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Master Terms and Conditions for Provision of IT Good and Services

This page was updated on October 21, 2018

These Product Terms apply to the products and services provided by Industrial Software Australia Pty Ltd trading as Solve Business Services (‘us’, ‘we’, ‘our’, ‘the Service Provider’ or ‘reseller’) to the Client (‘you’ or ‘your’ or ‘Customer’). These terms and conditions cover the supply, procurement, sale, and use of products, websites (the ‘Services’) provided and you accept these Terms by engaging with Solve Business Services to provide Services, through your use of the Services, or by continuing to use the Services after being notified of a change to these Terms.

We are in the business of providing Information Technology (IT) services, solutions, technical support and other products related to IT. The operations of the Client involve the use of Information Technology services, solutions, technical support and other products which may be supplied by us to you. These may include “Cloud” components, systems or other elements.

All Parties have agreed to enter into the Agreement whereby Solve Business Services will provide the Client several products as required under terms and conditions hereinafter provided in the agreement/engagement or in referenced documents and policies.

The Customer:

  • will act with integrity, honesty, and openness with all members of our team and always treat all our representatives with respect and consideration;
  • will immediately advise us of any concerns you have about our work or interactions so as to provide us the opportunity to provide a swift remedy and coaching of staff to serve you better;
  • will provide the information we need to service your business such as passwords and any relevant documentation;
  • will use Service Desk to request support and acknowledge that service desk response is considered our first response to your support request;
  • will be a good corporate citizen and to only use licensed software in the manner it was intended;
  • will be available to answer queries relevant to their technology and systems;
  • authorises Solve Business Services to use their Cloud Services for remote support & records keeping;
  • will provide Solve Business Services a list of staff names, contact numbers and profile pictures (if requested) so we can identify your staff & address them professionally;
  • authorises Solve Business Services to liaise as your Agent with any vendor providing hardware, software, internet, telephony, security or any other services related to the successful operation of the services we are providing and promises to consult with Solve Business Services as to any proposed variance to such systems
  • authorises us to speak to our suppliers and contractors about your services for the purposes of support, procurement or for technical advice around the suitability of products or systems or configurations;
  • will consult with us when considering new technology so we can help you make great decisions;
  • may not assign their rights and obligations under this agreement without our prior written consent (which we will not unreasonably withhold);
  • agrees to receive email bulletins, newsletters and similar from Solve Business Services and may remove themselves from any of these at any time;
  • understands and agrees that any material or information downloaded or other-wise obtained through the use of the site or services is done at their own discretion and risk and they will be solely responsible for any damage to your computer services or loss of data that results from the download of such material and/or information.

General:

  • If a party overlooks a breach of a Service Contract by the other party on one or more occasions, it is not taken to have agreed to any future breach
  • No amendment or modification of a Service Contract is binding unless in writing and executed by the parties
  • Anything that is unenforceable must be read down, to the point of severance if necessary and where a the clause cannot be held wholly valid it shall be held valid at least to the extent that it is reasonably possible or practicable to do so,
  • Anything a party can do, it may do through an appropriately authorised representative

Applicable Laws & Disputes

This agreement is subject to the laws that apply in Victoria, Australia.

Any dispute or difference arising in connection with this agreement will be submitted to arbitration in accordance with and subject to the Resolution Institute Commercial Arbitration Rules. Otherwise, legal proceedings relating to this agreement or any dispute about it must be brought in the courts of Victoria, Australia.

Service Delivery

We will provide the services during Business Hours, unless otherwise specified in writing and at or to the location(s) specified in the Product Terms or, if no location is specified, at the location we determine to be most appropriate; and with professional skill and care, using appropriately skilled or qualified personnel.

‘Business Hours’ means between 8:30 am and 6:00 pm, Monday to Friday excluding gazetted public holidays in the state of Victoria.

Any matter in our discretion is in our absolute and unfettered discretion and we may sub-contract the performance of this agreement if we obtain your prior written consent (which you must not unreasonably withhold). We may assign or novate our rights and obligations under this agreement at any time without your consent.

Access

You must provide us with reasonable and timely access to your facilities, premises, information, equipment, personnel, network and data to enable to fulfill our obligations under our agreement.

We will not be responsible for any delay in providing a service where the delay results from your failure to provide timely access

Title and Risk

Property in each unit of the goods shall pass to the Buyer when payment in full is received by us or on attachment to land or on the sale of the goods in the ordinary course of trade or on the merger of those goods with other goods, whichever occurs first.

Unless title passes the Buyer holds the goods as bailee for us.

The Buyer assumes all risk in and for goods from the time of delivery.

Consumer Protection

Nothing herein contained shall be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting, or modifying the application in relation to the supply of any goods pursuant to the contract of all or any of the provisions of Part V of the Trade Practices Act 1974 (as amended) or any relevant State Act (hereunder collectively referred to as the ‘Acts’)) which by law cannot be excluded, restricted or modified.

Provided that to the extent that any of the Acts permits Solve Business Services to limits its liability for the breach of any condition or warranty applying under or by the virtue of any of the Acts then Solve Business Services liability for any such breach shall be limited to the extent permitted by such Acts and subject thereto.

In the case of goods, such one or more of the following as Solve Business Services in its absolute discretion determines:

  • The replacement of the goods or the supply of equivalent goods;
  • The repair of goods;
  • The re-supply of services;
  • The payment of the cost of replacing the goods or of acquiring equivalent goods;
  • The payment of the cost of having the goods repaired.

It is the Buyer’s responsibility to satisfy itself that the goods are of a description, quality and character suitable for the purpose for which they are purchased or any other purpose and subject to any provision of the Acts to the contrary, we shall not be liable in any way whatsoever for any loss or damage (including direct, indirect, special, general or consequential) however so arising from the sale or from the failure of the Buyer to satisfy itself.

Fees:

The client acknowledges and agrees:

  • to pay our any applicable fees for goods and services in advance under the agreement;
  • their use of the goods and services is limited to the restrictions established in your applicable plan (e.g. number of accounts or storage quotas);
  • subscription renew automatically unless formally cancelled with notice;
  • subscription fees do not include support unless specifically stated with the scope of the service level agreement;
  • that prices may change over time due many factors and agrees to these adjustments being passed on as required;
  • that unless marked otherwise then all references to price and cost of goods and services is exclusive of Goods and Services Tax;
  • their continued use of the services provided is dependent upon their payment in advance for such services which may be withdrawn, suspended or cancelled due to non-payment and that we may take any other steps we deem necessary to collect such fees and that the client will be responsible for all costs incurred by us in connection with such collection activity, including collection fees, court costs and legal fees. Any amounts not paid when due may incur late payment fees and or interest.

Please note: With many cloud services we cannot simply suspend accounts for non-payment and cancelling is the only option we have available. In most cases cancelling a cloud service will result in the complete, total and permanent loss of any data or configuration associated with the services being cancelled and we are not responsible for the loss of data due to non-payment of accounts.

Changes to Services or Subscriptions:

Clients may increase or upgrade their subscription at any time during the subscription period. Adjusting the services being provided may impact your costs. Requests to reduce the subscription will only take effect from the end of the current subscription period or agreement period.

Subscription Period vs Agreement Period

Some services may be provided under a simple month by month subscription, these may simply require formal notice to cancel and have no extended Agreement Period.

An Agreement Period will generally be a period of engagement for more provision of more complex services or for services that require us to commit to a minimum period of supply where we might ‘back to back’  your commitment with ours or where we’ve waived on-boarding costs to bring on a customer in return for an extended Agreement Period.

Client Privacy

The Client shall enjoy peaceful use of the subscribed services free from interference of the Service Provider unless the service provider is acting under direction by a government or court mandated warrant (where the service provider will seek to meet only the warrant requirements) or where the client has unpaid fees.

Confidentiality

A party must not use or disclose the other party’s confidential information without prior written approval.

Each party must take all reasonable steps to ensure that its employees and agents do not use or disclose the other party’s confidential information.

A party may disclose confidential information where required by law or the rules of a stock exchange.

‘Confidential information’ means all information treated by the owning party (‘discloser’) as confidential and provided to the other party (‘recipient’); or of which the recipient becomes aware – except information that the recipient creates or lawfully obtains independently of the discloser; or is public knowledge (otherwise than as a result of a breach of confidentiality by the recipient).

This clause survives termination of this agreement.

Incidental Third Party Costs:

You are solely responsible any third party costs incurred through your the use of the systems provided.

For example: some ISP’s add uploaded data to your monthly download allocation (please check with your ISP) so you are responsible for the excess upload or download charges imposed by the ISP for your data use.

Data Availability, Data Loss, Backup & Recovery

The Service Provider, Provider or Supplier may maintain regular backups of data to recover from any software/hardware failures.

Solve Business Services do not make any representations or warranties about protection of your data nor guarantee data availability whatsoever unless a Backup Service is specifically included within the scope of your services.

  • Unless specifically advised to the contrary then your standalone decision to restore any data is entirely your own;
  • You hold us harmless against any loss or harm that you or anyone else may suffer as a result of restoring data including because data you restore is out of date or overwrites newer data, or if the data which we have is not capable of restoration;
  • After your service is terminated, we are not responsible for storing or retaining the contents of a virtual computer or data storage;
  • It is solely your responsibility to copy and download any data you require before your service terminates;
  • Before the end of the term, the parties may agree to extend the duration of the CLOUD Services on the same terms and conditions;
  • If you change backup services or agree to have us change them for you then you acknowledge that historical backups are normally lost and not retrievable unless you maintain a subscription the past backup services for the purpose of providing access to such historical backups and that this will normally have costs and fees associated with the maintenance of such services.

Backup Services are for emergency purposes only and are not a long-term archive and not a substitute for good housekeeping and thorough data retention services, they are designed to provide a means to recover your data, not to be the repository of your data for regulated retention periods. If statutes, regulations or authorities require you to keep 7 years of financial data then you should do that, keep 7 years data available and online if required and don’t delete it hoping to restore from backup if required, that’s not how the systems work.

Intellectual property rights

Unless otherwise specified in writing, we own exclusively all intellectual property rights in material, including software, that we design, create, modify, supply or license, even if it was created or modified for or suggested by you.

To the extent necessary for you to receive the benefit of a service, we grant you a non-exclusive, non-transferable, licence to use our materials.

If any of your materials become combined with our materials with your knowledge and without your objection, then we have a perpetual, royalty-free, irrevocable, non-exclusive licence to copy, use, adapt and distribute and sub-license those materials in the course of our ongoing business.

‘Intellectual property rights’ includes all patents, copyright, rights in circuit layouts, registered designs, trademarks, trade, business or company names and the right to have confidential information kept confidential.

Reseller Status: Third Party Products or Services

Solve Business Services does not provide a Service Level Agreements for Hosted Products and Services that we resell.

We will only recommend products that are appropriate for the defined business purposes and that these be appropriately supported and that their underlying infrastructure be fit for purpose.

Solve Business Services does not provide a Service Level Guarantee or Customer Rebates around Cloud Products. The suppliers of these Cloud solutions are a third parties and as such maintain their own warranties and commitments to their customers (you). If you have a dispute with them we will support you as and where we can however such support is out of scope and always provided on time and materials fee for service basis.

Indemnification

You Indemnify Solve Business Services for any loss that may result from third party claims arising from the provision of the services. If there is a claim against us for loss, the loss will be proportionately reduced by the extent of your contribution to the loss.

Service Desk

Service Desk is operated by our staff and receives your tickets and acknowledges receipt of support requests 24×7 but isn’t staffed 24×7, our tech’s need sleep too.

  • We’ll always aim to exceed these minimums but our Service Desk team commit’s to actively responding to your requests during the ‘Business Hours’ defined in the service delivery section of this policy.
  • Requests received after 16:00 (4:00 PM) Melbourne time will be tended to as soon as possible, often same day but otherwise on the next business day.
  • If you’re planning changes or a project then please provide as much notice as possible. We generally need 24 hours notice for planned future work requests.
  • For works requested that are out of scope we will provide a quote.
  • The automated response from Service Desk is considered your first response to your ticket. If responding we ask you to please reply via the ticket to maintain audit trails and information together to allow other technicians to pickup a ticket and have all the information required to support you.

Using Service Desk

  • We recommend white listing servicedesk@solvebusiness.com.au to prevent support emails going to spam or junk folders;
  • If you have been provided a login then please save the URL in your favourites;
  • If you forget your password you may reset your password with the forgotten password option;

To log a ticket on Service Desk simply email to servicedesk@solvebusiness.com.au

Please provide as much info as you can and make your subject line short but meaningful as your email subject will become the title of the ticket.

Security Advisories & Policies

From time to time we may publish an alert to draw attention to a particular scam, blog post, threat or new feature.

These are provided in good faith and without any warranties.

Acceptable Use Policy (AUP)

This AUP applies to anyone who uses our services and is a condition of your agreement with us.

Our services must not be used to:

  • abuse, menace, harass, intimidate or stalk anyone;
  • break the law or allow another person to break the law;
  • damage property including intellectual property;
  • injure anyone;
  • mislead or deceive anyone including the creation of ‘spoof’ websites;
  • facilitate the commission of a tort, or breach of contract;
  • allow for the misuse of anyone’s confidential information;
  • misuse or allow for the misuse of anyone’s personal information, sensitive information or health information, as defined by the Privacy Act 1988;
  • facilitate or engage in any act or omission which is in contravention of the Spam Laws;
  • deceive, access or manipulate (or allow anyone else to) our billing systems or any part of our network;
  • interfere with someone else’s computer without their permission;
  • allow a minor to view or access material which is inappropriate (or not classified for minors) for minors including pornography;
  • send or distribute any virus, worm, trojan or other malicious code;
  • send alter or create an electronic message (including spoofing) to conceal the true identity of the person from whom it originates;
  • interfere with the proper operation of a website, newsgroup, forum or chatroom;
  • use a remote system (such as a mail server or proxy server), without the authorisation of the owner of it, for the transmission of data;
  • operate a service such as a mail server or proxy server, without proper controls to prevent the use of the service by unauthorised third parties for the transmission of data;
  • control or contribute to a Denial of Service attack;
  • send, display or publish material which:
    • is obscene or offensive;
    • is defamatory or potentially defamatory;
    • would contravene anyone’s intellectual property rights;
    • is likely to incite sexual, religious or racial hatred, violence, discrimination or vilification;
  • users of our services must not do anything to procure another person to do any of the things prohibited under this AUP
  • Minors should not use or access a service unless they have the consent of an adult responsible for them; or they are under the supervision of an adult responsible for them.
  • The prohibitions in this AUP are in addition to and not instead of those contained in your customer contract.
  • We recommend that all users and commercial content providers who use our service review the information provided at www.iia.net.au/guideuser.html, and www.netalert.com.au;
  • If you use one of our services to provide commercial content, we recommend that you adequately label the content, an example of a labelling system is administered by Internet Content Rating Association (ICRA) www.icra.org.
  • You may not use the Service to:
    • send, allow to be sent, or assist in the sending of Spam or Phishing;
    • use or distribute any software designed to harvest email addresses, passwords;
    • or otherwise breach Spam Laws.

Data Breach Risk Mitigation

You agree to use your best endeavors to secure any device or network within your control against it being misused by third parties, including where appropriate:

  • the installation and maintenance of antivirus software;
  • the installation and maintenance of firewall software; and
  • the application of operating system and application software and patches and updates.

Service Provider Rights

We reserve the right to suspend accounts or devices or otherwise take proactive steps to protect you and other interested citizens from a rogue, infected or misconfigured account, device, system or machine.

Wherever possible we will liaise with you prior to taking such action though if we cannot establish contact and there is an ongoing or imminent threat to be mitigated we will proceed with mitigation and advise you when we you become available.

We may also scan for non-standard, non-compliant configurations or those failing to meet recommended best practices including scans of IP address ranges allocated to you for your use with the Service. We may also scan for the presence of open or otherwise misconfigured mail, mailboxes and other systems.

Our right to terminate the Service

If the Service is suspended and the grounds upon which it was suspended are not corrected by you within 7 days, we may terminate the Service. If the Service is terminated under this clause, you may apply for a pro rata refund of any pre-paid charges for the Service, but we have the right to levy a reasonable fee for any costs incurred as a result of the conduct that resulted in the suspension.

Termination of Services

You are required to advise us of your decision to cancel services via submission of an electronic form which must be completed online and submitted electronically. To obtain access the form you must send your cancellation request to the following address for it to be valid: servicedesk@solvebusiness.com.au

Termination for Non-Performance

You may terminate the Service Contract immediately if we breach a Service Level Agreement and fail to remedy the breach within 30 days after receiving a notice detailing the breach and requiring that it be cured. Such notices must be sent to Service Desk in the first instance.

Termination of a Service Contract does not affect our rights of action based on any breach by you before the termination and is without prejudice to any other rights we may have to recover other sums from you.

On termination we may retain all moneys paid to us under the Service Contract.

Termination of Backup Systems

You may cancel at any time subject to applicable notice periods.

Also note: At termination we will turn off any backups that are in place and your backup data will also cease to be accessible. You cannot request your backups to be downloaded, it doesn’t work in that way.

Cancellation, Exit Tasks & Notice Periods

Cancellation notice periods may vary depending on the service being provided and your specific agreement

Our Default Notice Period is a 30 days notice period. This is the minimum notice period we permit on any service and must be provided for all services.

  • If your specific agreement has a different notice period then your agreement will take precedence over our global notice period unless your agreement lacks a specific notice period in which case the global notice period applies.
  • Where you may be opting out of an agreement early then an early termination fee may be due. If this is applied, you may pay this out in a lump sum or continue to allow your monthly to run for the remainder of the contract on a monthly basis.

Upgrades and changes to services (including relocation of data and voice services) may require the cancellation of existing services and the separate provisioning of new (replacement) services. In either instance, is the client’s responsibility to submit the cancellation request for the old service when required. Any fees and costs incurred for failure to advise the incumbent provider or for providing insufficient notice to the incumbent provider are also your responsibility.

Execution of tasks related to the Transition Out of Managed Services, are considered Out of Scope and will be charged on a Time and Materials basis. These tasks include but are not limited to: removal\disabling of Monitoring Tools\Agents, Data Exports and handover processes.

It is the client’s responsibility to organise return of any loaned or rented equipment to our offices in a complete, working and undamaged condition.

Limit of liability

You acknowledge and agree that we are providing access to Goods and Services with certain limitations of our liability to you and to third parties.

You understand that to the extent permitted under applicable law, in no event will we or our officers, employees, directors, parent companies, subsidiaries, affiliates, agents or licensors be liable for any indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of revenues, profits, goodwill, use, data, lost opportunities, or business interruptions or other intangible losses (even if such parties were advised of, knew of or should have known of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy), arising out of or related to your use of or access to, or the inability to use or to access, the site, the services or your backed up data, regardless of whether such damages are based on contract, tort (including negligence and strict liability), warranty, statute or otherwise.

If you are dissatisfied with any portion of the Service(s), your sole and exclusive remedy is to discontinue use of our services. Our total liability to you for all claims arising from or related to the Service(s) is limited, in aggregate, to the greater of (i) the amount of fees actually paid by you for use of our services in the preceding month prior to the date the claim arose; or (ii) ten dollars (AUD $10.00).

Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty or limit liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such applicable law.

Without limiting the foregoing, under no circumstances will we be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond our reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labour disputes, riots, insurrections, civil disturbances, shortages of labour or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, OR non-performance of third parties.

Dictionary/Definitions of Terms:

In this policy, unless the context indicates otherwise:

  • Cloud Computing and Storage – provides users and enterprises with various capabilities to store and process their data in third-party data centers and includes such facilities (whilst not being limited to) as Email, Cloud File Services & Storage.
  • Client – the entity who engages our services. The entity may be an individual, partnership, trust or incorporated body.
  • Service Provider, or Provider – the entity that provides the products, services and solutions to Solve Business Services for resale to the Client
  • Reseller – Solve Business Services is a Reseller of hosted Products and Services provided under a subscription or license to customers
  • Supplier – within the context of this agreement will be the supplier to the Reseller
  • Sites – includes any website or cloud-based system which the Provider and/or Client accesses as part of the Subscription Service and may include sites which the Provider has either full control over or for which it may be a reseller or partner of.
  • Services– includes all goods and services and solutions provided by the us to the Client.
  • Subscription – A service (or collection of services) offered by the Provider, which the client has subscribed to.
  • Subscriber – A client who has subscribed to a service(s)
  • Subscription Fees – fees charged by the provider for subscriptions
  • Subscription Period – the duration of the subscription, may be for any regular period including daily, weekly, monthly, quarterly or annual
  • Agreement Period – a period of engagement for more provision of more complex services
  • SPAM – The Spam Act 2003 prohibits the sending of unsolicited commercial electronic messages—known as spam—with an “Australian link“.
    • A message has an Australian link if it originates or was commissioned in Australia, or originates overseas but was sent to an address accessed in Australia.
  • SPAM LAWS – the Spam Act 2003, the Spam Regulations 2004, the Internet Industry Spam Code of Practice and guidelines as recommended & enforced by the Australian Communications and Media Authority (ACMA).
  • Software, in its most general sense, is a set of instructions or programs instructing a computer to do specific tasks:
    • Software is a generic term used to describe computer programs. Scripts, applications,programs and a set of instructions are all terms often used to describe software.
    • We specifically extend the software definition to also specifically include Scripts, Processes, Automations and Methods that we may design, modify, or customise to implement within your environments to achieve an outcome or result. Such Scripts, Processes, Automations and Methods are by nature portable and re-usable so if we develop something for your systems we may re-use it elsewhere.
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