General T’s & C’s Datto
PLANETIWARE GENERAL TERMS AND CONDITIONS FOR DATTO PRODUCTS AND SERVICES
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1. DEFINITIONS AND INTERPRETATION
In these Terms and Conditions Iware Consulting Pty Ltd (ACN 147 919 588) ATF the Planetiware Trust (trading as Planetiware) is “We” and “Our” etc, and the client is “You” and “Your etc, and:
“Anticipated Implementation Date” means the date specified in our Proposal.
“Business Day” means any day on which the banks are open for retail business in New South Wales, Australia, but excluding any Saturday, Sunday or public holiday on which the banks may be so open.
“Business Hours” are 8.00 AM to 6.00 PM (New South Wales Time) on Business Days.
“Confidential Information” means any publicly unknown information that is disclosed at any time and is marked as confidential or may reasonably be assumed, by its nature, to be confidential, and includes information concerning the Discloser’s financial affairs, products, skills, know-how, employees, contractors, suppliers and customers, but excludes any information:
(a) which becomes part of the public domain other than through a breach of confidentiality by the Recipient; or
(b) which the Recipient can demonstrate by contemporaneous written documentation was already known to it at the time of, or became known to it after the time of, disclosure and became so known other than through any breach of confidentiality).
“Data” means the information stored on the Datto Hardware.
“Datto Hardware” means the hardware that is provided pursuant to the Proposal.
“Datto Software” means the software that is provided pursuant to the Proposal.
“Datto Solution” means the Datto Hardware and Datto Software.
“Datto Terms and Conditions” means the terms and conditions which are found at Datto Terms and Conditions
“Downtime” means any period when the Selected Services are not available.
“Downtime Exception” means any Downtime period arising from Scheduled Downtime or a Force Majeure Event as defined in clause 13.
“Discloser” means the person disclosing Confidential Information.
“Effective Date” means the date You accept our Proposal.
“Fees” means the costs and charges payable by You to Us, as specified in the Proposal.
“Initial Term” means any period specified as such in our Proposal.
“Insolvent” means being an insolvent under administration or having a controller (as defined in the Corporations Act) appointed, or being in receivership, in receivership and management, in liquidation, in provisional liquidation, under administration, or being subject to any arrangement, assignment or composition, or being protected from creditors under any statute, or being otherwise unable to pay debts when they fall due or anything with the same or a similar effect under the laws of any jurisdiction.
“Personal Information” has the meaning as defined in the Privacy Laws.
“Privacy Laws” means the Privacy Act 1988 (Cth) and any other legislation at any time applicable in Australia governing the use and disclosure of Personal Information.
“Proposal” means the quotation and proposal We have submitted for the Datto Solution, and which You have accepted.
“Recipient” means the person receiving Confidential Information.
“Selected Products and Services” are the products and services that are provided by Us to You as specified in Our Proposal.
“Services” means the services that We are able to provide.
“Scheduled Downtime” means a period of Downtime for the purposes of maintenance of or improvements to the Selected Products and Services, and of which not less than 7 Business Days notice in Writing has been given to You.
“Taxes” means taxes, levies, imposts, deductions, charges, withholdings and duties imposed by any government agency including stamp and transaction duties, Goods and Services Tax and similar taxes (together with any related interest, penalties, fines and expenses in connection with them) whenever such taxes, levies, imposts, deductions, charges, withholdings and duties arise, but excluding in all cases any taxes on income.
“We” includes our employees, agents and third party contractors.
“Writing” means the process of forming visible words and numbers, whether on paper or by electronic means, and includes, without limitation, any visible words and numbers in any email
In these terms and conditions, unless the contrary intention appears:
(a) a reference to these terms and or another instrument includes any variation or replacement of any of them;
(b) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(c) the singular includes the plural and vice versa;
(d) the word “person” includes a firm, a body corporate, a partnership, joint venture, an unincorporated body or association, or any government agency;
(e) a reference to a person includes a reference to the person’s executors, administrators, successors in title, and permitted assigns;
(f) a reference to a corporation includes a reference to that corporation’s administrators, representatives, successors in title and permitted assigns;
(g) if a period of time is specified and that period dates from a given day or the day of an act or event, the period is to be calculated exclusive of that day;
(h) a reference to a day is to a calendar day and is to be interpreted as the period of time commencing at midnight and ending 24 hours later;
(i) a reference to a month is to a calendar month;
(j) the verb “include” (in all its parts, tenses and variants) is not used as, nor is it to be interpreted as, a word of limitation;
(k) if an event must occur on a stipulated day which is not a Business Day then the stipulated day will be taken to be the next Business Day;
(l) unless otherwise expressly stated, each party is required to perform any obligation attributed to them at their own cost; and
(m) headings are inserted for convenience and do not affect the interpretation of these terms and conditions.
2. PROVISION OF PRODUCTS AND SERVICES
We are to provide the Selected Products and Services commencing on the Anticipated Implementation Date or as soon as is reasonably practical after that date.
The Selected Products and Services will continue for the Initial Term unless sooner terminated in accordance with these terms and conditions.
Upon the expiration of the Initial Term, provision of the Selected Products and Services will automatically renew for successive periods of 12 months (each a “Renewed Term”) unless You or We give not less than 3 months written notice prior to any Renewed Term of an intention not to continue with the Selected Products and Services.
4. YOUR SELECTION OF THE SELECTED PRODUCTS AND SERVICES
You acknowledge that You have considered the available options for the Selected Products and Services for the Datto Solution and that You have selected those options that You believe will best suit Your purposes.
(a) provide the Selected Products and Services for the term of this Agreement;
(b) use best endeavours to ensure the Selected Products and Services are available 24/7, save for any Downtime Exceptions;
(c) provide adequate support to enable You to satisfactorily use the Datto Solution;
(d) if remotely accessing Your infrastructure, ensure that no loss or damage is caused to infrastructure or Data; and
(e) ensure that We do not breach any laws, including any Privacy Laws.
(a) ensure that You do not breach any laws when using the Selected Products and Services;
(b) ensure that You comply with the Datto Terms and Conditions including the Datto Licence Agreement and all other third party licences included in those terms and conditions;
(c) use the Datto Hardware and Datto Software only as part of the Datto Solution and only for the purposes of receiving the benefits of the Selected Products and Services;
You may vary the Selected Products and Services by forwarding to Us a request in Writing specifying the required variation, in which case, We will, within 7 Business Days, notify You in Writing either that the Selected Products and Services will be varied as requested from a specified date and specifying any variation to the Fees, or advising that the Selected Products and Services cannot be varied as requested and offering to discuss possible alternative variations.
We may by notice in Writing notify You that We wish to vary the Selected Products and Services no earlier than 7 Business Days after such notification, and advising You how and why We wish to so vary them and if and how the Fees may be varied as a consequence. If You do not wish to accept any such variation, You may, within 5 Business Days of receipt of Our notification, elect to terminate the Selected Products and Services and neither You nor We shall have any claims against the other, save for any claims accrued prior to such termination.
Upon You and We agreeing in Writing to any variation, the Selected Services shall be varied accordingly.
You (if a corporation) and We each warrant that:
(a) it has been incorporated as a company limited by shares in accordance with the Corporations Act 2001, or a predecessor of that Act;
(b) it has full capacity and authority to agree to receive and supply the Selected Services.
(a) You agree to pay Us for the Selected Products and Services the Fees in the manner specified in Our Proposal.
(b) All Fees are specified as exclusive of all Taxes.
We must comply with all Privacy Laws in relation to all Personal Information of which We become aware or to which We have access.
(a) use the Personal Information only for the purpose of providing the Selected Services;
(b) restrict access to the Personal Information to Our employees, contractors or agents who need to access the Personal Information to fulfil Our obligations to provide the Selected Services;
(c) not disclose any Personal Information in breach of any Privacy Law; and
(d) not do anything with the Personal Information that will cause You to breach any Privacy Law.
No Confidential Information of the Discloser may be disclosed by the Recipient to any person except:
(a) to employees, legal advisers, auditors and other consultants of the Recipient requiring the information for the purposes of receiving or providing the Selected Services; or
(b) with the consent of the Discloser, which consent may be given or withheld in its absolute discretion; or
(c) if the Recipient is required to disclose the information by any law or regulation.
A Recipient may only use Confidential Information solely for the purposes of receiving or supplying the Selected Services.
11. INTELLECTUAL PROPERTY RIGHTS
Neither Your nor Our intellectual property rights in any material is affected by any of these terms and conditions or by the provision or receipt of the Selected Products and Services.
12. LIMITATION OF LIABILITY
Save as may be precluded by any law, You and We each exclude all implied terms and warranties whether statutory or otherwise, which may apply to the supply of the Selected Products and Services.
Subject to clauses 12.4 and 12.5, You and We each exclude all liability for all and any loss that does not arise as a natural and reasonably foreseeable consequence of any default, and, for avoidance of doubt, unnatural or unforeseeable consequences include, without limitation, loss of business revenue, loss of profits, loss of goodwill or reputation, and failure to realise expected profits or savings, whether the liability arises under contract, tort (including negligence), under any statute or otherwise.
Subject to clauses 12.4 and 12.5, Our total liability for loss or damage of any kind not otherwise excluded or limited by the provisions of these terms and conditions, however caused, whether due to negligence or breach of contract, breach of any law or otherwise, arising from or in connection with the supply of the Selected Products and Services, is limited to the Fees paid by You during the 12 months preceding the default giving rise to the claim.
Where any law implies any term, which cannot be excluded or modified, such term is deemed to be included, but Our liability for breach of that term, to the fullest extent permitted by law, will be limited to one of the following remedies (at Our option):
(a) the resupply of the relevant product or service; or
(b) the payment of the cost of resupplying the relevant product or service.
The limitations of liability provided in clauses 12.2 and 12.3 do not apply to any indemnity given by either of You or Us or to any breach of clauses 9 or 10, or to a breach of any intellectual property rights.
If You or We suffer any loss or damage, however caused, whether in contract, tort (including negligence), under any statute or otherwise (“Claim Entitlement”) and some or all of the Claim Entitlement was caused or contributed to by a negligent act or omission of the other party or any of its clients, employees, officers, agents or third party contractors, then the Claim Entitlement will be reduced to the extent to which that negligence contributed to the relevant loss or damage.
13. FORCE MAJEURE
Neither You nor We (“Affected Party”) are liable for any delay or failure to perform an obligation (other than to pay money) caused by any event or circumstance beyond that party’s reasonable control (“Force Majeure Event”), including, without limitation:
(a) act of God;
(b) war, riot, insurrection, vandalism or sabotage;
(c) strike, lockout, ban, limitation of work or other industrial disturbance;
(d) power or telecommunications failures; or
(e) any Law or rule or regulation of any government or government agency or regulatory authority or by any executive or administrative order or act of general or particular application.
The performance of the Affected Party’s obligation is suspended for the period of delay caused by the Force Majeure Event.
The Affected Party must notify the other party as soon as practical of any anticipated delay or default caused by a Force Majeure Event.
If a Force Majeure Event:
(a) permanently prevents the performance of any obligation; or
(b) delays performance of any obligation by more than 30 Business Days, either You or We may terminate the Agreement at the expiration of not less than 5 Business Days notice and no party shall have any claims against the other, save for antecedent breaches or defaults.
14. DISPUTE RESOLUTION
Nothing in this clause 14 prevents either You or We seeking urgent injunctive or similar interim relief from any court of competent jurisdiction.
Any controversy or dispute arising out of, or relating to, the supply of the Selected Services (“Dispute”) must, prior to either party initiating any form of litigation (other than for urgent interlocutory relief), be the subject of discussions between officers of the parties having authority to resolve the Dispute (“Authorised Officers”). The Authorised Officers must, within 7 days of one party notifying the other in writing of the existence of a Dispute, meet at a location specified by the party giving notice of the dispute, and attempt to resolve the Dispute.
If the Dispute is not resolved in accordance with clause 14.2 within 30 days after the Authorised Officers have met (or should have met), unless the parties otherwise agree, the Dispute must be submitted to mediation in accordance with the rules of the Australian Commercial Disputes Centre. The mediation is to be conducted in Sydney.
The parties are to agree on the appointment of a mediator. If the parties do not agree on the mediator to be appointed within 7 Business Days of either party referring the Dispute to mediation, then the mediator is the person nominated by the then current president of the Australian Institute of Arbitrators and Mediators.
The mediation process, if not resulting in a resolution of the Dispute, will terminate within 30 days of the appointment of the mediator unless otherwise agreed, after which termination either party will be entitled to pursue such course as it wishes.
Subject the continued to payment of all Fees under this Agreement, We must continue to provide the Selected Services while You and We seek to resolve the Dispute.
Either You or We may terminate the Selected Products and Services immediately if the other party commits:
(a) a material breach of its obligations under these terms and conditions (being a breach which is likely to cause the other party significant loss or damage) and the breach is not remedied within 14 days of receiving a written notice detailing the breach and requiring that it be rectified; or
(b) more than three similar non material breaches and fails to reasonably satisfy the other party within 14 days of being requested in writing that it has implemented procedures to eliminate or prevent similar breaches.
Either You or We may terminate the Selected Product and Services immediately by notice in writing to the other party if the other party becomes Insolvent.
A notice given under clause 15.1 or 15.2 must specify the events in relation to which the notice is given.
In addition to any other rights and remedies which You and We may have, on termination of this Agreement for any reason:
(a) We may cease to provide the Selected Products and Services;
(b) Each party must return all Confidential Information of the other and destroy all copies except for any copies of Confidential Information that are reasonably required to be held strictly for archival purposes; and
(c) all Fees and other monies due to Us up to and including the date of termination must be paid without set off or discount of any kind.
A notice, approval, consent or other communication in connection with this Agreement must be:
(a) in writing;
(b) marked for the attention of the person set out in our Proposal; and
(c) left at the address of the addressee, or sent by prepaid ordinary post to the address of the addressee, or sent by facsimile to the facsimile number, or by email to the email address, which are set out in our Proposal.
If either party notifies the other of a different postal address or facsimile number then notices, approvals, consents or other communications must be sent to that address or facsimile number.
Subject to clause 16.4, a notice, approval, consent or other communication takes effect from the time it is received unless a later time is specified on it.
A letter or facsimile or email is taken to be received:
(a) in the case of a posted letter, on the third Business Day after posting;
(b) in the case of a facsimile, on an entry being made in a transmission log kept by the machine from which the facsimile was sent which indicates that the facsimile was sent in its entirety to the facsimile number of the recipient (and didn’t generate an unsuccessful delivery message), unless it is sent on a non-Business Day, or after 5.00 PM on any Business Day, in which case it is taken to be received on the next Business Day;
(c) in the case of an email, at the time it is successfully sent, unless it is sent on a non-Business Day, or after 5.00 PM on any Business Day, in which case it is taken to be received on the next Business Day.
17.1 No representations or warranties
You acknowledge that You have not relied on any representations or warranties about the Selected Products and Services except as expressly provided in these terms and conditions.
17.2 No agency or partnership
Neither party is a partner or agent of the other for any purpose, and neither party has authority to bind the other in any way.
17.3 Entire agreement
These terms and conditions, the Datto Terms and Conditions, and the Proposal, constitute the entire agreement regarding the supply of the Selected Products and Services and supersedes all previous agreements, understandings and negotiations in that respect.
We may engage subcontractors to assist Us with performing Our obligations without Your prior consent. However such action does not relieve Us from any of our responsibilities to You.
You may not assign any of your rights or obligations in receiving the Selected Services without Our prior written consent, which We must not unreasonably withhold.
17.6 Remedies cumulative
The rights, powers and remedies provided in these terms and conditions are cumulative with and not exclusive of the rights, powers or remedies provided by law independently of these terms and conditions.
17.7 Survival of Agreement provisions
Any term or condition that, for full force, effect and benefit ought reasonably survive the expiry or termination of the Selected Services, is to so survive.
17.8 Governing law and jurisdiction
These terms and conditions, and all matters pertaining to the provision of the Selected Products and Services are governed by the laws in force in New South Wales, Australia. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales.