Terms of Service

IT IS AGREED

1. AGREEMENT

   1. 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 services to the client for the term in accordance with the provisions of this agreement.
   2. 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.
   3. This agreement applies to 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.
   4. Where a service would indicate or imply an unlimited component, ‘unlimited’ means that:
      1. the service and the client’s consumption of that service is not limited, however, ‘unlimited’ does not imply infinite resources are available;
      2. the client will not be billed for their rate of consumption of the associated service, nor will the service be limited in any way; and
      3. factors outside of the service provider’s control may influence the service provider’s ability to supply an unlimited service.
   5. If the client uses the service in a way that is found to be excessive or unreasonable, the service provider will give the client notice (usage notice) suggesting a more appropriate service, adjusting the price of the service to suit the client’s desired usage, or asking the client to curtail their usage.
   6. If after a usage notice, the client’s usage continues at an excessive or unreasonable level, the service provider may adjust the price of the service (at the service provider’s discretion, acting reasonably) and if the client is not satisfied, the client can terminate the service.
   7. What is considered excessive or unreasonable is at the service provider’s sole discretion.
   8. 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

2. SERVICE PROVIDER’S OBLIGATIONS

   1. The service provider must provide the client with the services during business hours for the service fees.
   2. When the client requests the service provider to perform a task that is a part of the service, 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 business hour of the request;
         2. priority 2, the client will receive a response from the service provider within 4 business hours of the request;
         3. priority 3, the client will receive a response from the service provider within 8 business 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.
   3. 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.
   4. To the extent that the service provider’s provision of a service is impaired by:
      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 the service provider’s obligation to provide the service is suspended until the impairment is removed and the service provider will not be liable to the client in respect of any delay or failure to provide the service.

3. CLIENT’S OBLIGATIONS

   1. 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; and
      6. maintain regular and complete backups of all the client’s data.
      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.

   2. 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 of this agreement in accordance with the consumer price index
      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. the first time the service provider reviews an invoice upon request from the client.
      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 $300.00 an hour for work during business hours and not covered by the product terms;
         2. at a rate of $300.00 an hour for work outside business hours and is covered by the product terms; and
         3. at a rate of $450.00 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 – $150.00 per call out; and
         2. on-site within 1 hour – $300.00 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 $150.00 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 $150.00 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. $150.00 an hour for work during business hours; and
         2. $300.00 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.

   3. 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.

   4. 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 further 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.

   5. 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 shall remain the legal and beneficial owner of the equipment until the client has paid the service provider in full for the equipment. The client must not sell, dispose of, assign or encumber the equipment unless and until the client has paid the service provider in full for the equipment.
      4. Until payment is made in full, and upon non-payment within the payment terms under this agreement, the service provider shall have the right, and is hereby authorised by the client, to enter into and upon any premises or vehicle, where the goods may be stored or in use from time to time, with such force as is necessary, and to retake possession of and remove the same, and the client hereby releases from and indemnifies the service provider against any claims arising from such actions of the service provider.
      5. The client’s authorisation to the service provider under clause 3.5.4 is irrevocable. The service provider is not liable to the client in contract, tort or otherwise, for any claims, costs, damages, expenses or losses incurred by the client as a result of any action taken by the service provider under this clause.

   6. 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 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).

   7. 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 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.

   8. 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.

4. CONFIDENTIAL INFORMATION

   1. 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.
   2. The client 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 where that disclosure or publication is not authorised by the service provider; and
      2. if required by law to disclose any confidential information, advise the service provider 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 service provider to do so.
   3. The client agrees that the service provider will be entitled to injunctive and other equitable relief to prevent or cure any breach or threatened breach of this clause 4.
   4. This clause survives the termination of this agreement.

5. INTELLECTUAL PROPERTY

   1. The client acknowledges that the service provider remains the owner of all intellectual property.
   2. 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; and
      2. not do anything that may damage or infringe on the service provider’s intellectual property.
   3. In providing a service, the service provider may supply the client with materials (including software) licensed by third parties.
   4. 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.
   5. 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.

6. LIABILITY & INDEMNITY

   1. The client shall indemnify the service provider against all claims brought or threatened to be brought against the service provider by a third party arising by reason of, in respect of, in relation to or in connection with, any act or omission of the client.
   2. The service provider will not be held liable for damages or data loss as a result from any action the service provider takes as a result of the service provider executing clause 8.3
   3. Without limiting any other provision in this agreement, the service provider will not be liable to the client for any data loss under any circumstances, unless such data loss is a direct result of the service providers actions.

7. FORCE MAJEURE

   1. 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. force majeure includes:
         1. inevitable accident, storm, flood, fire, earthquake, explosion, peril of navigation, infrastructure failure;
         2. strike, lock-out, boycott or other industrial dispute;
         3. hostility, war whether declared or undeclared insurrection;
         4. 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;
         5. prohibition or restriction by domestic or foreign laws, regulations or policies;
         6. quarantine or customs restrictions; or
         7. breakdown or damage to or confiscation of property.

   2. 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.

   3. 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.

   4. 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.

   5. 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.

   6. 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.

8. TERMINATION

   1. Termination for convenience

      1. The client may, without cause, terminate this agreement by giving the service provider 4 weeks’ notice in writing.

   2. 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.

   3. Termination for defaulting by 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.

   4. Reimbursement of costs

      1. If, in the first 18 months of the term, the client terminates this agreement pursuant to clause 8.1 or the service provider terminates for default of the client, the client shall pay the service provider on demand, damages calculated as follows:
         1. reimbursement of all costs incurred by the service provider and payable in the 12 months after the notice is given; and
         2. an amount equal to 40% of the service fee times the number of months remaining of the term.
      2. If, after the first 18 months of the term has expired, the client terminates this agreement pursuant to clause 8.1 or the service provider terminates for default of the client, the client shall pay the service provider damages calculated as follows:
         1. reimbursement of all costs incurred by the service provider and payable in the 12 months after the notice is given; and
         2. an amount equal to 25% of the service fee times the number of months remaining of the term.
      3. It is acknowledged by the client that the damages calculated in accordance with paragraphs 8.4.1 or 8.4.2 above are a genuine pre-estimate of loss suffered by the service provider.

   5. Access

      1. Subject to the client having duly complied with clauses 8.4.1 or 8.4.2 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.

   6. 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 services or the client not having access to its data.

   7. Return of service provider 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.

9. HOLDING OVER AFTER EXPIRY OF TERM

   1. 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.

10. GENERAL

    1. 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.

    2. 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.

    3. 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.

    4. 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.

    5. Counterparts

       1. This agreement may be executed in any number of counterparts and all those counterparts taken together will constitute one instrument.

    6. 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.

    7. 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.

    8. Changes to these Master Terms of Service

       1. We may revise these Master Terms of Service from time to time. The most current version of the terms will always be available at https://ccp.com.au/terms/terms-of-service. If we make a change to this policy that, in our sole discretion, is material, we will notify you in writing via email to the primary email address associated with your account. By continuing to use the services after those changes become effective, you agree to be bound by the revised Master Terms of Service.

11. RESTRAINTS

    1. Neither party may approach the Employees, Agents or Contractors of the other party to this Agreement, with an offer of employment during the term of this Agreement or for up to 6 months after its termination.
    2. For the avoidance of doubt, nothing in clause 11.1 prevents either party from employing an employee of the other party as a result of the employee responding to a public notice, in the absence of any solicitation however if this occurs then the employing party will pay a replacement recruitment fee to the other party equivalent to 30% of the employees base salary plus superannuation plus benefits plus bonus plus commission.

12. PUBLICITY RIGHTS

    1. We may identify you as a customer in our promotional materials. You may request that we stop doing so by submitting an email to [email protected] at any time.
    2. 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.

13. INTERPRETATION

    In this agreement, unless a contrary intention appears:
    1. the singular includes the plural and the other way round;
    2. reference to one gender includes the other genders;
    3. reference to a person includes a body corporate;
    4. reference to a party includes the party’s successors and permitted assigns;
    5. reference to any agreement includes a reference to that agreement as amended, novated, supplemented or replaced from time to time;
    6. where a word or expression is given a particular meaning, other grammatical forms of that word or expression have a corresponding meaning;
    7. 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;
    8. including and similar expressions are not words of limitation; and
    9. headings are for convenience only and do not affect the interpretation of or form part of this agreement.
    10. this document may embolden, colour or capitalize text to assist the reader and does not affect the interpretation of this agreement