Managed Service Agreement
Terms & Conditions
IT SERVICES AGREEMENT
RECITALS
A. HIOD is in the business of managing computer and software systems.
B. The Customer wishes to engage HIOD to provide the Services on the terms and conditions of this Agreement.
IT IS AGREED as follows:
1.1 Definitions
In this document unless the context otherwise requires:
(a) Agreement means this loan facility agreement (including the recitals, schedules, appendices, annexures and exhibits to it) as it may later be amended or supplanted by the parties in writing;
(b) Business Day means a day which is not a Saturday, Sunday or public or bank holiday in Melbourne, Victoria;
(c) Business Hours means any time between 9:00AM and 5:00PM Australian Eastern Standard Time (AEST) on a Business Day
(d) Business Premises means the business premises of the Customer as set out in Item 1of the Schedule;
(e) CBT or Computer Based Training means any training provided by HIOD to the Customer and/or its employees that allows the Customer’s personnel to be trained at their own pace through programs installed on the Customer’s computers at the Customer’s Business Premises;
(f) Claim means any claim, demand, legal proceedings or cause of action including any claim, demand, legal proceedings or cause of action:
(i) based in contract (including breach of representation or warranty);
(ii) based in tort (including misrepresentation or negligence);
(iii) under common law; or
(iv) under statute,
in any way relating to this Agreement and includes a claim, demand, legal proceedings or cause of action arising from a breach of representation or warranty or under an indemnity in this Agreement;
(g) Commencement Date means the date specified in Item 2 of the Schedule;
(h) Computing Device means any computer system that connects to the Technology System on a regular basis and performs a duty;
(i) Confidential Information includes, but is not limited to, all information disclosed by the Provider relating to the Provider and its business, including but not restricted to intellectual property, information systems, trade secrets and confidential know-how, recipes, product formulations, business and marketing plans, customer information, records, knowledge or communications, financial statements and records, accounts, contracts and any other commercially valuable or sensitive information of any kind whatsoever whether proposed, oral or written;
(j) Corporations Act means the Corporations Act 2001 (Cth);
(k) CRM Solution or Customer Relationship Management Solution means a technology tool which helps organizations manage their customers and provide better service and response time;
(l) Customer Problem Ticket means any email or telephone call by the Customer to HIOD notifying HIOD of an issue with the Customer’s Technology System;
(m) Customer’s Notice Period has the meaning in clause 3.3(b)(ii);
(n) Early Termination Notice has the meaning in clause 3.3(a);
(o) ERP Solution or Enterprise Resource Planning Solution means a technology tool which can maintain inventory, track assets, manage human resource functions etc. It is basically a high-end accounting system with modular functionality that can be added depending on the type of business it is serving;
(p) Fee Change Notice has the meaning in clause 3.2(b);
(q) Fees and Charges means all fees and charges payable by the Customer to HIOD as set out in this Agreement;
(r) Field Medic Level Training means the basic level of training on standard office software in order to get a Customer’s employee to a relatively proficient state of productivity;
(s) Insolvency Event means when a party:
(i) stops or suspends payment of all or a class of its debts;
(ii) is insolvent within the meaning of section 95A of the Corporations Act;
(iii) must be presumed by a court to be insolvent by reason of section 459C(2) of the Corporations Act;
(iv) fails to comply with a statutory demand within the meaning of section 459F(1) of the Corporations Act;
(v) has an administrator appointed over all or any of its assets or undertakings or any step preliminary to the appointment of an administrator is taken;
(vi) has a controller within the meaning of section 9 of the Corporations Act or similar officer appointed to all or any of its assets or undertakings;
(vii) has an application or order made or a resolution passed for its winding up or dissolution or for it to enter into an arrangement, compromise or composition with, or assignment for the benefit of, its creditors, a class of them or any of them;
(viii) has any step taken to enforce security over or a distress, execution or other similar process levied or served out against the whole or any of its assets or undertakings and that enforcement, distress, execution or similar process is not set aside within five Business Days; or
(ix) any event occurs which, under the laws of any relevant jurisdiction, has an analogous or equivalent effect to any of the events listed above;
(t) Liaison means an employee of the Customer as described in Item 3of Schedule 1 or other such person elected by the Customer from time to time as advised by the Customer to HIOD in writing;
(u) Loss means all losses, liabilities, damages, costs, charges, expenses and includes taxes, duties and costs and expenses in connection with a tax or duty and direct and indirect, special and consequential loss or damage;
(v) Network Device(s) means modems, switches, routers, hubs, bridges, gateways, repeaters, access points and/or firewalls;
(w) Other Monthly Support Items means items that are normally supported by other third-party vendors such items include ERP, CRM, and Telephone systems or other items which are not part of the Technology System;
(x) Proprietary and Custom-Built Software means computer software licensed under exclusive legal right of the copyright holder with the intent that the licensee is given the right to use the software only under certain conditions, and restricted from other uses, such as modification, sharing and studying;
(y) Provider means a party who provides Confidential Information to the other party pursuant to the terms of this Agreement, and may refer to either party; and
(z) Rate Factor means a multiplier in AUS Dollars set out in Item 5of the Schedule to calculate the Set Monthly Fee for Services provided under this Agreement;
(aa) Recipient means a party who receives Confidential Information from the other party pursuant to the terms of this Agreement and may refer to either party;
(bb) Related Entity and Related Entities has the meaning in the Corporations Act and in addition where the Customer is a natural person, includes any relatives of the Customer;
(cc) Resolution means any such actions taken by HIOD which leads to the solution of the Service Issue;
(dd) Response means HIOD’s first contact with the Customer whether in person, by telephone, e-mail or other such electronic or remote communication after the Customer has notified HIOD of a Service Issue;
(ee) Services has the meaning in clause 5;
(ff) Set Monthly Fee means the monthly fee payable for the Services which is set out in Item 5of the Schedule;
(gg) Supported Employee or Supported System means an employee of the Customer or a Computing Device of the Customer that is used on a regular basis by one or more such employees;
(hh) Supported Software means software owned by the Customer forming part of the Technology System as specified in Annexure B of this Agreement or any agreed addendum hereto;
(ii) “System Failure” means an unintentional and unplanned outage or failure of a connected system of computing hardware, software, firmware and associated electronic components and mobile devices or other industrial IT;
(jj) Technology System means the information technology hardware and Supported Software owned by the Customer and specified in Annexure B of this Agreement as updated from time to time as agreed by the parties in writing which is used to operate the Customer’s business;
(kk) Telephone System means the Customer’s telephone switch (PBX), telephone sets, and other telephony devices which allow for analogue and digital voice communication;
(ll) Term has the term of this Agreement being the period set out in Item 2of the Schedule;
(mm) Third Party Support Providers means any company, business, person or entity other than HIOD that customer is currently in agreement with or will be in agreement with to provide other various support such as ERP, CRM, Telephone Systems, and/or ISP/telephony connection support including those which are listed in Item 8of the Schedule as updated from time to time;
(nn) Uptime means any time the Technology System is functioning properly;
(oo) VPN or Virtual Private Network refers to a tool that allows a user to connect to the main Technology System via a remote USER DEVICE and temporarily join this Technology System as a member thus giving this remote USER DEVICE access to services in the Technology System.
1.2 Interpretation
In this Agreement, unless the context otherwise requires:
(a) a word denoting the singular includes the plural and vice versa;
(b) a word denoting an individual or person includes a corporation, firm, authority, government body and vice versa;
(c) a word denoting one gender includes all genders;
(d) all references to clauses, recitals, schedules and appendices are to clauses of and recitals, schedules and appendices to this Agreement;
(e) a reference to an agreement or document is to that agreement or document (and, where applicable, any of its provisions) as varied, novated, supplemented or replaced from time to time;
(f) a reference to a party includes that party’s executors, administrators, substitutes, successors and permitted assigns;
(g) a reference to a thing is a reference to the whole or any part of it, and a reference to a group of things is a reference to any one or more of them;
(h) any reference to a statute or statutory provision shall be deemed to include any statutory provision which amends, extends, consolidates or replaces the same or which has been amended, extended, consolidated or replaced by the same and any other orders, regulations, instruments or other subordinate legislation made thereunder;
(i) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
(j) all reference to dates and times are to Melbourne time;
(k) all references to “$” and “dollars” are to the lawful currency of Australia;
(l) if a payment or other act is required by this document to be made or done on a day which is not a Business Day, the payment or act must be made or done on the next following Business Day;
(m) specifying anything after the words “including”, “includes” or “for example” or similar expressions does not limit what else is included unless there is express wording to the contrary;
(n) a reference to a document includes but is not restricted to any computer program, circuit, circuit layout, plan, drawing, specification, material, record and any other means by which the information may be stored or reproduced;
(o) a provision must not be construed against a party merely because that party was responsible for preparing this Agreement or that provision; and
(p)headings are for convenience of reference only and do not affect interpretation.
2. PROVISION OF SERVICES
The Customer hereby exclusively appoints HIOD to provide the Services for the Term on the terms and condition contained in this Agreement and HIOD accepts that appointment.
3. TERM OF AGREEMENT
3.1 Initial Term
(a) This Agreement is to commence on Commencement Date and continues for the Term.
(b) The Customer acknowledges that the Term is a continuous period and cannot be paused or suspended for any reason.
3.2 Renewal
(a) Subject to clause 3.2(b), the term will automatically renew at the end of each Term in perpetuity for a further term for the same duration as the Term (’’Further Term’’), unless either party gives written notice to the other party that they do not wish to renew the Term no more than 90 days and not less than 30 days before the end of the then current Term.
(b) Upon the commencement of each Further Term, all Fees and Charges set out in Item 5 of the Schedule shall be increased by up to 15% of the rate of the proceeding Term or Further Term, as the case may be, save and except for the Onboarding Requirements Fee which is a one-off Fee payable in the Initial Term only.
(c) For the avoidance of doubt, any reference to ‘’Term’’ in this Agreement includes the reference to ‘’Further Term’’
3.3 Early Termination
(a) The Customer may terminate this Agreement for any reason, before the end of the Term by giving ninety (90) days written notice to HIOD (Early Termination Notice).
(b) If the Customer terminates this Agreement before the end of the Term, other than pursuant to clause 3.2(c)(i) or clause 11, the Customer must pay to HIOD the following:
(i) All amounts invoiced to the Customer as at the date of termination;
(ii) All Fees and Charges payable for the 90-day period starting on the date the Customer gave the Early Termination Notice (Customer’s Notice Period);
(iii) Any outstanding amount of the Onboarding Fee;
(iiii) An amount equal to the Set Monthly Fee as calculated from the end of the Customer’s Notice Period until the end of the Term.
(c) For the avoidance of doubt the Customer will be liable to pay HIOD for all Fees and Charges which fall due during the Customer’s Notice Period regardless of whether the Customer seeks to utilise the Services during the Customer’s Notice Period or not
4. TECHNOLOGY SYSTEM MANAGEMENT
4.1 Objectives
HIOD will use all reasonable endeavours to ensure the Customer’s Technology System is efficient as is reasonably possible, taking into consideration the specific configuration and elements of the Customer’s Technology System, with the intention of decreasing the annual net operating expense incurred by the Customer for the Customer’s Technology System immediately prior to entering into this Agreement by an amount which is greater than the annual costs incurred by the Customer under this Agreement.
4.2 Customer’s Acknowledgements
The Customer agrees and acknowledges that:
(a) operating the Technology System requires regular supervision, maintenance, upgrades, training, and research;
(b) it has appointed HIOD as the manager of its Technology System under this Agreement;
(c) following the advice and instructions of HIOD in regard to the Technology System is necessary and critical in order to maintain the integrity of the Technology System;
(d) the efficiency and condition of the Technology System may vary depending on the hardware and software products which for part of the Technology System;
(e) HIOD will make recommendations and provide advice from time to time with respect to any changes or additions to the Technology System; and
(f) HIOD will troubleshoot any issues with the Supported Software forming part of the Technology System, however, in some instances the issues and/or faults being experienced by the Customer will require input from the manufacturer of the Supported Software, in which case, HIOD will advise the Customer of same and refer the Customer to the appropriate third-party manufacturer.
4.3 HIOD’s Acknowledgements
HIOD acknowledges that it does not have authority to make purchases of hardware or software for the Customer’s Technology System unless approved by the Customer in advance in writing.
5. THE SERVICES
In consideration for the Customer paying the Set Monthly Fee, HIOD will provide the following services (Services) to the Customer during Business Hours for the Term:
5.1 Account Manager
(a) HIOD will provide the Customer with an Account Manager. The Account Manager will:
(i) advise the Customer;
(ii) make recommendations to the Customer; and
(iii) provide direction to the Customer,
with respect to any information technology issues the Customer faces throughout the Term;
(b) The Customer may e-mail or otherwise contact the Account Manager from time to time to ask its advice regarding the Technology System;
(c) The Account Manager will meet with the Customer at the Customer’s Business Premises, periodically throughout the Term;
(d) If the Customer reasonably requests, and where reasonably practicable, the Account Manager will physically meet with, or have a teleconference-meeting with the Customer’s management or outside vendors to determine the best way to handle technical decisions relating to the Customer’s Technology System. For example, corporate usage policy, employee training, accounting systems, CRM Applications, bar-coding systems, telephone service providers and Telephone Systems, etc;
(e) The Account Manager at the commencement of this Agreement is the person set out in Item 4of the Schedule. HIOD may change the Account Manager at any time, in its sole discretion, by notice to the Customer in writing.
5.2 Research and Screening Services
(a) HIOD is constantly researching new and better ways businesses can use its Technology System to do business and receive profit. HIOD will share its research with the Customer so that the Customer may make informed decisions to improve its Technology System;
(b) In addition to HIOD’s continual research, the Customer may request that HIOD research a particular facet of a technology solution such as a new device, or software application. Upon receipt of a reasonable research request from the Customer, HIOD will research the relevant new technology and provide the Customer with a report of HIOD’s findings;
(c) If after HIOD has reported its research findings to the Customer, the Customer wishes to interact with providers and resellers of such technology, HIOD will assist the Customer by being available to perform screening of such providers and resellers. If the provider/reseller proves the importance of a meeting with the Customer then HIOD can arrange such a meeting and attend with or on behalf of the Customer as reasonably required;
(d) After any meeting under clause 5.2(c), HIOD will debrief the Customer and provide its opinion of the technology and service to be provided and assist the Customer in making informed decisions;
5.3 Remote Help Desk Services
(a) HIOD will provide the Customer with full time system engineers. These engineers will be available to the Customer by telephone, and electronic messaging during Business Hours to answer questions from the Customer and/or their employees;
(b) If required and where applicable, HIOD will setup the ability to remotely connect to the employee’s Technology System and remotely assist the Customer and/or their employees with their enquiries;
(c) HIOD will notify the Liaison or the Customer’s management team in the event that it believes an employee of the Customer needs professional training in relation to performing his/her required tasks using technology. These recommendations are usually beneficial for both management and the employee because it solves the problem for management and gives the employee a morale boost about their career.
5.4 Remote Support Services
(a) HIOD will use it best endeavours to:
(i) ensure the Technology System is as efficient as is reasonably possible;
(ii) achieve the highest percent of Uptime as is reasonably possible for the Customer’s Technology System by providing remote support to the Customer during Business Hours; and
(b) HIOD will provide the Customer with a technical support electronic address (help@hiodit.com.au) to use to send requests for support to HIOD.
(c) HIOD will use its best endeavours to provide the Customer with a Response to Customer Problem Tickets as fast as is reasonably possible and otherwise in accordance with the support and priority level set out in Annexure A to support Customer with Microsoft OS & applications, email applications, file and print, user permissions and security;
(d) In relation to the Servers forming part of the Technology System, HIOD will provide the following support:
(i) Backup maintenance;
(ii) Windows updates;
(iii) Where the Customer has purchased antivirus software from HIOD, intrusion detection;
(iv) Active directory user, groups, distribution, creation and modification;
(v) Dynamic Host Configuration Protocol (DHCP);
(vi) Domain Name System (DNS);
(vii) File and print services support;
(viii) Active directory domain services;
(ix) GPO;
(e) In relation to the Network Devices forming part of the Technology System, HIOF will provide the following support:
(i) Access point controllers;
(ii) WiFi access points;
(iii) Firewall VM/Physical (policies, rules) V-Lans, DHCP, DNS, ISP Connection, QOS;
(iv) Switches – Ports, V-Lans, DHCP, POE; and
(v) Router – DHCP, DNS, Network V-Lan, ISP Connection
(f) In relation to the User Devices forming part of the Technology System, HIOD will provide the following support:
(i) Windows updates;
(ii) File folder permissions;
(iii) Where the Customer has purchased antivirus software from HIOD, intrusion detection;
(iv) Adding/removing printers;
(v) Installation and troubleshooting support of Microsoft Office Applications;
(vi) Troubleshooting and installation support for Mac OSX;
(vii) Troubleshooting and installation support for Adobe PDF Reader;
(viii) Troubleshooting and installation support for Google Chrome;
(ix) Troubleshooting and installation support for Microsoft Windows 10 pre-installed applications
(x) Troubleshooting and installation support for Office 365SAS;
(xi) Troubleshooting and installation support for Google Workplace SAS
5.5 Technology System Monitoring Services
(a) HIOD will monitor the Customer’s Technology System for such problems as alerts and performance checks, low system resources (CPU, RAM, HDD) and connectivity.
(b) Where the Customer has purchased antivirus software from HIOD, (for the avoidance of doubt, provision of antivirus software is not included in the Set Monthly Fee), HIOD will monitor the Customer’s Technology System for internal and external security breaches,
(c) If the Technology System suffers a System Failure is breached or is infected with a virus HIOD will dispatch support elements to try to repair, clean, or shutdown the problem;
(d) If the resources of the Technology System are getting close to being used at full capacity, HIOD will make recommendations to Customer
6. PAYMENTS, FEES AND CHARGES
6.1 Services
In consideration for the Services rendered by HIOD to the Customer under this Agreement the Customer agrees to pay HIOD the Fees and Charges as set out and in accordance with this clause 6.
(a) Onboarding Fee: One-time setup fee as set out in Item 5 of the Schedule to convert the Customer’s existing Technology System or establish the Customer’s Technology System (as relevant) to Agreement compliancy as outlined in Annexure B and which is payable as set out in Item 6 of the Schedule;
(b) Set Monthly Fee: being a set fee payable for the Services each month as outlined in Item 5 of the schedule which is payable as set out in Item 6 of the Schedule. Invoices for the Set Monthly Fee shall be processed and emailed by HIOD to the Customer via the email address set out in Item 9 of the Schedule on the last day of each calendar month;
(c) Travel Fee: Travel time to and from HIOD and the Customer’s business premises or other location as required by the Customer will be charged at hourly rates.
6.2 Hard Goods and Software Fees
(a) The Customer acknowledges that the provision of and cost of hardware and software is not included in the Set Monthly Fee.
(b) The Customer may purchase hardware and/or software, including antivirus software from the HIOD from time to time throughout the Term at prices as agreed between the parties.
(c) In the event that the Customer:
(i) Purchasers hardware and/or software from HIOD which is less than $20,000, HIOD will provide the Customer with an invoice for such hardware and/or software and the Customer must pay that invoice as set out in Item 6of the Schedule;
(ii) Purchases hardware from HIOD to the value of $20,000 or more, HIOD will provide the Customer with an invoice for such hardware and/or software and the Customer must pay that invoice prior to HIOD supplying the hardware and/or software to the Customer;
6.3 After Hours and On-Site Fees and Charges
(a) The Customer acknowledge that any requests by the Customer for HIOD to provide services:
(i) Outside of the Business Hours;
(ii) That require HIOD to attend the Customers Premises; and/or
(iii) In respect of additional Servers, Network Devices or User Devices not listed in Annexure B,
are not included in the Set Monthly Fee and will be charged at the hourly rates set out in Item 5 of the Schedule.
6.4 Additional Services
Upon request by the Customer, HIOD may from time to time provide support Other Monthly Support Items, in the same manner that it supports the Technology System, for additional fees which shall be quoted upon request by the Customer.
6.5 Payment of Fees and Charges
The Customer must pay to HIOD the total amount set out in HIOD’s invoice, without set off, to HIOD by the due date set out in that invoice, or where no due date is set out in an invoice, within the timeframes specified in Item 5of the Schedule.
6.6 Method Of Payment
(a) Payment of Invoices is to be made by the Customer by electronic fund transfer (EFT) to the account set out in Item 7of the Schedule.
(b) All payments shall be in Australian Dollars.
6.7 Interest
Any payment not made in accordance with this clause 6 shall bear interest at the rate of ten (10%) percent per calendar month or part thereof, from the date the payment was due until the date of payment, capitalised monthly.
6.8 Adjustment of Services
The Customer acknowledges that:
(a) the Set Monthly Fee has been calculated based on the number of servers, Network Devices and User Devices in the Customer’s Technology System at the commencement of the Term as set out in Annexure B;
(b) In the event the Customer reduces the number of servers, Network Devices and User Devices in the Technology System during the Term, the Set Monthly Fee will not be reduced; and
(c) In the event that the Customer increases the number of servers, Network Devices and User Devices in the Technology System during the Term, the Customer will incur additional costs in addition to the Set Monthly Fee as the rates set out in Item 5of the Schedule;
7 CONFIDENTIALITY
7.1 Acknowledgements
The parties acknowledge and agree that:
(a) they may become aware of or be exposed to Confidential Information belonging to the other party in connection with the performance of this Agreement;
(b) A Recipient must not use, disclose, distribute or circulate the Confidential Information of the Provider without the prior written consent of the Provider, except to the extent expressly permitted by this Agreement;
(c) A Recipient must ensure that it will only disclose the Confidential Information of the Provider to such of its employees, agents and contractors on a ‘need to know basis’ for the purposes of performance of the Recipient’s obligations under this Agreement, and to its legal advisors for the purposes of advising the party in respect of any matter relating to this Agreement.
(d) Each party must take all reasonable steps to ensure that any person who has access to the Confidential Information of the other party does not make any unauthorised use, reproduction or disclosure of that information and enforce the confidentiality obligations imposed or required to be imposed by this Agreement.
(e) A Recipient may disclose the Confidential Information of the Provider to the extent required by law or government authority or body or to the extent required by the rules of any stock exchange with which a party is bound to comply, but in each case, subject to giving the Provider reasonable notice of any proposed disclosure to enable the Provider to seek a protective order or other remedy to prevent disclosure.
(f) Each party must maintain proper and secure custody of all Confidential Information of the other party, considering the type and confidentiality of the information, and use its best endeavours to prevent the disclosure of that Confidential Information to or by third parties.
7.2 The Customer’s Obligations
The Customer agrees to limit access to the Technology System to those employees or consultants who require such access in order to use the Technology System in furtherance of the Customer’s Business.
7.3 HIOD’s Obligations
(a) HIOD, its directors, affiliates and employees agrees to keep in confidence and not disclose to others the internal structure of the Customer’s’ marketing strategies.
(b) HIOD shall take all reasonable precautions to maintain the confidentiality of the Technology System, but not less than that employed to protect its’ own proprietary information.
7.4 Privacy
(a) HIOD will observe and comply with the Privacy Act 1988 (Cth) in respect of all of the Customer’s Personal Information it may have access to; and
(b) HIOD’s Privacy Policy can be found at https://www.hiodit.com.au/privacy-statement/
8. REPRESENTATIONS AND WARRANTIES
8.1 Warranties
The Customer represents and warrants to HIOD that:
(a) it has full legal capacity and power to enter into this Agreement and to carry out its obligations under this Agreement;
(b) it is not the subject of an Insolvency Event;
(c) this Agreement constitutes its legal, valid and binding obligations, enforceable against it in accordance with its terms (except to the extent limited by equitable principles and laws affecting creditors’ rights generally); and
(d) it has not withheld any information which have caused HIOD not to enter into this Agreement;
8.2 Separate Warranties
Each representation and warranty is a separate warranty and is not limited or restricted by any other warranty, except if that limit or restriction is clearly stated in the relevant warranty.
8.3 Prompt disclosure of breach
The Customer must immediately disclose to HIOD anything which may arise or become known to it which is a breach of any warranty.
8.4 Reliance on Warranties
The Customer acknowledges that HIOD has entered into this Agreement and will complete this Agreement in reliance on the representations and warranties made by the Customer.
8.5 Indemnity
The Customer indemnifies, and must keep indemnified, HIOD against any Loss or Claim suffered or incurred by HIOD to the extent that Loss or Claim arises from or is connected with any breach of any of the representations or warranties or any other term of this Agreement.
9. INFORMATION AND ACCESS
9.1 Request by HIOD for Information
Upon request by HIOD, the Customer must promptly give HIOD:
(a) information about any Customer’s Technology System including but limited to:
(i) procedure documentation;
(ii) network diagrams and schematics;
(iii) IP addresses; and
(iv) Relevant usernames and passwords; and
(b) proof that the Customer has complied with the Customer’s obligations under this Agreement.
9.2 Access to Premises
The Customer shall grant HIOD reasonable access to the Business Premises and hardware installations to enable HIOD to maintain the Technology System.
9.3 Liaison
(a) The Customer will assign one employee of the Customer to be Liaison to HIOD in order to make communications between both parties effective.
(b) The Liaison’s responsibilities include, but are not limited to:
(i) changing back-up tapes, toner cartridges, etc;
(ii) trained by HIOD to discern basic user or computer problems or to call HIOD IT for technical support; and
(iii) Other miscellaneous functions related to helping the Customer improve its’ efficiency concerning computer systems.
10. LIMITATION OF LIABILITY
10.1 Non Excludable Rights
The parties acknowledge and agree that, under applicable State and Commonwealth law, certain conditions and warranties may be implied in this Agreement and there are rights and remedies conferred on the Customer in relation to the provision of the Services which cannot be excluded, restricted or modified by agreement (“Non-excludable Rights”).
10.2 Disclaimer
(a) HIOD disclaims all conditions and warranties expressed or implied, and all rights and remedies conferred on the Customer, by statute, the common law, equity, trade, custom or usage or otherwise and all those conditions and warranties and all those rights and remedies are excluded other than any Non-excludable Rights.
(b) To the extent permitted by law, the liability of HIOD for a breach of a Non-excludable Right is limited, at HIOD’s option, to the supplying of the Services again or a refund of the cost of the Services.
10.3 Limit of Liability
(a) The maximum liability of HIOD for any and all breaches of this Agreement by HIOD will be capped at the amount of the amounts previously paid by the Customer to HIOD for the relevant Services.
(b) To the maximum extent permitted by law, HIOD excludes its liability (including, but not limited to, liability in tort, contract and for breach of statute) to your or any other person for any injury, loss or damage consequential or otherwise (whether contractual, tortious, statutory or otherwise) for any special, incidental, indirect or consequential damages sustained or incurred in connection with the provision of the Services whether as a result of any breach, default, negligence or otherwise by HIOD suffered or incurred by your or any other person in relation to the Services.
10.4 Releases
(a) The parties acknowledge that HIOD makes no guarantees or warranties of any kind, whether expressed or implied of the functionality of any hardware, software or other goods manufactured by a third party and the Customer forever releases from and indemnifies HIOD against all Loss or Claims directly or indirectly incurred or suffered by the Customer as a result of any manufacturing fault, defect, flaw or error or any breach of warranty or guarantee or failure to uphold a warranty or guarantee by a third party supplier or manufacturer.
(b) The Customer forever releases from and indemnifies HIOD against all costs, expenses, actions, claims, damages, losses or loss of anticipated profits suffer by the Customer resulting, whether directly or indirectly, from any disruption to the business of the Customer caused by faulty, defective, or otherwise damaged hardware, software or other such equipment that forms part of the Customer’s Technology System.
11. DEFAULT, TERMINATION AND SUSPENSION OF SERVICES
11.1 Events of Default
(a) HIOD shall be in default under this Agreement if any of the following occur:
(i) HIOD is the subject of an Insolvency Event; or
(ii) HIOD fails to materially perform or comply with its obligations under this Agreement.
(b) The Customer shall be in default under this Agreement if any of the following occur:
(i) The Customer fails to make full payment of any invoice rendered to the Customer by HIOD under this Agreement as and when it falls due;
(ii) The Customer is the subject of an Insolvency Event;
(iii) if the Customer breaches any of the representations and warranties under clause 8; and/or
(iv) The Customer otherwise fails to materially perform or comply with any of its obligations under this Agreement.
11.2 Suspension of Services
(a) Without prejudice to any other remedy that HIOD may have, HIOD may suspend the Services so long as the Customer remains in default of payment of any invoice.
(b) If HIOD suspends or terminates all or any part of the Services pursuant to clause 11.2(a):
(i) all amounts owing by the Customer to HIOD shall, whether or not due for payment, become immediately payable; and
(ii) HIOD will not be liable to the Customer for any loss or damage the Customer may suffer because HIOD has exercised its rights under that clause.
11.3 Termination for Default
(a) Subject to clause 11.3(b), in the event that either party defaults under this Agreement, the party not in default:
(i) May give notice in writing to the defaulting party outlining the default; and
(ii) If the defaulting party fails to rectify the default within thirty (30) days of having received notice under clause 11.3(i),
the party not in default may terminate this Agreement by written notice to the other party served in accordance with clause 13 with such notice to take effect as from the date deemed to have been given by the party not in default in accordance with clause 13
(b) If either party is subject to an Insolvency Event, the party who is not the subject of the Insolvency Event may terminate this Agreement immediately, by notice in writing to the other party.
11.4 Costs
(a) The Customer must indemnify HIOD from and against all damages, costs, actions claims, liabilities and demands resulting from the Customer’s default of this Agreement.
(b) In the event that the Customer defaults on any payments to HIOD under this Agreement, the Customer agrees to pay HIOD within seven (7) days of request, HIOD’s reasonable expenses, including but not limited to legal costs in respect of any default or breach of the terms of this Agreement by the Customer.
12. GUARANTEE AND INDEMNITY
12.1 Requirement for Guarantee
If the Customer is a company, HIOD may require one or more directors of Customer to guarantee the performance of this Agreement by the Customer.
13. NOTICES
13.1 How to give a notice
A notice, consent or other communication under this document is only effective if it is:
(a) in legible writing and in English;
(b) signed by or on behalf of the person giving it;
(c) addressed to the person to whom it is to be given; and
(d) either:
(i) given personally to the addressee;
(ii) delivered or sent by pre-paid mail (by airmail, if the addressee is overseas) to the addressee’s address; or
(iii) or sent by email to the addressee’s email address and no message or report is given indicating that the email was not delivered,
or if given in such other manner as is allowed by law.
13.2 When a notice is given
A notice, consent or other communication that complies with this clause is regarded as given and received:
(a) if it is given personally, at the time it is given;
(b) if it is delivered or sent by email:
(i) by 5.00 pm (local time in the place of receipt) on a Business Day, on that day; or
(ii) after 5.00 pm (local time in the place of receipt) on a Business Day, or on a day that is not a Business Day, on the next Business Day; and
(c) if it is sent by mail, 3 days after mailing (or 7 days after mailing if sent to or from a place outside Australia).
13.3 Address for notices
(a) A person’s address is the address first appearing above, and such other addresses (including email addresses) as may be added or substituted by written notice to the other parties from the party wishing to alter its address.
(b) If no address is specified for a party, and none is notified to the other party, the person’s address for the purposes of this clause is its registered office under the Corporations Act or if the person is not a company, the person’s address for the purposes of this clause 12 is the person’s last known residential address.
13.4 Addressee
In this clause, reference to an addressee includes a reference to an addressee’s officers, agents or employees.
14. MISCELLANEOUS
14.1 Entire Agreement
This Agreement constitutes the entire agreement between the parties as to its subject matter and supersedes all previous agreements and understandings, whether verbal or in writing.
14.2 Variation
This Agreement or any part of it may be varied, modified, amended or added to only in writing executed by the parties.
14.3 Waiver
No provision of this Agreement shall be deemed to be waived except by express written consent executed by the party which is claimed to have waived the relevant provision.
14.4 Assignment
(a) HIOD may assign, licence, transfer or novate the Agreement or any of its rights and obligations to any third party.
(b) The Customer may only assign its rights and obligations under this Agreement with the written consent of HIOD.
14.5 Severability
If a provision or part of a provision of this Agreement is held invalid, unenforceable or illegal for any reason, then such provision or part, as the case may be, shall be deemed to be severed from the Agreement and the Agreement shall otherwise remain in full force.
14.6 Further assurances
Each party must do all things and execute all further documents necessary to give full effect to this Agreement.
14.7 Jurisdiction and Governing Law
(a) The law of the State of Victoria, Australia governs this Agreement.
(b) The parties submit to the exclusive jurisdiction of the courts of the State of Victoria and of the Commonwealth of Australia.
14.8 Time of Essence
Time is of the essence of the performance of each of the obligations under this Agreement.
14.9 Cumulative Rights
The powers of a party under this Agreement are cumulative and do not exclude any other right, power, authority, discretion or remedy of that party.
14.10 Force Majeure
A party shall not be in default under this Agreement because of any failure by it to comply with the terms and conditions of this Agreement if such failure arises from causes beyond its control, including, but not restricted to, acts of God, acts of government, fires, floods, epidemics, pandemics, quarantine, government mandated restrictions, strikes, embargoes, inability to secure raw materials or transportation facilities, acts or omissions of carriers, or any and other all causes beyond control of that party.
14.11 Liability of parties
If any party to this Agreement consists of more than one person, then the liability of those persons under this Agreement is a joint liability of all those persons and a separate liability of each of them.
14.12 Counterparts
(a) This Agreement may be executed in any number of counterparts. Each counterpart is an original, but the counterparts together are one and the same agreement.
(b) This Agreement is binding on the parties on the exchange of counterparts. A copy of a counterpart sent by email:
(i) must be treated as an original counterpart;
(ii) is sufficient evidence of the execution of the original; and
(iii) may be produced in evidence for all purposes in place of the original.
14.13 Special Conditions
(a) The parties acknowledge that the special conditions set out in Item 10 of the Schedule form part of this Agreement.
(b) In the event of any inconsistency between the terms of this Agreement and the special conditions, the special conditions will prevail.