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These Standard Terms and Conditions (Terms), together with any Proposal and Managed Services Agreement, collectively form the agreement under which Iware Consulting Pty Ltd as trustee for the Planetiware Trust ABN 11 569 240 443 ('Planetiware'), provides Services to you or the company which you represent (the 'Client').
The Proposal and Manages Services Agreement (MSA) provides the particulars that will apply when interpreting these Terms, and collectively they form this Agreement. Once accepted, these Terms will apply to all future Proposals agreed to between the parties without needing to be accepted again.
All capitalised terms used and defined in the Proposal and MSA have the same meaning when used in these Terms, unless a definition is otherwise provided in these Terms (indicated by the bolded word in brackets after the meaning is provided).
The Client will be taken to have accepted these Terms, the Proposal and the MSA if the Client accepts a Proposal, or if the Client orders, accepts or pays for any services provided by Planetiware after receiving or becoming aware of these Terms or a Proposal.
1.1 DEFINED TERMS
Capitalised words and phrases used in these terms and conditions have the meaning given:
(a) to that word or phrase in a Proposal or MSA;
(b) by the word immediately preceding any bolded and bracketed word(s) or phrase(s); or
(c) in the definitions in clause 16 of this agreement.
1.2 ORDER OF PRECEDENCE
Unless otherwise expressly stated, in the event of any inconsistency between these terms and conditions and a Proposal or MSA, these terms and conditions will prevail to the extent of such inconsistency.
2 DURATion of this agreement
(a) This agreement commences on the Start Date and will continue for the Initial Term set out in a Proposal, and any Renewal Term pursuant to clause 2(b), unless terminated earlier in accordance with its terms (the Term).
3.1 SCOPE OF SERVICES
(a) Planetiware will perform the Services in accordance with this clause 3 and the scope of services set out in a Proposal (Services), including, as applicable, any Professional Services, Support Services, Hosted Services and Licensed Software Licences set out in a Proposal.
(b) The Services do not include the specific exclusions set out in the MSA and any other activities that are not expressly stated as included in accordance with clause 3.1(a) (Excluded Services).
(c) If any Excluded Services are required by the Client from time to time in Planetiware’s reasonable opinion (Additional Services) the parties will follow the process set out in the MSA.
3.2 number of users
(a) The Services are (where applicable) limited to the Number of Users as set out in a Proposal.
(b) During the Term, the Client may request in writing for Planetiware to onboard and provide the Services to new User(s) (Increase Request). Upon receipt of the Increase Request, Planetiware will, as soon as practicable, perform the onboarding and relevant Services for the number of Users as set out in the Increase Request (Onboarding).
(c) The Client acknowledges and agrees that the fees applicable for each new User as set out in an Increase Request will be prorated and payable at the beginning of the month immediately following completion of the Onboarding, and continue thereafter until otherwise terminated in accordance with this agreement.
3.3 INFRASTRUCTURE RECOMMENDATIONS
The Client acknowledges and agrees that:
(a) any information or recommendations provided to the Client in relation the Client’s IT System in the course of providing the Services is based on:
(i) the information provided by the Client to Planetiware; and
(ii) Planetiware’s knowledge of current best practice and technological developments;
(b) the Client must make its own assessments of its business requirements and infrastructure needs; and
(c) the Client must ensure that it complies with applicable regulations relevant to the Client’s business, including industrial relations laws and privacy laws.
3.4 SOFTWARE LICENCES & TERMS AND CONDITIONS
(a) The Client acknowledges and agrees that third party terms & conditions may apply to any part of the Services, including:
(i) the Client’s Software; and
(ii) the Hosted Services as further described in clause 4.2,
(Third Party Terms).
(b) Provided that Planetiware has notified the Client of such Third Party Terms and provided the Client with a copy of those terms, the Client agrees to any Third Party Terms applicable to any goods or services supplied by a third party that the Client or the Planetiware acquires as part of providing the goods or services and the Planetiware will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.
(c) The Client has the right to reject any Third Party Terms. If the Client rejects the Third Party Terms, the Client acknowledges and agrees that this may affect Planetiware’s ability to provide the Services and clause 12.1 may apply.
3.5 AUTONOMY AND DISCRETION
Planetiware will have absolute control and discretion over working times, methods, and decision making in relation to the provision of the Services. Planetiware will be responsive to the reasonable needs and concerns of the Client.
3.6 SUBCONTRACTS
The Client acknowledges and agrees that Planetiware may, in its absolute discretion and without further notice to or approval from the Client, subcontract any part of the Services. Planetiware will be responsible for any subcontractors’ performance of the Services.
4 specific service provisions
If a Proposal states that Support Services apply, Planetiware will provide Support Services in accordance with the MSA or as otherwise agreed in writing.
This clause 4.2 applies if a Proposal states that Hosted Services apply.
(a) (hosting provider) Planetiware uses third party providers to provide the Hosting Services. The Client acknowledges and agrees that those third party providers are wholly responsible for the quality of the Hosting Services and the terms and conditions of third party providers apply to the Hosting Services. Accordingly, Planetiware does not guarantee that:
(i) the Hosting Services will be free from errors or defects; or
(ii) the Hosting Services will be accessible or available at all times.
(b) (hosting location) The Client acknowledges and agrees that Planetiware uses storage servers to host the Solution that may be located outside Australia.
(c) (security) Planetiware will use its best efforts to ensure that the Client's website, application or other information or data (Client Data) is stored securely. However, Planetiware does not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to the Client Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.
(d) (backups & disaster recovery) Planetiware will use its best efforts to create scheduled daily backups of Client Data stored by Planetiware. In the event that Client Data is lost due to a system failure (e.g. a database or webserver crash), Planetiware will attempt to restore the Client Data from the latest available backup, but cannot guarantee that this backup will be free from errors or defects.
(e) (troubleshooting) The Hosted Services do not include troubleshooting or fixing application or data-based failures and additional fees may apply for these sorts of services.
4.3 monitoring and security services
Unless otherwise agreed in writing, this clause 4.3 applies if a Proposal states that the Services include Monitoring and Security Services.
(a) The Client acknowledges and agrees that:
(i) Planetiware may install and use remote access Software to access the Client’s IT System in order to perform the Monitoring and Security Services;
(ii) the specific inclusions of the Monitoring and Security Services will be limited to the scope set out in a Proposal; and
(iii) the Monitoring and Security Services may be performed using third party Software.
(b) The Client acknowledges that Planetiware cannot guarantee that the Monitoring and Security Services will detect and prevent all issues and prevent breaches of security.
4.4 supply of licensed software
If the Services involve Planetiware supplying the Client with a Licenced Software Licence, the following terms apply unless otherwise specifically agreed in writing.
(a) Planetiware will provide the Client with the Licensed Software and its Documentation (where provided by the licensor of that software).
(b) The Client acknowledges that Planetiware is a reseller of the Licensed Software Licence.
(c) The Licensed Software is licensed to the Client directly by the relevant licensor of that Licensed Software according to the terms of the Licensed Software Licence.
(d) Planetiware is not liable to the Client for the performance of the Licensed Software. The Client’s rights in respect of the Licensed Software are as set out in the Licensed Software Licence. Planetiware is not responsible for installing the Licensed Software unless the Client has agreed to purchase the Licensed Software Installation Service for that Licensed Software.
5 CLIENT DATA ROLES AND RESPONSIBILITIES
5.1 OBLIGATIONS
(a) Planetiware will establish, maintain, enforce and continuously improve safety and security procedures and safeguards against the unauthorised use, destruction, loss or alteration of the Client Data. The Client must not, and ensure that its personnel do not, undertake any action that may have the potential to compromise Planetiware’ ability to comply with this clause.
(b) Planetiware will not make any undocumented, unreported or unauthorised configuration changes to Planetiware’ systems or to the information security controls that secure the Client Data, if those changes would materially decrease the protections afforded to the Client Data.
(a) The Client or Planetiware (as the case may be) will immediately notify the other party after learning of any potential, actual or suspected loss, misappropriation or unauthorised access to, or disclosure or use of Confidential Information or Personal Information or other compromise of the security, confidentiality, or integrity of Confidential Information or Personal Information (collectively, Security Breaches).
(b) The Client must take all steps necessary to ensure that data integrity is maintained if the IT System crashes, suffers a power surge or is otherwise compromised, including by immediately notifying Planetiware and following any directions given by Planetiware.
(c) The Client will be solely responsible for any obligations in relation to any Notifiable Data Breaches and the Office of the Australian Information Commission.
6.1 PROVIDE INFORMATION
The Client must provide Planetiware with all documentation, information and assistance reasonably required by Planetiware to perform the Services.
6.2 ACCESS
The Client agrees to provide Planetiware with access to:
(a) the Client’s premises and personnel, to the extent required to perform the Services;
(b) the Client’s website (but only where Planetiware is providing Services that involve making updates or changes to the Client’s website); and
(c) any other third party or other accounts used by the Client (including login details and passwords),
as reasonably required by Planetiware to perform the Services.
6.3 SPECIFIED CONFIGURATION AND SOFTWARE
(a) The Client must maintain the Client’s hardware, Software licences and internet connection as necessary for Planetiware to perform the Services.
(b) The Client must, and must ensure that its personnel, comply with all Software licences. Unless permitted by the relevant Software licence, the Client must not attempt to circumvent any technological protection mechanism or other security features of any Software.
(c) Planetiware will not be responsible for any access or performance related issues arising out of or in connection with the Client’s failure to comply with this clause 6.3.
(a) To lodge a Service Request, the Client must lodge a request through Planetiware’s IT Support Team via:
(i) the Planetiware Support Portal - Portal.planetiware.com
(ii) Email: [support@planetiware.com]
(iii) Phone: [02 9199 8520]
(b) The Client acknowledges and agrees that:
(i) Critical and High Priority Service Requests (as set out in the MSA) must be lodged via phone only otherwise the Response Time Guarantee will only be applicable at the Medium priority level; and
(ii) If you do not follow the process set out in this clause, Planetiware does not guarantee that it will meet any Response Time guarantees for the Support Services.
6.5 COMPLIANCE WITH LAWS
The Client agrees that it will not, by receiving or requesting the Services:
(a) breach any applicable laws, rules and regulations (including any applicable privacy laws); or
(b) infringe the intellectual property rights or other rights of any third party or breach any duty of confidentiality.
(a) The Client must pay the Fees in the amounts, and at the times, set out in a Proposal or as otherwise agreed in writing.
(b) Unless otherwise agreed in writing:
(i) the Monthly Fixed Fee IT Remote Support Services fees are payable monthly in advance by direct debit (for more information regarding direct debit payments, refer to clause 7.9 below) (Monthly Fees); and
(ii) the Prepaid Hour fees are payable in pre-paid blocks in advance and (to the maximum extent permitted by law) are non-refundable once purchased.
(c) Planetiware will issue a valid tax invoice to the Client for payment of the Fees. The Client must pay the Fees by the time(s) specified and in accordance with the remittance method set out in an invoice.
(d) The Client must pay for the Services that Planetiware agrees to provide you with regardless of whether the Services are utilised. If the Client does not provide Planetiware with the necessary materials or information for Planetiware to deliver the Services, the Client is still liable to Planetiware for full payment.
(e) To the maximum extent permitted under the Competition and Consumer Act 2010 (Cth) any Fees paid in accordance with this agreement are non-refundable.
7.2 billing methods
(a) Support Services are billed in 0.25 hour increments with a minimum of 0.5 hour units. The Support Services are charged at Planetiware’s standard consulting rate as set out in the MSA.
(b) Project Services are billed in 0.25 day increments and is charged at Planetiware’s standard daily rate set out in the MSA. There are 8 hours in a standard day.
(c) Any Project Services that are performed outside of Business Hours will be charged at the After Hours Support Rate per hour, multiplied by the standard daily rate as set out in the MSA.
(d) All Onsite Support visits are chargeable, with a minimum charge of a 1 hour unit. The Onsite Support shall be charged at the standard rates as set out in the MSA.
(e) A Proposal may include Prepaid Hours, in which case:
(i) the Prepaid Hours are available for purchase in 5, 10, 50 or 100 hour blocks; and
(ii) Prepaid Hours will expire after the time period as set out in the MSA.
(f) All phone and remote support are billed against the Prepaid Hours in 0.25 hour units.
7.3 fee increases
(a) Planetiware may, in its absolute direction on commencement of each Renewal Term, increase the Fees upon giving the Client at least 30 days’ written notice prior to the date on which the increase is to take effect.
(c) In the event that the Client accepts the increase or does not respond within the 14 day notice period, the Client will be deemed to have accepted the increase to the Fees.
7.4 SUSPENSION OF SERVICES
Planetiware reserves the right to suspend all or part of the Services indefinitely where the Client fails to pay the Fees (including Monthly Fees) in the amounts and times specified in a Proposal or invoice.
7.5 EXPENSES
Unless otherwise agreed in writing:
(a) the Client will bear all travel, accommodation, office stationery, computer storage, media and related expenses reasonably incurred by Planetiware in connection with a Proposal; and
(b) any third party costs incurred by Planetiware in the course of performing the Services may be billed to the Client, unless specifically otherwise provided for in a Proposal.
7.6 GST
Unless otherwise indicated, amounts stated in a Proposal do not include GST. In relation to any GST payable for a taxable supply by Planetiware, the Client must pay the GST subject to Planetiware providing a tax invoice.
7.7 CARD SURCHARGES
Planetiware reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).
7.8 payment methods
Planetiware may use third-party payment providers (Payment Providers) to collect Fees. The processing of payments by the Payment Provider will be, in addition to these terms, subject to the terms, conditions and privacy policies of the Payment Provider and Planetiware is not liable for the security or performance of the Payment Provider. Planetiware reserves the right to correct, or to instruct its Payment Provider to correct, any errors or mistakes in collecting the Client’s payment.
If an invoice or a Proposal state that the Fees, or any part of the Fees, are to be paid using direct debit (DD), the Client:
(a) authorises direct debit in line with separate DD Authorisation Form and any DD agreement of the Payment Provider (as applicable);
(b) authorises Planetiware to charge the Client’s bank account or credit card in line with any DD Authorisation Form and any DD agreement;
(c) must ensure that there are sufficient funds available in the Client’s account to allow the Payment Provider to debit the amount payable; and
(d) acknowledges and agrees that there may be additional payments required from the Payment Provider if the Client misses or fails to make any payment. These terms are separate and in addition to this agreement.
(a) The parties must comply with:
(i) if applicable, their respective obligations under the Privacy Act 1988 (Cth); and
(ii) Planetiware’s privacy policy as in force from time to time and available here: https://planetiware.com/privacy.php
(b) Planetiware will keep the Client informed of any changes to Planetiware’s Privacy policy during the term.
The parties will not, during or at any time after the Term, disclose Confidential Information directly or indirectly to any third party except:
(a) with the other party’s prior written consent;
(b) as required by Law; or
to their Personnel on a need to know basis for the purposes of performing its obligations under this agreement (Additional Disclosees).
8.3 BREACH
If either party becomes aware of a suspected or actual breach of clause 8.2 by that party or an Additional Disclosee, that party will immediately notify the other party and take reasonable steps required to prevent, stop or mitigate the suspected or actual breach. The parties agree that damages may not be a sufficient remedy for a breach of this clause 8.2.
8.4 PERMITTED USE
A party may only use the Confidential Information of the other party for the purposes of exercising its rights or performing its obligations under this agreement.
8.5 RETURN
On termination or expiration of this agreement, each party must immediately return to the other party, or (if requested by the other party) destroy, any documents or other Material in its possession or control containing Confidential Information of the other party.
Each party will ensure that Additional Disclosees keep the Confidential Information confidential on the terms provided in this clause 8.6. Each party will, when requested by the other party, arrange for an Additional Disclosee to execute a document in a form reasonably required by the other party to protect Confidential Information.
In this clause, the following terms have the following meanings in relation to Intellectual Property Rights:
(a) Existing Material means Material, other than New Material;
(b) New Material means Material that is created, written, developed or otherwise brought into existence during the Term for the purposes of this agreement; and
(c) Material means tangible and intangible information, documents, reports, software (including source and object code), inventions, data and other materials in any media whatsoever.
(a) Each party retains ownership of Intellectual Property Rights in its Existing Material and nothing in this agreement transfers ownership or assigns any Intellectual Property Rights in, Existing Material of a party to the other party.
(b) The Client grants to Planetiware (and its Personnel) a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use its Existing Material to the extent reasonably required to perform any Services.
(c) The Client warrants that Planetiware’s use of the Client’s Existing Material will not infringe the Intellectual Property Rights of any third party and will indemnify Planetiware from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.
(d) Planetiware grants to the Client a non-exclusive, royalty free, non-transferable and revocable licence to use its Existing Material, to the extent:
(i) such Existing Material is incorporated into the New Material; and
(ii) such use is reasonably required for the Client to enjoy the benefit of the Services.
9.3 NEW MATERIAL
(a) Unless otherwise stated in a Proposal, Intellectual Property Rights in New Material are immediately assigned to and vest in Planetiware as those rights are created.
(b) Planetiware grants to the Client a non-exclusive, royalty free, non-transferable and revocable licence to use the New Material to the extent such use is reasonably required for the Client to enjoy the benefit of the Services.
10 WARRANTIES AND LIABILITY
10.1 WARRANTIES
(a) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement are excluded.
(b) Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Client may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services we provide.
(a) (Liability) To the maximum extent permitted by law, the total liability of each party in respect of loss or damage sustained by the other party in connection with this agreement is limited to the amount paid by the Client to Planetiware in the 6 months preceding the date of the event giving rise to the relevant liability.
(a) (Indemnity) Each party agrees to indemnify the other party and its employees, contractors and agents (“those indemnified”) from and against any loss or liability incurred or suffered by any of those indemnified where such loss or liability was caused or contributed to by the other party’s employees’, clients’, contractors’ or agents’:
(i) breach of any of these terms; or
(ii) breach of any third party intellectual property rights; or
(iii) negligent, wilful, fraudulent or criminal act or omission.
(b) (Consequential loss) To the maximum extent permitted by law, neither party will be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue in connection with this agreement or any goods or services provided by Planetiware, except:
(i) in relation to a party’s liability for fraud, personal injury, death or loss or damage to tangible property; or
(ii) to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth).
11 if the parties have a dispute
(a) If an issue between the parties arises under this agreement that cannot be resolved day-to-day, the parties will make genuine efforts in good faith to participate cooperatively in mediation, at equal shared expense of the parties.
(b) The parties will conduct mediation through the Australian Disputes Centre (ADC) and in accordance with the ADC’s Guidelines for Commercial Mediation (as current at the time of the dispute).
(c) The parties will follow the mediator’s recommendations on the extent of mediation required, and when to stop mediation if the issue cannot be resolved.
(d) If mediation does not resolve the issue, the parties must:
(i) if they haven’t already done so, engage independent legal representation at their own expense to understand the strength of their arguments; and
(ii) based on that advice, if settlement is not achieved, participate in arbitration (or other dispute resolution mechanism agreed in mediation) through the ADC at equal shared expense.
(e) The parties will follow the binding outcome of arbitration (or other agreed mechanism).
(f) Either party may at any time during this process make an offer for settlement. The parties acknowledge and agree it is in their best interests to properly consider all genuine settlement offers. The parties will use best endeavours to avoid litigation and reach a prompt settlement.
(g) The process in this clause does not apply where a party requires an urgent injunction.
12.1 TERMINATION FOR CONVENIENCE
(a) Either party may end this agreement for no reason, by providing notice to the other party.
(b) This agreement will end 30 days after the day the notice is sent (the End Date).
(c) On termination of this agreement (for whatever reason), Planetiware reserves the right to charge the Client reasonable fees for the handover of services to another provider (Handover Charge). Planetiware will calculate the Handover Charge based on its standard rates.
(d) On the End Date, Planetiware will provide an invoice to the Client for:
(i) any Fees for Services already performed up to the End Date (including Services performed to prepare not yet completed deliverables);
(ii) any pre-approved third party costs Planetiware has incurred on the Client’s behalf up to the End Date;
(iii) any applicable Handover Charge; and
(iv) if terminated by the Client, Planetiware’s pre-estimated genuine losses as a result of the Client ending this agreement, being the number of months remaining in the Term, multiplied by the monthly fees,
(together, the Outstanding Amounts)
(e) The Client will pay the Outstanding Amounts to Planetiware on the End Date, unless otherwise agreed in a written payment plan between the parties.
(f) Once the Outstanding Amounts have been paid, Planetiware will hand over any completed deliverables.
(g) If Planetiware terminates this agreement pursuant to this clause, Planetiware will make reasonable efforts to handover the remaining scope of Services to the Client, so the Client can source an alternative provider.
(a) If a party (the Notifying Party) considers that the other party is in breach of this agreement (the Breach), the Notifying Party may provide a notice to the other party.
(b) The notice must include the nature and details of the Breach, with reference to the relevant clause/s of this agreement. The Notifying Party may, if it wishes to do so, make suggestions for resolving the Breach.
(c) The other party will have 10 Business Days (or longer, in the Notifying Party’s discretion) to rectify the Breach (the Rectification Period).
(d) After the Rectification Period, the Notifying Party will:
(i) if the Breach has been successfully rectified, notify the other party that the agreement will continue; or
(ii) if the Breach has not been successfully rectified, notify the other party that this agreement is terminated (Termination for Breach Notice).
(e) Following a Termination for Breach Notice, the parties will stop all work under this agreement unless otherwise agreed.
(f) Any disputes regarding termination under this clause must be dealt with in accordance with clause 11. The indemnities, warranties and liability caps in clause 10.2 will apply to any disputes and resulting claims. Any pre-estimated losses in clause 12.1 will not limit or otherwise effect Planetiware’s rights under this agreement, at law or otherwise in equity; Planetiware’s losses resulting from the Client’s breach are likely to far exceed its losses resulting from termination for the Client’s convenience.
12.3 other consequences for termination
If this agreement ends, in addition to the specific consequences set out in clause 12.1 or 12.2 (as applicable), the parties will:
(a) return all property and Confidential Information to the other party;
(b) comply with all obligations that are by their nature intended to survive the end of this agreement; and
(c) stop using any materials that are no longer owned by, or licensed to, them when this agreement ends in accordance with clause 9.
13 FORCE MAJEURE
(a) A ‘Force Majeure Event’ means any occurrence beyond the control of the Affected Party which prevents the Affected Party from performing an obligation under this agreement (other than an obligation to pay money), including any:
(i) act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
(ii) strike or other industrial action;
(iii) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
(iv) decision of a government authority in relation to COVID-19, or other epidemic or pandemic,
to the extent the occurrence affects the Affected Party’s ability to perform the obligation.
(i) reasonable details of the Force Majeure Event; and
(ii) so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.
(c) Subject to compliance with clause 13(b), the relevant obligation will be suspended during the Force Majeure Event to the extent that the obligation is affected by the Force Majeure Event.
(d) The Affected Party must use its best endeavours to overcome or remove the Force Majeure Event as quickly as possible and resume performing the relevant obligation.
(a) Any notices required to be sent under this agreement must be sent via email using the party’s email addresses set out in a Proposal and the email’s subject heading must refer to the name and date of this agreement.
(b) If no email address is stated in this agreement, the notice may be sent to the email address most commonly used by the parties to correspond in relation to this agreement at the time the notice is sent.
(c) The notice will be considered to be delivered 24 hours after it was sent, unless the sender has reason to believe the email failed to send or was otherwise not delivered or received.
15 GENERAL
15.1 RELATIONSHIP
In providing the Services under this Agreement it is expressly agreed that Planetiware is acting as an independent contractor and not as an employee. The parties agree that this Agreement does not create a partnership or joint venture between them.
15.2 GOVERNING LAW AND JURISDICTION
This agreement is governed by the law applying in New South Wales, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
15.3 BUSINESS DAYS
If the day on which any act is to be done under this agreement is a day other than a Business Day, that act must be done on or by the immediately following Business Day except where this agreement expressly specifies otherwise.
15.4 AMENDMENTS
This agreement may only be amended in accordance with a written agreement between the parties.
15.5 WAIVER
No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
15.6 SEVERANCE
Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.
15.7 JOINT AND SEVERAL LIABILITY
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
15.8 ASSIGNMENT & NOVATION
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.
15.9 COUNTERPARTS
This agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this agreement and all together constitute one agreement.
15.10 COSTS
Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.
15.11 ENTIRE AGREEMENT
This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.
15.12 INTERPRETATION
(a) (singular and plural) words in the singular includes the plural (and vice versa);
(b) (currency) a reference to $; or “dollar” is to Australian currency;
(c) (gender) words indicating a gender includes the corresponding words of any other gender;
(d) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(e) (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(f) (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(g) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
(h) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
(i) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(j) (includes) the word “includes” and similar words in any form is not a word of limitation; and
(k) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.
In these terms and conditions, the following words and phrases have the following meaning:
| TERM | MEANING |
|---|---|
| Additional Services | has the meaning given in clause 3.1(c). |
| Additional Services Fees | means any amounts payable for the performance of Additional Services. |
| After Hours Support Rate | means the rate for after hours support, as set out in the MSA. |
| Approved Hardware | means the approved hardware as set out in the MSA. |
| Approved Software | means the approved software as set out in the MSA. |
| Business Day | A day (other than a Saturday, Sunday or any other day which is a public holiday) on which banks are open for general business in Sydney. |
| Business Hours | the hours between 9:00 AM and 5:00 PM Sydney time on a Business Day. |
| Client Data | means any data that contains Confidential Information or Personal Information relating to the Client’s business which Planetiware manages under this agreement. |
| Confidential Information | means information of, or provided by, a party that is by its nature confidential information, is designated as confidential, or that the recipient of the information knows or ought to know is confidential (including all commercial information exchanged between the parties), but does not include information which is, or becomes, without a breach of confidentiality, public knowledge. |
| Fees | means the fees payable by the Client for the Services, as set out in a Proposal. |
| Hosted Services | means the activities described in clause 4.2 (if applicable in accordance with a Proposal). |
| Initial Term | means the initial term as set out in a Proposal. |
| Intellectual Property Rights | means any and all present and future intellectual and industrial property rights throughout the world (whether registered or unregistered), including copyright, trademarks, designs, patents, moral rights, trade, business, company and domain names, and other proprietary rights, trade secrets, know-how, technical data, confidential information and the right to have information kept confidential, or any rights to registration of such rights (including renewal), whether created before or after the date of this agreement. |
| IT System | means the Client’s hardware, Software, data communications lines, network and telecommunications equipment and internet-related IT infrastructure, including computers, laptops and phones. |
| Monthly Fixed Fee IT Remote Support Services | Means the fixed fee managed services as set out in a Proposal. |
| Number of Users | Means the number of users set out in a Proposal. |
| Onsite Support | Means any Services (including Support Services) provided by Planetiware at the Client’s premises. |
| Prepaid Hours | Means the block of prepaid hours for Services, as agreed in a Proposal. |
| Project Services | means the project services described in a Proposal. |
| Proposal | means any agreement, quotation or order under Planetiware is to provide Services to the Client. |
| Services | has the meaning given in clause 3.1(a). |
| Service Request | means any request for work that you ask Planetiware to perform in accordance with clause 6.4. |
| Software | means any programs, applications and other operating information licensed to the Client from third party providers and installed on the Client’s IT System. |
| Start Date | means the date set out in a Proposal. |
| Support Services | means the support services described in a Proposal and set out in the MSA. |
| Third Party Terms | has the meaning given in clause 3.4(a). |
| Term | has the meaning given in clause 2(a). |
