“Agreement” means the contract created between the Customer and Supplier on execution of this document and includes the Terms and Conditions and cover sheet, any Purchase Order executed by both parties, and any additional terms and quotations incorporated by reference in these documents.
“Confidential Information” means the terms and conditions of this Agreement and all trade secrets, ideas, concepts, know how, knowledge and any other information whether in writing or otherwise, relating to any party’s products, services, systems, affairs, businesses, strategies, or employees whether owned by, licensed to, or otherwise in possession or control of that party, which are disclosed to the other party, its employees, agents or contractors under, in contemplation of, or in connection with this Agreement, but excluding any information which is generally and readily available in the public domain other than as a result of a breach of this Agreement or a breach of confidence.
“Customer”, “you” and “your” means the purchaser of the Supplier’s Services, named in the executed agreement.
“Deliverables” means anything that the Supplier delivers to the Customer in the course of providing the Services.
“Hardware” means any information technology hardware such as computers, tablets, phones, cables, etc.
“Intellectual Property Rights” means all industrial and intellectual property rights whether protectable by statute, at common law or in equity, including all copyright and similar rights which may subsist or may hereafter subsist in works or other subject matter, rights in relation to inventions (including all patents and patent applications), processes, trade secrets and know-how, rights in relation to designs (whether or not registrable), rights in relation to registered and unregistered trademarks, circuit layout designs and rights in relation to circuit layouts, but excludes non-assignable moral rights and similar non-assignable personal rights of authors and producers.
“Personal Computers” means computers used by your organisation, including laptops desktops, tablets and thin clients.
“Project” means an arrangement for the provision of additional Services by the Supplier with specified scope, timeframes and objectives defined as a Project in a relevant Purchase Order, Quotation or Project Plan.
“Project Plan” means a document developed by the Supplier setting out additional Services or Deliverables to be provided by the Supplier in accordance with the terms of this Agreement and in conjunction with Services and Deliverables requested by a Customer under a relevant Purchase Order, at additional cost as set out in the relevant Project Plan and/or Quotation.
“Purchase Order” means an order for Services issued by the Customer in accordance with the Agreement.
“Services” means any services requested by the Customer and agreed by the Supplier, including without limitation, implementation, maintenance and other professional support services to be supplied by the Supplier to the Customer, whether under a Purchase Order, Project Plan or as otherwise agreed between the Customer and Supplier.
“Supplier”, “AZPrime”, “we”, and “us” means AZPrime
“Third Party Product” means any product supplied by the Supplier that is not manufactured by the Supplier or branded by the Supplier, other than such product which, although a third party holds the Intellectual Property Rights in such product, is provided as the Supplier’s product, under the Supplier’s brand.
“Quotation” means a document developed by the Supplier setting out prices for delivery of Services under this Agreement.
1.Services and Deliverables
- The Supplier will perform the Services using all reasonable skill and care, to the standard reasonably expected of a competent professional in the business of providing services similar to the Services, to a customer like the Customer, under similar terms and conditions and for similar pricings as stipulated under this Agreement. To the extent permitted by applicable law, all other warranties that are implied by law are excluded.
- The Customer engages the Supplier to provide the Services in accordance with the Agreement.
- The Customer and the Supplier may agree for the Supplier to vary the Services or do additional work from time to time.
- The Supplier will communicate with the Customer as follows:
- with the Customers Primary Contact as specified in Part 1 on matters concerning our
Services with you
- with the Customers Billing Contact as specified in Part 1 on matters relating to accounts and financial management
- with all the Customers staff from time to time to educate them on the services available and how to engage with the Supplier.
- These Terms and Conditions will apply to any variation to the Services or additional work.
- The Agreement commences on the Commencement Date and continues for the term, unless
terminated earlier in accordance with clause 5.10 or clause 15.
- The Agreement allows for an initial three month trial period. At the end of the trial period the Customer may terminate the Agreement by providing written notice within 14 days, subject to all trial period invoices being fully paid when due.
- At the end of the term, the Agreement will be automatically renewed for a further period of 12 months, including this right to renew.
Support and advisory services
- Subject to payment of all fees and charges when due under the Agreement, the Supplier agrees to deliver the Services in accordance with the provisions of the Agreement.
- By entering into the Agreement, the Customer is expressly authoring the Supplier to manage the agreed IT System within the agreed Service Scope. Therefore, no changes to the IT System within that Service Scope are permitted without the Supplier’s authorisation. If changes are made that affect the operation of the network this will be charged outside the Agreement.
- The Supplier will monitor and provide scheduled Maintenance for the Customer’s IT System. The Customer expressly authorises the Supplier to install remote management agents to effect this.
- The Customer understands that monitoring does not guarantee to prevent the occurrence of failures within the Customers IT System.
- The Customer agrees to contact AZPrime using an Approved Method for requests for support.
- For the purpose of clause 2.5 ‘Approved method’ means:
- telephoning AZprime on:
- emailing AZPrime at [email protected] But does not include:
- ˃ contacting individual AZPrime employees or technicians by telephone or email; or
- ˃ any other form of communications not specified in subclauses (a) and (b).
- The Customer will have the opportunity to review and test deliverables for acceptance. Unless otherwise agreed, the Customer will have 10 Business Days to test the Deliverables (“Acceptance Test Period”).
- During each Business Day of any applicable Acceptance Test Period, the Supplier will upon reasonable request provide the Customer with assistance for its conduct of the acceptance tests.
- No later than the end of the Acceptance Test Period, the Customer must give notice to the Supplier:
- of any material defects in the Deliverable identified during its conduct of the Acceptance Tests; or
- that the acceptance tests have been completed successfully, in which case the deliverable will be accepted.
- The Customer must give the Supplier a reasonable written description of each material defect notified to the Supplier and must provide any further information relating to any material defect which is reasonably requested by the Supplier and which is available to the Customer.
- Acceptance of the Deliverable will be deemed to have been provided if by 5 Business Days after the end of the Acceptance Test Period for a Deliverable the Customer has not given notice to the Supplier of a Certificate of Acceptance or identified material defects;
- If the Customer gives notice of any material defect to the Supplier under clause 2.9(a), the Supplier must to the best of its ability promptly correct such a defect.
- On receipt of notice from the Supplier under clause 2.12, the Customer may re-perform the acceptance tests for the Deliverable and the provisions of clauses 2.9. to 2.12 and this clause 2.13 will apply again.
3.Warranties and fleet management
- The Supplier will arrange for repair on any Hardware covered by an active manufacturer’s parts and labour warranty.
- For Hardware not covered by an active manufacturer’s parts and labour warranty, the Supplier will generally require replacement at the Customers expense rather than repair of non-functional equipment.
- The Supplier expects that the Customer will adhere to a fleet management plan that keeps 90% of the Customers Personal Computer fleet less than 4 years old.
- The Supplier expects that the Customer will fulfil a technology refresh plan to renew on- premise backup Systems, Servers and Storage approximately every 3-5 years.
4.Supply of hardware and software
- The Customer may be charged for provision of cables and/or replacement of minor Hardware items required to restore operation of the IT System a Hardware failure.
- Otherwise, if the Supplier agrees to supply the Customer with Hardware or software then it will be subject to the acceptance of a separate quote.
- The Customer must ensure that any Hardware which is part of the IT System uses licensed software.
- The Supplier, at its absolute discretion, may refuse to work on Hardware not using licensed software.
- Any quotation issued by the Supplier will only be binding if accepted by the Customer before the expiry date shown on the quote.
- Where additional Services are provided, the Supplier’s default position for payment (unless modified by the terms of any relevant agreement) is as follows:
- 100% of hardware, software and license fees up-front
- 50% of labour and services fees up-front
- Remaining 50% of labour and services fees upon project completion
- All amounts payable by the Customer must be received by the Supplier in full within 14 days of receipt of a valid tax invoice from the Supplier, unless otherwise specified in any relevant Purchase Order.
- Unless otherwise specified, any and all amounts payable to the Supplier for the supply of goods of services under this agreement are exclusive of any goods and services tax (GST). If GST is payable in respect of any supply made under this agreement, the Customer will pay the Supplier the prevailing amount of GST imposed on the supply at the same time as any other amount payable to Supplier under this agreement, upon receipt of a valid tax invoice from the Supplier.
- In return for the Supplier providing the services, the Customer must pay the Monthly or Annual Fee specified under the agreement.
- The Fee must be paid without deduction for the duration of the Term, irrespective of whether the customer uses the full volume of entitled services.
- The customer may request a change to the service parameters specified in Part 3 or 4. If agreed, any changes to the regular fee as a will take effect from the next billing month unless specifically quoted otherwise.
Variation of fees and charges
- The Supplier reserves the right to vary its monthly or annual fees and to introduce new fees after the end of the initial 12 month period of the Agreement.
- The Supplier reserves the right to vary its labour rates annually.
- The Supplier will provide 30 days’ notification of proposed variations to labour rates, monthly
and annual fees.
- The Customer may terminate the Agreement within the period of notification under clause 5.10 by providing not less than 30 days’ prior notice in writing.
- The Supplier reserves the right to vary prices for subscriptions billed in arrears (such as Microsoft Office 365 subscriptions) as the published vendor rates change.
- The Supplier will issue a Tax Invoice at the beginning of each calendar month for the Services to be provided in that month.
- Further tax Invoices may be issued from time to time for Services provided under the Agreement, but outside your Plan Level.
- You must notify the Supplier of any inaccuracies or errors in any Tax Invoices within 30 days of the date of issue to receive an adjustment or credit.
- If all or part of any payment is overdue, the Supplier may upon 7 days’ written notice:
- terminate the Agreement;
- suspend provision of any Service to be provided to the Customer under the Agreement until all monies owed by the Customer to the Supplier are paid in full.
- Take any other action which it is legally entitled to take.
- Overdue and unpaid invoices are subject to interest of 1.0% per month on debt owed, or the
maximum permitted by law.
- During the suspension of any Service, the Customer will continue to be charged for the Service.
- The Customer must reimburse the Supplier for its costs and expenses in relation to the exercise or attempted exercise of any right power or remedy under the Agreement and the charges, and fees for all consultants (including lawyers and debt recovery agents) properly incurred by the Supplier as a result of your failure to pay monies due under the Agreement.
- The Customer must provide the Supplier’s personnel with such access to the Customer’s premises (or third party’s premises), as Supplier may reasonably request in order to provide the Services.
- The Supplier must ensure that Supplier’s personnel, when on the Customer’s or third party’s premises, comply with all applicable health and safety policies and requirements and all reasonable directions which the Customer or the applicable third party may reasonably give to the Supplier and do not interfere with the operation of the Customer’s business to the extent possible.
7.Intellectual property rights
- Unless otherwise agreed between the parties, the Supplier will retain all Intellectual Property Rights in and to the Deliverables, including copyright, trademarks, designs and known how, and does not assign any Intellectual Property Rights to the Customer, and the Customer must not represent that it owns those rights.
- Upon receipt of payment by Supplier, Supplier grants to the Customer a personal, non- exclusive, non-transferable licence to use the Intellectual Property Rights in the Deliverables for its internal business purposes.
- The Customer may not grant any third party the right to use the Intellectual Property Rights in the Deliverables without the prior written consent of the Supplier.
8.Intellectual Property Claims
If a third party makes a claim against the Customer that any Services or Deliverables infringe that party’s patent rights or copyright (IP Claim), the Supplier provides the Customer with the following recourse (which, to the extent permitted by applicable law, comprises the Customer’s sole and exclusive remedy against the Supplier for IP claims):
- The Supplier will defend or settle the IP Claim at the Supplier’s option and cost, and pay to the Customer the amount of damages, losses and costs finally awarded against the Customer (or settled with the Supplier’s written consent), provided that the Customer:
- as soon as possible taking into consideration the urgency of the matter notifies the Supplier of the IP Claim;
- allows the Supplier to solely manage the defence and settlement of the IP Claim;
- cooperates with and assists the Supplier as the Supplier requires (the Supplier will pay
the Customers reasonable costs of doing so); and
- is not in breach of this Agreement.
- The Supplier may, at the Supplier’s option and cost, do any of the following in relation to Services or Deliverables which are, or which both parties consider likely to be, the subject of an IP Claim:
- secure the rights for the Customer to continue to use the Services or Deliverables without infringement; or
- modify the Services or Deliverables so that they are not infringing; or
- if neither of the above options is reasonably possible as determined by the Supplier, terminate the Agreement upon notice to the Customer and the Supplier will have no further liability to the Customer.
- The above remedies will not apply to any third party products owned or used by the Customer or otherwise to any Services or Deliverables provided by the Supplier that the Customer has, or any person on behalf of the Customer has:
modified or combined with any third party product not authorised or approved by the Supplier; used outside the Supplier’s stated standard operating environment for the Customer in the case of Software or otherwise for a purpose not authorised by the Supplier; failed to use a more recent version of the Services or Deliverables that was available to the Customer and would have avoided the infringement; or
where the IP Claim arises due to any material or item that the Customer owns or has sourced from a third party itself.
9.Privacy and Confidentiality
Each party will not copy, publish, disclose or cause or permit to be copied, published or disclosed the other party’s Confidential Information, including any information required to be kept confidential under relevant law. Subject to applicable laws, each party will maintain the confidentiality of any Confidential Information disclosed to it by the other party.
- To the extent permitted by law, the Supplier’s cumulative liability under, or in relation to, this Agreement, whether arising out of breach of contract, negligence or any other tort, under statute, or otherwise, will not exceed in the aggregate the total amount of fees paid to the Supplier in connection with this Agreement during the immediately preceding period of 12 months.
- Without limiting clause 11.1, and to the extent permitted by law, the Customer agrees that the Supplier is not liable for any loss of profit, revenue, data, contracts, goodwill or business, any interruption to the Customer’s business, any failure to realise savings, or any consequential loss, indirect, special, punitive or incidental damages.
- To the extent permitted by law, the Supplier excludes any warranties other than those expressly included in this Agreement or, in relation to warranties implied by law, which cannot be excluded and notwithstanding any other provision of this Agreement, to the extent to which the Supplier is entitled to do so, the Supplier limits its liability in respect of any claim in respect of any breach of such warranties to: in the case of goods, at the Supplier’s option:
- the replacement of the goods or the supply of equivalent goods;
- the repair of such goods;
- the payment of the cost of replacing the goods or of acquiring equivalent goods; or
- the payment of having the goods repaired, and in the case of services, at the Supplier’s option: (i) the supply of the services again; or (ii) the payment of the cost of having the services supplied again.
- The Supplier will not be liable for any loss or damage that may arise from errors, omissions or statements contained in written text in project documents which the Customer has been asked to review and has agreed to.
- The Customer acknowledges that Hardware and software cannot be guaranteed completely free from defects or errors and further acknowledge that the Supplier shall only be liable for the work it performs in providing Services under the Agreement. The Supplier shall not be liable under any circumstances for the failure in operational functionality of Hardware or software that is not the consequence of faulty workmanship by the Supplier of for any force majeure event.
- Except as specifically set out in the Agreement:
- the Supplier makes no representation and gives no warranty in relation to any incorrect performance or functionality of any Hardware or software which results partly or wholly, from data, records or other information provided by the Customer or a third party.
- any term, condition or warranty in respect of the quality, fitness for purpose, condition description, assembly, manufacture, design or performance of any Hardware or software, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded.
- The Supplier will not be liable for any direct, indirect, or consequential losses suffered by the Customer, the Customer’s client or users of any hardware or software or any third party as a result of defects or errors in the Hardware or software pursuant to the Agreement.
- So far as permissible at law, the Supplier’s liability for breach of any implied term at law is limited, at the option of the Supplier, to re-supplying the Service or payment of the costs of re-supplying the Service.
- Subject to the limitations set out in clause 11, the Supplier guarantees its Services against faulty workmanship and the Supplier will remedy faulty workmanship at its own costs or will refund the Customer’s money for the Services in question.
- the Supplier agrees to indemnify the Customer and keep the Customer indemnified against any loss, damage, costs, expenses, demands or liability:
- which the Customer pays, suffers, incurs or is liable for; or
- for any claim or claims by a third party or parties;
- as a result of or arising from any wilful, unlawful or negligent act or omission of the Supplier except to the extent that such loss, damage, costs, expenses, demands or liability are directly caused by the Customer;
- the Customer agrees to indemnify the Supplier and keep the Supplier indemnified against any loss, damage, costs, expenses, demands or liability:
- which the Supplier pays, suffers, incurs or is liable for; or
- for any claim or claims by a third party or parties;
- as a result of or arising from;
- use of the Services or Deliverables other than in accordance with the Supplier’s instructions; or
- any wilful, unlawful or negligent act or omission of the Customer;
- except to the extent that such loss, damage, costs, expenses, demands or liability are
directly caused by the Supplier;
- The Customer further indemnifies, keeps indemnified and holds harmless the Supplier and its officers, employees and agents from and against all claims, losses and liabilities consequent upon, occasioned by or arising from:
- the undertaking of the Customer’s projects and commercial activities;
- any negligent or illegal acts or omissions of the Customer or any person the Customer is
responsible for; and / or the Customer’s purported performance or non-performance of its obligations under this Agreement.
12.Notices and Invoices
Any invoice, notice, demand, consent, approval, request or other communication to be given under this Agreement must be in writing and must be given to the recipient at its address as specified in this Agreement (or as otherwise notified to the other party) by being:
- hand delivered;
- sent via email to [email protected]; or
- sent by prepaid ordinary mail
A notice is given if:
- hand delivered, on the day of delivery;
- sent via email on the day a reply email is received confirming delivery of the email
- sent by prepared ordinary mail, on the date that is 3 Business Days after the date of posting.
- A party may give the other party notice of a dispute in connection with this Agreement (“Dispute Notice”).
- If the parties are unable to resolve the dispute within 20 business days from the issue of a Dispute Notice by either party under clause 14.1, the dispute will be referred to a duly qualified mediator who is agreed between the parties, or failing such agreement, who is appointed by the President of the Law Institute of Victoria, or his delegate.
- A party may not commence legal proceedings (except proceedings seeking urgent interlocutory relief) in respect of a dispute unless the dispute has first been referred for resolution in accordance with the dispute resolution described in clause 14.1 and 14.2.
Termination for insolvency
- Either party may immediately terminate any Purchase Order by notice in writing to the other party if the other party:
- has a liquidator or provisional liquidator appointed to it;
- resolves to wind up or is subject to an order to wind up;
- has an administrator appointed to it;
- enters into a scheme of arrangement with its creditors;
- has a petition brought to wind it up which petition is not dismissed, withdrawn or stayed within 20 business days; or
- is otherwise insolvent, or enters into any other form of external or insolvency administration.
Termination for breach
- Either party may immediately terminate any Purchase Order by notice in writing to the other party, if the other party is in material breach of its obligations under that Purchase Order, and such breach is not remedied within 30 days of the other party receiving notice of the breach; and
Termination for other reasons
- If the Customer terminates the Agreement within the Term except under clause 5.10, the Customer agrees to pay the Supplier a termination payment equivalent to the Monthly fee specified the agreement, multiplied by the number of months remaining in the Term.
- Unless clause 15.1 applies, if the Customer terminates the Agreement after the end of the Initial term, the Customer must provide three months’ written notice of termination, or three months’ fees in lieu of notice.
- The Agreement may be terminated by the Supplier if the Customer:
- breaches any term of the Agreement and fail to remedy the breach within 7 days of
- uses technology or services provided by the Supplier for any unauthorised use;
- causes any person with a security interest to take possession or appoint a receiver, administrator or other similar officer over any of the Customers property or assets; and
- is subject to any other similar event or proceedings.
Consequences of termination
- If a Purchase Order is terminated for any reason, the Customer will be liable for any accrued or unpaid fees under the relevant Purchase Order, including:
- generally, all costs incurred or likely to be incurred by the Supplier in providing the Services as at the date of termination, including the cost of proposal development;
- Termination of a specific Purchase Order for any reason will not prejudice any other rights which may have accrued to either party prior to the date of termination.
- Termination of the Agreement will not relieve the Customer of their liability in respect of the rights and remedies of the Suppler which have accrued prior to termination. On termination of the Agreement, for whatever reason:
- all money which would become payable by the Customer to the Supplier at a later date on any account, becomes immediately due and payable;
- any payment made by the Customer to the Supplier prior to the termination will not be refundable;
the Supplier shall render its account for all Services provided up until the date of termination. The Customer must pay the account within 7 days of receipt of the Tax Invoice.
The Supplier will cancel your password, account and use of the Service.
- This Agreement is the entire agreement of the parties about the subject matter of this Agreement and supersedes all other representations, negotiations, arrangements, understandings or agreements and all other communications.
- If a provision of this Agreement is invalid or unenforceable in a jurisdiction it is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability and that fact does not affect the validity or enforceability of the remaining provisions.
- This Agreement may be amended only by a document signed by both parties.
- This Agreement is governed by the laws of the state of Victoria and each party submits to the non-exclusive jurisdiction of the courts of that State and waives any claim or objection based on absence of jurisdiction or inconvenient forum.
- A party must not transfer, assign, create an interest in or deal in any other way with any of its rights under this Agreement without the express prior written consent of the other party.
- An amendment or change to the Agreement is only effective if it is made in writing.
- If any provision of the Agreement is adjudged invalid or unenforceable, then it will be deemed to be deleted and will not affect the validity or enforceability of the remaining provisions.
- Neither party shall assign its rights or obligations under the Agreement without prior written consent to the other, which consent cannot unreasonably be withheld and is to be provided within 30 days of the request. However, consent is not required for assignment that occurs as part of a transfer of all or substantially all of the assets of either party.
- If the Customer solicit or otherwise contract or employ the Supplier’s staff within 12 months of an engagement where that staff member has provided services to the Customer under the Agreement, the Customer agrees to pay the Supplier a fee equivalent to 50% of one year’s salary as due consideration.