Terms and Conditions

1. Agreement 

The Support Services under this Support Agreement will be supplied by Cloud Communications Group to the Customer for the term set out in customer details herein (“Initial Term”) unless terminated under this Support Agreement or otherwise terminated by operation of Law. After the Initial Term, the Support Agreement may be automatically renewed for successive one (1) year terms (“Renewal Term”) at Cloud Communications Group’ then current charge rate unless either Party gives the other Party notice in writing of its intention not to renew at least 60 days prior to the expiration of any Initial or Renewal term. Under the Support Agreement: 

1.1 The Customer will cooperate with Cloud Communications Group as reasonably necessary for Cloud Communications Group’ performance of its obligations, including doing such things as: 

1.1.1 providing Cloud Communications Group with full, free and safe access to its premises and facilities reasonably necessary for Support of the Equipment; and 

1.1.1.1 providing Cloud Communications Group with designated points of contact; and 

1.1.1.2 providing necessary telephone numbers and passwords to enable remote access to the Equipment; and 

1.1.1.3 providing Cloud Communications Group with interface and other information regarding access to third party products in Customer’s network and necessary third-party consents and licenses to enable Cloud Communications Group’ performance hereunder; and

1.1.1.4 Provide either on-site parking for technicians or pay reasonable parking fees if on-site parking is not available. 

All equipment to be provided by Customer is at Customer’s expense. 

1.2 Cloud Communications Group will provide Replacement Equipment which may be new, remanufactured, used or refurbished. Replacement Equipment is furnished on an exchange basis. Cloud Communications Group shall have ownership rights in all Equipment so removed, and Customer shall have ownership rights in the Equipment so replaced. 

1.3 Customer is responsible for ensuring that its networks and systems are adequately secured against unauthorised intrusion or attack and regularly backing up its data and files in accordance with good computing practices. 

1.4 The Customer must observe the site environment conditions and any such amendments that may be necessary (as notified by Cloud Communications Group) which shall be deemed to be incorporated into this Support Agreement. Cloud Communications Group is not obligated to maintain the Equipment where the Equipment is located in an environment assessed by Cloud Communications Group not to be suitable Cloud Communications Group shall not be responsible for the compatibility of Equipment not supplied by Cloud Communications Group and installed at the Customer’s site. 

1.5 Where the Customer subsequently purchases from Cloud Communications Group further Equipment, products, upgrades, additional features or peripheral devices or requests certification or connection of Equipment similar to the Equipment covered under this Support Agreement and locates that Equipment with the existing Equipment, such additional Equipment shall also be covered under this Support Agreement at the then current rate of charge for such purchased Equipment and these charges so arising shall be in addition to the charges referred to in Schedule A.

1.6 The Customer shall advise Cloud Communications Group promptly of any material change in location or modification to any Equipment covered under this Support Agreement. If such change or modification, at Cloud Communications Group’ reasonable discretion, increases the cost of the Support Services, including Equipment, testing or repairs, then Cloud Communications Group may without prejudice increase the Customer’s Service charge and the Customer accepts such an increase provided such increase is reasonable and based on Cloud Communications Group’ then current rates of charge. If the change creates a safety hazard (“Hazard”) or is likely to cause Equipment or product malfunctions, Cloud Communications Group may with Customer’s consent and expense, correct the condition and continue to perform the Support Service or if the hazard is not corrected Cloud Communications Group may without prejudice terminate all or part of the Service under this Support Agreement.

2. INTERPRETATION:

2.1 in this agreement the context otherwise requires: 

“Agreement”means the terms and conditions to which the Parties hereto have agreed to bind themselves and as witnessed by their acceptance by the execution of this document by duly authorised representatives of each of the Parties.

“Business Day” means a day of business within Australia which operates between 8.30am to 5pm Monday to Friday, excluding Saturday, Sunday and the published Australian holidays applying at the site where operations apply, as published by the Australian Government (http://www.australia.gov.au/Public_Holidays). 

“Coverage Hours” means the agreed term of applicable Service coverage as set out under Schedule A.

“Customer”means the other party to this Agreement (other than Cloud Communications Group) which in exchange for good consideration is to receive Goods and or Services from Cloud Communications Group.

"Equipment"means hardware and includes System, control units, attachments, cords, sockets, and power supplies. For the purpose of the agreement specifically excludes Support Exclusions in this agreement.

“Forced Majeure Conditions”  shall include fire, explosion, pest damage, power surges or failures, strikes or labour disputes, water, acts of God, the elements, war, civil disturbances, acts of civil or military authorities or the public enemy, inability to secure materials or components, transportation facilities, fuel or energy shortages, acts or omissions of communications carriers or governmental regulatory authorities or agencies, unauthorised use of the products or other causes beyond Cloud Communications Group’ reasonable control whether or not similar to the foregoing.

“Goods” means any tangible or intangible good to be delivered by Cloud Communications Group pursuant to Schedule A includes any Equipment, Software, documentation, supplies, accessories and other commodities related to any of the foregoing.

"GST" means the tax imposed by the A New Tax System (Goods and Services Tax) Act 1999.

"GST Rate"means the percentage rate set out in Section 9-70 of the A New Tax System (Goods and Services Tax) Act 1999 or as amended.

“Major Incident” means system failure affecting more than 20% of the system or the failure affects a major system feature that will impact call handling by the customer; or the customer designates the call as urgent and it is approved as urgent by the Cloud Communications Group Service Team Leader.

“Major Release” includes a totally new software type or one off material change to existing software that introduces new optional features and functionality. Major Releases are typically designated as a change in the digit to the left of the first decimal point (e.g. [n].y.z).

“Minor Incident” means all other fault conditions which are not major Incident

“Minor Release” means a change to the software that introduces a limited amount of new optional features and functionality. Minor Releases are typically designated as a change in the digit to the right of the first decimal point (e.g. n.[y].z).

“Parties”means both Cloud Communications Group and the Customer (and includes the singular “Party”).

“Remedial Support”means a repair service that is required due to a malfunction of the product

“Response Times” means a Cloud Communications Group Technician will respond to the incident via remote diagnostics within a time frame in accordance with Schedule A

“Service”means the agreed Support Services described in Schedule A herein to be provided by Cloud Communications Group to Customer under this Agreement

“Sum”means the total charges payable over the term of this agreement. 

"Support”and “Support Services” means the agreed Remedial Support of the Equipment as described in Schedule A herein to be provided by Cloud Communications Group to Customer under this Support Agreement, and the related services thereof.

“System”means the Equipment and/or the software relating to the operation of the Equipment.

“Update(s)” means changes in the software that typically provide Support correction only. An update is typically designated as a change in the digit to the right of the second decimal point (e.g. n.y.[z]) representing a re-release of the corrected software version, or an issue(s)- specific correction provided in the form of a patch, service pack or Support release.

“Warranty”means the warranty and or as defined herein below for and the period set out in Schedule A.

3. SUPPORT INVOICING ANY PAYMENT.

3.1 The Customer shall pay all Support service charges annually in advance or under any other period and terms set out in Schedule A herein together with any and all other charges applicable for any Renewal Term. 

3.2 Payment on invoices is due within fourteen (14) days from the date of the invoice. If Customer disputes an invoice, it must provide the notice of dispute within seven (7) days of the invoice date and pay the undisputed portion. For any disputed portion the parties must in good faith attempt resolution before the due date (14 days) failing which the dispute resolution provisions of this agreement will apply in respect to the unpaid portion. 

3.3 Any overdue payments will be subject to a late payment charge of two percent (2%) per month or the maximum rate allowed by applicable law, whichever is less. 

3.4 If Cloud Communications Group reasonably incurs additional expenses or disbursements necessary to carry out its obligations under this Agreement, it may pass through those expenses or disbursements to Customer.

3.5 The Customer shall pay any taxes arising out of the operation of this Support Agreement including GST, taxes and levies arising out of changes in law, however designated (excluding taxes on Cloud Communications Group’ net income) unless the Customer provides Cloud Communications Group with an appropriate certificate of exemption. In the event that the Customer provides Cloud Communications Group with an appropriate certificate of exemption from any taxes owed, the Customer indemnifies Cloud Communications Group for any mistakes, omissions or other errors contained within that certificate which make that certificate void or otherwise not valid. 

3.6 Notwithstanding the requirement for payment of GST if GST is or becomes payable with respect to any supply made or deemed to be made, or other matter or thing under or in connection with this Support Agreement the consideration otherwise payable by the Customer for the supply of products or services provided by Cloud Communications Group to the Customer ("Basic Consideration") will be increased by an amount calculated by multiplying (i) the Basic Consideration by (ii) the GST Rate at the time. 

3.7 The obligation to pay the increased consideration under this clause for a supply only arises if the Customer for that supply has been given a tax invoice (either as a separate invoice or combined within an invoice for the sale of goods or services to the Customer), relating to that supply if it satisfies the requirements of the A New Tax System (Goods and Services Tax) Act 1999 or its successor.

4. SUPPORT LIMITATIONS AND EXCLUSIONS

4.1 The Customer acknowledges and agrees that the following services are not included in the charges for Service provided under this Support Agreement unless specified in Schedule A:

4.1.1 Batteries, UPS and Handsets Support;

4.1.2 Repair of attachments, devices or any other peripheral Equipment not specified in Schedule A; 

4.1.3 Electrical work which is external to the Equipment;

4.1.4 Repair of any malfunction or damage whatsoever caused by lightning electrostatic interference, electromagnetic interference or power surges of any type however caused;

4.1.5 Repair or Support due to failure or fluctuation of electrical power, air conditioning or humidity control, Customer error or omission, accident, misuse, vandalism, fault or negligence of the Customer or its employees, agents, contractors or invitees or any other causes whatsoever other than normal proper use or causes not attributable to normal wear and tear;

4.1.6 Attendance to Incident caused by operating of the Equipment outside Cloud Communications Group or Manufacturer specifications;

4.1.7 Specification changes, additions or removal of accessories, attachments and other devices;

4.1.8 Training of the Customer's staff in the operation of the Equipment except where otherwise agreed;

4.1.9 Provision of Support Services outside the Coverage Hours as set out in Schedule A; or on Time and Material basis as agreed in writing by the Parties at Cloud Communications Group’ then current charge rates;

4.1.10 Repairs to Equipment modified or changed without prior written consent by Cloud Communications Group;

4.1.11 Repairs caused by failure to observe or perform the obligations required to be observed or performed on the Customer's part;

4.1.12 Any changes which may become necessary due to changes in the main electricity supply; and

4.1.13 Relocation of Equipment including removal, de-installation, re-installation and transportation of the Equipment, devices and attachments and any Support or repairs due to moving or relocating the Equipment 

4.2 The warranties do not extend to any damages, malfunctions, or non-conformities caused by:

4.2.1 Actions or omissions, including but not limited to abuse, misuse or negligence; of non-Cloud Communications Group personnel 

4.2.2 The Customer’s failure to follow Cloud Communications Group’ and/or the manufacturer’s and/or the distributor’s installation, operation or Support instructions; 

4.2.3 Customer’s failure to permit Cloud Communications Group timely access, remote or otherwise, to the Equipment;

4.2.4 Attachment of non-compatible Equipment and or software to the Equipment;

4.2.5 Failure and or use of products or Equipment not serviced by Cloud Communications Group;

4.2.6 Force Majeure conditions

4.3 Cloud Communications Group is under no obligation to provide Service to software if:

4.3.1 The software has been modified or moved without Cloud Communications Group’ prior written approval;

4.3.2 The original software program identification marks have been removed or altered;

4.3.3 The software is the system software of third-party Equipment (i.e. core operating system, system utilities and libraries drivers, etc.);

4.3.4 The host computer does not conform to the update level nominated by Cloud Communications Group to be necessary to support the software or has been modified other than by Cloud Communications Group personnel, so as not to conform to the specifications for which the software was designed;

4.3.5 Failure to implement all new updates to software provided under this Support Agreement;

4.3.6 The Customer is using the software program in violation of its licence.

4.4 Cloud Communications Group is under no obligation to provide service support where a change in the Customer’s networking environment has caused or brought about degradation in the customer’s network service either being supplied or maintained by Cloud Communications Group. 

4.5 Cloud Communications Group may agree to perform services in the excluded situations set out in this Clause at Cloud Communications Group’ sole discretion in which case additional charges may apply.

4.6 Except as referenced and limited in this section, neither Cloud Communications Group nor its licensors or suppliers makes any express representations or warranties with regard to any products or services or otherwise related to this Support Agreement

4.7 With respect to customer equipment, whether hardware or software, that has been published on the manufacturer's web page as 'end of manufacturers Support’ or similar withdrawn from support notice, Cloud Communications Group will undertake reasonable commercial efforts to supply support services on this equipment. The customer acknowledges that replacement Equipment are likely to be difficult to source, and that the manufacturer will not process any fixes or enhancements on this equipment. Cloud Communications Group therefore does not warrant that this nature of equipment can be fully restored to a normal, operable condition if a fault occurs. 

5. CONFIDENTIAL INFORMATION

5.1 The term “Confidential Information” means either party’s business and/or technical information, any pricing and discounts and any other information or data, regardless of whether in tangible, electronic or other form if it is marked or otherwise expressly identified as confidential in writing. Information communicated verbally will qualify as Confidential Information if designated as confidential or proprietary at the time of disclosure and summarised in writing within thirty (30) days after verbal disclosure. Confidential Information does not include materials or information that: 

5.1.1 is generally known by third parties as a result of no act or omission of the receiving party; 

5.1.2 subsequent to its disclosure was lawfully received from a third party having the right to disseminate the information and without restriction on disclosure; 

5.1.3 was already known by the receiving party prior to receiving it from the other party and was not received from a third party in breach of that third party’s obligations of confidentiality; 

5.1.4 was independently developed by the receiving party without use of Confidential Information of the disclosing party; or 

5.1.5 is required to be disclosed by court order or other lawful government action, but only to the extent so ordered, and provided that the receiving party promptly notifies the disclosing party of the pending disclosure in writing so that the disclosing party may attempt to obtain a protective order. 

5.2 In the event of a potential disclosure in the case the abovementioned subsection, the receiving party will provide reasonable assistance to the disclosing party where the disclosing party attempts to obtain a protective order. Each party will protect the secrecy of all Confidential Information received from the other party with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than a reasonable degree of care. 

5.3 Neither party will use or disclose the other party’s Confidential Information except as permitted in this clause or for the purpose of performing obligations under this Agreement. 

5.4 The confidentiality obligations of each party will survive expiration or termination of this Agreement. 

5.5 Upon termination of the Agreement, each party will cease all use of the other party’s Confidential Information and will promptly return, or at the other party’s request destroy, all Confidential Information in tangible form and all copies of Confidential Information in that party’s possession or under its control, and will destroy all copies of Confidential Information on its computers, disks and other digital storage devices. Upon request, a party will certify in writing its compliance with this clause.
 

6. TERMINATION OF SUPPORT AGREEMENT 

6.1 Prior to commencement of Support Agreement:

6.1.1 Prior to the Support Service commencement date period, set out in Customer Details herein, the Customer may cancel Support Service coverage and if applicable receive a full refund of any prepaid amount

6.1.2 After the commencement of Support Service:

6.1.2.1 Customer may after the initial 12 months of Support Service or after commencement of any Renewal Term, terminate coverage upon ninety (90) days written notice to Cloud Communications Group and payment of a termination charge. The agreed termination charge is fifty percent (50%) of the charges due or paid for the remaining term or applicable Renewal Term under this Support Agreement. 

6.1.2.2 If Cloud Communications Group fails to perform or observe any material term or condition of the Support Agreement which is solely caused by Cloud Communications Group and such failure continues for thirty (30) days (except if caused by a Force Majeure event) after Cloud Communications Group is in receipt of the Customer’s written notice in respect of Cloud Communications Group’ failure to perform, the Customer may without prejudice terminate this Support Agreement without penalty, which includes any charges due for the period remaining under this Support Agreement. 

6.1.2.3 If the Customer fails to pay any charge when due and such payment is not received by Cloud Communications Group within thirty (30) days after receipt of written notice or if the Customer fails to perform or observe any other material term or condition of this Support Agreement and such failure continues for thirty (30) days after receipt of written notice the Customer is in default of this Support Agreement, Cloud Communications Group may terminate this Support Agreement and exercise any available right. Upon termination by Cloud Communications Group, the Customer shall be liable for the full Contract amount set out in Schedule A. The sum payable will be without set-off or deduction of any kind and inclusive of all taxes, fees and applicable GST.

6.1.2.4 This Support Agreement automatically terminates upon the appointment over the assets of either Party of an administrator, receiver or liquidator or if either Party enters into an arrangement for the benefit of its creditors or suffers or permits the appointment or becomes subject to any proceedings under bankruptcy or insolvency law whether domestic or foreign, or is wound up or liquidated voluntarily (other than for the purposes of solvent reconstruction).

7. WARRANTY 

7.1 Cloud Communications Group warrants to Customer that Support Services will be carried out in a professional and workmanlike manner by qualified personnel subject to a Forced Majeure Event. Cloud Communications Group does not warrant uninterrupted or error free operation of the Equipment or that the Equipment and Support Services will prevent Toll Fraud. 

7.2 To the maximum extent permitted by applicable law, Cloud Communications Group disclaims any warranties implied or statutory (including without limitation the Competition and Consumer Act 2010 or any equivalent State or Territory legislation), including, but not limited to, any warranties of merchantability, satisfactory quality, fitness for a particular purpose, and non-infringement. Cloud Communications Group’ may at its absolute discretion: 

7.2.1 in the case of the Equipment supplied under this contract;

7.2.1.1 replace the Equipment or supply of reasonably equivalent Equipment; or

7.2.1.2 modify or correct the Equipment; or

7.2.1.3 pay the cost of replacing the Equipment or of acquiring equivalent Equipment; or 

7.2.2 pay the cost of having the Equipment modified or corrected.

7.2.2.1 In the case of any Services supplied under this contract;

7.2.2.2 The supply of those services again; or

7.2.2.3 The payment of the cost of having those services supplied again, such costs to be at the then current Cloud Communications Group’ rates of charge.

7.3 The warranty remedies expressly provided in this Support Agreement will be Customer’s sole and exclusive remedies.

7.4 All Support and Equipment supplied by Cloud Communications Group will be subject to the manufacturer’s warranty coverage which is to occur during the Coverage Hours as set out in Schedule A herein; or on agreed Time and Material engagement basis. 

8. LIMITATIONS OF LIABILITY

8.1 For purposes of Warranty and limitations of liability set forth in this section, "Cloud Communications Group” is deemed to include Cloud Communications Group, its related corporate entities and the directors, officers, employees, agents, representatives, sub-contractors and suppliers of all of them and "Damages" will refer collectively to all injury, damage, loss or expense incurred regardless of nature.

8.2 In no event will either party be liable under or in connection with this Support Agreement for any indirect, incidental, special, economic or consequential loss or damage, loss of revenue, profits, goodwill, bargain or opportunities or loss or corruption or data or loss of anticipated savings incurred or suffered by the Customer whether in an action in contract, tort (including without limitation negligence), product liability, statute or otherwise and whether or not Cloud Communications Group was aware or should have been aware of the possibility of such loss or damage. 

8.3 For any liability which cannot lawfully be excluded, but can be limited, the maximum aggregate liability of Cloud Communications Group for damages, however caused, and on any theory of liability, whether for breach of this Agreement or in negligence or any other tort, or for any other common law or statutory cause of action, regardless of whether the limited remedies available to the parties fail of their essential purpose, arising from or connected with this Support Agreement is:

8.3.1 for Cloud Communications Group’ failure to perform any material obligations in this Support Agreement, the Customer has the right to cancel this Support Agreement without incurring cancellation charges and be entitled to a pro-rated refund of any prepayment;

8.3.2 The liability of either party for any claim arising out of or in connection with this Support Agreement will not exceed the amount of the fees paid or payable under this Support Agreement and most directly related to the claim. Cloud Communications Group’ maximum liability will not exceed the aggregate total amount of all fees paid under this Support Agreement. 

8.4 The Customer agrees to indemnify and hold harmless Cloud Communications Group for any acts or omissions resulting in personal or property injury or breaches of Intellectual property. 

8.5 Notwithstanding anything else in this clause, Cloud Communications Group’ liability will be reduced to the extent the loss or damage is caused by the customer or its representatives.

8.6 These terms and conditions including any attached schedules constitute the entire Support Agreement between Cloud Communications Group and the Customer in relation to the subject matter of this Support Agreement. To the extent permitted by law, all other representations, conditions or warranties, whether based in statute, common law or otherwise not included in this Support Agreement are excluded.

9. DISPUTE RESOLUTION

9.1 If any dispute arises in connection with the engagement, the Parties will attempt to resolve the dispute by good faith negotiations, failing which the Parties will together appoint an accredited mediator who will further assist the Parties to reach a settlement. If for any reason settlement has not been reached within a period of 60 days, either Party is free to commence such proceedings as may be considered appropriate by that Party to achieve a determination of the matter in dispute. The Parties agree to share equally in the cost of mediation.

9.2 Notwithstanding clause 9.1, a Party may seek urgent interlocutory orders or equitable relief from a Court of competent jurisdiction.

10. ASSIGNMENT

10.1 Neither Party may assign this Support Agreement without the prior written consent of the other Party, such consent not to be unreasonably withheld or delayed. Either Party may assign this Support Agreement without such consent to a present or future related corporate entity or to its successor in title, upon written notification to the other Party.

11. SUBCONTRACTING

11.1 Cloud Communications Group may subcontract any or all of the work to be performed under the Agreement but retains responsibility for the work.

12. VARIATION TO AGREEMENT

13.1 The Parties agree that any variations, supplements, or modifications to the Agreement are to be in writing, mutually agreed and executed by both Parties. Any waiver of any provision of this Agreement must also be in writing and executed by authorised representatives of both Parties.

13.  NOTICES

13.1 A notice, approval, consent or other communication in connection with this Agreement must be in writing and sent by mail or facsimile to the other Party or Parties at the address shown on the front page of this Agreement, or if the addressee notifies another address, then to that address.

13.2 A notice, approval, consent or other communication takes effect from the time it is received unless a later time is specified in it. A notice, consent, request or any other communication is deemed to be received:

13.2.1 if by delivery, when it is delivered;

13.2.2 if a letter, three (3) days after posting (seven, (7) if posted to or from a place outside Australia); and

13.2.3 if a facsimile, at the time of dispatch if the sender receives a transmission report which confirms that the facsimile was sent in its entirety to the facsimile number of the recipient.

13.2.4 If sent by electronic mail (e-mail), with an acknowledgement that the email has been received.

14. GENERAL

14.1 If any provision of this Agreement is found to be invalid or unenforceable, the Parties agree that such provision becomes fully severable and the remaining provisions remain in effect. The Parties further agree that in the event such invalid or unenforceable provision is an essential part of this Agreement, they must immediately begin negotiations for a replacement provision.

14.2 If either Party fails to enforce any right or remedy available under the Agreement, that failure is not to be construed as a waiver of any right or remedy with respect to any other breach or failure by the other Party.

14.3 The section headings in this Agreement are inserted for convenience only and are not intended to affect the meaning or interpretation of the Agreement.

14.4 This agreement is construed in accordance with and governed by the laws in force in the state of New South Wales and both Parties hereby submit to the non-exclusive jurisdiction of the courts of the state of New South Wales. 

14.5 Where applicable the Customer, as an end user of any Software licences, acknowledges and agrees it will be subject to the Manufacturers Software Licence Terms