1. DEFINITIONS AND INTERPRETATION
In this Agreement:
“Agreement” means these terms and conditions, the schedules and any annexures.
“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.
“Client’s Data” means the information stored on the Client’s Selected Infrastructure.
“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).
“Details Schedule” means the schedule to this Agreement described as such.
“Downtime” means any period when the Selected Managed Services are not available.
“Downtime Exception” means any Downtime period arising from Scheduled Downtime or a Force Majeure Event as defined in clause 13.
“Effective Date” means the date specified in the Details Schedule relating to the Selected Managed Services.
“Fees” means the costs and charges payable by the Client to PLANETIWARE, as specified in Schedule 1.
“Initial Term” means the period specified in the Details Schedule.
“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.
“Managed Services” means the services that are available pursuant to this Agreement, which services are identified in the Details Schedule and are described in Schedule 1.
“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.
“PLANETIWARE” means PLANETIWARE and its employees, agents and third party contractors.
“Selected Infrastructure” means the Client’s servers, hardware and software which are to be the subject of the Selected Managed Services and which are specified in the Details Schedule.
“Selected Managed Services” are the Managed Services that are provided by PLANETIWARE to the Client pursuant to this Agreement and which are identified by a “X” in the Details Schedule.
“Service Levels” means the performance requirements for the delivery of the Selected Managed Services as specified in Schedule 1.
“Scheduled Downtime” means a period of Downtime for the purposes of maintenance of or improvements to the Managed Services and of which not less than 7 Business Days notice in Writing has been given to the Client by PLANETIWARE.
“Specifications” means the description of the Selected Managed Services, including the Service Levels pertaining to those services as set out in Schedule 1.
“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.
“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 this Agreement, unless the contrary intention appears:
(a) a reference to this Agreement 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 in this Agreement at their own cost; and
(m) headings are inserted for convenience and do not affect the interpretation of this Agreement.
2. PROVISION OF SERVICES
2.1 From the Effective Date, PLANETIWARE is to provide the Selected Managed Services in respect of the Selected Infrastructure.
3.1 This Agreement commences on the Effective Date and continues for the Initial Term unless sooner terminated.
3.2 Upon the expiration of the Initial Term this Agreement is to automatically renew for successive periods of 12 months (each a “Renewed Term”) unless either party gives not less than 3 months written notice prior to any Renewed Term of its intention not to renew the Agreement.
4. CLIENT’S SELECTION OF THE MANAGED SERVICES
4.1 The Client acknowledges it has considered the available options for the Managed Services and that it has selected those options that it believes will best suit its purposes. The Client acknowledges that, provided PLANETIWARE provides the Selected Managed Services in accordance with the Specifications and Service Levels, PLANETIWARE has no responsibility if the Selected Managed Services do not meet the Client’s requirements.
5. PLANETIWARE’S OBLIGATIONS
5.1 PLANETIWARE must:
(a) provide the Selected Managed Services in accordance with the Specifications and the Service Levels; and
(b) ensure the Selected Managed Services are available in accordance with the Service Levels, save for any Downtime Exceptions.
(c) when remotely accessing the Client’s Selected Infrastructure, ensure that no loss or damage is caused to the Client’s Selected Infrastructure and Client’s Data; and
(d) in performing the Managed Services, ensure that it does not breach any laws, including any Privacy Laws.
6.1 The Client may vary the Selected Managed Services at any time by forwarding to PLANETIWARE a request in Writing specifying the required variation, in which case, PLANETIWARE will, within 7 Business Days, notify the Client in Writing either that the Selected Managed Services will be varied as requested from a specified date and specifying any variation to the Fees, or advising that the Selected Managed Services cannot be varied as requested and offering to discuss possible alternative variations.
6.2 PLANETIWARE may by notice in Writing notify the Client that PLANETIWARE wishes to vary the Selected Managed Services no earlier than 7 Business Days after such notification, and advising the Client how and why it wishes to so vary the services and if and how the Fees may be varied as a consequence. If the client does not wish to accept any such variation, it may, within 5 Business Days of receipt of PLANETIWARE’s notification, elect to terminate this Agreement and neither party shall have any claims against the other, save for any claims accrued prior to such termination.
6.3 Upon the parties agreeing in Writing to any variation, this Agreement shall be varied accordingly.
7.1 Each party warrants 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 enter into and to perform this Agreement; and
(a) The Client will pay to PLANETIWARE for the Selected Managed Services the Fees in the manner specified in Schedule 1.
(b) All Fees are specified as exclusive of all Taxes.
9.1 PLANETIWARE must comply with all Privacy Laws in relation to all Personal Information of which it becomes aware or to which it has access.
9.2 PLANETIWARE must:
(a) use the Personal Information only for the purpose of fulfilling its obligations under this Agreement;
(b) restrict access to the Personal Information to its employees, contractors or agents who need to access the Personal Information to fulfil PLANETIWARE’s obligations under this Agreement;
(c) not disclose any Personal Information in breach of any Privacy Law; and
(d) not do anything with the Personal Information that will cause the Client to breach any Privacy Law
10.1 No Confidential Information of a party (“Discloser”) may be disclosed by the other party (“Recipient”) to any person except:
(a) to employees, legal advisers, auditors and other consultants of the Recipient requiring the information for the purposes of this Agreement; 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.
10.2 A Recipient may only use Confidential Information solely for the purposes of this Agreement.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 Nothing in this Agreement is intended to alter the intellectual property rights of any party in any material.
12. LIMITATION OF LIABILITY
12.1 Save as may be precluded by any law, each party excludes all implied terms and warranties whether statutory or otherwise, relating to the subject matter of this Agreement.
12.2 Subject to clauses 12.4 and 12.5, each party excludes all liability to the other for all and any loss that does not arise as a natural and reasonably foreseeable consequence of any default on its part, and, for avoidance of doubt, unnatural or unforeseeable consequences include, without, 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.
12.3 Subject to clauses 12.4 and 12.5, PLANETIWARE’s total liability to the Client for loss or damage of any kind not otherwise excluded or limited by the provisions of this Agreement, however caused, whether due to negligence or breach of contract, breach of any law or otherwise, arising from or in connection with this Agreement or its performance or the relationship created by it, is limited to the Fees paid by the Client during the 12 months preceding the default giving rise to the claim.
12.4 Where any law implies in this Agreement any term, which cannot be excluded or modified, such term is deemed to be included in this Agreement, but PLANETIWARE’s liability for breach of that term, to the fullest extent permitted by law, will be limited to one of the following remedies (at PLANETIWARE’s option):
(a) the resupply of the relevant services; or
(b) the payment of the cost of resupplying the relevant services.
12.5 The limitations of liability provided in clauses 12.2 and 12.3 do not apply to any indemnity given by one party to the other or to any breach of clauses 9 or 10, or to a breach of a party’s or any third party’s intellectual property rights.
12.6 If any party suffers loss or damage under this Agreement 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.
13.1 A party (“Affected Party”) is not liable for any delay or failure to perform an obligation (other than to pay money) under this Agreement caused by any event or circumstance beyond a 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.
13.2 The performance of the Affected Party’s obligation is suspended for the period of delay caused by the Force Majeure Event.
13.3 The Affected Party must notify the other party as soon as practical of any anticipated delay or default caused by a Force Majeure Event.
13.4 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 party may terminate the Agreement at the expiration of not less than 5 Business Days notice to the other party and no party shall have any claims against the other, save for antecedent breaches or defaults.
14. DISPUTE RESOLUTION
14.1 Nothing in this clause 14 prevents a party seeking urgent injunctive or similar interim relief from any court of competent jurisdiction.
14.2 Any controversy or dispute arising out of, or relating to, this Agreement (“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.
14.3 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.
14.4 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.
14.5 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.
14.6 Subject the continued to payment of all Fees under this Agreement, PLANETIWARE must continue to provide the Selected Managed Services while the parties seek to resolve the Dispute.
15.1 Either party may terminate this Agreement immediately if the other party commits:
(a) a material breach of its obligations under this Agreement (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 of this Agreement 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.
15.2 Either party may terminate this Agreement immediately by notice in writing to the other party if the other party becomes Insolvent.
15.3 A notice given under clause 15.1 or 15.2 must specify the events in relation to which the notice is given.
15.4 In addition to any other rights and remedies which either party may have, on termination of this Agreement for any reason:
(a) PLANETIWARE may cease to provide the Selected Managed Services;
(b) the parties 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 by the Recipient strictly for archival purposes; and
(b) all fees and other monies due to PLANETIWARE up to and including the date of termination must be paid without set off or discount of any kind.
16.1 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 the Details Schedule; 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 the Details Schedule.
16.2 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.
16.3 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.
16.4 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
Each party acknowledges that in entering into this Agreement it has not relied on any representations or warranties about its subject matter except as expressly provided by the written terms of this Agreement.
17.2 No agency or partnership
Nothing contained or implied in this Agreement constitutes either party the partner or agent of the other for any purpose or creates any partnership, agency or trust, and neither party has authority to bind the other in any way.
17.3 Entire agreement
This Agreement constitutes the entire agreement of the parties about its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter.
PLANETIWARE may engage subcontractors to assist it with performing its obligations under this Agreement without the prior consent of the Client. However such action does not relieve PLANETIWARE from any of its liabilities or obligations under this Agreement.
Neither party may assign all or any of its rights or obligations under this Agreement without the prior consent of the other party which consent must not be unreasonably withheld or delayed.
17.6 Remedies cumulative
The rights, powers and remedies provided in this Agreement are cumulative with and not exclusive of the rights, powers or remedies provided by law independently of this Agreement.
17.7 Survival of Agreement provisions
Any provision that, for full force, effect and benefit ought reasonably survive the expiry or termination of this Agreement, is to so survive.
This Agreement may be signed in any number of counterparts and the counterparts taken together are one and the same Agreement.
17.9 Governing law and jurisdiction
This Agreement is governed by the law 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.