Master Terms of Service

ABOUT THIS DOCUMENT

This document is referred to as the Master Terms of Service or Terms and Conditions

This document defines the terms and conditions under which the Service Provider provides services to its clients.

Completion by both the Client and the Service Provider of an Order Form constitutes acceptance of these Terms of Service.

The Service Provider advises its clients that its terms are published at https://ccp.com.au/terms

The Service Provider advises its clients that this document is published at https://ccp.com.au/terms/terms-of-service

DEFINITIONS

The Service Provider, Us, Our, or We referred to in this document means COMPUTER CONSULTANT PROFESSIONALS PTY LTD ACN 128 752 607 of Unit 18, 8 Tomlinson Road, Welshpool, in the state of Western Australia, in the country of Australia.

The Client, Customer, You or Your referred to in this document, refers to the party named and described in the Order Form

The Parties means both the Client and the Service Provider

An Order Form refers to any written or recorded request between the Parties where the Client has agreed to receive a service from the Service Provider, and the Service Provider has agreed to supply that service to the Client.

The Agreement consists of the terms and definitions in the Order Form, the Terms of Service, the Product Terms and any included schedule or annexure

In this Agreement, unless the contrary intention appears:

authorised representative means the individuals advised by the Client to the Service Provider from time to time;
business hours means 7:00am – 5:00pm, Australian Western Standard Time, Monday to Friday excluding Australian National public holidays and Western Australian public holidays;
claims means claims, demands, actions, proceedings, suits, charges, costs, expenses, damages, losses (including consequential losses) and other liabilities;
commencement date means the date specified as such in the Order Form. If no date is specified, it then means the date that the service is first supplied to the Client;
confidential information means all information communicated in whatever form, including: (1) the terms and contents of this Agreement; (2) information relating to the business or operations of the Service Provider; (3) information disclosed by or on behalf of the Service Provider to the Client at any time or learnt by the Client by virtue of the Service Provider carrying out the Services; (4) all information and documents designated or marked as confidential or proprietary and disclosed by or on behalf of the Service Provider to the Client; (5) information which the Client ought to know is confidential; (6) information which is by its nature confidential; and (7) any Intellectual Property;
consumer price index means the Consumer Price Index All Groups for Western Australia as published by the Australian Bureau of Statistics or its successor, and includes any index published in substitution for the Consumer Price Index;
default rate means the overdraft reference rate quoted by the Service Provider’s principal banker on the first day of the applicable month plus 200 basis points;
defect means a reproducible failure of the software to work substantially as described in the documentation that accompanies it;
intellectual property means any and all intellectual property belonging to the Service Provider, including: (1) patents, copyright (including all copyright in software), registered designs, trademarks, rights to have information kept confidential, processes, inventions, improvements, innovations, modifications and discoveries, whether or not capable of being secured, registered or protected by any means; and (2) any application or right to apply for registration of any of the rights referred to in paragraph (1);
out of scope means services, tasks, or work that is excluded from the service, by way of the terms and definitions that constitute this Agreement;
payment terms means the terms specified in clause 3;
service fees means the monthly fees specified by the Service Provider in the Order Form, or as specified in the Product Terms for the number of units supplied or consumed plus any additional fees specified in this Agreement;
services means the services specified in the Order Form;
service area means within 40 kilometres of the Service Providers office(s);
service level agreement hours (SLA Hours) means 8:30am – 5:00pm, Australian Western Standard Time, Monday to Friday excluding Australian National public holidays and Western Australian public holidays;
term means the period specified as such by the Service Provider in the Order Form, or as specified in the Product Terms and commencing on the Commencement Date; and
warranty period means 90 days from the date of delivery, unless the Service Provider specifies a different period.

IT IS AGREED

AGREEMENT

In consideration of the Client agreeing to pay the Service Provider the Service Fees in accordance with the Payment Terms, the Service Provider agrees to provide the Services to the Client for the Term in accordance with the provisions of this Agreement.
For each Service selected by the Client in the Order Form, a separate contract is entered into by the parties for that Service on the terms of this Agreement. For the avoidance of doubt, for example, if the Client selects a phone service and a website service, a contract will be entered into by the parties for the phone service on the terms of this Agreement and another contract will be entered into by the parties for the web service on the terms of this Agreement.
This Agreement applies to the Services provided by the Service Provider and aims to ensure that the Service Provider is able to provide quality services to all of its customers and that no customer is disadvantaged by the conduct of others.
Fair Use of Unmetered Services
1. Where a Service indicates or implies an unmetered component, the following constitutes the Fair Use Policy for those Services:
  1. The Service and the Client’s consumption of that Service is not subject to metering, rate-based billing, or pre-set caps;
  2. The Client will not be charged more based on how much of the Service they use, nor will their access be automatically restricted or throttled;
  3. However, ‘unmetered’ does not imply that it is unlimited or that infinite resources are available or that the Service Provider will tolerate excessive, abusive, or unreasonable use that materially impacts its ability to provide Services to other Clients;
2. If the Client uses the Service in a way that is found to be excessive or unreasonable under this Fair Use Policy, the Service Provider will;
  1. Institute a three strikes warning and upon each strike, give the Client notice (Usage Notice) informing them that their usage of the Service is considered excessive;
  2. Upon the third strike, the Service Provider shall open negotiations to change the Clients Service or pricing structure for the Service; and
  3. If the Client does not agree, then their Service shall remain the same but if the Client strikes out again, they must either agree to a new Service, or terminate the Service, pursuant to clause 8.3.
3. Whether usage is excessive or unreasonable will be determined by the Service Provider acting reasonably, having regard to:
  (a) the nature and scope of the Services;
  (b) the average usage patterns of the Service Provider’s other Clients receiving comparable services; and
  (c) any material adverse impact on the Service Provider’s ability to provide the Services to other Clients.
If there is any inconsistency between the parts of the Agreement, the order of priority, from highest to lowest, is:
1. any special conditions defined by the Service Provider in the Order Form;
2. any special conditions in the Product Terms;
3. the remainder of the Product Terms;
4. the Order Form; and
5. these Terms of Service

SERVICE PROVIDER'S OBLIGATIONS

The Service Provider must provide the Client with the Services during Business Hours for the Service Fees.
When the Client requests the Service Provider to perform a task that is a part of the Service and is not considered Out Of Scope, the Service Provider must, as soon as reasonably practicable, determine the time frame by which the Service Provider must perform that task and advise the Client accordingly.
1. Unless otherwise advised by the Service Provider, the task will be performed remotely.
2. If the Service Provider classifies the task as:
  1. priority 1, the Client will receive a response from the Service Provider within 1 SLA Hour of the request;
  2. priority 2, the Client will receive a response from the Service Provider within 4 SLA Hours of the request;
  3. priority 3, the Client will receive a response from the Service Provider within 8 SLA Hours of the request; and
  4. priority 4, the Service Provider will schedule a time during Business Hours with the Client to resolve the request.
  For the avoidance of doubt, it is agreed that “receive a response” means that the Service Provider will respond to the Client within the time specified and thereafter attend to the task diligently with a view to completing it as soon as reasonably practical in the circumstances of the case and subject to availability of software and hardware and otherwise on the terms of this Agreement.
The Service Provider will use its reasonable efforts to meet any deadlines or milestones that the Service Provider promises to meet but will not be liable for any delay or failure to meet them.
To the extent that the Service Provider’s ability to provide a Service is materially prevented or delayed due to:
1. the Client or its staff;
2. a third-party;
3. a failure or defect (not caused by the Service Provider) in hardware or software (not supplied by the Service Provider); or
4. an event beyond the Service Provider’s reasonable control,
then to the extent and for the duration of such material prevention or delay, the Service Provider’s obligation to provide the affected Service is suspended. The Service Provider will promptly inform the Client of the circumstances and use reasonable endeavours to resume provision of the Service as soon as practicable.

For clarity, the Service Provider may only suspend the affected Services to the extent reasonably necessary, and only where such impairment materially impacts the Service Provider’s ability to perform its obligations under this Agreement.

CLIENT'S OBLIGATIONS

General Obligations

In order for the Service Provider to be able to provide the Client with the Services, the Client must:
1. provide the Service Provider with reasonable, timely and safe access to the Client’s facilities, premises, information, equipment, personnel, network and data to enable the Service Provider to fulfil its obligations under this Agreement;
2. provide a safe working environment for the Service Provider’s personnel;
3. comply with all laws, regulations, policies and guidelines (including any applicable acceptable use policy that the Service Provider informs the Client of);
4. implement the Service Provider’s recommendations;
5. ensure that any incumbent provider who is transitioning the Service to the Service Provider makes available the information, resources and facilities required by the Service Provider to provide the Service;
6. maintain regular and complete backups of all the Client’s data;
7. fully and accurately disclose to the Service Provider, before commencement of any Service Component and thereafter on request, all of the Client’s IT infrastructure, software, services, devices, locations and third-party relationships relevant to the provision of the Services;
  and
8. notify the Service Provider in writing, as soon as practicable and in any event within 5 Business Days, of any change to or addition of such infrastructure, software, services, devices, locations or third-party relationships
The Service Provider will not be responsible for any failure, default or delay to the extent caused by the Client’s failure to perform the Client’s obligations under this clause 3.1.
Fees
1. The Client must pay the Service Provider the Service Fees in accordance with the Payment Terms.
2. The fees for a Service are:
  1. the fees specified by the Service Provider on the Order Form;
  2. if none are specified, then the fees specified in the Product Terms;
  3. if none are specified, our current published or advertised fees for that Service; or
  4. if there are no current published fees, at our time and materials rates for similar services; and
  5. the Service Fees will change at the end of every 12 months of the Term in accordance with the Consumer Price Index. The Service Provider may increase the fees above CPI by up to 10% per annum by providing the Client with 30 days’ written notice, provided such increase reflects rising costs of supply, market conditions, or supplier pricing.
3. If another party sells hardware, software or services to the Service Provider that the Service Provider provides to the Client pursuant to this Agreement, and that other party increases its prices charged to the Service Provider for that hardware, software or service, the Service Provider may subsequently also increase the fees charged to the Client for that hardware or software to the extent that the party increased their prices charged to the Service Provider for that hardware or software.
4. The following actions are not chargeable by the Service Provider:
  1. the Client lodging a service request; and
  2. any review of an invoice requested by the Client, provided that if the review determines that the invoice was incorrect in the Client's favour, no fee will be charged regardless of the number of reviews. If, after the first review, the invoice is found to be correct and the Client requests additional reviews of the same invoice which also confirm accuracy, the Service Provider may charge a reasonable fee for such subsequent reviews.
5. If the Service Provider performs any work for the Client that is not covered by the Product Terms or outside of Business Hours, the Service Provider may charge for that work in minimum 1 hour blocks:
  1. at a rate of $400.00 an hour for work during Business Hours and not covered by the Product Terms;
  2. at a rate of $400.00 an hour for work outside Business Hours and is covered by the Product Terms; and
  3. at a rate of $500.00 an hour for work outside Business Hours and is not covered by the Product Terms.
6. If the Client requests the Service Provider to provide a task that is part of the Service but by way of on‑site support (for the avoidance of doubt, where the Service Provider has decided to perform the task remotely) the Service Provider will use its best endeavours to provide onsite service within the response time allowed for the task and if the Service Provider does provide on‑site support, the Client must pay the additional fees as follows:
  1. on-site within 3 hours - $190.00 per call out; and
  2. on-site within 1 hour - $400.00 per call out.
7. If the Client requests for an escalation for remote work, and the Service Provider agrees to the escalation (for the avoidance of doubt the Service Provider can in its absolute discretion refuse the request), the task is deemed to be outside of the Services and the Client must pay an additional fee of $190.00 per call out for the task.
8. If the Client requests an escalation in the priority number as classified by the Service Provider under clause 2.2.2, and the Service Provider agrees to the escalation (for the avoidance of doubt the Service Provider can in its absolute discretion refuse the request), the Client must pay an additional fee of $190.00 per escalation.
9. Where the Service Provider’s personnel are delayed from performing a service due to a delay caused by the Client, the Service Provider may charge the Client:
  1. $190.00 an hour for work during Business Hours; and
  2. $400.00 an hour for work outside of Business Hours, for the duration of the delay subject only to the Service Provider making reasonable efforts to reallocate the Service Provider’s personnel to other chargeable duties.
10. Where the Service Provider has to undertake additional work due to the refusal by the Client to implement the Service Provider’s recommendations or as a direct result of work performed by a third party, that work is not covered by the Product Terms and the Service Provider may charge additional fees for that additional work at the rates set out in clause 3.2.5.
11. If the Service Provider performs any on-site work for the Client outside the Service Provider’s Service Area, the Client must pay for the travel time to and from the on-site location, charged as ‘outside of the Services’ at the rates defined in 3.2.5 and any related travel expenses, including but not limited to, parking fees, food allowances, accommodation, airline tickets, car hire and insurances.
Method of Payment
1. The Client must pay each monthly invoice in full:
  1. by the due date specified in the invoice; or
  2. if no due date is specified, within 14 days of the invoice date.
2. The Client may make payment as follows:
  1. the Client can provide the Service Provider with a credit card from which the Service Provider can take payment; or
  2. the Client can set up a direct debit payment with the Service Provider. The Service Provider will not be responsible for any fees incurred by the Client due to sufficient funds being not available in the direct debit account nominated by the Client.
3. If a method of payment becomes invalid or incapable of use, the Client must provide the Service Provider with another payment method within 7 days of the method of payment becoming invalid or incapable of use.
4. The Client must indemnify and reimburse the Service Provider for any fees incurred due to the Client’s method of payment (e.g. fees incurred due to insufficient funds when processing the Client’s direct debit) upon demand.
Overdue Payment
If a payment by the Client is overdue, in addition to the Service Provider’s other rights:
1. the Service Provider may charge interest on the overdue amount at the default rate, calculated daily;
2. the Service Provider may suspend providing the Services to the Client and the Client releases the Service Provider from and indemnifies the Service Provider in respect of all Claims for loss or damages directly or indirectly suffered by the Client as a result of such suspension; and
3. the Client must indemnify the Service Provider against all costs and expenses (including legal expenses on a solicitor/client basis) incurred by the Service Provider in attempting to recover the overdue amount from the Client.
Title, Risk and Right of Entry
1. The Client must take over and assume all risk and liability for the goods (including software) provided to it by the Service Provider (equipment) as soon as the Client is in possession of the Equipment.
2. The title to any Equipment shall pass from the Service Provider to the Client upon full payment by the Client to the Service Provider of the agreed purchase price.
3. The Service Provider remains the legal and beneficial owner of any equipment supplied to the Client until full payment has been made by the Client for such equipment. The Client must not sell, dispose of, assign, charge, or encumber the equipment until full payment has been made to the Service Provider.
4. (a) The Client acknowledges and agrees that, until full payment is made for all equipment supplied under this Agreement, the Service Provider may register and perfect a security interest (including a Purchase Money Security Interest (“PMSI”)) under the Personal Property Securities Act 2009 (Cth) (“PPSA”) in respect of such equipment.
  (b) The Client must promptly do anything (including providing information, signing documents, and providing access to the Client’s premises and records) that the Service Provider reasonably requires to enable the Service Provider to register, perfect, protect, and enforce its security interest under the PPSA.
  (c) The Client must notify the Service Provider in writing if it intends to change its name, address, or any other identifying detail for the purposes of the PPSA at least 14 days before such change takes effect.
  (d) The Client waives, to the maximum extent permitted by law, its right to receive any notice under sub-sections 157(1) and 157(3) of the PPSA (except where the notice is required by law and cannot be excluded).
  (e) Nothing in this Agreement prohibits the Service Provider from pursuing remedies available to secure, recover, or deal with the equipment subject to its security interest under the PPSA in the event of the Client’s default, insolvency, or non-payment, including by entering the Client’s premises (upon reasonable notice and during business hours) to recover possession of the equipment.
5. The Client agrees to cooperate with the Service Provider in the lawful recovery of any Equipment to which the Service Provider retains title under clause 3.5.4. The Service Provider is not liable for any loss or damage arising solely from the recovery of its Equipment where such recovery is undertaken lawfully and in accordance with this Agreement, except to the extent such loss or damage arises from the Service Provider’s negligence, unlawful conduct, or breach of this Agreement.
Loan Equipment
1. The Service Provider may install on the Client’s premises equipment owned by the Service Provider but loaned to the Client (loan equipment).
2. All Loan Equipment:
  1. remains the Service Provider’s property (legally and beneficially);
  2. must only be used by the Client for the purposes of obtaining the Services from the Service Provider; and
  3. must be kept secured from loss or damage by the Client and its staff.
3. If the Loan Equipment in the Client’s possession or control is lost, stolen or damaged, the Client must:
  1. notify the Service Provider without unreasonable delay; and
  2. pay the Service Provider the replacement cost of the Loan Equipment calculated as the retail price at the date the Loan Equipment was lost, stolen or damaged minus any amount the Service Provider recovers under an insurance policy (if any).
Release
1. The Client hereby agrees to release the Service Provider from all Claims arising from the reliability of the hardware and software provided by the Service Provider to the Client. The Client also agrees to release the Service Provider from all Claims arising from the suitability of the hardware and software provided by the Service Provider to the Client if the Client has not made sufficient efforts to notify the Service Provider of their requirements.
2. Where the Service Provider is capable of providing and has offered to provide particular services (rejected services) to the Client but instead of using the Service Provider for the Rejected Services, the Client uses another provider, the Service Provider is not responsible or liable for any Claims that arise as a result of the Client obtaining the Rejected Services from the other provider including if the Rejected Services provided by the other provider causes defects and malfunction in the equipment and software provided by the Service Provider to the Client.
3. Any additional work that the Service Provider is required to undertake due to the Client obtaining services from another provider will be charged at the rates set out in clause 3.2.5.
Authorised representatives
1. Unless otherwise instructed by the Client to the Service Provider, any employee of the Client may request support, hardware, software or services from the Service Provider.
2. If the request by an employee of the Client will result in additional cost to the Client, the Service Provider must first obtain consent in writing from an Authorised Representative of the Client before fulfilling that request.
3. The Client must inform the Service Provider as soon as reasonably practicable if there are any changes to the employees or Authorised Representatives of the Client.

CONFIDENTIAL INFORMATION

The Client must not at any time, either during the duration of this Agreement or after the termination of this Agreement, for any reason divulge Confidential Information of the Service Provider without the previous written consent of the Service Provider.
The Service Provider must not at any time, either during the duration of this Agreement or after the termination of this Agreement, for any reason divulge Confidential Information of the Client without the previous written consent of the Client.
The Client and Service Provider agrees and undertakes, both for the duration of this Agreement and for so long as Confidential Information remains confidential after the termination of this Agreement, to:
1. endeavour to prevent disclosure or publication of the Confidential Information of the other party where that disclosure or publication is not authorised by the other party; and
2. if required by law to disclose any Confidential Information of the other party, advise the other party of that fact and take all lawful steps to confine disclosure of the Confidential Information and preserve its confidentiality, including taking steps to allow the other party to do so.
The Client and Service Provider agrees that the other party will be entitled to injunctive and other equitable relief to prevent or cure any breach or threatened breach of this clause 4.
This clause survives the termination of this Agreement.

INTELLECTUAL PROPERTY

The Client acknowledges that the Service Provider remains the owner of all Intellectual Property.
For the duration of this Agreement or after the termination of this Agreement, the Client must:
1. do all things that the Service Provider reasonably requests to secure the Service Provider’s rights in the Intellectual Property to prevent modification, harm or transfer of the Intellectual Property; and
2. not do anything that may damage or infringe on the Service Provider’s Intellectual Property.
In providing a Service, the Service Provider may supply the Client with materials (including software) licensed by third parties.
The Client must comply with the terms of the third-party licence and agrees to indemnify the Service Provider against any loss, damage, claim, liability or demand the Service Provider incurs due to the Client’s breach of a third-party license.
To the extent that a Service involves the creation or licensing of software that the Service Provider owns, the Service Provider:
1. warrants that the Service Provider’s software will operate substantially in accordance with its accompanying documentation during the Warranty Period;
2. will use all reasonable efforts to correct any Defect provided the Client notifies the Service Provider of the Defect during the Warranty Period;
3. will use all reasonable efforts to correct any Defect provided that:
  1. the Client notifies the Service Provider of the Defect during the Warranty Period;
  2. the Client has used the software in accordance with its accompanying documentation and the Service Provider’s recommendations;
  3. the software has not been modified by anyone other than the Service Provider;
  4. the Defect is not due to a change in the Client’s IT or physical environment after delivery of the software; and
  5. the Client is not in breach of this Agreement or any service contract.
4. The Service Provider grants to the Client a non-exclusive, non-transferable licence to use the software for the Term of this Agreement and as long as the Client is not in breach of this Agreement.
5. All warranties in this clause 5 are limited to the repair or replacement of warranted items.
6. This clause survives the termination of this Agreement.

LIABILITY & INDEMNITY

The Client indemnifies the Service Provider against any claim made or threatened by a third party arising directly from:
(a) the Client’s breach of this Agreement;
(b) the Client’s negligent or unlawful acts or omissions; or
(c) the Client’s supply, installation, or use of unlicensed software or data that infringes third-party intellectual property rights.
This indemnity does not apply to the extent that any such claim arises from the Service Provider’s own negligence, breach of this Agreement, or unlawful conduct.
To the extent permitted by law, the Service Provider is not liable for any indirect, consequential, or incidental loss, or for any loss of profit, revenue, data, or business opportunity, however caused (including by negligence or the lawful termination of this Agreement), arising out of or in connection with this Agreement. This includes any such loss arising from the Service Provider’s exercise of its rights under clause 8.3 or from any suspension or cessation of Services in accordance with this Agreement.
Without limiting any other provision in this Agreement, the Service Provider is not liable for any data loss unless such loss is a direct result of the Service Provider’s breach of contract, gross negligence, or wilful misconduct.
The Service Provider does not hold any insurance or financial services licences and does not offer advice or services in relation to insurance, including cyber insurance. The Service Provider will not complete, certify, or submit insurance documentation or insurance claims on behalf of the Client. The Client is solely responsible for all insurance documentation and for any actions relating to insurance claims. Nothing in this Agreement requires the Service Provider to prepare, submit, or assist in the preparation or submission of insurance or cyber insurance documentation for the Client.
The Client acknowledges that the Service Provider’s ability to deliver secure and effective Services depends on the Client providing accurate, complete, and timely information about its systems, software, infrastructure, and third-party relationships. To the maximum extent permitted by law, the Service Provider excludes all liability for any loss or damage arising from or in connection with:
(a) the Client’s failure to disclose relevant information about its systems, software, or configuration;
(b) the Client’s refusal or delay in implementing the Service Provider’s written recommendations; or
(c) the Client’s use of or reliance on any system, configuration, or third-party service designated as "Out Of Scope."
Any support or remediation undertaken in relation to such matters is provided at the Client’s risk and will be charged on a time-and-materials basis in accordance with clause 3.2.5.
The Client warrants that all information and documentation it provides to the Service Provider in response to a request from the Service Provider is, to the best of the Client’s knowledge, accurate, not misleading or deceptive, and that the Client has obtained all necessary consents, licences, and permissions required for the Service Provider to access, use, or manage the systems and data as reasonably requested.
Nothing in clause 6 excludes, restricts, or modifies any right, remedy, guarantee, warranty or other term or condition that is implied or imposed by the Australian Consumer Law or any other applicable law that cannot lawfully be excluded or limited.

FORCE MAJEURE

Definition of force majeure
In this clause 7:
1. Force Majeure means a circumstance beyond the reasonable control of a party which occurs without the fault or negligence of the party affected;
2. For the purposes of this Agreement, “Force Majeure” includes any circumstance beyond the reasonable control of a party, including but not limited to:
  (a) inevitable accident, storm, flood, fire, earthquake, explosion, peril of navigation, or infrastructure failure;
  (b) strike, lock-out, boycott or other industrial dispute;
  (c) hostility, war (whether declared or undeclared), insurrection;
  (d) executive or administrative order or act of either general or particular application of any government, whether official or unofficial, or of any official purporting to act under the authority of that government;
  (e) prohibition or restriction by domestic or foreign laws, regulations or policies;
  (f) quarantine or customs restrictions;
  (g) breakdown, damage to, or confiscation of property;
  (h) any failure, outage, suspension, interruption or delay in the services of telecommunications carriers, internet service providers, or cloud or hosting service providers (including but not limited to Microsoft, Amazon Web Services, and Google Cloud), provided such events are beyond the affected party’s reasonable control.
Effect of force majeure
1. Except for any obligation to pay money (including damages or compensation under clause 8), the obligations of a party under this Agreement are suspended during the time and to the extent that the party is prevented from or delayed in complying with them by force majeure.
Obligations of affected party upon force majeure
1. A party affected (the affected party) by force majeure must:
  1. immediately after being affected by force majeure give notice to the other party of:
    1. full particulars of the force majeure;
    2. full particulars of the manner in which the affected party's performance of its obligations under this Agreement is prevented or delayed by the force majeure; and
    3. the affected party's calculation of the estimated period of prevention or delay in complying with its obligations under this Agreement as a consequence of the force majeure; and
    4. immediately and diligently take all necessary action to enable the affected party to perform its obligations under this Agreement prevented or delayed by the force majeure except that the affected party is not obliged to settle a strike, lockout, boycott or other industrial dispute.
General obligations upon force majeure
1. Each party must use reasonable endeavours to remove or mitigate any force majeure at the earliest possible time except that neither party is obliged to settle a strike, lockout, boycott or other industrial dispute.
Termination upon force majeure
1. If a party is prevented from or delayed in complying with an obligation under this Agreement for a period of 90 days or more by reason of force majeure, then the other party may by notice to the affected party terminate this Agreement. For the avoidance of doubt, clauses 8.2 and 8.3 apply if this Agreement is terminated under this clause 7.
Effect of clause on frustration
1. This clause 7 does not exclude the application of the rules of law in relation to frustration of contracts.

TERMINATION

Termination for convenience
1. The Client may, without cause, terminate this Agreement by giving the Service Provider 4 weeks’ notice in writing.
Termination for non‑performance by Service Provider
1. The Client may terminate this Agreement immediately if the Service Provider has breached a term of this Agreement and fails to remedy the breach within 14 days after receiving a notice detailing the breach and requiring that it be remedied (except due to circumstances beyond the Service Provider’s control).
2. Termination of this Agreement under clause 8.2.1 does not affect the Service Provider’s rights of action based on any breach by the Client before the termination and is without prejudice to any other rights the Service Provider may have to recover other sums from the Client.
3. On termination of this Agreement under clause 8.2.1., the Service Provider may retain all moneys paid under this Agreement.
4. If the Client terminates this Agreement prior to its expiry pursuant to clause 8.2, then no termination fee will be payable.
Termination for defaulting by the Client
1. The Service Provider may terminate this Agreement if the Client is in default under this Agreement and the Service Provider has given notice to remedy and the Client has failed to remedy the default within 7 days of the notice. If the Client fails to remedy the default, the Service Provider may also suspend Services without prejudice to the Service Provider’s right to terminate; and
2. If the Service Provider provides more time to remedy the default, the Service Provider does not waive the right for cessation of Services at a later date provided the Client is still in default under this Agreement.
Reimbursement of costs
1. If the Client terminates this Agreement under clause 8.1, or if the Service Provider terminates this Agreement due to the Client’s default under clause 8.3, and such termination occurs before the end of the Term, the Client must pay to the Service Provider:
  1. all reasonable, documented costs already incurred or committed by the Service Provider in reliance on this Agreement; and
  2. as a genuine pre-estimate of the Service Provider’s loss, a fee equal to:
    1. 40% of the remaining Service Fees payable for the rest of the Term, if termination occurs within the first 18 months of the Term; or
    2. 25% of the remaining Service Fees payable for the rest of the Term, if termination occurs after the first 18 months of the Term.
2. The Service Provider agrees to take reasonable steps to mitigate its loss in the event of early termination.
Access
1. Subject to the Client having duly complied with clauses 8.4.1 and clause 8.7, the Service Provider must use its best endeavours to assist the Client (and its employees, agents and consultants), at the cost of the Client, to gain access to and recover the Client’s data.
Release
1. Subject to the Service Provider duly complying with clause 8.3 and clause 8.5, the Client hereby agrees to unconditionally release and forever hold harmless the Service Provider in respect of any loss suffered by the Client as a result of the suspension of the Services or the Client not having access to its data.
Return of Service Provider's property
1. Upon termination of this Agreement for any reason, the Client must deliver to the Service Provider without any further demand any property (including copies or counterparts) of the Service Provider, including but not limited to, all software, hardware, antivirus licences, backup licences, phone handsets, network attached storage devices, hard drives, CCP maintenance software, uninterruptible power supplies, switches, modems, routers, cables and wireless access points.

HOLDING OVER AFTER EXPIRY OF TERM

Unless either party has given notice to the other to the contrary, after the expiry of the Term of this Agreement, this Agreement continues as follows:
1. commencing on the date immediately following the last day of the Term of this Agreement;
2. on the terms contained in this Agreement, except those terms that are inapplicable to an agreement on a monthly basis;
3. on a monthly basis being terminable by either party on one month’s written notice to the other party and, for the avoidance of doubt, on such termination, clause 8.4 does not apply; and
4. for the Service Fee and hourly rates specified by the Service Provider, the Service Fee and hourly rates will be at least 20% or greater than the Service Fee or hourly rates applicable at the end of the Term.

GENERAL

Cumulative rights
1. The rights, powers and remedies of a party under this Agreement are cumulative with the rights, powers or remedies provided by law independently of this Agreement.
Waiver and variation
1. A provision of or right created under this Agreement cannot be waived except in writing by the party granting the waiver or varied except in writing signed by the parties.
Severance
1. If any clause or any part of any clause in this Agreement is in any way unenforceable, invalid or illegal, it is to be read down so as to be enforceable, valid and legal. If this is not possible, the clause (or where possible, the offending part) is to be severed without affecting the enforceability, validity or legality of the remaining clauses (or parts of those clauses) of this Agreement, which will continue in full force and effect.
Entire agreement
1. This agreement constitutes the entire agreement of the parties about its subject matter and supersedes any previous understandings or agreements on that subject matter.
Counterparts
1. This agreement may be executed in any number of counterparts and all those counterparts taken together will constitute one instrument.
Applicable laws and disputes
1. This agreement is subject to the laws that apply in Western Australia, Australia.
2. Any dispute or difference arising in connection with this Agreement other than applications for injunctions will be submitted to arbitration in accordance with and subject to the Institute of Arbitrators and Mediators Australia Expedited Commercial Arbitration Rules.
3. Subject to clause 10.6.2., legal proceedings relating to this Agreement or any dispute about it must be commenced in Western Australia, Australia.
Assignment
1. The Service Provider may assign its rights and obligations hereunder to any person or entity that succeeds to all or substantially all of the Service Providers business. The Client may not assign their rights and obligations under this Agreement without the prior written consent of the Service Provider.
Changes to these Master Terms of Service
1. The Service Provider may amend these Master Terms of Service by providing the Client with at least 30 days’ written notice. If the change is material and adversely affects the Client’s rights or obligations under this Agreement, the Client may terminate the Agreement within that 30-day period without penalty by giving written notice.
  If the Client continues to use the Services after the effective date of the changes and does not provide notice of termination within the notice period, the amended Terms will apply from that date.
  Nothing in this clause affects the Client’s rights under the Australian Consumer Law.

RESTRAINTS

Neither party may, during the Term or for 6 months after its termination, approach or solicit the employees, agents or contractors of the other party with an offer of employment.
If, during the period set out in clause 11.1, an employee, agent or contractor of one party becomes employed by the other party as a result of any circumstance (including but not limited to responding to a public advertisement or other non-solicited approach), the employing party must pay to the other party a replacement recruitment fee equal to 30% of the employee’s annual base salary plus superannuation, benefits, bonus and commission.
For the avoidance of doubt, clause 11.1 does not prevent either party from employing an employee, agent or contractor of the other party if that individual responds to a public notice or general recruitment campaign and the employing party has not solicited or encouraged the employee to apply.

PUBLICITY RIGHTS

We may identify you as a customer in our promotional materials. You may request that we stop doing so by submitting an email to support@ccp.com.au at any time.
Work we complete on behalf of you may be used in our promotional materials where:
1. The completed work is visible to the general public;
2. The completed work is not visible to the general public and the information used in the promotional material is de-identified; or
3. The completed work is not visible to the general public and you have given your express permission either in writing or verbally over the phone.

INTERPRETATION

In this Agreement, unless a contrary intention appears:

the singular includes the plural and the other way round;
reference to one gender includes the other genders;
reference to a person includes a body corporate;
reference to a party includes the party's successors and permitted assigns;
reference to any agreement includes a reference to that agreement as amended, novated, supplemented or replaced from time to time;
where a word or expression is given a particular meaning, other grammatical forms of that word or expression have a corresponding meaning;
if in this Agreement no time is specified for doing an act or thing, it must be done as soon as reasonably possible and as often as necessary;
including and similar expressions are not words of limitation; and
headings are for convenience only and do not affect the interpretation of or form part of this Agreement.
this document may embolden, colour or capitalize text to assist the reader and does not affect the interpretation of this Agreement