Terms of Service

RECITAL

 The Client wishes to engage the Service Provider, and the Service Provider wishes to accept the engagement, to perform the Services, on the following terms and conditions.

 

  1. Engagement of Service Provider to provide the Services
    • The Service Provider shall supply the Services to the Client from the Commencement Date for the Initial Term unless this Agreement is terminated earlier in accordance with its terms.

 

  1. Implementation of Hosting Services
    • On the Commencement Date, the Service Provider will setup and implement a hosting account on the Hosting Server for the Client and commence provision of the Hosting Services via that server, in accordance with the Hosting Server Specifications.

 

  1. Availability of Client Data
    • The Service Provider shall use its best endeavours to ensure that the Client Data is accessible to the public over the Internet in accordance with the Service Levels, except for scheduled maintenance or where caused by a Force Majeure Event or the Client's breach of this Agreement.
    • If the Service Provider fails to provide the Hosting Services in accordance with the Hosting Service Levels (except for scheduled maintenance or where caused by a Force Majeure Event or the Client's breach of this Agreement), the Client shall be entitled to the Hosting Service Credits.
    • The Client agrees and acknowledges that:
      • other than liability for breach of any applicable Non-Excludable Guarantee (if any), the Hosting Service Credits represent the Service Provider's sole liability for any breach of the Hosting Service Levels by the Service Provider; and
      • the Hosting Service Credits constitute a genuine pre-estimate of the loss or damage that the Client will suffer as a result of a breach of the Hosting Service Levels and are not intended to operate as a penalty for the Service Provider's non-performance.
    • The Service Provider shall provide the Backup Services.
    • If any Client Data is lost or damaged, other than liability for breach of any applicable Non-Excludable Guarantee (if any), the Client's sole remedy for the breach shall be for the Service Provider to use its best endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by the Service Provider as part of the Backup Services and the Service Provider shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by the Client or any third party.

 

  1. Support Services
    • If during the Term the Hosting do not operate in accordance with the Service Levels ("Error"), the Client shall notify the Service Provider that it requires technical support ("Support Request") in accordance with the following procedure:
      • the Client must issue a Support Request to the Service Provider via the Service Provider's helpdesk using the Customer Portal;
      • when issuing a Support Request, the Client must ensure that it provides to the Service Provider :
    • the name and contact details of the Client's staff member who is experiencing the Error;
    • a detailed description of Services the Error; and
    • any other information reasonably required by the Service Provider .
      • Upon receipt of a valid Support Request, the Service Provider must provide the following services ("Support Services"):
        • the Service Provider must confirm receipt of the Support Request and assign a severity to the Error (low, medium or high);
        • the Service Provider must use its best endeavours to  resolve the Error in accordance with the Support Service Levels;
        • until the Error is resolved by the Service Provider in accordance with clause 2(b), the Service Provider must provide the Client with regular updates on the status of the Support Request and the time anticipated by the Service Provider for resolution.
      • The Client agrees and acknowledges that:
        • other than liability for breach of any applicable Non-Excludable Guarantee (if any), the Support Service Credits represent the Service Provider's sole liability for any breach of the Support Service Levels by the Service Provider; and
        • the Support Service Credits constitute a genuine pre-estimate of the loss or damage that the Client will suffer as a result of a breach of the Support Service Levels and are not intended to operate as a penalty for the Service Provider's non-performance.

 

  1. Additional Storage
    • If the Hosting Services do not provide sufficient capacity for the hosting of the Client Data, the Client may request that the Service Provider upgrade the Hosting Server Specifications, and the Service Provider will do so subject to the parties agreeing on an additional fee for the upgrade.

 

  1. Client Obligations
    • As between the parties, the Client is the sole owner of all right, title and interest in and to all of the Client Data.
    • The Client grants a non-exclusive licence to the Service Provider to copy, access and use Client Data to the extent necessary for the Service Provider (and any Service Provider personnel) to perform the Services.
    • The Client warrants that all Client Data, and all use thereof by the Service Provider and its personnel for the purposes of this Agreement, will not infringe the rights of any person or breach any law or regulation.
    • The Client must comply with the Privacy Act 1988 (Cth) and all other applicable privacy and data protection laws in relation to any Personal Information in the Client Data.
    • The Client must comply with the Acceptable Use Policy.
    • The Client must obtain all consents, or ensure that all consents are obtained, which are necessary to allow the Service Provider and its personnel to lawfully collect, use and disclose Client Data, including Personal Information in Client Data, in each case to allow the Service Provider and its personnel to provide the Services.
    • The Client will indemnify and hold harmless the Service Provider and its personnel and keep the Service Provider and its personnel indemnified from all loss and damage incurred by the Service Provider and/or its personnel as a result of any claim that the transmission, storage, disclosure, access or use of any Client Data by the Service Provider and/or its personnel infringes the Intellectual Property Rights or other rights of any person or breaches any law, regulation, code or standard.

 

  1. Fee
    • The Client must pay the Fees to the Service Provider in accordance with the Payment Terms.
    • The Fees are exclusive of all taxes, duties and customs including GST and the Client agrees to pay to the Service Provider all taxes, duties and customs, including GST, in respect of any Supply (as that term is defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth)) made by the Service Provider under this Agreement. The Client must pay all such taxes, duties and customs, including GST, at the same time as the Fees .

 

  1. Service Provider's Obligations
    • The Service Provider is independent of the Client and must perform the Services without direct supervision of the Client.
    • The Service Provider must perform the Services:
      • with all skill, care and diligence; and
      • in compliance with all applicable laws and regulations.
    • The Service Provider shall not be liable for any non-performance of its obligations under this Agreement where caused by any act or omission of the Client. If the Service Provider is delayed or prevented from complying with an obligation under this Agreement due to an act or omission of the Client in such circumstances the Service Provider's obligations will be postponed or relieved accordingly to the extent affected by that act or omission and the Client agrees that such period of postponement may be non-linear.
    • The Service Provider may sub-contract the performance of the Services without the approval of the Client.
    • The Service Provider is responsible for all acts and omissions of the Service Provider's personnel including its subcontractors, employees, officers and agents.

 

  1. Liability
    • Neither party is liable to the other party for any indirect, special or consequential loss or damage incurred by the other party, including liability for loss of profits, loss of business opportunity or loss of savings.
    • For any loss that is not otherwise excluded, the  Service Provider is only liable for loss directly incurred by the Client as a result of one or more breaches by the Service Provider of its obligations under this Agreement. However, the Service Provider's liability for all such direct loss is capped, in the aggregate, at an amount equivalent to  the value of the Fees paid by the Client under this Agreement, and which cap is reduced to the extent the Client or any Force Majeure Event caused or was responsible for such loss.
    • All conditions, warranties and guarantees implied in this Agreement are excluded, to the extent possible by law.
    • The goods and services supplied under this Agreement may come with implied non-excludable guarantees which are regulated by the Australian Consumer Law. The extent of the implied guarantees depend on whether the Client is a 'consumer' of goods or services within the meaning of that term pursuant to the Australian Consumer Law as amended. Where the Client is a 'consumer' for the purposes of the Australian Consumer Law, the Service Provider is required to provide the following mandatory statement to the Client: "Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure."
    • If the goods or services supplied by the Service Provider to the Client are supplied to the Client as a 'consumer' of goods or services within the meaning of that term in the Australian Consumer Law as amended the Client will have the benefit of certain non-excludable rights and remedies in respect of the goods or services and nothing in these terms and conditions excludes or restricts or modifies any condition, warranty, guarantee, right or remedy which pursuant to the Competition and Consumer Act 2010 (Cth) is so conferred. However, if the goods or services are subject to a non-excludable condition, warranty, guarantee, right or remedy implied by the Australian Consumer Law and the goods or services are not ordinarily acquired for personal, domestic or household use or consumption, then pursuant to s 64A of the Australian Consumer Law, the Service Provider limits its liability for breach of any such non-excludable warranty, guarantee, right or remedy implied by the Australian Consumer Law (other than a guarantee implied by sections 51, 52 or 53 of the Australian Consumer Law) or expressly given by the Service Provider to the Client, in respect of each of the goods and services, at the option of the Service Provider, to one or more of the following:
      • if the breach relates to goods:
    • the replacement of the goods or the supply of equivalent goods;
    • the repair of such goods;
    • the payment of the cost of replacing the goods or of acquiring equivalent goods; or
    • the payment of the cost of having the goods repaired; and
      • if the breach relates to services:
    • the supplying of the services again; or
    • the payment of the cost of having the services supplied again.
      • Where the Service Provider elects to repair goods, the Client agrees that the goods may be replaced by refurbished goods of the same type rather than being repaired and refurbished parts may be used to repair goods. The Client acknowledges that where the goods are repaired and are capable of retaining user-generated data, it is possible that the repair of the goods may result in loss of data.
      • Any warranty against defects provided by the Service Provider to the Client as a 'consumer' under the Australian Consumer Law is in addition to other rights and remedies of the Client under a law in relation to the goods or services to which the warranty relates.

 

  1. Confidentiality

 

 

 

  1. Termination
    • Either party may terminate this Agreement if the other party (the "defaulting party") is in material breach of this Agreement and the breach is not capable of remedy, or where the breach is capable of remedy and the defaulting party fails to remedy the breach within thirty (30) days of notice.
    • The Service Provider may terminate this Agreement at any time by written notice to the Client.
    • Either party may terminate this Agreement by notice to the other party if the other party suffers an Insolvency Event.
    • If this Agreement is terminated each party must at the option of the other party, destroy or return all Confidential Information of the other party to the other party.
    • The Service Provider will destroy all of the Client Data in its possession or control unless the Service Provider receives, no later than 30 days after the effective date of the termination of this Agreement, a written request for the delivery to the Client of the then most recent back-up of the Client Data in the Service Provider's possession or control. The Service Provider shall use reasonable commercial endeavours to deliver the back-up to the Client within 30 days of its receipt of such a written request, provided that the Client has, at that time, paid all Fees outstanding at and resulting from termination (whether or not due at the date of termination).
    • If this Agreement is terminated by the Client other than pursuant to clause 1 or 13.4 prior to the expiry of the Initial Term or any then current Renewal Term, without prejudice to any other rights of the Service Provider, the Client will pay any outstanding amounts (collectively, the "Outstanding Amount") which the Service Provider calculates or reasonably estimates would have been payable by the Client under this Agreement for the remainder of the then current Initial Term or Renewal Term. If an Outstanding Amount remains to be paid, the Service Provider shall send the Client a tax invoice in respect of the Outstanding Amount and the Client will pay this invoice within 30 days. The Client agrees that payment under this clause is not intended to be, and will not be punitive and will compensate the Service Provider for reasonable losses resulting from early termination of this Agreement.
    • Termination does not affect any accrued rights of either party.

 

  1. Notices
    • A notice under this Agreement shall be sent by hand delivery, post or email, using the address specified at the top of the first page of this Agreement or the email address for the recipient's representative specified in their Customer Portal account.
    • Any notice issued by hand shall be deemed delivered upon delivery.
    • Any notice issued by post shall be deemed delivered 3 Business Days after posting if posted domestically, or 10 Business Days after posting if posted internationally.
    • Any notice issued via email shall be deemed to be delivered upon the email being sent, provided that if an email is sent out of Business Hours, it shall be deemed to be delivered at 9am on the next Business Day.

 

  1. Dispute Resolution
    • If a dispute arises between the parties out of or relating to this Agreement ("Dispute"), any party to the Dispute must seek to resolve it strictly in accordance with the provisions of this clause. Compliance with the provisions of this clause is a condition precedent to seeking relief in any court in respect of the Dispute, except as otherwise provided in this clause.
    • A party seeking to resolve a Dispute must notify the existence and nature of the Dispute to the other party ("Notification"). Upon receipt of a Notification, each party must refer resolution of the Dispute to their chief executives (or nominees).
    • If the Dispute has not been resolved within one (1) calendar month of the Notification, then each party will be entitled to pursue such course of action as it determines.
    • Nothing in this clause shall limit either party's right to seek urgent interlocutory relief from any court of competent jurisdiction at any time.

 

  1. General
    • Amendment: This Agreement may only be amended by a written document signed by the parties.
    • Assignment: Neither party may assign, transfer, licence or novate its rights or obligations under this Agreement without the prior written consent of the other party.
    • Severability: If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the remainder of this Agreement shall remain enforceable.
    • Relationship: The parties are independent contractors and this Agreement does not create any relationship of partnership, joint venture, or employer and employee or otherwise.
    • Australian Consumer Law: The exclusions and limitations of liability set out in this Agreement shall apply to the fullest extent permissible at law, but the parties do not exclude or limit liability which may not be excluded or limited by law. Without limiting the foregoing provisions, the Service Provider does not exclude liability under the Australian Consumer Law which is prohibited from being excluded. The parties acknowledge and agree that the limitations and exclusions of liability contained in this Agreement constitute an allocation of risks that form part of the negotiated commercial terms of this Agreement.
    • Counterparts: This Agreement may be executed in counterparts provided that no binding agreement shall be reached until the executed counterparts are exchanged.
    • Entire Agreement: This Agreement constitutes the entire agreement between the parties and to the extent possible by law, supersedes all prior understandings, representations, arrangements and agreements between the parties regarding its subject matter.
    • Jurisdiction: This Agreement will be interpreted in accordance with the laws in force in Queensland. The parties irrevocably submit to the non-exclusive jurisdiction of the courts situated in Queensland.
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