Terms of Agreement

1. DEFINITIONS AND INTERPRETATION

1.1 Definition

The following definitions apply unless the context requires otherwise:

• Agreement means any Schedules and accompanying Work Breakdown Structure referred to by the Schedule and these Terms of Agreement.
• Business Days means any day (Monday to Friday) on which trading banks are open for business in Sydney, excluding public holidays
• Business Hours are 08:30 – 17:30 Australian Eastern Standard Time on Business Days.
• Client Equipment means any computer equipment or software owned, licensed, rented or leased by the Client, supported as part of this agreement or required to facilitate the provision of Services.
• Commencement Date means the date for commencement of Services specified in the Services Schedule.
• Commercial Product means any commercial product approved in writing by IT Easy and used by the Client.
• Confidential Information means any information, oral or written or contained in any media including but not limited to information relating to:
  • (a) all persons, services, strategies and plans (including but not limited to all research, technical information, knowledge and expertise, products and inventions, financial information and customer data) involved in the business of each party;
  • (b) the Intellectual Property of each party;
  • (c) the information of any third party whose information either party is bound to protect.
• CPI means the All Groups Consumer Price Index applicable to Sydney kept by the Australian Bureau of Statistics and in the event of that index being discontinued or abolished, then such price index as the Australian Bureau of Statistics substitutes for it.
• Extended Business Hours are 08:00 – 08:30 Australian Eastern Standard Time on Business Days, and 17:30 – 20:00 Australian Eastern Standard Time on Business Days.
• Fees means the fees payable to IT Easy by the Client in accordance with The Services Schedule as agreed between the parties in writing from time to time, or otherwise payable by the Client to IT Easy, and may include one off fees, such as establishment or set up fees, and ongoing fees.
• Facilities mean the computer (including hardware and software) and other facilities of IT Easy or Other Suppliers located at the Premises.
• GST means goods and services tax under a New Tax System (Goods and Services) Act 1999 and any further amendments or variations thereto.
• Informal Training means any impromptu training of not more than 10 minutes, performed in the process of performing Services.
• Initial Term means the term as defined in Clause 2.
• Intellectual Property includes all copyrights (including, without limitation) the right to reproduce, distribute copies of, display and perform the copyrighted work and to prepare derivative works, trademarks, registered designs, inventions, patents, trade names, service marks, design rights, database rights, circuit layout rights, know-how, trade secrets, moral rights, goodwill and all registrations or applications to register any of the said items including all renewals and extensions of such rights regardless of where such rights arise in the world and all derivatives of any of the foregoing.
• Managed Devices means the list of Servers, Personal Computers, Laptops, Switches, Routers, Hubs, Firewalls, Printers and other devices identified and listed in the Schedule or accompanying Work Breakdown Structure and their replacement devices.
• Month means calendar month of each year.
• Monthly Fee means the amount specified as Monthly Fee in the Fee Schedule of the Services Schedule.
• Non-Business Hours means 08:30 – 17:30 Australian Eastern Standard Time on days other than Business Days.
• Other Suppliers means any third party which provides services to the Client at the request of IT Easy.
• Period is the time defined by start and end dates, between which services will be provided.
• Premises means the premises of IT Easy or Other Suppliers referred to in the Schedule or in writing by IT Easy to the Client from time to time.
• Quarter means each period of three months commencing on the 1 January, 1 April, 1 July, 1 October.
• Rented Equipment means the devices listed in the section of the Schedule(s) identified as Rental.
• Service Levels means the service levels specified in the Service Schedule, if any, relating to the Agreement. Schedule means any schedule in relation to the provision of hosting, rental and other services entered into from time to time by the parties.
• Services means services provided by IT Easy to the Client as specified and defined in the Schedule.
• Severity Level 1 (described as “Critical Impact”) means a problem with a high visibility to the client, having a major impact on the client’s business operations, with no workaround available.
• Severity Level 2 (described as “Major Impact”) means a problem with a high visibility to the client, having a major impact on the client’s business operations, but there is a workaround available.
• Severity Level 3 (described as “Moderate Impact”) means a problem with a moderate visibility to the client, having a low impact on the delivery of services or to the client’s business operations.
• Severity Level 4 (described as “Minor Impact”) means a problem with a low visibility to the client, have a low impact on the delivery of services or to the client’s business operations.
• Severity Level 5 (described as “No Impact / Information Only”) means an alert or information for future action has been issued. There is no impact to the client.
• Taxes mean all taxes, duties and charges imposed or levied in Australia.
• Term means the Initial Term and any extension thereof in accordance with Clause 2 of this Agreement.
• WBS means the Work Breakdown Structure document, if any, referred to in the Services Schedule, including the WBS Parameters Registry, WBS and WBS Definitions.

1.2 Interpretation

The following rules of interpretation apply unless the context requires otherwise: Headings are for convenience only and do not affect interpretation. The singular includes the plural and conversely. A gender includes all genders. Where a word or phrase is defined, its other grammatical forms have a corresponding meaning. A reference to a person includes a body corporate, an unincorporated body or other entity and conversely. A reference to a clause or paragraph is to a clause of or paragraph in this Agreement. A reference to any party to this Agreement or any other agreement or document includes that party’s successors and permitted assigns. A reference to any agreement or document is to that agreement or document as amended, novated, supplemented, varied or replaced from time to time, except to the extent prohibited by this Agreement. Mentioning anything after include, includes or including does not limit what else might be included. A reference to any legislation or to any provision of any legislation includes any modification or reenactment of it, any substitution for it and all regulations and statutory instruments issued under it.

2. TERM

2.1 The Initial Term of this Agreement will commence on the Commencement Date. Unless otherwise stated in a Schedule the Initial Term will be twelve (12) months from the Commencement Date. After the Initial Term this Agreement shall continue in force for successive periods of six (6) months unless either party shall have given not less than forty-five (45) days’ notice in writing to the other that the Agreement is to be terminated at the expiry of the Term.

2.2 In the case of the Schedule specifying a Trial Period, the client may terminate this Agreement at the end of the Trial Period by providing notice in writing of not less than 7 days. If no such notice is received before 7 days prior to the expiry of the Trial Period, this Agreement will continue in force for the remainder of the Initial Term and successive Terms as per clause 2.1.

3. SERVICE LEVELS

3.1 The Service Levels specified in the Services Schedule relating to this Agreement will apply to this Agreement. Services specific to a WBS item are defined in the “Pertinent Services” column of the Services Schedule.

3.2 Service Levels may be varied from time to time by agreement between the parties in writing, subject to the terms of this Agreement. 3.3 IT Easy will provide Services at IT Easy’s discretion and under IT Easy’s management within Business Hours.

3.3 IT Easy will provide technical and managerial services as per the pertinent Work Breakdown Structure within the parameters defined in the Work Breakdown Structure document, with the definitions of those items and parameters as per this Services Agreement.

3.4 Should a parameter value in the Services Schedule be different to the accompanying parameter value in the Work Breakdown Structure differ, the parameter value will be defined as the value in the Work Breakdown Structure. Parameter Reviews

3.5 Should the Schedule itemise a review of a Parameter, the client may vary the Parameter Value up or down as specified in the Schedule at the frequency specified in the Schedule, with effect as specified in the Schedule.

• (a) Should the Schedule be silent on the direction in which a Parameter value may be varied then the Parameter may only be increased, at the discretion of the client;
• (b) Should the Schedule be silent on the frequency at which a Parameter value may be varied, then the Parameter may only be varied on a financial-quarterly basis with a minimum of 14 days notice;
• (c) Should the Schedule be silent on the period of effect in which a Parameter value variation is to apply, then the Parameter variation will come into effect in the financial quarter immediately following the notice of variation providing that the notice of variation is sent a minimum of 14 days before the commencement of the next immediate financial quarter. In the event that the notice of variation is less than 14 days before the commencement of the next immediate financial quarter then the variation will come into effect in the month after the commencement of the next financial quarter.

3.6 IT Easy may provide additional Services (not provided for in the Schedule) within Business Hours upon request.

3.7 IT Easy will provide additional Services (not provided for in the Schedule) within Extended Business Hours and Non-Business Hours as agreed by both parties from time to time.

3.8 IT Easy has no liability for failure to achieve the Service Levels or generally for any failure which results from matters outside its control including but not limited to matters related to

• (a) equipment or cabling owned or leased or otherwise in the control of the Client affecting the provision of the Internet, networking and/or other services
• (b) the provision of the services not controlled by IT Easy;
• (c) operational and environmental conditions under which the services are used by the Client; or
• (d) failure by the Client to provide due care of the equipment or cabling.

3.9 IT Easy reserves the right to make a reasonable charge to the Client if IT Easy or Other Suppliers respond to a request made by or on behalf of the Client where Service Levels are not being achieved and demonstrate that the failure to achieve the Service Levels was not due to a matter for which IT Easy is responsible.

3.10 Compensation for any failure to meet Service Levels is limited in accordance with Clause 17. 3.11 IT Easy will use best endeavours to respond to client events pertaining to the Services depending on the severity of the event.

• (a) IT Easy will use best endeavours to respond within 4 business hours for Severity 1 events;
• (b) IT Easy will use best endeavours to respond within 8 business hours (one business day) for Severity 2 events;
• (c) IT Easy will use best endeavours to respond within 16 business hours (2 business days) for Severity 3 events;
• (d) IT Easy will use best endeavours to respond within 24 business hours (3 business days) for Severity 4 events;
• (e) IT Easy will use best endeavours to respond within 5 business days (1 business week) for Severity 5 events.

4. SUBCONTRACTING

4.1 IT Easy shall be entitled to subcontract to one or more third parties some or all of its obligations to provide Services under any Schedule but IT Easy shall remain liable to the Client for the performance of all Services in accordance with this Agreement.

5. PRODUCTS PURCHASED

5.1 Ownership of any product purchased from IT Easy will not pass to the client and will remain with IT Easy until such time as the product and all related services have been paid in full.