Terms of Service

Note: These Terms of Service do not override or replace any previously signed Terms of Service.

1. Agreements for the supply of products and services

1.1 Each time a Quotation is accepted by you, a separate contract will be entered into consisting of the following documents (each, an Agreement):

(a) this Terms of Service;

(b) the Quotation;

(c) the applicable Service Schedule/s; and

(d) the Acceptable Use Policy.

1.2 To the extent of any inconsistency between the documents listed in subclauses 1.1(a) to 1.1(d), the document listed first in clause 1.1 shall prevail.

1.3 Our Quotations are only open for acceptance for duration of the period specified in the applicable Quotation. We have no obligation to supply any products or services under an Agreement other than as expressly required by the applicable Quotation(s).

1.4 We may modify this Terms of Service, any Service Schedule or our Acceptable Use Policy at any time and from time to time, in our absolute discretion. The modified versions will only apply to Agreements that we subsequently enter into with you. We will provide you with a copy of the modified versions or upload them to our website. It is your responsibility to ensure that you have read and understood them. 

2. Term

2.1 Each Agreement will commence on the later of the:

(a) first day of the month of the initial full cycle invoice that contains the complete agreed-upon inclusions and quantities specified in the Quotation. This excludes any ramp or pro rata invoices. 

(b) commencement date specified in the Quotation, or if the Quotation does not specify a commencement date, the Agreement will commence on the date of your approval of the Quotation.

2.2 Contract Term, commitment term, initial term or minimum period are specified in a Quotation and begins from the commencement of the agreement.

2.3 If a contract term, commitment term, initial term, or minimum period is specified in a Quotation (each, a Minimum Period), upon expiry of the Minimum Period, the Agreement will automatically extend for subsequent consecutive periods each of equivalent length to the Minimum Period (each, a Renewal Period), until and unless either party notifies the other party in writing that it wishes to terminate the Agreement at least 90 days prior to the expiry of the Minimum Period or the then current Renewal Period (as applicable) (time being of the essence), in which case if such notice is provided, the Agreement will terminate at the end of the Minimum Period or the then current Renewal Period (as applicable).

2.4 If there is no Minimum Period, the Agreement will continue from the Commencement Date until the Ordered Products and Services have been delivered and thereafter until either party terminates the Agreement on 90 days’ prior written notice to the other party.

3. Supply of Ordered Products and Services

3.1 We will use our best endeavours to supply and/or procure the supply of the products and/or services specified in a Quotation (respectively Ordered Products or Ordered Services and collectively, Ordered Products and Services) to you, substantially in accordance with any Specifications. 

3.2 You must provide all necessary:

(a) cooperation, permissions, authorisations, assistance and consents (including all relevant third-party and End User consents and authorisations); and

(b) access to such information (including account logins), Your Equipment, Personnel, End Users, servers, networks, data, content, facilities, documentation, records, resources, records, equipment and premises,

as reasonably required by us to supply and/or procure the supply of the Ordered Products and Services to you. 

3.3 Where required by us, you must also arrange safe and timely access to Your Premises for our Personnel and Third Party Providers to provision, install, support and maintain the applicable Ordered Products and Services. Support and maintenance are not within the scope of the Agreement unless the applicable Quotation clearly states that they will be provided.

3.4 We are not liable for:

(a) the content, security or communications that you receive, access or rely upon when using Ordered Products and Services;

(b) ensuring that any data sent or received over any Ordered Products and Services is sent or received correctly and to the maximum extent possible by law, we and our Third Party Providers do not have any responsibility for loss of data, delays, non-deliveries or mis-deliveries of data;

(c) the installation of electrical wiring, removal of doors, widening of entrances or any other structural work of any description at Your Premises. You must procure all such work to be carried out prior to our, and/or our Third Party Providers’, attendance at Your Premises for the purposes of carrying out any installation, configuration or setup of any Ordered Products and Services;

(d) ensuring that Your Equipment is compatible or interoperable with Ordered Products and Services; and 

(e) all and any acts and omissions of your Personnel and End Users.

3.5 With respect to any proposed installation, commencement or start dates specified in a Quotation:

(a) time is not of the essence and such dates are estimates only; and

(b) where our Personnel or Third Party Providers are unable to provision any Ordered Products and Services by any agreed or estimated installation, commencement or start date for any reason:

(i) we may terminate the relevant Quotation at any time prior to the provisioning being completed, by notice to you, without liability; and

(ii) you may terminate the relevant Agreement prior to the provisioning being completed, by notice to us,

without liability if the Ordered Products and Services are  not installed or provisioned (as applicable) within 60 days after the agreed or estimated installation, commencement or start date for any reason; and

(c) you must pay all costs and expenses that we incur as a result of any delay in the installation, procurement, commencement and/or implementation of Ordered Products and Services caused directly or indirectly by you or your Personnel.

4. Performance and availability of Ordered Products and Services

4.1 We warrant that Ordered Products and Services will perform materially in accordance with the Specifications.

4.2 We do not warrant that Ordered Products and Services will be:

(a) uninterrupted or error-free, free from fault or external intrusion; or

(b) suitable for or will meet your requirements,

unless such warranties are expressly set out in a Quotation or Service Schedule or cannot be excluded from the Agreement under Applicable Law.

4.3 If there are Service Levels specified in a Quotation or Service Schedule:

(a) we will use our best endeavours to ensure that the applicable Ordered Services comply with those Service Levels; and

(b) any breach of the Service Levels will not constitute a breach of the Agreement.

4.4 If there are Service Credits specified in a Quotation or Service Schedule, your entitlement to the Service Credits is your sole remedy and our sole liability for any non-performance or unavailability of the Ordered Services that they relate to.

4.5 We may in our sole discretion, vary Ordered Services at any time or from time to time, provided that such variation does not have a material adverse effect on the performance of the Ordered Services.

5. Your Equipment and Our Equipment

5.1 An Agreement does not transfer or assign title to Your Equipment to us.

5.2 An Agreement does not transfer or assign title to Our Equipment to you unless it expressly provides otherwise.

5.3 You must not, except as authorised in writing by us, grant or permit the grant or existence of any Security Interest in Our Equipment.

5.4 In the event that any of Our Equipment is left on Your Premises for any purpose and unattended by us, you acknowledge that you are responsible for the proper care of those items of Our Equipment and must take all reasonable steps necessary to ensure that those items of Our Equipment are not damaged or stolen. You acknowledge that, you shall be liable to us for any damage or theft of Our Equipment whether caused by you, your Personnel or any third party.

5.5 You must promptly notify us if any of Your Equipment becomes subject to any Security Interest or Purchase Money Security Interest (as defined under the PPSA) and you hereby indemnify us from and against all and any loss and/or damage incurred by us caused by any of the foregoing matters or the repossession of Your Equipment or any other action taken by any person that is a secured party in respect of Your Equipment.

5.6 You must keep Your Equipment insured for its full replacement value at all applicable times. You must provide us with a certificate of currency in respect of that insurance within 3 Business Days of a request by us at any time.

6. Your Data

6.1 Data in any form entered into, uploaded into or generated from Ordered Products and Services (Your Data) is, as between you and us, owned by you and the Agreement does not transfer any IPR in Your Data to us.

6.2 We will not use Your Data other than to:

(a) perform our obligations under the Agreement; and

(b) comply with our legal obligations.

6.3 You must ensure that:

(a) your End Users are fully entitled (and where applicable, licensed) to disclose to us all of Your Data that is entered into Your Equipment and Ordered Products and Services; 

(b) all of Your Data is accurate and up-to-date; 

(c) the collection, use, disclosure and processing of Your Data by us, our Personnel and Third Party Providers does not breach any Applicable Law or any person’s rights; and

(d) you will handle all notifiable data breach obligations under Applicable Law in respect of Your Data, including in respect of any End User’s personal information that is jointly held by us and you.

6.4 Your Data may be hosted by us or our Third Party Providers on hardware or infrastructure located in or outside Australia. We may or may not own the infrastructure or the premises in which the infrastructure is located.

6.5 Data loss and corruption is unpredictable and can occur from time to time. In the event of any loss, destruction, alteration, corruption or damage to any of Your Data that you engage us to host:

(a) your sole and exclusive remedy as against us, shall be to request that we use reasonable endeavours to restore that data from the latest back-up that we or our Third Party Providers maintain; and

(b) we shall not have any liability for any such loss, destruction, alteration, corruption or damage or for any unauthorised access to or disclosure of Your Data unless it is caused by our wilful misconduct or intentional breach of the Agreement.

6.6 You hereby indemnify us in respect of any loss and damage that we incur as a result of any third party claim that the transmission, storage, hosting, disclosure, processing, access and/or use of Your Data by us for the purposes of the Agreement, or access to and/or use of Your Data by any End User, infringes the IPR and/or other rights of any person or breaches any Applicable Law.

7. Our Intellectual Property Rights

7.1 As between you and us, we own all IPR in:

(a) Ordered Services (including any software, Source Code, Object Code, databases and database structures that are incorporated into or supplied in connection with the Ordered Services); and

(b) all Output (except to the extent that it comprises Your Data) made available in or via the Ordered Products and Services,

(collectively, Our IPR).

7.2 You must not represent that you own any of Our IPR. 

7.3 You must not directly or indirectly do anything that would or might invalidate, jeopardise, limit, interfere with or put in dispute Our IPR and you must not do or authorise the commission of any act that would or might invalidate or be inconsistent with our (or our licensors’) ownership of Our IPR.

7.4 You hereby assign to us all and any IPR in all and any comments in connection with Ordered Services and any requests for new features, that you and/or your Personnel may make or suggest regarding them (each, an Improvement Suggestion). Each such comment and Improvement Suggestion becomes our sole and exclusive property. This assignment is effective when you or your Personnel make the comment or disclose the Improvement Suggestion to us including under section 197 of the Copyright Act 1968 (Cth) and in equity. You must procure from your Personnel an irrevocable and freely given written consent from each of them to the infringement of any Moral Rights that they may have in any such Improvement Suggestions by us and by any third parties who we authorise to operate or modify the Ordered Products and Services.

8. Confidentiality

8.1 Each party may receive information from the other party (disclosing party) during the Term that is marked as confidential or is deemed confidential by Applicable Law (Confidential Information).

8.2 The party who receives Confidential Information from the disclosing party (receiving party) may not, at any time without the disclosing party’s prior written consent, use and/or disclose any Confidential Information, other than to exercise its rights and perform its obligations under the respective Agreement or to comply with Applicable Law.

8.3 Where we are required to do so under any contract with any supplier, we may disclose your Confidential Information to our suppliers, including where the supplier provides us with services that we use to provide any Ordered Services.

8.4 Confidential Information does not apply to information:

(a) that is independently developed, obtained or known by the receiving party, without breaching any obligation of confidence to the disclosing party;

(b) that the recipient can prove was already known to it at the time of disclosure by the disclosing party;

(c) that is in the public domain, except where due to a breach of the Agreement or any breach of any obligation of confidence or Applicable Law; or

(d) that the receiving party must disclose under the rules of any stock exchange on which it or its holding company is listed.

9. Acceptable and Fair Use

9.1 You must ensure that any person who accesses and/or uses any Ordered Products and Services (each, an End User):

(a) complies with all applicable Documentation, Applicable Law, our directions and policies (including any security policy) in the course of such access and/or use;

(b) does not infringe or permit any person to infringe any of our, or our licensors’, IPR; 

(c) does not consume more of an Ordered Service than any limit on consumption specified in a Quotation or applicable Service Schedule, or where no so specified, the average consumption that we specify from time to time, calculated by reference to the consumption of that Ordered Service by all other End Users and end users of our other customers;

(d) provides us with access to Your Data, Personnel, Your Equipment and/or any cooperation or assistance necessary for us to carry out our duties under the Agreement; 

(e) does not provide their passwords or other access credentials to any other person; 

(f) immediately notifies us of any unauthorised or suspected unauthorised use or disclosure of any access credentials for Ordered Products and Services; and

(g) uses reasonable and appropriate security measures and precautions when using any Ordered Products and Services.

9.2 You must:

(a) ensure that you maintain a reliable internet connection for us to connect to Your Equipment, Personnel, End Users, servers, networks, data, content, facilities, documentation, records, resources, records, equipment and premises, where reasonably required by us to provide any Ordered Services; 

(b) ensure that your premises are suitable and maintained in a manner suitable for the use of any Ordered Products and Services; 

(c) maintain all building cabling (existing and new) in accordance with all Australian industry standards and guidelines necessary for any Ordered Products and Services to operate; and

(d) not do anything that interferes with or prevents the proper functioning of any Ordered Products and Services.

9.3 The availability of any Ordered Services will be subject to any bandwidth limitations, internet and network downtime and congestion, database size limitations, throughput limitations and other technical and non-technical limitations or restrictions as set out in the Specifications and/or Documentation.

9.4 Unless otherwise expressly specified in the Agreement, you must not, and must not permit any person to, use any Ordered Services:

(a) to copy, alter, modify, tamper with, create derivative works from, reproduce, resell, transfer to a third party, reverse assemble, reverse engineer, reverse compile or enhance any Ordered Services or any trademarks, any patent or copyright notices, or any confidentiality legend, notice or other means of identification, used on or in relation to any Ordered Services;

(b) in any manner that breaches Applicable Law or violates all or any legal rights of any person in any jurisdiction (including any person’s privacy, such as by way of identity theft or “phishing”);

(c) to license, sublicence, resell, assign, novate, transfer, distribute, or provide others with access to, any Ordered Services;

(d) to “frame”, “mirror” or serve any Ordered Services on any web server or other computer server over the Internet or any other network;

(e) to store, transmit, distribute or introduce malicious programs into our systems, network or servers (e.g., viruses, worms, trojan horses, e-mail bombs);

(f) to make fraudulent or misleading offers of goods or services;

(g) to carry out security breaches or disruptions of network communication (security breaches include, accessing data of which you are not an intended recipient, logging into a server or account that you are not expressly authorised to access, corrupting any data, network sniffing, pinged floods, packet spoofing, denial of service and forged routing information for malicious purposes);

(h) to execute any form of network monitoring which will intercept data not intended for you; or

(i) to circumvent user authentication or security of any of our hosts, networks or accounts or those of our customers or Third Party Providers,

(collectively, our Acceptable Use Policy). 

10. Fees

10.1 You must pay the Fees to us in accordance with the Payment Terms and any applicable Service Schedule, without setoff, deduction or counterclaim. 

10.2 Except as expressly specified otherwise in the Payment Terms, all invoices issued by us must be paid within 30 days from the date of issue of an invoice. 

10.3 If you pay by credit card, you acknowledge that a processing fee will apply to Visa, Mastercard and American Express transactions. Rates are specified at checkout.

10.4 Except as otherwise set out in a Quotation, the Fees are exclusive of all taxes such as GST and you agree to pay all such taxes to us, in respect of any Supply (as that term is defined in the GST Law) made for the purposes of the Agreement. You must pay all such taxes at the same time as the Fees.

10.5 Without limiting any other rights or remedies available to us, we may suspend our obligations under this Agreement and your access to Ordered Services including cancelling subscriptions to the Ordered Services if you fail to pay the Fees in accordance with the Payment Terms.

10.6 If you fail to make any payment due to us under this Agreement in accordance with the Payment Terms then, without limiting our rights and remedies, you shall pay interest on the overdue amount at a rate equal to 10% per annum above the current overdraft rate that we have with our principal banker from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgement, and you shall pay the interest together with the overdue amount upon demand by us. You hereby indemnify us from and against all and any legal costs and disbursements (on a full indemnity basis) that we incur in connection with the proceedings set out in this clause 10.6.

10.7 Ordered Products and Ordered Services shall remain our property until you fulfil your payment obligations under this clause 10.

10.8 We may increase the Fees payable under an Agreement: 

(a) On 1 July each year by the greater of: [i] 5% per annum; and [ii] the most recently published Consumer Price Increase (CPI) movement (All Groups CPI, Australia, annual movement (%)) published by the Australian Bureau of Statistics (ABS) or any replacement thereof published by the ABS; and 

(b) at any time to accommodate any currency fluctuations. 

10.9 In the event of a significant price increase from vendors or due to serious environmental factors affecting the supply of labour, electricity and other aspects necessary to our operations (Price Increase), as determined by us, acting reasonably, we reserve the right to pass on the Price Increase to you in our Fees.

10.10 You acknowledge and agree that invoices will be deemed accepted if no dispute is raised within 7 days from the invoice date. Direct debit payment will be processed automatically on the due date unless a dispute is raised within this period.

11. Liability

11.1 Ordered Products and Services and/or any Output does not constitute financial, legal or other advice. You must obtain all appropriate professional, financial, legal and other advice as applicable before relying on any Output. You must not represent (either expressly or impliedly) that any Output is our advice.

11.2 We are not liable for any failure to perform any Ordered Services caused by any breach of the Agreement by you or your Personnel.

11.3 We are not liable for any failure by you or your Personnel to comply with our Acceptable Use Policy.

11.4 Neither party is liable to the other party for any loss of profits, loss of business opportunity, loss of revenue (other than caused by your failure to pay the Fees or as specified in clause 13.7), loss of savings or loss of data, whether arising in contract, tort (including negligence) or otherwise, and whether the loss or damage is foreseeable or not.

11.5 Our aggregate liability for all claims for loss or damage that you may incur due to our breach of the Agreement, that is not otherwise excluded by the terms and conditions of the Agreement, is capped at an amount equivalent to the quantum of the Fees paid by you under the Agreement for the Ordered Products or Services to which the breach relates, and shall be reduced to the extent that you, your End Users and/or any Third Party Provider caused or was responsible for such loss or damage.

11.6 Where liability for breach of any guarantees under the ACL can be limited, our liability arising from any breach of those guarantees (if any) is limited, at our option: (i) with respect to the supply of goods, to the replacement or repair of the goods or the cost of resupply or replacement of the goods; and/or (ii) with respect to services, to the supply of the services again or the cost of re-supplying the services again.

11.7 Other than any non-excludable guarantees implied into this Agreement under the ACL (if any), all conditions, warranties and guarantees that would be implied in the Agreement are hereby excluded from the Agreement.

11.8 Either party may obtain urgent interlocutory relief from a court of competent jurisdiction to prevent any actual or potential breach of the Agreement.

11.9 Each party shall at its own cost and expense effect and maintain throughout the Term workers compensation insurance as required under Applicable Law.

12. Force Majeure Event

12.1 We are not liable for any failure by us to perform our obligations under the Agreement if such failure was caused by a Force Majeure Event. If a Force Majeure Event that prevents us from performing our obligations under the Agreement continues for 45 consecutive days, either party may terminate the Agreement by prior written notice.

13. Termination

13.1 A party may terminate the Agreement by written notice to the other party if the other party (the defaulting party) commits a breach of the Agreement that is not remediable, or if the breach is a remediable breach and the defaulting party fails to remedy the breach within 14 days of written notice to the defaulting party requiring the breach to be remedied.

13.2 We may terminate or suspend our provision of any Ordered Products and Services if:

(a) you fail to pay any Fees to us in accordance with the Payment Terms;

(b) you, your Personnel or your End Users infringe or breach our Acceptable Use Policy; or

(c) a Third Party Provider ceases to provide hardware, software, products or services that we require to comply with our obligations to supply any Ordered Products or Services to you. 

13.3 If you do not follow our reasonable advice in respect of the repair or replacement of any Ordered Products or Services (or any of Your Equipment that is relevant to the supply of Ordered Products or Services), we may, by notice to you, elect to suspend the supply of the Ordered Products or Services to you.  

13.4 Either party may terminate the Agreement by written notice to the other party if the other party suffers an Insolvency Event.

13.5 We may terminate this Agreement by written notice to you if you undergo a Change of Control. 

13.6 If the Agreement is terminated for any reason:

(a) you shall, at our option, promptly return or destroy all copies of our Confidential Information in your possession or control; and

(b) any rights granted by us to you pursuant to the Agreement immediately terminate. 

13.7 If an Agreement is terminated prior to the expiry of the Minimum Period (other than due to our breach or if we suffer an Insolvency Event), you will pay 100% of any outstanding amounts that we calculate or reasonably estimate would have been payable by you under the Agreement for the remainder of the Minimum Period (collectively, the Outstanding Amount). If an Outstanding Amount is payable, we shall send you a tax invoice in respect of the Outstanding Amount and you will pay that invoice within 30 days. You agree that: (i) payment under this clause is not intended to be, and will not, be punitive, and you will compensate us for reasonable loss and damage resulting from early termination of the Agreement; and (ii) the Outstanding Amount is less than the total loss and damage that we will suffer from the early termination of the Agreement.

13.8 Any rights or obligations that, by their nature, survive termination shall so survive, including any provision dealing with confidentiality, IPR, liability, dispute resolution and jurisdiction.

13.9 Termination does not affect any accrued rights of either party.

14. Notices

14.1 All notices required or permitted to be made under the Agreement shall be in writing and shall be deemed delivered if:

(a) delivered in person;

(b) sent by post to the recipient’s postal addresses identified in the relevant Quotation; or

(c) sent by email to the recipient’s email addresses identified in the relevant Quotation. 

14.2 Notice given under subclause 14.1(a) shall be effective upon delivery.

14.3 Notice given under subclause 14.1(b) shall be effective 6 Business Days after posting if posted domestically in Australia, or 20 Business Days after posting to or from any other country.

14.4 Notice given under subclause 14.1(c) shall be effective on the day on which it is transmitted if the sender receives a read or delivery receipt confirming delivery or receipt of the email, or on the next Business Day unless a notification failure email is received, or otherwise when a reply to the email is received.

14.5 Any party may change its address for notice hereunder by giving written notice to the other party in accordance with this clause 14.

15. General

15.1 A party may not assign its rights or novate its obligations under the Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld, conditioned or delayed).

15.2 If any provision of the Agreement is deemed invalid by a court of competent jurisdiction, the remainder of the Agreement shall remain enforceable.

15.3 The relationship between you and us is non-exclusive and nothing in the Agreement will prevent us from supplying any goods or services to any third party in our absolute discretion. You and we are independent contracting entities and nothing contained in the Agreement creates any relationship of partnership, employment, joint venture or agency between the parties.

15.4. Subject to clause 15.7 of these Terms of Service, the Agreement is the entire agreement between you and us about its subject matter and supersedes all other proposals, arrangements, representations or agreements between the parties about its subject matter.

15.5. Subject to clause 15.7 of these Terms of Service, the Agreement may be amended only by a written document signed by the parties and a provision of or a right under the Agreement may not be waived or varied except in writing signed by the party to be bound.

15.6. The Agreement is governed by the laws in force in New South Wales Each party submits to the exclusive jurisdiction of the courts located in that State and the courts of appeal from them in relation to any proceedings and disputes concerning the Agreement.

15.7. The parties acknowledge and agree that notwithstanding clause 15.5 of these Terms of Service, any increase in the quantity of any Ordered Product or Service specified in a relevant Quotation that is agreed between the parties in writing, and which is over and above the quantity of the relevant Ordered Product or Service (as applicable) then specified in the relevant Quotation, will be deemed to be a mutually agreed increase to the quantity of that Ordered Product or Service (as applicable) specified in the relevant Quotation, the same as if the parties had agreed to amend the relevant Quotation via a written document signed by the parties.

15.8. We do not warrant that the accuracy, reliability, timeliness, integrity and completeness of the materials shown on our website and/or that we supply to you. We do not warrant that our website and/or other materials that we supply to you will not contain errors, viruses or other harmful code. All images shown on our website and/or in materials that we supply to you are for illustrative purposes only and we do not guarantee that the final Ordered Products and/or Services or the results of your access and use of them will be the same as shown in such images.

16. Definitions and Interpretation

16.1. In this Terms of Service, words in bold font in parentheses have the meanings given to them therein. In addition, the following words have the following meanings:

ACL means schedule 2 to the Competition and Consumer Act 2010 (Cth).

Applicable Law means any legislation, rule of the general law, including common law and equity, judicial order or consent or requisition from, by or with any governmental agency, including any Data Protection Law, in any applicable jurisdiction.

Business Day means any day from Monday to Friday excluding public holidays in New South Wales.

Business Hours means 9:00am – 5:00pm on Business Days.

Change of Control means a change in the beneficial ownership of more than 25% of: (a) the issued share capital of a company; or (b) the legal power to direct or cause the direction of the general management of the company.

Data Protection Laws means all applicable data protection and privacy laws in any applicable jurisdiction, including the Privacy Act 1988 (Cth).

Documentation means any user manuals, notes, technical instructions and documentation provided by us in respect of the Ordered Products and Services.

Fees means any fees and charges set out in the Agreement.

Force Majeure Event means war, industrial action, government action, natural disaster, flood, labour disturbance, pandemic, harmful code or component, communication outage, internet outage, interruption of service, denial of service attack, breach of contract by a Third Party Provider, fire, threatened or actual act of terrorism, earthquake, act of God, or other circumstances beyond our reasonable control.

GST and GST Law have the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth)).

Insolvency Event means, in respect of a party: (a) the party ceases to carry on business, is unable to pay its debts as and when they fall due, or is deemed to be insolvent or bankrupt; (b) a receiver or a liquidator or provisional liquidator or an administrator is appointed to the party, or an application (including voluntary application filed by that party) is lodged or an order is made or a resolution is passed for the winding up (whether voluntary or compulsory) or reduction of capital of that party; (c) the party enters into an arrangement with its creditors; (d) where the party is a partnership, the partnership is dissolved or an application is made for its dissolution; (e) the party suspends payment of its debts to the other party or a third party, or the party takes the benefit of any law for the relief of insolvent debtors; or (f) anything analogous or having a substantially similar effect to any of the events described in (a) through (e) above occurs under the law of any applicable jurisdiction.

IPR means all copyright, trademark rights, patent rights, and design rights, whether registered or unregistered, and all other rights to intellectual property as defined under article 2 of the Convention Establishing the World Intellectual Property Organisation, and all rights to enforce any of the foregoing rights.

Moral Rights has the meaning given in the Copyright Act 1968 (Cth).

Object Code means Source Code in compiled or binary form.

Output means any reports and other output generated by any Ordered Services.

Ordered Product has the meaning given in clause 3.1.

Ordered Service has the meaning given in clause 3.1.

Our Equipment means any equipment, systems, software, networks, servers, hardware, cabling, ports, switches or other ancillary equipment or tools owned or operated by us.

Payment Terms means payment terms set out in the applicable Quotation, Managed Services Agreement or tax invoice”

Personnel means a party’s employees, agents, officers and subcontractors. We are not your Personnel and you are not our Personnel for the purposes of the Agreement.

PPSA means Personal Property Securities Act 2009 (Cth) as amended from time to time and any regulations thereunder.

PPSR means the Personal Property Securities Register established under the PPSA.

Quotation means a document entitled “Quotation”, “Proposal”, “Agreement” or similar issued by us to you and accepted by you (either by signing it or otherwise).

Service Schedule means Appendix A, Appendix B, Appendix C, Appendix D, Appendix E of this document or a document with that title that we supply to you

Source Code means human readable computer code.

Specifications means the technical specifications for Ordered Products and Services as set out in, referred to from, or attached by us to a Service Schedule.

Term means the term of an Agreement determined pursuant to clause 2.

Third Party Providers means any of our third party suppliers, subcontractors or providers who provide any goods or services that we rely on, supply or resupply as part of Ordered Products and Services.

We, our and us, means FOIT Group Pty. Ltd. ABN 93 133 965 705 of Suite 904, Level 9, 109 Pitt Street, Sydney NSW 2000.

Your Equipment means any systems, software networks, servers, equipment, hardware, cabling, ports, switches and/or other ancillary equipment or tools owned or operated by you or on your behalf, other than Our Equipment. For the avoidance of doubt, Our Equipment is not Your Equipment.

Your Premises means any premises owned, controlled or occupied by you specified in a Quotation.

16.2 Unless the context requires otherwise:

(a) a reference to “a party” means you or us (as the context dictates) and a reference to “the parties” means you and us;

(b) headings and underlinings are for convenience only and do not affect the construction of the Agreement;

(c) a provision of the Agreement will not be interpreted against a party because the party prepared or was responsible for the preparation of the provision, or because the party’s legal representative prepared the provision;

(d) currency or “$” refers to Australian dollars;

(e) a reference to a statute or regulation includes amendments thereto;

(f)  a reference to time is to time in New South Wales;

(g) a reference to a person includes a reference to an individual, a partnership, a company, a joint venture, government body, government department, and any other legal entity;

(h) the words “such as”, ”including”, “particularly” and similar expressions are not words of limitation and shall be interpreted as if the words ‘but not limited to’ immediately followed them in each case; and

(i) a reference to the singular includes the plural and vice versa.

1. About this Service Schedule

1.1. This Service Schedule only applies where a Quotation that you and we execute expressly provides for our supply of one or more of the following services to you:

(a) General Managed IT Services;

(b) Managed Technical Support Services;

(c) Endpoint Management Services;

(d) Mobile Device Management Services 

(e) Network Link Management Services and Network Device Management Services;

(f) Managed Network Support Services;

(g) Cloud Deployment Services;

(h) Managed Cloud Backup and Disaster Recovery Services; 

(i) Managed Azure Cloud Services;

(j) Managed Software and Data Hosting Services;

(k) Managed Microsoft 365 Services;

(l) Managed Cyber Security Services; and

(m) Other Managed Services.

1.2. This Service Schedule must be read in conjunction with our Terms of Service and the other documents that comprise an Agreement.

2. General Managed IT Services

2.1. If “General Managed IT Services” is specified in a Quotation, we will during the Term:

(a) check the Supported Items’ logs (either continuously or regularly) and read any error notifications issued by email to us with respect to errors reported by the Supported Items; and

(b) install firmware updates and other software patches to the Supported Items (via remote electronic access, except as otherwise specified in the Quotation) after receiving notice of the existence of the updates and patches where they are available to us free of charge or paid for by you,

(individually and collectively, General Managed IT Services).

3. Managed Technical Support Services

3.1. If “Managed Technical Support Services” or “Managed Network Support Services” is specified in a Quotation, we will provide the following services (together, the Managed Technical Support Services) during the Term:

(a) we will operate a support helpdesk through which you can request technical support from us with respect to any Supported Item (Support Request) if the Supported Item is repeatedly not operating in accordance with the Specifications (Error);

(b) if you issue a Support Request, we will:

(i) acknowledge receipt of the Support Request and assign a priority to the Error based on the severity level; 

(ii) provide you with updates on the status of the Support Request and the time anticipated by us for resolution;

(iii) subject to you having a valid support contract with the relevant Third Party Provider or Vendor, escalate the Support Request to the relevant Third Party Provider or Vendor of the Supported Item for resolution where we are acting reasonably consider it prudent to do so;

(iv) use our best endeavours to resolve the Error in accordance with the below timeframes:

Severity Level	Error Conditions	Target Response Time	Target Resolution Time
Severity Level 1	Any Supported Item has failed or is unusable, for which no workaround exists, and which materially impacts your ability to continue operation of your business.	1 Business Hour	9 Business Hours
Severity Level 2	A Severity 1 Level issue for which a workaround exists.	4 Business Hours	18 Business Hours
Severity Level 3	A Supported Item or combination of Supported Items across all or many End Users, has failed or is unusable, but there is no material impact on your business operations.	8 Business Hours	27 Business Hours
Business as Usual (where there is no Error)	Request to create/modify/delete an End User’s account in any Supported Items.Request for software installs and other basic assistance with a Supported Item.	16 Business Hours	36 Business Hours

3.2. For the avoidance of doubt, we have no obligation to provide Managed Technical Support Services other than in respect of Supported Items. Further, we have no obligation to perform any Managed Technical Support Services in respect of an Error caused by:

(a) your use of any Supported Item in combination with software or hardware that the Supported Item is not compatible with (as determined by us);

(b) use of any Supported Item in a location other than any designated location for the Supported Item specified in the Quotation; 

(c) modification of any Supported Item (including by way of installation of software not previously installed thereupon or the reconfiguration of a Supported Item in any way) not performed or authorised by us; 

(d) corruption, unauthorised access or disclosure to or of Your Data; 

(e) any obsolete or out of warranty hardware or software comprising or installed on any Supported Items; or

(f) any other matter beyond our reasonable control,

(each, an Excluded Event).

3.3. In order to resolve an Error with a Supported Item we may need to temporarily suspend the operation of the Supported Item and you hereby authorise us to do so. We will notify you in advance if we need to suspend any Supported Item.

3.4. A Support Request will be considered resolved for the purposes of the Agreement when the Supported Item performs materially in accordance with the Specifications.

3.5. If you wish for us to provide technical support services at your premises, or in relation an Excluded Event, you must enter into an Agreement with us that expressly provides for our provision of such services.

3.6. If you wish for us to provide technical support services outside of Business Hours, you must enter into an Agreement with us that expressly provides for our provision of such services.

3.7. You agree that:

(a) you must ensure that all Supported Items and any use thereof complies with and is used in accordance with all Applicable Laws and manufacturer instructions; 

(b) you must not do anything or permit anything to be done by any third party which would compromise or damage the efficient operation or security of any Supported Item.

4. Endpoint Management Services

4.1. If “Endpoint Management Services” is specified in a Quotation, we will during the Term:

(a) read and respond to any error notifications issued to us with respect to errors reported by endpoint management software that we install on any items expressly specified in a Quotation as being covered by Endpoint Management Services (Monitored Items); and

(b) install firmware updates and other software patches to the Monitored Items after receiving notice of the existence of the updates and patches where they are available to us free of charge or paid for by you.

5. Mobile Device Management Services

5.1. If “Mobile Device Management Services” or “MDM” is specified in a Quotation, we will provide the following services during the Term with respect to items that are specified in the Quotation as being covered by Mobile Device Management Services or MDM Services (MDM Devices):

(a) we will configure the settings on each category of MDM Devices consistently;

(b) we will maintain an inventory of the MDM Devices;

(c) we will, where required by you from time to time, centrally deploy apps and reassign licences on MDM Devices; and

(d) carry out any other services that we specify in the Quotation as “Mobile Device Management Services” or “MDM”.

6. Network Link Management Services and Network Device Management Services

6.1. This clause 6 will only apply if a Quotation specifies that we will provide you with “Network Link Management Services” or “Network Device Management Services”

6.2. We will:

(a) remotely monitor the network links specified in the Quotation (Managed Network Links) for disconnection, speed and errors (Network Link Management Services); and 

(b) remotely monitor the network devices specified in the Quotation (Managed Network Devices) for disconnection and errors (Network Device Management Services).

6.3. When providing Network Link Management Services or Network Device Management Services, we may switch off or disconnect the relevant network link or device if:

(a) we believe that they do not comply with the Specifications or pose a threat or danger to us, you, or any third party or third party equipment;

(b) you do not pay the applicable Fees in accordance with the Payment Terms; or

(c) the supplier of the applicable network link (including any Third Party Provider) requires us to do so.

6.4. We do not, unless and to the extent expressly specified in this Service Schedule, have any obligation to provide AC power, air conditioning, fire detection, fire suppression, backup, data, support, internet services, or network and electronic security services, data recovery or disaster recovery services or the provision of spare parts with respect to any network links or devices.

6.5. As part of the Network Device Management Services:

(a) we will exclusively hold any administrator passwords and other administrator access credentials for the network devices that we are required to manage under the Agreement;

(b) you may only access the administrator functionality in those network devices on a remote “read only” basis which does not enable modification of any administrator functions or configurations; 

(c) we have no responsibility for the support or maintenance of any of Your Equipment, unless and to the extent that we have entered into an Agreement for the provision of Managed Technical Support Services with you for the relevant equipment;

7. Cloud Deployment Services

7.1. If “Cloud Deployment Services” is specified in a Quotation, we will provide the following services (Cloud Deployment Service Requirements):

(a) carry out all work reasonably required in order for us to develop a cloud migration and deployment strategy for the deployment of Your Cloud Infrastructure (including where specified in the Quotation, by configuring and deploying applicable virtual machines, storage, databases, networking and automation);  

(b) conduct workshops with you as deemed appropriate by us in order for us to develop the cloud migration and deployment strategy; and

(c) deploy Your Cloud Infrastructure into a live environment, to the extent that it has not already been deployed prior to the commencement date specified in the Quotation.

7.2. In the course of our development of the cloud migration and deployment strategy for the deployment of Your Cloud Infrastructure, we will prepare a plan for the deployment (Deployment Plan). The Deployment Plan shall establish the time frames for deploying Your Cloud Infrastructure and the following information, as applicable:

(a) identification of all critical path milestones and the commencement and completion dates for such critical path milestones; 

(b) a detailed description of all activities to be performed by you and us respectively in connection with the deployment; and

(c) identification of all interdependent activities.

7.3. We will monitor the activities performed by any third-party suppliers set out in the Deployment Plan that are relevant to the deployment by: 

(a) monitoring each third-party’s performance of its implementation activities (to the extent possible); and

(b) promptly notifying you of their failure to perform their duties and obligations with respect to the deployment of Your Cloud Infrastructure if we become aware of any such failure.

7.4. Each party must notify the other party if it becomes aware that it, the other party or any third party have not carried out the tasks assigned under the Deployment Plan.

7.5. Each party will be entitled to an extension of time for completion of any one or more of the stages of the Deployment Plan if one or more of the following events occur:

(a) a Force Majeure Event occurs that results in a delay in the performance or that prevents the performance of any part of the Deployment Plan; or

(b) a delay is caused in whole or in part by the other party or any third-party supplier’s acts or omissions.

7.6. Upon completion of the Cloud Deployment Services, we will test Your Cloud Infrastructure deployed under the Deployment Plan in accordance with the testing procedures set out in the Deployment Plan (Acceptance Tests) in order to determine and verify that it has been deployed in accordance with the Cloud Deployment Service Requirements. We will submit to you a copy of all test results and you will be deemed to have accepted the Cloud Deployment Services and the relevant accounts setup on Your Cloud Infrastructure as part of the Cloud Deployment Services upon the successful completion of the Acceptance Tests. You must not use any instance of Your Cloud Infrastructure in a live environment until and unless the Acceptance Tests have been successfully completed.

7.7. If any account on Your Cloud Infrastructure that we have deployed into a production or live environment for you fails to pass the Acceptance Tests in accordance with the Deployment Plan, and we can demonstrate that the reason for the failure or non-compliance with the Deployment Plan is an issue or defect in Your Data or an issue or defect that we do not have express responsibility for in the Deployment Plan, then:

(a) you must promptly (within 7 days or as otherwise set out in the Deployment Plan) correct or procure the correction of the relevant issue or defect and we will re-test the relevant account on Your Cloud Infrastructure that has been deployed for you in accordance with the Deployment Plan; and

(b) if you fail to correct or procure the correction of the relevant issue within the relevant period referred to in paragraph ‎(a), Your Cloud Infrastructure that we have deployed for you shall then automatically be deemed to be accepted and fully compliant with this Agreement, notwithstanding the issue or defect.

7.8. If Your Cloud Infrastructure fails to pass the Acceptance Tests in accordance with the Deployment Plan due to our breach of the Deployment Plan, we will promptly rectify the failure at our sole cost.

7.9. Where we are required to perform data migration in accordance with the Cloud Deployment Service Requirements:

(a) we will extract the applicable data from one or more existing databases as specified in the Quotation (Legacy Data);

(b) we will convert the Legacy Data into a format suitable for Your Cloud Infrastructure (Converted Data); and

(c) we will export the Converted Data to Your Cloud Infrastructure.

7.10. We will use reasonable endeavours to ensure that the Converted Data is successfully integrated with and compatible with Your Cloud Infrastructure, as determined by us. We are not liable for any corruption or loss of data caused by you or a Force Majeure Event.

7.11. You represent and warrant that you have the right and authority to engage us to transfer any Legacy Data (whether in the form of Converted Data or otherwise) to Your Cloud Infrastructure and that the transfer will comply with Applicable Law. You must comply with your obligations with respect to data migration as set out in the Deployment Plan (including by ensuring integrity of the data, de-duplication of the data, assisting us with data extraction and providing data translation maps where required by us).

7.12. We are not liable for any failure to carry out Cloud Deployment Services where caused by your or your Personnel’s breach of the Deployment Plan or any provision of this clause 7.

8. Managed Cloud Backup and Disaster Recovery Services

8.1. If “Managed Cloud Backup and Disaster Recovery Services” is specified in a Quotation, we will during the Term supply or procure the supply of one of the following services (as specified in the Quotation):

(a) a service that backs up that part of Your Data (excluding any active or open files) that is specified in the Quotation at the frequency set out in the Quotation (Standard Backup); and/or

(b) a service that backs up that part of Your Data (including any active or open files) that is specified in the Quotation at the frequency set out in the Quotation (Enhanced Backup),

to facilitate the restoration thereof (the Backup Files) in the event that the Backup Files are lost or corrupted (the Managed Cloud Backup Services).

8.2. The Managed Cloud Backup Services will be configured to back up the Backup Files only in the locations in which they are held at the time that the configuration is carried out by us.

8.3. If you or any other person relocates Backup Files or if the Backup Files become unavailable or inaccessible to our backup service for any reason the Managed Cloud Backup Services will not be able to operate in its intended manner, we will not be liable for the failure of the Managed Cloud Backup Services to operate as intended and you will still be required to pay us for the Managed Cloud Backup Services.

8.4. You must:

(a) maintain your systems and networks so that we are able to access the Backup Files at all times; and

(b) immediately notify us if you relocate any Backup Files or if you become aware that the Managed Cloud Backup Services are not backing up the Backup Files as intended.

8.5 The Managed Cloud Backup Services will:

(a) only take backups of the Backup Files; 

(b) only back up on an incremental or complete basis; and

(c) delete copies of the Backup Files on a recurring basis,

but only as specified in the Quotation.

8.6. In the event of any data loss or corruption of the Backup Files, we will use our best endeavours to restore the Backup Files from the latest version of the Backup Files that is held by the Managed Cloud Backup Services.

8.7. At the conclusion of the Term, we will delete all Backup Files held by the Managed Cloud Backup Services.

9. Managed Azure Cloud Services

9.1. If “Managed Azure Cloud Services” or “Managed Azure Services” is specified in an accepted Quote, we will:

(a) setup, configure and act as the administrator of your Microsoft Azure (Azure) tenant, including by setting up your domain name(s) on the tenant, adding, editing, and removing user accounts, resetting account passwords, purchasing subscriptions and/or licences on your behalf and allocating subscriptions and/or licences to End User accounts; and

(b) provide the training services for Azure to your End Users set out in the Quotation, on the agreed dates and times at the location/s specified in the Quotation.

9.2. You acknowledge that your use of Azure is subject to: 

(a) you procuring subscriptions and/or licences for your End Users to access and use the AWS products and services (Azure Services) from us or procuring such a subscription and/or licence independently of us; 

(b) the Azure terms and conditions between you and Microsoft at and/or referred to at https://azure.microsoft.com/en-au/support/legal/,  the Azure  Privacy Notice at https://privacy.microsoft.com/en-ca/privacystatement and any other Azure agreements, policies and statements referred to or attached to the Quotation (collectively, Azure Terms). In the event that we procure subscriptions and/or licences for any Azure services for you or any End User, then you agree to be bound by all applicable Azure Terms, as shall be published and amended from to time.

9.3. By entering into an Agreement for Azure Services with us, you represent and warrant that you and/or your End Users (as applicable) accept the Azure Terms and you agree to pay us for all orders, subscriptions, products and services that we acquire from Microsoft for your and/or your End Users’ use of the Azure Services.

9.4. You must indemnify us from and against all and any liability, claims, losses, damages and expenses that may be suffered or incurred by us as a result of your, your End Users’ and/or your Personnel’s failure to comply with any Azure Terms.

9.5. Except to the extent contrary to non-excludable Applicable Law, we are not liable for any downtime or unavailability of any Azure Services.

10. Managed Software and Data Hosting Services

10.1. If “Software and Data Hosting Services” is specified in a Quotation, we will during the Term host Your Data, systems and software as specified in the Quotation in a third party data centre specified in the Quotation or where no data centre is so specified, as determined by us (Our Cloud).

10.2. The Managed Software and Data Hosting Services do not include any backup services. If you wish for us to back up any of Your Data, systems and software that we host in Our Cloud, you must enter into an Agreement with us for our provision of Managed Cloud Backup Services.

10.3. We will use our best endeavours to make the Managed Software and Data Hosting Services Available, as measured over the course of each calendar month during the term of the Agreement (each such calendar month, a Service Period), at least 99% of the time, excluding the time that the Managed Software and Data Hosting Services are not Available solely as a result of your or your End Users’ breach of the Agreement, a scheduled outage or a Force Majeure Event (the Availability Target). “Available” means the Managed Software and Data Hosting Services are available and operable for access by you and End Users materially in accordance with the Specifications. “Availability” has a corresponding meaning. “Actual Uptime” means the number of minutes in the Service Period that the Managed Software and Data Hosting Services are Available. “Percentage Uptime” = [Actual Uptime + total minutes in Service Period that the Managed Software and Data Hosting Services are not Available due to scheduled outages or Force Majeure Events or your and/or your End Users’ breach of the Agreement] ÷ total minutes in Service Period x 100.

10.4. At the conclusion of the Term or upon termination or suspension of the Software and Data Hosting Services, we will provide you with:

(a) access to a copy of Your Data hosted on Our Cloud for a period of 15 Business Days, after which time we will delete all of Your Data on Our Cloud and any virtual machines that we were hosting on your behalf; and

(b) transition services to assist you with the migration of any of Your Data downloaded by you from Our Cloud and in your possession or control to your nominated third party replacement supplier, for an additional fee to be agreed between you and us, or failing such agreement at our standard hourly rates.

11. Managed Microsoft 365 Services

11.1. If “Managed Microsoft 365 Services” is specified in a Quotation, we will during the Term:

(a) procure a subscription or licence for your End Users to access and use the Office 365 products and services (Microsoft 365 Services) as specified in the Quotation; 

(b) setup, configure and act as the administrator of your Microsoft 365 tenant, including by setting up your domain name(s) on the tenant, adding, editing, and removing user accounts, resetting account passwords, purchasing licence(s) on your behalf and allocating licences to user accounts; 

(c) install Microsoft 365 Services on your End Users’ virtual or physical machines (subject to you facilitating remote access to those machines);

(d) create Microsoft Office 365 groups, set aliases and set End User permissions; and

(e) provide training services for the Microsoft 365 Services to your Personnel set out in the Quotation on the agreed dates and times and at the location/s specified in the Quotation.

11.2. You acknowledge that your use of the Microsoft 365 Services is subject to the Microsoft Services Agreement between you and Microsoft at https://www.microsoft.com/en-au/servicesagreement/, Microsoft’s Privacy Statement at https://privacy.microsoft.com/en-us/privacystatement and any other Microsoft agreements, policies and statements referred to or attached to the Quotation (collectively, Microsoft Terms). In the event that we procure a software licence or subscription for any Microsoft 365 Services for you or any End User, then you agree to be bound by all applicable Microsoft Terms as shall be published and amended from time to time.

11.3. You hereby indemnify us from and against all and any liability, claims, losses, damages and expenses that may be suffered or incurred by us as a result of your or your End Users’ failure to comply with any Microsoft Terms.

12. Managed Cyber Security Services

12.1. If “Managed Cyber Security Services” are specified in a Quotation (Managed Cyber Security Services):

(a) we will deploy firewalls and other security products that are designed to maintain your network security (but only to the extent those firewalls and products are specified in the Quotation);

(b) we will use our best endeavours to identify security breaches, threats and vulnerabilities on the devices or networks specified in the Quotation as being covered by the Managed Cyber Security Services (Your Devices and Networks);

(c) you acknowledge that devices connected to Your Devices and Networks, particularly those connected to the internet, are subject to security threats and that although our Managed Cyber Security Services are designed to reduce the specific types of security breaches, threats and vulnerabilities specified in the Quotation or by the relevant Vendor, no representation, warranty or guarantee has been provided that our Managed Cyber Security Services will definitely be able to identify or eliminate all or any specific types of security breaches of, and threats or vulnerabilities to, Your Devices and Networks.

13. Other Managed Services

13.1. Where specified in a Quotation, we will supply or procure the supply of the following services:

(a) anti-virus services that are designed to detect computer viruses (Antivirus Services); and

(b) anti-spam services that are designed to manage, screen and block spam email sent to your network (Antispam Services);

(individually and collectively, Other Managed Services).

13.2. Other Managed Services are provided on a “best efforts” basis only. We are not liable for any viruses or spam that you or your End Users may receive despite your engagement of us to provide those services.

14. Definitions and Interpretation

14.1. In this Service Schedule, words in bold font in parentheses have the meanings given to them therein and words starting with a capital letter in this Service Schedule that are not otherwise defined in this Service Schedule have the meanings given to them in the Terms of Service. In addition, the following words have the following meanings:

End User means an end user specified in the Quotation.

Supported Item means a hardware or software item  specified as a supported item in the Quotation.

Vendor means a third party who owns the Intellectual Property Rights in any software or service, or is the manufacturer of any products, that we rely on, supply or resupply to you as part of Ordered Products and Services.

Your Cloud Infrastructure means your accounts or tenant on a relevant third party cloud platform, as specified in the Quotation. 

1. About this Service Schedule

1.1. This Service Schedule only applies where a Quotation that you and we execute expressly provides for our supply of one or more of the following services to you:

(a) Cybersecurity Hardware;

(b) Cybersecurity Software;

(c) Endpoint Security Management Services;

(d) Managed Cyber Security Services; and

(e) Cybersecurity Consulting Services.

1.2. This Service Schedule must be read in conjunction with our Terms of Service and the other documents that comprise an Agreement. 

2. Cybersecurity Hardware and Software

2.1. This clause 2 only applies where a Quotation provides for our supply to you of Third Party Security Products.

2.2. The Third Party Security Products provide you with access to security hardware and/or software (as applicable) that will be made available to you for you to use at Your Premises or in a hosted environment, as set out in the Quotation. 

2.3. If we provide you with recommendations concerning which Third Party Security Products to purchase, we do not represent that the Third Party Security Products will prevent or block all security attacks to your networks, computer systems and environment. 

2.4. Notwithstanding any communications between the parties, it is your responsibility to select the Third Party Security Products and associated options that are most appropriate for your cybersecurity needs and unless a Quotation provides for us to carry out a full audit of your IT environment, you warrant to us that you have conducted all investigations and made all necessary inquiries in order to satisfy this requirement.

2.5. Our provision of Third Party Security Products may be subject to a service level agreement provided or published by the Vendor of the Third Party Security Products from time to time.

2.6. You agree to use, and ensure that your End Users use, Third Party Security Products only in accordance with the Agreement and any applicable Vendor Terms.

2.7. Vendor Terms will, among other things, grant you a right to use the Third Party Security Products and specify associated obligations.  The Vendor Terms may be detailed in a licence issued by the Vendor and will be appended to or referred to in the relevant Quotation that we issue to you for the Third Party Security Products.

2.8. We will use our best endeavours to make Third Party Security Products available to you 24 hours a day, 7 days a week. However, you acknowledge that the Third Party Security Products may be unavailable at times, due to various factors including network maintenance, peak congestion or Your Equipment failure. You further acknowledge that other than in respect of guarantees that may be implied in the Agreement under the ACL or other non-excludable Applicable Law, we do not guarantee the speed, performance or quality of the Third Party Security Products, although certain credits or rebates may be available under applicable Vendor Terms. Where such credits or rebates are available and provided to us for Third Party Security Products that we supply to you, we will pass on those credits or rebates to you on a pro rata basis.

2.9. Emergency maintenance and scheduled maintenance in relation to Third Party Security Products may be required from time to time. Should this be necessary, we will provide as much notice as is reasonably practicable and where within our control, we will endeavour to conduct such maintenance at times that are unlikely to impact most clients.

2.10. Fees for Third Party Security Products may include establishment, monthly recurring (which may be invoiced in advance), usage-based and other associated charges (including for hardware, software and professional services). All such Fees will be set out in the Quotation.

2.11.  If there is a data allowance associated with a particular Third Party Security Product and it is not used within the period for which it is provided, it does not roll-over into a subsequent period.

2.12. You acknowledge that devices connected to a network, and particularly those connected to the Internet, are subject to security threats and other than in respect of guarantees that may be implied in the Agreement under the ACL or other non-excludable Applicable Law, no representation, warranty or guarantee is provided that Third Party Security Products will be able to completely eliminate all or any specific types of security vulnerabilities or threats on your network.

2.13. Without limiting clause 2.12 above (and without making any warranty or representation), we recommend that you take up all appropriate options within the Third Party Security Products and employ other security technologies in conjunction with the Third Party Security Products.

2.14. If you experience a fault that you consider is with a Third Party Security Product, you must use reasonable endeavours to determine if the fault is caused by your own network, Your Equipment or otherwise within your responsibility, prior to contacting us for support. Should you request after-hours support and the fault is found not to be related to a third Party Security Product, we may impose a professional service fee at our then current rates for the time we spent communicating with you about the fault and investigating it. In any event, support for Third Party Security Products is only available if you enter into an agreement that provides for our provision of support services in accordance with our Managed IT Services Schedule.

3. Endpoint Security Management Services

3.1. If “Endpoint Security Management Services” is specified in a Quotation, we will during the Term of the relevant Agreement:

(a) read and respond to any security notifications issued to us with respect to potential security issues reported by security management software that we install on any items expressly specified in a Quotation as being covered by Security Endpoint Management Services (Monitored Items); and

(b) install security updates and other software patches to the Monitored Items after receiving notice of the existence of the updates and patches where they are available to us free of charge or paid for by you.

4. Managed Cyber Security Services

4.1. If “Managed Cyber Security Services” is specified in a Quotation (Managed Cyber Security Services):

(a) we will deploy the firewalls and other security products specified in the Quotation that are designed to maintain your network security;

(b) we will use our best endeavours to identify security breaches, threats and vulnerabilities on the devices or networks specified in the Quotation as being covered by the Managed Cyber Security Services (Your Devices and Networks); and

(c) you acknowledge that devices connected to Your Devices and Networks, particularly those connected to the internet, are subject to security threats and that other than in respect of guarantees that may be implied in the Agreement under the ACL or other non-excludable Applicable Law, no representation, warranty or guarantee is provided that our Managed Cyber Security Services will be able to identify or eliminate all or any specific types of security breaches of, and threats or vulnerabilities to, Your Devices and Networks.

5. Cybersecurity Consulting Services

5.1. If “Cybersecurity Consulting Services” is specified in a Quotation, we will provide the consulting services in accordance with any requirements set out in the Quotation (Cybersecurity Consulting Services).

5.2. In relation to the Fees for Cybersecurity Consulting Services:

(a) the Quotation will set out:

5.2.a.1. a specified number of hours for our provision of Cybersecurity Consulting Services to you (Fixed Hours Engagement); or

5.2.a.2. a specified number of hours for our provision of Cybersecurity Consulting Services to you each month during the Term (Monthly Retainer);

(b) in respect of any Fixed Hours Engagement or Monthly Retainer, once you have used the specified number of hours set out in the Fixed Hours Engagement or Monthly Retainer, your engagement of our Cybersecurity Consulting Services shall be deemed to have come to an end until you buy further blocks of time (each, a Block of Time);

(c) if you require our Personnel to work in the evenings, weekends or public holidays and depending on the availability of Personnel, we can do so at your written request only at our after-hours rates. For clarity, after-hours work is any work done outside of Business Hours on Business Days.

5.3. In respect of any Monthly Retainer, any unused hours at the end of each month during the Term are forfeited.

5.4. You will be responsible for all costs and expenses of our Personnel for any onsite attendance, and for interstate travel, with respect to accommodation, meals and transport (collectively, Additional Expenses). You must reimburse us for all Additional Expenses that we incur within 7 days of the date of any invoice we issue to you for Additional Expenses.

6. Definitions and Interpretation

6.1. In this Service Schedule, words in bold font in parentheses have the meanings given to them therein and words starting with a capital letter in this Service Schedule that are not otherwise defined in this Service Schedule have the meanings given to them in the Terms of Service. In addition, the following words have the following meanings:

Third Party Security Products means the security hardware and/or software products specified in a Quotation.

Vendor Terms means a Vendor’s terms and conditions, as detailed in a licence agreement, end user agreement, terms of service or other similar customer agreement, issued by the Vendor and referred to in or appended to a Quotation that we issue to you for Third Party Security Products.

1. About this Service Schedule

1.1. This Service Schedule only applies where a Quotation that you and we execute expressly provides for our supply of one or more of the following services to you:

(a) Private Cloud Deployment Services;

(b) Managed Private Cloud Services;

(c) Managed Private Cloud Backup and Disaster Recovery Services; and

(d) Managed Private Cloud Web Hosting Services.

1.2. This Service Schedule must be read in conjunction with our Terms of Service and the other documents that comprise an Agreement.

2. Private Cloud Deployment Services

2.1. If “Private Cloud Deployment Services” is specified in a Quotation, we will provide the following services (Private Cloud Deployment Service Requirements):

(a) we will carry out all work reasonably required in order for us to develop a cloud migration and deployment strategy for the deployment of your cloud infrastructure specified in a Quotation (Your Cloud Infrastructure) (including where specified in a Quotation, by configuring and deploying applicable virtual machines, storage, databases, networking and automation);  

(b) conduct workshops with you as deemed appropriate by us in order for us to develop the cloud migration and deployment strategy; and

(c) deploy Your Cloud Infrastructure into a private cloud environment.

2.2. In the course of our development of the private cloud migration and deployment strategy for the deployment of Your Cloud Infrastructure, we will prepare a plan for the deployment (Deployment Plan). The Deployment Plan shall establish the time frames for deploying Your Cloud Infrastructure and the following information, as applicable:

(a) identification of all critical path milestones and the commencement and completion dates for such critical path milestones; 

(b) a detailed description of all activities to be performed by you and us respectively in connection with the deployment; and

(c) identification of all interdependent activities.

2.3. We will monitor the activities performed by any third-party suppliers set out in the Deployment Plan that are relevant to the deployment by: 

(a) monitoring each third-party’s performance of its implementation activities (to the extent possible); and

(b) promptly notifying you of their failure to perform their duties and obligations with respect to the deployment of Your Cloud Infrastructure if we become aware of any such failure.

2.4. Each party must notify the other party if it becomes aware that it, the other party or any third party have not carried out the tasks assigned under the Deployment Plan.

2.5. Each party will be entitled to an extension of time for completion of any one or more of the stages of the Deployment Plan if one or more of the following events occur:

(a) a Force Majeure Event occurs that results in a delay in the performance or that prevents the performance of any part of the Deployment Plan; or

(b) a delay is caused in whole or in part by the other party or any third-party supplier’s acts or omissions.

2.6. Upon completion of the Private Cloud Deployment Services, we will test Your Cloud Infrastructure deployed under the Deployment Plan in accordance with the testing procedures set out in the Deployment Plan (Acceptance Tests) in order to determine and verify that it has been deployed in accordance with the Private Cloud Deployment Service Requirements. We will submit to you a copy of all test results and you will be deemed to have accepted the Private Cloud Deployment Services and the relevant accounts setup on Your Cloud Infrastructure as part of the Private Cloud Deployment Services upon the successful completion of the Acceptance Tests. You must not use any instance of Your Cloud Infrastructure in a live environment until and unless the Acceptance Tests have been successfully completed.

2.7. If any account on Your Cloud Infrastructure that we have deployed into a production or live environment for you fails to pass the Acceptance Tests in accordance with the Deployment Plan, and we can demonstrate that the reason for the failure or non-compliance with the Deployment Plan is an issue or defect in Your Data or an issue or defect that we do not have express responsibility for in the Deployment Plan, then:

(a) you must promptly (within 7 days or as otherwise set out in the Deployment Plan) correct or procure the correction of the relevant issue or defect and we will re-test the relevant account on Your Cloud Infrastructure that has been deployed for you in accordance with the Deployment Plan; and

(b) if you fail to correct or procure the correction of the relevant issue within the relevant period referred to in paragraph ‎(a), Your Cloud Infrastructure that we have deployed for you shall then automatically be deemed to be accepted and fully compliant with this Agreement, notwithstanding the issue or defect.

2.8. If Your Cloud Infrastructure fails to pass the Acceptance Tests in accordance with the Deployment Plan due to our breach of the Deployment Plan, we will promptly rectify the failure at our sole cost.

2.9. Where we are required to perform data migration in accordance with the Private Cloud Deployment Service Requirements:

(a) we will extract the applicable data from one or more existing databases as specified in the Quotation (Legacy Data);

(b) we will convert the Legacy Data into a format suitable for Your Cloud Infrastructure (Converted Data); and

(c) we will export the Converted Data to Your Cloud Infrastructure.

2.10. We will use reasonable endeavours to ensure that the Converted Data is successfully integrated with and compatible with Your Cloud Infrastructure, as determined by us. We are not liable for any corruption or loss of data caused by you or a Force Majeure Event.

2.11. You represent and warrant that you have the right and authority to engage us to transfer any Legacy Data (whether in the form of Converted Data or otherwise) to Your Cloud Infrastructure and that the transfer will comply with Applicable Law. You must comply with your obligations with respect to data migration as set out in the Deployment Plan (including by ensuring integrity of the data, de-duplication of the data, assisting us with data extraction and providing data translation maps where required by us).

2.12. We are not liable for any failure to carry out Private Cloud Deployment Services where caused by your or your Personnel’s breach of the Deployment Plan or any provision of this clause 2.

3. Managed Private Cloud Services

3.1. If “Managed Private Cloud Services” is specified in a Quotation, we will:

(a) setup, configure and act as the administrator of the cloud platform specified in the relevant Quotation (Cloud Platform), including by setting up your domain name(s) on the tenant, adding, editing, and removing user accounts, resetting account passwords, purchasing licence(s) on your behalf and allocating licences to user accounts; 

(b) monitor uptime of the Cloud Platform; and

(c) provide the training services for the Cloud Platform to your Personnel set out in the Quotation, on the agreed dates and times and at the location/s specified in the Quotation.

3.2. You acknowledge that your right to access and use the Cloud Platform is subject to:

(a) you procuring a subscription and/or licence for your End Users to access and use the Cloud Platform; 

(b) any Vendor agreements or terms and conditions governing a user’s use of the Cloud Platform attached to or referred to in the relevant Quotation (collectively, Cloud Platform Vendor Terms).

3.3. By entering into an Agreement for Managed Private Cloud Services with us, you represent and warrant that you and/or your End Users (as applicable) have read and accept the Cloud Platform Vendor Terms and you agree to pay us for all orders, subscriptions, licences, products and services that we acquire from the Vendor for your and/or your End Users’ use of the Cloud Platform.

3.4. You must indemnify us from and against all and any liability, claims, losses, damages and expenses that may be suffered or incurred by us as a result of your, your End Users’ and your Personnel’s failure to comply with any Cloud Platform Vendor Terms.

4. Managed Private Cloud Backup and Disaster Recovery Services

4.1. If “Managed Private Cloud Backup and Disaster Recovery Services” is specified in a Quotation, we will during the Term supply or procure the supply of one of the following services (as specified in the Quotation):

(a) a service that backs up that part of Your Data (excluding any active or open files) that is specified in the Quotation at the frequency set out in the Quotation (Standard Backup); and/or

(b) a service that backs up that part of Your Data (including any active or open files) that is specified in the Quotation at the frequency set out in the Quotation (Enhanced Backup),

to facilitate the restoration thereof (the Backup Files) in the event that the Backup Files are lost or corrupted (the Managed Private Cloud Backup Services).

4.2. The Managed Private Cloud Backup Services will be configured to backup the Backup Files only in the locations in which they are held at the time that the configuration is carried out by us.

4.3. If you or any other person relocates Backup Files or if the Backup Files become unavailable or inaccessible to our backup service for any reason the Managed Private Cloud Backup Services will not be able to operate in its intended manner, we will not be liable for the failure of the Managed Private Cloud Backup Services to operate as intended and you will still be required to pay us for the Managed Private Cloud Backup Services.

4.4. You must:

(a) maintain your systems and networks so that we are able to access the Backup Files at all times; and

(b) immediately notify us if you relocate any Backup Files or if you become aware that the Managed Private Cloud Backup Services are not backing up the Backup Files as intended.

4.5. The Managed Private Cloud Backup Services will:

(a) only take backups of the Backup Files; 

(b) only backup on an incremental or complete basis; and

(c) delete copies of the Backup Files on a recurring basis,

but only as specified in the Quotation.

4.6. In the event of any data loss or corruption of the Backup Files, we will use our best endeavours to restore the Backup Files from the latest version of the Backup Files that is held by the Managed Private Cloud Backup Services.

4.7. At the conclusion of the Term, we will delete all Backup Files held by the Managed Private Cloud Backup Services.

5. Managed Private Cloud Web Hosting Services

5.1. If “Managed Private Cloud Web Hosting Services” is specified in a Quotation, we will host your website specified in the Quotation (Your Website) in a third party data centre specified in the Quotation or where no data centre is so specified, as determined by us (Our Cloud).

5.2. The Managed Private Cloud Web Hosting Services do not include backup services. If you wish us to backup any of Your Website that we host in Our Cloud, you must enter into a Quotation with us for our provision of Managed Private Cloud Backup Services.

5.3. We will use our best endeavours to make Managed Private Cloud Web Hosting Services Available, as measured over the course of each calendar month during the Term of the Agreement (each such calendar month, a Service Period), at least 99% of the time, excluding the time that the Managed Private Cloud Web Hosting Services are not Available solely as a result of your and/or your End Users’ breach of the Agreement, a scheduled outage or a Force Majeure Event (the Availability Target). “Available” means the Managed Private Cloud Web Hosting Services are available and operable materially in accordance with the Specifications. “Availability” has a corresponding meaning. “Actual Uptime” means the number of minutes in the Service Period that the Managed Private Cloud Web Hosting Services are Available. “Percentage Uptime” = [Actual Uptime + total minutes in Service Period that the Managed Private Cloud Hosting Services are not Available due to scheduled outages or Force Majeure Events or your and/or your End Users’ breach of the Agreement] ÷ total minutes in Service Period x 100.

5.4. Upon suspension of the Managed Private Cloud Web Hosting Services:

(a) we will provide you with access to a copy of Your Website files hosted on Our Cloud for a period of 15 Business Days after which time we will delete all of Your Website on Our Cloud; and

(b) we will provide transition services to assist you with the migration of Your Website files that you downloaded from Our Cloud in your possession or control, to your nominated third party replacement supplier, for an additional fee to be agreed between you and us, or failing such agreement at our standard hourly rates.

6. Definitions and Interpretation

6.1. In this Service Schedule, words in bold font in parentheses have the meanings given to them therein and words starting with a capital letter in this Service Schedule that are not otherwise defined in this Service Schedule have the meanings given to them in the Terms of Service

1. About this Service Schedule

1.1. This Service Schedule only applies in respect of a Quotation that you and we execute that expressly provides for our supply of one or more of the following professional services to you (collectively, the Professional Services):

(a) Project Scoping Services;

(b) Consulting Services;

(c) Implementation Services;

(d) Data Migration Services;

(e) Training Services; and

(f) Software Development Services.

1.2. This Service Schedule must be read in conjunction with our Terms of Service and the other documents that comprise an Agreement.

2. Fees

2.1. In relation to the Fees for Professional Services:

(a) the Quotation will set out: 

2.1.a.1. a specified number of hours for our provision of Professional Services to you (Fixed Hours Engagement); or

2.1.a.2. a specified number of hours for our provision of Professional Services to you each month during the Term (Monthly Retainer);

(b) in respect of any Fixed Hours Engagement or Monthly Retainer, once you have used the specified number of hours, your engagement of our Professional Services shall be deemed to have come to an end until you buy further blocks of time (each, a Block of Time); 

(c) if you require our Personnel to work in the evenings, weekends or public holidays and depending on the availability of Personnel, we can do so at your written request only at our after-hours rates. For clarity, after-hours work is any work done outside of Business Hours on Business Days.

2.2. In respect of any Monthly Retainer, any unused hours at the end of each month during the Term are forfeited. 

2.3. You will be responsible for all costs and expenses of our Personnel for any onsite attendance, and for interstate travel, with respect to accommodation, meals and transport (collectively, Additional Expenses). You must reimburse us for all Additional Expenses that we incur within 7 days of the date of any invoice we issue to you for Additional Expenses.

3. Project Scoping Services

3.1. If “Project Scoping Services” is specified in a Quotation:

(a) we will carry out a detailed analysis, investigation, and evaluation of the components of your information technology environment and enterprise infrastructure specified in the Quotation; 

(b) we will carry out all work, analysis and evaluation as reasonably required in order for us to deliver a report to you outlining our recommendations as to the products and services that we consider will meet your objectives specified in the Quotation (Enterprise Architecture Report); 

(c) you must make all resources, equipment, data and Personnel available to us that we reasonably require in order to prepare the Enterprise Architecture Report; and

(d) we will deliver the Enterprise Architecture Report to you.

3.2. The Project Scoping Services do not include implementation of any recommendations or the provision, implementation, licensing or supply of any products and services (and the associated planning that will be required for the implementation) specified in the Enterprise Architecture Report; all such products, work and services will be subject to the negotiation of separate Quotations.

3.3. Any quotations or pricing included in the Enterprise Architecture Report are estimates only and are not binding on us, unless specified otherwise.

4. Consulting Services

4.1. If “Consulting Services” is specified in a Quotation, we will provide the Consulting Services in accordance with any requirements set out in the Quotation.

5. Implementation Services

5.1. If “Implementation Services” is specified in a Quotation we will implement, setup and configure the products and services specified in the Quotation (Implementation Services) in accordance with the technical requirements, dates, activities and responsibilities specified in the Quotation (Implementation Workplan).

5.2. In the course of carrying out the Implementation Services, we will:

(a) monitor the implementation activities performed by any of our Third Party Providers; and

(b) notify you of any Third Party Provider’s failure to perform its duties and obligations.

5.3. If any products fail to pass the acceptance tests specified in the applicable Implementation Workplan (Implementation Tests), and we can demonstrate that the reason for the failure or non-compliance with the applicable Implementation Tests was caused by an issue or defect in Your Equipment or an issue, incompatibility or defect in or with your technical environment, then:

(a) you must promptly (within 7 days or as otherwise set out in the Implementation Workplan) correct or procure the correction of the relevant issue or defect and we will re-test the relevant products and services in accordance with the Implementation Workplan and Implementation Tests; and

(b) if you fail to correct or procure the correction of the relevant issue within the 7-day period referred to in clause 5.3(a), the products and services will be deemed to be accepted, notwithstanding the issue or defect.

5.4. If any products or services fail to pass the Implementation Tests in accordance with the Implementation Workplan due to our breach of the Implementation Workplan and you issue a written notice to us requiring us to rectify the non-compliance within 30 days of the completion of the failed Implementation Tests, we will promptly re-configure the relevant products or services in order to rectify the non-compliance.

6. Data Migration Services

6.1. This clause 6 will only apply if “Data Migration Services” is specified in a Quotation.

6.2. The Data Migration Services are limited to the following tasks:

(a) the development of a data migration and deployment strategy (Migration Plan) for the migration of data from the database specified in the Quotation (Legacy Data) to a target database (Target Database);

(b) extracting the Legacy Data;

(c) converting the Legacy Data into a format suitable for the target database specified in the Migration Plan (Converted Data); and

(d) importing the Converted Data into the target database,

as specified in the Quotation.

6.3. You must comply with your obligations with respect to data migration as set out in the Quotation (including, by ensuring the integrity of the data, de-duplication of the data, assisting us with data extraction and providing data translation maps, where required by us).

6.4. We will use reasonable endeavours to ensure that the Converted Data is successfully integrated with and compatible with the Target Database, but will not be liable for any incompatibility caused by any modification of your technical environment, the target database or your systems that we have not approved in writing.

6.5. You represent and warrant that you have the right to engage us to transfer any Legacy Data (whether in the form of Converted Data or otherwise) to the Target Database and that the transfer and conversion will comply with Applicable Law.

6.6. We are not liable for any failure to carry out Data Migration Services where caused by your or your Personnel’s breach of the Migration Plan or any provision of this clause 6.

6.7. For the avoidance of doubt, we have no obligation to encrypt any Legacy Data or Converted Data and/or provide access review or data loss prevention services as part of the Data Migration Services.

7. Training Services

7.1. If “Training Services” is specified in a Quotation, we will train your Personnel specified in the Quotation on the allocated number of days set out in the Quotation, at mutually agreed times (Training Services). The Training Services shall be delivered online unless otherwise agreed.

7.2. If the Training Services are carried out in person at your premises, you will be responsible for all costs and expenses of our Personnel in connection with travel to and attendance at the training (Training Expenses). You must reimburse us for all Training Expenses that we incur within 28 days of the date of any invoice that we issue to you for the Training Expenses.

8. Software Development Services

Waterfall Software Development

8.1. Clauses 8.2 – 8.4 will only apply with respect to “Waterfall Software Development Services” specified in a Quotation.

8.2. We will develop the software deliverables specified in the Quotation (the Deliverables) in accordance with the Specifications.

8.3. You must not use and/or implement any Deliverables into your environment until they pass the applicable acceptance tests set out in the Quotation.

8.4. If you notify us that a Deliverable fails to pass an acceptance test:

(a) we will promptly (within 21 days or as otherwise agreed) correct or procure the correction of the relevant issue or defect and re-test the Deliverable; and

(b) if we do not correct or procure the correction of the relevant issue or defect after 3 rounds of acceptance testing, you may terminate the part of the Agreement that applies to that Deliverable.

Agile Software Development

8.5. Clauses 8.6 – 8.8 will only apply with respect to “Agile Software Development Services” specified in a Quotation

8.6. We will develop software for you set out in the Quotation (the Deliverables) via an agile development process. For the purposes of the Agreement, “agile development process” means a process by which you can change the priority and tasks that you wish us to carry out during the development of the Deliverables.

8.7. The Quotation will specify the number of weekly, fortnightly or monthly software development sprints under which the Deliverables will be developed (each a Sprint), their duration and a timetable for us to meet with you to discuss each forthcoming Sprint, (each a Sprint Meeting). At each Sprint Meeting, we will discuss the product backlog, Sprint requirements and acceptance test criteria for each of the Deliverables (Acceptance Test).

8.8. You may modify the product backlog, Sprint requirements and acceptance test criteria at any Sprint Meeting in your absolute discretion. During each Sprint, we agree to use reasonable endeavours to develop the Deliverables, prior to the end of the Sprint, in accordance with the Sprint requirements and acceptance test criteria that apply to that Sprint and: 

(a) we will not be liable for any non-compliance with the Sprint requirements and acceptance test criteria beyond our reasonable control, including because there is insufficient time in the Sprint to develop the Deliverables or where the Deliverables developed during the Sprint include bugs and errors; and

(b) you hereby release us from any claims that you would otherwise have against us concerning any non-compliance with the Sprint requirements and acceptance test criteria beyond our reasonable control.

8.9. Subject to clause 8.10, IPR in each Deliverable developed by us in the course of providing software development services under this clause 8 (Software Development Services) shall vest in you upon your payment of the Fees associated with the Deliverable.

8.10. Notwithstanding clause ‎8.9:

(a) the IPR in any materials (including any software tools, libraries, Source Code, Object Code and reports and other intellectual property) that we develop prior to the Commencement Date (or enhance during the term of the Agreement) or that we develop outside the scope of the Agreement (collectively, Background Material) will not vest in you and are owned by, and vest wholly in, us at all times;

(b) nothing in the Agreement requires us to supply any Background Material (including any Source Code or Object Code therein) to you at any time;

(c) if we supply any Background Material to you, we retain ownership of all IPR therein and we grant you a limited, non-exclusive, non-transferable, non-sublicensable royalty-free licence to use the Background Material but only in the form that we deliver it to you, and only for the term specified in the relevant Quotation; 

(d) you must not use any Background Material without our prior written consent; and

(e) nothing in the Agreement affects the ownership of all and any Background Material or third-party owned software or other intellectual property.

9. Definitions

9.1. In this Service Schedule, words in bold font in parentheses have the meanings given to them therein and words starting with a capital letter in this Service Schedule that are not otherwise defined in this Service Schedule have the meanings given to them in the Terms of Service.

1. About this Service Schedule

1.1. This Service Schedule applies with respect to Quotations that are executed by you and us for the supply of:

(a) hardware that you purchase from us (Purchased Hardware); 

(b) hardware that you rent from us (Rented Hardware); and

(c) third party software that you license or procure from us (Third Party Software).

1.2. This Service Schedule must be read in conjunction with our Terms of Service and the other documents that comprise an Agreement.

2. Delivery of Hardware

2.1. Where a Quotation is entered into for the supply of hardware to you:

(a) we will:

(i) pack, or arrange for the packing of, the hardware suitable for delivery to the delivery location specified in the Quotation; and

(ii) arrange for the delivery of the hardware to the delivery location specified in the Quotation, subject to your payment of any customs, duties and taxes that may be levied by reason of the importation of the hardware, and any Fees that the Payment Terms require to be paid prior to delivery (where applicable); and

(b) you must:

(i) provide us with access to the delivery location; and

(ii) carry out all necessary and relevant preparations at the delivery location as is reasonably required for us to deliver the hardware.

(c) risk in loss or damage to the hardware that occurs after the hardware is delivered to the delivery location passes to you immediately upon its delivery to the delivery location.

2.2. It is agreed that:

(a) until and unless the Fees for Purchased Hardware are paid in full to us in accordance with the Payment Terms; and

(b) at all times, in the case of Rented Hardware,you:

(i) agree that this Service Schedule constitutes a Security Agreement in our favour in respect of each item of the hardware;

(ii) consent to us effecting a registration on the PPSR in relation to the Security Interest arising under or in connection with this Service Schedule with respect to the hardware;

(iii) must provide all access, assistance and cooperation required by us to effect registration and/or to enable us to exercise our rights in connection with the hardware; 

(iv) irrevocably appoint us to be your attorney to do all acts and things necessary to ensure our retention of title to the hardware, including the registration of any Security Interest in our favour with respect to the hardware;

(v) must store the hardware (until it is returned to us) in satisfactory condition and separately from all other goods, so that such hardware remains readily identifiable as our goods and from other goods held by you;

(vi) must not damage or destroy the hardware;

(vii) must not register any Security Interest or allow any third party to register any Security Interest in respect of the hardware without our prior written consent;

(viii) must not destroy, deface or obscure any identifying mark or packaging on or relating to the hardware;

(ix) must not allow any person to have or acquire any Security Interest in the hardware; 

(x) must not remove the hardware from the delivery location;

(xi) agree that we may repossess the hardware if payment for the hardware is not made in accordance with the Payment Terms or the Agreement is terminated; and that in such circumstances you will provide us with full and unfettered access to the hardware for the purposes of recovering possession at your sole cost and expense;

(xii) waive the right to receive any notice under the PPSA with respect to the hardware, except where the notice must be provided under a provision of the PPSA that cannot be excluded; and

(xiii) must indemnify us from and against, any loss, damage, costs and expenses incurred in connection with the registration of a Security Interest over the hardware and/or any action taken by us to protect our Security Interests in the hardware.

2.3. You grant us and our representatives an irrevocable licence to enter any land or premises for the purpose of inspecting, retaking possession of or otherwise enforcing our rights in respect of Rented Hardware and/or Purchased Hardware in respect of which the Fees have not been paid in full to us in accordance with the Payment Terms (including by breaking any locks, doors and windows as required to access such hardware and dismantling anything to which such hardware has been fixed) and hereby indemnify and hold us harmless from and against any claims for damage to property or personal injury that may result from us or our representatives exercising any rights under the licence referred to in this clause 2.3. If we retake possession of any such hardware, we may deal with it as we think fit.

3. Supply of Software

3.1. Where a Quotation is entered into for the supply of Third Party Software (whether pre-installed on hardware or otherwise)  or for access to or a subscription to Third Party Software on a software-as-a-service basis, to you:

(a) you must, prior to accessing or using the Third Party Software for any reason, enter into an end user licence agreement, terms of service or other customer agreement with the applicable Third Party Provider (a Licence Agreement), a copy of which is accessible via the hyperlinks specified in or attached to the Quotation or the relevant Documentation;

(b) your rights and obligations in respect of the Third Party Software are governed by the applicable Licence Agreement;

(c) except and to the extent otherwise provided in the relevant Licence Agreement, you shall be granted a non-exclusive and non-transferable licence to use the Third Party Software in accordance with the Documentation provided by us to you, in the form in which it is made available by us, to you for your internal business purposes only (Licence);

(d) the IPR for each Third Party Software is owned by the relevant Third Party Provider and in paying us for the Third Party Software, you are purchasing the Licence only, and not the IPR in the Third Party Software;

(e) you must install any patches or updates as required to correct any bugs or errors in the Third Party Software; 

(f) the Licence will terminate immediately upon termination of the Agreement or breach, termination or expiry of the Licence Agreement; and

(g) you must not register or assist other third parties to register a Security Interest in any Third Party Software provided to you.

4. Information, specifications and samples

4.1. All information, specifications and samples provided by us in relation to hardware or software to be delivered under the Agreement by us are approximations only and, subject to any guarantees under the Australian Consumer Law, small deviations or slight variations from them which do not substantially affect your use of them do not entitle you to reject them upon delivery, or to make any claim in respect of them.

4.2. You have rights under Applicable Law in respect of hardware and software that we supply to you, including the Australian Consumer Law. Please see https://consumer.gov.au/ for more information.

5. Setup, Installation and Configuration of Hardware and Software

5.1. Except to the extent specified in a Quotation, we have no obligation to set up, install or configure any hardware or software.

5.2. We will use our best endeavours to supply and/or procure the setup, installation or configuration of hardware and software, to the extent specified in a Quotation, substantially in accordance with any Specifications or as otherwise determined by us. 

6. Support, Maintenance and Custom Development

6.1. Support, maintenance and custom development is not governed by this Service Schedule. Please contact us if you wish to enquire about those services.

7. Definitions and Interpretation

7.1. In this Service Schedule, words in bold font in parentheses have the meanings given to them therein and words starting with a capital letter in this Service Schedule that are not otherwise defined in this Service Schedule have the meanings given to them in the Terms of Service or the Personal Property Securities Act 2009 (Cth) (PPSA), unless the context indicates otherwise.