Master Terms and Conditions
BACKGORUND
Oti l as provi des a ra nge of i nformation technology servi ces, i ncluding:
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Ma na ged servi ces;
IT outs ourcing;
Cl oud servi ces; (including Infrastructure as a Service (IaaS), Backup and Recovery a s a Service (BRS products) a nd
Softwa re as a Service (SaaS products);
Col oca tion Servi ces
Infra structure services; s ystems i ntegration; project services;
Ha rdware a nd Software procurement;
Intra net solutions; application management; a pplication & web development;
Tel ephony a nd unified communications services
Thes e Master Terms s et out the terms a nd conditions under which Otilas s upplies these s ervices and a re applicable to all
Cl i ents.
AGREEMENT
1.
PARTIES
The pa rties are:
1.1. The Company name i n a n Otilas Order Form (‘Otilas’, ‘us’, ‘we’ or ‘our’);
a nd
1.2. The Cl i ent named in a n Otilas Order Form (‘you’ or ‘your’)
2.
MASTER TERMS
Thes e Master Terms a pply to a ll IT s ervices provi ded by us to you to the exclusion of a ny purchase order or other
document submitted by you to us. These terms supersede a ny previous a greement that you had with us governing
the terms of our engagement. These Ma ster Terms may a lso be referred to as Terms and Conditions, Servi ce Terms
a nd Service Agreement.
3.
PRODUCT TERMS
3.1. The s ervices that we are a ble to provi de are described in the Product Terms.
3.2. Ea ch of the Product Terms sets out:
3.2.1. The s cope of the servi ce;
3.2.2. The fees for the servi ce; a nd
3.2.3. Any s pecial conditions that a pply to the s ervice.
4.
ORDER FORM
4.1. You ma y request a service by s ubmitting an Otilas Order Form to us.
4.2. Ea ch Oti las Order Form:
4.2.1. Mus t be i n our s tandard form, as current a t the time;
4.2.2. Mus t cl early identify the servi ce requested;
4.2.3. Mus t s et out the parties to the agreement;
4.2.4. Is a request for a service and not a contract unless a nd until a ccepted by us.
5.
SERVICE CONTRACTS
5.1. If we a ccept an Otilas Order Form by a ny means (verbal or wri tten using any media), a binding contract is
crea ted (“Servi ce Contract”) comprising;
5.1.1. The Product Terms, i ncluding a ny s pecial conditions
5.1.2. The Oti las Order Form; a nd
5.1.3. Thes e Master Terms.
5.2. Ea ch Servi ce Contract i s an i ndependent contract.
5.3. If there is any i nconsistency between the parts of a Service Contract, the order of priority i s highest to lowest is:
5.3.1. Any s pecial conditions i n the Product Terms;
5.3.2. The Remainder of the Product Terms;
5.3.3. Thes e Master Terms (which take priority over the Order Form).
6.
SERVICES
6.1. For ea ch Service Contract, we will provide you with the s ervice s pecified i n the relevant Product Terms (‘the
s ervi ce’).
7.
FEES
7.1. The fees for a service a re:
7.1.1. The fees s pecified i n the Product Terms;
7.1.2. If none a re specified, our then current published fees for that servi ce; or
7.1.3. If there are no current published fees, a t our ti me a nd materials ra tes for s imilar servi ce or the fee that we
deem suitable for that type of servi ce based upon our usual fees and our usual hourly ra te.
7.2. Except where we have agreed fixed fees for services, we ma y adjust our fees a t any ti me.
7.3. If we perform any work that is not covered by the Product Terms, we may charge for that work:
7.3.1. At our current published rates for that type of work; or
7.3.2. If there are no current published ra tes, a t our ti me a nd materials rates for similar work or the fee that we
deem suitable for that type of servi ce based upon our usual fees and our usual hourly ra te.
7.4. Unl ess we s ay otherwise in wri ting, when we use the term Monthly Base Fee this means the s tandard price
conta ined in the Otilas Order Form, excluding va riations, usage, consumption, Excl uded Item fees or s et up fees.
8.
PRE-PAID FEES
8.1. If Product Terms require fees to be pre -paid:
8.1.1. Servi ces will not be provided until you pay the pre-paid fees;
8.1.2. We ma y s uspend providing a service i f the balance of the pre-paid fees will not cover our fees for the
s ervi ce required; and
8.1.3. We ma y a pply a mounts you owe us a gainst the balance of your pre-paid fees i n any manner we decide.
8.2. Pre-pa id fees a re non-refundable.
9.
EXPENSES
9.1. You mus t reimburse our out of pocket expenses provi ded:
9.1.1. The expenses have been directly i ncurred s upplying an IT servi ce to you (including parts, tra vel expenses,
l a bour other a ncillary expenses).
9.1.2. We s upply reasonable evidence s ubstantiating the expense.
10. INVOICING AND PAYMENT
10.1. We wi ll i nvoice you:
10.1.1. In a ccordance with a ny payment schedule specified in the Product Terms;
10.1.2. Otherwise:
10.1.2.1.Monthl y i n a dvance for pre -paid fees; or
10.1.2.2.Monthl y i n a rrears
10.2. You mus t pay each invoice i n full:
10.2.1. By the due date specified i n the i nvoice; or
10.2.2. If no due date is s pecified, wi thin 14 da ys of the i nvoice date.
10.3. La te i nvoicing does not a ffect our ri ght to payment or your obligation to pay.
10.4. If a pa yment is overdue, in a ddition to our other rights:
10.4.1. We ma y cha rge interest on the overdue a mount a t the Default Rate, calculated daily;
10.4.2. We ma y wi thhold providing servi ces under a ny Service Contract; a nd
10.4.3. You mus t indemnify us a gainst all costs and expenses (i ncluding legal expenses on a s olicitor / cl ient basis)
i ncurred by us i n a ttempting to recover the overdue a mount.
The ‘Default Rate’ means the overdraft reference ra te quoted by our principal banker on the first day of the
a pplicable month plus 2%.
10.5. If:
10.5.1. You fa il to pay a ny a mount (whether i n whole or part) paya ble in respect of a ny hardware and/or Loan
Equi pment by the time required for payment;
10.5.2. You become i nsolvent (as that term is defined in the Corporations Act 2001); or
10.5.3. The Servi ce Contract between us is terminated, or becomes terminable a t our option,
10.6. You a uthorize us to a rrange, through our own financial institution, a debit to your nominated account or credit
ca rd a ny a mount we deem payable by you.
Thi s debit or charge will be a pplied to your nominate bank a ccount or credit ca rd facility. You a gree to ensure
tha t your nominate bank a ccount or credit ca rd s hall maintain a sufficient balance to pay a ll outstanding
a mounts.
We ma y, wi thout notice to you, enter a t any reasonable time any premises where hardware a nd/or Loan
Equi pment i s located (or believed by us to be located) a nd ta ke possession of that hardware a nd/or Loan
Equi pment not paid for a nd any other hardware a nd/or Loan Equipment to the value of the a mount owing. Oer
permi ssion to enter your premises for that pu rpose is reevobcable. We are not liable to you i n contract, tort or
otherwise, for any cos ts, damages, expenses or losses incurred by you as a result of any a ction ta ken by us
under this clause.
11. THIRD PARTY CHARGES
11.1. You a re responsible for all third party cha rges i ncurred as a result of your use of the s ervice (for example,
tel ecommunication carriage fees) unless we s pecify otherwise in wri ting.
11.2. We ma y i ncrease our fees by wri tten notice to you i f there is an i ncrease in third party charges including but not
l i mited to unforeseen va riances i mposed on us by s uppliers i n your use of, or for i nstallation of a service
12. GST
12.1. Terms i n i talics in this clause have the same meaning as i n the A New Tax Sys tem (Goods and Services Ta x) Act
1999.
12.2. Unl ess s tated otherwise, fees s tated under this agreement exclude GST.
12.3. The consideration paya ble by you under this a greement is the value of a ny
ta xa ble supply for which payment is to be made.
12.4. Subject to us supplying you with a valid ta x i nvoice, i f we make a taxable s upply i n connection with a Service
Contra ct for a consideration, which represents its va lue, then you must pay, a t the same time and in the same
ma nner as the va lue is otherwise payable, the amount of any GST payable in respect of the taxable s upply.
12.5. Subject to us supplying you with a valid ta x i nvoice, i f a Servi ce Contract requires you to pay, reimburse or
contri bute to a n a mount paid or payable by us i n respect of an acquisition of ta xable supply from a third party,
the a mount required to be paid, reimbursed or contributed by you wi ll be the va lue of the acquisition by us less
a ny i nput tax credit to which we are entitled plus, if our recovery from you is a taxable s upply, a ny GST paya ble
under clause 12.4.
13. SERVICE DELIVERY
13.1. We wi ll provide the s ervice:
13.1.1. Duri ng Business Hours, unless otherwise specified i n writing;
13.1.2. At the l ocation(s) specified i n the Product Terms or, i f no location is s pecified, a t the location we
determine to be most a ppropriate; a nd
‘Bus iness Hours’ means 8:30a m to 5:00pm (AEST), Monday to Fri day, e xcluding public holidays at the place in which the
s ervi ce is to be provided.
14. SERVICE STANDARD
14.1. We do not warra nt that the service will be uninterrupted or error free.
14.2. If s ervice l evels are s pecified in the Product Terms, we will use all reasonable efforts to meet or exceed those
s ervi ce l evels
14.3. We do not guarantee that servi ce levels will be met. If the Product Terms s pecify that credits or rebates will
a pply, those credits or rebates a re your sole remedy i n respect of servi ce level failure.
15. ACCESS
15.1. You mus t provi de us with reasonable and timely access to your facilities, premises, information, equipment,
pers onnel, network a nd data to enable to us to fulfill our obligations under the Product Terms.
15.2. We wi ll not be responsible for a ny delay i n providing a service where the delay results from your failure to
provi de ti mely a ccess in a ccordance with cl ause 15.1
16. YOUR OBLIGATIONS
16.1. You mus t:
16.1.1. Compl y wi th our reasonable a nd lawful directions i n relation to the servi ce;
16.1.2. Provi de a safe working envi ronment for our personnel;
16.1.3. Compl y wi th all laws, regulations, policies a nd guidelines (including a ny a cceptable use policy that we
i nform you of) applicable to the service;
16.1.4. Ens ure that a ny i ncumbent provider who is tra nsitioning the service to us makes a vailable the
i nformation, resources a nd facilities required by us to provide the servi ce;
16.1.5. Ma i ntain regular a nd complete backups of all your data.
16.1.6. We wi ll not be responsible for a ny fa ilure, default or delay to the extent caused by your failure to perform
your obl igations under this clause.
17. HARDWARE SUPPLY
17.1. To the extent that the s ervice is for the sale and supply of hardware:
17.2. The ri sk of loss of or damage to the hardware passes to you on delivery. Your obligation to i nsure hardware
commences when risk passes to you. You must insure the hardware for i ts full value a nd sure that our interest is
noted.
17.3. You mus t not s ell, dispose of, assign or encumber the hardware unless and until you have paid for i t i n full;
17.4. Where the hardware manufacturer’s warra nty i s capable of being assigned to you, i t is the only wa rranty gi ven
i n relation to the hardware, to the extent permitted by l aw;
17.5. Where hardware is subject to export control laws or regulations you must not directly or i ndirectly export, re export, distribute or otherwise act i n vi olation of such laws and regulations; a nd
17.6. The Uni ted Nations Convention on Contracts for the International Sale of Goods does not apply.
18. HARDWARE LEASING
18.1. To the extent that the s ervice is for the l easing of hardware
18.1.1. We own the hardware a nd i t is l eased, not sold to you;
18.1.2. You mus t not do anything which is contrary to or prejudices our ownership of the leased hardware;
18.1.3. You mus t insure the leased hardware for i ts full replacement value and keep i t secure a nd safe from loss,
des truction or damage;
18.1.4. The l eased hardware must only be used by i n a ccordance with the manufacturer’s instructions and our
rea s onable directions;
18.1.5. At the end expiry of the lease term you must return the leased hardware to us a long with a ll parts and
a ccessories;
18.1.6. We ma y require a security deposit which may a pply i n satisfaction of any amount you owe us i n relation to
the l eased hardware;
18.1.7. If the l ease hardware is l ost, destroyed or damaged:
18.1.7.1.You mus t promptly notify us of the l oss or damage;
18.1.7.2.You mus t pay us the cost of repairing or replacing the leased hardware; and
18.1.7.3.Your obl igation to pay the fees in respect of the l eased hardware is a bsolute a nd continues
notwi thstanding i ts l oss, destruction or damage or the termination of the Service Contract; a nd
18.1.8. We ma y reta ke possession of the hardware i f
18.1.8.1.You breach this a greement; or
18.1.8.2.We rea sonably believe we need to do so to protect our ti tle to the hardware – a nd you i rrevocably
a uthorise us to enter on to your premises for this purpose.
19. LOAN EQUIPMENT
19.1. We ma y i nstall on your premises, l oan or otherwise provide you with equipment (“Loan Equipment”). All Loan
Equi pment:
19.1.1. Rema ins our property;
19.1.2. Mi s t only be used by you for the purposes of receivi ng s ervices form us; a nd
19.1.3. Mus t be kept secured from l oss or damage.
19.2. If Loa n Equipment in your possession or control is l ost, stolen or damaged:
19.2.1. You mus t notify us without delay; a nd
19.2.2. You mus t pay us the replacement cost of the Loan Equipment ca lculated as the recommended retail price
a t the da te the Loan Equipment was lost, s tolen or damaged minus any a mount we recover a n insurance
pol icy.
20. INSPECTION AND INSURANCE
20.1. You mus t allow us to enter upon you premises to i nspect a ny hardware a nd/or Loan Equipment in your
pos session upon reasonable notice from ti me to ti me.
20.2. If a ny ha rdware and/or Loan Equipment belonging to us is sold or otherwise disposed of by you or i f any
i ns urance cl aim is made in respect of it, we are entitled to tra ce and receive the sale or i nsurance proceeds. You
mus t notify us of all i nsurance cl aims made by you i n respect of the hard and/or Loan Equipment. You must
keep the proceeds of sale or i nsurance i n a s eparate bank a ccount or trust for us.
20.3. You mus t reimburse to us a ll costs incurred by us in exercising our ri ghts under this clause.
21. SOFTWARE
21.1. To the extent that a service i nvolved the creation or licensing of software that we own or have licensed or have
s ub-licensed to you:
21.1.1. We wa rra nt that our s oftware will operate s ubstantially i n a ccordance with i ts a ccompanyi ng
documentation during the warranty period;
21.1.2. We wi ll use our reasonable efforts to correct a ny defect provided:
21.1.2.1.You noti fy us of the defect during the warranty period ;
21.1.2.2.You ha ve used the software in a ccordance with i ts a ccompanyi ng documentation a nd our
recommendations;
21.1.2.3.The s oftware has not been used on or in conjunction with equipment or software not a pproved by
us ;
21.1.2.4.The s oftware has not been modified by anyone other than us;
21.1.2.5.The defect is not due to change in your IT or physical environment or software not a pproved by us;
21.1.2.6.You a re not i n breach of this agreement or a ny Service Contract.
21.1.2.7.‘Wa rra nty period’ means 30 da ys from the date of delivery, unless we specify a different period.
21.1.2.8.‘Defect’ means a reproducible failure of the software to work substantially as described in the
documentation that accompanies i t.
22. PPS LAW
22.1. Thi s clause applies to the extent that the a greement we have with you provides for or contains a ‘s ecurity
i nterest’ for the purposes of Personal Property Securities Act 2009 (Cth)(“PPS La w”)(or part of i t). The security
i nterest granted to us is a ‘purchase money s ecurity i nterest’ (‘PMSI”) to the extent that it ca n be under section
14 of PPS La w.
22.2. We ma y register our security interest. You must do anything (such as obtaining consents and signing
documents) which we require for the purposes of:
22.2.1. Ens uring that our s ecurity i nterest is enforceable, perfected and otherwise effective under the PPS La w;
22.2.2. Ena bling us to gain first priority (or a ny other priority a greed to us i n writing for our s ecurity i nterest; a nd
22.2.3. Ena bling us to exercise ri ghts i n connection with security i nterest.
22.2.4. Ena bling us to exercise ri ghts i n connection with the security i nterest.
22.3. Our ri ghts under our a greement with you a re i n addition to a nd not in s ubstitution for our ri ghts under other
l a w (including PPS La w) a nd we may choose whether to e xercise ri ghts under our a greement and/or under such
other l aw, as we see fi t.
22.4. The following provisions of PPS La w do not apply a nd, for the purposes of s ection 115 of the PPS La w a re
“contra cted out” of our agreement with you i n respect of goods that a re not used predominantly for personal,
domestic or household purposes:
22.5. The following provisions of the PPS La w: 22.5.1. Secti ons 95 (notice of removal of accession to the extent i t requires us to give a notice to you), 96
(retention of a ccession), 125 (obligations to dispose of or retain collateral); s ection 130 (notice of disposal
to the extent it requires us to give a notice to you); section 132(3)(d) (contents of s tatement of a ccount
a fter disposal); section 132(4) (statement of a ccount if no disposal); s ection 135 (notice of retention);
s ecti on 142 (redemption of collateral); and section 143 (re - instatement of security agreement). 22.6. You wa ive your ri ghts to receive a verification s tatement i n relation to registration events i n respect of
commercial property under s ection 157 of the PPS La w.
22.7. We a nd you agree not to disclose information of the kind that ca n be requested under s ection 275(1) of the PPS
La w. You must do everything necessary on your part to ensure that s ection 275(6)(a) of the PPS La w continues
to a pply. The a greement in this sub-clause is made solely for the purpose of allowing to us the bene t of s ection
275(6)(a ) a nd we shall not be l iable to pay damages or a ny other compensation or be s ubject to i njunction i f we
brea ch this s ub-clause. 22.8. You mus t not create, purport to create or permit to be created any ‘security i nterest’ (as defined in PPS La w) in
the ha rdware a nd/or Loan equipment other than with our express written consent. 22.9. You mus t not l ease, hire, bail or gi ve possession of (‘sub-hire’) the equipment to anyone else unless we (i n our
a bs olute discretion) rs t consent in writing. Any s uch s ub-hire must be i n wri ting i n a form acceptable to us a nd
mus t be expressed to be subject to our ri ghts under our agreement with you.
22.10.
You mus t take all steps i ncluding registration under PPS La w as may be required to:
22.10.1. Ens ure that a ny s ecurity i nterest a rising under or in respect of the s ub-hire i s enforceable, perfected
a nd otherwise effective under the PPS La s;
22.10.2. Ena bling us to gain (subject always to our ri ghts) first priority (or a ny other priority we agree i n writing)
for the s ecurity i nterest; a nd
22.10.3. Ena bling each of us to exercise our respective ri ghts in connection with the security i nterest.
22.10.4. We ma y recover from you the cost of doing anything under this cl ause, including registration fees and
the cos ts of notification.
23. THIRD PARTY MATERIALS
23.1. In provi ding a service we may s upply you with materials (including software) licensed by third parties.
23.2. You mus t comply with the terms of the third party l icense a nd i ndemnify us against any l oss, damage, claim,
l i ability or demand we incur due to your breach of a third party l icense.
23.3. You mus t comply with a ll l aws applicable to l icensing of s oftware or the protection of intellectual property a nd
fa i lure to do so provides us with the ri ght, at our discretion, to terminate any a greement with you with 7days
noti ce.
You a gree that we have the ri ght to terminate all agreements between you a nd us with no notice period if we, a t
our a bsolute discretion, believe that your breach of s oftware l icense or any a pplicable law represents a risk to us
or ma y represent a risk to us i n the future.
24. DELAY
24.1. We wi ll use our reasonable efforts to meet any deadlines or milestones that we promise to meet but will not be
l i able for a ny delay or failure to meet these.
24.2. To the extent that our provision of s ervice is i mpaired by:
24.2.1. You;
24.2.2. A thi rd party
24.2.3. A fa i lure or defect (not ca used by us) in hardware or s oftware (not s upplied by us ); or
24.2.4. An event beyond our reasonable control – then;
24.2.5. Our obl igation to provide the s ervice is s uspended;
24.2.6. We wi ll not be liable to you i n respect of any delay or failure to provide the s ervice
24.3. Where our personnel a re delayed from preforming a service due to a delay you ca use, we may i nvoice you those
pers onnel’s hourly ra te plus 50% for the duration of the delay s ubject to us ma king reasonable efforts to
rea llocate personnel to other chargeable duties.
25. CONFIDENTIALITY
25.1. A pa rty mus t not use or disclose the other party’s confidential information without prior written a pproval.
25.2. Ea ch pa rty must take all reasonable s teps to ensure that its employees and agents do not use or disclose the
other pa rty’s confidential information.
25.3. A pa rty ma y disclose confidential information where required by l aw or the rules of a s tock exchange.
25.4. Thi s clause survives termination of this agreement.
25.5. ‘Confi dential i nformation’ means all i nformation treated by the owning party (‘discloser’) as confidential and:
25.5.1. Provi ded to the other part (‘recipient’); or
25.5.2. Of whi ch the recipient becomes a ware – except information that
25.5.3. The reci pient creates or lawfully obtains i ndecently of the discloser; or
25.5.4. Is public knowledge (otherwise than as a result of a breach of confidentiality by the recipient).
25.5.5. Any commerci al terms of our agreement with you i ncluding a ny price i nformation for any good or servi ce
provi ded by us to you shall be deemed to be Confidential Information.
26. INTELLECTUAL PROPERTY RIGHTS
26.1. Unl ess otherwise specified in writing, we own exclusively a ll intellectual property ri ghts in material, i ncluding
s oftware, that we design, create, modify, s upply or l icense, even if it was created or modified for or s uggested
by you.
26.2. To the extent necessary for you to receive the benefit of a servi ce, we grant you a non -exclusive, nontra ns ferable, license to use our materials.
26.3. If a ny of your ma terials become combined with our materials with your knowledge and without your objection,
then we have a perpetual, royalty-free, irrevocable, non-exclusive license to copy, use, adapt and distribute and
s ub-license those materials in the course of our ongoing business.
26.4. ‘Intellectual property ri ghts’ includes a ll patents, copyright, ri ghts i n ci rcuit layouts, registered designs,
tra demarks, written content, tra de, business or company names a nd the right to have confidential i nformation
kept confidential.
27. LIMITAITON OF LIABILITY
Ri ghts and remedies for non-PDH goods costing no more than $40,000
27.1. If we s upply you with goods or servi ces not of a kind ordinarily acquired for personal, domestic or household use
of cons umption but costing no more than $40,000 you ha ve extensive ri ghts under the Australian Consumer
La w i ncluding consumer guarantees and remedies but:
27.1.1. In rel ation to these goods, our l iability for failure to comply wi th a consumer guarantee (other than certain
gua ra ntees about ownership a nd undisturbed use) is limited to
27.1.1.1.Replacing the goods or s upplyi ng equivalent ones;
27.1.1.2.Repairing the goods
27.1.1.3.Pa yi ng the cost of replacing the goods or a cquiring equivalent ones; or
27.1.1.4.Pa yi ng the cost of havi ng the goods repaired; and
27.1.2. In rel ation to these servi ces, our liability for fa ilure to comply with a consumer guarantee is limited to:
27.1.2.1.Supplying the s ervices again; or
27.1.2.2.Pa yi ng the cost of havi ng the services supplied a gain.
Excl us ions of implied terms a nd limitation of liability
27.2. Subject to clause 27.1
27.2.1. Any repres entation, warranty, condition, guarantee or undertaking that would be i mplied in these terms
by l egislation, common law, equity, tra de, custom or usage or otherwise is excluded to the fullest extent
permi tted by l aw.
27.2.2. We do not warra nt or represent the performance, accuracy, reliability or continued a vailability of our
goods a nd s ervices or that they will be free from faults, errors or i nterruptions.
27.2.3. We a re never liable to you for, a nd you release us from any cl aim for a ny Consequential Loss.
27.2.4. Subject to clause 27.1, 27.2.1, 27.2.2, 27.2.3 a nd 27.2.5, our ma ximum aggregate l iability under a Service
Contra ct or Cl a im, whether for breach of these terms or i n negligence or i n a ny other tort or for a ny other
common law or s tatutory ca use of action or otherwise is the amount equal to the fees you have paid to us
under the Servi ce Contract i n the preceding year. 27.2.5. We wi ll not be liable to you for data loss under any ci rcumstances.
27.3. For the purpose of this Agreement;
27.3.1. Cl a i m means a ny cl aim, demand, a ction, proceeding or legal process (i ncluding by wa y of set off, crosscl a im or counterclaim); and 27.3.2. Cons equential Loss means a ny i ndirect, special, economic or consequential l oss or damage or loss of
revenue, profits, goodwill bargain or opportunities or loss or corruption of data or l oss of a nticipated
s a vi ngs that you incur or s uffer i n a ny wa y, whether (a) caused by our negligence; or (b) we knew or
s hould have known of the possibility of s uch loss or damage.
28. WARRANTY AND IMDEMNITY
28.1. You wa rra nt that you have not relied on a ny representation made by us which has not been s tated expressly i n
thes e Master Terms. 28.2. You mus t indemnify us, our employees and agents against a ny l oss (including reasonable l egal costs a nd
expenses) or liability any of us reasonably i ncurs or s uffers arising from a ny proceedings where such loss or
l i ability was ca used by: 28.2.1. Your brea ch of these Ma ster Terms or a Service Contract; or 28.2.2. Your wi lful, unlawful or negligent act or omission. 29. TERMINATION AND SUSPENSION OF SERVICE CONTRACTS
29.1. We ma y terminate or s uspend performance of a Servi ce Contract immediately i f:
29.1.1. You breach the Service Contract a nd fail to remedy the breach within 14 da ys after receiving a notice
deta iling the breach and requiring that it be cured; 29.1.2. You become i nsolvent; 29.1.3. You fa il to pay money owed to us wi thin 30 da ys of i t being due; 29.1.4. You cea se, or threaten to cease, ca rryi ng on your business; 29.1.5. You exceed your credit limit or there is an adverse change i n our credit assessment of you, or i f you
(verba lly, or otherwise) deny the existence of the Service Contract or deny that you are bound by the
Servi ce Contract or any of it’s terms or conditions; 29.1.6. We rea sonably believe that you have used a servi ce for unauthorised, criminal or unlawful activity; or 29.1.7. An a dministrator or controller (as those terms are defined i n the Corporations Act 2001) i s appointed in
res pect of any of your assets. 29.2. Your brea ch of a Servi ce Contract i s deemed to be a breach of these Master Terms a nd all other Servi ce
Contra cts . 29.3. Termi nation of a Servi ce Contract does not a a ffect our rights of action based on any breach by you before the
termi nation. 29.4. On termi nation we may: 29.4.1. repossess any of our property i n your possession, custody or control; 29.4.2. reta i n all moneys paid to us under the Service Contract; 29.4.3. provi de you with a n i nvoice for a ll unpaid fees and expenses and any costs incurred by us as a result of
termi nation; a nd 29.4.4. purs ue any additional or alternative remedies provided by l aw. 29.5. If you terminate a Servi ce Contract prior to its expiry (or i f we terminate the contract before it’s expiry for a ny
rea s on a uthorized under this agreement), then you must pay us within 14 days of invoice, the equivalent of the
Monthl y Service Fee multiplied by the number of months remaining in the Service Contract.
29.6. The termination fee i n clause 29.5:
29.6.1. Is a reasonable pre-estimate of our loss and damage arising from a n early termination of a Service
Contra ct; a nd
29.6.2. Is wi thout prejudice to a ny other ri ghts we may have to recover other sums from you .
29.6.3. You a cknowledge that we ma y recruit s taff, purchase software licenses, purchase i nfrastructure, engage
thi rd party provi ders, and incur other expenses in order to provide s ervices to you and you a cknowledge
tha t the payment i n accordance with 29.5 i s a fair a nd reasonable equivalent to these costs i ncurred by us.
29.7. Should the Service Contract expire a nd not be expressly terminated by you i t will continue i ndefinitely a nd
a utomatically be renewed for a further 24 Month term s tarting on the original contract expiry da te.
29.8. Upon expiry or termination of a Service Contract each party must return any property belonging to the other
pa rty wi thin 7 da ys.
29.9. Should the Service Contract be terminated for a ny reason we no l onger have a ny obligation to retain your data
or a ny other i ntellectual property of yours on our i nfrastructure or s ystems or that of our s uppliers a nd we may
remove this data as at the date of service ca ncellation. It is your responsibility to ensure that any data or
i ntellectual property residing on our s ystems or i nfrastructure i s backed up prior to the ca ncellation of the
Servi ce Contract.
30. TERMINATION AND CONTRACT PERFORMANCE
30.1. You ma y not terminate a Servi ce Contract on the basis of our failure to perform a t the service level s tated in a
Servi ce Level Agreement;
30.2. Servi ce Level Agreements applicable under all Servi ce Contracts represent our expectations for servi ce levels
a nd we shall make all reasonable e orts to a ttain these levels but you acknowledge that this may not be possible
from ti me to time.
30.3. If you terminate a Servi ce Contract before expiry you wi ll pay us i n a ccordance with 29.5.
31. NOTICES
31.1. Al l notices must be:
31.1.1. i n wri ting;
31.1.2. Si gned by the party gi ving it (or its a uthorised representative); a nd
31.1.3. Sent to a party’s s ervice address.
31.2. A pa rty’s servi ce address i s any of:
31.2.1. In the ca se of a corporation, its current registered office;
31.2.2. The pa rties’ business addresses s et out i n a Oti las Order Form; or
31.2.3. Any other a ddress a party nominates, by wri tten notice to the other party, a s a servi ce address.
31.2.4. Notwi thstanding the above, Otilas may a dvise of changes to these terms or the Product terms via email or
vi a a note on a monthly invoice s upplied by Oti las to you.
32. RESTRAINTS
32.1. Nei ther party may a pproach the employees, Agents or Contractors of the other party to this Agreement, with an
offer of employment during the term of this Agreement or for 12 months after i ts expiry or termination.
32.2. For the a voidance of doubt, nothing in this clause 32 prevents either party from employing a n employee of the
other pa rty as a result of the employee responding to a public notice, in the absence of a ny s olicitation however
i f thi s occurs then the employi ng party wi ll pay a replacement recruitment fee to the other party of $15,000 ex
GST.
33. GENERAL MATTERS
33.1. We a re a n i ndependent contractor a nd have no authority to bi nd you by contract or otherwise.
33.2. We ma y s ub-contract the performance of this agreement.
33.3. We ma y a ssign or novate our ri ghts a nd obligations under this Agreement a t any ti me without your consent.
33.4. You ma y not a ssign your ri ghts a nd obligations under this agreement without our prior written consent (which
we wi ll not unreasonably withhold).
33.5. If a pa rty overlooks a breach of a Service Contract by the other party on one or more occasions, it i s not taken to
ha ve a greed to a ny future breach.
33.6. Thes e Master Terms, the Product Terms and the Otilas Order Form are the entire agreement between the
pa rti es with respect to the servi ces Specified in the Product Terms and all prior a greements regarding those
s ervi ces are s uperseded.
33.7. Anythi ng that is unenforceable must be read down, to the point of severance if necessary.
33.8. Anythi ng a party ca n do, it may do through an appropriately a uthorized representative. 33.9. Any ma tter i n our discretion i s in our absolute and unfettered discretion. 33.10.
Cl i ent a grees that Otilas will not provide any Service(s) to Cl ient
if Client does not have a current
Servi ce Agreement or Contract as defined
by these Master Terms. Therefore Client agrees that i f Otilas
currentl y s upplies Client with a ny s ervice Otilas is entitled to assume that Cl ient
is in a current Service
Agreement or Contract. Client is required to provide Otilas with written i nstruction to cancel Service prior to the
expi ry of the Service Agreement or Contract. If Cl ient does not provide wri tten instruction
to cancel Service
pri or to expiry a nd s ubsequently a t any later ti me pays a n i nvoice for Service after Contract expiry Cl ient agrees
tha t thi s payment will constitute your i nstruction to renew Service Agreement or Contract from the date of
i nvoi ce payment for a term equivalent to the initial Service Agreement or Contract. 33.11.
You a gree that we will be gra nted a dministrative exclusivity for a ll s ystems a nd i nfrastructure that is
s ubject to this agreement. This means that you agree that you authorise us to be solely responsible for the
a dministration, monitoring, a nd maintenance of your systems and infrastructure an d you agree that we have
s ol e rights to a ccess or i mplement a ny change on these s ystems a nd i nfrastructure. You authorise us to change
a dministrator a ccount passwords and agree that you or a ny thi rd party a ppointed by you will not access or
a ttempt to access any of your s ystems or i nfrastructure. You a gree that a dministrative exclusivity is a necessary
provi sion to ensure that we a re solely responsible for the management of your systems and infrastructure
a ccording to best practice a nd i n order to deliver the servi ces s ubject to this agreement. Furthermore,
you
a gree that i f you or a ny thi rd party a ppointed by you a ccess or a ttempt to a ccess a ny of the sys tems or
i nfrastructure that is s ubject to this agreement we have the right, a t our s ole discretion, to immediately ca ncel
a ny or a l l services provided to you or to s uspend servi ces until we are satis ed that this condition has been ful
l l ed. You agree that i n the event that we ca ncel or s uspend your s ervice/s subject to this cl ause you will
i ndemnify us and hold us harmless in relation to a ny l oss, including nancial l oss a nd data loss, s u ered by you as
a res ult of the ca ncellation or suspension of the servi ce/s. You also a gree that i f we cancel your s ervice/s
purs uant to our ri ghts under this clause you must pay us the outstanding value of the s ervice a greement i n
a ccordance with 29.5 a nd 29.6 a nd 29.6.1. 33.12.
If we perform any work a t your request that is not part of our Service Ca talogue, and that is not cl assi
ed by our Servi ce delivery Ma nager as a n Incident, this work will be billed a t the standard work request ra te of
$180 per hour (ex gST). The a mount payable will be $180 (ex gST) multiplied by the
total number of hours
expended on the work, plus any reasonable expenses incurred i n performing the work. Th is a mount i s payable if
the work i s requested i n a ti cket s ubmitted through the Otilas Portal, email, verbal, or a ny other i nstruction that
we ma y reasonably understand to be a request to complete task/s for you that a re outside of the scope of the
Servi ce Ca talogue and that do not constitute a n Incident. If you do not request a quote for a work request, you
a gree that we are entitled to assume that you consent to us undertaking a ll required tasks necessary to
compl ete the work request, a nd you a gree to pay for a ll works completed. If nal payment is not made, or if
progress payments (if applicable) are not received within 14 days of invoice date, you agree that
we have the
ri ght to cease a ny open tasks a nd to restore your s ystems to their s tate before we made a ny a lterations or
cha nges pursuant to the project or work request. 33.13.
If you a dd additional s ta that require support, you a gree to advise
us of this change within 30 days so
tha t we may a djust your monthly cost
in accordance with this change. Any a dditional users will be charged a t
$70 per month, paya ble from the earliest of the date on which the additional user a ccesses the Otilas Portal, the
da te on which the user requests us to complete a ny ta sk by a ny means, or the date on which our monitoring
a nd remote a ccess s oftware is i nstalled on the user’s desktop. You a gree that a ny user that requests that we
undertake a ny ta sk, a nd that is employed by you or who is a dded to your domain after the date of execution of
thi s agreement will be regarded as being a n a dditional user pursuant to this agreement. Furthermore, i f you do
not a dvise us of any a dditional users we may at our sole discretion terminate this a greement with the balance
outs tanding to be paid i n a ccordance with 29.5. You a gree to pay the aforementioned monthly ra te as a backcha rge for all additional users. 33.14.
We ma y provi de you with a Support Services Schedule or equipment Schedule that lists the services we
wi l l supply you a nd lists the devices for which these s ervices will be s upplied. If you do not request these
documents prior to s ervice commencement i n writing, you agree that we will, at our sole discretion, determine
whi ch devices will be supported by us pursuant to the service contract and in accordance with the number of
devi ces/subscriptions ordered through the Otilas Order Form. 33.15.
We ma y s upply you wi th a Service Level Agreement (SLA) at our s ole discretion. This will only be
s upplied i f requested in writing prior to s ervice commencement. The Service Level Agreement provides a n
i ndication of our usual s ervice delivery ti mes a nd is i ntended as a guide. You agree that all representations made
wi thin the Service Level Agreement (if provided) a re indicative only a nd a re not part of your servi ce contract. 33.16.
You a gree that from ti me to ti me we ma y require you to complete a user Register form which we use
to con rm the full l ist of users that we are required to s upport. You a gree that the i nformation that you provide
on thi s form will be true, complete, a nd a ccurate. Furthermore you a gree that upon s ubmission of this form, i f
the form denotes a n increase i n user numbers (beyond the number of users explicitly s upported within your
contra ct), your s ubmission of this form a nd a cceptance of these Master Terms a nd Co nditions will constitute a
renewal of your contract for a term of 24 months from the date of submission of the form. You agree that given
the i nter-dependency of ma ny of our s ervices this contract renewal will apply to all s ervices provided by us to
you, except for s ervices which a lready have an expiry da te more than two years from the date of submission of
the us er Register form. upon renewal of your contract the monthly a mount payable will increase to reflect the
a dditional users as per the provisions of these Master Terms. You agree that if we request you to complete and
s ubmit a user Register form and you fail to do so within 2 weeks from the date of our initial request, we will
a mend the number of registered users to what we reasonably assume to be the correct number of users and
wi l l effect a renewal of your contract in accordance with the terms of this clause.
33.17.
You a gree that all directors of the Client company (or other l egal entity as a ppropriate) are jointly a nd
s everally liable for all moneys payable to Otilas in relation to a ny products or s ervices provided by Oti las to you
or a ny a s sociated company. You agree that your guarantee a nd the guarantee of any other director is not
condi tional upon the agreement of any other director or guarantor.
34. APPLICABLE LAW AND DISPUTES
34.1. Thi s a greement i s subject to the laws that apply i n new South Wales, Australia.
34.2. Any di s pute or difference arising i n connection with this a greement will be submitted to arbitration in
a ccordance with a nd s ubject to the Institute of Arbitrators and Mediators Australia expedited Commercial
Arbi tra tion Rules.
34.3. Otherwise, l egal proceedings relating to this agreement or a ny dispute about i t must be brought in the courts of
new South Wales, Australia.
35. INTERPRETATION
35.1. Hea dings are for navigational assistance only a nd do not a ffect the meaning of this agreement.
35.2. Where a term is said to ‘i nclude’ one or more things, the list is not exhaustive and does not l imit the natural
mea ning of the term in a ny wa y.
35.3. A s chedule or a ttachment to a document (including a schedule or a ttachment to this a greement) is part of that
document, as is a ny document i ncorporated by reference.
35.4. A reference to the singular i ncludes the plural and vi ce versa.
35.5. There is no significance i n the use of gender-specific language.
35.6. A ‘pers on’ i ncludes a ny entity which can s ue a nd be s ued a nd a ny l egal successor to or representative of that
pers on.
35.7. A reference to ‘hardware’ or ‘Loan equipment’ i ncludes a ll IT and communication products and equipment
i ncl uding hardware, software and related parts, a ccessories a nd other goods.
35.8. A reference to a law i ncludes a ny a mendment or replacement of that l aw.
35.9. A provi sion must not be construed to the disadvantage of a party because that party prepared or required i t.