Precision IT - Master Service Agreement. V2.1

1.1 Definitions
 
In this Agreement:
ACMAmeans the Australian Communications and Media Authority.
 
ACCCmeans the Australian Competition and Consumer Commission.
 
Agencymeans any or all of the following: the Australian Security Intelligence Organisation (ASIO), the Australian Federal Police, the police service of each state and territory of Australia and all other enforcement, crime, anti-corruption, counter terrorism and national security commissions, authorities, bodies, agencies or organisations established under federal, state or territory law.
 
Agreementmeans this Master Services Agreement constituted by this document and any scheduled and attachments to this document.
 
Associatehas the meaninggiven in section 15 of theCorporations Act.
 
Business Daymeans a day which is not a Saturday, Sunday, public holiday or bank holiday in NSW or QLD appropriate to which state is closest to where the service is located.
 
Carriage Servicehas the same meaning as in theTelecommunications Act.
 
CCAmeans theCompetitor and Consumer Act 2010 (Cth).
 
Change of Controlmean in relation to you if:
 
(a) A person to who is not presently able to do any of the following things becomes able to do one of the following things (whether alone or together with any Associates and whether directly or indirectly or through on or more intervening person, companies or trusts: 
a. Control or influence: 
i. The composition of your board of director (or members of a governing body having functions similar to a board of directors); or
ii. The decision making in relation to your financial operating policies;
b. Be in a position to cast, or control the casting of, 20% or more of the maximum number of votes that might be cast at a general meeting of your member, including for the election of director or any similar matter; or
c. Hold or have a beneficial interest of 20% or more in any category of the profits, distributors or net liquidation proceeds of yours;
(b) A competitor acquires a direct or indirect interest of 20% or more of your issued capital (or any entity that controls you); or
(c) A third part acquires a direct or indirect interest of 20% or more of your issued capital and that third party: 
a. Is an entity in which a Competitor holds a direct or indirect interest of 20% or more of its issued capital; or
b. Holds a direct or indirect interest of 20% or more of the issued capital of a Competitor.
 
Competitormeans:
(a) An operator of an information technology services business; cloud computing service; or a telecommunications network; within Australia or a Related Body Corporate of such an operator;
 
(b) A service provider that resells service for any such operator or a Related Body Corporate of such a service provider; or
 
(c) A third party that has an indirect or direct interest in 50% or more of the issues share capital, of any entity described in paragraph (a) or (b).
 
Confidential Informationof a Party means all information treated by that Party or any of its Related Bodies Corporate as confidential (regardless of it’s form and whether the other Party becomes aware of it before or after the date of this Agreement), except information that is public knowledge otherwise than as a result of a breach of any obligation of confidentiality. The terms of this Agreement are the Confidential Information of each Party as is all information exchanged during the process of negotiating the Agreement.
 
Contract Datemeans the date of this Agreement specified on the execution page.
 
Corporations Actmeans theCorporation Act 2001 (Cth).
 
Commencement Datefor a Service means the date on which we complete any physical installation of the Service at the Site; provide End-user Access; and/or provide handover to you.
 
Delivery Datemeans the delivery date for Equipment as specified in the Service Order.
 
Disclosermeans the discloser of Confidential Information.
 
Early Termination Feemeans an amount calculated by multiplying the monthly service fee in respect of the Service Order by the remaining months (or part thereof) of the Initial Term, or subsequent terms of the Service Order (whichever is applicable) and any outstanding charges including Establishment Fee or part thereof.
 
End Userof any entity means a person to whom that entity supplies services or products.
 
Equipmentmean any approved equipment, system, or hardware provided by us to you in connection with the Services as specified in the Service Order.
 
Establishment Feemeans the fee payable for installation of Equipment or a Service and any other fees associated with establishing a Service, as set out in the Service Order.
 
Faultmeans any fault relating to a Service.
 
Feesmeans in relation to a Service, all the charges payable by you for that Service (including the charges for usage of the Service and, where applicable, Equipment charges, installation charges, connection charges and access changes) as set out or referred to in the Service Orders, as amended from time to time by notice in writing by us in accordance with this Agreement or any applicable Service Orders.
 
Force Majeure Eventmean an event not reasonably within a Party’s control or the control of it’s Related Bodies Corporate, including but not limited to fire, storm, flood, earthquake, act of God, war (whether declared or undeclared), acts of terrorism, industrial dispute, blockade, system hacking event, unauthorised or malicious security breach, lightning, explosion or meteor, governmental restrain, expropriation or prohibition, where, in respect of all such events, the cause is not reasonably within the control of the Party affected or of it’s Related Bodies Corporate.
 
Government Agencymeans any government or governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity.
 
Head Licencemeans any agreement or arrangement between Precision IT or it’s Supplier and the owner or licensor of any third party software which is sub-licensed by us under this Agreement.
 
Initial Termmeans, in respect of a Service, the minimum commitment period under which you have agreed to receive and pay for the Service as specified in the relevant Service Order.
 
Insolvency Eventmean, in relation to a Party, any one or more of the following events or circumstances;
 
(a) Being in liquidation or provisional liquidation or under administration;
(b) Having a controller (within the meaning of theCorporations Act) or analogous person appointed to it or any of its property;
(c) Being unable to pay its debts or being otherwise insolvent;
(d) Becoming an insolvent under administration, as defined in section 9 of theCorporations Act; (e) Entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors;
(f) Any analogous event or circumstance under the laws of any jurisdiction; or (g) Taking any step or being the subject of any action that is reasonably likely to result in any of the above occurring,
 
Unless such an even or circumstance occurs as part of a solvent reconstruction, amalgamation, compromise, arrangement, merger or consolidation approved by the other Party.
 
Intellectual Property Rightsincludes both in Australia and throughout the world, any copyright, trad or service mark, design, patent, semiconductor or circuit layout right, trade, business or company name, indication of source or designation of original or other proprietary right, or any right to registration of such rights andIntellectual Propertyhas a corresponding meaning.
 
Interception Actmeans theTelecommunications (Interception and Access) Act 1979 (Cth)as amended.
 
Intervening Eventmean an event beyond our reasonable control which interferes with an prevents us from providing the Services to you but not a Force Majeure Event. Such events include any act or omission of the Supplier, any disruption to our or our Supplier’s networks, infrastructure and equipment, failure of any electrical power supply, changes to any laws or regulations.
 
Lawmeans:
 
(a)  principles of law or equity established by decisions of courts;
statutes, regulations or by-laws of the Commonwealth, a State, a Territory or a (b)  Government Agency; and (c)  requirements and approvals (including conditions) of the Commonwealth, a State, a Territory or a Government Agency that have the force of law.
 
Networkhas the same meaning as “Telecommunications Network” in theTelecommunications Act.
 
Partymeans a party to this Agreement.
 
Precision IT Accountmeans our bank account notified to you from time to time.
 
Precision IT Networkmeans any telecommunications network., equipment, facilities or cabling controlled or utilised by us.
 
Precision IT Propertymeans any items of property owned by us or under our control.
 
Proceduresmeans the procedures governing the manner and process by which you receive accreditation for the Services or undertake duties and functions under this Agreement as notified or provided to you by us and as amended by us from time to time.
 
Rebatesmean the amounts specified to be payable by us as set out in the applicable Service Schedule.
 
Recipientmeans the recipient of Confidential Information.
 
Regulatory Eventmeans:
(a)  the enactment, amendment, replacement or repeal of theTelecommunications Act, the CCA or other telecommunications related legislation or regulations; or
(b)  the making of a determination or finding by the ACCC, the ACMA or a court of law that all or any part of this Agreement contravenes any provision of any law; or
(c)  the determination, addition, variation or removal of a service provider rule (as defined in section 98 of theTelecommunications Act) applicable to a Party; or
(d)  the issue, registration, making, promulgation, amendment or replacement of any code or standard by the ACCC or the ACMA or a court of law; or
(e)  The issue of a competition notice to a Party under Part XIB of the CCA; or
(f)  The grant of an injunction against a Party in relation to a breach or alleged breach of the CCA; or
(g)  The giving of a lawful direction to a Party by the ACCC, the ACMA, the Australia Broadcasting Authority or any relevant Minister or other governmental agency or authority; or
(h)  The enactment of any legislation, regulation or other statutory instrument or code that effects the lawfulness or otherwise of the Customer Services; or
(i)  Any arbitration by the ACCC under Part XIC of the CCA; or (j)  The declaration by the ACCC under Part XIC of the CCA of any service not declared as at the date of this Agreement or a material variation to any service declared as at the date of this Agreement.
 
Related Body Corporatehas the meaning given in section 9 of theCorporations Act.
 
Servicesmean:
(a)  The services which we make available to you for purchase and use by you under this Agreement; and (b)  Where the context permits, also includes the Service Materials associated with the services described in paragraph (a) above.
 
Service Fee Schedulemeans a schedule setting out Fees payable by you to us for the Services supplied by us, as varied by us from time to time.
 
Service Applicationmeans a document submitted by you to us from time to time in accordance with clause 2.4(a) or by any other means as directed by us in which you request the supply by us of a particular Service.
 
Service Levelsmeans the service levels for the relevant Service as set out in the applicable Service Schedule.
 
Service Materialsmeans any products sold to or provided you by us as part of providing a Service to you.
 
Service Ordermeans an order for the provision of a Service prepared by us which becomes binding on the Parties when executed by you and us, which specifies the Service to be provided by us to you, the Fees payable for that Service, any other applicable terms and which attaches the relevant Service Schedule.
 
Service Schedulesmeans the Service specific terms and conditions for a Service made available by us to you as varied by us from time to time. The version applicable on the Contract Date is as set out as part of the Service Order.
 
Sitemeans the site for the delivery of the Equipment as specified in the Service Order.
 
Suppliermeans a Carrier, Carriage Service Provider, telecommunications service provider, a wholesale supplier of IT equipment; software; or telecommunications services or other supplier who we use from time to time, in order to supply the Services or any part of it.
 
Termmeans a period of 12 month unless agreed in writing between the Parties or outlined in the Service Order.
 
Telecommunications Actmeans theTelecommunications Act 1997 (Cth).
 
Territorymeans Australia.
 
Third Party Equipmentmeans any equipment that is used by you or End Users to access the Services which is not approved or provided by us.
 
Warrantmeans a valid warrant issued under theTelecommunications Actor theInterception Act.
 
1.2 Interpretation
In this Agreement, unless the context otherwise requires: 
 
(a)  Words importing the singular include the plural and vice versa;
(b)  Other parts of speech and grammatical firms of a word or phrase defined in the deed have a corresponding meaning;
(c)  An expression importing a natural person includes a company, partnership, joint venture, association, corporation or other body corporate and a Government Agency;
(d)  A reference to a law includes a constitutional provision, treaty, decree, convention, statue, regulation, ordinance, by law judgement, rule of common law or equity or a rule of an applicable stock exchange and is a reference to that law as amended, consolidated or replaced;
(e)  A reference to a document includes all amendments or supplements to that document, or replacements or notations of it;
(f)  A reference to a party in a document includes that party’s successors and permitted assigns;
(g)  A reference to an agreement, other than the Agreement, includes an undertaking, deed, agreement or legally enforceable arrangement or understanding, whether or not in writing;
(h)  Wherever “include” or any form of that word is used, it must be construed as if it were by “(without being limited to)”;
(i)  Where the day on or by which something must be done is not a Business Day, that thing must be done on or by the following Business Day;
(j)  If you compromise of more than one party, each of those parties will be jointly and severally liable for the performance of your obligation under this Agreement;
(k)  Headings are for convenience only and do not affect the interpretation of the Agreement; and (l)  This Agreement may not be construed adversely to a party just because that party prepared it.

2. Appointment
2.1Your appointment
We appoint you, and you accept the appointment, as our customer for the Services on the terms and conditions of this Agreement.
 
2.2 We may appoint other service providers
The Parties acknowledge that: 
(a)  The supply of Services to you pursuant to the terms of this Agreement is non-exclusive. We are free to supply the Services or procure the supply of the Services to other parties on terms and condition we deem fit; and
(b)  We may promote and sell ourselves, or appoint other agents, dealer or service providers to promote or sell, the Services in the Territory from time to time. Therefore we and these entities may compete with you.
 
2.3 You must not resell the Services
(a)  You may only use the Services for your own internal business unless authorised by us in writing to do so after you have submitted, and we have accepted a relevant Service Application.
(b)  Your ability to resell any of Precision IT’s services remains the sole discretion of Precision IT.
(c)  Reselling services to any parent subsidiary businesses or business units is permitted for the purposes of assigning costs to departments or cost centres.
 
2.4 Service Application
(a)  If you would like us to provide a Service or vary an existing Service under this Agreement, you must submit to us a Service Application which will include any information requested by us from time to time.
(b)  As soon as practicable after receiving a Service Application: 
a.  If we agree to provide the Service requested in the Service Application, we will provide to you: 
i.  The Service Order which will include details of the proposed Fees based on the applicable Service Fee Schedule where relevant for providing the requested Service; and
ii.  The applicable Service Schedule. You agree and accept that we may vary and update the terms of the Service Scheduled from time to time.
b.  If we do not agree to provide the Services requested in the Service Application, we will notify you of our reasons. 
(c)  If we notify you of the details pursuant to clause 2.4(b)(i), you and we will use reasonable endeavours to negotiate in good faith the relevant details of the Service Order to your and our mutual satisfaction.
(d)  You acknowledge that we are not obligated to supply any Service unless a Service Order for that Service has been executed by both you and us.
 
2.5 Terms applicable to each Service supplied by us
On execution by the Parties of a Service Order, we will supply and you will purchase the relevant Service on the terms set out in: 
(a)  the Service Order; 
(b)  the Service Application;
(c)  the applicable Service Schedule; and
(d)  this Agreement,
and in the event of any inconsistency, that inconsistency will be resolved in the earlier listed document.

3. Term
3.1 Term of this Agreement
This Agreement commences on the Contract Date and continues for the Term, unless terminated earlier by a Party in accordance with clause 14.
 
3.2 Term of a Service Order
Unless a Service Order is terminated pursuant to this Agreement, the term of each Service Order shall commence on the Commencement Date of the Service and continue:
(a)  For the Initial Term; and
(b)  Unless either Party provides at least 60 days but no greater than 90 days written notice of termination before the expiry of the Initial Term, on a monthly basis which either party may terminate on 30 days’ notice ending on any day, Until terminated in accordance with clause 14.

4. Obligations of Precision IT
4.1 Support
We will use out best endeavours to provide you with: 
(a)  Technical support as described in the applicable Service Schedule;
(b)  Prompt responses to your technical and non-technical enquiries; and
(c)  Prompt resolution of technical issues relating to the Services, provided that you promptly report these issues to us.
 
4.2 Service availability
You acknowledge that the Services may not be available from time to time as a result of the number of factors, including:
(a)  Capacity constraints;
(b)  Electromagnetic interference;
(c)  Adverse weather conditions;
(d)  Excessive network use;
(e)  Equipment failure;
(f)  Force Majeure Event;
(g)  Intervening Event; or
(h)  During maintenance activities,
And that in such circumstances, we are not obliged to supply the Services. 
 
4.3 Service Levels
(a)  We will use our best endeavours to provide the Services in accordance with the relevant Service Levels.
(b)  To the extent permitted by law, the Rebates are your sole remedy in relation to any failure by us in respect of the delivery and performance of the Services and our performance under this Agreement, or our failure to meet the relevant Service Levels.
(c)  The Parties agree that the Rebates represents a reasonable and genuine pre-estimate of the minimum anticipated or actual loss or damage which would be incurred by you as a result of a failure by us in respect of the delivery and performance of the Services and our performance under this Agreement, or our failure to meet the relevant Service Levels. The Parties want to avoid the difficulties of proof of damages and agree that the Rebates are reasonable and are not a penalty. (d)  You agree and accept that we may vary and update the Service Levels and Rebates by giving you 30 days written notice.

5. Your Obligation
You must:
(a)  Comply with the requirements set out in any Service Orders. Each of these requirements is a condition of this Agreement.
(b)  Comply with any directions issues by us to you from time to time relating to the use of the Services or our, or our Supplier’s obligations under any applicable Law;
(c)  Not do, or permit to be done, or omit to do any act or thing that would or could cause to be in breach of any condition or other provision of any requirements under any applicable Laws.

6. Security to be provided 
(a)  We may, from time to time, require you to provide security for payment (in the form of a bank guarantee, unless otherwise specified by us) during the Term if any of the following events occur: 
 
a.  If the infrastructure and installation costs required to be incurred by us in connection with preparation for the provision of any Service or Services in respect of any Service Order exceeds $10,000; 
b.  If the monthly service fees in respect of the Services under this Agreement exceeds $10,000; and
c.  Any other circumstance which we determine in our absolute discretion.
 
(b)  You must comply with our request under clause 6(a) within 7 days of receiving the request unless otherwise agreed by us. 

7. Fees, Invoicing and Payments
7.1 You remain liable
(a)  You are liable for any and all Fees incurred in respect of Services supplied by us until each Service is cancelled. You must pay all charges for each Service pursuant to each Service Order in advance on and from the Commencement Date of that Service.
(b)  For the avoidance of doubt, any Fees which, according to our records, are attributable to the provision of a Service to you pursuant to each Service Order executed by both Parties, regardless if the person who executed the Service Order on your behalf was authorised to do so, must be paid by you.
 
7.2 Changes to Fees
(a)  We will conduct a review of the Fees payable by you under this Agreement on an annual basis.
(b)  Fees for Services within the Initial Term will not be reviewed or changed until the expiry of the Initial Term.
(c)  We may only change the Fees by giving you at least 1 month prior notice of the increase (Effective Date). The revised Fees will apply to all Service Applications submitted on or after the Effective Date.
(d)  For the avoidance of doubt, fees incurred due to Excess Usage or Service Additions are to be set out in the Service Order and will be invoiced without notice as an additional fee when applicable.
 
7.3 Precision IT to issue invoice
(a)  We will issue an invoice to you (Precision IT Invoice) in advance, each month for Fees relating to the Services to be provided by us to you for the following calendar month.
(b)  We will issue an invoice to you (Precision IT Invoice) for any Excess Usage or Service Additions provided by us to you in the previous month and earlier than the previous month (but generally not more than 7 months before the date of invoice) if we have not previously charged you for those Services.
(c)  We will endeavour to issue Precision IT invoices on or around the 15th of the calendar month.
 
7.4 Records conclusive
You acknowledge that our records of Services supplied are conclusive evidence that a Service was supplied as recorded. 
 
7.5 You are to pay Fees
(a)  You will pay the Fees via electronic funds transfer (EFT) or credit card within 15 days after the date of the Precision IT Invoice or by any other means of payment that we notify you is acceptable to us.
(b)  Payment of any Fees will only be deemed to have received by us when the amount is shown as having been deposited in the Precision IT Account.
(c)  If you pay by credit card in an automated and recurring fashions, you must give us at least 14 days prior written notice if you no longer wish to pay by credit card.
 
7.6 Failure to pay
Subject to clause 7.7, if you do not pay us any amount set out in a Precision IT Invoice by the due date set out in clause 7.5 or if you pay by credit card and there are insufficient funds in the account, we may in our sole discretion do on or more of the following:
(a)  Charge interest on the outstanding amount at a rate of 2% per annum above the corporate reference rate of our principal bankers current on the date the payment was due until the date the payment is made (and if the referenced interest rate is not ascertainable, we may nominate an alternative interest rate);
(b)  Cease supplying Service Materials;
(c)  Suspend or restrict the provision of new and additional Services.
(d)  Suspend or restrict the Services on 2 Business Days notice.
 
7.7 Fee disputes
(a)  If you wish to dispute any Fees invoiced by us, you must notify us of the dispute in writing within 10 days of the date of the relevant invoice and pay to us those which are not disputed. The written notice of dispute must: 
i.   Identify the relevant invoice disputed by you and attach a copy of the invoice;
ii.  Identify which of the particular Fees in the invoice are disputed by you; and
iii. Set out detailed reasons why those Fees are disputed.
(b)If you comply fully with the requirements of clause 7.7(a) and the dispute is a bona fide dispute, you may withhold payment of the disputed Fees until the dispute is resolved. If the resolution of the dispute requires you to pay to us any or all of the disputed Fees, you must pay us interest on that amount pursuant to clause 7.6(a) as thought that amount has been outstanding from the date it was originally invoiced.
 
7.8 No set-off
You may not set off any payment or amount owed by you to us against any monies owed by us to you, unless agreed in writing by us.

8. Credit Worthiness
8.1 We may review
We (or our agent) may, from time to time, review your creditworthiness. In doing so, we may seek information or advice from you or an independent person such as a credit reporting agency or credit provider to assist us in a creditworthiness review. 
 
8.2 You are to cooperate
You agree to promptly cooperate with a review of your creditworthiness by providing to us (or our agent) any information, authorisation or consent reasonably required to conduct any such review. Unless otherwise specified by us, the information must be provided within 7 days of our request. 
 
8.3 We are authorised by you 
You irrevocably authorise us to obtain information regarding your creditworthiness from a credit agency, the bank used by you and your accountant or auditor.

9.Representations and Warranties
9.1 Application of representations and warranties
Each of the representations and warranties in clauses 9.2 and 9.4 below:
(a)  Remains in full force and effect after the date of this Agreement; and
(b)  Are separate and independent and are not limited by reference to any other such representation or warranty or any other provision of this Agreement.
 
9.2 The warranties given by each Party
Each Party represents and warranty to the other Party that:
(a)  It is duly incorporated under the jurisdiction of this incorporation, with all requisite corporate power and authority to own, lease and operate its asset and carry on its business as now being operated and conducted;
(b)  It does not enter into this Agreement in its capacity as trustee or any trust;
(c)  It has full power and all necessary rights to enter into this Agreement and to perform its obligations according to the terms of this Agreement;
(d)  It holds all necessary licenses, consents, authorisations, permits and approvals required by Laws to perform its obligations according to the terms of this Agreement;
(e)  It has not, prior to the date of this Agreement, entered into any other agreement which conflicts with its performance of this Agreement or obligations under this Agreement;
(f)  This Agreement does not conflict with or result in the breach of or default under any provision of this constitution or any provision of any Law to which it is subject;
(g)  This Agreement contains legal, valid and binding obligations and, subject to any necessary stamping and registration, is enforceable in accordance with its terms; and
(h)  To its knowledge there are no actions, claims, proceeding or investigations pending or threatened against it, or by it, which may have a material effect on the subject matter of this Agreement.
 
9.3 No warranty by us
We exclude all representations and warranties concerning the Services, our performance under this Agreement and otherwise. In particular, we do not warrant that the:
(a)  Supply of the Services will be uninterrupted;
(b)  Services will be available at all time or usable for all purposes; or
(c)  You will make any particular level of return or profit under this Agreement
 
9.4 Your warranties
You warrant and represent to Precision IT, and it is a condition of this Agreement, that:
(a)  In entering into this Agreement you do not and will not infringe the Intellectual Property Rights or contractual rights of any third party;
(b)  You:
a.  Are not bound by any agreement or understanding existing at the date of this Agreement which would restrict or prevent you from fully performing your obligations under this Agreement; and
b.  Are not aware of any facts, matter or circumstance which now or in the future could cause you to have a conflict of interest and you undertake not to place yourself in a position where it has a conflict of interest.

10. Property
(a)  You: 
a.  Acknowledge that the Precision IT Property is and will remain our property;
b.  Must use the Precision IT Property in accordance with agreement procedures and any other directions or ours notified to you from time to time;
c.  Must notify us promptly on becoming aware of any damage to or malfunction of the Precision IT Property or that any Precision IT Property requires maintenance of any kind; and
d.  Acknowledge that we may, subject to giving reasonable notice, and at our cost, change modify, replace or remove the Precision IT Property in our absolute discretion.
(b)  To the extent that we wish to locate the Precision IT Property at facilities owned or controlled by you, we will request such access and such access must be provided by you provided always that: 
a.  Access is not required to be given where it is not technical feasible or where the rights of a third party preclude access; and
b.  You use reasonable endeavours to obtain the consent of any third part to such access.
(c)  You must protect our title to the Precision IT Property by:
a. Not, without our prior written consent, remove or obscure any identifications marks on the equipment;
b.  Complying with all reasonable instructions we give you to protect our title; and
c.  Not doing anything or authorising anything to be done which might affect our title. 
(d)  You bear the risk of loss or damage to Precision IT Property while it is in your possession or control (except as a result of ours, or our contractors’, negligent act or omission) and must indemnify us in respect of any such loss or damage. 

11. Intellectual Property
(a)  All Intellectual Property which is owned by, or is proprietary to, a Party as at the date of this Agreement will at all times remain owned by that Party exclusively. 
(b)  Nothing in this Agreement confers on you any right or interest in, or license to use (or permit to cause to be used) any of our, or any third party’s, Intellectual Property or any of our product, trade or service names 

12.Exclusions and limitations of liability
(a)  Despite any other provisions in this Agreement, neither Party excludes or limited the application of any statute where to do so would:
a.  Contravene that statute; or 
b.  Cause any part of this clause to be void. 
 
(b)Except as otherwise expressly provided in this Agreement or prohibited by law, we exclude all:
a.  Statutory liability;
b.  Liability for:
i.   Indirect or consequential loss; and
ii.  Economic loss, loss of business, loss of revenue, loss or profits, loss of data, loss of goodwill and loss of opportunity claimed by you whether direct, consequential or indirect and any associated expenses or costs, arising out of or in connection with this Agreement, negligence or any termination or breach of this Agreement; and
iii.  Representations, condition and warranties implied by custom, the general law or statute.
 
(c)  Subject to clauses 4.3(b), 12 (d) and 12(e), and to the extent permitted by law, the maximum liability of us to you for all loss and damage suffered or incurred by you in connection with this Agreement, whether arising from or in connection any breach of contract, tort (including negligence) or any other cause of action is limited in aggregate to the fees paid by you to us under this Agreement.
 
(d)  In relation to any goods or services supplied by us to you under this Agreement, our liability for the breach of any condition or warranty implied by statute in this Agreement which may be limited but not excluded, is limited, at our election, to:
a.  In the case of goods:
i.    Replacement of the goods; 
ii.   Supply of equivalent goods; 
iii.  Repair of the goods; 
iv.  Payment of the cost of replacing the goods;
v.   Payment of the cost of acquiring equivalent goods; or
vi.  Payment of the cost of having the goods repaired; and
b.  In the case of services:
i.   Resupply of the services; or
ii.  Payment of the cost of resupply of the services.
 
(e)  Nothing in this clause 11 limited the liability of:
a.  You to pay any amounts required to be paid by it under this Agreement;
b.  You arising from a breach of clause 10(c) above; or 
c.  You under any indemnity given by you.
 
(f)  We are not liable to you to the extent that liability or loss is incurred in connection with a claim brought or made against you by a person to whom you provide a service or good or other matter or thing ancillary to or related to a service or good, and who has a contractual relationship with you, to the extent that the liability or loss could have been excluded or reduced by you in that contract, regardless of whether such liability was excluded or reduced.
 
(g)  You acknowledge that our Supplier are not liable to you, whether in contract, tort (including negligence) or otherwise, in relation to any Services provided by us to you, or any delay or failure to provide the Services to you.

13. Indemnities
You indemnify us against all losses, actions, claims, costs, expenses and damages (including legal costs on a full indemnity basis) incurred by or awarded against us out of or in respect of:
(a)  Any loss or, damage to or loss of use of, any of our equipment, property or data arising from your conduct;
(b)  Personal injury or death to any person arising from you conduct;
(c)  Any claim made by any third person that your or an End User’s use of the Services infringes the Intellectual Property Rights of a third person;
(d)  Any wrongful disclosure of Confidential Information or breach of privacy obligations;
(e)  Any claim made by any third person arising out of or by means of or by reason of anything done or omitted to be done, whether intentionally or not, negligently or otherwise, by you in relation to this Agreement.

14.Termination and suspension
14.1 Early termination of a Service Order by you
Subject to clause 15 and the terms of the applicable Service Order, you may terminate a Service Order:
(a)  Before the Commencement Date in respect of that Service Order by giving us prior written notice and paying to us all infrastructure and installation costs incurred by us in connection with preparation for the provision of the Service;
(b)  after the Commencement Date in respect of that Service Order before the expiry of its Initial Term by giving us 60 days written notice and paying the applicable Early Termination Fee.
 
14.2 Termination of a Service Order and this Agreement by you
You may terminate a Service Order and this Agreement without liability to pay the fees set out in clause 15.2 by giving to us written notice:
(a)  if we breach a term of this Agreement and: 
a.  the breach is material and we are unable to remedy that breach; or
b.  the breach can be remedied, but we do not remedy that breach within 30 days of receipt of a written notice from you requiring that breach to be remedied; or
(b)  if an Intervening Event occurs in relation to that Service and you are unable to use the Service for more than 30 days; or
(c)  if we are the subject of an Insolvency Event.
 
14.3 Termination of a Service Order and/or this Agreement by Precision IT
We may terminate this Agreement and/or any or all Services supplied under it at any time, without liability and immediately by notice to you, if:
(a)  you fail to pay any amount Owing to us in respect of a Service Order under this Agreement (which is not the subject of a bona fide dispute) by the relevant due date, and you fail to pay that amount within 10 Business Days of receiving notice of failure to pay from us;
(b)  you breach a material term of this Agreement, including terms relating to the your use of a Service and: 
a.  that breach cannot be remedied; or
b.  that breach can be remedied, but you do not remedy that breach within 30 days of receipt of a notice from us requiring the breach to be remedied;
(c)  you are the subject of an Insolvency Event;
(d)  we reasonably suspect that you, an End User or any person in connection with a Service is fraudulent or where evidence suggests illegal conduct in relation to a Service;
(e)  we reasonably believe that you may be a credit risk in relation to a Service;
(f)  you assign or otherwise deal with your rights under this Agreement without our prior written consent;
(g)  there is an emergency;
(h)  we are required to do so to comply with any law or direction of any regulator including without limitation, the ACMA, ACCC, the Telecommunications Industry Ombudsman, or any other relevant Minister or governmental agency or authority;
(i)  an Intervening Event occurs and is not rectified within 30 days;
(j)  a Service is suspended by us in accordance with the terms of this Agreement for a period of more than 30 days;
(k)  any of your director, secretary or officer is convicted of a serious Criminal offence which, in our reasonable opinion, is likely to bring us or the Services into disrepute;
(l)  a Change of Control occurs in relation to you;
(m)  if, in our reasonable opinion, the association with you by virtue of this Agreement, is causing damage to the Precision IT Brand and we give 30 days’ notice to you; or
(n)  we are otherwise entitled to do so under this Agreement.

15. Consequence of Termination
15.1 General consequences of termination
If a Service Order is terminated for any reason:
(a)  We will stop providing the relevant Service to you and you will no longer have the right to use the Service after the date of termination;
(b)  You are liable for any Fees incurred up to and including the date of termination, including any applicable Early Termination Fee subject to clause 14;
subject to clause 14, we will refund to you any over payment on your account or any pro-rata payments made in advance for use of that Service the subject of the termination;
(c)  you authorise us to recover any undisputed outstanding Fees and Early Termination Fees from any over payment you may have made; and
we will continue to provide to you with the Services which have not been terminated (unless that termination makes it technically nonviable to do so).
 
15.2 Termination of a Service prior to expiry of Its Initial Term
If a Service Order is terminated prior to the expiry of its Initial Term for reasons which are reasonably attributable to you (including termination by you under clause 15.1), we will charge you: 
 
(a)  the applicable Early Termination Fee; and
(b)  any other amounts set out in clause 15.1,
 
which is in addition to any other outstanding Fees which have been incurred by you up to the date of termination.
 
15.3 Consequences of termination of Agreement
(a)  Termination of this Agreement will not affect the accrued rights and remedies of either Party.
(b)  Termination of this Agreement will not automatically terminate any Service Orders and any unexpired Service Orders will remain on foot until they expire or are otherwise terminated.
(c)  All clauses which are either expressly or by implication intended to survive termination will continue to apply after termination including, clauses 15, 16, 18, 19, 20, 22, 23, 24.3, 27, 28 and 32 of this Agreement.
(d)  On termination of this Agreement: 
a.  each Party must return to the other Party all Confidential Information received from the other Party and still held by it or, if the other Party elects, destroy that Confidential Information;
b.  each Party must pay the other Party any amount due and owing to the other Party under this Agreement; and
c.  you must return to us: 
i   all our property; and
ii  the original and all copies of the Procedures.

16. Force Majeure
(a)  Despite any other provision of this Agreement, a Party will not be liable for any failure to perform, or delay in the performance of its obligations, under this Agreement if the failure or delay is caused, whether directly or indirectly by a Force Majeure Event.
(b)  The Party unable to perform its obligations (Affected Party) must: 
a.  notify the other Party immediately of the Force Majeure Event, including describing the impact or anticipated impact of the Force Majeure Event on the Affected Party's performance; 
b.  use its reasonable endeavours to continue or resume its performance in accordance with this Agreement as soon as possible, including: 
i.   using its reasonable endeavours to remedy or cause to be remedied any impact of the Force Majeure Event that is capable of remedy; or
ii.  making alternative arrangements with a third party or parties to enable it to fulfil its obligations, provided those alternative arrangements are satisfactory to the other Party and do not involve any additional cost to the other Party (unless the other Party agrees otherwise); and 
c.  keep the other Party informed in relation to any change in its ability to continue or resume its performance.
 
(c)  30 days after the Force Majeure Event (or the commencement of the Force Majeure Event if it is an event of a continuing nature), the other Party may terminate this Agreement on 7 days written notice to the Affected Party if: 
a.  the Affected Party is still unable to perform its obligations; or b.  arrangements with a third party or parties have been made to enable the Affected Party to fulfil its obligations but the other Party is not prepared to continue this Agreement on that basis.

17. Regulatory Events
(a)  Despite any other provision of this Agreement, if a Regulatory Event occurs or is likely to occur which, in the opinion of a Party acting reasonably, materially adversely affects or is likely to materially adversely affect the rights or obligations of either Party under this Agreement or the subject matter of this Agreement, the Parties agree to enter into good faith negotiations as soon as practicable, to amend or vary this Agreement to the extent necessary to mitigate or alleviate the relevant effect.
(b)  The provisions of this Agreement will remain in full force and effect during any negotiations conducted under clause 26(a) above until commencement of any agreement replacing or amending this Agreement.
(c)  If the Parties are unable to reach a mutually acceptable solution within 90 days of the commencement of negotiations under clause 26(a) above, either Party may terminate this Agreement on 30 days’ notice 

18. Dispute Resolution Process
18.1 Notice of Dispute
If a Party has any dispute in relation to this Agreement (Dispute) that Party must, before resorting to external dispute resolution mechanisms (except for urgent interlocutory relief), notify the other Party in writing setting out the reasons for the Dispute.
 
18.2 Escalation of Dispute
Where a notice has been given under clause 18.1 above, the Parties will attempt to resolve the Dispute by referring the matter to their respective Chief Executive Officers (or nominees) who must meet within 5 Business Days of the date of the receipt of the Dispute notice to negotiate a resolution. 
 
18.3 Dispute not resolved - mediation 
If, the Dispute has not been resolved to the satisfaction of both Parties within 10 Business Days of the Parties meeting under clause 18.2 above, the Parties will refer the Dispute to a mediator appointed by agreement of the Parties or, where the Parties cannot agree on a mediator, nominated by the Chairperson of the Australian Commercial Disputes Centre or the Chairperson's nominee, for resolution by mediation, for a period of 20 Business Days commencing on the date of referral to the mediator (or such longer period agreed to by the Parties). Each Party will bear its own costs in respect of the mediation. The costs of the mediator will be borne equally by the Parties.
 
18.4 Dispute not resolved 
If the Dispute has not been resolved between the Parties within 10 Business Days of the conclusion of the mediation process, the Parties are free to pursue other dispute resolution avenues. 
 
18.5 Continued performance
Each Party will continue to perform this Agreement despite the existence of a Dispute.

19. Confidentiality
19.1 Obligations of confidentiality
(a)  Subject to clause 19.2 and 19.3, the Recipient must keep confidential all Confidential Information of Discloser which comes to its knowledge or into its possession in connection with this Agreement and must not: 
a.  use or copy such Confidential Information except for the purposes of this Agreement; or
b.  disclose or communicate, cause to be disclosed or communicated or otherwise make available such Confidential Information to any third party, unless authorised by this Agreement.
(b)  The Recipient acknowledges that a breach of this clause by the Recipient may cause the Discloser irreparable damage for which monetary damages would be an inadequate remedy. Accordingly, in addition to other remedies that may be available, the Discloser may seek injunctive relief against such a breach or threatened breach of this clause 19.1.
 
 
19.2 Permitted disclosures
Despite the Recipient's obligations under clause 19.1 above, it may disclose the Confidential Information of the Provider:
(a)  to those of its directors. employees. agents and representatives and those of its Related Bodies Corporate to whom the Confidential Information is reasonably required to be disclosed for the purposes of this Agreement;
(b)  to the Recipient's professional advisers, financial advisers, bankers. financiers or auditors where that person is obliged to keep the information confidential;
(c)  in connection with any listing on any recognised stock exchange by a Party or any of its Related Bodies Corporate or Associates;
(d)  for the purpose of obtaining and receiving professional advice;
(e)  in connection with legal proceedings or the dispute resolution processes set out in clause 17 above;
(f)  as required by law or regulation or any requirement of any regulatory body (including any relevant stock exchange, the ACMA or the ACCC) provided that, where practicable, the Recipient has first notified the Discloser that it is required to disclose the Confidential Information so that the Discloser has an opportunity to protect the confidentiality of the Confidential Information;
(g)  with the consent of Discloser; and (h)  where the Confidential Information has come into the public domain through no fault of the Recipient.

20. Costs and stamp duty 

(a)  Except as otherwise provided in this Agreement, you must pay your own costs and expenses in connection with the negotiation, preparation, execution and performance of this Agreement.
(b)  You must:
a.   pay all stamp duties and any related fines and penalties in respect of this Agreement, the performance of this Agreement and each transaction effected by or made under or pursuant to this Agreement as they fall; and
b.   indemnify us against any liability arising from failure to comply with clause 20 (b)(a).

21. Variation
This Agreement may only be varied by a document signed by or on behalf of each of the Parties accept that any Attachments, the Service Schedules, and the Service Fee Schedule may be amended on notice by us.

22. Assignment 
(a)  You must not assign charge or otherwise deal with, or attempt to assign, charge, or otherwise deal with, any right or obligation under this Agreement without our prior written consent. (b)  We may assign, novate or otherwise transfer our rights and obligations under this Agreement with your consent or approval which must not be unreasonably withheld or delayed, provided that no such consent or approval will be required in the case of any assignment, novation or transfer of rights to our Related Body Corporate.

23. Relationship of Parties 
(a)  Nothing in this Agreement (or any of the arrangements contemplated by it) is or may be deemed to constitute a partnership or joint venture or a relationship of employer and employee between the Parties nor, except as may be expressly set out in this Agreement, does it make either Party the agent of the other for any purpose. (b)  Unless the Parties otherwise agree in writing, neither of them may enter into contracts or commitments with third parties as agent for the other Party, or describe itself as such an agent or in any way hold itself out as being such an agent.

24. Solicitation of Employment 
(a)  Each party agrees that, during the term of this Agreement and for one (1) year following the termination of this Agreement, neither Party or their respective related bodies, either directly or indirectly, will solicit, hire or attempt to hire any employee involved in providing services under this Agreement of the other party.
(b)  If either party does hire personnel from the other party in violation of this section, without the consent of the other party, it shall pay to the other party an amount equal to double the total annual salary of such employee.
(c)  Each party agrees that this amount accurately reflects the reasonable value of time and costs associated with attracting and retaining personnel.

25. Waiver
(a)  Failure of either Party to exercise or enforce or a delay in exercising or enforcing or the partial exercise or enforcement of any right, power or remedy provided by law or under this Agreement by any Party will not in any way preclude, or operate as a waiver of, any exercise or enforcement, or further exercise or enforcement, of that or any other right, power or remedy provided by law or under this Agreement.
(b)  Any waiver or consent given by any Party under this Agreement will only be effective and binding on that Party if it is given or confirmed in writing by that Party.
(c)  No waiver of a breach of any term of this Agreement will operate as a waiver of another breach of that term or of a breach of any other term of this Agreement.

26. Severence
If any provision of this Agreement is invalid and not enforceable in accordance with its terms, all other provisions which are self-sustaining and capable of separate enforcement without regard to the invalid provision will be and continue to be valid and forceful in accordance with their terms.

27. No representation or reliance 
(a)  Each Party acknowledges that no Party (nor any person acting on its behalf) has made any representation or other inducement to it to enter into this Agreement, except for representations or inducements expressly set out in this Agreement. (b)  Each Party acknowledges and confirms that it does not enter into this Agreement in reliance on any representation or other inducement by or on behalf of any other Party, except for any representation or inducement expressly set out in this Agreement.

28. Notices
Any communication under or in connection with this Agreement:
(a)  must be in writing;
(b)  must be address as shown below:
Name:                      Precision IT Pty. Ltd.
Address:                   Suite 1, Level 1
                                2 Boston Court
                                Varsity Lakes, Queensland 4217
Fax Number:             (02) 8078 0257
For the attention of:  Company Secretary
Email Address:          accounts@precisionit.com.au
(c)   must be delivered or posted by prepaid post to the address or sent by facsimile to the number or email address, of the addressee, in accordance with clause 28(b) above; and
(d)  will be deemed to be received by the addressee:
a.  (in the case of prepaid post) on the third Business Day after the date of posting to an address within Australia;
b.  (in the case of facsimile) at the local time (in the place of receipt of that facsimile) which then equates to the time at which that facsimile is sent as shown on the transmission report which is produced by the machine from which that facsimile is sent and which confirms transmission of that facsimile in its entirety; and
c.  (in the case of delivery by hand) on delivery at the address of the addressee as provided in clause 28 (b) above.

29. Governing Law
(a)  This Agreement is governed by and will be construed according to the laws of Queensland, Australia. (b)  Subject to clause 18 above, each Party submits to the non-exclusive jurisdiction of the courts of New South Wales and the Commonwealth of Australia.

30. Entire Agreement
To the extent permitted by law and except as expressly provided in this Agreement, in relation to the subject matter of this Agreement, this Agreement:
(a)  embodies the entire understanding of the Parties, and constitutes the entire terms agreed on between the Parties; and (b)  supersedes any prior written or other agreement between the Parties.

31. Counterparts
This Agreement may be executed in any number of counterparts 

32. Further Acts
(a)  Each Party will promptly do and perform all further acts and execute and deliver all further documents (in form and content reasonably satisfactory to that Party) required by law or reasonably requested by the other Party to give effect to this Agreement or to facilitate the performance by a Party of its obligations under this Agreement. (b)  If any matter or issue arises which has not been expressly provided for in this Agreement, the Parties will negotiate in good faith to resolve such a matter or issue and to reach agreement in relation to any additional arrangements that may be required to deal with the matter or issue to the satisfaction of both Parties.