Empower MSP – General Terms and Conditions
1 DEFINITIONS AND INTERPRETATION
1.1 In this agreement unless the context requires otherwise:
Agreement means these terms and conditions and any schedule, appendix or annexure to the terms and conditions;
Client means the entity that has signed the Service Level Agreement pursuant to these terms and conditions;
Equipment Component/s means hardware product/s;
GST means the tax imposed by the A New Tax System (Goods and Services Tax) Act 1999;
GST Rate means the percentage rate set out in Section 9-70 of the A New Tax System (Goods and Services Tax) Act 1999;
Product or Products means each item of products, software or equipment supplied by Empower MSP to the Client and referred to on the Service Level Agreement;
Service or Services means the services provided as detailed on the Service Level Agreement and under clause 3.1 of this Agreement;
Service Commencement Date means the date the service will commence as specified on the Service Level Agreement;
Subcontractor means the entity contracted by Empower MSP to provide Services as may be required; and
Empower MSP means Empower MSP ABN 50 548 045 882 and where applicable its directors, officers, employees and subcontractors.
1.2 A reference to a party includes its successors and assigns.
1.3 If any day appointed or specified by this Agreement for the payment of any money falls on a day which is not a business day the day appointed or specified is deemed to be the next business day.
1.4 A reference to a clause will be construed as a reference to a clause of this Agreement and all its sub-clauses.
1.5 A reference to any statute, ordinance or other law includes all regulations and other enactments there under including all consolidations, amendments, re-enactments or replacements.
1.6 If a provision of this agreement is inconsistent with a provision of any schedule, appendix or annexure, the provision of this agreement prevails, unless otherwise indicated.
1.7 The singular includes the plural and vice versa.
1.8 Both parties to this Agreement have the right to amend any term in the Agreement from time to time only with the written consent of the other party.
2 CONTRACT PERIOD
2.1 Service commences on the agreed date and initial term as specified on the Service Level Agreement subject to Empower MSP receiving payment of the agreed retainer charge in accordance with the costing schedule.
3 SERVICE COVERAGE
3.1 Empower MSP will provide the professional services of technical support and advice as specified on the Service Level Agreement.
4.1 The Client shall indemnify Empower MSP from any additional costs incurred should:
a) the Client make changes to specifications or increase the scope of the Service as agreed to; and/or
b) additional work be required for reasons beyond the control of Empower MSP.
5 EQUIPMENT COMPONENT
5.1 The Client agrees to indemnify Empower MSP from any costs or expenses related to equipment component/s purchased prior to the Service Commencement Date.
5.2 Empower MSP shall source equipment component/s based on the Client’s specified requirements. Should such equipment component/s subsequently require updating and/or modifying then the Client shall indemnify Empower MSP from any additional costs and expenses.
6 ‘BREAK FIX’
6.1 The hourly rate for ‘Break Fix’ work may change should Empower MSP experience a problem (including a problem related to a latent condition) requiring the hire of special equipment to complete the work.
7 SERVICE LEVEL TARGETS
7.1 Empower MSP will endeavor to meet time frames as set out in the Service Level Agreement. The Client acknowledges such time frames are forecasts only and agrees to indemnify Empower MSP from any charges or penalties associated with late completion of Service.
8 SERVICE EXCLUSIONS
8.1 The Services do not cover repair for damages, malfunctions or service failures caused by the following:
- actions of non-Empower MSP personnel (including but not limited to abuse, misuse or negligence);
- the Client’s failure to follow Empower MSP’s professional recommendation;
- attachment of non-Empower MSP supplied and fitted equipment to the Products or Services;
- failure of non-Empower MSP supplied and fitted equipment to the Products or Services;
- Force Majeure conditions as stated in clause 17.1; and
- diagnostic checks (including equipment under warranty).
9 PRICE AND PAYMENT
9.1 The Client must pay all service charges as outlined on the cover pages of this Agreement by the payment date specified.
9.2 If the Client has a dispute in respect of any invoice it must pay the amount of the invoice not in dispute and notify Empower MSP in writing which portion of the invoice is in dispute and why it is disputed. Empower MSP and the Client must as soon as reasonably practicable thereafter negotiate in good faith to resolve the dispute. If it is not resolved within thirty (30) days of commencing negotiation, it must be referred to mediation in accordance with clause 18.3.
9.3 The Client shall pay all taxes and duties arising out of the operation of this Agreement, (including taxes and levies arising out of changes in law), however designated unless the Client provides Empower MSP with a certificate of exemption. Excluded are taxes on Empower MSP’s net income. In the event that the Client provides Empower MSP with a certificate of exception from any taxes owed, the Client indemnifies Empower MSP for any mistakes, omissions or other errors contained within that certificate which make that certificate void or otherwise invalid.
9.4 For the avoidance of doubt, if a supply made by Empower MSP to the Client under this Agreement is a taxable supply (as defined in the A New Tax System (Goods and Services Tax) Act 1999) then the Client must pay, in addition to the consideration for the supply, an amount equal to the goods and services tax payable in connection with that supply.
10 RECOVERABLE COSTS
10.1 The Client must pay to Empower MSP any costs, expenses or losses incurred by Empower MSP as a result of the Client’s failure to pay to Empower MSP all sums outstanding as owed by the Client to Empower MSP including without limiting the generality of the forgoing any debt collection and legal costs incurred in enforcing payment on a solicitor and own client basis.
11.1 Empower MSP may charge interest at the rate of two percent (2%) above the commercial lending rate of the National Bank of Australia (NAB) calculated on a daily basis on amounts not paid within the time specified in clause 9.1.
12.1 Empower MSP may require a deposit from the Client on the signing of the Agreement. The Client acknowledges Empower MSP is under no obligation to start the Services as requested by the Client, until the deposit is received by Empower MSP in full. In the event of default as to payment owing to Empower MSP on the part of the Client, Empower MSP shall be entitled to forfeit the deposit and claim any profit or margin contemplated by or allowed for in the Agreement in addition to any remedy available to Empower MSP at law or in equity.
13 PROGRESS PAYMENTS
13.1 When agreed progress payments are not honored by the Client, Empower MSP reserves the right to halt any further work until such time as the outstanding payment is forthcoming. In addition, interest as specified in clause 11.1 may be charged.
14 THE CLIENT’S RESPONSIBILITIES AND OBLIGATIONS
14.1 The Client must ensure that at all times the premises at which Empower MSP provides the Services are a safe working environment, free from all hazards and comply with all relevant health and safety laws. Empower MSP is not obligated to provide the Services on Products that are located in an environment assessed by Empower MSP not to be suitable and Empower MSP will be permitted to suspend provision of the Services until such time as the Client has rectified any unsuitable conditions to Empower MSP’s satisfaction.
14.2 The Client irrevocably, unconditionally and on a joint and several basis, indemnifies Empower MSP from any injury, loss or damage suffered by Empower MSP as a result of the Client’s failure to comply with clause 14.1. The Client is responsible for all additional work, which is external to this Agreement.
15 EXCLUSIVE REMEDIES AND LIMITATIONS OF LIABILITY
15.1 For purposes of this clause 15, “Damages” will refer collectively to all injury, damage, loss or expense incurred.
15.2 Empower MSP’s entire liability in respect of any breach of obligations or other acts or omissions caused by Empower MSP, including negligence, shall be limited to damages of an amount equal to the fee or charges actually paid by the Client for any Services separately identified as the cause of the breach. Further, Empower MSP’s liability shall be reduced by the amount of any contributory loss or damage, whether by negligence or otherwise, not caused by Empower MSP.
15.3 The Client agrees to take out suitable insurance to cover business interruption of any kind, and for whatever the cause, including but not limited to, email server failure, virus outbreak, interference from hackers or network failure.
15.4 Except to the extent expressly provided in this Agreement and to the fullest extent permitted by law (regardless of whether Empower MSP has been advised of the possibility of such loss or whether such loss was reasonably foreseeable) neither Empower MSP nor its suppliers will be liable in contract, tort or otherwise for any form of indirect or consequential loss, loss of revenue, loss of profits, loss of business or goodwill, loss or damage to or corruption of data or loss of opportunity.
15.5 Under no circumstances will Empower MSP become liable for loss or damage arising from, or in connection with, any representations, agreements, statements or undertakings not expressly incorporated or referred to in this Agreement.
15.6 The Client acknowledges that Empower MSP is not the original supplier of any equipment provided under this Agreement and the Client accepts that if any condition or warranty is implied in this Agreement under the Australian Consumer Law, and cannot be excluded, then the Client will depend entirely on the warranty provided from the original supplier. Empower MSP is not responsible for any further cost or repair of the equipment so provided. In the case of any services supplied under this Agreement the breach of any condition or warranty will be limited to ‘the supply of those services again’ as determined by Empower MSP in its absolute discretion.
15.7 In no event is Empower MSP liable under or in connection with this Agreement for any indirect, incidental, special, economic or consequential loss or damage, loss of revenue, profits, goodwill, bargain or opportunities or loss or corruption of data or loss of anticipated savings incurred or suffered by the Client whether in an action in contract, tort (including without limitation negligence), product liability, statute or otherwise and whether or not Empower MSP was aware or should have been aware of the possibility of such loss or damage.
16.1 Fourteen (14) days prior to the Service Commencement Date, the Client may terminate this Agreement and if applicable receive a full refund of any prepaid amount, less the cost of any equipment purchased on behalf of the Client that is not able to be returned for a full credit. In this event a termination charge representing twenty percent (20%) of the value of the services will be paid by the Client upon advising of such termination.
16.2 After the Service Commencement Date, the Client may not terminate whole or part of the Services.
16.3 Where the Client has paid in advance for Services not actually performed, Empower MSP will refund or credit the balance of the amount paid by the Client after charging the termination charge.
16.4 The Client may terminate this Agreement without penalty, if Empower MSP fails to perform or observe any material term or condition of the Agreement and such failure continues for thirty (30) days (except if caused by a force majeure event referred to in clause 17.1) after Empower MSP’s receipt of the Client’s written notice.
16.5 Empower MSP may terminate this Agreement and exercise any available rights, if the Client fails to perform or observe any material term or condition of this Agreement (including payment of any service charges) and such failure continues for thirty (30) days (except if caused by a force majeure event referred to in clause 17.1) after the Client is in receipt of Empower MSP’s written notice.
16.6 Termination of this Agreement does not affect any rights of either party against the other at law or under this Agreement.
16.7 This Agreement automatically terminates if the Client becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver to the Client’s business or assets, becomes subject to any proceedings under bankruptcy or insolvency law whether domestic or foreign, or is wound up or liquidated voluntarily (other than for the purposes of solvent reconstruction).
17 FORCE MAJEURE
17.1 Empower MSP is not liable for damages due to fire, explosion, pest damage, power surges or failures, strikes or labor disputes, water, acts of God, the elements, war, civil disturbances, acts of civil or military authorities or the public enemy, inability to secure materials or components, inability to provide Services due to the Client’s failure to provide a safe workplace, transportation facilities, fuel or energy shortages, acts or omissions of communications carriers or governmental regulatory authorities or agencies, unauthorized use of the products, failure by any person to supply equipment, services or software to Empower MSP or other causes beyond
Empower MSP’s reasonable control whether or not similar to the foregoing.
18 DISPUTE RESOLUTION
18.1 If any dispute arises out of, or in connection with this Agreement the parties will attempt to settle it in good faith by negotiation.
18.2 If the parties are unable to settle the dispute by negotiation within thirty (30) days, the parties will attempt to settle the matter by mediation.
18.3 To initiate mediation, a party must give notice in writing to the other party to the dispute, addressed to its authorized officer requesting mediation. The mediator must be agreed by both parties and the costs of mediation must be borne equally or in accordance with the direction of the mediator.
18.4 Until a dispute is resolved, the parties must continue to perform their obligations under this Agreement.
18.5 Neither party will commence legal proceedings (except proceedings seeking urgent or interlocutory relief) in respect of a dispute unless the dispute has first been referred for resolution in accordance with this clause.
19 DATA PROTECTION
19.1 Terms defined in the Privacy Act 1988 (Cth) (the ‘Act’), have the same meaning when used in this clause 19.
19.2 The Client must, in connection with this Agreement:
(a) comply in all respects with the Act;
(b) not, by any act or omission, place Empower MSP in breach of the Act; and
(c) irrevocably, unconditionally and on a joint and several basis indemnify Empower MSP in full and on demand in respect of any loss, cost, claim, expense or other consequence related to or arising from a breach of this clause 19.
20.1 Empower MSP may subcontract any or all of the work to be performed under the Agreement without the Client’s consent. Empower MSP acknowledges that it remains responsible for performance of the Services, notwithstanding the appointment of a subcontractor.
21.1 The Client hereby authorizes Empower MSP to collect, retain, record, use and disclose commercial and consumer information about the Client, in accordance with the Privacy Act 1988 and subsequent amendments to persons and/or legal entities who are a solicitor or any other professional consultant engaged by Empower MSP, a debt collector, credit reporting agency and/or any other individual or organization which maintains credit references and/or default listings.
21.2 Empower MSP may give information about the Client to a credit reporting agency for the purposes of obtaining consumer and commercial credit reports and/or lodging consumer and commercial defaults on the Client’s credit file. This information may be given before, during or after the provision of credit to the Client and will be in accordance with the Privacy Act 1988 and subsequent amendments.
22 SECURITY AND CHARGE
22.1 The Client hereby charges all property, both equitable and legal, present or future of the Client in respect of any monies that may be owing by the Client to Empower MSP under these terms and conditions or otherwise and hereby authorizes Empower MSP or its solicitors to execute any consent form as its attorney for the purpose of registering a caveat over any real property owned by the Client at any time.
23.1 These terms and conditions, including any attached schedules constitute the entire agreement between Empower MSP and the Client in relation to the subject matter of this Agreement. To the extent permitted by law, all other representations, conditions or warranties, whether based in statute, the common law or otherwise not included in this Agreement are excluded.
23.2 Any supplement, modification or waiver of any provision of this Agreement must be in writing and signed by authorized representative of both parties.
23.3 If any portion of this Agreement is found to be invalid or unenforceable, that provision shall be severed and the parties agree that the remaining portions remain in effect. The parties further agree that in the event such invalid or unenforceable portion is an essential part of this Agreement, they must immediately begin negotiations for a replacement.
23.4 If either party fails to enforce any right or remedy available under the Agreement, that failure is not construed as a waiver of any right of remedy with respect to any other breach or failure by the other party.
23.5 This Agreement shall be construed in accordance with and governed by the laws of the State of Queensland and all legal disputes arising between Empower MSP and the Client will be submitted to the Brisbane Registry of any such court as is competent to hear the matter.
23.6 This Agreement and all appendices and schedules incorporated herein by reference constitutes the whole of the agreement and understanding between the parties with respect to the subject matter hereof and representations and agreements not expressly contained herein or incorporated herein by reference is not binding upon Empower MSP as conditions warranties or otherwise.
23.7 All conditions, warranties, and representations on the part of Empower MSP whether express or implied, statutory or otherwise, whether collateral or antecedent hereto or otherwise except as expressly set out in this agreement are excluded.
23.8 A notice, approval, consent or other communication in connection with this Agreement must be in writing and sent by mail or facsimile to the other party or parties at the address show on the front page of this Agreement, or if the addressee notifies another address, then to that address.
23.9 A notice, approval, consent or other communication takes effect from the time it is received unless a later time is specified in it.
23.10 A notice, approval, consent or other communication is deemed to be received:
a) if by delivery, when it is delivered;
b) if a letter, three days after posting or seven days if posted to or
from a place outside Australia; and
c) if a facsimile, at the time of dispatch if the sender receives a
transmission report, which confirms the facsimile was sent in
its entirety to the facsimile number of the recipient.