Master Services Agreement
BACKGROUND
Kloudify provides a range of information technology services, including but not limited to:
- Managed services;
- Cloud services including software as a service (SaaS) and infrastructure as a service (IaaS);
- Connectivity services;
- Labour and contract services;
- Resell Microsoft licenses;
- Microsoft Teams calling
- Cyber security services;
- Endpoint devices;
- Software and platform services; and
This Master Services Agreement (MSA) sets out the terms and conditions that will apply to your use of these Services. From time to time, you may request and we agree to provide, the Services on the terms set out in this MSA.
By agreeing to this MSA (either by clicking-through on the Portal or by any other method of acceptance), your Order for the Services constitutes an offer by you to acquire the nominated Services on the terms and conditions of this MSA, including the Order, subject to acceptance by us.
Upon acceptance by us of an Order, an independent and binding contract comprising the Order, Service Schedule and the MSA (Contract) is created between the parties. Both parties agree to be bound by the terms of the Contract in relation to the provision of Services.
DEFINITIONS AND INTERPRETATION
1 In this MSA, unless the context otherwise requires:
Acceptance occurs when you submit your Order to us and have agreed to the terms and conditions of this MSA (including the Order);
Additional Services means any additional services as may be specified in the Order;
Agreement means this Master Services Agreement including the Special Conditions, Annexure, Service Schedules and the Orders
Annexure means an annexure to this Agreement.
Authorised Representative of a party means the person named in Clause 22.
Business Day means a day other than Saturday, Sunday or public holiday in Sydney, NSW.
Cloud means the virtual infrastructure made available by us or our third party service providers to provide the Services;
Commencement Date means the date specified in an Order, or, if no date is specified, then the date of the Contract;
Confidential Information means:
- the terms of Contract and its respective subject matter, including information (whether oral, graphic, electronic, written or in any other form) submitted or disclosed by either party relating to the Contract;
- information that at the time of disclosure by a party is identified as being confidential or that the recipient ought reasonably understand to be confidential, including:
(i) for you, all information transmitted to or from, or stored on, the Cloud; and
(ii) for Kloudify, audit and security reports, product development plans, data center designs, server configuration designs and other proprietary technology; and all other information belonging or relating to a party, or a related entity of that party, that is disclosed and is not generally available to the public at the time of disclosure other than by reason of a breach of the Contract or which was known, or ought reasonably to have been known, by the other party as being confidential to the other party or its related entity;
Content means data, text, emails, files, names, artwork, graphics, video, audio, reports, policies, or other information or materials uploaded, sent or communicated by you to us;
CPI means the weighted average of 8 capital cities Consumer Price Index published by the Australian Bureau of Statistics;
Fair Use Policy means the fair use policy for the service found either in the Service Schedule, Order or Website.
Fees mean any fees and expenses that are applicable to the Services;
GST has the meaning given to that expression in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Intellectual Property Rights means all present and future intellectual and industrial property rights conferred by statute, at common law or in equity and wherever existing, including:
- any copyright, patents, patent applications, designs, design applications, trade marks, trademark applications, service marks, trade names, business names, domain names, eligible layout rights or similar rights, whether registered or not;
- any invention, discovery, trade secret, know-how, computer software and confidential or technical information;
- Confidential Information;
- any other rights resulting from intellectual activity in any field; and
- any grant of registration for or title to anything referred to in paragraphs (a) to (d) inclusive and all renewals and extensions of these rights;
Law means:
- principles of law or equity established by decisions of courts;
- statutes, regulations or by-laws of the Commonwealth, a State, a Territory or a government agency; and
- requirements and approvals (including conditions) of the Commonwealth, a State, a Territory or a government agency that have the force of law;
Order means any order made by you from time to time for the Services and accepted by Kloudify;
Personal Information means any information or opinion about a natural person (whether or not true),as defined in the Privacy Act, which either party deals with in connection with performing its obligations under the Contract;
Personnel means any individuals, employees, agents, consultants or sub-contractors;
Kloudify, we, our or us means Kloudify Technologies PTY LTD ABN 87 645 123 404;
Kloudify Equipment means the equipment loaned or rented to the Customer by Kloudify together with any cabling or other ancillary items provided with it. For clarity, it does not include equipment purchased by the Customer from Kloudify by instalment payments or otherwise.
Portal means the particular online portal nominated by us that is made available to you, on which you can:
- submit an Order for Services; and
- effect Acceptance of the terms of this MSA;
Privacy Act means the Privacy Act 1988 (Cth);
Privacy Law means the Privacy Act (including the National Privacy Principles under the Privacy Act), and any other privacy or general legislation which binds the parties and which relates to the protection of Personal Information;
Privacy Policy means the privacy policy posted by us on the Website;
Service Levels means the service levels specified in the Order relating to the Services;
Service Level Credit means the available credits specified in the Order;
Service Level Credit Cap means the cap specified in the Order;
Service Schedule means a schedule which is signed by both parties stated to be part of this Agreement, which describes the Service, sets out Charges, additional terms and conditions (if any) and any other matters related to the Service.
Services mean the services to be provided to you as specified in the Order and includes any Additional Services specified in the Order;
Site means the site specified in an Order;
Standard Rates means our standard time and materials rates which are subject to change from time to time;
Special Conditions means as specified on the Order either as notes or special conditions (if any);
Term means the period set out in clause 3 of this MSA;
Third Party Software means any third party software specified in an Order;
User means a person:
- who acquires under contract a product or service that relies on the Service as an input;
- who is the ultimate recipient or user of the Service or a product or service of the kind described in (a)
(excepting the Customer);
- to whom Kloudify supplies the Service at the Customer’s request;
- to whom the Service is resupplied by the Customer; or
- authorised by the Customer to use or distribute the Service.
Website means our set of interconnected web pages located on our server and available through the world-wide-web; and
You or your means the person named in the Order as the customer who has contracted for the Services through the Portal or by any other means by which we have accepted the Order.
1.2 In this MSA, except where the contrary intention is expressed:
- the headings are used for convenience only and do not affect the interpretation of this MSA;
- a reference to a document includes the document as modified from time to time and any document replacing it;
- if something is to be or may be done on a day that is not a Business Day then it must be done on the next Business Day;
- the word “month” means calendar month and the word “year” means 12 months;
- the words “in writing” include any communication sent by letter, facsimile transmission or email or any other form of communication
capable of being read by the recipient; - a reference to all or any part of a statute, rule, regulation or ordinance (statute) includes that statute as amended, consolidated, re enacted or replaced from time to time;
- wherever “include” or any form of that word is used, it must be construed as if it were followed by “(without being limited to)”;
- money amounts are stated in Australian currency unless otherwise specified; and
- a reference to any agency or body, if that agency or body ceases to exist or is reconstituted, renamed or replaced or has its powers or functions removed (defunct body), means the agency or body that performs most closely the functions of the defunct body.
PRIORITY OF AGREEMENT
- Special Conditions (if any)
- Master Service Agreement
- Service Schedule
- Order
TERM
1. The MSA has effect on and from the date of execution and continues unless terminated in accordance with its terms.
2. An Order has effect on and from the Commencement Date specified in the Order and, unless terminated earlier in accordance with the provisions of the Order or this MSA, will continue for a minimum period specified on the order or if unspecified for a 36 month period and thereafter for an additional 12 months.
3. An Order term will renew for a further 12 months beyond each term. Any orders cancelled will require a 12 month notice or cancellation period
4. For the further term referred to in clause 3.3 to be void, 30 days notice must be given prior to the end of the original or additional terms. Additional fees will apply for month to month services.
PROVISION OF SERVICES
1. Any Services we provide to you must be pursuant to an executed Order.
2. We will provide the Services to you in accordance with the Contract and subject to any assumptions listed in the Order.
3. We will commence providing the Services to you after receipt and acceptance of your Order unless otherwise notified. At such time the billing for services will commence.
4. You agree and acknowledge that the Services are not of a kind ordinarily acquired for personal, domestic or household use or consumption.
5. Where we provide the Services in conjunction with our third party service providers the Order will provide details including any applicable third party service provider terms and conditions which may also apply to your use of the Services.
FEES AND PAYMENT
1. The applicable Fees will be specified in the Order.
2. Fees are due and payable by you in accordance with the Order and will be paid through our automated system by credit card or by direct debit into a bank account specified on the invoice monthly in advance.
3. Any other fees are payable on the due date specified on the invoice.
4. In the event that you fail to pay the Fees in accordance with clause 5.2, we may suspend the provision of the Services. In addition to this an administration charge of 2% may be applied.
5. Where applicable, you must pay, in addition to the Fees, any GST levied or imposed upon us as a result of the Contract. Unless otherwise expressly stated, all prices or other sums payable or Fees to be provided under or in accordance with the Contract are exclusive of GST.
6. At the end of each 12 months from the Commencement Date of the Contract we may increase the Fees in accordance with the CPI for the previous 12 month period.
7. During the Term and in addition to our rights under clause 5.5, we may increase the Fees on written notice to you following any increase in the costs of providing the Services as result of any change or increase in costs passed on to us by any third party service providers.
8. If we increase the Fees in accordance with clause 5.7, you may terminate the Contract upon written notice to us, provided your notice is received by us within 7 days of the date of our increased Fees notice to you. For the avoidance of doubt, you have no right of termination if we increase Fees in accordance with clause 5.6.
SERVICE LEVELS
1. If specified in the Order we will use reasonable endeavors to provide the Services in accordance with the Service Levels.
2. For such specified Services, if we do not provide the Services to you in accordance with the Service Levels, we will credit to you the rebates described in the Order.
3. Any Service Level Credit payable to you will be your sole remedy in relation to our failure to meet a Service Level.
4. Any Service Level Credit payable to you will be subject to the Service Level Credit Cap. 6.5 We will not be required to pay a Service Level Credit to you in accordance with this clause 6 if:
- a Force Majeure event has occurred in accordance with clause 16;
- you contributed to the failure to meet a Service Level;
- elements of the affected Services provided are dependent on infrastructure or facilities outside our direct control; or
- otherwise provided for in the Order.
YOUR OBLIGATIONS
1. You agree to do each of the following:
- comply with applicable Law;
- provide us with appropriate access to the site including to your facilities, equipment, personnel, and content as is necessary to allow us to perform the Services;
- pay the Fees when due under clause 5;
- use reasonable security precautions in light of your use of the Services;
- co-operate with our reasonable investigations of outages, security problems and any suspected breach of the Contract;
- keep the contact and other account information that we hold about you up to date;
- immediately notify us of any unauthorised use of your account or any other breach of security;
- not interfere or attempt to interfere in any manner with the functionality or proper working of the Services;
- not use or attempt to use the Services for any activity which breaches any Law, order, regulation or industry code of practice;
- not distribute, store, or publish any content or material that is restricted, illegal or otherwise unlawful under any applicable Law, or which is likely to be offensive or obscene to a reasonable person;
- not distribute tools designed for compromising security including, but not limited to, password guessing programs, cracking tools, packet sniffers or network probing tools; or
- not knowingly transmit or disseminate any content or material or software which contains a virus or other harmful programs or features.
2. You acknowledge that you bear sole responsibility for adequate security, protection and back up of your data in the Cloud. We do not guarantee or warrant that any data you may store or access through the Services will not be subject to inadvertent damage, corruption or loss.
3. You will, at your own expense, prepare the Site in accordance with any specifications for the Site and within the timing set out in an Order. Further you warrant that the Site complies with all Laws including all occupational health and safety regulations and laws.
4. Customer responsibility and obligations of Use
- The Customer is responsible for keeping secure the means of access to the Service to ensure that unauthorised access (including toll fraud) does not occur. The Customer must notify Kloudify immediately if it becomes aware of any actual or attempted unauthorised use of the Service or breach of security.
- Kloudify is not responsible for any use of the Service (including the content of communications) by the Customer, a User or any other person and will not be liable for any loss, cost, damage, liability or Claim arising from use of the Service.
- The Customer must comply with the reasonable directions of Kloudify and all directions of any regulator in connection with use of the Service.
- The Customer must provide Kloudify all information and assistance reasonably required to enable supply of the Service and compliance with any request or direction of a government or regulatory authority, emergency services organisation or law enforcement agency.
- The Customer must use the Service only for lawful purposes and activities and must comply with all applicable laws, regulations and industry codes of practice in connection with its use of the Services.
- The Customer must not use the Service in any manner which could cause the Customer, a User or Kloudify to violate a law, regulation or industry code, commit an offence, endanger any person, damage any property, infringe a person’s rights (including Intellectual Property Rights), or which could give rise to Kloudify incurring a liability of any kind.
- The Customer must not use the Services to transmit, communicate, access or publish any material which is unlawful, offensive, indecent, defamatory, abusive, menacing or harassing, material which is unsolicited and material known to contain a virus or similar.
- The Customer must not knowingly do anything or use the Service in any manner which may compromise the security or safety of, or which might damage, interrupt or interfere with the operation of the Services, the Kloudify Network, Kloudify Equipment or any other computer, system, network or services, including hack or otherwise obtain unauthorised access to any of them.
- The services provided are delivered in accordance with our Fair Use Policy. Any breach of this Fair Use policy may result in service disruption or disconnection and fees charged at the sole discretion of Kloudify.
5. Customer responsibility and obligations related to Users
- The Customer must take reasonable steps to ensure that all Users comply with the Customer’s obligations under clauses 7.4 (e), (f) and (g).
- The Customer is solely responsible for billing Users for services provided using the Services, for collecting payments from them, for providing support services to them and for all dealings with them in respect of the Service, including receiving, handling and resolving all of their inquiries, fault reports and complaints and defending any claims from them.
- The Customer must inform Users that the Customer’s supplier has the rights set out in clauses 7.6.
- The Customer must obtain any authorisations and consents from Users and others as required in connection with the Customer providing services to Users.
6. Kloudify Rights
- If, in Kloudify’s reasonable opinion, the Customer or a User is not complying with its obligations under clause 7, without incurring liability to the Customer or a User, Kloudify may take any steps necessary to ensure Kloudify’s compliance with law, industry code of practice, court order, or notification or direction from a government or regulatory authority and take such action as Kloudify deems necessary
- Kloudify may intercept communications and provide call related information to government or regulatory authorities or law enforcement agencies, to the extent required by law to do so, and may (but is not obliged to) monitor the usage of the Service and communications sent over it for compliance with this Agreement and to protect the Kloudify Network and its other users.
- Kloudify may scan Customer Equipment and test the security of the Service, in order to assist the Customer to keep the Service secure from unauthorised access, but Kloudify is not obliged to carry out such scan or test.
CONFIDENTIAL INFORMATION
8.1 Each party (Customer) receiving, possessing or otherwise acquiring Confidential Information of any other party acknowledges that Kloudify’s Confidential Information is the property of and confidential to or a trade secret of Kloudify. Subject to clause 8.2, the Customer must:
- keep Kloudify’s Confidential Information confidential and not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the prior written approval of Kloudify;
- take all reasonable steps to secure and keep secure all Kloudify’s Confidential Information coming into its possession or control; and
- not memorise, use, modify, reverse engineer or make copies, notes or records of the Kloudify’s Confidential Information for any purpose other than in connection with the performance by the Customer of its obligations under the Contract.
8.2 The obligations of confidentiality under clause 8.1 do not apply to any information that:
- is generally available to the public (other than by reason of a breach of the Contract); or
- is required to be disclosed by any applicable Law.
8.3 Notwithstanding any provision of the Contract, we may during and after the Term of the Contract communicate in any media (including press releases, general announcements, annual reports and print and online marketing materials), the following information:
- your name; and
- a description of the Services provided to you under the Contract.
PRIVACY
9.1 You acknowledge and agree that you are responsible for the collection, use, storage and otherwise dealing with Personal Information. You will comply and ensure that all of your Personnel comply, with the requirements of any Privacy Law in respect of all Personal Information collected, used, stored or otherwise dealt with under or in connection with the Contract.
9.2 Without limiting this clause, in the event of any breach by you of Privacy Laws or the Privacy Policy we reserve the right to:
- terminate the Contract, in whole or in part, without prior notification to you; or
- suspend any or all of the Services.
INTELLECTUAL PROPERTY RIGHTS
Business Partners
10.1 All of the Intellectual Property Rights comprised in the Services, Cloud and any other equipment or materials used by us to provide the Services are, and remain, owned exclusively by us and / or our third party service providers.
10.2 Subject to clause 10.1, all right, title and interest in the Content and any data generated solely by you as a direct result of using the Services is retained by you and you grant us a non-exclusive, royalty-free licence to use the Content to perform the Services during the Term.
10.3 If any additional Third Party Software or applications are required to access the Services, unless otherwise specified in an Order you are responsible for procuring the rights to such items and for any configuration, interoperability issues, maintenance and storage of the Third Party Software.
INDEMNITIES
11.1 You indemnify us from and for any damage, loss, liability, cost, charge, expense, outgoing or payment of any kind suffered or incurred by us arising out of or in respect of any:
- illness, injury or death of any person, and any damage to any tangible or real property caused or contributed to, directly or indirectly, by your negligent or wilful act or omission, arising out of or in connection with the Contract;
- breach of the Contract by you;
- act or omission of any third party under your control;
- act or omission of you, your officers, employees and agents, including but not limited to:
(i) breach of any third party’s Intellectual Property Rights;
(ii) breach of any Law concerning the transmission of data across any telecommunications links;
(iii) breach of any Privacy Law or the Privacy Policy; or
(iv) breach of your obligations in respect of Confidential Information under the Contract.
LIMITATIONS OF LIABILITY
12.1 With the exception of clause 12.3, our liability to you for all proven loss and damage arising from a breach of the Contract, or a claim under common law or tort (including negligence) is limited, in aggregate, to the Fees received by us from you or on your behalf in the 12 month period preceding the event giving rise to the cause of action.
12.2 Any representation, warranty, condition or undertaking that would be implied in the Contract by legislation, common law, equity, trade, custom or usage is excluded to the maximum extent permitted by Law.
12.3 Nothing in the Contract excludes, restricts or modifies any condition, warranty, right or remedy conferred on the parties by the Competition and Consumer Act 2010 (Cth) or any other applicable Law that cannot be excluded, restricted or modified by agreement. If a warranty or condition is implied by the Competition and Consumer Act 2010 (Cth) or other Law which may not be excluded, then our liability for any breach of such an implied warranted is limited, at our option, solely to the resupply of the relevant Services or the payment to you of the cost of having the Services provided again.
12.4 To the extent permitted by Law, and notwithstanding any other provisions of the Contract, in no event will either party be liable to the other for loss of profits, downtime costs, loss of revenue, loss of reputation, loss of data, loss of use, loss of goodwill, failure to realise anticipated savings, anticipated profit or revenue or any indirect or consequential loss arising out of or in connection with the Contract, howsoever caused.
12.5 Kloudify is not liable to you for failing to provide the Services, unless the failure directly results from a breach of the Contract, or directly results from our negligence or wilful misconduct. The Service Level Credits (if applicable) specified in clause 6 and the Order are your sole and exclusive remedy for the unavailability of the Services.
TERMINATION
13.1 In addition to any other termination right available to us in the Contract or at Law, we may without any liability to you suspend the Services and/or terminate the Contract in whole or in part if:
- you fail to pay any of the Fees by the due date;
- you breach the Contract; or
- if you are a company, you are unable to pay your debts or otherwise become insolvent, or, if you are a person, you are declared bankrupt.
13.2 You may terminate the Contract, in whole or in part, by way of written notice to us if we breach a material term of the Contract and fail to remedy the breach within 14 days of your written notification.
13.3 Upon expiry or earlier termination of the Contract for any reason:
- you must, within 3 months of the date of expiry or termination of the Contract, visit our premises to collect and remove all Content and any material that is the subject of your Intellectual Property Rights that is hosted on our infrastructure or make arrangements with us to remove and transfer that Content and material to you (at your cost). If you fail to comply with your obligation under this clause 13.3(a) by the end of the 3 month period following the date of termination or expiry of the Contract, you acknowledge that we will be entitled to permanently delete all Content and any material that is the subject of your Intellectual Property Rights that is on our infrastructure, without any further notice to you;
- subject to clause 13.3(a), each party must return to the other party all Confidential Information and any material that is the subject of Intellectual Property Rights of the other party, or if not capable of return, destroy it and certify its destruction to the other party; and
- you must pay us any outstanding Fees that are due to us under the Contract.
13.4 Upon Contract expiry, Services will be automatically renewed on a 12 monthly basis.
13.5 If you terminate the Contract, in whole or in part, for any reason other than in accordance with clause 13.2 or clause 5.8, you must provide us with 30 days written notice of intention to so terminate.
13.6 If you terminate the Contract for any reason other than in accordance with clause 13.2 or clause 5.8 or if we terminate the Contract in accordance with clause 3.1 you must pay all monthly Fees, at the rate prevailing at the date of termination, for what was the remainder of the Term immediately prior to termination.
DATA
14.1 You acknowledge that you will not have access to your Content stored on the Cloud during a suspension or termination of the Services, except as set out in clause 13.3(a).
14.2 We back up the information on the Cloud on a periodic basis so that we are able to more quickly restore systems in the event of an outage. These back ups are made on a “snap-shot” basis and capture only the information that exists on the Cloud at the time of the back up. In addition, we may destroy all but the most recent back up. These back ups may not be available to you or, if available, may not be useful to you outside of the Cloud.
14.3 Although the Services may be used as a back up service for your data, you agree that you will maintain at least one additional current copy of your programs, Content and data stored on the Cloud somewhere other than the Cloud.
14.4 We are not liable to you for unauthorised access to your data, Content or the unauthorised use of the Services unless the unauthorised access or use results directly from our failure to meet our security obligations in the Contract. You are solely responsible for the use of the Services by any of your Personnel as a result of your failure to use reasonable security precautions, even if such use was not authorised by you.
14.5 You acknowledge and agree that we may access, use, preserve and disclose your account information and data if legally required to do so or if we have a good faith belief that such access, use, disclosure or preservation is reasonably necessary to:
- comply with legal process or request;
- enforce the Contract, including investigation of any potential breach;
- detect, prevent or otherwise address security, fraud or technical issues; or
- protect the rights, property or safety of Kloudify Technologies PTY LTD, its users or the public as required or permitted by Law.
14.6 Following the termination or expiry of the Contract, you may take advantage of any post-termination or post-expiry assistance (Disengagement Services) we may elect to make available with respect to the Services, such as data retrieval arrangements. Your right to take advantage of such assistance from us is conditional upon your acceptance of any terms and the payment of any Fees we specify for that assistance.
CREDIT
We may at any time set a credit limit for you and require you to provide or arrange a bond, guarantee or other security for the Fees. You authorise us to the full extent permitted by Law, including under the Privacy Law to give to and obtain from a credit reference organisation or another credit provider, information relating to your creditworthiness and to use that information.
FORCE MAJEURE
Neither party will be liable to the other party for any delays or errors in its performance, or for non-performance, due to any circumstances beyond its reasonable control including (without limitation) natural events, fire, lightning, earthquake, flood, storm, explosion, industrial dispute or acts of terrorism.
GENERAL
- A party must not, during the term of this Agreement, and for a period of 6 months after expiry or termination, solicit any employee of the other party or any of the other party’s Related Bodies Corporate to leave their employment, without the other party’s prior written consent. This clause does not apply where the person becomes the employee of a party as a result of responding (at their own initiative and without specific solicitation from the other party) to an advertisement published generally.
- Nothing in this Agreement restricts Kloudify’s rights to enter into similar agreements with other parties or to supply any of its goods or services to other parties.
- Each party represents and warrants that it has the necessary rights, licences and consents to enter into and perform its obligations under this Agreement.
- Kloudify may subcontract any work to be performed under this Agreement but will retain responsibility for the work. Kloudify may arrange for any of its obligations under this Agreement to be performed by any of its Related Body Corporate.
- This Agreement is the entire agreement of the parties about its subject matter and supersedes all prior oral or written representations, negotiations, arrangements, understandings or agreements and all other communications about that subject matter. The Customer acknowledges and agrees that in entering into this Agreement, it has not relied on any representations made by or on behalf of Kloudify, other than those expressly made in this Agreement.
- The Customer may only assign its rights under this Agreement with the prior written consent of Kloudify which must not be unreasonably withheld. Kloudify may assign its rights under this Agreement to any person.
- A provision of this Agreement must not be construed to the disadvantage of a party merely because that party was responsible for preparing this Agreement or including the provision in this Agreement.
- If the doing of any act, matter or thing under this Agreement is dependent on the approval or consent of a party, that party may give conditionally or unconditionally or withhold its approval or consent at its absolute discretion, unless this Agreement expressly provides otherwise.
- If a provision of this Agreement is invalid or unenforceable in a jurisdiction, it is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability; and that fact does not affect the validity or enforceability of that provision in another jurisdiction or the remaining provisions.
- Failure by a party to exercise or delay in exercising a right does not prevent its exercise or operate as a waiver. A waiver is effective only in the specific instance and for the specific purpose for which it is given.
- This Agreement may be executed in counterparts and by pdf or facsimile signature, each of which, when executed and delivered, will be deemed to constitute an original but all of which together will constitute one and the same instrument.
- Each party must bear its own costs in respect of this Agreement and any document contemplated by it.
- Except as otherwise stated, all rights and remedies granted to a party under this Agreement are cumulative and in addition to and not in place of any other rights or remedies available at law or equity.
GOVERNING LAW
The Contract will be governed by the laws of New South Wales, Australia and each party submits to the non-exclusive jurisdiction of the courts of New South Wales, Australia.
WAIVER
A right may only be waived in writing, and must be signed by the party giving the waiver, and no other conduct of a party (including a delay in exercising, relaxation of or failure to exercise the right) operates as a waiver of the right or otherwise prevents the exercise of the right.
EQUIPMENT
20.1 Customer Equipment
- The Customer must ensure that Customer Equipment complies with all applicable laws and standards and Kloudify’s reasonable directions and is suitably provisioned and compatible for use with the Service.
- The Customer must upgrade or reconfigure the Customer Equipment as Kloudify may reasonably request at any time, including as a result of Kloudify making changes to the Kloudify Network.
- Kloudify may disconnect Customer Equipment from the Service if, in its reasonable opinion, it may interfere with or disrupt the Service.
20.2 Purchase of Equipment from Kloudify
- If the Customer purchases equipment from Kloudify, title passes to the Customer on payment in full and risk passes to the Customer on delivery. Until title passes to the Customer, Kloudify retains legal and equitable title in the equipment. If the Customer sells equipment in which Kloudify retains title, the Customer sells as principal not as Kloudify’s agent, must hold the proceeds of sale in a separate account on trust for Kloudify and the Customer has a duty to account to Kloudify for the proceeds. This retention of title constitutes the grant of a purchase money security interest by the Customer in favour of Kloudify in respect of all present and after-acquired equipment which Kloudify supplies to the Customer.
- The Customer is responsible for installation, upgrade, maintenance and repair of all equipment purchased from Kloudify unless Kloudify agrees otherwise in writing.
20.3 Kloudify Equipment
- This clause 20.3 applies if Kloudify loans or rents Kloudify Equipment to the Customer in connection with the
- Title to Kloudify Equipment does not pass to the Customer at any time. The Customer is responsible for loss of or damage to Kloudify Equipment from the time of delivery to the Customer until it is returned to Kloudify.
- The Customer must, in respect of the Kloudify Equipment:
- (i) keep it in its control at all times and at the premises to which Kloudify delivered it or such other premises as Kloudify has agreed in writing;
- (ii) not loan, rent, give or sell Kloudify Equipment to any other person, or allow a charge, lien or encumbrance to be created over it, not attach it to any real property and not remove from it any nameplate identifying Kloudify Equipment as Kloudify’s property;
- (iii) only use it in connection with the Service and for the manufacturer’s intended purpose;
- (iv) obtain all necessary consents and approvals (including landlord or building manager approval if required) for installation;
- (v) provide a suitable physical environment for installation and operation and an adequate power supply;
- (vi) install, operate and maintain the equipment in accordance with manufacturer’s requirements and Kloudify’s directions;
- (vii) not change the electronic serial number or equipment identifier or perform a factory reset of it without Kloudify’s prior written consent; and
- (viii) comply with any other directions of Kloudify.
- The Customer must allow Kloudify to inspect, maintain, upgrade, repair, replace or disconnect the Kloudify Equipment at any time as Kloudify may reasonably request and ensure that no other person modifies, maintains, upgrades, reconfigures, repairs or disconnects the Kloudify Equipment except with Kloudify’s prior written consent.
- The Customer must immediately notify Kloudify, and follow Kloudify’s directions, if the Kloudify Equipment is received by the Customer in damaged or incomplete condition, or if the Kloudify Equipment is lost, damaged, stolen or becomes faulty while in the Customer’s care, custody or control.
- On cancellation of the Service for any reason, the loan or rental of Kloudify Equipment is automatically cancelled unless otherwise agreed by Kloudify in writing. Kloudify may cancel the loan or rental of Kloudify Equipment immediately at any time by giving notice to the Customer if, in Kloudify’s reasonable opinion, the Customer is in breach of any obligation under this clause 20.3, or on the occurrence of any of the events listed in clause 13.
- On the sooner of expiry or cancellation of any agreed loan or rental period, the Customer must permit Kloudify to enter onto the premises where Kloudify Equipment is located and to disconnect and remove it, or if Kloudify requests, at the Customer’s cost, and in accordance with Kloudify’s directions, immediately return Kloudify Equipment to Kloudify in good condition (except fair wear and tear).
20.4 PPSA & Security Interest
- This clause 20.4 applies to the extent that this Agreement creates or evidences a security interest in equipment (and in proceeds of sale of equipment), for the purposes of the Personal Property Securities Act 2009 (Cth) (‘PPSA’). The terms ‘accession,’ ‘perfected security interest,’ ‘security agreement,’ ‘security interest’, and ‘verification statement’ have the meanings given them in the PPSA.
- The Customer must, if requested by Kloudify, promptly sign any document and do anything else reasonably required by Kloudify to ensure that Kloudify’s security interest is a perfected security interest. The Customer must not enter into any security agreement that permits any other person to have or to register any security interest in respect of the equipment or proceeds of sale of the equipment until Kloudify has perfected its security interest.
- The Customer acknowledges and agrees that the equipment is not used predominantly for personal, domestic or household purposes and accordingly the parties agree to contract out of sections 95, 118, 121(4), 130, 132(4), 135, 142 and 143 to the extent permitted by section 115(1) of the PPSA. The Customer waives any rights it may otherwise have to receive notices under sections 95, 118, 121, 130, 132 or 135 of the PPSA, to apply to court for an order concerning the removal of an accession under section 97 of the PPSA, to object to a proposal of Kloudify to retain any collateral under sections 130 and 135 of the PPSA, and to receive a verification statement in relation to registration events in respect of the equipment supplied to the Customer from time to time.
- The Customer and Kloudify agree not to disclose information of the kind that can be requested under section 275(1) of the PPSA. The Customer must do everything on its part necessary to ensure that section 275(6)(a) of the PPSA continues to apply.
SURVIVING PROVISIONS
The provisions of the Contract which are intended or capable of having effect after the expiration or termination of your agreement with us (including provisions relating to warranties, indemnities, liability, licence, Intellectual Property Rights and those with respect to payments that are accrued but unpaid at the time of termination) will remain in full force and effect following any suspension, expiration or termination of the Services.
AUTHORISED PERSONNEL
GUARANTEES
In the event that you are a corporation, the person who executes the MSA for or on behalf of shall also execute the following guarantee-
23.1 If you are a propriety limited company or an unincorporated association or a trust, the person who signs this MSA on your behalf is personally liable for the performance of all your obligations under the Contract as if the signatory were the customer who had contracted to purchase the Services in the case of a default by you.
23.2 If you are a corporation you must notify us of any change of directors within (7) days of the date of the change and must procure any new director to execute a guarantee in the form set out in clause 23, in which event we will release the departed director from liability under the guarantee previously extended by then.
ANNEXURE 1 – SERVICE LEVELS
SCOPE
1.1 If specified in the Order we will use our reasonable endeavours to provide the Services in accordance with the identified Service Levels. Please note that Service Levels may vary and may not apply to all Services.
1.2 For such specified Services if we do not provide the Services to you in accordance with the Service Levels and you are complying with your obligations under the Contract, we will credit to you the Service Level Credits specific in the Order.
FAULT REPORTING
2.1 You are primarily responsible for identifying technical faults or issues with your own equipment and / or software.
2.2 In the event that you consider that there is a Fault and you are complying with your obligations to us under the Contract, you may contact us at any time (24 hours per day, 7 days a week, year round) via email at support@kloudify.com or phone at 1800 434 176 to receive assistance from our technical engineers to assist you to resolve the Fault.
2.3 When logging a Fault you are required to give us a full description of the Fault including providing screen shots to illustrate any problem encountered, so we are better able to assist you to resolve the Fault. Please also indicate which Severity Level you believe (see clause 3.1 below) applies in respect of the Fault.
2.4 All Faults logged with our technical engineers will be issued with a Fault report number which should be referred to at all times when contacting our technical engineers.
2.5 Once a Fault is logged with our technical engineers we will investigate the Fault, categorise the Severity Level and respond to you in accordance with the Target Response Times described in clause 3.1.
2.6 Target Response Times will vary depending on the Severity Level of the Fault and the Coverage Window described in clause 4.
2.7 Please note that additional Fees at our Standard Rates may be charged for time spent by our technical engineers responding to Faults logged that are deemed to be your responsibility and / or outside the scope of this Annexure.
TARGET RESPONSE TIMES
3.1 The following Target Response Times apply in respect of the Services:
Severity Level | Scope | Target Response Times |
1 | ● Business critical services unavailable (e.g. no users can sign into the Services). ● Business critical software system unavailable (e.g. active directory, terminal server) ● More than 50% of users affected | 4 Hours |
2 | ● Performance of system heavily degraded ● Non-business critical systems unavailable ● More than 10% of users affected | 6 hours |
3 | ● Performance of non-business critical system heavily degraded ● Single user unable to work or less than 10% of users affected (includes password resets) ● Non Business Critical | 8 hours |
3.2 You are required to make available your full resources to us. If requested to do so, to facilitate the resolution of Faults. For all Severity Levels, you must allow us to access your Site and computer systems (including by remote computer access) at all times (including outside Business Hours) in order to facilitate the resolution of the Fault. Should you be unwilling to do any of the above for any reason, the Fault may be downgraded to a lower Severity Level.
COVERAGE WINDOW
4.1 We will endeavour to respond to a Fault Notification within the Coverage Window indicated below:
Business Hours: Monday to Friday 8.30am to 5.00pm Eastern Standard Time and excluding national public holidays
Non Business Hours: All other times outside of Business Hours
4.2 If you require emergency support outside of the Coverage Window, you may log priority Faults by calling our helpdesk on 1800 434 176. Fault notification outside of the Coverage Window will be an Additional Service and will attract additional Fees at our Standard Rates.
RESTORATION
5.1 We will endeavour to restore the Services as soon as possible following a Fault notification. Upon restoration of the services we will contact you to confirm that the Service is operating satisfactorily.
5.2 In the event of a prolonged Service outage we will provide updates on the status of the Services at regular intervals.
PLANNED SERVICE OUTAGE
6.1 We may from time to time plan a Service outage in order to undertake maintenance and upgrades to the Services. Where possible to do so we will provide you with notice of such planned Service outages in advance of them occurring.
6.2 You acknowledge however that in some instances it may not be possible to notify you at all, particularly where the Service outage relates to Services being provided by or on behalf of our third party service providers.
6.3 In addition we may be also required to undertake emergency maintenance in respect of the Services and we reserve the right to undertake such works without notification to you. We will use our reasonable endeavours to notify you of such Service outages.
TARGET SERVICE AVAILABILITY
7.1 Subject to the other provisions of this Annexure and the Contract, we will endeavour to supply the Services with availability of infrastructure of 99%.
7.2 Service Availability will be calculated as follows:
((Total Hours for the period (30 calendar days) less unavailable hours) x 100) / (divided by) Total Hours for the period
For the avoidance of doubt, any Planned Service Outage in accordance with clause 6, or downtime due to suspension of your Services in accordance with the Contract. Will not be considered in any calculation of Service Availability.
CONDITIONS
8.1 Service Level Credits will not be provided where:
- you failed to provide reasonable physical or remote access to your Site to allow us to repair a Service outage or respond to a Fault notification;
- you did not provide reasonable cooperation or resources to allow us to investigate and attempt to restore the Services;
- the Service outage was a planned Service outage as set out in clause 6;
- the Service outage occurred as a direct result of a Force Majeure event in accordance with clause 16 of the MSA;
- you did not notify us in accordance with the requirements of this Annexure; or
- the Service outage occurred as a result of infrastructure, equipment or applications outside our direct control.
8.2 We may, from time to time, review and update this Annexure including, to take into account new services, laws, regulations and technology. We will notify you by posting any updates to this Annexure on our Website.
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