MASTER SERVICES AGREEMENT
- Starboard IT Pty Ltd ACN 610 345 161 of 309 Kent Street, Sydney, NSW 2000 (Starboard IT) offers various information technology Services including but not limited to:
- Consulting, professional and
- Hardware, software and cloud
- Telecommunications, network
and security services
- Details of the Services to be provided by Starboard IT to a Customer will be described in the Service Order Form and Statement of Works as accepted by Starboard IT together with the relevant Services Terms applicable to the Services selected.
- The parties to this Agreement are Starboard IT and the Customer as named in the Service Order Form.
- Acceptance of our Proposal or submission of a Service Order Form by the Customer to Starboard IT, whether in person, by email, by facsimile, through Starboard IT’s website or any other means, constitutes an irrevocable offer to purchase the Services set out in that Service Order Form, or in the absence of a Service Order Form, the Proposal and Services Terms. By submitting a Service Order Form to Starboard IT or instructing Starboard IT to proceed with the Services, the Customer agrees to the bound by the terms of this Agreement.
- Starboard IT will not be bound to provide any Services until it has agreed to do so by confirmation in writing to the Customer. Starboard IT may do so by email or electronic ticketing system.
- This Agreement sets out the terms of the provision of Services by Starboard IT and the receipt and use of the Services by the Customer and consists of each of the following documents which are to be read and apply collectively:
- the Proposal;
- Statement of Works;
- these Terms and Conditions;
- each Service Order Form accepted by Starboard IT;
- each Services Terms applicable to the Services;
- Credit Applications;
- any written notice issued in accordance with this Agreement; and
- any written agreement attached to, or subsequently incorporated into, any of the documents referred to in this clause.
- In the event of any inconsistency amongst the documents which make up the Agreement, the Service Order Form (if accepted by Starboard IT) will prevail to the extent of any inconsistency with the Proposal. The particular Services Terms and the Statement of Works will prevail over these Terms and Conditions to the extent of any inconsistency in respect of the particular terms applying to the Services selected.
- The Customer’s standard terms of engagement do not apply to this Agreement or to the provision of the Services unless otherwise agreed by Starboard IT in writing.
- If any of the Customer’s Representatives accept, receive or use any of the Services, the Customer will be deemed to have accepted the terms of this Agreement, including liability to pay Fees for those Services, even if the Customer did not authorise the acceptance, receipt or use of the Services.
- The Customer must pay all Fees charged for use of the Services by the Customer’s Representative regardless of whether such use was authorised by the Customer or not.
- THE SUPPLY
- Starboard IT will supply to the Customer, the Services in accordance with the terms of this Agreement.
- Subject to clause 2, the term of Supply for each of the Services is the period set out in each respective Service Order Form or the Services Terms to which the Services relate. Starboard IT may specify minimum terms of Supply for each Service at its discretion.
- At the end of each term for each Supply, the term for each Supply will automatically renew for a further term equal to the initial term for the relevant Supply unless either party gives the other not less than 30 days written notice, that the relevant Supply does not automatically renew.
- Where a Supply is automatically renewed pursuant to clause 2, then in addition to any additional Fees that Starboard IT may charge pursuant to clause 6, the Agreed Fees for that Supply will increase by an amount equal to the CPI.
- SERVICE FEES
- Fees will be charged in accordance with the Schedule of Fees & Charges unless otherwise agreed in writing by each party (including in Service Order Forms).
- Unless otherwise specified, all prices will be exclusive of GST and the Customer must pay an additional amount on account of any applicable GST.
- The Schedule of Fees & Charges may be varied at Starboard IT’s sole discretion and the updated Schedule of Fees & Charges will be communicated to the Customer or updated on Starboard IT’s website.
- Agreed Fees set out in an agreed Service Order Form will not be affected by variations to the Schedule of Fees & Charges unless otherwise agreed by the Customer.
- If Services Terms require Fees to be paid in advance, the Services will not be provided until the prepaid Fees are received and/or Starboard IT may suspend the provision of the Services if any prepaid Fees are not paid on time. Prepaid Fees are not refundable and may be applied to other amounts owing by the Customer, at Starboard IT’s sole discretion.
- The Customer must reimburse Starboard IT for any ‘out of pocket’ expenses we incur in providing the Services to you provided we communicate the incurrence of the expenses in advance in writing to you and we provide reasonable evidence of the incurrence of such expenses.
- Additional Fees may be charged by Starboard IT, and must be paid by the Customer, for:
- variations made pursuant to clauses 1 or 13.2;
- any additional or miscellaneous services or supplies provided by Starboard IT and used or received by the Customer’s Representatives at its request or through necessity;
- maintenance, repairs and replacements required to the Services as a result of any of the Customer’s Representatives’ acts or omissions;
- increases in the cost to Starboard IT of supplying the Services as a consequence of the:
- Customer providing incorrect information to Starboard IT (whether intentionally or not);
- Customer’s circumstances, orders or usage of the Services changing after the commencement of any Supply; or
- subject to clause 9, costs to Starboard IT in providing the Services being increased due to circumstances beyond Starboard IT’s reasonable control;
- any upgrades or changes to the Services by Starboard IT which are requested or required by or as a result of the Customer’s Representatives;
- reconnecting any Services that are suspended pursuant to clauses 8(b), 18.1(a), 18.1(c), 18.1(g) or 21; and
- any other reason permitted under this Agreement.
- Additional Fees will be charged at the rates set out in the Schedule of Fees & Charges as at the date the Additional Fees are incurred.
- Subject always to clause 10, if Additional Fees charged pursuant to clause 6.7(d)(iii) amount to more than 20% of the Agreed Fees applicable to the particular Supply to which the Additional Fees relate in any single term of Supply, then within 10 Business Day’s after Starboard IT gives notice to the Customer that those Additional Fees will be charged, the Customer may terminate this Agreement but only in respect to the relevant impacted Service by giving not less than 10 Business Day’s notice in writing to Starboard IT. If the Customer fails to terminate this Agreement in respect of the impacted Service within the specified time, the Customer will be deemed to have agreed to the Additional Fees charged pursuant to clause 6.7(d)(iii). During any termination notice period given by the Customer pursuant to this clause, the Customer must pay the Additional Fees.
- Notwithstanding anything to the contrary in this Agreement, where Starboard IT’s costs of providing any Services to the Customer are increased as a result of any Law or any Authority imposing any obligation on Starboard IT relating to the environment, or the impact of Starboard IT or the Services on the environment, such as environmental levies, emission schemes and other environmental imposts, the Customer is fully responsible for paying all of those increased costs and will have no right to terminate under clause 9.
- INVOICES & PAYMENTS
- Fees will be payable in any manner directed by Starboard IT but failing direction, monthly in advance by direct debit to the Customer’s nominated credit card.
- Subject to any applicable Law to the contrary which cannot be lawfully excluded, all payments made by the Customer for Services are non-refundable.
- Starboard IT will issue GST compliant invoices for Fees to the Customer monthly:
- in arrears for Usage Charges;
- in advance for all Equipment hire, installation, setup, recurring and other predictable charges; and
- at Starboard IT’s discretion for any other charge.
- The Customer must pay all invoices by the due date and without demand, deduction, withholding, set-off or counterclaim.
- All queries regarding an invoice must be raised by the Customer with Starboard IT within 7 days of the date of the invoice. If the Customer does not query the invoice within that time, the Customer will be deemed to have agreed to the invoice.
- If the Customer disputes an invoice, it must cooperate with Starboard IT in its enquiries into the dispute. Starboard IT will act reasonably in determining whether the disputed invoice should be revised. If Starboard IT determines that the invoice is correct, Starboard IT will give notice to the Customer. The Customer must pay the invoice within 7 days of Starboard IT’s notice.
- The Customer acknowledges that invoices issued by Starboard IT will include an amount which the Customer must pay for the GST in accordance with the terms of the invoice.
- In addition to any other right Starboard IT has under this Agreement:
- where any invoice remains unpaid after its due date, the Customer must pay 15% per annum interest on the outstanding amount, calculated and capitalised on a daily basis from the date payment became due until Starboard IT has received full payment of the overdue amount together with all accrued interest; and
- where any invoice remains unpaid after the due date, Starboard IT may, at its sole discretion, suspend or terminate the provision of Services and any other supplies or services to the Customer under this Agreement and without incurring any liability to the Customer for doing so under any circumstances.
- The Customer is responsible for all third party charges and expenses it incurs as a result of using the Services (i.e. Carrier fees) unless otherwise agreed by Starboard IT in writing. If we specify that our Services include third party charges we may increase our Fees in the event that such charges are increased.
- Except as otherwise set out in this Agreement, each party must pay its own costs in relation to preparing, seeking advice on and executing this Agreement and any document or action related to this Agreement.
- Where the Customer requires any amendments to this Agreement, either before or after this Agreement becomes binding, the Customer is responsible for Starboard IT’s costs on a full indemnity basis, including legal costs on a solicitor and own client basis, in relation to the negotiation and variation of this Agreement.
- The Customer will be fully liable for:
- Starboard IT’s reasonable costs and expenses incurred in connection with:
- anything Starboard IT does to enforce this Agreement or because the Customer breaches this Agreement; and
- the consideration and/or approval of anything requiring Starboard IT’s consent under this Agreement; and
- stamp duty payable in respect of this Agreement, if any.
- SECURITY FOR PERFORMANCE
- Starboard IT may at its discretion require the Customer to:
- prepay Fees;
- pay a deposit;
- provide a bank guarantee;
- provide directors’ guarantees;
- provide credit card details (with authority to charge to it); and
- put in place other credit and security arrangements at Starboard IT’ discretion, such as automatic direct debiting from the Customer’s debit, credit or other account.
- Until Starboard IT has received payment in full for all Equipment (hardware/loan equipment) supplied to the Customer:
- title to the Equipment shall remain with Starboard IT;
- the Equipment shall, so far as practicable, be kept separate from other goods on the Customer’s Premises, so as to be readily identifiable as the property of Starboard IT; and
- the Customer shall be at liberty to use the Equipment in the ordinary course of business unless it fails to make any payment to Starboard IT when it becomes due, default in the due performance or observance of any other obligation under this Agreement or suffers an Adverse Event. In any of those circumstances, Starboard IT may by notice in writing to the Customer cancel the Services and enter upon the Customer’s Premises to remove any of the Equipment to which Starboard IT has retained title and for this purpose the Customer shall afford Starboard IT all reasonable assistance to locate and take possession of the Equipment.
- The Customer acknowledges that by virtue of this Clause, Starboard IT has or will have a Security Interest in the Equipment and the proceeds from the sale of the Equipment for the purposes of the PPSA.
- The Customer acknowledges that Starboard IT may do anything reasonably necessary, including but not limited to registering its Security Interest on the personal property securities register established under the PPSA in order to perfect this Security Interest and comply with the requirements of the PPSA. The Customer agrees to do all things reasonably necessary to assist Starboard IT to achieve perfection of this Security Interest under the PPSA.
- The Customer and Starboard IT agree that, pursuant to section 115 of the PPSA, the following provisions in the PPSA do not apply in relation to this Security Interest to the extent, if any, mentioned (words in this provision have the same meaning as in the PPSA):
- section 117 (obligations secured by interests in personal property and land);
- section 118 (enforcing Security Interest in accordance with land law decisions), to the extent that it allows a secured party to give a notice to the grantor;
- section 125 (obligation to dispose of or retain collateral);
- section 129 (disposal by purchase);
- section 130 (notice of disposal), to the extent that it requires the secured party to give a notice to the grantor and other secured parties before disposal;
- paragraph 132(3)(d) (contents of statement of account after disposal);
- subsection 132(4) (statement of account if no disposal);
- section 142 (redemption of collateral); and
- section 143 (reinstatement of security agreement).
- The Customer waives its right to receive a verification statement under section 157 of the PPSA.
- CREDIT APPROVAL
- Provision of the Services is subject to Starboard IT being satisfied at all times that the Customer can and will pay the Fees.
- The Customer must provide Starboard IT with all information Starboard IT reasonably requires for the purpose of assessing the Customer’s credit rating.
- The Customer consents to Starboard IT obtaining from a credit reporting agency a credit report containing personal credit information about the Customer and to Starboard IT providing personal information about the Customer to a credit reporting agency for this purpose.
- Starboard IT may revoke any credit granted by it at any time by giving reasonable notice.
- OBLIGATIONS REGARDING USE OF SERVICES
- In receiving, possessing and using the Services, the Customer agrees that it must (where applicable to the particular Services received from Starboard IT):
- hold and comply with all relevant Authorities, licences, permits or authorisations it holds or is required to hold in order to receive or use the Services;
- take good and proper care of the Services including keeping them safe, secure and in suitable environmental conditions;
- not engage in any illegal or unauthorised conduct, including interfering with any other party’s property;
- use the Services in accordance with:
- the terms and conditions of this Agreement;
- industry standards applicable at the time of the Supply;
- all Laws;
- any directions or conditions of any Authority, licence, permit or authorisation it holds or is required to hold in order to receive and use the Services;
- proper purposes; and
- Starboard IT’s directions including security regulations and operating policies and procedures;
- maintain suitable insurance policies in accordance with clause 14;
- not, or attempt to, part with possession of, sell, transfer, grant a mortgage or any other security interest (including any lien) over, any part of the Services;
- not, or attempt to, move, rearrange, disconnect, remove, repair or otherwise deal with the Services without the prior written consent of Starboard IT;
- not, or attempt to, remove, vary, disguise, damage or obscure any marks on the Services which identify them as being the property of Starboard IT or any other party;
- not do, or attempt to do, anything which is intended to or might prevent Starboard IT from performing its obligations or exercising a right granted to it under this Agreement;
- provide Starboard IT, and any Authority, with full access to the Services at all reasonable times, during and after the term of this Agreement, for the purpose of:
- inspecting the Services and the Customer’s Premises in which they are being supplied or held, to ensure that the Customer is complying with its obligations under this Agreement;
- installing, removing, conducting repairs or maintaining the Services; and
- complying with any Law or direction of any Authority;
- immediately return the Services to Starboard IT upon request, so far as this is possible;
- not do, or permit to be done, any act which may or does damage Starboard IT’s reputation; and
- ensure that the Customer’s Representatives comply with all of the Customer’s obligations under this Agreement.
- The Customer acknowledges and agrees that:
- the Services will be provided during normal business hours (9.00am to 6.00pm Monday to Friday unless otherwise agreed) at the locations described in the Service Order Form;
- the Customer must provide reasonable access to the Customer’s Premises, Customer’s Equipment, personnel, information, network and Customer’s Data so that Starboard IT can perform the Services. Starboard IT is not responsible for any delays where you failure to comply with this Clause;
- the Customer must comply with Starboard IT’s lawful directions in relation to the Services;
- the Customer must provide a safe working environment for Starboard IT;
- the Customer must maintain regular and complete backups of its data;
- the Services may not be free from fault or interruption;
- the Services may be unavailable during Permitted Down Times;
- Starboard IT gives no warranties or guarantees as to the currency, availability, accuracy, security or quality of any information, equipment or third party service that the Customer accesses or receives using the Services;
- Starboard IT remains the legal and equitable owner of the Services at all times (so far as reasonably possible and except to the extent that a third party owns any part of the Services);
- regardless of whether Starboard IT is the legal and equitable owner of the Services, the Customer is not, and does not become, entitled to any interest in any part of the Services except to the extent set out in this Agreement;
- the Customer bears full risk:
- associated with the receipt and use of the Services pursuant to this Agreement; and
- of loss or damage to the Services from the time they are supplied or delivered to the Customer until they are safely returned to Starboard IT (where applicable) in accordance with this Agreement, and the Customer fully indemnifies Starboard IT in respect of any such loss or damage, except to the extent that any loss or damage is caused by any negligence of Starboard IT. The Customer must immediately notify Starboard IT of any loss or damage to the Services;
- the Customer is fully responsible for selecting, specifying and ordering the Services required by it and Starboard IT will not under any circumstances be liable for the Customer’s failure to properly and sufficiently select, specify or order Services;
- the Customer is responsible for ensuring the performance and compliance of any transitioning service provider or third party service providers with whom Starboard IT’s Services must integrate to the extent such third parties must provide access, information, services or support to enable the provision of the Services by Starboard IT;
- the Customer is fully liable for all acts and omissions of the Customer’s Representatives whether done with the authority of the Customer or not;
- Starboard IT may do anything which the Customer is required to do under this Agreement but has failed to do, or has failed to do to the reasonable satisfaction of Starboard IT, and any costs incurred by Starboard IT in taking such action shall be recoverable from the Customer as a liquidated debt due and owing; and
- complaints of violation of any of Starboard IT’ rules, policies and procedures by any party may be made to Starboard IT by the Customer.
- In the event that Starboard IT creates or licenses software to the Customer that it owns:
- Starboard IT warrants that such software will operate substantially in line with the specifications of such software as supplied by Starboard IT during the Warranty Period;
- provided that the Customer is not in breach of this Agreement at the time of the warranty claim, we will use reasonable efforts to correct defects (meaning reproducible failures in the software’s core functionality) with the software which arise during the Warranty Period provided that you notify us during the Warranty Period of such defects and the defects have not been caused or contributed to by the Customer;
- we will not repair defects in the software where it has been modified, misused, used in conjunction with other software or equipment not supplied by Starboard IT or where the defect is due to the Customers actions/inactions including a change in the physical environment in which the software is used; and
- Starboard IT will not repair defects in the software outside the Warranty Period, unless the Customer pays for such repair work, subject to requirements under Laws.
- By Agreement – The Customer and Starboard IT may vary the Services from time to time by agreement in writing.
- By Starboard IT – Starboard IT may vary the Services, any of its rules, policies and procedures and the terms of this Agreement from time to time at its sole discretion by giving the Customer 10 Business Days’ notice in writing and the Customer agrees to be bound by any such variations.
- If variations made pursuant to clause 2:
- materially and adversely change the Services ordered by the Customer;
- materially and adversely affect the Customer’s rights under this Agreement; or
- subject to Starboard IT’s right to charge Additional Fees pursuant to clause 7(d)(iii) and 6.10, increase the Fees payable by the Customer for the varied Services by more than 20% in any single term of Supply;
the Customer may terminate this Agreement in respect of the relevant impacted Service only by notice in writing to Starboard IT within 10 Business Days of being notified of the variation pursuant to clause 13.2. If the Customer does not terminate this Agreement in respect of the relevant impacted Service within the specified time, the Customer will be deemed to have agreed to the variation.
- The Customer must maintain at its own expense all insurance policies with respect to the receipt, use and on-supply (if applicable) of the Services, the Customer’s Data, the Customer’s Equipment, the Customer’s Representatives and third parties as required by Law and which a prudent person engaging in business or activities in which the Customer engages in connection with this Agreement for the risks and limits of cover associated with the Services specified in each Service Order Form including policies covering:
- commercial and product liability;
- public risk;
- property, casualty, third party property;
- business interruption; and
- loss of utility, rent and profit.
- In respect of all policies of insurance which the Customer must maintain under this Agreement, the Customer must obtain those policies with an insurer approved by Starboard IT (such approval will not be unreasonably withheld):
- for amounts;
- to cover risks;
- with only those conditions, endorsements and exclusions,
reasonably acceptable to or required by Starboard IT from time to time and the Customer must give Starboard IT satisfactory evidence of compliance with its obligations under this Clause 14, when asked to do so.
- The Customer must not do anything that may affect rights under any insurance policy or which may increase an insurance premium payable in connection with the Facilities or any property in them which may be maintained by Starboard IT.
- The Customer must pay to its insurer all premiums and charges payable in respect of any insurance policy effected by the Customer pursuant to this Agreement on or before the due date for payment.
- The Customer must pay to Starboard IT on demand all extra or excess premiums and other charges for insurances in connection with the Facilities, or any property in the Facilities, which Starboard IT becomes liable to pay to Starboard IT’s insurer on account of extra risk caused by any act or omission of the Customer’s Representatives, or by reason of the Customer’s default under the provisions of this Agreement.
- The Customer will not have any interest in or be entitled to any benefit under any insurance policy effected by Starboard IT unless the Customer is expressly named in such policy.
- AUTHORISED CONTACT
- The Customer must appoint an Authorised Contact, or more than one, by notice in writing to Starboard IT. The Authorised Contact will be the Customer’s primary point of contact for dealings with Starboard IT under this Agreement.
- The Authorised Contact acts as the Customer’s agent and is hereby irrevocably authorised to enter into binding agreements and act for and on behalf of the Customer.
- Any direction, instruction, notice, approval or other communication made or given to or by an Authorised Contact to or by Starboard IT will be deemed to have been made by or given to or by the Customer, as the case may be.
- The Customer is fully responsible for all acts, omissions and defaults of the Authorised Contact.
- The initial Authorised Contact will be the person named as the contact in the relevant Service Order Form.
- The Customer must notify Starboard IT in writing of any changes to the contact details of the Authorised Contact and may replace an Authorised Contact from time to time by notice in writing to Starboard IT by setting out full contact details of the new Authorised Contact. Starboard IT may provide an online facility which enables the Customer to update the Authorised Contact information pursuant to this clause.
- Starboard IT will not be responsible to the Customer under any circumstances for complying with directions, instructions, notices, approvals or other communications made by a notified Authorised Contact, including in the event that:
- the Authorised Contact ceases to be authorised by the Customer to make those directions, instructions, notices, approvals or other communications; and
- the Customer fails to notify Starboard IT in writing of the change of authorisation of the relevant Authorised Contact pursuant to clause 6.
- INTELLECTUAL PROPERTY
- The Customer acknowledges and agrees that:
- it acquires no right, title or interest in any Intellectual Property owned or licensed by Starboard IT, or used or supplied by Starboard IT to the Customer or any other party during the operation of this Agreement, at any time regardless of whether the Intellectual Property was created prior to or during the term of this Agreement;
- nothing in this Agreement has the effect of granting, transferring to or vesting in the Customer any right, title or interest in such Intellectual Property;
- it must do all things reasonably required by Starboard IT, and to procure that the Customer’s Representatives do so also, to enable Starboard IT to obtain, defend and enforce its rights in the Intellectual Property; and
- it must not do or fail to do any act or thing which would or might prejudice Starboard IT’s rights under this clause.
- Exclusive ownership of and title to any new Intellectual Property created by a party during the operation of this Agreement will immediately and directly vest in the party who created it upon its coming into existence.
- Where any Intellectual Property provided or accessed as part of the Services is not owned by Starboard IT, Starboard IT will use best endeavours to ensure that it or the Customer is sufficiently licensed to use such Intellectual Property.
- SERVICE LEVELS & REBATES
- Starboard IT agrees to use reasonable endeavours to achieve the Service Levels when providing the Services.
- Notwithstanding anything to the contrary in this Agreement, Service Levels do not apply where:
- the Customer has provided incorrect information to Starboard IT, or fails to notify Starboard IT of any changes to relevant information about the operating environment, system configuration or any other assumption or information set out in the relevant Service Order Form which is reasonably capable of affecting Starboard IT’s ability to achieve the Service Levels;
- there is a failure, breakdown, interruption, defect or fault to or in any equipment, telecommunications network or system, infrastructure, cabling or other service which is caused or contributed to by the Customer’s Representatives or an event which is not reasonably within Starboard IT’s control;
- the Customer has failed to substantially comply with its obligations under this Agreement;
- an invoice issued to the Customer by Starboard IT under this Agreement is unpaid and overdue;
- they are not achieved due to a Permitted Down Time; or
- a provision of this Agreement so provides.
- Subject to clause 5, where Service Levels are not met Starboard IT will provide the Customer with a Service Rebate which will be calculated in accordance with the formula set out in the applicable Services Terms.
- For the purpose of determining whether Service Levels have been met, temperature, humidity and power will only be measured by operating sensors installed by Starboard IT throughout the Facilities.
- If the Customer considers that it is entitled to a Service Rebate, it must, within 10 days of the date on which the failure to meet the Service Levels occurred, or is said to have occurred, request the Service Rebate in writing from Starboard IT. Such request must set out the reasons for requesting the Service Rebate.
- If the Customer fails to request the Service Rebate within 10 days as required by clause 5, the Customer will be deemed to have waived its right to the Service Rebate without further notice by Starboard IT.
- Upon receipt of a request from the Customer to provide a Service Rebate pursuant to clause 5 then subject to:
- Any provision in this Agreement which provides that the Service Level is not applicable, or that the Service Rebate is not payable; and
- confirmation by Starboard IT (in accordance with clause 4 and acting in good faith) that the reasons set out by the Customer under clause 17.5 entitle the Customer to a Service Rebate,
Starboard IT will credit the Service Rebate to the Customer’s account.
- Service Rebates will not be given by Starboard IT as cash and are not redeemable for cash.
- For the avoidance of doubt, a failure to meet a Service Level is not a breach of this Agreement.
- Subject to any applicable Laws to the contrary which cannot be excluded, the provision of Service Rebates is:
- Starboard IT’s only liability to the Customer; and
- the Customer’s sole and exclusive remedy,
in respect of any failure by Starboard IT to meet the Service Levels.
- If a Service Rebate is applicable then:
- the Service Rebate will be proportionate to the extent that the relevant Supply fails to meet the Service Levels;
- the Service Rebate will not exceed in any calendar month 50% of the total monthly Fees payable in that month for the particular Services to which the Service Rebate is applicable;
- if an incident occurs in a calendar month and continues into the next calendar month, the Service Rebate will be calculated for the whole period in which in the Service Levels are not maintained but will be subject to the limits of the calendar month in which the incident first occurred as set out in clause 11(b); and
- if an event or series of events give rise to the ability to claim more than one Service Rebate for the failure to meet more than one Service Level, the Customer’s entitlement to the Service Rebates is limited to receiving only one Service Rebate.
- PERMITTED DOWN TIMES
- Starboard IT may suspend or interrupt any of the Services, and will not be liable to any extent (including Service Rebates) if:
- the suspension or interruption is caused by any act or omission of the Customer’s Representatives or the Customer’s Equipment (including where a circuit breaker is activated);
- the suspension or interruption is caused by any act or omission of any third party, or any event, which is out of the reasonable control of Starboard IT including any ISP or local problems (such as Browser or DNS caching), DoS, DDoS attacks, exploits or hacking;
- Starboard IT is prevented from reinstating the Services due to any act or omission of the Customer’s Representatives or any third party whom is out of the reasonable control of Starboard IT;
- the interruption continues for five (5) minutes or less in any calendar month period;
- the suspension or interruption is an agreed period of shut-down or outage;
- the interruption is due to any requirement of any Authority with jurisdiction over the Services or an event described in clause 30; or
- a period of shut-down, including any refusal, suspension or termination of the Supply, pursuant to and notified in accordance with, the terms of this Agreement.
- Without limiting the generality of clause 1 and for the avoidance of doubt, clause 18.1 applies to interruptions to the Services caused by power, temperature and humidity control interruptions and failures.
- REGULATORY MATTERS
- The Customer:
- irrevocably consents to Starboard IT disclosing information about the Customer’s account to the extent required by an Authority without notifying the Customer;
- acknowledges that Starboard IT may be required by Law to intercept various communications made by or to the Customer’s Representatives through the Services and may monitor communications and usage of the Services as required by Law; and
- must promptly comply with any directions of any Authority in connection with the Services.
- ASSIGNMENT BY STARBOARD IT
- If Starboard IT sells or transfers its business or any of the Services during the term of this Agreement, Starboard IT may assign its right, title and interest in this Agreement to the purchaser or transferee by giving written notice to the Customer and the Customer agrees that in such case, the Customer continues to be fully bound by this Agreement.
- SUSPENSION & TERMINATION
- Starboard IT may in its sole discretion refuse, suspend or terminate the provision of Services and or this Agreement (at Starboard IT’s discretion) by giving reasonable notice to the Customer in writing if:
- the Customer fails, refuses or is unable to comply with any of its obligations under this Agreement;
- the Customer or any of the Customer’s Representatives encourage, assist, abet or incite any other party to breach any of the Customer’s obligations under this Agreement;
- in relation to the Customer, there is an Adverse Event;
- Starboard IT is unable to provide the Services in accordance with a Service Order Form or this Agreement for reasons beyond Starboard IT’s reasonable control;
- Starboard IT considers it necessary in the circumstances provided that it is acting in good faith; or
- the Customer fails to pay an invoice by the invoice due date.
- Starboard IT will give as much notice to the Customer as is reasonable in the circumstances of any suspension to or termination pursuant to clause 1 and will endeavour to minimise any suspension as it considers appropriate in the circumstances.
- Either party may terminate this Agreement or a Supply by agreement in writing, or immediately by written notice to the other if:
- the other party commits a material breach of its obligations under this Agreement, or breaches an essential term of this Agreement, which is not capable of being remedied or if able to be remedied, which that party fails to remedy within 14 days of receiving notice in writing from the party not in breach specifying the breach and requiring it to be remedied;
- if clause 2 so provides;
- the other party is the subject of an Adverse Event; or
- Subject to clause 19.4, destruction or damage to all or a substantial part of the Services renders the Services unusable or inoperable for more than 7 consecutive days.
- Clause 3(d) does not apply where the damage or destruction was caused by Force Majeure (see clause 30) or it is the Customer who wishes to terminate and the damage or destructions was caused or contributed to by the Customer.
- For the purposes of clause 3(a), a breach of clause 3.7, 7.4, 8.4, 11.1, 14.1, 14.2, 14.3 or 24 constitutes a material breach of this Agreement.
- Expiry or termination of this Agreement or a Supply will be without prejudice to any rights either party has which accrued prior to the date of expiry or termination.
- Starboard IT will not be liable for, or in relation to, any loss or damage incurred by the Customer in relation to the suspension or termination of this Agreement or the Services by Starboard IT in accordance with this Agreement.
- OBLIGATIONS UPON EXPIRY OR TERMINATION
- Upon expiry or termination of this Agreement or a Supply, unless otherwise agreed in writing, each party must, at its own expense, return each of the following to the rightful owner, or destroy them in accordance with instructions given by the owner:
- any Intellectual Property;
- any Confidential Information;
- any Personal Information; and
- subject to any lien or security pursuant to clause 2, any Services, Equipment or tools,
in their possession or control as at the date of expiry or termination.
- Upon expiry or termination of this Agreement or a Supply, Starboard IT may, in addition to any other rights it has under this Agreement:
- issue a final invoice for all Supplies made by Starboard IT to the Customer for Services which have not been invoiced for or paid;
- demand immediate payment of:
- any outstanding Fees; and
- the balance Fees payable for Services;
- charge the Customer a termination fee;
- retain a pro rated portion of any moneys paid to it in advance by the Customer to pay for supplies made to the Customer, or which would have been supplied to the Customer had the Supply or this Agreement not been terminated, prior to the expiry or termination;
- enter the Customer’s Premises on reasonable notice and take possession of and/or retrieve any of the Services that are in the possession, custody or control of the Customer and the Customer must provide reasonable access to Starboard IT to the Customer’s Premises for such purpose; and
- take any legal action against the Customer which it is entitled to take,
- and the Customer hereby irrevocably authorises Starboard IT to do so.
- If the Customer wishes to make a formal complaint about a Service, Starboard IT or any of Starboard IT’s third party suppliers, the Customer may lodge a complaint to Starboard IT in writing and in accordance with any complaints policy that Starboard IT has from time to time. Starboard IT may require evidence from the Customer, in a form satisfactory to Starboard IT at its sole discretion, to substantiate any claims made by the Customer. Starboard IT may deal with any complaints made pursuant to this clause in any manner it determines in its sole discretion.
- Each party acknowledges that in the course of performing its obligations under this Agreement it may receive Confidential Information. Each party agrees not to use or disclose any Confidential Information except:
- with the consent of the party to whom the Confidential Information belongs or relates;
- in the proper performance of its obligations under this Agreement;
- where required by Law or to obtain professional advice in relation to this Agreement; or
- where the Confidential Information enters the public domain (other than by a breach of this clause 24 by the other party or a third party holding the Confidential Information discloses it without authority to do so).
- The Customer acknowledges that the contents of this Agreement constitute commercially sensitive and confidential information. Except to the extent that any part of this Agreement is available to the public on Starboard IT’s website, the Customer agrees that it must not disclose the contents of this Agreement to any party without Starboard IT’s prior written consent, unless legally compelled to do so, and then only after notifying Starboard IT of that legal requirement. This applies to all documents incorporated by reference.
- Each party must ensure that its employees, subcontractors, agents and representatives comply with its obligations under this clause.
- The Customer acknowledges that a breach of this clause may cause Starboard IT irreparable damage for which monetary damages would not be an adequate remedy. Accordingly, in addition to any other remedies available at law or in equity, Starboard IT may seek specific performance or injunctive relief against any breach or threatened breach by the Customer’s Representatives.
- This clause 24 continues in full force and effect after the expiry or earlier termination of this Agreement or a Supply.
- Each party warrants and represents to the other on a continuing basis that:
- it has full legal capacity, power and authority, and has taken all necessary action, to enter into this Agreement;
- it is able and willing to perform the obligations and complete the transactions contemplated by this Agreement;
- subject to clauses 1 and 3.6, upon the written acceptance by Starboard IT of a Service Order Form submitted by the Customer, the obligations under this Agreement will be valid, binding and enforceable; and
- unless otherwise stated, it enters into this Agreement on its own behalf and not as trustee of any trust or as an attorney.
- The Customer fully indemnifies Starboard IT, and keeps Starboard IT fully indemnified, from and against any losses, damages, costs and/or expenses (including legal costs assessed on a solicitor and own client basis), claims, demands, actions, suits, proceedings and liabilities which Starboard IT, and any other party, may suffer or incur arising out of or in connection with the Customer’s Representatives’:
- receipt or use of the Services;
- receipt or use of the Customer’s Equipment;
- acts and omissions in connection with the Services or this Agreement;
- breach of warranties contained in this Agreement; and
- breach of any of the terms and conditions of this Agreement.
- LIMITED LIABILITY
- Subject to clauses 10 and 27.3, the maximum aggregate liability of Starboard IT to the Customer in respect of:
- any one claim or series of connected claims in respect of a Service Order Form is limited to the Agreed Fees paid or payable pursuant to the relevant Service Order Form in the six (6) months preceding the occurrence of the event giving rise to such claim or series of connected claims; and
- all claims made in any twelve month period in respect of a Service Order Form, is limited to half of the Agreed Fees paid or payable pursuant to the relevant Service Order Form in the twelve (12) months prior to the occurrence of the last event giving rise to such claim.
- These limitations are to be read and construed independently of one another and if, on application of the limitations, any ambiguity exists, the limitation resulting in the lesser liability for Starboard IT applies.
- Starboard IT will not be liable under or in connection with this Agreement for any loss of income, loss of actual or anticipated profits, loss of business, loss of anticipated savings, loss of damage to or corruption of the Customer’s Data, loss of goodwill, loss of reputation or for any special indirect, incidental or consequential loss or damage of any kind in each case howsoever arising, whether such loss or damage was foreseeable in the contemplation of the parties and whether arising in or for breach of contract, tort (including negligence), breach of statutory duty, indemnity or otherwise.
- Nothing in this clause 27 excludes or in any way limits the liability of Starboard IT to the Customer to the extent that same may not be excluded or limited as a matter of Law.
- Starboard IT has no liability to the Customer, the Customer’s Representatives or any other person, for:
- acts and omissions of, or any faults or defect in the Services caused by any third party;
- faults or defects in Services which are caused by the Customer’s Representatives including any failure to comply with the Customer’s obligations under this Agreement; and
- faults or defects that arise in telecommunication systems or other services provided to the Customer by a third party (even if they are connected and used by Starboard IT during the operation of this Agreement with Starboard IT’ consent).
- The Customer is fully liable to and indemnifies Starboard IT against all Loss, including as a result of any third party claims against Starboard IT, arising out of:
- the use or attempted use of the Services or any equipment connected to the Services (whether legally or not) by the Customer’s Representatives or any other person;
- any data, information or other materials transmitted, downloaded or stored by the Customer’s Representatives using the Services; and
- the Customer’s Equipment or any acts, omissions or breaches of this Agreement by the Customer’s Representatives.
- All terms implied in or incorporated into this Agreement, whether by statute, common law or otherwise, are hereby excluded to the maximum extent permitted by law, including without limitation any condition, warranty or other term in relation to merchantability and fitness for a particular purpose.
- The Customer is solely responsible for ensuring, and must satisfy itself, that the Services selected and ordered by it meet their needs. Starboard IT does not select or order Services on behalf of the Customer and does not warrant that any of the Services ordered by the Customer will be suitable for the purpose for which the Customer intends to use them or that the Services will be uninterrupted, un-delayed, without faults or error-free.
- Where any Law implies into this Agreement any condition or warranty which cannot be excluded, Starboard IT’s liability for any breach of the condition or warranty is limited to the following (at Starboard IT’s option):
- In relation to the supply of services:
- the resupply of the services; or
- the reasonable cost of having the services resupplied; or
- In the case of the supply of goods:
- the replacement of the goods or the supply of equivalent goods;
- the repair of any defect in the goods; or
- the reasonable cost of replacement of the goods,
and Starboard IT’s liability will be reduced to the extent that it arises as a result of the wilful or negligent acts and omissions of the Customer’s Representatives and or any breach of the Customer’s obligations under this Agreement this Agreement by the Representatives.
- DISPUTE RESOLUTION
- In the event of a dispute between the parties about anything under this Agreement, the complainant must notify the other party of the dispute by giving the other party written notice specifying:
- the nature of the dispute;
- the outcome required by the complainant; and
- the action the complainant believes will resolve the dispute.
- The parties must attempt to resolve the dispute by mutual negotiation acting in good faith.
- In the event that the parties are unable to reach a resolution of the dispute within 10 Business Days after the date of the complainant’s notice, the parties may seek to resolve the dispute through any avenue available at law.
- During a dispute, each party must continue to perform its obligations under this Agreement.
- Nothing in clause 29 restricts or limits the right of either party to obtain interlocutory relief or to immediately terminate this Agreement where this Agreement provides such a right.
- FORCE MAJEURE
- Each party hereby releases the other from any claim, liability or responsibility concerning a party’s failure to perform any obligations under this Agreement where such failure is due to a Force Majeure.
- Where a party is prevented from performing its obligations under this Agreement for 60 continuous days, either party may terminate this Agreement by notice in writing to the other party.
- Starboard IT may elect, or be required by Law, to file or comply with any tariffs, imposts, rules or regulations established by an Authority regarding supplies made by Starboard IT under this Agreement. In the event that such tariffs, imposts, rules or regulations are established then the terms set forth in the applicable tariffs, imposts, rules or regulations will govern Starboard IT’s delivery of, and the Customer’s receipt, consumption and use of, the Services.
- Each party warrants to the other that any Personal Information it has provided which is relevant to entering into this Agreement has been collected and provided in accordance with the Privacy Act 1998 (Cth);
- In relation to any Personal Information disclosed by a party, the recipient must comply with all privacy laws in relation to the use, storage and disclosure of that Personal Information.
- Any notice to be given under this Agreement must be in writing and must be delivered or sent by post, facsimile or email to the registered office of the party to whom it is sent, the Authorised Contact or such other addresses, facsimile numbers and email addresses as notified in writing.
- The party to whom a notice is sent will be deemed to have received the notice:
- if it is delivered, when it is left at the relevant address;
- if sent by post, 2 business days after it has been posted;
- if sent by facsimile, upon the sender receiving a transmission report from its fax machine indicating that the fax was sent successfully; or
- if sent by email, either:
- twenty-four (24) hours after the sender sends the email if no bounce or failure delivery report is received by the sender from the email program; or
- when the sender receives a receipt notification if one is sent by the receiver.
- If a party gives the other party 3 Business Days’ notice in writing of a change of its address, fax number or email address, then any notice, consent, information, application or request is only given or made to that other party if it is delivered, posted, faxed or emailed to the notified address, fax number or email address, as the case may be.
- ENTIRE AGREEMENT
- This Agreement constitutes the full and complete understanding between the parties with respect to the subject matter of this Agreement. There is no other oral understanding, agreement, warranty or representation whether express or implied in any way extending, defining or otherwise relating to the provisions of this Agreement binding on the parties with respect to any of the matters set out in, or which induced them to enter into, this Agreement.
- Clause 1 operates and remains in full force and effect, except in the case of fraud by another party to this Agreement. No other fact, matter or circumstance interferes with or in any way derogates from the operation and effect of clause 34.1.
- Where there is any doubt as to the meaning of an expression or provision in this Agreement, the parties agree, and it is their intention that, the interpretation intended by parties is the interpretation which favours Starboard IT and in the event of a dispute, the interpretation that favours Starboard IT applies.
- IP ADDRESSES
- Starboard IT may provide the Customer with IP Addresses during a Supply. Any IP Addresses that are provided to the Customer are licensed to the Customer and remain Starboard IT’s property at all times both during and after the expiration or termination of the Supply.
- At the expiration or termination of the relevant Supply, the Customer must cease using IP Addresses provided pursuant to this Agreement and will have no entitlement to take or use same.
- The Customer may not without Starboard IT’ prior written consent (which will not be unreasonably withheld or delayed) transfer, novate, assign or sub-license this Agreement or any rights, interest or obligations contained in it.
- This Agreement, and any part of it, may be executed in 2 or more counterparts, each of which will be deemed an original, and all of which together will constitute one and the same document.
- Each party must from time to time at its own cost and expense do all things necessary to give effect to the transactions or agreements contemplated by this Agreement.
- This Agreement is governed by the laws of New South Wales and the parties irrevocably submit to the non-exclusive jurisdiction of the New South Wales courts. The parties will not object to the exercise of jurisdiction by those Courts on any basis.
- If a provision (or part) of this Agreement can be read in more than one way, then subject to clause 3, it must be read in the way which makes it legal, valid and enforceable. If any provision (or part) is illegal, unenforceable or invalid, that provision (or part) is to be treated as removed from this document and the remaining legal, enforceable and valid provisions are not affected.
- Provisions of this Agreement which are expressed to survive the expiry or termination of this Agreement or the nature or context of the provisions contemplate that they are to survive such expiry or termination, remain in full force and effect after the expiry or termination.
- The parties acknowledge and agree that nothing in this Agreement creates or is intended to create any fiduciary relationship between the parties. No form of joint venture, agency, partnership, trust or other comparable relationship of trust is created between the parties as a result of this Agreement or the acts contemplated under it.
- Nothing in this Agreement creates a relationship of landlord and tenant, between Starboard IT and the Customer, nor does it confer upon the Customer any right or interest in the land by way of occupation rights, licence, easement, rights of way or otherwise except expressly provided in this Agreement.
- No variation of this Agreement will be of any force or effect unless it is in writing and signed by the parties to this Agreement.
- A party’s failure or delay to pursue remedies for a default by the other party does not amount to a waiver of any obligation of, or breach of obligation by, another party. A waiver by a party is only effective if it is in writing and only applies in respect of the particular obligation or breach which is specified in it.
- SUPERIOR RIGHTS
- This Agreement is subject to the terms and conditions of any underlying ground or facilities lease or licence or other superior rights under which Starboard IT has acquired an interest in the Facilities or any of Starboard IT’s Equipment. Starboard IT may terminate this Agreement if Starboard IT ceases to have a right to use the Facilities.
- The Customer’s rights are conditional upon the owner of the relevant Facilities (if not Starboard IT) giving and continuing its consent, if required, to the grant and continuation of the Customer’s rights under this Agreement.
- Neither party will solicit or entice away the other’s employees, agents or contractors during the term of this Agreement or employ or seek to employ them within 6 months after the expiry or termination of this Agreement or of a Supply, whichever is the later.
- SPECIAL CONDITIONS
- The Special Conditions shall apply to this Agreement if and only Starboard IT has agreed to them in writing.
- To the extent of any consistency between the Special Conditions and the terms of this Agreement, the Special Conditions shall prevail.
- DEFINITIONS – GLOSSARY OF TERMS
When used in this Agreement the following terms have the meanings beside them (unless the context otherwise requires):
Additional Fees means fees in addition to the Agreed Fees which Starboard IT may charge the Customer to cover miscellaneous, additional, increased, unusual or unexpected costs incurred by Starboard IT in supplying the Services or any other service to the Customer.
Adverse Event in relation to a party means any of the following:
(a) a liquidator, provisional liquidator, receiver, manager, receiver and manager, administrator, controller (as defined in the Corporations Act 2001 (Cth)) or similar officer or trustee in bankruptcy is appointed in respect of that party or any of its assets or that party is otherwise unable to pay its debts when they fall due;
(b) enters or proposes to enter into any form of agreement, composition, arrangement with or assignment for the benefit of any of its creditors without the consent of the other party;
(c) A notice under section 601AB(3) of the Corporations Act 2001 (Cth) is given in respect of the party;
(d) ceasing, or indicating that it is about to cease, carrying on its business;
(e) anything happening under any Law or in any jurisdiction that is similar to, or has a similar effect to, any of the events listed above;
(f) engages in fraudulent, misleading and deceptive or illegal conduct;
(g) engages in inappropriate use or supply of the Services;
(h) breaches any applicable Law, licence, permit, authorisation or directive of any competent authority relating to the use or supply of the Services;
(i) any applicable Authority, Laws, rules, regulations, authorities or decision of a court prohibits the use or provision of the Services;
(j) any consent or permit required for the use or provision of the Services is rejected or cancelled, lapses or is otherwise terminated and no further replacement, consent or permit is obtained within 7 days;
(k) the cancellation, termination or expiration of any lease or licence of premises from or in which the Services are supplied, used or located and no alternative premises can be secured within 7 days of the cancellation, termination or expiration; and
(l) materially exceeds its agreed credit limit in relation to this Agreement.
Agreed Fees means the fees and charges which Starboard IT and the Customer have agreed upon in writing for the provision of the Services.
Agreement means collectively all of the documents described in clause 3.3.
Authority means each government, statutory or regulatory authority (whether local, state or federal) having any authority or jurisdiction in relation to the Services, Starboard IT or the Customer including, but not limited to, fire departments, police and emergency services authorities.
Authorised Contact means a representative or a number of representatives appointed by the Customer from time to time to be a primary and authorised point of contact to act on behalf of the Customer in connection with this Agreement.
Business Day means a day on which banks (as defined in the Banking Act 1959 (Cth)) are open for general banking business in Sydney, New South Wales excluding Saturdays, Sundays and Public Holidays.
Carrier has the meaning given to that term in the Telecommunications Act, 1997 (Cth).
Co-Location Space means a designated space or area in the Facilities which Starboard IT may grant to customers from time to time for various uses.
Confidential Information means all information of any kind which is confidential in nature concerning a party, a party’s business, any related entity, any product, item or service or product supplied by those parties or information which is not or is not permitted to be in the public domain, whether written or oral, recorded, stored or transmitted by electronic, magnetic, electromagnetic or other form, means or process, and whether translated from the original form, copied, modified, updated, recompiled or otherwise altered.
CPI means for a particular date, the percentage increase in the Brisbane (All Groups) consumer price index (or the index officially substituted for it) for the period from the last quarter published before the later of:
(a) the date of this Agreement; or
(b) the commencement date of the most recent term of Supply in respect of which the Fees are being increased,
to the last quarter published before the particular date.
Credit Application means a credit application form which Starboard IT requires the Customer to complete setting out information about the Customer relevant to Starboard IT establishing the Customer’s credit rating.
Customer’s Data means information, records, data, whether electronic, written or otherwise which is owned, in possession or control of the Customer from time to time.
Customer’s Equipment means any equipment owned by the Customer and excludes the Equipment.
Customer’s Premises means any premises owned, leased, licensed or otherwise used or in the possession or control of the Customer.
Customer’s Representatives means the Customer and any of its employees, agents, representatives, contractors, associates, invitees, the Customer’s clients, Licensees, the Authorised Contact and any other person who acts for or on behalf of the Customer, who accepts, receives or uses the Services or any part of the Services regardless of whether or not they do so with the consent of the Customer.
Equipment means the equipment owned by Starboard IT or which Starboard IT is legally entitled to lease, license, lend, hire or otherwise provide to the Customer for use in connection with this Agreement.
Facilities means any facility, leased or licensed space, premises, site or location or any part thereof wheresoever situated which may be owned, leased, licensed, in possession of or under the control of Starboard IT, including Co-Location Space.
Fees means Agreed Fees and Additional Fees which the Customer must pay for the provision, receipt and use of the Services and any other services or supplies provided pursuant to this Agreement.
Force Majeure means in relation to a person, a strike, lock out, riot, industrial action, fire, storm, tempest, act of God, material shortage, government, Law, regulation, direction of any Authority or requirement or any other similar cause beyond the reasonable control of the relevant person.
Intellectual Property means all intellectual property of any nature including, without limitation, all documents, data, drawings, specifications, articles, computer programs, object code, source code, network designs, notes, sketches, drawings, reports, inventions, improvements, modification, discoveries, tools, scripts, trademarks, patents, copyrights, ideas, strategies, methodologies processes, manuals, concepts, policies or other items relating thereto, whether oral or written, whether contained in memoranda, correspondence or otherwise and including reports, advices and other materials.
Internet means a global system of computer networks which are interconnected and which can be used by persons, including privately and publicly, for information transferring and sharing among other things.
IP Addresses means a unique identifying number that is assigned to devices participating in a network utilising the Internet Protocol for communication between its nodes.
Law means the provisions of any statute, rule, regulation, proclamation, ordinance or by-law, present or future, whether state, federal or otherwise.
Licensee means a third party to whom the Customer resells, supplies, contracts to supply or sublicenses any Services pursuant a right in this Agreement.
Loss means costs, loss, claims, damage, liability or expenses (including all legal costs on a full indemnity basis, fees and expenses).
Permitted Down Time means a period of time where an interruption or suspension of a Supply is permitted under this Agreement.
Personal Information means information (including information forming part of a database), whether true or not, and whether recorded in writing or spoken, about an individual whose identity is apparent, or can reasonably be ascertained from the information.
Proposal means the written proposal provided by Starboard IT in respect of Services it offers to provide to the Customer.
Schedule of Fees & Charges means Starboard IT’s standard Schedule of Fees & Charges as set out in the Services Order Form or Services Terms or otherwise communicated by Starboard IT, as amended from time to time setting out its standard fees for Services.
Security Interest has the same meaning as set out in the Personal Properties Securities Act 2009 and associated regulations any substitute legislation and regulations and includes any mortgage, charge, lien, pledge, hypothecation, bill of sale, title retention arrangement, trust, power or other arrangement or transaction which, in substance, is an interest in property which secures payment or performance of an obligation.
Service Levels means the different levels of service agreed by Starboard IT as being applicable to the provision of particular Services and which, if applicable, are set out in the Services Terms or the Statement of Works.
Service Order Forms means order forms completed by the Customer and submitted to Starboard IT from time to time setting out the Customer’s requirements for the Services, or accepting or varying the Proposal, whether in hard copy, electronic copy or an online application.
Service Rebates means credits allocated to the Customer’s account in accordance with clause 17 as a result of Starboard IT failing to meet Service Levels.
Services means the provision of Starboard IT’s services, being those described in clause 1.1 and otherwise communicated, which Starboard IT supplies to the Customer’s Representatives from time to time pursuant to this Agreement and any part of those Supplies including, but not limited to, power, storage, memory allocations, temperature and humidity control, as set out in each Service Order Form, and other related supplies or services which Starboard IT may offer from time to time.
Services Terms means the specific terms or agreements which apply to certain Services, as attached to each Service Order Form, or on Starboard IT’s website or otherwise provided to the Customer via Starboard IT which sets out terms applicable to the provision, receipt and use of certain Services in addition to these Terms and Conditions, and which form part of this Agreement.
Special Conditions means the special conditions, if any, set out in the Statement of Works, Proposal or Services Order Form.
Statement of Works means the written statement of works detailing the Services to be provided, the scope, exclusions, time frames and other works descriptions.
Sublicense means a supply, contract to supply or a sublicense consented to by Starboard IT pursuant to this Agreement.
Supply means a supply of a Service or Services by Starboard IT pursuant to this Agreement.
Terms and Conditions means general terms and conditions of this Agreement which apply to all of Starboard IT’s customers, regardless of which Services they seek or receive.
Usage Charges means Fees in respect of consumable supplies including the consumption of power, water and air- conditioning services but excluding installation, set-up and recurring charges.
Warranty Period means in respect of software created by Starboard IT for the Customer or owned by Starboard IT and licensed to the Customer, 60 days.
- In this Agreement, headings are for convenience only and do not affect its interpretation. Except to the extent that the context otherwise requires:
- reference to any statute or statutory provision shall include any modification or re-enactment of, or any legislative provisions substituted for, and all legislation and statutory instruments issued under such legislation or such power;
- words denoting the singular shall include the plural and vice versa;
- words denoting individuals shall include corporations, associations, trustees, instrumentalities and partnerships and vice versa;
- references to parts, clauses, parties, annexures and schedules are references to parts, clauses, parties, annexures and schedules to this Agreement as modified or varied from time to time;
- words denoting any gender shall include all genders;
- references to any document, deed or agreement shall include references to such document, deed or agreement as amended, novated, supplemented, varied or replaced from time to time;
- references to any party to this Agreement or any other document, deed or agreement shall include its successors or permitted assigns;
- all references to dates and times are to New South Wales, Australia time;
- all references to “$” and “dollars” are to the lawful currency of Australia;
- terms used in this Agreement and which are defined in the Corporations Act 2001 (Cth) have the meanings given to those terms in the Corporations Act 2001 (Cth); and
- where anything is required to be done on a day which is not a Business Day, that thing must be done on the immediately preceding Business Day.