1. Service and Deliverables
1.1 We will supply to you and you will purchase from us Services or Deliverables on the terms of the Agreement.
1.2 You must provide any input we request as soon as possible upon our request.
1.3 We will perform the Services and deliver to you the Deliverables in accordance with the Work Order.
1.4 We aim to perform Services and deliver Deliverables by the relevant delivery date set out in the Work Order but we do not guarantee that we will do so.
1.5 The acceptance process for a Deliverable may be set out in the Work Order. Where no acceptance process is set out, acceptance of a Deliverable occurs automatically on the date you use that Deliverable in any way (except for test purposes).
2. Term and Termination
2.1 This Agreement begins on the Work Order Start Date and continues until the end of the Work Order Term unless terminated earlier.
2.2 We may limit, suspend or cancel the provision of a Service at any time without notice to you if the supply or use of a Service is, or is likely to become, unlawful.
2.3 We may limit, suspend or cancel the provision of a Service at any time by notice to you:
(a) if the Australian Competition and Consumer Commission (ACCC) issues or we reasonably anticipate that the ACCC may issue a competition notice in relation to a Service;
(b) if you are or become a carrier of carriage service provider (as defined by the Act);
(c) if you do not pay any amounts due for that Service on time; or
(d) if an administrator, receiver, liquidator or provisional liquidator is appointed to you, or you are unable to pay your debts when they are due.
2.4 If a party commits a material breach of the Agreement and does not remedy the breach within 30 days of receiving a notice to do so, then the other party may terminate the Agreement.
2.5 Upon expiry or termination of the Agreement by us or by you (other than for our material breach):
(a) you must pay us all outstanding invoices by the due date and within 30 days of request for payment, all other amounts outstanding as at the date of, or arising as a result of, expiry, termination or cancellation (including any early termination charges set out in the Work Order); and
(b) all rights a party has accrued before expiry, termination or cancellation continue.
2.6 If this Agreement expires or terminates for any reason, clauses 7 (Payment), 8.5 (Materials), 9 (Confidentiality), 10 (Liability) and 11 (General) continue in full force and effect.
3. Our commitment to you
3.1 We will:
(a) ensure that any Deliverables or goods supplied in connection with the Services are reasonably fit for the purpose for which they are supplied;
(b) ensure that all work we perform in connection with the Services is carried out by competent and suitably qualified personnel; and
(c) provide the Services with due care and skill, but do not guarantee that they will be continuous or fault free.
4. Your commitment to us
4.1 In addition to any obligations set out in the Work Order, you:
(a) must give us access to your sites, equipment and appropriate resources and ensure that your sites comply with all health, safety, environment and community laws and regulations;
(b) must obtain any consents and fund any site access and induction fees that are necessary to enable our personnel to access your sites;
(c) must ensure that all equipment connected to the Services by you, or on your behalf, is technically compatible with the relevant Service(s) and that your premises and the equipment complies with and is used in accordance with all reasonable procedures notified by us and any applicable legislation;
(d) must not alter, tamper, reverse engineer, repair or attempt to repair the Services or cause, or allow, a third party to do any of these acts;
(e) are solely responsible for selecting, supplying and maintaining your own facilities and equipment;
(f) are solely responsible for the content and security of any data or information which you send or receive using the Services;
(g) are solely responsible for any use of the Services on your premises, by you or any third party whether authorised or not; and
(h) must not resell, resupply or share a Service to or with any third party without our consent.
5. Title and risk
5.1 Risk in a Deliverable passes to you when we deliver that Deliverable to you. You must not pledge or encumber a Deliverable until title has passed to you.
5.2 Property in and title to a Deliverable resides with us until you have paid us in full the applicable Fee for that Deliverable.
6.1 We do not represent or warrant to you that each Deliverable will be free from defects or that your Service will be fault free.
7.1 The price for a Service or a Deliverable is set out in the relevant Work Order.
7.2 You will pay to us the amounts and instalments set out in the Work Order. You must reimburse us for all out-of-pocket expenses reasonably and actually incurred by us in performing the Services.
7.3 The charges for the Services will be invoiced as set out in the Work Order or will otherwise be billed monthly in arrears. All charges are payable within 14 days of the date of invoice.
7.4 If you do not pay any amount due on time, we may charge you interest (calculated on a daily basis) on any unpaid amounts at an annual rate equivalent to the Official Cash Rate set by the Reserve Bank of Australia.
7.5 Subject to clauses 7.6 and 7.7, you must pay all Taxes in connection with the Services.
7.6 Where GST is imposed on a taxable supply made in connection with this Agreement and the recipient of that supply receives a tax invoice for that supply, the recipient must pay the GST to the supplier (without deduction or set-off) by the tax invoice due date.
7.7 If one party is required to indemnify or reimburse another party (Payee) for any cost, loss or expense, the indemnity or reimbursement payable does not include any amount for which the Payee (or an entity grouped with the payee for GST purposes) is entitled to an input tax credit, but will be increased in accordance with clause 6.6 if the amount payable is consideration for a taxable supply.
8.1 We grant to you a non-exclusive, non-sub-licensable and non-transferable licence to use, adapt and reproduce the Licensed Material incorporated in a Deliverable solely for your internal business purposes.
8.2 As between you and us, we retain all right, title and interest (including Intellectual Property Rights) in and to the Licensed Material, and you acquire no interest in or to the Licensed Material, other than the licence set forth in clause 8.1.
8.3 You or your licensors retain ownership of the Intellectual Property Rights in your Material. You grant us a royalty-free license to use your Material for the sole purpose of performing our obligations under this Agreement.
8.4 Unless otherwise agreed in a Work Order, we (or our third parties) own all Intellectual Property Rights in and to all Deliverables arising out of the provision of the Services and you hereby assign all such Intellectual Property Rights to us as and from the date those rights are created.
8.5 You must pay any loss, damage, liability, costs or expenses incurred by us as a result of a claim that your Material or its use by us in accordance with the terms of this Agreement infringes the Intellectual Property Rights of any person.
9.1 Each party must treat the provisions of this Agreement and all information provided by the other party under this Agreement (including our technical, operational, billing, pricing and commercial information in relation to the supply of Services and Deliverables) as confidential information.
9.2 A party must not disclose the other party’s confidential information to any person except:
(a) to its employees, lawyers, accountants and our Personnel on a ‘need to know’ basis provided those persons first agree to observe the confidentiality of the information;
(b) with the other party’s prior written consent;
(c) if required by law, any regulatory authority or stock exchange; or
(d) if it is in the public domain.
9.3 You agree and will ensure that your Personnel, your related bodies corporate and their Personnel, and any individuals, who receive services or whose information is disclosed to us, in connection with this agreement, are aware that we may use and disclose information about you and each of them in accordance with our Privacy Statement (as amended by us from time to time), which is available at www.kloud.com.au.
10. Limitation of liability
10.1 We accept liability arising from our breach of contract or negligence:
(a) for any personal injury or death to you, your employees, agents and contractors in relation to the supply of the Services;
(b) for any damage to your real or tangible property resulting from the supply of the Services, but we limit our liability to our choice of repairing or replacing the property or paying the cost of repairing or replacing it; and
(c) for any other cost or expense you reasonably incur that is a direct result of, and flows naturally from, such breach or negligence (but excludes loss of profits, revenue, business opportunities, likely savings and data), but we limit our liability for all such claims in aggregate to the total amount payable to us under this Agreement during the first year of this Agreement.
10.2 Other than for the liability we accept under clause 10.1, we exclude all other warranties, rights, remedies and liability to you or a third party for breach of contract, negligence or breach of any other law. For any liability which cannot lawfully be excluded, but can be limited, our liability is limited to our choice of re-supplying or paying the cost of re-supplying services and repairing, replacing or paying the cost of repairing or replacing goods.
10.3 Notwithstanding anything else in this clause 10, our liability will be reduced to the extent the loss or damage is caused by you, your employees, agents or contractors.
11.1 This Agreement constitutes the entire agreement between the parties about the Services, and supersedes any previous agreement or representation relating to the Services. If there is an inconsistency between the parts of this Agreement, the document listed earlier in the definition prevails to the extent of the inconsistency.
11.2 This Agreement is governed by the laws of the Australian State or Territory in which your principal place of business is located. Each party submits to the non-exclusive jurisdiction of the courts of that place and the courts of appeal from them.
11.3 This Agreement or a Work Order may only be varied by written agreement between the parties.
11.4 Each party warrants to the other that entering into and performing its obligations under this Agreement does not breach any of its contractual obligations to any other person.
11.5 You warrant that you have not relied on any representations or warranties by us other than those in this Agreement.
11.6 If a party is unable to perform or is delayed in performing an obligation under this Agreement (other than an obligation to pay money) because of an event beyond that party’s reasonable control (Force Majeure Event), that obligation is suspended but only so far and for so long as it is affected by the Force Majeure Event.
11.7 The parties agree to use best endeavours to resolve in good faith any dispute concerning this Agreement. Each party must follow the procedures in this clause before starting arbitration or court proceedings (except for urgent injunctive or declaratory relief). If a dispute arises between the parties that cannot be resolved promptly between our contact person and your contact person, either party may notify the other party of a formal dispute. Each party must nominate a senior executive to meet within 7 days of the notice (or another agreed period) to try and resolve the dispute. If the dispute remains unresolved, the parties must try to resolve it by mediation administered by the Australian Commercial Disputes Centre according to its Mediation Guidelines.
11.8 A party must not assign its rights or novate its obligations under this Agreement without the other party’s prior written consent, which must not be unreasonably withheld.
11.9 Where any person makes a claim for intellectual property right infringement in connection with the provision of Services or materials by us, we may modify, limit, suspend or cancel the provision of Services and/or Deliverables or materials, if required, in response to the claim.
12.1 The following definitions apply in this Agreement, unless the contrary intention appears.
Act means the Telecommunications Act 1997 (Cth)
Agreement means a Work Order or quote together with these Kloud Terms & Conditions and any attachment to the Work Order or quote.
Business Day means any day other than a Saturday, Sunday or recognised public holiday in the jurisdiction in clause 11.2.
Defect means any characteristic which makes the whole or any part of the Deliverable materially inoperable or materially inconsistent with the Work Order and this has not occurred due to any action or inaction by you or another third party.
Deliverable means an item (including, without limitation, any software or hardware) required to be provided to you or a task to be completed by us for you as specified in the Work Order.
Fees means the fees and charges set out in the Work Order.
Intellectual Property Rights means all current and future registered rights in respect of copyright, designs, circuit layouts, trademarks, trade secrets, domain names, database rights, know-how and confidential information and any other intellectual property rights as defined by Article 2 of the World Intellectual Property Organisation Convention of July 1967, excluding patents.
Licensed Material means all Material comprised in a Deliverable, including Material created or developed by us or licensed to us or on our behalf, supplied by us to you under this Work Order excluding your Material.
Material means all material in any form, including documents, reports, products, equipment, information, data, software, software tools and software development methodologies.
Personnel means a person’s officers, employees, agents, contractors and sub-contractors and in our case includes our Related Bodies Corporate.
Related Body Corporate has the meaning given to it by the Corporations Act 2001 (Cth).
Services means the services described in the relevant Work Order.
Start Date means date this Agreement is signed by the last party.
Taxes means a tax, levy, duty, charge, deduction or withholding, however described, imposed by law or a government agency, together with any related interest, penalty or fine, including in respect of GST, but excluding income tax.
We, us, our means Kloud Solutions Pty Ltd ACN 142 220 157.
Work Order means the work order which has been signed by both parties.
Work Order Term means the period described in the Work Order and, if no period is specified, starts on the Start Date and ends on the date the Services and/or Deliverables are provided to you.
You or your means the customer identified in the Work Order.