Definitions and interpretation
In this Agreement unless the context indicates otherwise, the following words shall have the following meanings:
Claims means all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise);
Client means the person named as client on the CT Group – Services Application;
CT Group means CT Group Solutions Pty Ltd (ABN 15 605 756 367);
Equipment includes facility, equipment or device including any computer or networking hardware or software or any other thing;
Confidential Information includes any information marked as confidential and any information received or developed by CT Group during the term of this Agreement, which is not publicly available and relates to processes, equipment and techniques used by the Client in the course of the Client’s business including all information, data, drawings, specifications, documentation, source or object code, designs, construction, workings, functions, features and performance notes, techniques, concepts not reduced to material form, agreements with third parties, schematics and proposals and intentions, technical data and marketing information such as customer lists, financial information and business plans;
CT Group’s Personnel means any person(s) that CT Group designates to perform the Services on CT Group’s behalf;
Facilities includes working space, computer equipment, access to the internet and the Client’s computer network, telecommunications system etc, and shall include not only access to such resources but also use of them to the extent required by CT Group in order to perform the Services;
Fee(s) means the fees to be paid by the Client as stipulated in the Proposal Document, which may be changed by CT Group from time to time;
GST Law means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Intellectual Property includes trademarks, patents, copyrights, processes know-how, registered designs or other like rights or any right to apply for registration of any of the former;
Initial Term means the first period of time for supply of the Services elected by the Client and agreed to by CT Group;
Losses means all losses including financial losses, damages, legal costs and other expenses of any nature whatsoever;
Non-Excludable Provisions means any guarantee, warranty, term or condition implied or imposed in relation these Terms under the Australian Consumer Law or any other applicable legislation and which cannot be excluded;
Parties means CT Group and the Client, and Party shall mean either one of them;
Personally Identifiable Information means a combination of any information that identifies an individual with that individual’s sensitive and non-public financial, health or other data or attribute, such as any combination of the individual’s name, address or phone number, the individual’s Medicare number or other government issued number, financial account number, date of birth, biometric data or other “Personal Information”, “Sensitive Information” as defined in the Privacy Act 1988 (Cth);
Proposal Document means the document/s provided to the Client by CT Group setting out the services to be delivered by CT Group;
Related Body Corporate has the meaning given in section 50 of the Corporations Act 2001 (Cth);
Services means any products (including goods) and/or services CT Group provides to the Client including any managed information technology services, cloud based hosting services and disaster data recovery services;
Service Level Requirements means any objectives or requirements in, or in relation to, the supply of the Services that CT Group has undertaken to perform in writing;
Subsequent Term has the meaning given in clause 2.2;
Termination Date means the earlier of:
- the date of termination of this Agreement by the Client or CT Group; and
- the date of expiry of this Agreement.
In this Agreement unless the context otherwise requires:
- words importing any gender include every gender;
- words importing the singular number include the plural number and vice versa;
- words importing persons include firms, companies and corporations and vice versa;
- references to numbered clauses, paragraphs and schedules are references to the relevant clause or paragraph in this Agreement;
- any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
- the headings to the clauses and schedules of this Agreement are not to affect the interpretation;
- any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment; and
- the word “including” (and related forms including “includes”) shall be understood as meaning “including without limitation”.
Duration of Agreement
- Unless otherwise agreed to by the parties in writing this Agreement shall start on the first day of the Initial Term and continue for the Initial Term and each Subsequent Term until terminated in accordance with the terms of this Agreement.
- Following expiry of the Initial Term the Agreement will automatically renew for subsequent periods equal to the length of the Initial Term (each a Subsequent Term) unless the Client has notified CT Group in writing at least 30 days prior to the expiry of the Initial Term, or where relevant, a Subsequent Term, that the Client intends to allow the Agreement to expire.
- For the duration of this Agreement CT Group shall supply the Services to the Client:
- in accordance with any Service Level Requirements; and
- on the terms and conditions of this Agreement.
- The method of performance of the Services will be determined in the sole discretion of CT Group acting reasonably.
- Subject to the terms of this Agreement, CT Group will perform the Services in an efficient and professional manner that is consistent with standards generally observed in the information technology industry for similar services.
- Whilst CT Group will use best endeavours to supply the Services and places an emphasis on customer satisfaction, it does not provide any warranty that:
- any Service Level Requirements will be met;
- any transmittal, hosting, storage, replication or backup of data will be complete or error free;
- any data for which CT Group provides or arranges any hosting or storage will be free from corruption, retrievable and usable in all circumstances;
- the supply of the Services will be available and interruption or error free.
- Any response time or time CT Group provides for the supply of The Services or Service Level Requirements is an estimate only and will not form part of this Agreement. CT Group will use its best endeavours to meet any stated times, however CT Group will not be liable for any direct or indirect loss or damage arising from its failure to meet such times.
- If in CT Group’s opinion in order to supply the Services anything in relation to any of the Client’s Equipment requires the implementation, modification or upgrading of anything, (including any device, equipment, computer or networking hardware or software), or the provision of additional support beyond
- CT Group will bring such matter or thing to the attention of the Client;
- may at its sole discretion refuse to provide Services with respect or in relation to that Equipment.
- Notwithstanding anything else in this Agreement, the Client acknowledges and agrees that the whole or any part of the Services and/or any Service Level Requirements may not be available, performable, satisfied or delivered on time, or at all, in all circumstances.
- The Client acknowledges and agrees that if CT Group refers or recommends the Client use any third party service or goods (including any computer or networking hardware or software) (Third Party Services) that:
- CT Group makes no warranties or representations in relation to Third Party Services of any nature, including as to whether such Third Party Services are fit for any particular purpose;
- CT Group does not endorse any Third Party Services and is acting only as a conduit of information provided by such Third Party Services; and
- CT Group will not be liable under any circumstances for any Losses arising from on in connection with the use by the Client of any Third Party Services
- For the duration of this Agreement CT Group shall supply the Services to the Client:
- The Client must:
- provide assistance reasonably requested by CT Group’s Personnel for the purpose of facilitating the supply of the Services and follow any reasonable direction given by CT Group’s Personnel in the course of providing the Services;
- ensure that its staff and agents cooperate with and assist CT Group as reasonably required;
- provide CT Group’s Personnel with full, safe and prompt access to the Client’s premises and any computer or network systems (including both hardware and software) as reasonably required to enable CT Group to provide the Services;
- make available free of charge such access to and use of the Client’s Facilities as are reasonably required to enable CT Group to provide the Services; and
- make promptly available, without charge, all information reasonably required to enable CT Group to provide the Services.
- The Client acknowledges and agrees that if it does not comply with clause 1, CT Group may be unable to provide the Services promptly and efficiently or meet any Service Level Requirements.
- The Client must comply with any policy as provided by CT Group from time to time relating to the supply of the Services including any acceptable use policy. CT Group may create or change such policies in its sole discretion and without notice to the Client, however no policy will apply to the Client unless CT Group has undertaken reasonable endeavours to notify the Client of the policy or change of policy.
- The Client must use reasonable security precautions in using the Services. If the Services provided to the Client involve the hosting or storage of data on any device or server (including internet ‘cloud’ based servers) arranged by CT Group, reasonable security precautions will include encrypting any Personally Identifiable Information transmitted to or from, or stored on, such device or server.
- The Client authorises CT Group to install any remote management tools as CT Group deem necessary to supply the Services.
- The Client must:
- In consideration of the provision of the Services in accordance with this Agreement, the Client will pay CT Group the Fee(s).
- The Client acknowledges that the Fee(s) shall be exclusive of any GST that may be charged by CT Group to the Client, and therefore, CT Group will be entitled to add on GST.
- CT Group shall provide the Client with a tax invoice in accordance with the GST Law in relation to fees payable under this clause 5, and payment shall be made by the Client to CT Group within 7 days following receipt of CT Group’s invoice.
- CT Group shall be entitled to vary the Rate(s) during the term of this Agreement. Before implementing any such new rates, CT Group shall provide them to the Client.
- CT Group is permitted to charge for all costs and expenses incurred in performing the Services, including purchasing of computer or network hardware or software with the written authorisation of the Client and any testing of hardware or software by any third party.
- If the Client does not make a payment by the date stated in an invoice or as otherwise provided for in the Agreement, CT Group shall be entitled to do any of the following:
- charge interest on the outstanding amount at the rate of 5% per year above the base lending rate applicable to any business lending facility that is provided or offered by the banking institution CT Group has any transactional account with;
- require the Client to pay, in advance, for any of the Services (or any part of the Services) which have not yet been performed; and
- not perform any further Services (or any part of the Services).
- When making a payment the Client shall quote relevant reference numbers and the invoice
Use of subcontractors
- CT Group is permitted to use other persons to provide some or all of the Services.
- CT Group shall be responsible for the work of any of CT Group’s subcontractors.
- Any work undertaken by any of CT Group’s subcontractors shall be undertaken to the same standard as that stated as applying to CT Group in this Agreement.
- CT Group must keep the Client’s, and any Related Body Corporate of the Client’s, Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality.
- CT Group’s obligations with regard to the Confidential Information will continue for so long as the Confidential Information is maintained on a confidential basis by:
- the Client, in the case of Confidential Information pertaining to the Client’s business; and
- the Client’s client, in the case of Confidential Information pertaining to the business of any of the Client’s clients.
- On termination of this Agreement, or when earlier directed by the Client:
- all Confidential Information must be returned to the Client, including all copies of the Confidential Information or any extracts or summaries of the Confidential Information that CT Group makes and any software that CT Group creates based on the Confidential Information; and
- CT Group must erase and destroy any copies of any software containing or comprising the Confidential Information in CT Group’s possession or under CT Group’s control or that may have been loaded onto a computer possessed or controlled by CT Group.
- The Confidential Information does not include information which:
- is generally available in the public domain otherwise than as a result of a breach of paragraph (a) by CT Group; or
- was known by CT Group prior to the Client disclosing the information to CT Group.
- CT Group agrees that the Client may require any of CT Group’s Personnel to sign a confidentiality agreement in a form that the Client approves, as a condition of the Client’s acceptance of any of CT Group’s Personnel.
Warranties, liability and indemnities
- CT Group provides no warranty that any result or objective or compliance with Service Level Requirements can or will be achieved or attained at all or by any particular date, whether stated in this Agreement or elsewhere.
- Subject to CT Group’s obligations under the Non-Excludable Provisions and to the maximum extent permitted by law:
- the liability of CT Group under or in connection with this Agreement whether arising directly or indirectly, in contract, tort, negligence, breach of statutory duty or otherwise shall not exceed the Fee(s) paid by the Client to CT Group under this Agreement; and
- CT Group is not liable for and no measure of damages will, under any circumstances include:
- special, indirect, consequential, incidental or punitive damages; or
- damages for loss of profits, revenue, goodwill, or anticipated savings, whether in contract, tort (including negligence) in equity, under statute, or on any other basis, whether or not such loss or damage was foreseeable.
- The Client shall indemnify and hold harmless CT Group from and against all Claims and Losses arising indirectly or directly from:
- a breach of the Client of any provision of this Agreement; and
- infringement of third party intellectual property, or third party losses by reason of or arising out of any information or data supplied by the Client to CT Group or CT Group’s employees or agents.
- Each of the Parties acknowledges that, in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement, and any conditions, warranties or other terms implied by statute (except CT Group’s obligations under the Non-Excludable Provisions) or common law are excluded from this Agreement to the fullest extent permitted by law.
- CT Group warrants that CT Group shall not incur any liability on behalf of the Client or in any way pledge or purport to pledge the Client’s credit or accept any other or make any contract binding upon the Client without prior approval being given by the Client.
- The obligations accepted by CT Group and the Client under this clause 8 survive termination or expiry of this Agreement.
- CT Group may terminate this Agreement by notice in writing to the Client if the Client fails to observe any term of this Agreement and fails to rectify this breach, to the satisfaction of the notifying Party, following the expiration of 7 days’ notice of the breach being given to the Client.
- Either Party may terminate this Agreement by notice in writing of at least 6 months or a period equivalent to the residue of the then-current term (whichever is lesser) to the other Party of the intention to terminate this Agreement.
- CT Group may terminate this Agreement upon the happening of any of the following events:
- if the Client enters into a deed of arrangement or an order is made for it to be wound up;
- if an administrator, receiver or receiver/manager or a liquidator is appointed to the Client pursuant to the Corporations Act 2001 (Cth); or
- if the Client would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act 2001 (Cth).
- The Client may, at its discretion, pay to CT Group the equivalent amount of the fees payable by the Client to CT Group during the notice period in lieu of any notice period relating to termination of this Agreement under paragraph (a).
- Upon termination of this Agreement any fees, expenses or reimbursements payable by the Client to CT Group in respect of any period prior to the Termination Date must be paid by the Client within 7 days after the Termination Date.
- Force majeure
CT Group shall not have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement which result from circumstances beyond the reasonable control of CT Group. If CT Group is affected by such circumstances it shall promptly notify the Client in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than 3 months, either Party may terminate this Agreement by written notice to the other Party.
This Agreement may only be amended in writing signed by duly authorised representatives of the Parties.
- Subject to clause 3(b), the Client may not assign, delegate, subcontract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of CT Group.
- CT Group may assign and transfer all its rights and obligations under this Agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to CT Group to be bound by the obligations of the assignor under this Agreement.
- Entire agreement
- This Agreement contains the whole agreement between the Parties in respect of the subject matter of the Agreement, and supersedes and replaces any prior written or oral agreements, representations or understandings between them relating to such subject matter.
- The Parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.
- No failure or delay by CT Group in exercising any right, power or privilege under this Agreement shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.
- The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
- Agency, partnership etc
- This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement.
- Neither Party shall have, nor represent that it has, any authority to make any commitments on the other Party’s behalf.
If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
A notice or other communication connected with this Agreement has no legal effect unless it is in writing. In addition to any other method of service provided by law, the notice may be sent by pre-paid post to the address of the addressee as set out in this Agreement, or sent by facsimile or email to the facsimile number or email address of the addressee.
- Law and jurisdiction
This Agreement takes effect, is governed by, and shall be construed in accordance with the laws from time to time in force in Western Australia. The Parties submit to the non-exclusive jurisdiction of the courts of Western Australia.
- Force majeure