This is the Master Services Agreement, the terms of which shall apply to services supplied to consumers BETWEEN Datcom Cloud Pty Ltd (ABN 98 081 956 443) of Level 12, 44 Market Street, Sydney, NSW 2000 (Datcom) AND the Client.
RECITALS
- The Client has completed and signed a Quote which sets out the Services which the Client has agreed to engage Datcom to provide.
- The Client and Datcom have agreed to enter into this Master Service Agreement and the Service Agreements related to the Services to enable the parties to carry out the Services nominated by the Client in the Quote.
- Any Service Agreement entered into between Datcom and the Client at any time will be subject to and incorporate the terms of this Master Services Agreement.
- Each Quote will be annexed to the relevant Service Agreement or vice versa.
IT IS AGREED:
1. Service
1.1. The Client engages Datcom to provide the Service, as selected by the Client and as set out in each approved Quote, in accordance with the relevant Service Agreement.
1.2. This Agreement is to be read in conjunction with each Quote and Service Agreement entered into at any time between Datcom and the Client.
1.3. The terms of this Master Services Agreement apply to each Service Agreement mutatis mutandis.
1.4. This Agreement and each Service Agreement becomes binding and unconditional upon execution of a Service Agreement.
1.5. Any Datcom SLA and SLA entered into in connection with the Services may be annexed to and form part of the terms and conditions of a Service Agreement.
2. Charges and Payment
2.1. Fees and charges for each Service are set out in the Service Agreements.
2.2. The Billing Commencement Date for each Service will be the relevant Service Availability Date.
2.3. Where the Client requests, or it is deemed reasonably necessary in Datcom’s sole discretion that additional services to those specified in a Quote or Service Agreement are required in order for the agreed Services to be supplied, such services will be provided at the rates set out in the Schedule of Rates.
2.4. Any work carried out outside of Business Hours, will incur a minimum charge and attract higher rates as set out in the Schedule of Rates.
2.5. In each Service Agreement:
(a) prices are exclusive of GST;
(b) payments are due 14 days from the date of any invoice; and
(c) overdue payments will attract at late fee of $15 and will accrue interest calculated on a daily basis at the rate of 2% above the prime overdraft lending rate as fixed by the Commonwealth Bank of Australia.
2.6. The Quote identifies all fees and charges of which Datcom is aware (following reasonable enquiry) at the date of the relevant Service Agreement.
2.7. Charges will commence accruing on the Billing Commencement Date and utilisation of the Service is not a pre-condition to the Charges being due and payable.
2.8. Charges may be varied where any relevant fact, matter, thing or circumstance, not available as at the date of this Agreement, becomes available and notwithstanding that additional information was disclosed or was known after execution of this Agreement, Datcom reserves its right to alter the fees and charges as it deems fit.
2.9. Datcom will endeavor to invoice the Client monthly but reserves the right to back bill the Client in the event of oversight, inadvertence, practicality or otherwise and any delay or waiver of a right is not deemed to be prejudicial to Datcom, or in any way bar such a right being exercised in future.
3. Term and Renewal
3.1. The term of each Service Period shall commence on the relevant Service Availability Date and end on the relevant Expiry Date unless otherwise terminated in accordance with this Agreement.
3.2. Each Service Agreement will be renewed in the following circumstances:
(a) by written notice from the Client to Datcom, no later than 90 days prior to the end of the Service Period;
(b) where the Client does not give Datcom notice under paragraph (a) above, the term of any Service Agreement will on each anniversary of the commencement date of the Service Agreement, automatically renew for a further period of 12 months; or
(c) if, no later than 90 days prior to the end of the Service Period, the Client elects to continue the Service under the Service Agreement for a term shorter than 12 months, the Service Agreement will be extended on a month by month basis and the price of the Services will increase by 15% price above the price applicable immediately prior to the last day of the current term.
4. Termination
4.1. Each of the events in Clauses 4.2, 4.3 and 4.4 is a termination event under this Agreement and any Service Agreement (Termination Event) entitling the relevant party to terminate this Agreement and any Service Agreement by serving the other party with a termination notice (the Termination Notice).
4.2. Either party may terminate if a party:
(a) commits an act of insolvency;
(b) has had an application presented against it, an order made, a resolution passed or a meeting summoned or convened for the purpose of considering a resolution for its winding up; and/or
(c) has had a receiver, or receiver and manager appointed over its assets or undertaking or any part of them; and/or
(d) has had an administrator, trustee, liquidator or provisional liquidator appointed for all or any part of its assets or undertaking; and/or
(e) has entered into or resolved to enter into an arrangement, composition or compromise with or assignment for the benefit of its creditors generally or any class of creditors or proceedings are commenced to sanction such an arrangement, composition or compromise other than for the purposes of a bona fide scheme of solvent reconstruction or amalgamation.
4.3. Datcom may terminate in any of the following circumstances:
(a) the Client has ceased to pay its debts or suspended payment generally or would cease or threaten to cease to carry on its business or become insolvent or be presumed by the court to be insolvent within the meaning of s 459C of the Corporations Act; and/or
(b) the Client breaches this Agreement (which includes any Service Agreement) and that breach is incapable of remedy; and/or
(c) the Client breaches this Agreement (which includes any Service Agreement) and that breach is capable of remedy and if within 20 Business Days after written notice by Datcom, that breach has not been remedied; and/or
(d) Datcom reasonably believes the Client has repudiated a Service Agreement.
4.4. The Client may terminate for any reason upon providing Datcom with 90 days’ written notice and payment of the Termination Payment.
4.5. Without prejudice to any other rights, upon the occurrence of the date specified in any Termination Notice, the Client must cease the use of all Services and any Applications.
4.6. On or at any time following the issuance of a Termination Notice, Datcom shall by notice to the Client declare:
(a) the amount, together with accrued interest, of all monies accrued or outstanding under any Service Agreement;
(b) the amount of the fees payable under any Service Agreement from the proposed date of termination until the Expiry Date;
(c) the amount of any charges of third parties for early disconnection incurred by Datcom by reason of the termination;
to be due and payable, whereupon they shall become immediately due and payable (the Termination Payment).
4.7. Upon receipt of the Termination Payment by Datcom, Datcom will provide the Client with any IT documentation and passwords which in Datcom’s opinion is reasonably required by the Client, and return any keys or security access cards or any other property belonging to the Client.
4.8. Datcom may retain any property of the Client as security for payment of the Termination Payment until such payment is made by the Client to Datcom.
4.9. Datcom will upon the Client’s written request, provide the Client with Post Termination Services. Post Termination Services will be charged to the Client in accordance with the Schedule of Rates at the time the Post Termination Services are requested.
5. Suspension and Maintenance Windows
>5.1. Datcom may suspend the provision of the Services in an emergency if it, in its sole discretion, considers it necessary to do so to safeguard the provision of Services to other clients, to prevent unlawful action or for any other reason Datcom deems it reasonable to do so.
>5.2. Datcom may shut down the Services during regularly scheduled maintenance windows in order to perform regular maintenance, update or upgrade hardware or software, or for other similar purposes (the Maintenance Windows).
5.3. Maintenance Windows will be scheduled by the Service Delivery Department outside Business Hours and will be notified to the Client.
5.4. A Maintenance Window may be extended either (a) as mutually agreed by the parties or (b) where in Datcom’s reasonable opinion and sole discretion the extension of such Maintenance Window is necessary to maintain the Services.
6. Modification and Change of Services
6.1. Datcom reserves the right to modify the Services (including substitution of hardware or software and relocation of operations) so long as no such modification materially and adversely affects the quality of the Services or breaches any of Datcom’s express obligations.
6.2. The Client may request Datcom to change the character or scope of the Services as provided from time to time (a Variation) under a Service Agreement by notifying Datcom, who in turn will provide the Client with a Variation Form which the Client must complete and return to Datcom. Approval or rejection of the Variation is in the sole discretion of Datcom and no Variation can result in a reduction of price during the continuation of the Service Agreement.
7. Delay
7.1. In the event of a Delay in connection with any Service, the parties must take reasonable steps to minimise any resulting loss, damage or delay.
7.2. A party affected by a Delay must notify the other with an estimate of the necessary extension of time and the other party:
(a) must not unreasonably refuse the extension of time if it is less than 3 months; or
(b) may terminate the Agreements if the extension of time is more than 3 months.
7.3. Where a Delay results from any objections from any building owner or occupier at the Site to the implementation of the Services, the timeframe for delivery will extend until the expiry of the objection process. Where the objection is sustained, subject to any third party carrier decisions, Datcom may terminate the Agreements without penalty.
8. Defined Abuse and Prohibited Use
8.1. Datcom reserves the right to suspend without prior notice, and terminate immediately upon notice, some or all of the Services if:
(a) the Client commits an act of Defined Abuse and/or Prohibited Use or,
(b) if in Datcom’s reasonable opinion, the Client’s use of the Service adversely affects, or could adversely affect, Datcom’s operations or delivery of the Services to other clients.
8.2. In the event of an incident of Defined Abuse and/or Prohibited Use, the Parties will cooperate to identify and rectify issues so that Services may be restored as soon as reasonably possible. The foregoing rights and obligations are without prejudice to other remedies under the Agreement, including rights to terminate on the occurrence of a Termination Event.
9. Exclusivity
9.1. The Client will ensure that access to the Client Infrastructure is limited to Datcom engineers and employees of the Client and where Datcom’s advises necessary, Service Providers and Datcom and any Service Provider may access the Client Infrastructure when necessary to perform its obligations.
9.2. The Client guarantees that Datcom will have the exclusive administrative access to any Client’s network it is engaged to manage.
10. Client Data
10.1. The level and degree of data security measures that Datcom adopt, will be determined by the extent of the Services commissioned by the Client.
10.2. In respect of data security, it is expressly agreed and acknowledged between the parties that the Client must at all times use, monitor, enforce and adopt all reasonable and necessary measures and systems for the security of its data.
10.3. Datcom will take reasonable steps to protect the Client Data, in accordance with industry standard best practice, but provides no warranties and makes no representations or offers any guarantees with respect to Client Data and all liability in this regard is expressly excluded.
10.4. The Client is responsible for ensuring that the security of the Services is appropriate for the Clients intended use and the storage, hosting, or processing of Data.
10.5. The Client expressly agrees and acknowledges that any loading of Client Data and any software or other similar requirements in connection with the Services, are entirely at the Client’s risk.
10.6. The Client agrees to take all reasonable precautionary measures to safeguard Client Data prior to any transmission, loading and installation of data, including but not limited to a Back-Up of data and encrypting any data, regular security audits, application of the latest security patches, disabling unnecessary ports, archiving procedures and any other number of measures that might be taken depending on the critical and sensitive nature of the Client Data.
10.7. Datcom may remove the Client Data or any other data, information, or content of data or files used, stored, processed or otherwise by the Client or End Users that Datcom, in its sole discretion, believes to be or is:
(a) a virus;
(b) illegal, libelous, abusive, threatening, harmful, vulgar, pornographic, or obscene;
(c) used for the purpose of spamming, chain letters, or dissemination of objectionable material;
(d) used to cause offense, defame or harass; or
(e) infringing the intellectual property rights or any other rights of any third party.
11. Client responsibilities
11.1. The Client must, at all times, hold any and all relevant and applicable insurances for its business, its operations, including any loss or damage foreseeable arising from this Agreement, the Services and any other reasonable incidental matters covering any reasonable or foreseeable loss and damage.
11.2. The Client shall comply with Datcom’s request for any and all information, documentation, passwords, licence keys, information and any and all such information or material or otherwise, required by Datcom for the provision of the Services.
11.3. The Client shall appoint an Authorised Representative.
11.4. The Client shall notify Datcom of any change in Authorised Representatives.
11.5. Where, for any reason, Datcom provides Service Equipment, then the Client must ensure that such Service Equipment, is kept in good condition and free from any damage or alteration.
11.6. At all times, the Client and its employees and officer shall and shall procure that any invitee, or any person or entity, by through or on its behalf with access to, control of, permission to use, or responsibility for, Client Infrastructure and networks will:
(a) ensure that there is no unauthorised access to the Service Equipment;
(b) ensure that no harm or damage occurs to the Service Equipment;
(c) not commit, cause or allow any breach (or do anything which might put Datcom or its suppliers in breach) of any law, rule, regulation, government direction or applicable industry standard or code;
(d) not use the Service to breach the rights of any person or entity, including, but not limited to defamation or infringement of any intellectual property rights;
(e) not commit a Defined Abuse; or
(f) notify Datcom immediately of any security breach (suspected or otherwise) of the Service (including but not limited to unauthorised login, or lost or stolen password and similar information);
11.7. At all times, the Client and its employees and officers shall and shall procure that any invitee, or any person or entity, by through or on its behalf with access to, control of, permission to use, or responsibility for, Client Infrastructure and networks will not:
(a) reverse engineer, disassemble, decompile or re-create the source code from the software; or
(b) copy, translate, modify or create derivative works based on the software or accompanying written materials; or
(c) distribute, sell, assign, pledge, sublicense, lease, deliver, deal with or otherwise transfer or grant access to the software nor permit any other person to do any of the foregoing; or
(d) remove from the software any of the trademarks, trade names, logos, patent or copyright notices or markings or add same to the software.
11.8. The Client, or any person or entity by, through or on its behalf, or any officer, employee, invitee or other similar person or entity must not seek or attempt to use or deal with in any way (including copying or amending) Datcom’s Intellectual Property, including but not limited to source code and Software.
12. Client acknowledgments
12.1. The Client acknowledges and accepts that:
(a) it shall be responsible for any fees and costs associated with any Service Provider;
(b) it shall be bound by the Datcom SLA, the SLA and terms and conditions of any Service Provider to which the Client may have the benefit of;
(c) title in any Service Equipment sold to the Client by Datcom does not pass to the Client until full payment for those goods are made by the Client to Datcom in cleared funds;
(d) Datcom may be a reseller of the Services and that where applicable, the Client is solely liable and responsible for:
(i) selecting End User Protected Data and devising, monitoring and enforcing policies for the protection of that data; and
(ii) establishing and maintaining appropriate backup policies for End User Protected Data, maintaining adequate bandwidth to support the desired level of protection and for maintaining other system resources required to run the Service;
(e) Datcom does not and cannot warrant or guarantee the reliability, timing or operation of any Service Provider engaged in connection with the Services;
(f) unless a Service Agreement provides otherwise, Datcom is not advising on, or providing recommendations with respect to Client Infrastructure, or in connection with any technology solution, security or otherwise and where the Client elects to retain Client Infrastructure, Datcom cannot guarantee performance of that Client Infrastructure;
(g) Datcom has no obligation, directly or indirectly, express or implicit, from any term or action arising from this Agreement or any Service Agreement to monitor or review Client Data, usage, equipment or otherwise as part of the Services, except where required to by law;
(h) Datcom provides no guarantee of the performance or effectiveness of any third party applications, intellectual property or services that the Client may use in conjunction with the Services; and
(i) Datcom does not guarantee the performance, reliability, suitability or stability of the Services.
13. Intellectual Property / Software Licence / Confidential Information / Title in Goods
13.1. Both parties agree not to infringe the intellectual property rights or misappropriate the trade secret of the other.
13.2. Datcom grants to the Client a non-transferable and non-exclusive personal licence (the Licence) to use any software provided by Datcom solely in connection with the operation of the Services.
13.3. The Licence shall be subject to compliance by the Client of this Agreement and the relevant Service Agreement, as well as full payment of any applicable or associated fees and charges. Datcom, in its sole and absolute discretion may impose any other condition on the Client in granting the Licence, which must be complied with by the Client as a precondition to the Licence.
13.4. Both parties agree to keep all confidential information of the other confidential.
13.5. Any goods owned by third parties (for example routers) must be returned at Datcom’s instruction and at the Client’s expense. Datcom will keep a register of these goods and the Client must sign acknowledging receipt of these goods when delivered to the Site.
14. Liability, Indemnity & Insurance
14.1. To the fullest extent permitted by law, Datcom accepts no liability for any loss or damage sustained by the Client of any kind howsoever arising:
(a) whether directly or indirectly from the Services, the provision of any advice, recommendations, action or inaction of Datcom, or any incidental matters; or
(b) in relation to breaches of security, loss of information, corruption or otherwise in connection with Client Data; or
(c) as a result of providing the Services.
14.2. At all times and in any event, the maximum liability for which Datcom will be liable to the Client is the lesser of:
(a) the amount equivalent to the value of one month’s invoice; or
(b) cost of replacing the Services.
14.3. The Client at all times indemnifies Datcom for any loss or damage occasioned by, or contributed to by:
(a) the Client failing to act in accordance with recommendations made by Datcom that results in loss or damage, including interruption to the Services;
(b) the negligence, recklessness, misuse, or other action or inaction by, or on behalf of, or through the Client, its employees, agents, invitees, officers; or
(c) as a result of any false, misleading, incomplete, ambiguous or incorrect data or information supplied to Datcom; or
(d) any Claim made against Datcom arising from any breaches of this Agreement or the Services, whensoever and howsoever arising, related to in any way, whether directly or indirectly this Agreement or the Services; or
(e) any suspension or reactivation costs and charges to Datcom and/or any third party liabilities incurred by Datcom in providing services to the Client.
14.4. Datcom reserves the right to charge the Client for any lost, stolen, damaged or altered Service Equipment.
14.5. Datcom shall maintain public liability insurance.
15. Dispute Resolution
15.1. If a difference or dispute between the parties arises in connection with the subject matter of this Agreement (including any Service Agreement), including a dispute concerning:
(a) a direction or request by Datcom; or
(b) an invoice; or
(c) payment of any kind due under this Agreement; or
(d) a Claim,
(a Dispute) then within 14 days, either party shall give the other a written notice of Dispute adequately identifying and providing details of the Dispute and all evidence supporting same.
15.2. Within 14 days after receiving a notice of Dispute, the parties shall confer at least once to resolve the Dispute or to agree on methods of doing so. At every such conference each party shall be represented by a person having authority to agree to such resolution or methods. All aspects of every such conference except the fact of occurrence shall be privileged.
15.3. Only if the Dispute has not been resolved within 30 Business Days of service of the notice of Dispute or a further period agreed between the parties, then, the parties are entitled to proceed to litigation.
16. Notices
16.1. General
(a) Unless otherwise stated in this and subject to Clause 16.2 (Notices via email) a notice, consent or other communication given including but not limited to a request, certificate, demand, consent, waiver or approval, to or by a party to this Agreement (Notice):
(i) must be in legible writing in English;
(ii) must be addressed to the party to whom it is to be given (Addressee) at the address or email address given below or at any other address or email address as notified by the Addressee for the purposes of this clause:
(A) If to Datcom:
Address: Level 12, 44 Market Street, Sydney, NSW 2000
Attention: Mr Rube Sayed
Position: General Manager
Email: [email protected]
(B) If to the Client:
To the Client or Authorised Representative described in the Quote and / or Service Agreement.
(iii) must be signed for and on behalf of the sender (if an individual) or an officer of the sender;
(iv) must be either:
(A) Delivered by hand or prepaid mail (by airmail if sent to or from a place outside Australia) to the Addressee; and/or
(B) Sent by email to the Addressee’s email account;
(v) is deemed to be received by the Addressee in accordance with clause 18.1(c).
(b) If:
(i) a party changes its address and fails to notify the other party of this change and the new address, delivery of Notices marked to the attention of the Addressee at that new address are deemed compliant with the notice obligations under this clause; and
(ii) an individual named in clause 18.1(a)(ii) ceases to work in the role specified or ceases to work for the Addressee and the Addressee fails to notify the other parties, of an alternative individual, delivery of notices marked for the attention of an individual in the same or equivalent at the Addressee is deemed compliant with the notice obligations under this clause;
(iii) an individual associated with the email address in clause 18.1(a)(ii) ceases to work in the role specified or ceases to work for the Addressee and the Addressee fails to notify the other parties of an alternative email address, Notices delivered to a manager or equivalent level personnel at the Addressee are deemed compliant with the notice obligations under this clause;
(c) without limiting any other means by which the sender may be able to prove that a Notice has been received by the Addressee, a notice is deemed to be received:
(i) if delivered by hand, when delivered to the Addressee;
(ii) if sent by post, on the 6th Business Day after the date of posting or if to or from an address outside Australia, on the 10th Business Day after the date of posting; or
(iii) if sent by email:
(A) when the sender receives an automated message confirming delivery;
(B) 30 minutes after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated email that the message has not be delivered,
whichever happens first,
but if the delivery or receipt is on a day which is not a Business Day or is after 5.00 pm (Addressee’s time) it is deemed to be received at 9.00 am on the following Business Day.
16.2 Notices sent by email
(a) Notices delivered by email need not be marked for attention in way specified in clause 16.1, however the email must state the first and last name of the sender.
(b) Notices sent by email are taken to be signed by the sender.
17. Governing law and jurisdiction
>17.1. This Agreement and any Service Agreement is governed by the laws of the State of New South Wales.
17.2. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales and any court competent to hear appeals from those courts.
18. Intentionally Deleted.
18.1. Intentionally Deleted.
19. Entire Agreement
19.1. This Agreement together with any Quote and Service Agreement supersedes all previous agreements, understandings, negotiations, representations and warranties about its subject matter and embodies the entire agreement between the parties about its subject matter.
20. Authority
20.1. Each party warrants that it has the full power and authority to enter into this Agreement and that entering into this Agreement by that party has been duly authorised and represents a proper exercise of the powers of that party.
21. Severability
21.1. As far as possible all provisions of this Agreement must be construed so as not to be invalid, illegal or unenforceable.
21.2. If anything in this Agreement is unenforceable, illegal or void then it is severed and the rest of the Agreement remains in force.
21.3. If any provision cannot be read down, that provision will be void and severable and the remaining provisions of this Agreement will not be affected.
22. Cumulative Rights
22.1. Except as expressly provided in this Agreement, the rights of a party under this Agreement are in addition to and do not exclude or limit any other rights or remedies provided by law.
23. Waiver and variation
23.1. Neither this Agreement nor any provision of it or right created under it may be waived or varied except in writing signed by the party or parties to be bound.
24. Relationship of parties
24.1. Except as expressly provided in this Agreement,
(a) nothing in this Agreement is intended to constitute a fiduciary relationship, employment relationship or an agency, partnership or trust; and
(b) no party has authority to bind any other party.
25. Assignment / Successors and assigns
25.1. A party must not assign or novate this Agreement or any Service Agreement or otherwise deal with the benefit of it, or a right under it, or purport to do so without prior written consent of the other party, such consent not to be unreasonably withheld or delayed.
25.2. This Agreement binds and enures for the benefit of the Parties, their respective successors and permitted assigns and shall bind the Parties in their personal and representative capacities.
26. Non-merger
26.1. Each representation, covenant and obligation under this Agreement shall continue in full force and effect until such representation, obligation or covenant is satisfied or completed.
27. Legal advice
27.1. The Parties acknowledge that they have each the opportunity to obtain legal advice in relation to this Agreement and the Service Agreements, its force and effect, and all matters relating to or arising out of this Agreement.
28. Interpretation and construction
28.1. This interpretation clause applies mutatis mutandis to each Service Agreement and Quote.
28.2. In this Agreement, unless the context otherwise requires or the contrary intention appears:
(a) a reference to this Agreement includes any Service Agreement and Quote or another document means this Agreement that other document and any document which varies, supplements, replaces, assigns or novates this Agreement or that other document;
(b) a reference to Datcom’s policies, procedures, technical and other standards refer to the versions in effect from time to time;
(c) a reference to legislation or a legislative provision includes any statutory modification or substitution of that legislation or legislative provision and any subordinate legislation issued under that legislation or legislative provision;
(d) a reference to a body or authority which ceases to exist is a reference to either a body or authority that the Parties agree to substitute for the named body or authority or, failing agreement, to a body or authority having substantially the same objects as the named body or authority;
(e) a reference to the introduction, a clause, schedule or annexure is a reference to the introduction, a clause, a schedule or an annexure to or of this Agreement;
(f) clause headings are inserted for convenience only and do not form part of this Agreement;
(g) the schedules (if any) and annexures (if any) form part of this Agreement;
(h) a reference to a person includes a natural person, corporation, statutory corporation, partnership, the Crown or any other organisation or legal entity;
(i) a reference to a natural person includes their personal representatives, successors and permitted assigns;
(j) a reference to a corporation includes its successors and permitted assigns;
(k) related or subsidiary in respect of a corporation has the same meaning given to that term in the Corporations Act;
(l) a reference to a right or obligation of a party is a reference to a right or obligation of that party under this Agreement;
(m) an obligation or warranty on the part of 2 or more persons binds them jointly and severally and an obligation or warranty in favour of 2 or more persons benefits them jointly and severally;
(n) a reference to a breach of warranty includes that warranty not being complete, true or accurate;
(o) a requirement to do anything includes a requirement to cause that thing to be done and a requirement not to do anything includes a requirement to prevent that thing being done;
(p) including and includes are not words of limitation;
(q) the words at any time mean at any time and from time to time;
(r) a reference to a time is to that time in the state of New South Wales;
(s) a word that is derived from a defined word has a corresponding meaning;
(t) monetary amounts are expressed in Australian dollars;
(u) the singular includes the plural and vice-versa;
(v) words importing one gender include all other genders; and
(w) a reference to a thing includes each part of that thing.
28.3 Where there is any inconsistency between this Agreement and the Service Agreement (including annexures, schedules or documents to a Service Agreement), then the following order of precedence will apply:
(a) the Service Agreement; then
(b) this Agreement.
28.4. Unless the context otherwise requires the following expressions shall have the following meanings:
Authorised Representatives means a representative of the Client:
(a) with technical proficiency relevant to the Services;
(b) who can provide access to networks and portals and deal with the Client’s account and system;
(c) with whom Datcom can communicate; and
(d) who has the authority to bind the Client.
Back-Up means a process of duplicating data to allow retrieval of the duplicate data set after a data loss event.
Business Days means any calendar day, excluding Saturdays, Sundays and Public Holidays.
Business Hours means the hours of 7.00am to 7.00pm AEST on Business Days.
Claim means all claims, debts, allegations, suits, actions, demands, causes of action, claims for account and proceedings of whatsoever kind or nature and howsoever and whensoever arising to date and whether or not in respect of damages, expenses or losses or in respect of a breach of statute, trust or of a fiduciary or other duty or obligation, whether or not arising under any statute, or contract and whether or not actual or contingent.
Client Data means the data owned and or created by the Client, excluding any data of any kind owned by Datcom or created, designed or implemented as part of the Services, including any software, code or otherwise.
Client Infrastructure means any equipment or device owned by the Client and to which the Client has legal and beneficial title.
Datcom SLA means a service level agreement entered into between Datcom and the Client.
Defined Abuse means any misuse of the Service including (but not limited to):
(a) giving an unauthorised person account and/or password details;
(b) deliberately or recklessly disrupting Datcom’s computers or networks or the Service;
(c) using the Service in an unlawful manner;
(d) using the Service to menace or harass others;
(e) using the Service to obtain unauthorised access to any network; or
(f) as otherwise reasonably determined by Datcom.
Delay means an unplanned deferment of a scheduled activity or Service because of an unforeseen issue or occurrence that impedes its commencement or continuation.
Dispute has the meaning given in Clause 16.1.
End User Protected Data means data selected and successfully uploaded by the Client using a Service.
Information means any and all data, documentation, processes, formulas, knowledge, know-how, secrets, intellectual property, ingredients, drawings, audio or visual material, packaging and/or any information whatsoever in connection with the Client or Datcom, or their businesses, stored electronically or otherwise.
IT Documentation means administrator login and passwords and any other relevant and applicable technical documentation specifically used in the Client’s solution or environment, for which the Services were provided by Datcom.
Licence has the meaning given in Clause 13.2
Maintenance Windows has the meaning given in Clause 5.2.
Quote means each Quote entered into by the Client, specifying the relevant Service commissioned by the Client from Datcom.
Post Termination Services means communication by Datcom with any third party provider which in Datcom’s sole opinion is reasonably necessary to facilitate the Client’s migration from Datcom’s Services to equivalent services with such third party provider.
Prohibited Use means any use:
(a) contrary to this Agreement or any Service Agreement,
(b) contrary to any law, rule or regulation; and
(c) any use not necessary or inextricably connected or required as part of the Services,
and includes, without limitation:
(i) the use of technology subject to military or dual use export controls;
(ii) any use that might endanger individuals, property or the environment, such as operation of:
(A) ships, aircraft, railroads and motor vehicles;
(B) chemical or nuclear facilities;
(C) critical public infrastructure (such as power stations); and
(D) medical devices used in patient care; or
(iii) any use involving the implementation or provision of regulated network and/or telecommunications services.
Schedule of Rates means Datcom’s Schedule of Rates as updated from time to time.
Service means each service commissioned by the Client as more particularly described in each Service Agreement annexed to this Agreement.
Service Agreement means any service agreement entered into between Datcom and the Client.
Service Availability Date means the date on which Datcom notifies the Client that a Service is commissioned or on-boarded and otherwise ready for use in accordance with a Service Agreement.
Service Delivery Department means Datcom’s service department, responsible for responding to the Client’s inquiries, service requests, and reports of incidents through the Client’s authorised representatives and technical representatives by telephone, e-mail or web portal.
Service Equipment means any equipment, facility or associated software, hardware or device used and or owned by Datcom or its Service Providers in connection with the provision of the Services.
Service Levels means the service levels (where applicable) relating to a Service, as set out in the Service Schedule relating to the Service or as governed by third party carriers or Service Provider.
Service Period means the term of the Service Agreement.
Service Provider means any third party wholesaler, carrier or vendor from which Datcom resells or supplies Services or Service Equipment in order to provide the Solution to the Client.
Site means the address specified in the Service Agreement as the address to receive the benefit of the Service.
SLA means any service level agreement, which is provided by the Service Provider defining the level of service expected from the Service Provider.
Solution means Datcom’s recommended Service and includes the provision of any products, hardware or software.
Termination Event has the meaning given in Clause 4.1.
Termination Notice has the meaning given in Clause 4.1.
Termination Payment has the meaning given in Clause 4.5.
Variation has the meaning given in Clause 6.2.