i360 Cloud Services - Service Supply Agreement

Service Supply Agreement

1. RECITALS
A. Innovation360 Pty Ltd (T/A i360 Cloud) is an Australian company providing a range of cloud services to small business.
B. Client wishes to utilise those services.
C. This Service Supply Agreement sets out the terms and conditions of the provision of those services by Innovation360 to Client.

2. OPERATIVE PART

This deed is governed by the laws of New South Wales and the parties submit to the non-exclusive jurisdiction of the courts of that jurisdiction.
In the interpretation of this deed:
(a) References to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation;
(b) Words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, words denoting one gender include all genders, and references to documents or agreements also mean those documents or agreements as changed, novated or replaced;
(c) Defined words or phrases are listed at clause 13 of this Deed.
(d) Grammatical forms of defined words or phrases have corresponding meanings;
(e) Parties must perform their obligations on the dates and times fixed by reference to the capital city of New South Wales;
(f) Reference to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia;
(g) If the day on or by which anything is to be done is a Saturday, a Sunday or a public holiday in the place in which it is to be done, then it must be done on the next business day;
(h) References to a party are intended to bind their executors, administrators and permitted transferees; and
(i) Obligations under this deed affecting more than one party bind them jointly and each of them severally.

3. SERVICE

Our service related obligations are published in Our at: www.i360cloud.net.au/service-level-statement

4. MICROSOFT AGREEMENTS

We acknowledge that any software or licenses we provision to you our client are subject to the vendor agreements associated with that software or those services and you agree to be bound by the relevant vendor agreements where applicable.Details about Microsoft software and license terms can be found at https://www.microsoft.com/en-us/licensing/product-licensing/products.aspx11.2.

By agreeing to this Usage Agreement you acknowledge that you enter and comply with the terms of the Microsoft Customer Agreement titled Microsoft Cloud Agreement or such other similar agreement as notified from time to time.

A copy of the Microsoft Cloud Agreement can be downloaded here.

We provide Microsoft products/services as an Indirect Reseller under a Microsoft Partner Agreement (Indirect Reseller Authorization) and therefore we accept and comply with the Microsoft Channel Authorization and purchase Microsoft products from a Distributor for resale to Customers in accordance with the Distribution Agreement.

5. BILLING AND PAYMENTS

1. First Invoice

(a) Your first invoice will be issued on the date we provision your service.

2. Monthly billing cycle

(a) Your monthly subscription invoice will be issued on the same date each month. Payment of this invoice is due within 7 days of the invoice date. Your Direct Debit will be processed in accordance with the email you receive with this invoice.
(b) All invoices are issued for all services in advance (eg. adding or removing user accounts or data storage) that are active at midnight (Sydney time-zone) on the date of invoicing.
(c) Any changes to your service (eg. adding or removing user accounts or data storage) will be reflected on the next invoice following the date the changes were requested.

3. Payment process and fees

(a) You agree to pay each invoice via the Integrapay direct debit service (this can be done using your bank account or credit card).
(b) Your relationship is directly with Integrapay for making payments. We do not collect or store or control your personal information in relation to your payments including your credit card or bank account details.
(c) Integrapay does store and collect your personal information including your credit card or bank account details. The Integrapay Privacy Policy at https://www.integrapay.com.au/privacy-policy outlines how this information is managed.
(d) Integrapay charges fees as follows:- Credit Card direct debit: A credit card surcharge is applicable on all direct debit transactions paid with a credit card. This surcharge fee will be included in the total transaction amount appearing on your credit card bank statement and will therefore not match your invoice total. We are not able to include the processing fee in your monthly invoice as this surcharge is garnered directly by Integrapay (our payment processing provider). Surcharge is $0.33 plus 1.98% of invoice (3.50% for AMEX)
- Bank Account direct debit: Surcharge is FREE
(e) Payments are processed within 4 business days of your invoice being issued.
(f) If a direct debit payment is declined a $4.40 fee will be added to your invoice.
(g) If payment is not received within 7 days after the date of issue an email reminder will be sent to your nominated email address.
(h) If payment is still not received within 9 days after the date of issue a text message reminder will be sent to your nominated mobile phone, your service will be disconnected at 5pm and a re-connection fee of up to $55 inc GST will be added to your invoice if you wish to reconnect the service.
(i) The service will not be reconnected until the full invoice has been paid including the re-connection fee.
(j) If we have not received payment after 30 days of the date of issue your unpaid invoice will be made void and your service will be terminated. Once your service has been terminated all your associated service related data will be permanently deleted from our system. You will be advised of the termination of service by email at least 24 hours prior to the termination date.

4. Pricing amendments

(a) Monthly Fees may be amended from time to time and any change in our fees will be communicated to you by email providing at least one days’ notice before your next invoice.
(b) We are an online merchant located in Australia.
(c) All time-billed invoices are treated in the same way as your subscription fees. After-hours service requests will incur additional fees.
(d) Our pricing is linked to the Australian CPI rate and prices will increase between 2-5% per year (in July each year) unless otherwise advised.

6. MANAGING YOUR ACCOUNT

1. Account Holder

(a) The Account Holder is defined in clause 18 of this Agreement. You must provide the Account Holder’s mobile telephone number and email address at Schedule B of this Agreement. The Account Holder must sign this Agreement.
(b) If the Account Holder changes due to the sale of the business, a restructure or any other cause, the existing Account Holder must sign a Change of Account Holder form. This form is provided on request. The form must also be signed by the new Account Holder and a copy of photographic identification for the new Account Holder provided.

2. Authorised Representative

(a) The Account Holder may nominate an Authorised Representative who can manage most aspects of your VPN service but cannot:
(i) Terminate this Agreement;
(ii) Nominate another Authorised Representative;
(iii) Request a full copy of data via FTP or Hard Drive;
(iv) Make any changes to the identity or details of the Account Holder.
(b) It is the Account Holder’s responsibility to monitor the activities of the Authorised Representative. We are not liable in any way for any damage or loss which flows, howsoever caused, by the activities of the Authorised Representative in managing your VPN service.
(c) Only the Account Holder can nominate a new Authorised Representative.
(d) It is the responsibility of the Account Holder to remove an Authorised Representative when appropriate to do so.

3. Passwords

It is Your responsibility to select strong passwords for all Our related services (eg; servers and secure web-portal), to change them regularly and to safeguard them appropriately.

7. INSURANCE

1. It is Your responsibility to maintain appropriate levels of Cyber Insurance cover at all times.

8. AUSTRALIAN PRIVACY LEGISLATION

(a) You are responsible for ensuring that You comply with Australian privacy legislation. If you are unsure of Your obligations under that legislation You should seek independent legal advice.
(b) Outsourcing the hosting of your applications or data to Us does not relieve You of Your obligations under Australian privacy legislation or any other law.
(c) We recommend that you undertake a Privacy Impact Assessment in accordance with the guidelines published by the Office of the Australian Information Commissioner.

9. ACCEPTABLE USE POLICY

i360 Cloud Acceptable Use Policy

9.1 Consequences of Breach

In the event that You fail to abide by the conditions of the Acceptable Use Policy, We may, at our absolute discretion, do any or all of the following:
(a) warn you of the failure and require you to take steps to remedy it;
(b) without prior warning, suspend your service until such time as the failure has been remedied;
(c) without prior warning, terminate this Agreement without notice as set out in clause 8.2(b) of this Agreement.

10. TERMINATION OF SERVICE SUPPLY AGREEMENT

1. Termination by Client

(a) You can terminate this Agreement at any time by completing the Termination Request form located within the secure helpdesk portal, accessible only by the Account Holder. No other notice from you to terminate the Agreement will be considered effective.
(b) Once We receive your Termination Request form, the Agreement will be terminated on the last day of your next billing cycle. Full fees for that billing cycle will be payable.

2. Termination by Us

(a) We can terminate this Agreement at any time by sending written notice to Your nominated Account Holder’s email address, nominating a termination date no less than 30 days after service of the written notice.
(b) We can terminate this Agreement without prior notice to You should you breach a material term of this Agreement.
(c) If we have not received payment after 30 days of the date of issue of your last invoice this Agreement will automatically terminated on that day.
(d) If You have not accessed your server for a period in excess of 6 months, we send written notice to Your nominated Account Holder’s email address asking You to confirm that You wish to continue the service. If we do not receive that confirmation after 30 days from the date of that written notice this Agreement will automatically terminated on that day.

3. Access to Data after Termination of the Agreement

(a) It is Your responsibility to download Your data (ie: restore Your data from cloud backup) following termination of this Agreement.

(b) All data will be deleted within thirty (30) days after the termination date.

(c) We will not be liable for any loss arising from the loss of data deleted in accordance with this clause. See clause 14(3)(a)

11. AMENDMENT

From time to time the terms and conditions under which we provide Services change. We will communicate any significant changes to this agreement to You via email or notification via the service. Your continued use of Our service after any changes have been communicated to You will be deemed acceptance of those changes.

12. DISPUTE

If a dispute arises between the parties, the complainant must not commence any court or arbitration proceedings, except where that party seeks urgent interlocutory relief, unless it has first complied with this clause:
(a) Notification
The complainant must inform the respondent in writing of the following:
(i) The nature of the dispute;
(ii) The outcome the complainant desires, and
(iii) The action the complainant believes will settle the dispute.
(b) Endeavour to resolve dispute
On receipt of the complaint by the respondent, both parties will make every effort to resolve the dispute by mutual negotiation within 14 business days.
(c) Mediation
Any unresolved dispute or difference whatsoever arising out of or in connection with this contract shall be submitted to mediation under the Mediation Rules of the Resolution Institute.
(d) Survival of this clause
This clause survives termination of this deed.

13. WAIVER

1 Delay
No delay or failure by Us to enforce any provision of this Agreement will be deemed to be a waiver or in any way prejudice its rights.
2. Previous Waiver
Any waiver by any party to a breach of this deed shall not be deemed to be a waiver of a subsequent breach of the same or of a different kind.

14. LIMITATION OF LIABILITY AND INDEMNITY

1. Limitation of Liability

(a) To the extent permitted by law, We are not liable for any indirect, special or consequential loss or damage incurred by You, including but not limited to liability for loss of profits, loss of business opportunity, loss of savings, or loss of data or access to data.
(b) In the event that We are held liable for any loss of any kind suffered by You, You agree that the damages to which You are entitled in respect of that loss is capped, in the aggregate, at an amount equivalent to the fees paid by You to Us in the 12 months preceding the breach (or where there are multiple breaches, at an amount equivalent to the fees paid by You to Us in the 12 months preceding the last breach).
(c) Further, We will not be liable for any direct or other loss or damage to the extent You caused or were responsible for such loss or damage or the loss or damage was caused by a matter beyond Our control, including but not limited to where caused by any of Our suppliers.
(d) In all cases software vendors are responsible for the functionality of the software they provide including when it is hosted on Our platform. We do not warrant or guarantee any of the functionality of the software and do not accept any liability for any direct or indirect damages suffered by You through the use of the software.
(e) Neither party shall be liable to the other party for any loss caused by any failure to observe the terms and conditions of this Agreement, where such failure is occasioned by causes beyond its reasonable control including but not limited to by fire, flood, riot, strike, war, restrictions and prohibitions or any other actions by any government or semi government authorities.

2. Australian Consumer Law

(a) Any services supplied by Us to You may come with implied non-excludable guarantees which are regulated by the Australian Consumer Law (ACL). The extent of the implied guarantees depends on whether You are a ‘consumer” as defined in the ACL.
(b) Nothing in this Agreement excludes, restricts or modifies any condition, warranty, guarantee, right or remedy to which you are entitled under the ACL.
(c) However, if you are entitled to the benefit of the ACL and the services provided by Us are not ordinarily acquired for personal, domestic or household use or consumption, then pursuant to section 64A of the ACL, We limits Our liability for breach of any such non-excludable warranty, guarantee, right or remedy implied by the ACL or expressly given by Us to You, in respect of each of the services, at Our option, to one or more of the following:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.

3. Release and Indemnity

(a) You acknowledge that Our obligation to store your data is not ongoing. Following termination of this Agreement, your data will be deleted pursuant to clause 10.3 of this Agreement. You hereby release Us and Our officers, employees and agents from all claims, actions, suits, demands, costs, damages and expenses arising out of or related to the deletion of Your data pursuant to clause 10.3 of this Agreement.
(b) You indemnify Us and Our officers, employee and agents (Indemnified Parties) against any direct, indirect and consequential liabilities, losses, damages, expenses and costs (including legal expenses on a solicitor and own client basis) incurred or suffered by any of the Indemnified Parties as a result of any allegation, claim or proceedings brought by a third party against any Indemnified Party in connection with:
(i) any material, data and/or content generated, uploaded and/or submitted by You (or any of Your customers or clients) to Us, in the course of Your or their use of any services that We make available to You;
(ii) any material, data and/or content that You host with Us;
(iii) Your breach of the Privacy Act and/or any other applicable law (including, but not limited to, the General Data Protection Regulation (GDPR)); and/or
(iv) Your breach of this Agreement.

15. SEVERANCE

If anything in this deed is unenforceable, illegal or void, it is severed, and the rest of the deed remains in force.

16. NOTICES

A notice or other communication to a party must be in writing and delivered to that party or that party’s practitioner in one of the following ways:
(a) Delivered personally; or
(b) Posted to their address when it will be treated as having been received on the second business day after posting; or
(c) Faxed to their facsimile number when it will be treated as received when it is transmitted; or
(d) Sent by email to their email address when it will be treated as received when it enters the recipient’s information system.

17. COSTS

Each party will pay their own costs in relation to this deed.

18. ACCEPTABLE USE

a) Innovation 360 Pty Ltd's (i360) Clients must act appropriately in all respects when using our services.Therefore, users must not send or access or make available communications or content that infringes on the privacy rights or other rights of others. Users must not view, download, copy, send, post or access information that is illegal. Users must not use i360's in any way prohibited by this Acceptable Use Policy or which would otherwise cause i360 loss and/or damage.

b) Without limiting the above provisions of this policy, in the course of you using i360's services, the following is prohibited:

using i360's services to violate all or any legal rights of any person or company or other entity in any jurisdiction is strictly prohibited;
using i360's services in breach of the Privacy Act 1988 (Cth), the EU General Data Protection Law (GDPR) or any other applicable data protection laws;
using i360's services in relation to crimes such as theft and fraud is strictly prohibited;
using i360's services in breach of any laws, including but not limited to, laws relating to the protection of copyright, trade secrets, patents or other intellectual property and laws relating to spam or privacy and whether such violation is by way of the installation or distribution of "pirated" software or otherwise, is strictly prohibited;
unauthorised copying of copyrighted material including, but not limited to, digitization and distribution of photographs from magazines, books or other copyrighted sources, copyrighted music or video and the installation of any copyrighted software for which you do not have an active licence is strictly prohibited;
exporting software, technical information, encryption software or technology, in violation of domestic export control laws, is strictly prohibited;
introduction of malicious programs into i360's cloud services (e.g., viruses, worms, Trojan horses, e-mail bombs) is strictly prohibited;
revealing your account password to others or allowing use of i360's services by others is strictly prohibited;
using i360's services to actively engage in procuring or transmitting material that is in violation of sexual harassment or workplace relations laws is strictly prohibited;
using i360's services to make fraudulent offers of goods or services is strictly prohibited;
using i360's services to carry out security breaches or disruptions of network communication is strictly prohibited. Security breaches include, but are not limited to, accessing data of which you are not an intended recipient or logging into a server or account that you are not expressly authorized to access or corrupting any data. For the purposes of this paragraph, "security breaches" includes, but is not limited to, network sniffing, pinged floods, packet spoofing, denial of service, and forged routing information for malicious purposes;
using Hi360's services to execute any form of network monitoring which will intercept data not intended for you is strictly prohibited;
using i360's services to circumvent user authentication or security of any of our hosts, networks or accounts or those of our customers or suppliers is strictly prohibited;
using i360's services to interfere with or denying service to anyone is strictly prohibited;
using any program/script/command, or sending messages of any kind, with the intent to interfere with, or disable, any persons' use of i360's services is strictly prohibited;
sending unsolicited email messages through or to users of i360's services in breach of the Spam Act 2003 (Cth) is strictly prohibited;
using i360's services to send email to any email address, with the intent to spam or harass is strictly prohibited;
use of i360's services in breach of any person's privacy (such as by way of identity theft or "phishing") is strictly prohibited.

19. DEFINITIONS

(a) “We”, “Our”, “Us” means iNNOVATION360 Pty Limited ACN 617 873 006
(b) “You”, “Your” means the Client as identified in this Agreement.
(c) “Account Holder” means:
   (i) If the Client is a sole trader, that individual;
(ii) If the Client is a single director company, that director;
   (iii) If the Client is company with multiple directors, the director nominated as the Account Holder in Schedule B of this Agreement;
   (iv) If the Client is a trust or charity or another form of incorporated body or unincorporated association, the proper officer nominated as the Account Holder in the Schedule B of this Agreement.
(d) "Authorised Representative" means the person authorised by the Account Holder to manage your account save for the exceptions listed in clause 5(c) of this Agreement.
(e) “Personal Information” has the meaning assigned to that term in the Privacy Act 1988 (Cth).