eManaged Terms and Conditions

1. Application and Incorporation
   1. These Terms and Conditions (“Terms”) apply to all services provided by eManaged Pty Ltd ACN 605 699 689 (“Service Provider”) to the customer as outlined in the Customer Contract (“Customer”).
   2. These Terms form part of, and are incorporated by reference into, the customer‑specific services agreement entered into between the Service Provider and the Customer (“Customer Contract”).
   3. In the event of any inconsistency between these Terms and the Customer Contract, the Customer Contract prevails to the extent of the inconsistency.
      
      
2. Term The Terms and Customer Contract commence on the commencement date as outlined in the Customer Contract (“Commencement Date”) and is effective for the period outlined in the Customer Contract (the “Term”). The Terms and Customer Contract shall remain in effect for the Term unless:
   1. it is automatically renewed for a renewal period outlined in the Customer Contract; or
   2. it is terminated earlier in line with these Terms.
      
      
3. Services
   1. These Terms apply to the services provided by the Service Provider to the Customer as outlined in the Customer Contract (collectively the “Services”).
   2. The specific Services to be provided to a Customer, together with any applicable service levels, inclusions and exclusions, are set out in the Customer Contract and any managed services agreement, service level agreement or schedule entered into under that Customer Contract (each an “SLA”).
   3. Each SLA forms part of the Customer Contract and is governed by the Customer Contract and these Terms.
   4. Unless expressly stated otherwise in the Customer Contract, Services that are not covered by an SLA will also be provided in accordance with these Terms and will be charged, delivered and supported in accordance with the applicable rates, service standards and engagement processes notified by the Service Provider from time to time.
   5. The inclusions forming part of the Services are those expressly described and agreed in the applicable Customer Contract.
   6. For the purposes of these Terms, “Exclusions” means any services, activities, deliverables or service levels that are not expressly included as Services or Inclusions in the Customer Contract.
   7. Any Exclusions may be provided at additional cost in accordance with the rates and terms set out in the Customer Contract or otherwise notified by the Service Provider.
      
      
4. Environment
   1. For the purposes of these Terms, “Environment” means the portion of the Customer’s systems, networks, devices or infrastructure that the Service Provider maintains, monitors or operates in connection with the Services under the applicable Customer Contract or any SLA.
   2. The scope of Services and the Fees are based on the configuration of the Environment as at the Commencement Date specified in the relevant Customer Contract or SLA.
   3. The Customer must not modify, relocate or install software within the Environment without the Service Provider’s prior written approval. Any Services required to remediate issues arising from unauthorised changes to the Environment are Exclusions and may be charged separately.
      
      
5. Software
   1. Any software within the Environment must be genuine, properly licensed and compliant with applicable laws, and the Customer must provide evidence of licensing on request.
   2. Where minimum hardware or software requirements are specified in a Customer Contract or SLA, the Customer must implement and maintain those requirements for the duration of the Services.
   3. The Service Provider may install software agents within the Environment as reasonably required to deliver the Services (“Software”). The Customer must not remove, disable or interfere with those software agents except as expressly authorised by the Service Provider.
   4. Updates and patches for the Software are developed and supplied by third parties.
   5. Where specified in a Customer Contract or SLA, the Service Provider may implement updates to the Software in accordance with manufacturer guidelines. The Service Provider does not warrant the performance of any update to the Software and is not liable for downtime or loss arising from the installation or use of updates. The Service Provider may defer installation of an update where it reasonably considers the update to be incompatible or unsuitable for the Environment.
      
      
6. Third Party Support Where the Service Provider determines that third‑party vendor or manufacturer support is required to provide the Services, the Service Provider may engage that support on the Customer’s behalf and pass through all associated costs in accordance with the Customer Contract. Where reasonably practicable, the Service Provider will obtain the Customer’s approval before incurring material third‑party costs, unless urgent action is required.
   
   
7. Advice
   1. The Service Provider may provide recommendations or guidance in relation to the services (“Advice”).
   2. The Customer is responsible for determining whether to implement any Advice and bears the risk of not doing so. Services required as a result of the Customer’s failure to implement Advice may constitute Exclusions. Where the failure to follow Advice renders the Services economically or technically unreasonable to provide, the Service Provider may exercise its termination rights under the Customer Contract or these Terms.
      
      
8. Authorised Representatives The Service Provider may rely on instructions or approvals given by the Customer’s authorised representatives as identified in the Customer Contract or an SLA, or otherwise reasonably nominated by the Customer from time to time, unless and until the Service Provider is notified of a change.
   
   
9. Insurance
   1. Each party must maintain insurance appropriate to its obligations under the Customer Contract and these Terms.
   2. The Customer must maintain insurance over any equipment or Software supplied by the Service Provider to its full replacement value, as specified in the Customer Contract. Insurance obligations do not limit or modify any liability under the Customer Contract or these Terms.
   3. Throughout the Term, either party may request satisfactory proof of insurance from the other, which must be provided within ten (10) days of the request.
   4. Each party agrees to notify the other in writing at least thirty (30) days prior to any cancellation, modification, or lapse in the required insurance coverage.
   5. The Customer shall name the Service Provider as an additional insured on its applicable insurance policies.
      
      
10. Fees, Payment and Payment Disputes
    1. The Customer must pay the fees for the Services as set out in the applicable Customer Contract and any SLAs (“Fees”). In these Terms, “Business Days” means any day other than a Saturday, Sunday, or any public holiday recognised in the State of Victora.
    2. Where Fees are not expressly specified in the Customer Contract or an SLA, the Service Provider may charge for the relevant Services on a time and materials basis at the rates notified to the Customer from time to time.
    3. Unless otherwise stated in the Customer Contract:
       1. all Fees are payable in Australian Dollars;
       2. Fees are invoiced in advance on a monthly basis following the issue of a valid tax invoice; and
       3. payment of Fees must be made by automatic direct debit or such other payment method approved by the Service Provider, quoting the relevant invoice reference.
    4. Fees for Services provided on a recurring basis may be calculated by reference to user numbers, devices or other agreed metrics specified in the Customer Contract and may be reviewed and adjusted in accordance with that contract. Any additional users, licences or resources will be billed in the next billing cycle.
    5. The Service Provider may vary the Fees at any time and in accordance with the Customer Contract or these Terms, including to reflect movements in the Consumer Price Index (CPI), provided at least one (1) month’s prior written notice is given.
    6. The Customer is responsible for all taxes, duties, levies and governmental charges associated with the Services and the Fees, including goods and services tax, except to the extent expressly stated otherwise in the Customer Contract.
    7. Fees relating to third‑party subscriptions, licences or services may change from time to time. Any such changes will be notified to the Customer and passed through in accordance with the Customer Contract. The Customer must reimburse the Service Provider for all third‑party costs incurred on the Customer’s behalf.
    8. If the Customer elects, or is required, to make payments via a third‑party vendor or billing arrangement and that arrangement ceases or fails, the Service Provider may invoice the Customer directly for all Fees payable under the Customer Contract.
    9. If any undisputed Fees remain unpaid by the due date specified in the Customer Contract or invoice, the Service Provider may, after giving reasonable notice, charge interest at a reasonable commercial rate permitted by law, apply administration fees, suspend the Services and exercise any other rights available under the Customer Contract or these Terms. Fees continue to accrue during any period of suspension.
    10. Any dispute relating to an invoice or Fees must be notified to the Service Provider in writing within five (5) Business Days of receipt of the relevant invoice, identifying the disputed amount and reasons for the dispute. Undisputed amounts must be paid when due. Any amount determined to be payable following resolution of a dispute must be paid promptly.
    11. If the Service Provider takes reasonable steps to recover overdue amounts, the Customer must reimburse the Service Provider for reasonable debt recovery and legal costs incurred, to the extent permitted by law.
        
        
11. Access
    1. The Customer must grant the Service Provider and its nominated vendors the right to access the Environment on a continuous basis (during the Service Provider’s business hours), to the extent reasonably required to provide the Services in accordance with the Customer Contract and these Terms.
    2. Where reasonably required for the provision of the Services, the Service Provider may install software agents within the Environment to facilitate monitoring, management and support.
    3. The Customer is responsible, at its own cost, for obtaining and maintaining all rights of entry, licences, permits and permissions necessary for the Service Provider to deliver the Services, whether remotely or on‑site, as contemplated by the Customer Contract.
    4. The Customer must ensure that the Environment is safe and suitable for the performance of the Services. The Service Provider is not required to provide Services in circumstances that pose a health or safety risk or require extraordinary or non‑industry standard efforts.
       
       
12. Warranties
    1. The Service Provider warrants that it will:
       1. provide the Services in an efficient, professional and best‑practice manner, in accordance with the applicable Customer Contract, any SLAs and these Terms;
       2. comply with all reasonable instructions given by the Customer in connection with the Services;
       3. comply with all applicable laws, regulations and mandatory requirements, including occupational health and safety requirements, in performing the Services; and
       4. promptly disclose to the Customer, in writing, any actual or potential conflict of interest that arises in connection with the Services.
    2. The Service Provider further warrants that it:
       1. is, and will remain for the duration of the Services, properly qualified, licensed and authorised to provide the Services;
       2. has the authority to enter into the Customer Contract and these Terms and to perform its obligations under them; and
       3. possesses the skills, experience, qualifications and resources reasonably required to perform the Services in accordance with these Terms.
    3. The Customer warrants that it:
       1. has the power and authority to enter into the Customer Contract and to be bound by these Terms;
       2. has relied on its own skill, judgement and assessment in determining that the Services are suitable for its requirements;
       3. will provide timely, accurate and complete information, instructions and cooperation reasonably required by the Service Provider;
       4. is responsible for obtaining and maintaining all licences, permits, approvals and authorisations required for its business and its use of the Services, Software and hardware;
       5. is responsible for all Fees, taxes and other amounts payable in connection with its use of the Services, Software and hardware; and
       6. will ensure that its systems, hardware and Environment meet any minimum requirements specified in the Customer Contract or notified by the Service Provider.
    4. The Customer acknowledges and agrees that:
       1. products supplied by the Service Provider may be subject to third‑party manufacturer warranties, and the Customer’s remedies in respect of those products are limited to the extent of those warranties;
       2. the Service Provider is not responsible for the performance of third‑party manufacturers, vendors or suppliers;
       3. unless expressly included in the Customer Contract, power, data cabling and internet connectivity are the Customer’s responsibility;
       4. the Customer is responsible for the correct use, security, maintenance and protection of its hardware, software, systems and credentials;
       5. the Customer is responsible for data security, backup, recovery and compliance with applicable security requirements, except to the extent expressly assumed by the Service Provider in the Customer Contract; and
       6. where the Service Provider reasonably suspects a security incident or imminent risk to the Customer’s systems or data, the Service Provider may take reasonable protective actions to mitigate that risk and will not be liable for losses arising from such actions.
    5. The Customer must not:
       1. modify, reverse engineer, interfere with or misuse any software, hardware or systems provided or supported by the Service Provider;
       2. introduce malicious code, viruses or harmful content into the Environment; or
       3. use the Services in a manner that is unlawful or that interferes with the integrity or performance of the Services or third‑party systems.
    6. The Customer is responsible for requesting user additions or removals in writing. Unless otherwise stated in the Customer Contract, Fees remain payable for users or licences where the Service Provider continues to incur costs in respect of those users or licences.
       
       
13. Limitation of Liability and Indemnity
    1. To the fullest extent permitted by law:
       1. the Service Provider is not liable for any loss or damage of any kind arising out of or in connection with the Services, the Customer Contract, these Terms, or the use or inability to use any Services, products, Software, materials or information, whether direct or indirect, including loss of profits, revenue, data, goodwill, business interruption or the cost of procuring substitute goods or Services, whether arising in contract, tort (including negligence), equity, statute or otherwise, and whether or not foreseeable; and
       2. all warranties, conditions and guarantees relating to the Services or products, whether express or implied, including warranties of merchantability or fitness for purpose, are excluded, subject to any non‑excludable statutory rights.
    2. Nothing in these Terms limits or excludes liability for death or personal injury caused by negligence, fraud or fraudulent misrepresentation, or any other liability that cannot be excluded or limited under applicable law.
    3. Where the Customer suffers loss or damage arising from the Services or any products not being fit for purpose, the Service Provider’s liability is limited, at its discretion and to the extent permitted by law, to resupplying the relevant Services or products or refunding the Fees paid for them, and excludes economic and consequential loss.
    4. To the extent permitted by law, the Customer indemnifies and holds harmless the Service Provider and its officers, employees, contractors and agents from and against all loss, damage, cost or expense (including consequential loss) arising out of or in connection with:
       1. any breach by the Customer of the Customer Contract, these Terms, any SLA or any applicable third‑party or vendor licence terms;
       2. any unauthorised or improper use of any Software, products or Services by the Customer or its personnel;
       3. any breach of a Software, product or third‑party licence by the Customer;
       4. any issue, defect or malfunction associated with Software, hardware or services supplied by a third party;
       5. any cybersecurity incident, data breach or security compromise affecting the Customer’s Environment, except to the extent caused by the Service Provider’s gross negligence or wilful misconduct;
       6. any act or omission, negligence, breach of duty or breach of law by the Customer or its personnel; or
       7. any claim made by a third party arising from the matters described in this clause.
    5. The Customer acknowledges that it is not possible to guarantee the security of the Customer’s Environment against cybersecurity threats. To the extent permitted by law, the Customer waives all claims against the Service Provider arising from or in connection with any cybersecurity incident affecting the Customer’s Environment, including where the Customer has elected not to implement advice or recommendations provided by the Service Provider, except to the extent caused by the Service Provider’s gross negligence or wilful misconduct.
    6. The Service Provider makes no representation or warranty as to the completeness, accuracy or availability of information on its website or any linked third‑party websites, and does not endorse any third‑party products or services referred to on its website.
    7. The Customer indemnifies the Service Provider against any claim, loss or expense arising from any loss or corruption of data, programs or information in the Customer’s Environment. The Customer is solely responsible for maintaining adequate backups, except to the extent backup Services are expressly included in the Customer Contract and subject to their stated limitations.
    8. To the extent permitted by law, the Service Provider is not liable for any loss arising from the suspension, cancellation or delay of Services in accordance with the Customer Contract or these Terms.
    9. This clause 13 survives termination of the Customer Contract or these Terms.
       
       
14. Suspension and Termination
    1. Each SLA operates for the term specified in the relevant Customer Contract or SLA. Termination or expiry of one SLA does not, of itself, terminate any other SLA or the Customer Contract.
    2. Except as expressly permitted by the Customer Contract, neither party may terminate a Customer Contract or an SLA for convenience during any minimum or fixed term specified in the Customer Contract.
    3. Where the Customer Contract continues on a rolling or month‑to‑month basis following expiry of an initial term, either party may terminate the Customer Contract by giving the notice period specified in the Customer Contract.
    4. If the Service Provider elects to cease providing a Service generally to all customers, it may terminate the affected SLA on not less than one hundred and twenty (120) days’ written notice.
    5. Either party may terminate the Customer Contract or an affected SLA immediately by written notice if the other party:
       1. becomes insolvent, enters liquidation, receivership or an arrangement with creditors (other than for reconstruction);
       2. is subject to a force majeure event continuing for more than ninety (90) days;
       3. commits a material breach of the Customer Contract, an SLA or these Terms and fails to remedy that breach within thirty (30) days of notice; or
       4. fails to pay undisputed Fees within ten (10) days after receiving notice requiring payment.
    6. If the Service Provider terminates for cause under clause 14.5, or the Customer terminates an SLA or Customer Contract other than in accordance with its terms, the Customer must pay the Service Provider:
       1. any Fees accrued up to the effective date of termination; and
       2. any unavoidable, reasonable and pre-committed third-party costs or early termination charges incurred by the Service Provider as a direct result of the termination, to the extent those costs are expressly identified in the Customer Contract.
       The Customer is not required to pay Fees for Services not provided after termination, except to the extent necessary to recover the costs referred to in paragraph (b). Any amount payable under this clause must represent a genuine pre-estimate of loss and must not operate as a penalty.
    7. If the Customer validly terminates for cause, prepaid Fees for Services not yet performed will be refunded on a pro‑rata basis, less any costs already incurred.
    8. Unless expressly stated otherwise in the Customer Contract, setup fees, administrative fees and third‑party costs are non‑refundable.
    9. Termination or expiry does not affect rights accrued prior to termination, or obligations which by their nature are intended to survive.
       
       
15. Confidentiality and Privacy
    1. In these Terms, “Confidential Information” means any information disclosed by or on behalf of a party to the other party, whether before or after the commencement of the Customer Contract, that is confidential or proprietary in nature, or that a reasonable person would understand to be confidential, including information relating to business operations, finances, pricing, customers, suppliers, systems, software, data, security measures, intellectual property, trade secrets and personal information, whether disclosed orally, in writing, electronically or otherwise. Confidential Information does not include information that is in the public domain other than through a breach of confidence, was independently developed without use of the other party’s Confidential Information, or was lawfully obtained from a third party not under an obligation of confidentiality.
    2. Each party must:
       1. keep the other party’s Confidential Information confidential;
       2. use Confidential Information only as required to perform its obligations under the Customer Contract and these Terms; and
       3. take all reasonable measures to protect Confidential Information against unauthorised access, use, modification, disclosure or misuse.
    3. Access to Confidential Information must be limited to officers, employees, contractors or agents who have a genuine need to know and who are bound by confidentiality obligations no less protective than those in these Terms.
    4. All Confidential Information remains the exclusive property of the disclosing party. Nothing in these Terms transfers any ownership rights in Confidential Information.
    5. The Service Provider may disclose the Customer’s Confidential Information where reasonably necessary:
       1. to its professional advisers, insurers, contractors and suppliers;
       2. for credit assessment, debt recovery or insurance purposes;
       3. to comply with law or regulatory requirements; or
       4. to its officers, employees or agents for the purposes of providing the Services.
    6. If a party is legally required to disclose Confidential Information, it must (where permitted by law) promptly notify the disclosing party and cooperate in seeking protective measures. Only the minimum disclosure required by law may be made.
    7. Upon termination of the Customer Contract, or on written request, the receiving party must promptly return or destroy the disclosing party’s Confidential Information, except to the extent retention is required by law or for legitimate business or compliance purposes.
    8. Each party must comply with applicable privacy and data protection laws, including the Privacy Act 1988 (Cth) (“Privacy Act”), in relation to personal information.
    9. The Service Provider collects, uses and discloses the Customer’s Confidential Information and personal information for the purposes of performing its obligations under these Terms, the Customer Contract and any SLAs, and for related authorised purposes.
    10. The Customer must read this clause together with the Service Provider’s Privacy Policy available at [INSERT HYPERLINK].
    11. Confidentiality obligations under this clause survive termination or expiry of the Customer Contract for three (3) years, or in the case of trade secrets, for so long as the information remains a trade secret under applicable law.
        
        
16. Data Protection
    1. The Service Provider will implement and maintain reasonable technical and organisational cybersecurity measures in accordance with generally accepted industry standards to protect the Customers data within the Environment.
    2. The Service Provider will collect, use, store and process Customer data, including personal information (as defined in the Privacy Act), only to the extent reasonably necessary to perform its obligations under these Terms, the Customer Contract and any SLAs, or as otherwise permitted by law.
    3. While the Service Provider maintains reasonable security measures, it does not guarantee that all security incidents, malware infections or cyberattacks will be prevented. To the extent permitted by law, the Service Provider is not liable for loss arising from such incidents except to the extent caused by its gross negligence or wilful misconduct.
    4. The Customer is responsible for the security of its own systems, data and Environment, including implementing and maintaining appropriate safeguards such as firewalls, antivirus protection, encryption and access controls.
    5. The Customer must ensure that all devices accessing the Environment comply with the Service Provider’s security policies and reasonable directions as notified from time to time.
    6. Unless expressly included in the Customer Contract or where the security incident arises due to the Service Provider’s gross negligence or serious misconduct, the Customer bears the costs of investigating, responding to and remediating any security incident affecting its systems or data. Where requested, the Service Provider may assist with investigation or remediation on a time and materials basis.
    7. Where a party becomes aware of a data breach or security incident that may affect the other party, it must notify the other party without undue delay and, where reasonably practicable, provide information about the nature of the incident and mitigation steps taken.
    8. Each party must maintain reasonable records and logs appropriate to its operations to assist in identifying and responding to security incidents.
    9. To the extent permitted by law, the Service Provider is not responsible for loss, corruption or unavailability of data arising from transmission failures, third‑party systems, hardware failures, or data stored outside the scope of any backup or recovery services expressly included in an SLA.
    10. Unless expressly stated in a Customer Contract or SLA, the Service Provider does not warrant that storage, backup or recovery services will operate without interruption or error.
    11. Where backup or recovery services are expressly included as a Service, the Service Provider will provide those Services in accordance with the terms of that SLA.
    12. The Customer remains responsible for identifying critical data and ensuring that its data protection, backup and recovery arrangements meet its business and regulatory requirements.
        
        
17. Intellectual Property
    1. “Intellectual Property” means:
       1. any patent, registered and common law trade mark, trade name, business name, company name, domain name, copyright, registered or other design right, circuit layout right and any corresponding property right, together with any right to apply for the grant or registration of the same; and
       2. any right in respect of an idea, invention, discovery, trade secret, improvement, technical information, specification, know how, data, algorithm, formula or Confidential Information.
    2. The ownership of both parties’ Intellectual Property rights in existence prior to the commencement of a Customer Contract are unaffected by any term of these Terms or the Customer Contract.
    3. The Customer acknowledges that the Service Provider or other third parties may copyright the Software, hardware, or parts of the Software or hardware and the Customer agrees not to remove, alter, or destroy any form of copyright notice, proprietary markings or confidential legends placed upon or contained in the Software or on the hardware.
    4. The Customer warrants that all designs or instructions given to the Service Provider will not cause the Service Provider to infringe any intellectual property rights. The Customer agrees to indemnify the Service Provider against any action taken by a third party against the Service Provider in respect of any such infringement.
    5. The Customer grants the Service Provider a non-exclusive licence to use the Customer’s Intellectual Property as required to provide the Services.
    6. The Customer authorises the Service Provider to use images of the Services provided by the Service Provider for the reasonable business purposes of the Service Provider, including but not limited to marketing and advertising materials and display on the Service Provider’s website.
    7. Any discovery, design, invention or secret process or improvement in procedure made or discovered by the Service Provider either alone or in conjunction with another person, whilst providing the Services, will belong to and be the absolute property of the Service Provider. The Service Provider would own all rights in respect of the materials or deliverables arising under the Copyright Act 1968 (Cth).
       
       
18. Dispute Resolution
    1. If a dispute arises out of or in connection with the Customer Contract, an SLA or these Terms, the parties must first attempt to resolve the dispute through good faith negotiations. Either party may initiate negotiations by giving written notice to the other party setting out the nature of the dispute.
    2. If the dispute is not resolved within fifteen (15) days after notice is given under clause 13.1, either party may refer the dispute to mediation.
    3. The mediation will be conducted in accordance with the rules of the Australian Centre for International Commercial Arbitration (ACICA), or such other mediation body agreed by the parties. Unless otherwise agreed, the mediation will take place in Victoria, Australia, and the parties must participate in good faith.
    4. If the dispute is not resolved through mediation within thirty (30) days after the mediation commences, either party may refer the dispute to binding arbitration.
    5. The arbitration will be conducted in accordance with the ACICA rules. The arbitrator will be appointed in accordance with those rules and, where reasonably practicable, have experience in contract law and information technology services.
    6. Unless otherwise determined by the arbitrator, each party must bear its own legal costs and share the arbitrator’s costs equally.
    7. Any mediation or arbitration under this clause may be conducted electronically, including by video conference, provided appropriate security and confidentiality measures are used.
    8. Nothing in this clause prevents a party from seeking urgent injunctive or equitable relief, or from commencing court proceedings where a dispute has not been resolved in accordance with this clause.
       
       
19. Compliance Unless expressly stated in a Customer Contract or an SLA, the Services are not designed, and must not be relied upon, to ensure the Customer’s compliance with any laws, regulations or industry requirements applicable to the Customer’s business.
    
    
20. End User Licence Agreements
    1. The Customer authorises the Service Provider to accept end user licence agreements (“EULAs”) on the Customer’s behalf where reasonably necessary to provide the Services.
    2. The Customer agrees to be bound by, and is solely responsible for complying with, all applicable EULAs and third‑party licence terms. Any enforcement of EULAs is the responsibility of the relevant third‑party licensor.
    3. The Service Provider may amend an SLA where reasonably required to comply with applicable EULAs.
       
       
21. Bring Your Own Device
    1. The Service Provider may access devices connected to the Environment, whether owned by the Customer or otherwise.
    2. Unless expressly stated in a Customer Contract or SLA, devices not connected to the Environment do not receive Services. The Service Provider is not responsible for issues caused by devices or systems not approved or managed by the Service Provider.
       
       
22. Microsoft NCE Licences
    1. In this clause 22, “NCE” means a Microsoft licensing model which includes various subscription options for Microsoft products and services.
    2. Where the Service Provider enters into a term commitment for an NCE licence on behalf of the Customer, the Customer is responsible for any transfer, termination or early cancellation costs incurred if the Customer Contract or relevant SLA ends before the commitment period.
       
       
23. Telecommunications and Network Solutions Where the Service Provider acquires term‑based telecommunications or network solutions for the Customer, the Customer must reimburse any early termination or remaining charges incurred if the Customer Contract or relevant SLA ends before the end of the applicable term.
    
    
24. User Counts and Billing Adjustments The Service Provider may periodically audit managed user counts. Where an audit identifies additional users or devices, the Service Provider may adjust Fees in accordance with the Customer Contract. Any minimum user commitments and notice requirements for reductions apply as set out in the Customer Contract.
    
    
25. Artificial Intelligence The Service Provider may use artificial intelligence technologies to support or enhance the Services. While reasonable care will be taken, AI‑enabled outputs are not guaranteed to be error‑free or suitable for all purposes. The Customer remains responsible for decisions made using AI‑generated recommendations, except to the extent loss is caused by the Service Provider’s gross negligence or wilful misconduct.
    
    
26. Third Parties
    1. The Service Provider may engage third parties, including subcontractors, vendors and suppliers, to provide some or all of the Services (“Third‑Party Suppliers”). Unless otherwise agreed, the Service Provider remains responsible for payment of Third‑Party Suppliers, except where the Customer agrees to pay a Third‑Party Supplier directly.
    2. The Customer acknowledges that:
       1. the Services which are provided by Third‑Party Suppliers may be subject to the Third‑Party Supplier’s own terms and service levels;
       2. the Service Provider does not guarantee the performance, availability or rectification of failures of Third‑Party Suppliers, but will use reasonable efforts to manage or coordinate issues where within its control;
       3. Third‑Party Suppliers are responsible for the services they provide under their own terms; and
       4. to the extent permitted by law, the Service Provider is not responsible for acts, omissions or failures of Third‑Party Suppliers.
    3. Where the Customer has a separate agreement with a Third‑Party Supplier that relates to the Services, these Terms and the Customer Contract prevail to the extent of any inconsistency.
    4. If the Service Provider is required to interact with or manage Third‑Party Suppliers on the Customer’s behalf outside the scope of the Customer Contract or an SLA, the Customer must pay any additional costs incurred on a time and materials basis.
    5. The Customer authorises the Service Provider to liaise with the Customer’s third‑party providers where reasonably required to deliver the Services and must ensure all necessary authorities and consents are in place.
    6. The Services, software or websites may include links to third‑party products, services or websites. The Service Provider does not endorse and is not responsible for third‑party content, products or services. Third‑party websites and applications are subject to their own privacy policies and terms, which the Customer is responsible for reviewing.
       
       
27. Personal Properties and Securities Act (“PPSA”)
    1. In this clause 27, “financing statement”, “financing change statement”, “Personal Property Securities Register”, “security agreement” and “security interest” have the meanings given to those terms in the Personal Property Securities Act 2009 (Cth) (“PPSA”).
    2. The Customer acknowledges and agrees that these Terms and any Customer Contract constitute a security agreement for the purposes of the PPSA and creates a security interest in all products, equipment and other personal property supplied, or to be supplied, by the Service Provider to the Customer from time to time.
    3. The Customer must:
       1. promptly execute all documents and provide all information reasonably required by the Service Provider to register, maintain, amend or enforce any security interest on the Personal Property Securities Register;
       2. reimburse the Service Provider on demand for all reasonable costs incurred in connection with any PPSA registration, amendment or release;
       3. not register, or permit to be registered, any financing statement or financing change statement in respect of the secured property without the Service Provider’s prior written consent; and
       4. promptly notify the Service Provider of any material change affecting the secured property or the proceeds derived from it.
    4. To the extent permitted by law, the parties agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these Terms.
    5. The Customer waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d), 132(4) and 157 of the PPSA, except to the extent those rights cannot be waived by law.
    6. The Customer unconditionally ratifies any action taken by the Service Provider under this clause.
    7. Nothing in these Terms is intended to exclude or limit the operation of the PPSA except to the extent permitted by law.
       
       
28. GST
    1. Terms used in this clause 28 have the same meaning as in the GST Act. The total Fees are as specified in the Customer Contract and includes GST unless otherwise stated.
    2. Where GST is imposed on any supply made under a Customer Contract by one party (“Supplying Party”) to another party (“Receiving Party”), the Receiving Party must pay or provide the GST Exclusive Consideration for the supply and, in addition to and at the same time as the GST Exclusive Consideration is payable or to be provided, an additional amount calculated by multiplying the value of that GST Exclusive Consideration (without deduction or set-off) by the prevailing GST rate. This clause does not apply to a supply for which a GST inclusive consideration has been agreed.
       
       
29. Force Majeure
    1. The Service Provider is not liable for any failure or delay in performing its obligations under the Customer Contract or these Terms to the extent that the failure or delay is caused by events beyond its reasonable control (“Force Majeure”), including acts of God, war, terrorism, pandemics or endemics, government orders or restrictions, lockdowns, civil unrest, industrial action, fires, floods, utility failures, cloud or vendor outages, or failures of communications, hardware or software services.
    2. If a Force Majeure event occurs that materially affects the Service Provider’s ability to perform its obligations, the Service Provider will notify the Customer as soon as reasonably practicable.
    3. The Service Provider’s affected obligations are suspended for the duration of the Force Majeure event, and will resume as soon as reasonably practicable after the event has ceased, without liability for the period of delay.
       
       
30. Restraints
    1. In this clause 30:
       1. "Restraint Area” means:
          1. Australia; or if that area is found to be too large to be enforceable
          2. the state of Victoria; or if that area is found to be too large to be enforceable
          3. Melbourne and its surrounding metropolitan area; or if that area is found to be too large to be enforceable
          4. within a 30km radius of the Service Provider’s premises; and
       2. "Restraint Period” means:
          1. 12 months after the date which a Customer Contract ends; or if that period is found to be too long to be enforceable
          2. 6 months after the date which a Customer Contract ends; or if that period is found to be too long to be enforceable
          3. 3 months after the date which a Customer Contract ends.
    2. To reasonably protect the Service Provider’s goodwill and legitimate business interests, during the Term and for the Restraint Period and within the Restraint Area, the Customer shall not directly or indirectly:
       1. canvass, solicit, induce or encourage any person who was an employee or contractor of the Service Provider to leave the Service Provider; or
       2. interfere in any way with the relationship between the Service Provider and its employees, clients, customers, contractors, or suppliers.
    3. The covenants given by Customer in this clause 30 will apply and may be enforced against the Customer, regardless of the reason(s) for the termination of the Customer Contract.
    4. The Customer acknowledges that any breach of clause 30.2 by the Customer will cause the Service Provider to incur a loss given the substantial investment of time and money the Service Provider spends training its employees and building its business network. Where the Customer breaches clause 30.1, the Customer acknowledges and agrees to compensate the reasonable costs incurred by the Service Provider for training the relevant employee, as well as the cost incurred by the Service Provider to advertise, recruit and train a replacement employee.
       
       
31. General
    1. These Terms and the Customer Contracts are made under and governed by the laws of the State of Victoria and both parties exclusively submit to the jurisdiction of courts of Victoria and their respective appellate courts.
    2. The information in the Service Provider’s Software and these Terms have been prepared in accordance with the laws of Victoria and the Commonwealth of Australia. The Software may not comply with the laws of any other country or any other Australian state or territory.
    3. These Terms and the Customer Contracts do not create or evidence a partnership, joint venture, or the relationship of employer and employee between the parties.
    4. The Customer must give the Service Provider at least fourteen (14) days’ prior written notice of any proposed change of ownership or control of the Customer, or any material change to the Customer’s details provided under the Customer Contract. The Customer is responsible for any loss reasonably incurred by the Service Provider as a result of a failure to comply with this obligation.
    5. If the Customer sells or transfers its business, the Customer remains liable for all outstanding Fees and obligations incurred prior to the transfer. Any assignment of the Customer Contract requires the Service Provider’s prior written consent, which must not be unreasonably withheld.
    6. The Service Provider may assign, novate or otherwise deal with its rights and obligations under the Customer Contract and these Terms at its discretion.
    7. Notices under the Customer Contract or these Terms must be given in writing and may be delivered by hand, post or email. Notices are deemed received:
       1. if delivered by hand, when delivered;
       2. if sent by post, three (3) Business Days after posting; and
       3. if sent by email, when transmitted, provided that if transmission occurs outside business hours, receipt is deemed to occur on the next Business Day.
    8. Any provision or the application of any provision of these Terms and the Customer Contract which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction. A waiver of any right must be in writing and does not affect any other rights.
    9. The Service Provider may at any time vary these Terms by publishing the terms of the varied Terms on the Service Provider’s website and by providing the Customer with thirty (30) days’ written notice of the change. The Customer accepts that by doing this, the Service Provider has provided the Customer with sufficient notice of the variation. The Service Provider is under no other obligation to notify the Customer of any variation to these Terms. Upon receipt of the notice, the Customer may, within the thirty (30) day notice period, terminate the Customer Contract by providing written notice to the Service Provider. Where the Customer elects to terminate the Customer Contract under this clause 31.9, the Customer acknowledges that the payment obligations in clause 14.6 will apply. For the avoidance of doubt, any variation of these Terms does not operate retrospectively.
    10. In these Terms, headings are for convenience only and do not affect interpretation. References to a clause include its sub‑clauses.
    11. If any provision of these Terms or an SLA is held to be invalid or unenforceable, that provision is severed to the extent of the invalidity and the remaining provisions remain valid and enforceable to the fullest extent permitted by law.
    12. The Service Provider is not bound by any terms or conditions included in a purchase order, invoice or other document issued by the Customer unless expressly agreed in writing or incorporated into a Customer Contract or SLA.
    13. These Terms, together with the applicable Customer Contract and any SLAs, constitute the entire agreement between the parties in relation to their subject matter and supersede all prior representations or agreements relating to that subject matter.
    14. These Terms are subject to the special conditions set out in the Customer Contract (“Special Conditions”). In the event of an inconsistency between the Special Conditions and the provisions of these Terms, the Special Conditions prevail.