1. HOW TO READ THIS AGREEMENT
1.1 MEANING OF CAPITALISED WORDS AND PHRASES
Capitalised words and phrases used in these terms and conditions have the meaning given:
(a) to that word or phrase in the Key Details;
(b) by the word immediately preceding any bolded and bracketed word(s); (c) in the definitions in Schedule 1 of this agreement.
1.2 ORDER OF PRECEDENCE
In the event of any inconsistency between these terms and conditions and the Key Details, these terms and conditions will prevail to the extent of such inconsistency.
2. DURATION AND RENEWAL OF THIS AGREEMENT
This agreement will commence on the Start Date, and continue in effect until the End Date set out in the Key Details (Term), unless earlier terminated in accordance with clause 10, or extended in accordance with clause 2.2.
2.2 EXTENSION OF TERM
(a) The parties may agree to extend this agreement by mutual agreement, including by conduct that indicates an intention to extend the Term.
(b) If any Services are supplied after the expiry of the Term without the parties having entered into a replacement agreement or otherwise having expressly agreed in writing that these terms will not apply, the terms of this agreement will continue to apply for those Services.
3. THE SERVICES
3.1 SCOPE OF SERVICES
(a) BIZC will perform the Services in accordance with this clause 3 and the Key Details.
(b) Unless otherwise stated in the Key Details, the Services include the Professional Services as set out in and subject to Schedule 2 and the Key Details.
(c) If any other activities are requested by the Client, or required by the Client from time to time in BIZC’s reasonable opinion, including any Break/Fix IT Services (Additional Services), the parties will follow the process set out in Schedule 3 and the Fees set out in the Key Details will apply.
(d) The Client acknowledges and agrees that the Services do not include hosting services.
3.2 INFRASTRUCTURE RECOMMENDATIONS
The Client acknowledges and agrees that:
(a) any information or recommendations provided to the Client in relation to the Client’s IT System in the course of providing the Services is based on:
(i) the information provided by the Client to BIZC; and
(ii) BIZC’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.
3.3 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 entered into by the Client and their third party hosting provider, (Third Party Terms).
(b) BIZC will endeavour to notify the Client of Third Party Terms that apply to the Services, in which case:
(i) the Client must immediately notify BIZC if they do not agree to the Third Party Terms; and
(ii) if BIZC does not receive a notice in accordance with clause 3.3(b)(i) the Client will be taken to have accepted those Third Party Terms, and BIZC will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.
(c) The Client acknowledges and agrees that if the Client does not agree to any Third Party Terms, this may affect BIZC’s ability to perform the Services.
3.4 KEY PERSONS
(a) BIZC will endeavour to ensure that the Services are performed by:
(i) personnel who are suitably qualified, with appropriate skills and
experience to perform the Services to an acceptable standard;
(ii) by the people set out in the Key Details, or people of similar skills and experience.
(b) BIZC will endeavour to ensure that each Key Person performs the role assigned to them in the Key Details (if any).
(c) If a Key Person becomes unavailable to perform the Services, BIZC will take steps to provide a suitable replacement (with similar skills and experience to the Key Person being replaced) within a reasonable timeframe.
(d) If BIZC is unable to provide a suitable replacement within 30 working days (or a longer period agreed between the parties), the Client may terminate this agreement in accordance with clause 10.
3.5 AUTONOMY AND DISCRETION
BIZC will have absolute control and discretion over working times, methods, and decision making in relation to the provision of the Services, including whether the Services will be provided on-site or remotely (including for the purposes of clause 11). BIZC will be responsive to the reasonable needs and concerns of the Client.
Other than as prevented by clause 3.3(b), the Client acknowledges and agrees that BIZC may, in its absolute discretion and without further notice to or approval from the Client, subcontract any part of the Services. BIZC will be responsible for any subcontractors’ performance of the Services.
4. CLIENT DATA ROLES AND RESPONSIBILITIES
(a) BIZC 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 BIZC’s ability to comply with this clause.
(b) BIZC will not make any undocumented, unreported or unauthorised configuration
changes to BIZC’s 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.
(c) BIZC will notify and keep the Client notified of BIZC’s current safety and security procedures and safeguards that are made from time to time.
(d) Unless otherwise stated in the Key Details or Schedule 2, the Client must take all reasonable steps to ensure that the Client Data and the Client’s IT System are backed up.
4.2 DATA BREACH
(a) The Client or BIZC (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) BIZC will promptly investigate each potential, actual or suspected Security Breach and assist the Client and its personnel in connection with any investigation that the Client may desire to conduct with respect to the Security Breach.
(c) BIZC will take all steps requested by the Client to limit, stop or otherwise remedy any potential, actual or suspected Security Breach. 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 BIZC and following any directions given by BIZC.
(d) The Client will be solely responsible for any obligations in relation to any Notifiable Data Breaches and the Office of the Australian Information Commission.
5. GENERAL CLIENT OBLIGATIONS
5.1 PROVIDE INFORMATION
The Client must provide BIZC with all documentation, information and assistance reasonably required by BIZC to perform the Services.
The Client agrees to provide BIZC with access to:
(a) the Client’s premises and personnel, to the extent required to perform the Services; and
(b) any other third party or other accounts used by the Client (including login details and passwords),
as reasonably required by BIZC to perform the Services.
5.3 SPECIFIED CONFIGURATION AND SOFTWARE
(a) BIZC may require the Client to use and maintain a particular IT System for BIZC to perform the Services.
(b) The Client must maintain the Client’s hardware, Software licences and internet connection as necessary for BIZC to perform the Services.
(c) 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.
(d) BIZC 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 5.3.
5.4 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.
6. FEES AND PAYMENT
(a) If a Deposit is set out in the Key Details, the Client must pay the Deposit upon signature of this agreement or no later than the Start Date.
(b) The Client must pay the Fees in the amounts, and on or before the direct debit Due Date(s), set out in the Key Details.
(c) Unless otherwise stated in the Key Details:
(i) the Professional Services Fees are payable monthly by direct debit in advance; and
(ii) any Additional Services Fees are payable upon invoice.
(d) To the maximum extent permitted under the Competition and Consumer Act 2010 (Cth) the Deposit and any Fees paid under this agreement are non-refundable.
6.2 SUSPENSION OF SERVICES
BIZC reserves the right to suspend all or part of the Services indefinitely and repossess any goods supplied under this Agreement where the Client fails to pay the Fees in the amounts and times specified in the Key Details.
Subject to prior approval from the Client, the Client must pay BIZC for:
(a) any third party costs incurred by BIZC in the course of performing the Services may be billed to the Client, unless specifically otherwise provided for in the Key Details; and
(b) all travel, accommodation, stationary, computer storage, media and related expenses reasonably incurred by BIZC in connection with the Services.
Unless otherwise indicated, amounts stated in the Key Details do not include GST. In relation to any GST payable for a taxable supply by BIZC, the Client must pay the GST subject to BIZC providing a tax invoice.
6.5 CARD SURCHARGES
BIZC 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).
6.6 ANNUAL PRICING REVIEW
The Client acknowledges and agrees that the Fees are subject to an annual review to ensure that the Fees are aligned with market rates and inflation. BIZC will conduct the annual review of the Fees and notify the Client if there is any increase to the Fees for the
following year of the Term. If the Client does not agree to a Fee increase, the Client may terminate this agreement in accordance with clause 10.1.
7. CONFIDENTIALITY AND PRIVACY
(a) The parties must comply with:
(i) if applicable, their respective obligations under the Privacy Act 1988 (Cth); and
7.2 CONFIDENTIAL INFORMATION
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).
If either party becomes aware of a suspected or actual breach of clause 7.2 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 7.2.
7.4 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.
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.
7.6 ADDITIONAL DISCLOSEES
Each party will ensure that Additional Disclosees keep the Confidential Information confidential on the terms provided in this clause 6.1. 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.
8. WARRANTIES AND LIABILITY
(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) (Limitation of liability) To the maximum extent permitted by applicable law, the maximum aggregate liability of BIZC to the Client in respect of loss or damage sustained by the Client under or in connection with this agreement is limited to the total Fees paid to BIZC by the Client in the 6 months preceding the first event giving rise to the relevant liability.
(b) (Indemnity) The Client agrees at all times to indemnify and hold harmless BIZC and its officers, employees and agents (“those indemnified”) from and against any loss (including reasonable legal costs) or liability incurred or suffered by any of those indemnified where such loss or liability was caused or contributed to by the Client or the Client’s officers’, employees’ or agents’:
(i) breach of any term of this agreement;
(ii) breach of any Third Party Terms; or
(iii) negligent, fraudulent or criminal act or omission.
(c) (Consequential loss) BIZC will not 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 arising under or in connection with this agreement or any goods or services provided by BIZC, except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth) or any other applicable law.
9. DISPUTE RESOLUTION
(a) The parties must, without delay and in good faith, attempt to resolve any dispute which arises out of or in connection with this agreement prior to commencing any proceedings.
(b) If a party requires resolution of a dispute it must immediately submit full details of the dispute to the chief executive officer of the other party.
(c) The parties acknowledge and agree that compliance with this clause 9 is a condition precedent to any entitlement to claim relief or remedy, whether by way of proceedings in a court of law or otherwise in respect of such disputes, except:
(i) in the case of applications for urgent interlocutory relief; or
(ii) a breach by another party of this clause 9.
10.1 TERMINATION FOR CONVENIENCE
Either party may terminate this agreement at any time by providing 30 days’ written notice to the other party.
10.2 TERMINATION FOR DEFAULT
Either party (Non-Defaulting Party) may terminate this agreement immediately by written notice to the other party (Defaulting Party) if the Defaulting Party:
(a) is in breach of this agreement and either:
(i) fails to remedy such breach within 14 days of receiving notice from the Non-Defaulting Party requiring it to remedy such breach; or
(ii) that breach is not capable of remedy; or
(b) ceases, suspends or threatens to cease or suspend to conduct its business.
10.3 ACCRUED RIGHTS AND LIABILITIES
The expiration or termination of this agreement will not prejudice any accrued rights or liabilities of either party, nor excuse either party from a breach of this agreement occurring prior to expiration or termination of this agreement.
10.4 CONSEQUENCES OF EXPIRATION OR TERMINATION
Upon expiration or termination of this agreement:
(a) the Client must pay:
(i) all amounts owed for Services already provided as at the date of termination;
(ii) the remainder of the Fees for Professional Services for the then current monthly billing cycle (whether or not the Client elects for those remaining Professional Services to be provided);
(iii) any third-party vendor amounts (including for software licenses) already committed to by BIZC on behalf of the Client;
(b) each party must return all property of the other party to that other party;
(c) each party must immediately return to each other party, or (if requested by that party) destroy, any documents in its possession or control containing Confidential Information of the other party; and
(d) the Client will be responsible for transitioning the activities included in the Services back to the Client’s personnel or a third party with minimal assistance from BIZC.
Any clause that by its nature would reasonably be expected to be performed after the termination or expiry of this agreement will survive and be enforceable after such termination or expiry.
11. FORCE MAJEURE
(a) If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under this agreement (other than an obligation to pay money) due to a Force Majeure Event, the Affected Party must give to the other party prompt written notice of:
(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.
(b) Subject to compliance with clause 11(a) the relevant obligation will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event.
(c) The Affected Party must use its best endeavours to overcome or remove the Force Majeure Event as quickly as possible.
(d) For the purposes of this agreement, a ‘Force Majeure Event’ means any:
(i) act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
(ii) strikes or other industrial action outside of the control of the Affected Party;
(iii) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
(iv) any decision of a government authority in relation to COVID-19, or any threat of COVID-19 beyond the reasonable control of the Affected Party, to the extent it affects the Affected Party’s ability to perform its obligations, including but not limited to where it may be unsafe for the Services to be provided on-premises or with face-to-face contact.
(a) A notice or other communication to a party under this agreement must be:
(i) in writing and in English; and
(ii) delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond for the purposes of the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.
(b) Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:
(i) 24 hours after the email was sent; or (ii) when replied to by the other party, whichever is sooner.
In providing the Services under this Agreement it is expressly agreed that the Contractor 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.
13.2 GOVERNING LAW AND JURISDICTION
This agreement is governed by the law applying in New South Wales. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales 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.
13.3 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.
This agreement may only be amended in accordance with a written agreement between the parties.
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.
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.
13.7 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.
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.
This agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this agreement and all together constitute one agreement.
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.
13.11 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.
(a) (singular and plural) words in the singular includes the plural (and vice versa);
(b) (gender) words indicating a gender includes the corresponding words of any other gender;
(c) (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;
(d) (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;
(e) (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;
(f) (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;
(g) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
(h) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(i) (includes) the word “includes” and similar words in any form is not a word of limitation; and
(j) (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.
Schedule 1 – DEFINITIONS
In these terms and conditions, the following words and phrases have the following meaning:
Additional Services Has the meaning given in clause 3.1(c).
Additional Services Fees Any amounts payable for the performance of Additional Services, calculated on the basis of Additional Services Fees set out in the Key Details.
Break/Fix IT Services Means any ad hoc technical support provided as described in clause 3.1(c) of Schedule 3.
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 New South Wales.
Confidential Information 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.
Client Data Means the Client’s website, application, data or other information.
Fees The amounts set out in the Key Details that are payable to BIZC by the Client in exchange for the Services.
IT System The Client’s hardware, Software, data communications lines, network and telecommunications equipment and internet-related information technology infrastructure, including computers, laptops and phones.
Key Details The information set out on the pages of this agreement with the subtitle Key Details.
Key Persons The persons identified in the Key Details as the persons who BIZC intends to provide to perform the Services.
Key Details The order form document at the start of this agreement as completed and attached on the Start Date.
Maximum Number of Users The maximum number of users set out in the Key Details.
Notifiable Data Breach Has the meaning given in the guide and codes of practice issued by the Office of the Australian Information Commissioner from time to time.
Personal Information Has the meaning given in the Privacy Act 1888 (Cth).
Professional Services Means the Services described in Schedule 2.
Professional Services Fees Means the recurring monthly payment set out in the Key Details to be paid by the Client to BIZC.
Services Means the Professional Services and any Additional Services provided from time to time under this agreement.
Software 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 The date written to be the start date on the cover page of this agreement, being the date that this agreement is signed and becomes effective and binding on the parties.
Subscription Tier Means the subscription tier set out in the Key Details.
Term The duration of this agreement being the period from the Start Date to the End Date as set in the Key Details.
Third Party Terms Has the meaning given in clause 3.3(a).
Schedule 2 – PROFESSIONAL SERVICES
1. PROFESSIONAL SERVICES
BIZC will, in exchange for the Professional Services Fees, perform the following Professional Services:
Schedule 3 – ADDITIONAL SERVICES
1. ADDITIONAL SERVICES
1.1 ADDITIONAL SERVICES
Additional Services that may be ordered by the Client in accordance with this Schedule 3 include but are not limited to:
(a) any Break/Fix IT Services set out in clause 1.2 of this Schedule 3; and
(b) anything not expressly within the scope of the Professional Services set out in Schedule 2 and the Key Details, including:
(i) any work, project, service or support of any kind, whether one-time, periodic, or ongoing, that involves a new resource that was not present at the Start Date;
(ii) integrations with newly acquired/introduced hardware, software or networks, or with other formerly non-existent third party resources; and
(iii) changes to managed resources, when such configuration, integration or changes are not warranted or necessary (in BIZC’s reasonable opinion).
1.2 BREAK/FIX IT SERVICES
Any Break/Fix IT Services performed in accordance with clause 1.1 of this Schedule 3 may include, and the Fees set out in relation to Break/Fix IT Services in the Key Details will be incurred for, any of the following activities:
(a) any type of service, repair, reconfiguration, maintenance or management occasioned or made necessary by the alteration of systems, devices, software or other resources, with or without administrative access to such resources;
(b) any change or service occasioned by acts or omissions by the Client’s own employees, principals, consultants, subcontractors, third party vendors, or any other third parties who may have or have had physical, logical or remote access to the Client’s IT systems;
(c) maintenance of third party applications, software, software packages or add-ons, whether acquired through BIZC or any other source. The only exception to this is software made or modified by BIZC in order to provide the Professional Services;
(d) any software programming or scripting (creation or modification of software code) or program (software) maintenance;
(e) any work that does not involve proactive management, routine administration, or troubleshooting (whether client-prompted/requested or otherwise) malfunctioning or non-functioning systems or resources under management.
1.3 ORDERING ADDITIONAL SERVICES
(a) If the Client requires additional Services, whether:
(i) requested by the Client; or
(ii) suggested by BIZC,
BIZC will provide a quote for the Additional Services in accordance with the Additional Services Fees set out in the Key Details or as otherwise quoted by BIZC from time to time.
(b) If the Client accepts a quote provided in accordance with clause 1.3(a) of this Schedule 3:
(i) BIZC will provide the Additional Services; and
(ii) the Client will be liable to pay the Additional Services Fees, in accordance with the terms and conditions of this agreement.
(c) If Additional Services are agreed to between the parties in accordance with clause 1.2 of this Schedule 3, the Fees set out in the Key Details in relation to Break/Fix IT Services will apply.