CommsIT Master Terms

1.0     Background
CommsIT (Australia) Pty Limited ABN 24 147 411 336 (“CommsIT”) provides a broad range of services to its customers including, but not limited to:

  • IT Managed Services that include system monitoring and backup services,
  • Cloud services and software license management,
  • Hardware and software procurement,
  • Technology consultancy services,
  • Vendor management,
  • Application development and management, and
  • Telephony and unified communications.

These Master Terms are applicable to all services provided by CommsIT.

1.1     Parties
The parties are:

  • CommsIT (Australia) Pty Limited ABN 24 147 411 336 (‘CommsIT’, ‘we’, ‘us’ or ‘our’)
  • Customers who engage CommsIT for services.

1.2     Product Terms
The services we can provide are described in the Product Terms. The Product Terms set out:

  • The scope of the service,
  • The fees for the service, and
  • Any special conditions that apply to the service.

1.3     Services being requested
You may request a service at any time in writing provided you:

  • complete our standard application forms,
  • clearly identify the service being requested,
  • set out the required commencement date of the service, and
  • accurately provide any information we request that assists us in scoping the services.

Making a request in writing to us and completing any applicable forms is a request for service and not a contract until accepted by us.

1.4     Service Contracts
If we accept a request for services, a binding contract is created (‘Service Contract’) comprising:

  • The Product Terms,
  • The application form, and
  • These Master Terms.

Each Service Contract is an independent contract. If there is any inconsistency between parts of a Service Contract, the order of priority, from highest to lowest, is:

  • Any special conditions in the Product Terms,
  • The remainder of the Product Terms,
  • The application form completed for our Services, and
  • These Master Terms.

1.5     Service fees
The fees for a service are:

  • The fees specified in the Product Terms;
  • If none are specified, our then current published fees for that service; or
  • If there are no current published fees, at our time and materials rates for similar services.

Except where we have agreed fixed fees for services, we may adjust our fees at any time.

If we perform any work that is not covered by the Product Terms, we may charge for that work:

  • At a rate communicated to and agreed by you, or
  • The rates set out in these Master Terms.
Time of Service Rate
Business Hours 8:00am to 6pm Monday to Friday $150 per hour ex GST
After Hours and Weekends $225 per hour ex GST
Public Holidays observed in the State of Victoria $300 per hour ex GST
Travel Time for Onsite visits outside Melbourne CBD $90 ex GST

1.6      Pre-payment of fees
If Product Terms require fees to be pre-paid:

  • Services will not be provided until you pay the pre-paid fees,
  • We may suspend providing a service if the balance of pre-paid fees will not cover our fees for the service required, and
  • We may apply amounts you owe us against the balance of your pre-paid fees in any manner we decide.

1.7      Expenses
You must reimburse our out of pocket expenses provided:

  • The expenses have been approved in writing, and
  • We supply reasonable evidence substantiating the expense.

1.8      Invoicing and payment
We will invoice you in accordance with any payment schedule specified in the Product Terms, otherwise:

  • Monthly in advance for pre-paid fees, or
  • Monthly in arrears.

You must pay each invoice in full:

  • By the date specified in the invoice, or
  • If no due date is specified, within 14 days of the invoice date.

Late invoicing does not affect our right to payment or your obligation to pay.

1.9     Overdue payments
If a payment is overdue, in addition to our other rights:

  • We may withhold providing services under any Service Contract,
  • We may charge interest on the overdue amount at the Default Rate, calculated daily, and
  • you must indemnify us against all costs and expenses (including legal expenses on a solicitor / client basis) incurred by us in attempting to recover the overdue amount.

‘Default Rate’ means the overdraft reference rate quoted by our principal banker on the first day of the applicable month plus 2%.

1.10      Service delivery
We provide our services during business hours, unless otherwise specified in writing:

  • At the location(s) specified in the standard Application Forms or, if no location is specified, at the location we determine to be the most appropriate, and
  • With professional skill and care, using appropriately qualified personnel.

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

1.11      Access
You must provide us with reasonable and timely access to your facilities, premises, information, equipment, personnel, network and data to enable us to fulfil our obligation under the Product Terms.

We will not be responsible for any delay in providing a service where the delay results from your failure to provide us with Access as defined in this clause.

1.12      Your obligations
You must:

  • Comply with our reasonable and lawful directions in relation to the service,
  • Provide a safe working environment for our personnel,
  • Comply with all laws, regulations, policies and guidelines (including acceptable use policy that we inform you of) applicable to the service,
  • Ensure any incumbent provider who is transitioning the service to us makes available the information, resources and facilities required by us to provide the service, and
  • Maintain regular and complete backups of all your data.

We will not be responsible for any failure, default or delay to the extent caused by your failure to perform your obligations under this clause.

1.13     Hardware supply
To the extent that the service is for the sale and supply of hardware we remain the legal and beneficial owner of all hardware sold by us until all amounts due in respect of all hardware and any amount owed to us have been paid to us in cleared funds.  This applies even if you install the hardware or commingle it with other goods.

You must not sell, dispose of, assign or encumber the hardware unless and until you have paid for it in full.

1.14     Third party materials
In providing a service we may supply you with materials (including software) license by third parties.  You must comply with the terms of the third party license and you indemnify us against any loss, damage, claim, liability or demand we incur due to your breach of a third party license.

1.15     Delay
We will use our reasonable efforts to meet any deadlines or milestones that we promise to meet but will not be liable for any delay or failure to meet these.

To the extent that our provision of the service is impaired by:

  • You,
  • A third party,
  • A failure or defect (not caused by us) in hardware or software (not supplied by us), or
  • An event beyond our reasonable control, then

Our obligation to provide the service is suspended and we will not be liable to you in respect of any delay or failure to provide the service.

Where our personnel are delayed from performing a service due to a delay you cause, we may invoice you those personnel’s hourly rate for the duration of the delay subject only to us making reasonable efforts to reallocate our personnel to other chargeable duties.

1.16     Confidentiality
A party must not disclose or use the other party’s confidential information without prior written approval.  Each party must take all reasonable steps to ensure that its employees and agents do not use or disclose the other party’s confidential information.

‘Confidential information’ means all information treated by the owning party (‘discloser’) as confidential and provided to the other party (‘recipient’), or of which the recipient becomes aware – except information that:

  • the recipient creates or lawfully obtains independently of the discloser; or
  • is public knowledge (otherwise than as a result of a breach of confidentiality by the recipient).

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

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

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

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

1.18     Limitation of liability
Our maximum aggregate liability under a Service Contract or Claim, whether for breach of these terms or in negligence or in any other tort or for any other common law or statutory cause of action or otherwise is the amount equal to the fees you have paid to us under the Service Contract.

We will not be liable to you for data loss under any circumstances.

1.19     Warranty and indemnity
You must indemnify us, our employees and agents against any loss (including reasonable legal costs and expenses) or liability any of us reasonably incurs or suffers arising from any proceedings where such loss or liability was caused by:

  • your breach of these Master Terms or a Service Contract; or
  • your willful, unlawful or negligent act or omission.

1.20     Service continuity
Where a Service Contract expires and not be expressly cancelled by you or terminated by us it will continue indefinitely on a quarter by quarter basis under the terms of the expiring Service Contract.

1.21     Cancellation of services
You may cancel the services at any time provided you:

  • Advise the services you wish to cancel,
  • Do so in writing with 90 days’ notice, and
  • Pay any cancellation fees applicable upon confirmation of cancellation.

1.22     Termination of services
We may terminate or suspend performance of a Service Contract immediately if:

  • You breach the Service Contract and have failed to remedy the breach within 14 days after receiving a notice detailing the breach and requiring that it be cured,
  • You become insolvent,
  • You fail to pay us money owed to us within 30 days of it being due,
  • You cease, or threaten to cease, carrying on your business,
  • We reasonably believe you have used a service for unauthorized, criminal or unlawful activity, or
  • An administrator or controller (as those terms are defined in the Corporations Act 2001) is appointed in respect of any of your assets.

Termination of a Service Contract does not affect our rights of action based on any breach by you before the termination.  On termination we may:

  • repossess any of our property in your possession, custody or control,
  • retain all moneys paid to us under the Service Contract,
  • provide you with an invoice for all unpaid fees and expenses and any costs incurred by us as a result of termination, and
  • pursue any additional or alternative remedies provided by law.

1.23     Termination for non-performance
You may terminate the Service Contract immediately if we breach our obligations under the Product Terms and fail to remedy the breach within 30 days of receiving a notice detailing the breach and requiring that it be cured.

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

If you terminate under this clause no cancellation fees shall be payable.

1.24     Notices
All notices must be:

  • In writing,
  • Signed by the party giving it (or its authorized representatives), and
  • Sent to the other party’s designated email.

1.25     Employment restraints
Neither party may approach the Employees, Agents or Contractors of the other party to this Agreement, with an offer of employment during the Service Contract or within six months of the last services provided by us.

1.26     Jurisdiction
All agreements and Service Contracts are subject to the laws that apply in Victoria, Australia.  Any dispute or difference arising in connection with this agreement will be submitted to arbitration in accordance with and subject to the Institute of Arbitrators and Mediators Australia Expedited Commercial Arbitration Rules.

Otherwise, legal proceedings relating to this agreement or any dispute about it must be brought in the courts of Victoria, Australia.

1.27     General matters

  • We are an independent contractor and have no authority to bind you by contract or otherwise.
  • We may sub-contract the performance of this agreement if we obtain your prior written consent (which you must not unreasonably withhold).
  • We may assign or novate our rights and obligations under this Agreement at any time without your consent.
  • You may not assign your rights and obligations under this agreement without our prior written consent (which we will not unreasonably withhold).
  • If a party overlooks a breach of a Service Contract by the other party on one or more occasions, it is not taken to have agreed to any future breach.
  • These Master Terms, the Product Terms and the application form/s are the entire agreement between the parties with respect to the services specified in the Product Terms and all prior agreements regarding those services are superseded. No amendment or modification of a Service Contract is binding unless in writing and executed by the parties.
  • Anything that is unenforceable must be read down, to the point of severance if necessary.
  • Anything a party can do, it may do through an appropriately authorised representative.
  • Any matter in our discretion is in our absolute and unfettered discretion.

1.28     Interpretation

  • Headings are for navigational assistance only and do not affect the operation of these Master Terms or any agreement.
  • Where a term is said to ‘include’ one or more things, the list is not exhaustive and does not limit the natural meaning of the term in any way.
  • A schedule or attachment to a document (including a schedule or attachment to this agreement) is part of that document, as is any document incorporated by reference.
  • A reference to the singular includes the plural and vice versa.
  • A reference to a law includes any amendment or replacement of that law.