Keep Me Informed
Standard Terms and Conditions
In this Agreement:
- Acceptable Use Policy means a policy we publish that sets out rules in relation to usage of the services, as set out in Appendix A or amended from time to time.
- Appendix A means the documents attached as an appendix to the end of these terms and conditions.
- Billing Period means our billing interval of one calendar month.
- Confidential information means all spoken, written or electronically stored information belonging to or relating to you or your clients but excludes information in the public domain (other than by default under this Agreement) or information independently known to us).
- Contract period means the contract period set out in the schedule.
- Data Hosting Services means the data hosting services as set out in the schedule, and as amended from time to time in accordance with this agreement.
- Installation Services means the installation services as set out in the schedule, or as otherwise agreed in writing between the parties.
- Services means all managed services provided by Data Spot including installation services.
- Software means any software or equipment that you are using as a service that is installed on your equipment or Data Spots.
- Minimum requirements means the minimum requirements that your equipment and software must meet, as set out in Appendix A or as updated by us and notified to you from time to time.
- Monthly fee means the monthly fee set out in the schedule.
- Schedule means the schedule attached to the front of these terms and conditions.
- Usage Charges means charges set out in the schedule which apply in addition to the monthly fee.
- GST means goods and services tax under A New Tax System (Goods and Services Tax) Act1999.
- Invoice means an account rendered by us for fees.
- Notice in Writing means providing information by:
- delivering it to you in person;
- sending it by pre-paid post to the address listed in our records for you;
- transmitting it to your electronic mail address; or
- including it on or in your invoice, including an invoice made available to you in electronic format via our web site.
- Suspend means: to deny or restrict access to the services or part of it.
- Service Level Agreement (S.L.A) where offered for managed service
- Standard Operating Environment (S.O.E) means the customers IT environment including software and hardware.
- We will provide the installation services on the terms set out in the schedule or as agreed between the parties; and
- You grant us the right to enter your premises and access to your equipment to provide installation services at your request, and you must obtain any necessary consents and provide safe and lawful access
2.2 Contract Period
- The contract period begins upon the later of:
- the start date; or
- the date which we confirm with you that setup has been completed.
- the default contract period is 24 months from the start date, unless stated otherwise.
- This agreement shall continue in force until terminated under clause 9.
From the start of the contract period, subject to the terms of this agreement:
- We will provide the data hosting services in accordance with this agreement.
- We will use reasonable endeavours to rectify any faults in the data services for which we are responsible, in accordance with our S.L.A
- We will take reasonable steps to investigate and restore data hosting services where affected by causes beyond our control.
- You have exclusive control over the data stored in encrypted form on our equipment and we do not have any direct or indirect access to the contents of encrypted files.
You must at all times maintain fully supported software with valid licences that meets the reasonable minimum requirements set out in Appendix A, or as we reasonably notify in writing from time to time.
We reserve the right to request software upgrades if reasonably required for technical reasons, but will continue supporting the minimum requirements as set out in Appendix A for the contract period.
- We issue invoices on a quarterly basis:
- For the quarterly fee in advance; and
- For usage fees in arrears.
However the installation fee will be invoiced upon completion of the setup or as otherwise agreed in writing between the parties.
- Each tax invoice:
- Is payable 14 days after the date of the tax invoice, by automatic credit card or electronic transfer from your nominated bank account.
- May be sent to you by post, email or by making it available on our website, at our election.
- If your payment is not honoured by the bank, you must reimburse us for any dishonour or other bank fees we incur as a result.
- All fees are exclusive of GST. We will issue a tax invoice to you for any supply on which GST is imposed, and you must pay the GST in addition to the relevant fee.
5.2 Fee disputes
- If you reasonably believe that an invoice contains an error, and you wish to dispute an invoice, you must:
- notify us before the due date of the invoice, and
- pay all undisputed fees on the invoice and
- provide us with detailed information about any disputed fees.
- We will not suspend or terminate any services for non-payment of the disputed fees while the dispute is being investigated.
- Our records are prima facie evidence in relation to calculating fees.
5.3 Fee increases
After the first 12 month period the fees will increase by the CPI rate per annum.
6. YOUR OBLIGATIONS
6.1 We may notify you if we find defects in the software, your equipment or your network, which affect the services, and you may either rectify the defects or engage us to rectify the defects at an additional cost ;
6.2 You must respond in a timely manner if we bring an issue to your attention in relation to your software, equipment, data or network.
6.3 You must notify us if you make any changes to the S.O.E (Software, Hardware) including the network and data which are likely to affect the services.
6.4 You must take reasonable measures to prevent any unauthorised person from accessing the service, and you are responsible for any damage caused or fees incurred by any such person.
7. OUR RIGHTS
7.1 Identifying data
We reserve the right to
- Attach labels or naming protocols to your data or index your data for identification purposes;
- Remotely access your equipment as reasonably necessary to provide the services; and
- Remotely measure your usage of the services to ensure billing accuracy and technical efficiency.
- We may conduct routine scheduled maintenance of the services between the hours of 10pm and 6am, during which time the services may be interrupted. However, we will notify you at least 2 days in advance of any scheduled maintenance; and
- If an urgent, mission-critical maintenance situation arises, we will immediately notify you if it will affect you and will use reasonable efforts to ensure any disruption is kept to a minimum.
- You agree to reasonably cooperate with us during scheduled and emergency maintenance periods.
7.3 Changes to services
Technology and business environments are constantly evolving and we may make adjustments to the managed services to ensure you continue to receive the best possible results. However, we will give you reasonable notice of any changes, and ensure that the replacement services are of the same high standards as the original.
7.4 Service limitations
We will use all reasonable efforts in providing the services. However:
- We do not warrant that the services we provide under this agreement will be uninterrupted, error free, lag free or fit for any specific purpose outside of the S.L.A provided.
- You are solely responsible for defects in any hardware, software or infrastructure at your premises.
- We are not responsible for any defects, delays or interruptions to the services caused by the delays, action or inaction of any third parties such as hardware suppliers or installers, other carriers, internet service providers, telecommunications companies or service providers or force majeure events.
- If you require any technical or support work outside the scope of the services provided, such services will be changed out at our current rate.
8. INDEMNIFICATION AND LIMITATION OF LIABILTY
- Each party shall indemnify, defend and hold harmless the other party and its employees, officers, agents, contractors and directors against any and all losses, costs, expenses, fines and damages, including but not limited to reasonable legal fees, resulting from its own negligence, or reckless or intentional misconduct, or failure to perform its obligations and responsibilities under this agreement
- You release and indemnify us, our officers, employees and contractors against any action, proceeding, claim, demand or prosecution arising from or in connection with:
- Any hardware or software failure, interruption to services, loss of or damage to data or any other loss or damage of any kind whether directly or indirectly arising in connection with our services;
- Indirect, special, economic or consequential loss or damage or loss of revenue, you suffer in any way, even if we knew or should have known about the possibility of such loss;
- Any acts or omissions of you or anyone whom you allow to access the services from time to time, whether deliberately or otherwise; and
- Any loss or damage to persons or property belonging to us or anyone else, caused by the usage of the services, by you or anyone whom you allowed to access the services.
- To the fullest extent allowable at law:
- All goods and services are provided under this agreement on an ‘as is’ basis and all warranties that may otherwise be implied by law or statute are excluded; and
- Our liability under this agreement for any defect in services contemplated by this agreement, is limited to (at our election) provision of further services at no charge to rectify any defect, payment of the cost of rectifying any defect, or a refund of the amount you paid us for those services.
- You agree that under no circumstances will our total liability to you under this agreement exceed an amount equal to three times the monthly fee.
9. SUSPENSION AND TERMINATION
We may suspend our services at any time and give you a 7 day written notice of default if:
- You do not make any payment when due, or any payment is dishonoured or subject to chargeback; or
- You fail to comply with our acceptable use policy; or
- We have reason to suspect illegal or unethical activity is taking place using the services
but suspension of services under this clause does not affect your liability to make any payment under this agreement.
9.2 Termination for default
Either party may end this agreement immediately by written notice if:
- The other party fails to remedy a material breach despite receiving 14 days written notice of its default.
- If the other party is wound up or placed under official management, or stops trading or commits an act of bankruptcy; or
- If judgement is entered against the other party for more than $20,000.00, which remains unsatisfied or unappealed for more than 21 days.
9.3 Continuation after contract period
- Before the end of the contract period, either party may elect in writing to end this agreement at the end of the contract period.
- If no party makes an election under clause 9.3(a), this agreement shall continue in force on the same terms beyond the end of the contract period, except that after the end of the contract period, either party may end the agreement at any time and for any reason, by one month’s written notice.
10. TERMINATION CONSEQUENCES
10.1 Upon termination of this agreement for any reason, in addition to any other rights we may have:
- All monthly fees for the balance of the contract period become immediately due and payable. The parties agree that this is not a penalty, but represents a reasonable estimate of fair compensation for the losses that may reasonably be anticipated from early termination in light of our sunk infrastructure costs and ongoing commitments; and
- We may issue an invoice for other work not previously invoiced, whether for monthly fees or part monthly fees, usage fees and any other services contemplated by this agreement; and
- We are entitled to a lien over your data until all outstanding invoices are paid, including any invoices issued under clause 10.1(b). If we do not receive full payment within 30 days of termination we reserve the right to delete your data from our equipment without further notice to you.
Subject to our lien and other rights in clause 10.1(c) upon termination of this contract for any reason other than your default, we may:
- Upon your request transfer the data to suitable media provided by you and delete your data from our equipment;
- Deliver the data to you on suitable media at your cost and delete your data from our equipment; or
- If no other arrangements have been made prior to termination, store the data (on equipment of our choosing) for a minimum of 60 days, during which time you can arrange for your data to be transferred to you and deleted from our equipment. At the end of the 60 day period, we will delete your data from our equipment.
10.3 This clause 10 shall survive termination of this agreement.
If either party gives the other party a written notice of dispute, the parties must within 14 days refer the dispute to an independent mediator nominated by the president of the Queensland Law Society. The parties must equally share the costs of the mediation. Neither party may commence court proceedings (except for urgent interlocutory applications) unless the dispute remains unresolved more than 28 days after the date of the notice of dispute.
11.2 Sub-contracting and assignment
We may at any time appoint agents, employees or third party sub-contractors to fulfil any part of our obligations under this agreement without separate notice to you.
You may not assign any of your rights or obligations under this agreement without our written approval Relationship between the parties
Nothing in this agreement constitutes a partnership or contract of employment. It is the express intention of the parties to deny any such relationships.
This agreement is governed by the laws of Queensland and the parties submit to the courts of that jurisdiction.
11.4 Invalid provisions
If any provision of this agreement is ruled by a court to be invalid or unenforceable, it shall not affect the validity or enforceability of any other provision or part provision of this agreement.
Any delay or failure to enforce any rights in relation to a breach by the other party will not be construed as a waiver of those rights.
11.6 Entire Agreement
This document (including the schedule and appendix), as amended from time to time contains the entire agreement between the parties in relation to the services.
11.7 Varying the Agreement
Any variation or amendment to this agreement (other than adjustments to services by notice between the parties pursuant to the terms of this agreement) must be in writing signed by all parties.
11.8 Force Majeure
Neither party is liable for any delay or failure to perform its obligations under this agreement to the extent that such failure is caused by anything beyond its control, including without limitation the failure of third party software, electricity or telecommunications providers. However, nothing in this clause excuses payment of any money due.