Terms and Conditions – Service Level Agreement, Managed Services

 Interpretation

1)      In this Agreement, unless the contrary intention appears:

a)      the clause headings are for ease of reference only and shall not be relevant to interpretation;

b)      a reference to a clause number is a reference to its sub-clauses;

c)      a reference to a clause is a reference to a clause or sub-clause of this Agreement;

d)      a reference to a sub-clause is a reference to a sub-clause of the clause in which that reference is made;

e)      words in the singular number include the plural and vice versa;

f)        words importing a gender include any other gender;

g)      a reference to a person includes bodies corporate and unincorporated associations and partnerships;

h)      where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;

i)        a reference to a Schedule includes a reference to any part of that Schedule which is incorporated by reference;

j)        the recitals to this Agreement do not form part of the Agreement;

k)      monetary references are references to Australian currency.

Access & Licensing

2)      Where applicable, The Customer must provide Streben with access to the server(s), including necessary passwords required for the purpose of maintaining Managed Services.

3)      The Customer is responsible for licensing of all software included in the Managed Services.

Payments

4)      The Customer shall pay the Co-hosting and Managed Services at the rate and in the manner specified in The Pricing Schedule.

5)      If the Customer disputes the whole or any portion of the amount claimed in an invoice submitted by the Supplier, the Customer shall pay the portion of the amount stated in the invoice which is not in dispute and shall notify the Supplier in writing (within seven (7) days of receipt of the invoice) of the reasons for disputing the remainder of the invoice.  If it is resolved that some or all of the amount in dispute ought properly to have been paid at that time it was first invoiced, then the Customer shall pay the amount finally resolved together with interest on that amount in accordance with the terms of payment set out in this Agreement.

Confidentiality

6)      A Party shall not, without the prior written approval of the other Party, disclose the other Party’s Confidential Information;

7)      A Party shall not be in breach of subclauses 6) in circumstances where it is legally compelled to disclose the other Party’s Confidential Information;

8)      Each Party shall take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this Agreement, do not make public or disclose the other Party’s Confidential Information;

9)      Notwithstanding any other provision of this clause, the Supplier may disclose the terms of this Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants;

10)  This clause will survive the termination of this Agreement;

Services & Security

11)  Streben will provide only the services listed in the Managed Services List.  Additional services may be requested.  If accepted additional services may incur an additional cost.

a)      Unless otherwise listed, back-up of data is the responsibility of The Customer.

12)  The customer acknowledges threat there is no guarantee of security or privacy on the internet, and that Streben offers no guarantee of warranty that the managed services or Customer Content will be secure or private.

13)  Hardware failures that result in loss of data carry no warranty beyond that offered by the hardware manufacturer.

Implied Terms

14)  Subject to subclause 15), any condition or warranty which would otherwise be implied in this Agreement is hereby excluded.

15)  Where legislation implies in this Agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty shall be deemed to be included in this Agreement.  However, the liability of the Supplier for any breach of such condition or warranty shall be limited, to the compensation set out in the SLA

Liability of Supplier

16)  In no event shall either party be liable for any indirect, incidental, special, or consequential damages, or damages for loss of profit, revenue, data, or use, incurred by either party or any third party, whether in an action in contract or tort, even if the other party or any other person has been advised of the possibility of such damages.

17)  The Supplier’s total liability under this Agreement for damages, costs and expenses, regardless of cause, shall not exceed the total amount of fees paid to the Supplier by the Customer under this Agreement.

18)  The Supplier shall not be liable for any claims or demand made against The Customer by any third party except to the extent such claim or demand relates to copyright, trade secret or other proprietary rights.

19)  The Customer shall indemnify the Supplier against all claims, liabilities and costs, including reasonable attorney fees, of defending third party claims or suit arising out of the services provided under the SLA, other than for infringement of intellectual property rights. The Supplier shall promptly notify the Customer in writing of any third party claim or suit and the Customer shall have the right to fully control the defence and any settlement of such claim or suit.

20)  Except in relation to liability for personal injury (including sickness and death), the Supplier shall be under no liability to the Customer in respect of any loss or damage (including consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of goods or services supplied pursuant to this Agreement or in respect of a failure or omission on the part of the Supplier to comply with its obligations under this Agreement.

21)  Subject to subclause 22), the Customer warrants that it has not relied on any representation made by the Supplier which has not been stated expressly in this Agreement or upon any descriptions, illustrations or specifications contained in any document including catalogues or publicity material produced by the Supplier.

22)  The Customer acknowledges that to the extent the Supplier has made any representation which is not otherwise expressly stated in this Agreement, the Customer has been provided with an opportunity to independently verify the accuracy of that representation.

23)  The Customer shall at all times indemnify and hold harmless the Supplier and its officers, employees and agents (“those indemnified”) from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of those indemnified arising from any proceedings against those indemnified where such loss or liability was caused by:

a)      a breach by the Customer of its obligations under this Agreement; or

b)      any wilful, unlawful or negligent act or omission of the Customer.

Sub-Contracts

24)  The Supplier may Sub-Contract for the performance of this Agreement or any part of this Agreement.

25)  The Supplier may, without the consent of the Customer, engage individuals on a sub-contract or consultancy basis, whether or not operating under a corporate structure, to assist in the provision of services pursuant to this Agreement.

Force Majeure

26)  Neither Party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to Force Majeure.

27)  If a delay or failure of a Party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that Party’s obligations will be suspended.

28)  If a delay or failure by a Party to perform its obligations due to Force Majeure exceeds sixty (60) days, either Party may immediately terminate the Agreement on providing notice in writing to the other party.

29)  If this Agreement is terminated pursuant to subclause 28), the Supplier shall refund moneys previously paid by the Customer pursuant to this Agreement for goods or services not provided by the Supplier to the Customer.

Termination

30)  Without limiting the generality of any other clause in this Agreement, the Supplier may terminate this Agreement immediately by notice in writing if:

a)      the Customer is in breach of any term of this Agreement and such breach is not remedied within thirty (30) days of it notifying the Supplier;

b)      the Customer becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration;

c)      the Customer, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;

d)      the Customer, being a natural person, dies; or

e)      the Customer ceases or threatens to cease conducting its business in the normal manner.

31)  If notice is given to the Customer pursuant to subclause 30), the Supplier may, in addition to terminating the Agreement:-

a)      repossess any of its property in the possession, custody or control of the Customer;

b)      retain any moneys paid;

c)      charge a reasonable sum for work performed in respect of which work no sum has previously charged;

d)      be regarded as discharged from any further obligations under this Agreement; and

e)      pursue any additional or alternative remedies provided by law.

The Supplier an Independent Contractor

32)  The Suppliers is an independent contractor, and neither the Supplier nor the Supplier’s staff is, or shall be deemed, the Customer’s employees. In its capacity as an independent contractor, the Supplier agrees and represents, and the Customer agrees, as follows:

33)  The Suppliers has the right to perform services for others during the term of this Agreement subject to non-competition provisions set out in this Agreement, if any.

34)  The Supplier has the sole right to control and direct the means, manner and method by which the services required by this Agreement will be performed.

35)  The Supplier has the right to perform the services required by this Agreement at any place or location and at such times as the Supplier may determine.

36)  The Supplier furnish all equipment and materials used to provide the services required by this Agreement, except to the extent that Supplier’s work must be performed on or with the Customer's computer or existing software.

37)  The services required by this Agreement shall be performed by the Supplier, or the Supplier’s staff, and the Customer shall not be required to hire, supervise or pay any assistants to help the Supplier.

38)  The Supplier is responsible for paying all ordinary and necessary expenses of its staff.

39)  Neither the Supplier nor the Supplier’s staff shall receive any training from the Customer in the professional skills necessary to perform the services required by this Agreement.

40)  Neither the Supplier nor the Supplier’s staff shall be required to devote full-time to the performance of the services required by this Agreement.

41)  The Customer shall not provide insurance coverage of any kind for the Supplier or the Supplier’s staff.

42)  The Customer shall not withhold from the Supplier’s remuneration any amount that would normally be withheld from an employee's pay.

Entire Agreement

43)  This Agreement constitutes the entire agreement between the Parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.

Precedence

44)  The documents comprising this Agreement shall be read in the following order of precedence:

a)      The clauses of this Agreement;

b)      The Schedules.

45)  Where any conflict occurs between the provisions contained in two or more of the documents forming this Agreement, the document lower in the order of precedence shall where possible be read down to resolve such conflict. If the conflict remains incapable of resolution by reading down, the conflicting provisions shall be severed from the document lower in the order of precedence without otherwise diminishing the enforceability of the remaining provisions of that document.

Assignment and Novation

46)  The benefit of this Agreement shall not be assigned by the Customer without the Supplier’s written consent.

47)  The Supplier may consent to the assignment or novation of this Agreement by the Customer subject to such conditions as it chooses to impose.

Waiver

48)  No right under this Agreement shall be deemed to be waived except by notice in writing signed by each Party.

49)  A waiver made by the Supplier pursuant to subclause 48) will not prejudice its rights in respect of any subsequent breach of the Agreement by the Customer.

50)  Subject to subclause 48), any failure by the Supplier to enforce any clause of this Agreement, or any forbearance, delay or indulgence granted by the Supplier to the Customer, will not be construed as a waiver of the Supplier’s rights under this Agreement.

Variation

51)  The provisions of this Agreement shall not be varied, except by agreement in writing signed by the Parties.

52)  If either Party wishes to vary the Agreement, the proposing Party shall submit a copy of the proposed variations to the other Party (“the receiving Party”), specifying a reasonable period in which the receiving Party is to provide written notice of acceptance or rejection of the proposal.

53)  If the receiving Party accepts the variations, the Agreement shall be deemed to be so amended from the date of acceptance.

54)  If the receiving Party rejects the proposed variations, each Party shall perform the Agreement in accordance with the unvaried terms.

Severability

55)  If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, the Agreement shall remain otherwise in full force apart from such provisions which shall deemed deleted.

Supplier’s Rights

56)  Any express statement of the right of the Supplier under this Agreement is without prejudice to any other right of the Supplier expressly stated in this Agreement or existing at law.

Survival of Agreement

57)  Subject to any provision to the contrary, this Agreement shall enure to the benefit of and be binding upon the Parties and their successors, trustees, permitted assigns or receivers but shall not enure to the benefit of any other persons.

58)  The covenants, conditions and provisions of this Agreement which are capable of having effect after the expiration of the Agreement shall remain in full force and effect following the expiration of the Agreement.

Governing Law

59)  This Agreement will be governed by and construed according to the law of Queensland.

Notices

60)  Notices under this agreement may be delivered by hand, by mail or by facsimile to the addresses specified in the SLA.

61)  Notice will be deemed given:

a)      in the case of hand delivery, upon written acknowledgement of receipt by an officer or other duly authorised employee, agent or representative of the receiving Party;

b)      in the case of posting, three days after despatch;

c)      in the case of facsimile, upon receipt of transmission if received on a business day or otherwise at the commencement of the first business day following transmission.