Terms of Engagement - Google Apps
Definitions of Terms
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Consultant
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Cloud Assist Australia and its nominated agents
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Client
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The Client, the receiver of the products and services from Cloud Assist Australia
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Agreement
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Encompassing the covering letter, SOW and the Terms of Engagement.
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Credit Application
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A request for an extension of credit in written form with associated terms and conditions.
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Services
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Labour performed by the Consultant as described in the SOW.
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Licences
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Proprietary software licenses provided by a software publisher which grants the use of one or more copies of its software under the Terms of Service, but ownership of those copies remains with the software publisher (hence use of the term "proprietary"). An example of a Licence provided by The Consultant is Google Apps for Business.
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Terms of Service
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The most up to date Terms of Service for Google Apps for Business can be found here:
http://www.google.com/apps/intl/en/terms/premier_terms.html
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Licence Renewals
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Google Apps for Business, Google Message Security and Google Message Discovery licences are valid for 12 months. They are renewed automatically upon their anniversary dates (renewal date).
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Third Party
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Neither the Consultant or the Client. An entity associated with the Agreement by virtue of Services or materials (Third Party Material).
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Third Party Material
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Material such as hardware, software, websites, documentation and multimedia.
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Site
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Offices or facilities at physical geographic locations associated with the Client, or the digital presence of the Client on information technology infrastructure (for example, Google Apps for Business administrative control panels or website hosting platforms).
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Personnel
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Any human resource associated with either the Consultant or the Client.
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Proposal Acceptance Terms and Conditions
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The section of the Agreement that outlines the identification details of the Client; the Total Costs to the Client; the Payment Terms; the identification of the Consultant representative; and the signatures and dates of both the Client and the Consultant.
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Change
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A variation to the originally agreed scope or detail of products or services
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Change Request
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A document detailing the specifics of the desired Change
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Statement of Work
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Also known by its abbreviation ‘SOW’. The SOW details the specifics of products and services to be delivered by the Consultant to the Client, and may detail the associated costs.
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Confidential Information
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Information that is not public knowledge that is viewed as the property of the Consultant (such as financial data, methods and processes, business plans and trade secrets).
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Fees
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Cost of products, services and material costs charged to the Client by the Consultant in the fulfilment of the Agreement.
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1. Unless specified otherwise, the service provided by Cloud Assist Australia (the ‘Consultant’) to you (the ‘Client’) under this Agreement will operate under the following general terms of engagement (the ‘Services’)
2. Operational Arrangement
If there is any inconsistency between any part of this Agreement, the provisions in the following documents will prevail, to the extent of any inconsistency, in the following order of precedence:
a. the main body of this Agreement; and
b. the Credit Application (where applicable).
3. Term
a. Services
This Agreement has effect on and from the date it is signed by both parties and will continue:
i. until all Services specified have been provided to the Client; or
ii. unless terminated earlier in accordance with the provisions of this Agreement.
b. Licence Term and Licence Renewals
i. Licences must not be transferred from Cloud Assist for a minimum period of 12 months.
ii. Licences will automatically renew every 12 months without prior notification from Cloud Assist and will be billed accordingly. The Client must notify Cloud Assist prior to the renewal date if cancellation is required.
4. Services
a. Subject to payment of the Fees and the Consultant’s acceptance of the Client’s Credit Application (where applicable), the Consultant will provide the Services with due care and skill in accordance with the terms of this Agreement.
b. The Consultant will deliver and, where applicable, install or provide the Services on the dates and in the manner specified.
5. Third Party Material
a. the Consultant may provide the Client with Third Party Material. The Client acknowledges that:
i. its use of the Third Party Material will be subject to the Third Party licensor’s licence agreement; and
ii. all Licences with respect to the Client’s use of the Third Party Material will be between the Client and the Third Party.
b. any risk in the Third Party Material passes to the Client on delivery and title in any media embodying the Third Party Material passes when the Fees have been paid in full.
c. title in any Third Party Material remains at all times with the Third Party.
d. the Client is solely responsible for its compliance with the Third Party Licence and the Consultant, subject to its own arrangements with the Third Party, will not be responsible for, or have any obligation to ensure, that the Client agrees to or complies with the Third Party Licence.
e. where requested by the Client, the Consultant will use reasonable endeavours to provide the Client with a copy of the Third Party Licence.
f. this clause (f) only applies if the Client has purchased Google Message Continuity. The Client agrees not to use Google Message Continuity service as its primary email system and if the Client uses such service does so only for as long as it reasonably takes to restore its primary email system following an outage of this system.
6. Client Obligations
The Client undertakes to:
a. do all things considered reasonable and necessary to enable the Consultant to perform its obligations under this Agreement including performing any works, providing any equipment or connecting any services as required by the Consultant from time to time;
b. provide the Consultant with all reasonable assistance and co-operation in the performance of this Agreement required by the Consultant including providing the Consultant with;
c. access to the Site as and when required by the Consultant;
d. access to relevant Client individuals, employees, agents, consultants, sub-contractors, specialists and other personnel (Personnel);
e. all information and documentation as requested by, or as otherwise necessary for, the Consultant for the purposes of performing its obligations under this Agreement;
f. appoint and maintain sufficient numbers of appropriately qualified Personnel to liaise with the Consultant in relation to the performance of this Agreement; and
g. negotiate in good faith and not unreasonably delay performance of its obligations, including consents, under this Agreement.
8. Payment
8.1 The Client shall pay to the Consultant:
a. the fee as set out in the accepted Proposal Acceptance Terms and Conditions with such other amounts in respect of other services agreed to be provided; (included in lump sum service fees)
b. reimbursement for expenses incurred in the performance of the Consultant’s duties, where the Client has provided prior written approval to incur such costs, expenses, fees or charges. The Client’s approval may be given or withheld in the Client’s absolute discretion;
c. in the event of a dispute about an invoice, the client shall pay the undisputed portion of the invoice, with the balance to be determined through the dispute resolution process.
8.2 The Consultant may claim payment in accordance with the times set out in the Acceptance Terms and Conditions. If no time is set out the Client will pay the Consultant all invoices within 14 days from the date of the invoice. The Client must pay to the Consultant, without set-off or deduction, the amount payable under this Agreement for the services provided during the relevant period.
9. Not Used
10. Duties and other Taxes
10.1 The Client acknowledges that all amounts payable by the Client under or by reason set out in the Proposal Acceptance Terms and Conditions section of an appropriate document are exclusive of GST.
10.2 If the Consultant is or will be liable for any taxes, duties or imposts on or relating to this Agreement or anything done pursuant to this Agreement then the Client will pay the Consultant an amount equal to that liability at the time that it pays any fees, costs or charges to which the liability relates.
11. Change Requests
11.1 The Services described in the SOW and the Proposal Acceptance Terms and Conditions are based on facts known to the Consultant at the time of preparation of those documents including information supplied by the Client. Subsequent information may indicate that the scope or timing of the Services requires amendments or the Client may request changes to the scope or timing of the Services. If there is a change in the scope, order or timing of the Services, the Consultant will be entitled to amend the price by an amount reasonable in the circumstances. Either party may at any time request a Change to the Statement of Work as follows:
a. the party requesting the Change must, at its own cost, submit a Change Request in respect of the proposed Change and a written statement of business requirements to the other party;
b. the Consultant will produce a specification for the Change, an estimate of the timing for performance of the Change and its likely impact on existing milestones or delivery dates, and a quote for the likely Fee for performance of the Services comprising the Change; and
c. if the specification, cost estimate, implementation program and terms of payment for the Change not agreed in writing by the parties within 5 business days of the Consultant providing the material specified in clause 12(b), the Change Request will be deemed to be not accepted.
11.2 The Consultant’s personnel nominated to participate in this Agreement may be set out in accompanying documents. The Consultant reserves the right, however, to substitute the nominated Personnel with Personnel of equivalent skills.
12. Confidentiality
12.1 Subject to clause (12.1), each party must not:
a. disclose, directly or indirectly, any Confidential Information of the other party to any person without the prior written approval of the other party;
b. use or make a copy of any of the other party’s Confidential Information otherwise than for the purposes of this Agreement; and each party must immediately notify the other party if it becomes aware; or
c. of any unauthorised access to, or use or disclosure of, any of the other party’ s Confidential Information.
12.2 Notwithstanding clause (12.1), Confidential Information may be disclosed by a party:
a. where that party is required by law to disclose the Confidential Information, immediately gives notice to the other party of that requirement and discloses only that portion of Confidential Information which it is legally required to disclose;
b. to that party’s servants, agents and contractors who have a need to know (and only to the extent that each needs to know) in order to perform that party’s obligations; and
c. to that party’s accountants, lawyers and other professional advisors who owe a duty of confidentiality to that party.
12.3 A party subject to their obligations at law, at the reasonable written request of the other party, is required to immediately deliver to the other party all records and documents, including without limitation all copies, containing, recording or referring to Confidential Information which are in its possession, power or control, or (at the other party’s request) have such material deleted from its word processing machine and confirm such deletion promptly in writing.
12.4 This clause 12 survives for a period of 3 years after the expiration or termination (for any reason) of this agreement and is in addition to and not in derogation of obligations at law or under any law or trade or professional custom or use.
12.5 Notwithstanding this clause 12, the Client agrees that the Consultant may disclose that the Client is a client of the Consultant in the Consultant’s website, advertising, promotion and similar public disclosures.
12.6 In this clause, Confidential Information means all information (whether of a scientific, engineering, industrial, technical, business or financial nature or otherwise) and records of a party, in whatever form, but does not include information that:
a. at the date of this Agreement is publicly available;
b. subsequent to the date of this Agreement becomes publicly available without breach of this Agreement;
c. is obtained by a party from a third party without breach by that third party of any obligation of confidence concerning that Confidential Information; or
d. was already in a party’s possession (as evidenced by written records) when provided by or on behalf of the other party.
13. Intellectual Property
Subject to the Client complying with its obligations under the Agreement, the Consultant grants to the Client a non-exclusive, royalty-free and irrevocable licence to use (and allow others to use) any intellectual property (including all materials, software, methods, processes, reports, specifications and other documentation, including “works” as defined in the Copyright Act 1968 (Cth) created or produced by the Consultant) arising out of provision of the Services (“IP Rights”) for the purpose of completing the Project. As between the Client and the Consultant, the ownership of the IP Rights vests in the Consultant. Any IP sourced / provided by the Client belongs to the Client and does not vest to the Consultant.
14. Limitations on Liability
The Consultant’s maximum liability, and that of the Consultant’s members, servants, agents or sub consultants, to the Client arising out of the performance or non-performance of the Services performed under this Agreement, whether under the law of contract, tort or otherwise, shall be capped at the maximum of:
a. Professional Indemnity: AUD$1,000,000.00 any one claim and in the aggregate;
b. Public & Products Liability: AUD$10,000,000.00 any one occurrence and in the aggregate in respect of product liability arising out of the provision of Information Technology.
For the purpose of this clause, the Consultant contracts on its own behalf and on behalf of its members, servants, and agents. The Client acknowledges and agrees that the Consultant, nor its members, servants, agents or sub consultants, will be liable under the law of contract, tort or otherwise for any indirect or consequential loss of any kind.
15. Termination
The Consultant may, by notice in writing to the Client, terminate this Agreement, where the Client has breached this Agreement and has failed to remedy the breach within 5 business days after being notified by the Consultant that it requires remedy.
15.1 Termination by Client
The Client may, by notice in writing to the Consultant, terminate this Agreement, where the Consultant has breached this Agreement and has failed to remedy the breach within 5 business days after being notified by the Client that it requires remedy.
15.2 Consequences of Termination
Upon termination of this Agreement by either party:
a. the Client will pay the undisputed Fees in full in relation to all Services provided up to the date of termination;
b. provided that the termination did not result from the Consultant’s breach of this Agreement, the Client will pay the Consultant’s reasonable unavoidable costs associated with the termination, provided that any claim by the Consultant:
i. does not exceed $500;
ii. is supported by satisfactory written evidence of the costs claimed; and
iii. will be in total satisfaction of the liability of the Client to the Consultant in respect of this Agreement and its termination.
c. subject to the Client complying with its obligations in clauses a) and b), the Client will be entitled to retain and use that part of the Services provided by the Consultant and paid for in full by the Client on or before the date of termination; and
d. the Client must immediately cease using and return to the Consultant any part of the Services that is not paid for by the Client, at the Client's cost.
15.3 Dispute Resolution Process
In the event of a dispute in the agreement being breached, the following resolution process shall be applied:
Step 1. Written notice of dispute
Step 2. Direct negotiation between the parties
Step 3. Request for a mediator
Step 4. Appointment of a mediator
Step 5. Mediator decides how mediation is to be carried out and date, time and place for mediation
Step 6. Mediation
Step 7. Agreement is reached or mediation is terminated
Step 8. Litigation or Arbitration
16. Acceptance
16.1 The person signing this Agreement warrants that they have the authority of the Client to enter into this Agreement.
16.2 If the terms of this Agreement are acceptable, the Client will execute and return the following Cloud Assist Australia Proposal Acceptance and issue a purchase order which references the Consultant’s proposal and these Terms of Engagement.
17. Important Development Notes
The Consultants standard configuration management process guarantees the quality of the user interface on the following browser releases;
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Browser
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* Release
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Firefox
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2.0 and 3.0
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Internet Explorer
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7.0 and 8.0
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Safari
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3.2
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Opera
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9.6
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Chrome
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Any version
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* Based on the latest production release of this version. Browser security settings may impact the way the Client view the UI.
17.1 Where Content Management System software (CMS) is required in building the Clients website. eg. Kentico, the CMS licensing terms require that the Client maintain a current annual software support license if the Client wish to retain access to the latest version (and functionality) of the CMS and for the Consultant to provide the required support.
18. Force Majeure Event
18.1
a. A party will not be responsible for a failure to comply with its obligations under this Agreement to the extent that failure is caused by a Force Majeure Event, provided that the party keeps the other closely informed in such circumstances and uses reasonable endeavours to rectify the situation (where possible).
b. If a Force Majeure Event occurs and results in a delay to any schedule agreed for the provision of the Services, that schedule will be amended to the extent necessary to compensate for the delay and the Consultant will be entitled to an extension of time for providing the Services equal to the time of the delay.
c. Without limiting any other right to terminate under this Agreement, if a Force Majeure Event affects a party's performance under this Agreement for more than thirty (30) consecutive days, the other party may immediately terminate this Agreement by written notice.
18.2. In this clause “Force Majeure Event” means any occurrence or omission as a direct or indirect result of which the party relying on it is prevented from or delayed in performing any of its obligations under this agreement and that is beyond the reasonable control of that party, including forces of nature, industrial action and action or inaction by a government agency.
19. Privacy
The Consultant acknowledges that it has read and understood the Privacy Policy of the Client (if supplied by the Client) and agrees to comply with and be bound by that policy.
20. Use of Client Logo on Website
Cloud Assist will make use of the Client’s logo and list the Client on the Cloud Assist website, along with a referring link to the Client’s website. If the Client wishes this logo and link to be removed at any point, it can be requested by email to the Consultant. The Consultant agrees to remove the logo and link within 48 hours of receipt of the email request.