. Any cost, loss or liability (including loss of profit or other consequential damage) arising from the Supplier’s supply or failure or delay in supplying service for those areas outside of the Supplier’s responsibility or control.
ii. The content or, context, or confidentiality of any communications made using the service. The Supplier does not provide support for third party software, including software downloaded from the internet.
iii. Any Force Majeure Event as defined in the Definitions & Interpretation section and Clause 10 of the Agreement.
Except as provided below all terms, warranties, undertaking, inducements and representations relating to the provision of any service or goods are excluded and the Supplier will not be liable for any loss or damage (including consequential loss or damage) however caused (whether by negligence or otherwise) in respect of any service or goods inclusive of any software material hosted or designed by the Supplier. To the extent that the Supplier cannot exclude liability at law, the Supplier’s liability for any breach of such implied term or warranty will be limited at the Supplier’s option or in any way permitted by the legislation including where so permitted:
i. The Customer breaches any term of any agreement and fails to rectify the breach within 2 working days of notice.
ii. The Supplier forms the opinion in good faith that the Customer is or may be insolvent.
iii. The Customer modifies, alters or tampers with the network or infrastructure or virtualisation layer or otherwise without express written authorisation.
The Customer accepts responsibility for all information and material issued by the Customer over any service, and indemnifies the Supplier against any liability in relation thereto. In particular the Customer undertakes that it shall not publish, distribute or issue any information that is illegal, including copyrighted materials. The Customer also acknowledges that the Supplier does not vet or approve any information or material available through any service and that the Supplier does not accept any liability. To the full extent permitted by law the Customer accesses and uses such information and material at his or her own risk.
15.1 All production systems hosted within the Supplier’s environment are proactively monitored at the Data Centre site. Alerts are reported to the Service Desk who then take appropriate action.
15.2 In the event of a Severity 1 or 2, unplanned outage the Customer will be notified within the notification period so that they may relay information to their End-users.
15.3 Monthly reporting by the Supplier is included on system availability, capacity consumption and proactive resource planning based on growth. This service is available on a price per usage basis and is only applicable if this option is selected by the Customer.
16.1. Upon agreement between the Supplier and the Customer nominated services will be backed up according to the agreed backup regime.
16.2. Changes to the backup regime may be arranged by the Customer via a Request for Change.
16.3. Data restorations can be requested through the Service Desk via telephone or email request.
17.1. The Intellectual Property of the Supplier includes but is not restricted to the following:
i. Commercial in confidence documentation.
ii.IT systems designs and architecture (hardware & software).
iii. Information regarding the operational deployment of the Supplier’s IT systems.
iv. Certain common commercial documents, literature, branding and website material.
17.2. The Customer acknowledges that the Intellectual Property rights of any materials or services supplied by the Supplier reside with the Supplier.
17.3. If the Customer wishes to use any such intellectual property in activities not related to the Supplier or outside of the Agreement, they may do so by first obtaining written consent from an authorised representative of the Supplier.
17.4. If either party is unsure about any aspect of the Intellectual Property rights of the other party, they are to obtain written clarification from the other party prior to using the information for whatever purpose.
18.1. You may not use the Services:
i. in a way prohibited by law, regulation, governmental order or decree;
ii. to violate the rights of others;
iii. to use the Services to try to gain unauthorized access to or disrupt any service, data, account or
network by any means;
iv. to falsify any protocol or email header information (e.g., “spoofing”);
v. to spam or distribute malware;
vi. in a way that could harm the Services or impair anyone else’s use of them;
vii. or for any high risk use (where failure or fault of the Services could lead to death or serious bodily injury of any person, or to severe physical or environmental damage).