1. Definition and interpretation
In these Terms, the following terms shall apply:
“Agreement” means the agreement (whether written or oral) between OSIT and the Client for the provision of the Services which agreement includes these Terms and any other documents provided by OSIT relating to the Services;
“Authorised Representative” means an employee, agent or representative of OSIT authorised in writing by OSIT to represent OSIT for the purposes of these Terms including any person nominated as an Authorised Representative in the Quote;
“Business Day” means a day that is not a Saturday, Sunday, or public holiday wherever the Client’s Australian-based physical premises are located.
“Business Hours” means the time period from 7.30am to 5.30pm on Business Days, wherever the Client’s Australian-based physical premises are located.
“Commencement Date” means the date that the Client formally accepts the Quote (e.g. confirming acceptance of these Terms through the OSIT website) (unless otherwise specified);
“CPI” means the Consumer Price Index compiled by the Australian Bureau of Statistics (All Groups, Original);
“Customer” or “Client” means the person or entity that has accepted the Quote or is paying for Services;
“Fees” means the fees (exclusive of GST) payable by the Client for the Services set out in clause 5 and specified in the Schedule;
“Hourly Fees” or “Pay Per Hour” means the hourly fees set out in clause 5.1 and specified in Item 1 of the Schedule;
“Incident” means an unplanned interruption to an IT Service or reduction in the quality of an IT service;
“Migration Fee” means the migration fee set out in clause 5.3 and specified in Item 2 of the Schedule;
“OSIT” means Office Solutions IT Pty Ltd (ACN 623 379 135);
“Party” or “Parties” means OSIT and/or the Client;
“Problem” is the cause of one or more incidents;
“Quote” means the quote agreed between the Parties regarding the Services (as varied by written agreement of the Parties pursuant to clause 3.2);
“Resolution” means restoring the IT service to state where it has no or little business impact;
“Services” means the services agreed in the Quote and any other services provided by OSIT to the Client pursuant to these Terms;
“Term” means the term described in clause 6 of these Terms;
“Terms” means these Terms of Supply;
“Work” is defined as labour, where an OSIT employee, consultant or contractor expends physical or mental effort to perform a service.
In these Terms headings and all formatting are for convenience only and do not affect the interpretation of these Terms and, unless the context otherwise requires:
- the singular includes the plural and vice versa;
- a reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa;
- a reference to a recital, clause, schedule, annexure or exhibit is to a recital, clause, schedule, annexure or exhibit of or to these Terms;
- a reference to any Party or any other document or arrangement includes that Party’s executors, administrators, substitutes, successors and permitted assigns;
- where an expression in defined, another part of speech or grammatical form of that expression has a corresponding meaning;
- a reference to a “related body corporate” of a body corporate is to a body corporate which is related to that body corporate within the meaning of Section 50 of the Corporations Act 2001;
- a reference to “dollars” or “$” is to the currency of Australia.
Any instructions received by OSIT from the Client for the supply of Services and/or the Client’s acceptance of Services supplied by OSIT shall constitute acceptance of the Terms.
These Terms shall apply to all future supplies of Services from OSIT to the Client unless expressly excluded in writing by the Parties.
3. Provision of Services
OSIT agrees to provide the Services to the Client in accordance with the terms of these Terms.
The Parties may agree to add to or vary the Services being provided, provided the Client has signed off on the revised Quote.
The Client agrees to pay to OSIT the Fees for the Services in accordance with the terms set out in clause 5.
The Services are applicable to the products, software, applications, cloud services and hardware that are listed on the Quote, subject to the conditions in clause 4. Any labour provided by OSIT will be provided at the Hourly Fee.
Where more than one Client has accepted the Quote, the Clients shall be jointly and severally liable for payment of the Fees and the compliance with all other obligations under the Terms.
The Client acknowledges that any services provided for products, software, applications, cloud services and hardware that are not included in the Terms (listed on the Quote) or are deemed to be not included (refer clause 4: Services Eligibility) can still be supplied by OSIT and these services will be invoiced on a Pay Per Hour basis, billed in arrears at the beginning of the following month. Pay Per Hour pricing of these services is defined under clause 5.1.
Services which have not been explicitly defined in these Terms are not considered to be included in these Terms. Services which have not been explicitly defined are classified as consulting and invoiced in arrears. Pay per hour pricing of Services is defined under clause 5.1.
OSIT shall ensure the Services are performed by an employee/s or consultant/s of OSIT with due care, diligence who has the relevant skill reasonably expected of an experienced professional providing the Services.
OSIT shall determine in its absolute discretion which of its employees and/or consultants will provide the Services (and there may be more than one employee and/or consultant) and may replace an employee or consultant at any time.
Where the Services include storage of the Client’s data in OSIT’s Cloud servers, the Parties acknowledge that that stored data remains, as between the Client and OSIT, the property of the Client.
4. Services Eligibility
Services will not be provided in respect of any of the Client’s products, software, applications, cloud software and hardware which are non-genuine (e.g. pirated) or which the Client does not have licence to use.
5. Fees and Payment Terms
5.1. Hourly Fee
- All Services are categorised into five areas. Support, Cyber Security, Projects, Cloud or vCIO.
- Details of which Services are categorised into each area, is defined in the Quote.
- The Hourly Fee for the various Service categories are specified in Item 1 of the Schedule.
- Projects or Cloud services will be quoted prior to any work being undertaken.
- The billing increment is 6 minutes. An hour is divided into 10 billing increments. Services charged in a Pay Per Hour arrangement, are rounded up to the nearest 6 minutes. The Client will only be invoiced for each part of the hour that was spent providing services to the Client.
- Service provided outside of Business Hours (see Clause 7: Business Hours), will be invoiced 1.5 times the Hourly Fee.
- All Fees, including Hourly Fees, that are listed in these Terms are excluding GST.
5.2. Payment Arrangement
- All invoices are payable within 30 days of the invoice date.
- Non-payment of invoices may result in service being withheld until payment receipt.
- Where the quoted Fee in a Quote is over $10,000, the Client is to pay an amount equal to 50% of the quoted Fees to OSIT upon acceptance of the Quote.
- Products (including related services) are invoiced after the setup of the product has commenced.
5.3. Migration Fees
- Where the application of these Terms has been terminated in accordance with clause 6 and the Client has notified OSIT in writing that it wishes to migrate its data to another service provider, OSIT will facilitate the migration of the Client’s data to the new service provider, provided the Client has paid:
- The Migration Fee (per migration) to OSIT; and
- All amounts owing to OSIT and any third parties as per clauses 6.5(c) and 6.10(g).
6. Term and Termination
These Terms shall commence on the Commencement Date and continues until terminated by either Party in accordance with clause 6 of these Terms.
Should either Party wish to terminate these Terms written notice must be provided. These Terms (except for any terms expressed as surviving termination) cease upon receipt of the notice of termination by the other Party.
Some services have Commitment Periods. Services that have Commitment Periods and their Commitment Period are indicated in the Quote. For other services which may be purchased in the future the Commitment Period will be indicated on the Quote. Commitments renew automatically on the anniversary of the commitment.
On termination, for any services that have a Commitment Period, the Fees for the remainder of any Commitment Period will be invoiced in full and must be paid by the Client.
If the Client defaults in payment of any invoice when due, or in the event the Client fails to pay any Fees, charges or costs incurred (including the costs of third party services that have a Commitment Period) as and when they fall due and the Fees, charges or costs remain unpaid after 14 days’ written notice:
- OSIT may terminate these Terms by written notice to the Client;
- OSIT may cancel all or any part of any order of the Client for Services which remain unperformed in addition to and without prejudice to any other remedies;
- all amounts owing to OSIT or third parties shall, whether or not due for payment, immediately become payable; and
- the Client shall indemnify OSIT from and against all OSIT’s costs and disbursements including on a solicitor and own client basis and in addition all of OSIT’s nominees’ costs of collection.
OSIT may suspend the provision of Services whilst any Fees, charges or costs remain unpaid when due. The Client acknowledges that it understands that whilst Services are suspended the Client may experience disruption and inaccessibility to any aspect of their operations subject to the Services, including without limitation IT system, Cloud-stored data, website and emails.
In the event these Terms are terminated by OSIT pursuant to this clause 6, OSIT may delete any of the Client’s data that it stores on its Cloud servers, provided that a copy of the data has been provided to the Client and at least 5 Business Days’ written notice is given to the Client.
In accordance with this Clause 6, upon termination of the Terms, the Client shall immediately return to OSIT all of OSIT’s property, that the Client has in its possession. Should the Client fail to return OSIT’s property, OSIT reserves the right to commence legal action to recover the property from the
OSIT is not liable for any costs, loss or damage suffered by the Client as a result of the lawful suspension of the Services or termination of these Terms in accordance with this clause 6.
In the event that:
- the other Party breaches a warranty or other material provision of these Terms including (without limitation) a breach of the obligations relating to safety;
- the other Party fails to rectify a non-material breach capable of remedy within 14 days of receipt of written notice from the non-breaching Party requiring the Party to do so;
- subject to the Corporations Act 2001, the other Party becomes insolvent or (where an individual becomes bankrupt), convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors or a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the other Party or any asset of the other Party;
- in a Party’s opinion the other Party requires it to act in an unethical or unlawful manner; or
- a Party forms the opinion that mutual confidence and trust do not exist between OSIT and the Client,
then without prejudice to that Party’s other remedies at law:
- that Party shall be entitled to terminate these Terms and cancel all or any part of any order of the remaining unperformed Services without prejudice to any other remedies; and
- all amounts owing to OSIT or third parties shall, whether or not due for payment, immediately become payable.
These rights are in addition to any other rights of termination in these Terms or at law.
7. Business Hours
Services will generally be performed during Business Hours on Business Days, unless otherwise specified in the product description, for example After Hours Helpdesk.
In the case that where the Client requires services outside of these Business Hours, and it has not been stated in the product description that the services are available 24x7, then all services will be provided and invoiced on a Pay Per Hour basis, billed in arrears at the beginning of the following month. Services provided in this way will be invoiced at 1.5x the rate of these Services as defined under clause 5.
In respect of any travel required to deliver Services to the Client:
- Where the travel is confined to the metropolitan area of any Australian capital city, OSIT will charge a Travel Fee (as specified in Item 1 of the Schedule); and
- Where the travel is outside the metropolitan area of any Australian capital city, the Parties will discuss and agree any Travel Fee prior to travel taking place.
9. Purchasing Goods on Behalf of Client
In the event the Parties agree, where OSIT is required to purchase products or equipment (“Goods
”) on behalf of the Client in order to carry out the Services or where OSIT agrees to do so at the request of the Client, OSIT may, in its absolute discretion:
- require prior upfront payment for the Goods from the Client or;
- invoice the Client for the Goods.
provided that the Client has approved any costs, prior to them being incurred by OSIT.
If OSIT invoices the Client for Goods then payment of the invoice must be made on the due date for payment nominated on the invoice.
Ownership and title to the Goods purchased by OSIT on behalf of the Client shall remain with OSIT until they have been paid for in full.
The Client must not sell, lease, licence or otherwise encumber the Goods until title passes to the Client.
Without limiting any other right of the OSIT, if the Client fails to pay for the Goods when payment is due OSIT may repossess the Goods (without liability) and the Client permits OSIT to enter its premises for this purpose.
Risk in any equipment passes to the Client upon delivery.
10. Retention of Title
Any property brought on to the Client’s premises by OSIT in the provision of the Services belonging to OSIT shall remain the property of OSIT and the Client must not sell, pledge, lease or otherwise encumber OSIT’s property at any time and must ensure that it is kept at all times safe and secure from damage and theft.
11. Personal Property Securities Act 2009 (“PPSA”)
The Client accepts, acknowledges and agrees that:
- Terms used in this clause shall have the same meaning as in the PPSA unless otherwise specifically defined herein.
- pursuant to the retention of title rights in clause 1, the Client grants a security interest in all products and equipment supplied by OSIT to the Client on credit, including any commingled goods and any goods belonging to OSIT used in the provision of the Services (“Goods”).
- OSIT can, without notice to the Client, seek registration of its security interest on the Personal Property Securities Register (PPSR).
The Client will:
- sign any further documents and/or provide any further information (which information the Client warrants to be complete, accurate and up-to-date in all respects) which OSIT may reasonably require to enable perfection of its security interest or registration of a Financing Statement or Financing Change Statement on the PPSR;
- not register a Financing Change Statement or make a demand to alter the Financing Statement pursuant to section 178 of the PPSA in respect of the Goods, including any Services, without the prior written consent of OSIT;
- give OSIT not less than 5 days written notice of any proposed change in its name and/or any other changes in its details (including but not limited to, changes in address, facsimile number, email address, trading name or business practice);
- procure from any persons considered by OSIT to be relevant to its security position, such agreement and waivers as OSIT may at any time reasonably require;
To the extent permitted by the PPSA the Client waives its rights to:
- receive a notice under any of subsections 95(1), 121(4), 129(2) and 130(1) and sections 135 and 157 of the PPSA;
- receive a statement that includes the information referred to in paragraph 132 (3)(d) of the PPSA ;
- receive a statement under subsection 132(4) of the PPSA;
- redeem Goods after default under section 142 of the PPSA unless OSIT agrees in writing to such redemption;
- reinstate the Security Agreement under section 143 of the PPSA ; and
- give a Notice of Objection under section 137 of the PPSA.
12. Safety and Access
In respect of those Services required to be carried out at the Client’s premises the Client must ensure that it provides a safe environment for OSIT’s employee, consultant or contractor carrying out the Services which comply with all applicable laws relating to occupational health and safety.
If, in the opinion of OSIT, the Client or its employees fail to comply with any safety requirements OSIT may suspend the Services (with no liability to OSIT) until such time that the safety requirements are complied with.
The Client must grant OSIT and its employees, consultants or contractors such access to its premises, equipment and resources as reasonably required by OSIT in order to perform the Services.
13. Warranties and Liabilities
To the maximum extent permitted by law OSIT will not be liable for any special, indirect or consequential damages, loss of profit, goodwill, bargain, revenue or loss of anticipated saving or loss, or corruption of data suffered by the Client arising under, pursuant to or as a result of the provision of the Services and in any event the maximum damages available to the Client shall be limited to the Fees paid by the Client.
OSIT does not warrant that its Services prevent cybersecurity breaches nor that the Client’s system can be made entirely secure from cybersecurity breaches. OSIT will not be held liable for any damage or loss caused by a cybersecurity breach of the Client’s system.
Any claims for loss suffered by the Client will be automatically reduced to the extent that the Client’s (including its employees, contractors, agents, or consultants) negligence (whether direct or indirect) contributed to the loss.
Unless expressly provided in these Terms, OSIT excludes all warranties relating to the Services which would otherwise be implied.
Where legislation implies any condition or warranty relating to the Services, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty shall be deemed to be included provided that the liability of OSIT for breach of any such condition or warranty shall be limited, at the option of OSIT, to one or more of the following:
- the supplying of the Services again; or
- the payment of the cost of having the Services supplied again.
The Client warrants that there is no content in its data stored on OSIT’s Cloud servers as part of the Services that is or is likely to be illegal, unlawful, tortious or otherwise in violation of any international or domestic criminal or civil law, including without limitation, spam or malware, pirated material, child pornography, offensive or violent content or hate-speech, defamatory content or content that infringes intellectual property or confidentiality rights.
The Client shall indemnify OSIT against:
- any claim against OSIT arising out of or based on the death or bodily injury of any person or loss, destruction or damage of any personal property caused by the conduct of the Client, its employees or agents;
- any claim against OSIT arising out of or based on any claim or action or allegation that OSIT has caused third party losses while acting within OSIT’s authority under any direction of the Client pursuant to these Terms; and
- all loss (including legal fees and disbursements) incurred by OSIT as a result of a breach of the terms of these Terms by the Client, its employees or agents
The Parties may have disclosed or may wish to disclose to each other information of a confidential and proprietary nature. these Terms govern the Parties’ rights and obligations to the confidential and proprietary information.
In this clause 15:
- “Confidential Information” means all information, documentation or other materials provided by the Discloser before or after the date of these Terms that is not in the public domain, is identified as being confidential or proprietary or the Discloser considers as having the necessary quality of confidence about it (such as its financial information, business activities, products, services, customers, technical knowledge, know-how and trade secrets); and is provided to the Recipient for the purpose mentioned in these Terms;
- “Discloser” means the Party disclosing Confidential Information in terms of these Terms;
- “Personnel”means any director, employee, potential investor, agent, consultant, contractor or other representative;
- “Recipient” means the Party receiving Confidential Information in terms of these Terms.
The non-disclosure provisions in this clause 15 are effective from the date of these Terms and will continue for 12 months after these Terms terminate.
15.4. Information being disclosed
Purpose: Confidential Information is being disclosed in order to provide IT services to the Client.
15.5. Recipient obligations
- Keep confidential: Each Party will keep the Confidential Information confidential and will take all reasonable security precautions to maintain the confidentiality of the Confidential Information (which will include applying the same degree of care and security precautions as it takes to protect its own Confidential Information).
- The Recipient’s responsibilities: Each Party will:
- only use Confidential Information to comply with its responsibilities under these Terms;
- only give Confidential Information to its Personnel that need it, and only give as much of it as they need;
- not reveal the Confidential Information to anyone else; and only use the Confidential Information for the purpose and for no other purpose unless with the prior physical written consent of the Discloser.
- Restrictions of use: Each Party will not:
- use the Confidential Information for its own benefit or for the benefit of any third party;
- copy or duplicate in any form Confidential Information, or knowingly assist or allow anyone else to copy or duplicate any Confidential Information in its possession or under its control, without the the Discloser's prior physical written approval;
- reverse engineer, decompile or disassemble any computer programs forming part of the Confidential Information; and use the Confidential Information in any manner that will cause loss or damage to the Discloser.
- Duty to notify: Recipient will promptly notify the Discloser upon becoming aware of any: loss, disclosure, duplication, breach of confidentiality, or use or misappropriation of Confidential Information whether authorised or not.
- Exceptions: These responsibilities will not apply to any information that:
- the Recipient already had knowledge of prior to disclosure by the Discloser and was not received by the Recipient from the Discloser under an obligation of confidence;
- is lawfully in the public domain (available to the general public) when the Recipient received it;
- lawfully becomes part of the public domain afterwards;
- is given to the Recipient afterwards by a different person who is allowed to reveal the Confidential Information;
- is independently developed by the Recipient (or those related to it) or for it by third parties independently of the information disclosed by the Discloser; or is disclosed by the Recipient with the prior physical written approval of an authorised representative of the Discloser.
15.6. Disclosure required by law
- The Recipient can disclose Confidential Information if required by law or in accordance with a judicial, administrative or governmental order, provided the Recipient:
- gives the Discloser reasonable physical written notice prior to disclosure;
- consults with the Discloser on possible steps to be taken in order to avoid or limit disclosure and takes steps agreed with the Discloser;
- and uses its reasonable endeavours to obtain any assurance or order that disclosed Confidential Information will be treated confidentially by the authority or person to which it is disclosed.
15.7. Return of Confidential Information
- Recipient will within seven days of completion of the purpose or receipt of a written request from the Discloser:
- Return to the Discloser all documentation and materials (including any originals, copies, reproductions or summaries) containing the Discloser's Confidential Information; or alternatively
- at the request of the Discloser, destroy the documentation and materials. Recipient will certify in physical writing as soon as possible from the date of the destruction of the documentation and materials that it has complied with these requirements.
- Recipient will continue to be bound by these Terms despite the completion of the purpose, return or destruction of Confidential Information.
Confidential Information will remain the exclusive property of the Discloser and there is no granting or conferring, whether by sale, license or otherwise, to the Recipient of any right, title or interest to or in any of the Confidential Information disclosed, nor in any of the patents, trademarks, copyrights or other intellectual property rights of the Discloser or its licensors.
15.9. Accuracy of the Confidential Information
Both Parties agree that the Confidential Information provided is believed by the Discloser to be generally accurate and correct. However, in no event will the Discloser, its employees, consultants or third parties be liable for errors, omissions or inaccuracies of any kind in the Confidential Information and the Recipient will be responsible for verifying the accuracy and correctness of the Confidential Information disclosed. No warranty of any kind is given under these Terms regarding the Confidential Information, it being provided as is and with all faults, and any guarantees or warranties (including warranties of merchantability and fitness for purpose and non-infringement) are excluded.
15.10. Compliance with laws
Recipient agrees to comply with all applicable international and national laws that apply to the Confidential Information, or any product, process or service that is the direct product of the Confidential Information, as well as end-user, end-use and destination restrictions issued by the relevant government.
15.11. Breach and dispute
- If the Recipient breaches or threatens to breach these Terms, the Discloser will be entitled to injunctive, protective or other appropriate relief in any court of competent jurisdiction restraining the Recipient from breaching the terms or from disclosing or using any Confidential Information to any person.
- Despite anything to the contrary, the Discloser may pursue any other remedies available to it, either at law or in equity, for breach or threatened breach, including recovery of liquidated damages.
- In the event of a dispute arising under these Terms relating to a disclosure of Confidential Information, the onus of proof will be on the Recipient to show that the disclosure was authorised in accordance with the terms of these Terms.
16. Non-solicitation of OSIT employees:
During the period that OSIT provides Services to the Client and up to 12 months thereafter, the Client shall not directly or indirectly through any associated company employ or enter into any agreement with, for the provision of services, either as a consultant or independent contractor, or offer any position or employment to, any OSIT employee, whether permanent or contracted.
The Client acknowledges that any breach of clause 1 will result in substantial damage to OSIT and the Client agrees that in the event of breach of this provision the Client will pay to OSIT by way of liquidated damages, and not as a penalty, a sum of $40,000 per OSIT employee the Client has offered a position or employment to.
17. Intellectual Property
OSIT retains all rights over the use or reproduction of any intellectual property developed by it from the provision of the Services.
OSIT retains all rights over all code used in Client projects. This may include code OSIT developed prior to these Terms, and any new code that is written during these Terms. OSIT may utilise any code component in other projects at its discretion.
Except for the ongoing, personal and non-transferable right to use the deliverables resulting from these Terms, the Client shall not obtain or be granted any intellectual property rights to any deliverable or material supplied by OSIT.
The Client shall not take any action by way of copying, disseminating, transmitting, accessing, or use of any system that may infringe or may be inconsistent with the intellectual property rights of OSIT or its licensors.
For the purpose of this clause, intellectual property rights means without limitation, copyright, patent rights, design rights or trade secrets in connection with the deliverables and their source code, or any source code, scripts or interfaces supplied by OSIT and any methodologies or process involved in the performance of the services or any deliverable or materials (including training materials) provided by OSIT.
The Client is not permitted to sell or otherwise distribute the applications OSIT develops for the Client nor individual components without written authorisation from an Authorised Representative of OSIT.
OSIT may refer to the Client’s trade name, trade mark and any other identifying logo and briefly describe the Client’s business in OSIT’s marketing materials (including its online presence) and in its statutory reports.
If the Client provides OSIT with personal information collected from other individuals, the Client warrants to OSIT that that information is correct, has been collected in accordance with the applicable privacy legislation and that OSIT is authorised to receive that information from the Client and to use it for the purposes of providing the Services.
In the course of acting for the Client, OSIT may disclose to the Client personal information about other individuals in which case the Client agrees that it will use, disclose, handle, store and transfer that information only in accordance with the Privacy Act 1988 (Cth). The Client also agrees that it will comply with OSIT’s requirements in relation to the protection of personal information.
The Client agrees for OSIT to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by OSIT.
OSIT may give information about the Client to a credit reporting agency for the following purposes:
- to obtain consumer credit report about the Client; and/or
- allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
Where a dispute, controversy or claim relating to or in connection with these Terms arises the Parties agree to comply with the following procedure before commencing any legal proceedings:
- The disputing Party will issue a notice to the other Party outlining the Dispute (“Dispute Notice”).
- Authorised Representatives nominated by each Party will meet within 10 Business Days of issue of the Dispute Notice.
Where the dispute remains unresolved after five Business Days from the meeting either Party may refer the matter for mediation with the Australia Commercial Dispute Centre.
The cost of mediation will be borne equally by the Parties.
If the dispute cannot be resolved through mediation, then the Parties are free to commence legal proceedings.
21.1. Entire Agreement
These Terms contain the entire agreement between the Parties concerning the subject matter herein and supersedes any prior agreements or representations.
If any part of these Terms is, or becomes, void or unenforceable, that part is, or will be, severed from these Terms so that all parts that are not, or do not become, void or unenforceable remain in full force and effect and are unaffected by that severance.
Subject to any provision of these Terms making time of the essence, failure to exercise or delay in exercising any right, power or privilege by any Party will not operate as a waiver of that right, power or privilege.
21.4. Governing Law
The Parties agree that these Terms shall be construed in accordance with the laws in force in Western Australian and the Parties submit to the exclusive jurisdiction of the courts of Western Australia.
21.5. Agreement Entry
The Client acknowledges that the person accepting the Quote on its behalf is authorised to do so and may bind the Client to all the terms and conditions contained herein and represents and warrants that such person is acting within the scope of his or her authority as an officer, director or duly authorised agent or employee of the Client and that if requested by OSIT will provide evidence to the satisfaction of OSIT of the authority of the person accepting the Quote.
None of OSIT’s employees, agents or representatives who are not Authorised Representatives are authorised to make any representations, statements, conditions or agreements not expressed by OSIT in writing nor is OSIT bound by any such unauthorised statements.
21.7. Independent Contractor
The Parties acknowledge that OSIT is engaged under these Terms as a non-exclusive independent contractor and OSIT may engage its own contractors to carry out the Services or any part thereof under these Terms. No relationship of employment, agency, partnership, joint venture or trust is created between the Parties by these Terms.
- A notice, consent, approval or other communication (each a ‘notice’) under these Terms must be signed by or on behalf of the Party giving it, addressed to the Party to whom it is to be given and:
- delivered to that Party’s address;
- sent by pre-paid mail to that Party’s address; or
- sent by email to that Party’s email address.
- A notice given to a Party in accordance with this clause is treated as having been given and received:
- if delivered to a Party’s address, on the day of delivery if a Business Day, otherwise on the next Business Day;
- if sent by pre-paid mail, on the third Business Day after posting; or
- If sent by email to a Party’s email address and a delivery receipt is received, on the day of transmission if a Business Day, otherwise on the next Business Day.
- For the purposes of this clause 8, the address of a Party is the address set out in these Terms or another address of which that Party may from time to time give notice to each other Party.
Each Party bears their own costs in relation to these Terms.
The Client may not assign these Terms without the prior written consent of OSIT but OSIT may license or subcontract all or any part of its rights and obligations under these Terms.
21.11. Force Majeure
Neither Party shall be liable for any default due to any act of God, epidemic or pandemic, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either Party.
21.12. Special Conditions
The Parties agree that the special conditions contained in the Quote (if any) shall form part of these Terms and shall prevail over the other documents making up these Terms to the extent of the inconsistency.
Item 1: Hourly Fees
- If the client is on a direct debit billing arrangement, all hourly fees are reduced by $5.
- The Hourly Fee for any Services defined as Support services is $170 per hour. This will be reflected on an invoice as Support.
- The Hourly Fee for any vCIO Consulting or Cyber Security Services is $185 per hour. This will be reflected on an invoice as Consulting.
- The Hourly Fee for Document Management Consulting, Software Consulting or Productivity Consulting will be quoted and approved by the Client prior to commencement.
- The Hourly Fee for any Project Services is $185 per hour. This will be reflected on an invoice as Project.
- The Hourly Fee for any Services not defined in these Terms, which the Client asks OSIT to perform, will be classified as Consulting and billed at $185 per hour.
- The Hourly Fee for Travel is $95 per hour. See Clause 8: Travel for more information.
- The Hourly Fee for any Services defined as Specialised Consulting is $205 per hour.
Item 2: Migration Fee
- $1000 per Cloud Server
- $200 per Cloud Backup