CLARATTI
STANDARD TERMS & CONDITIONS
PART A – OUR AGREEMENT
(a) These terms and conditions apply to your engagement of Intelligent IP Hosting Pty Ltd (ACN 619 361 018) trading as ‘Claratti Workspace’ (ABN 94 619 361 018), to provide you with virtual workspace services and related services including the Prescribed Services but excluded the Excluded Services as set out in your Scope of Work (Services).
(b) The following documents and policies form a part of, and are to be read with, these Standard Terms:
(i) your Scope of Work, which attaches these Standard Terms as Annexure A;
(ii) the Service Level Agreement – please see Annexure B;
(iii) our Acceptable Use Policy – please see Annexure C;
(iv) our Privacy Policy – please see Annexure D;
(v) your Authorised Representative Authority – please see Annexure E;
(vi) our Payment Authority Authorisation Form – please see Annexure F
(c) If there is any inconsistency between any of the provisions of these Standard Terms and the provisions of any of the annexures referred to in clause 1(b) above, the following order of precedence applies, with the first listed document having the highest precedence, with the terms of that document prevailing to the extent of any inconsistency with those below it, and so on:
(i) the Scope of Work;
(ii) these Standard Terms; and
(iii) each of the policies or documents contained in Annexures B through F
(d) These Standard Terms are part of our ‘standard form of agreement’ under section 479 of the Telecommunications Act 1997 (Cth) (Telco Act).
(e) To the extent that our Services used by you include Telecommunications Services:
(i) we comply with the Telecommunications Consumer Protection Code;
(ii) the terms of the Telecommunications Consumer Protection Code prevail over these Standard Terms to the extent of any inconsistency; and
(iii) in the event that the Telecommunications Consumer Protection Code is varied after commencement of your agreement with us, our agreement is subject to any such variations from time to time.
(f) You can contact us to obtain further information about our Services or your agreement with us at:
(i) our customer call line, 1300 073 085;
(ii) our email address, support@claratti.com; or
(iii) at our website claratti.com.
2 AGREEMENT AND TERM
(a) By using our Services, you agree to be bound by these Standard Terms which govern the provision of our Services to you.
(b) These Standard Terms will apply from the earlier of the date you execute these Standard Terms in accordance with clause 3(d) or the date you accept any Services from us and will remain in force until cancelled or terminated in accordance with clauses 4 or 5.
3 ORDER & QUOTE
(a) When you request our Services, you must give us all necessary information to enable us to provide you with a quote, including any special requirements you may have.
(b) We will provide you with a quote in the form of a Scope of Work annexing these Standard Terms.
(c) Quotes are valid for [30] days from the date issued.
(d) Once you approved the quotation, this will become a binding contract for the Services contained in the Scope of Work.
(e) You must contact us as soon as possible if you require any amendments or additions to the Scope of Work. We may accept or reject any such requests for amendments at our sole discretion. All amendments and additions must be in writing signed by both parties.
4 CANCELLATION
(a) Our Services may be provided on a month-to-month basis (Month-to-Month Contract) or minimum contract period basis (Minimum Period Contract) as specified in your Scope of Work.
(b) Either party may cancel the provision of our Services to you by providing one months’ written notice to the other party at their discretion:
(i) at any time where our Services are provided pursuant to a Month-to-Month Contract; or
(ii) following the expiration of the minimum contract period, as specified in your Scope of Work (Minimum Contract Period), where our Services are provided pursuant to a Minimum Period Contract.
(c) For the avoidance of doubt, if applicable, following the expiration of the Minimum Contract Period, your Minimum Period Contract will convert automatically to a Month-to-Month Contract.
5 TERMINATION
(a) We reserve the right to terminate this agreement and cease the provision of our Services to you at any time by providing written notice to you where we consider, at out sole and absolute discretion that:
(i) your use of our Services breaches our Acceptable Use Policy;
(ii) a receiver, receiver and manager, manager, administrator, liquidator or trustee in bankruptcy or analogous officer has been appointed to all or a substantial part of your assets and undertaking;
(iii) you are subject to an application for winding-up;
(iv) you have provided false or misleading information to us; or
(v) you are unable to pay your debts as and when they fall due.
(b) Either party may terminate this agreement and the provision of our Services to you at any time by providing written notice to the other party where:
(i) the other party has materially breached their obligations under these Standard Terms; and
(ii) after being provided written notice of such breach by the non-defaulting party, the other party has failed to, or is unable to, remedy that material breach within 14 days.
6 CONSEQUENCES OF TERMINATION OR CANCELLATION
(a) Upon termination or cancellation of this agreement, you must cease using our Services and any of our Confidential Information and must promptly deliver to us, or at our request, destroy, all documentation or electronic records regarding our Services that are in your possession, custody or control.
(b) The termination or cancellation of this agreement does not affect any accrued rights or remedies of either party.
7 BREAK FEE
(a) In the event your agreement with us is cancelled or terminated in accordance with either clause 4 or 5 or through any other means, we reserve the right at our sole and absolute discretion to impose a break fee equal to the balance of the On-boarding Costs which have not been paid by you up your cancellation or termination.
(b) Without limiting clause 7(a), where you cancel or terminate your agreement with us during the Minimum Contract Period, if applicable, you will incur a break fee equal to the minimum Service Fees that would be payable in connection with your Scope of Work for the balance of the Minimum Contract Period remaining after your cancellation or termination.
(c) You acknowledge and agree that the break fees set out in clauses 7(a) and 7(b) (Break Fees) are a genuine pre-estimate of the loss we may suffer as a result of the cancellation or termination of this agreement and are reasonably necessary to protect our legitimate interests.
(d) We will provide you with an invoice detailing any applicable Break Fees within 5 Business Days of the date of cancellation or termination of this agreement which you must pay in accordance with the terms of that invoice and clause 21 of these Standard Terms.
PART B – OUR SERVICES
8 PERFORMANCE OF OUR SERVICES
(a) We will provide our Services to you in accordance with the Scope of Work and these Standard Terms.
(b) We will use reasonable endeavours to provide and perform the Services with the professional skill, care and diligence that is expected of a professional person carrying out similar services to the Services and to the level of detail and commitment set out within the Scope of Work.
(c) Subject to otherwise complying with our obligations under the Scope of Work and these Standard Terms, we reserve the right to exercise independent discretion as to the most appropriate and effective manner of providing the Services to you in accordance with your Scope of Work.
9 WHAT YOU MUST DO
In order to allow us to provide our Services to you, you:
(a) warrant that you are the owner of an have the right to possession of an to make decisions regarding all property, goods or systems the subject of our Services;
(b) agree to provide any and all information and all reasonable assistance necessary to enable our Services to be provided to you;
(c) consent to us contacting and communicating with a relevant third party on your behalf in connection with the provision of our Services to you; and
(d) consent to receiving communication from us regarding your account status, the ongoing provision of our Services and any other relevant information.
10 SERVICE CONDITIONS
(a) It is a condition of your use of our Services that you must, and must ensure that all employees, agents, contractors or other persons using our Services on your behalf, at all times:
(i) comply with and adhere to our Acceptable Use Policy;
(ii) comply with all of our reasonable directions with respect to access and use of our Services; and
(iii) comply with all laws, regulations, standards and industry codes applicable to you.
(b) In addition to any other obligations set out in these Standard Terms, it is a condition of your use of our Services that you must not, and must ensure that all employees, agents, contractors or other persons using our Services on your behalf do not:
(i) use our Services in such a manner as may be reasonably expected to damage, interfere with, interrupt, suspend or otherwise impair the use of our Services by us or other third parties, as determined by us acting reasonably;
(ii) use our Services for any activities of an illegal or fraudulent nature, including any activities prohibited under the Telco Act, the Copyright Act 1968 (Cth), the Privacy Act 1988 (Cth) (Privacy Act) or any other applicable laws in force within Australia or any State or Territory therein;
(iii) use our Services to publish, transmit or communicate any material that is defamatory, offensive, abusive, indecent, menacing or unwanted;
(iv) misuse or use our Services in any manner that would be a breach of these Standard Terms;
(v) disclose to any unauthorised person any Confidential Information provided to you by us in connection with our Services;
(vi) allow, permit or enable any unauthorised use of our Services;
(vii) resell, distribute, copy or reproduce any part of our Services, including attempting to reverse engineer any part of our Services;
(viii) reproduce, distribute, transmit, publish, copy, transfer or commercially exploit any information through our Services that would infringe on the intellectual property rights of any person; or
(ix) engage in conduct that would be reasonably expected to adversely affect our reputation or result in any liability to us arising, as determined by us.
(c) You acknowledge and agree that our Services are ‘cloud-based’ services and, as such, rely exclusively upon internet connectivity. You acknowledge and agree that:
(i) it is your sole responsibility to provide adequate internet connectivity to your users or personnel using our Services; and
(ii) that the quality of your internet connectivity will affect the quality of the provision of our Services to you and that we are no way responsible for any delay, failure to provide or reduction in the quality of our Services that are caused as a result of your internet connectivity or lack thereof.
(d) You acknowledge and agree that:
(i) you must supply, set-up, configure and maintain your own computer and communication equipment;
(ii) you must maintain all infrastructure and equipment used in connection with the provision of the Services (including, by way of example, network cabling);
(iii) you are responsible for the integrity and security of all infrastructure and equipment used in connection with the provision of the Services;
(iv) you must obtain any permit, licence or consent which you are required to have for the Services to be provided;
(v) you are responsible for all data that you retrieve, store, transmit, or use in any other way;
(vi) you must back up all your data;
(vii) you must not do anything which will or would damage or interfere with our network facilities;
(viii) you must not do anything unlawful with a Service;
(ix) you must not share a Service with any third party without our written consent; and
(x) you must not do anything with a service which may subject either you or us to a claim.
11 SERVICE DATES
(a) To the extent that it is necessary to provide our Services in person (such as to set-up or establish our Services at your worksite) (Service Date):
(i) if a Service Date is not included in the Scope of Work, we will contact you to arrange a suitable date, time and place to carry out the Service Date; and
(ii) you agree to provide access to your premises or facilities and any personnel that is reasonably necessary to carry out our Services on the Service Date.
(b) You, or an authorised representative, must be available to meet us at the agreed time and place for the Service Date and must provide all reasonable assistance that we require to provide our Services on the Service Date.
(c) If you need to re-schedule or cancel a Service Date you must give us written notice at least 48 hours’ prior to the Service Date. Failure to provide necessary notice in accordance with this sub-clause will attract a cancellation fee equal to 30% of the estimated Expenses attributed to the relevant Service Date in the Scope of Work (unless waived by us at our absolute discretion). Any cancellation fee imposed in accordance with this clause will be invoiced to you in accordance with clause 7(d).
(d) We may cancel or postpone a Service Date at our absolute discretion.
12 SECURITY
(a) You agree and acknowledge that you are responsible for implementing and maintaining network security protocols regarding your use of our Services.
(b) You acknowledge that the use of our Services is at your own risk.
13 USER ACCESS RESTRICTIONS
(a) We agree to use all reasonable endeavours to, upon your request, implement user access restrictions to your use of our Services in accordance with any specifications notified to us by you and which are approved by us, in our sole discretion.
(b) You agree and acknowledge that, to the fullest extent permissible by law, we do not make any representations or warranties concerning the fitness for purpose or effectiveness of any user access restrictions imposed by us in accordance with clause 13(a).
14 LICENCES
(a) The provision of our Services to you may involve the use by you of software, programs, interfaces or systems that are provided by third parties (Third Party Software).
(b) We warrant that we have the right to provide you with a licence to use Third Party Software in connection with our Services to the extent set out in your Scope of Work (Third Party Licences) and we grant to you a non-exclusive, non-transferable licence for you to use the Third Party Licences during the term of your agreement with us.
(c) It is a condition of your use of such Third Party Licences that you:
(i) only use the Third Party Licences for your internal business purposes in accordance with these Standard Terms;
(ii) comply with all reasonable directions we provide to you regarding any Third Party Licences; and
(iii) comply with the terms and conditions of use of any Third Party Software at all times.
(d) We reserve the right to change the Third Party Software that we provide in connection with our Services to you from time to time at our absolute discretion by providing you 30 days prior written notice and, in the event that we do so, we agree to provide you a Third Party Licence to use such Third Party Software that is generally equivalent to, or analogous with, the Third Party Licence we had previously provided to you in connection with our Services immediately prior to the change.
(e) We may pass on to you any variations or amendments to the user terms of the Third Party Software which our third-party suppliers impose on us or which may be imposed on us by law by providing 30 days prior written notice to you of such variations or amendments.
15 INTELLECTUAL PROPERTY
(a) You agree and acknowledge that we provide Services only and that you obtain no ownership or interest, including any Intellectual Property Right, in the software, programs, interfaces, systems or any analogous material provided for your use in connection with this agreement.
(b) This agreement does not transfer any Intellectual Property Right to you and you agree and acknowledge that you must not represent that you own any Intellectual Property Rights held, either directly or under licence, by us.
(c) If our Services require us to use or access any Intellectual Property Right held by you, you retain ownership of any such Intellectual Property Rights and you grant us a non-exclusive licence to use those Intellectual Property Rights to provide our Services to you.
PART C – OUR GOODS
16 GOODS
(a) To the extent that we supply any goods or hardware to you in connection with our Services:
(i) you agree that title and property in any goods or hardware passes to you the goods supplied have been paid for in full and until such time, shall remain our property; and
(ii) you agree and acknowledge that risk in the goods, including any risk for loss or damage, passes to you immediately upon delivery to you.
(b) You must not sell, dispose of, assign or otherwise encumber any goods or hardware supplied to you in connection with our Services until such time as you have paid for it in full.
17 PPSA ASSURANCES
(a) In this clause 17:
(i) PPSA means the Personal Property Securities Act 2009 (Cth) and any regulation made at any time under that act, as amended from time to time; and
(ii) words defined in the PPSA, including financing change statements, financing statement, registration, security interest and verification statement, have the same meanings given to them in the PPSA.
(b) To the extent that any goods provided to you, or arrangement entered into between us is, or contains, a ‘security interest’ for the purposes of the PPSA, you agree to do anything (such as providing consent, completing, signing or executing any documents and producing any documents or supplying any information to us) which we consider necessary for the purposes of:
(i) ensuring that our security interest is enforceable, perfected and otherwise effective;
(ii) enabling us to effect any registration, or give any notification, in connection with the security interest so that it has the priority we require; and
(iii) enabling us to exercise any power in connection with the security interest.
(c) You represent and warrant that all details and information provided to us for the purposes of registration is true, correct and complete and you must not change any of the details or information provided to us for the purposes of any registration without giving us at least 10 Business Days prior written notice.
(d) Without limiting any other provision of this agreement, you waive your right to receive any verification statement, or notice of any verification statement, in respect of any financing statement or financing change statement relating to any security interest created under this agreement.
(e) For the purposes of section 275 of the PPSA, you agree that you will not disclose a copy of these Standard Terms or a statement setting out the amount or obligations secured by these Standard Terms to any third party without our prior written consent, except where that third party is a professional advisor to you.
(f) To the extent the law permits:
(i) for the purposes of section 115(1) and 115(7) of the PSSA, we do not need to comply with sections 95, 96, 121(4), 130, 132(3)(d) or 132(4) of the PPSA and sections 142 and 143 of the PPSA are excluded; and
(ii) for the purposes of section 115(7) of the PPSA, we do not need to comply with sections 132 and 137(3) of the PPSA.
(g) Our rights contained in these Standard Terms are in addition to and do not substitute for our rights under law, including the PPSA and we may choose whether to exercise out rights in accordance with these Standard Terms or at law, in our sole discretion.
PART D – PAYMENT
18 SERVICE FEES
(a) In consideration for providing our Services to you, you agree to pay us the service fees set out in the Scope of Work on a monthly basis for each Service, or aspect of a Service, provided to you in connection with this agreement (Service Fees).
(b) Our Service Fees will be payable by you monthly in advance.
19 EXPENSES
(a) Expenses of carrying out our Services, including, as applicable:
(i) the provision of goods or hardware, such as ethernet cables, modems and any other equipment;
(ii) the costs of our personnel and technicians, charged on a per time basis for all work undertake in connection with our Services; or
(iii) the costs of calls, data use or [other costs] actually used by you in connection with our Services,
(together, Expenses), will be billed to you by an itemised invoice at the rates set out in the Scope of Work.
Page 11 of 18
(b) Our Expenses will be payable by you monthly in arrears.
20 INVOICES
(a) We will provide you an invoice detailing the Service Fees payable for the upcoming month and any Expenses payable for the preceding month at reasonable intervals and, in any event, within [10] Business Days after the commencement of the relevant month (each, an Invoice).
(b) For the purposes of clause 20(a), a ‘month’ will commence on the date we commence providing our Services to you in accordance with this agreement and will end on the date that is one calendar month thereafter.
21 PAYMENT
(a) You must pay the amount set out within an Invoice via direct debit into our nominated account, or otherwise as directed by us in writing to you within 14 Business Days of us providing you with an Invoice, as may be extended in our sole discretion.
(b) At our discretion, we may require you to execute a direct debit authority (Payment Authority). If you have completed a Payment Authority:
(i) clause 21(a) will not apply;
(ii) we will exercise the Payment Authority to pay any amount set out within an Invoice no earlier than 10 Business Days after providing you with an Invoice; and
(iii) we will comply with the Direct Debit Terms at all times in connection with any payments pursuant to this clause 21(b).
(c) If you fail to make payment in accordance with these Standard Terms, we retain the right to charge default interest on any amounts outstanding at our absolute discretion at the rate of interest per annum payable by the our principal banker, as nominated by us from time to time, plus 3.0%.
22 FEE VARIATIONS
(a) We reserve the right to vary the price of our Monthly Service Fees and Expenses, as notified to you in the Scope of Work, from time to time and such variations to our Monthly Service Fees or Expenses will be payable by you in connection with this agreement immediately after providing written notice to you of such variations.
(b) Despite clause 22(a), where our Scope of Work states that our Services Fees and Expenses will be fixed for a period of time, such as in the case of a Minimum Period Contract (Fixed Fee Period), any variations to our Services Fees or Expenses will not take effect until the end of that Fixed Fee Period.
(c) Despite clause 22(b), we may pass on price increases to our Monthly Service Fees or Expenses which our third-party suppliers impose on us or which may be imposed on us by law during the Fixed Fee Period by providing [30] days prior written notice to you of such increases.
23 GST
(a) In this clause 23 a word or expression defined in the GST Act which is not otherwise defined in this Agreement has the meaning given to it in that Act and bolded terms have the meaning given to them in this clause.
(b) All consideration provided under these Standard Terms is exclusive of GST unless it is specifically expressed to be GST inclusive. If a party (the Supplier) makes a taxable supply to another party (the Recipient) under or in connection with this agreement in respect of which GST is payable, the Recipient must pay the Supplier an additional amount equal to the GST payable on the supply (unless the consideration for the taxable supply was specified to include GST). The additional amount must be paid by the Recipient by the later of:
(i) the date when any consideration for the taxable supply is first paid or provided; and
(ii) the date when the Supplier issues a tax invoice to the Recipient.
(c) Subject to an express provision in these Standard Terms to the contrary, any payment, reimbursement or indemnity required to be made to a party (the Payee) under this agreement which is calculated by reference to an amount paid or payable by the Payee to a third party (Outgoing) will be calculated by reference to that Outgoing inclusive of GST, less the amount of any input tax credit which the Payee is entitled to claim on that Outgoing.
PART E – MISCELLANEOUS
24 PRIVACY
(a) For the purposes of this clause 24 words or terms defined in the Privacy Act have the meaning given to them in the Privacy Act.
(b) We will only use personal information you provide us for the purpose it was provided or as otherwise provided for in our Privacy Policy.
(c) You agree and acknowledge that our Services may involve the disclosure of the personal information of your users, customers, personnel or other third parties (Privacy Subjects) to us when accessing or using our Services.
(d) You warrant and undertake that you will:
(i) collect, process and disclose or transfer the personal information of Privacy Subjects in accordance with the Privacy Act;
(ii) advise Privacy Subjects that their personal information may be disclosed to us in connection with this agreement and the provision of our Services to you;
(iii) provide any privacy Subject with a copy of, or if it is unreasonable to do so, direct any Privacy Subject to review and consider, our Privacy Policy; and
(iv) respond, within a reasonable time period, to any Privacy Subject’s enquiry regarding the collection, processing, or disclosure of their personal information in connection with this agreement in accordance with the Privacy Act.
(e) Without limiting any other indemnity provided in these Standard Terms, you release and indemnify us with respect to all actions, claims, liabilities, injury, loss or damage suffered or incurred, including to any third party, arising from or connected in any way to your breach of this clause 24 and further in connection with a breach by you of the Privacy Act, including any fines or penalties imposed in connection with a breach of the Privacy Act.
25 LIMITATION OF LIABILITY
(a) Our Services, and the supply of any goods supplied in connection with our Services, may come with guarantees which cannot be excluded under the Australian Consumer Law established under the Competition and Consumer Act 2010 (Cth) (Statutory Guarantees). For major failures with our Services, you are entitled:
(i) to cancel this agreement with us; and
(ii) to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to be compensated for any other reasonably foreseeable loss or damage.
If the failure does not amount to a major failure, you are entitled to have problems with our Services rectified in a reasonable time and, if this is not done, to cancel your agreement with us and obtain a refund for the unused portion of this agreement.
(b) To the extent that our Services include the provision of any goods to you, you are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have such goods repaired or replaced if they fail to be of acceptable quality and the failure does not amount to a major failure.
(c) Where Statutory Guarantees apply, to the extent to which we are able to do so by law, our liability under those provisions is limited at our option to the supply of our Services, or the supply of any goods supplied in connection with our Services, again, the repair of goods or the payment of the costs of having goods repaired, or the payment of the cost of having similar services or goods supplied again.
(d) You agree that, to the fullest extent permissible by law, we will not be responsible or liable (whether in contract, tort (including negligence) or otherwise), under any circumstances, for any indirect, liquidated, special, punitive, exemplary, incidental or consequential losses or damages of any kind arising that you or anyone else may suffer in connection with, or related to, our Services, including any goods supplied in connection with our Services, or your use thereof.
(e) In the event the limitations of liability contained in this clause 25 are held to be unenforceable for any reasons, you agree that, to the fullest extent permissible by law, the maximum aggregate of our liability to you (or any third party) will not exceed the amount paid for the Services, or any goods supplied in connection with our Services, pursuant to the Scope of Work determined pursuant to Part D of these Standard Terms.
26 INDEMNITY
(a) For the purposes of this clause 26, a reference to ‘you’ includes you and any of your personnel, employees, agents, contractors or other third parties using the Services that we provide to you, whether authorised or unauthorised by you.
(b) You agree to indemnify, hold harmless and release us, and any third parties that operate the Third Party Licences used by you in connection with our Services, against any and all claims, liabilities, injury, loss or damage suffered or incurred, including to any third party, arising from or connected in any way to:
(i) your breach or non-observance of these Standard Terms;
(ii) your transmission of any illegal, fraudulent, or offensive material in connection with our Services;
(iii) your wilful, unlawful or negligent use of our Services;
(iv) any injury or death to any person, or loss or damage to property arising out of the delivery, installation, use, operation or storage of any goods or hardware provided to you by us in connection with our Services;
(v) the provision of our Services to you, except to the extent caused by our negligence or wilful misconduct.
27 FORCE MAJEURE
(a) No party is liable for any failure to perform or delay in performing its obligations under this agreement, other than obligations to pay any money due and payable in accordance with these Standard Terms, if that failure or delay is due to anything beyond that party’s reasonable control, including, but not limited to, internet connectivity outages (to the extent that such connectivity is provided by a party other than a party to this agreement), fire, storm, flood, earthquake, explosion, war, invasion, rebellion, sabotage, epidemic, labour dispute or labour shortage, and any act or omission (including laws, regulations, disapprovals or failures to approve) of any third person (Force Majeure Event).
(b) Either party may terminate this agreement with immediate effect by giving written notice to the other party where a failure or delay to perform obligations under this agreement as a result of a Force Majeure Event exceeds 30 days.
(c) If this agreement is terminated in accordance with clause 27(b), we will refund any payments previously made by you for any of our Services, or any goods supplied in connection with our Services, that we have not provided at the time of termination.
28 DISPUTE RESOLUTION
(a) If a dispute arises in connection with this agreement, either party must give written notice of the dispute to the other identifying the dispute and providing details of it.
(b) Both we and you must use reasonable efforts to settle the dispute within 5 Business Days, at which point, we must refer the dispute to the a mediator if either of us requests.
(c) In the event a dispute is referred to mediation in accordance with clause 28(b), both we and you must endeavour to settle the dispute by mediation conducted by a mediator independent of each of us, appointed by us in our discretion.
(d) It is a condition precedent to your right to commence arbitration, litigation or other legal proceedings, other than proceedings for interlocutory relief, against us that you have first complied with the dispute resolution process set out in this clause 28.
29 NOTICES
(a) Any notice, demand, consent, approval or communication under these Standard Terms that is specified to be required to be in writing must be in writing, in English and signed by a person duly authorised by the sender and sent by prepaid post, courier, or email to the address details set out in the Scope of Work (Notice).
(b) A Notice takes effect when take to be received, or at a later time specified in it, and is taken to be received:
(i) if sent by pre-paid post, on the second Business Day after the date of posting;
(ii) if sent by courier, on the date of delivery; and
(iii) if sent by email, at the time of transmission unless, within 24 hours of transmission or, if the unsuccessful transmission is as a consequence of any act or omission of the sender or defect in the sender’s transmitting equipment, any time after transmission, the sender receives advice that the transmission has been unsuccessful,
but if the delivery, receipt or transmission is not a Business Day or is after 5.00pm on a Business Day the Notice is taken to be received at 9.00am on the next Business Day.
30 CONFIDENTIALITY
(a) You agree that any information disclosed to you by us in the course of providing our Services to you, including in the course of negotiations or discussions leading to the provisions of our Services to you, is confidential unless such information is already in the public domain, has been lawfully obtained by you exclusively from a third party (otherwise than in connection with a breach of confidence) or was required by law to be disclosed to you (Confidential Information).
(b) You agree that you will not disclose any Confidential Information to a third party except:
(i) for the purposes expressly contemplated by this agreement;
(ii) if you are legally required to do so; or
(iii) with our prior written consent.
31 GENERAL
(a) These Standard Terms are governed by the laws of Queensland and you submit to the exclusive jurisdiction of the courts of that State.
(b) Without limiting clause 1(b), these Standard Terms record the entire understanding and agreement between you and us regarding the provision of our Services and supersede all prior communications, understandings and agreements.
(c) Except where these Standard Terms expressly state otherwise we may, in our absolute discretion:
(i) exercise a right or remedy, including termination, where you are in breach of these Standard Terms;
(ii) give or refuse consent, approval or permission;
(iii) decide to determine a matter in any way we consider appropriate; and
(iv) revoke or change any such prior action.
(d) No rule of construction applies to our disadvantage solely on the basis that we are responsible for the preparation of, or seek to rely on, these Standard Terms or any part of them.
(e) If any part of these Standard Terms or the Scope of Work becomes void or unenforceable for any reason, that part will be severed with the intent that all remaining parts will continue to have full force and effect.
(f) This agreement endures to the benefit of and is binding upon either party’s successors, assigns, heirs, executors or administrators, as applicable.
32 DEFINITIONS & INTERPRETATION
In these Standard Terms:
(a) Business Day means a day on which banks are open for general banking business in Australia
(b) Confidential Information has the meaning given to it in clause 30(a).
(c) Direct Debit Terms means the terms regarding your Payment Authority as set out in our Direct Debit Authorisation Form, attached to these Standard Terms as [Annexure F].
(d) Excluded Services means such services that we explicitly exclude from our Services that we offer to you, as set out in your Scope of Work.
(e) GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(f) Intellectual Property Right means all intellectual property rights including patents, copyright, rights in circuit layouts, database rights, registered designs, trademarks, logos, slogans (in each case whether registerable or not) and any application or right to apply for registration of any such rights.
(g) Prescribed Services means such services that we explicitly include in our Services that we offer and have agreed to provide to you, as set out in clause 4.1 of your Scope of Work.
(h) Scope of Work means the signed Scope of Work document attached to these Standard Terms and setting out the scope of our Services provided to you following receipt of your inquiry and any consultation as necessary.
(i) Standard Terms means these terms and conditions.
(j) Telecommunications Consumer Protection Code means Industry Code C628:2019 published by Communications Alliance Ltd and registered with the Australian Communications and Media Authority in accordance with section 112 of the Telco Act.
(k) Telecommunications Service means a listed carriage service, as that term is defined in the Telco Act (Listed Carriage Service), or any service supplied by us in connection with that service or a content services provided by us in connection with the supply of a Listed Carriage Service.
(l) Words or phrases defined in these Standard Terms, as indicated in bold within parentheses, have the meaning given to them within these Standard Terms.
(m) Words or phrases defined in the Scope of Work, as indicated in bold within parentheses, have the same meaning in these Standard Terms as given to them in the Scope of Work.
(n) References to “we”, “us” or “our” in these Standard Terms refers to the business carried on by Intelligent IP Hosting Pty Ltd (ACN 619 361 018) trading as ‘Claratti Workspace’ (ABN 94 619 361 018) (where applicable as the context provides) and our employees, agents and other related parties as appropriate.
(o) References to “you” in these Standard Terms refers to you, the person, business or entity engaging our Services.