Managed Services Agreement Terms & Conditions

1. Definitions and Interpretations

1.1. Definitions

In this Agreement (hereinafter defined) the following expressions shall have the following meanings:

1.1.1. Agreement means the agreement between the parties, which incorporates these terms and conditions and all Schedules, and other documents attached or incorporated therein by reference and as amended from time to time;

1.1.2. Associates means any entity or body corporate related to or associated (as defined in the Corporations Act 2001 (Cth) with the party;

1.1.3. Client means the party specified as such in this Agreement;

1.1.4. Commencement Date means the date specified in the Agreement on which the Agreement comes into force or if no such date is specified the date on which the Services commence;

1.1.5. Consumer Price Index or CPI means the consumer price index for Brisbane (All Groups) published by the Australian Bureau of Statistics or the index officially substituted for it;

1.1.6. CPI Review Date means the annual anniversary of the Commencement Date;

1.1.7. Current CPI means the Consumer Price Index last published before the relevant CPI Review Date;

1.1.8. Default Interest Rate means rate of two (2) per cent per annum above the base rate of National Bank of Australia from time to time in force compound quarterly;

1.1.9. Force Majeure means any of the following: (i) Act of God, (ii) outbreak of hostilities, riot, civil, disturbances, acts of terrorism (iii) the act of any government or authority (including refusal or revocation of any licence or consent) (iv) fire, explosion, flood, fire, fog or bad weather (v) power failure, failure of telecommunication lines, failure of breakdown of plant, machinery or vehicles, (vi)default of Future Computers or sub-contractors, (vii) theft, malicious damage, strike, lock-out of industrial action of any kind and (viii) any cause or circumstance whatsoever beyond either party’s reasonable control;

1.1.10. GST means any tax imposed on the supply of any goods, services, real or personal property or other things or similar tax under any GST Law;

1.1.11. GST Law at any present or future time means any GST law as defined in section 195-1 of A New Tax System (Goods and Services Tax) Act 1999, as affected or interpreted by any other applicable legislation and any public or private ruling of the Commissioner of Taxation, as at that time;

1.1.12. Intellectual Property Rights means all patents, utility models, petty patents, design rights (whether registered or unregistered), certain layout rights, trademarks, service marks and copyright, and applications in any country of the world for any of the foregoing;

1.1.13. Previous CPI means the Consumer Price Index number last published before the date on which the Service Charge was last reviewed before the relevant CPI Review Date (or if it has not been reviewed, the Commencement Date);

1.1.14. Normal Working Hours means the days and hours as specified in the Agreement;

1.1.15. Services means the services to be provided by Future Computers to the Client, more particularly described in the Agreement and where the context admits shall include any part thereof;

1.1.16. Service Charge means the charges for the Services as set out in the Agreement;

1.1.17. Term means the term of the Agreement as provided for in clause 2;

1.1.18. Transition Fee means fee payable by the Client to Future Computers for the upfront labour costs to transition the Client onto Future Computer systems;

1.1.19. Variation means any change to the Services including but not limited to:

1.1.19.1. the addition or reduction of features or services;

1.1.19.2. the addition or reduction of equipment and/or software;

1.1.19.3. the use of existing equipment and/or software in a different configuration or for a different purpose;

1.1.20. Variation Schedule means a schedule to the Agreement drawn up pursuit to Clause 5.4.

1.2. Interpretation

1.2.1. All references to a statutory provision shall be construed as including references to any statutory provision modification, consolidation or re-enactment (whether before or after today’s date) for the time being force.

1.2.2. Expect where the context otherwise requires, words denoting the singular include the plural and vice versa; words denoting any gender include all genders; words denoting persons include firms and corporations and vice versa.

1.2.3. Unless otherwise stated, a reference to a clause or schedule is a reference, a reference to this Agreement, and each Schedule shall be deemed to form part of this Agreement.

1.2.4. Clause headings are for ease of reference only and do not affect the construction of the Agreement.

1.2.5. Any reference to a party to the Agreement includes a reference to its successors in title and permitted assigns.

2. Engagement of Service Provider

2.1. The Client hereby engages Future Computers to provide the Services and Future Computers agrees to provide the Services on the terms and conditions of this Agreement.

3. Term

3.1. This Agreement will commence on the Commencement Date and will continue:

3.1.1. for the period specified in the Agreement or if no such period is specified until Future Computers has notified the Client that the Services have been substantially completed; or

3.1.2. until termination in accordance with the provisions of clause 15.

4. Performance Of Services

4.1. Future Computers shall diligently perform the Services with reasonable skill and care and in accordance with the terms of the Agreement.

4.2. To the extent that they are reasonably required by Future Computers to enable Future Computers to perform the Services, the Client shall throughout the Term promptly provide Future Computers with complete and accurate information concerning its operations and activities, and answers to any questions, and any decisions made by the Client, in relation to the Services.

4.3. The Client shall provide Future Computers free of charge with such office space and office services as may reasonably be necessary to enable Future Computers to fulfil its obligations under the terms of the Agreement.

4.4. Future Computers shall keep sufficient records of all acts and things done by it in relation to the provision of the Services and at the Client’s request shall make such records available for inspection and/or provide copies to the Client at the Client’s own cost.

4.5. Future Computers shall incur no liability whatsoever to the Client by reason of any delay in the performance of the Services:

4.5.1. if the delay is due wholly or partly to any act or omission of the Client, including but not limited to failure to approve any which approval is required by the Client within any periods agreed in writing between Future Computers and the Client or if there is no such period with a reasonable time;

4.5.2. if the delay is due to Force Majeure pursuant to clause 13.

In the event of any such delay, Future Computers shall have the right to an extension of time to perform the Services by such reasonable period having regard to the nature of such delay, and in respect of any such act or omission on the part of the Client, the right to be paid all reasonable costs charges and losses sustained or incurred by Future Computers as a result thereof and any part of the Service Charge which would but for such act or omission have been payable.

5. Variation to Services

5.1. Either party may at any time propose a Variation. Such party shall give notice of such Variation or change request (hereinafter called a “Variation Order”) together with full particulars to the other party. Subject to the agreement of the Client, Future Computers shall within a reasonable time of the service of the Variation Order prepare at its discretion and at the Client’s cost either a feasibility study or proposal or, if it is satisfied that the proposed Variation can be implemented without such a study or proposal, an implementation plan incorporating (inter alia) Future Computers’ recommendation for the scope and period of implementation of the Variation.

5.2. As part of the preparation by Future Computers of the feasibility study, proposal and/or plan the Client shall promptly furnish such information as Future Computers may reasonably require, enabling Future Computers to prepare a quotation for the proposed Variation, which quotation shall include (inter alia):

5.2.1. any cost (including any under-recovery of charges for Services);

5.2.2. of implementing the variation and/or any price for carrying out any new service;

5.2.3. any proposal for an amendment to the agreement;

5.2.4. the scope of work to implement the Variation including any effect on existing Services;

5.2.5. the timetable for such implementation;

5.2.6. any change to the duration of the agreement.

5.3. In proposing a Variation, both Future Computers and the Client respectively shall take due account of any current plans or developments of which it is aware and which the other may be considering in connection with the Services. This shall not restrict Client’s or Future Computers’ right to request a Variation if it considers it appropriate.

5.4. If the Client accepts Future Computer’s quotation, Future Computers shall prepare a Variation Schedule to the Agreement incorporating the agreed variations, which schedule shall be binding upon signature by both parties.

5.5. Where the Client declines to accept Future Computers’ quotation, the Client must immediately notify Future Computers and, if applicable, shall pay to Future Computers such reasonable costs as may have been incurred by Future Computers in connection with the preparation of the quotation.

6. Service Charge and Payment

6.1. Service Charge
6.1.1. The Service Charge and any variation to the Service Charge during the period of the Agreement shall be as set out in the Agreement or appropriate schedule of costs and any Variation Schedule.

6.1.2. The Service Charge does not include travel time, the cost of travel, accommodation and subsistence, and expenses incurred by Future Computers in the course of providing any out of scope Services which shall be charged to the Client and payable pursuant to clause 6.2.1. Upon written request from the Client, Future Computers must provide to the Client evidence of such costs and expenses.

6.1.3. Unless otherwise agreed in writing Future Computers shall invoice the Client in respect of the Service Charge and any such costs or expenses, and charges which may not be included in the Service Charge, at fortnightly intervals.

6.2. Payment

6.2.1. All invoices rendered in accordance with this clause are due upon delivery with payment to be made by the Client in accordance with the payment details noted on the invoice and agreed with by Future Computers management.

6.2.2. The Client acknowledges and confirms that a failure by Future Computers to deliver an invoice to the Client as required under this clause shall not in any way relieve the Client from its obligation to pay the Service Charge or constitute a waiver by Future Computers of the right to receive the Service Charge.

6.3. Dispute of Service Charge

6.3.1. The Client shall forthwith notify Future Computers if any part of an invoice is disputed. If Future Computers receives no such notification within seven (7) days of the date of the invoice, the Client shall be precluded from disputing payment of any such invoice. Any part of an invoice properly disputed by the Client shall not affect payment of the undisputed portion.

6.4. Interest on late payments

6.4.1. Future Computers reserves the right to charge the Client interest in respect of the late payment of any sum due under this Agreement at the Default Interest Rate on the amount outstanding from the date payment is due to the actual date of payment. The Client shall pay such interest to Future Computers upon demand.

6.4.2. Subject to clause 6.3.1, all amounts due under this Agreement shall be paid in full without a deduction or withholding other than as required by law. The Client shall not be entitled to assert any credit set-off or counterclaim against Future Computers in order to justify withholding payment of any such amount in whole or in part.

6.5. Suspension of Services
6.5.1. If after the due date for payment has passed, payment of the Service Charge due under the terms of this agreement is not made within seven (7) days of a written demand sent to the Client or within seven (7) days of the expiry of any agreed credit period (whichever is the longer), Future Computers may at its discretion suspend the performance of the Services or any part thereof until payment in full is received by Future Computers. If upon resumption of the Services, Future Computers is required to carry out any services or incur any costs which but for the suspension would not have carried out or incurred, the Client shall reimburse the cost of any such service and costs, which shall become payable pursuant to clause 6. Any period of suspension shall be treated as a delay pursuant to clause 4.5.

6.6. Review of Service Charge

6.6.1. The Service Charge from and including each CPI Review Date is to be the Service Charge payable immediately before that CPI Review Date multiplied by the Current CPI and divided by the Previous CPI.

7. GST

7.1. The Client must pay all GST in respect to the Service Charge and other charges payable under this Agreement to Future Computers.

7.2. If any payment made by one party to any other party under or relating to the Agreement constitutes consideration for a taxable supply for the purposes of GST or any similar tax, the amount to be paid for the supply will be increased so that the net amount retained by the supplier after payment of that GST is the same as if the supplier was not liable to pay GST in respect of that supply. This provision is subject to any other agreement regarding the payment of GST on specific supplies and includes payments for supplies relating to the breach or termination of, and indemnities arising from, this document.

8. Communication

8.1. The Client shall nominate a person with the necessary knowledge and experience relevant to the provision of the Services and with the required knowledge of Client’s business (including but not limited to Client’s organisation, it’s operations and business practices) as its representative and as the prime point of contact with Future Computers and through whom all communication with Future Computers shall be made.

8.2. Future Computers shall nominate a representative who shall be responsible for monitoring and reviewing the performance of the Agreement and through whom all communication with Client shall be made.

8.3. Each party may at any time substitute another suitable person, as its representative, and shall give notice to the other party of any such substitution.

8.4. Each party’s representative shall meet periodically as agreed between the parties to review the Services and to deal with any requests and problems as may have arisen in the period prior to the review.

8.5. Either party shall be entitled to call a meeting referred to in clause 8.4 upon not less than three (3) Business Days’ notice if that party reasonably considers that there are issues which need to be discussed and/or resolved relating to the Services. Both parties shall use all reasonable endeavours to attend meetings called on shorter notice when urgently required.

8.6. here the proceedings of each such meeting are recorded, Future Computers shall produce minutes and a copy sent to the Client as soon as possible thereafter. The Client has signified its approval, or it fails to notify Future Computers of its approval or disapproval within fourteen (14) days of receipt, the minutes shall be deemed to be approved by Client and an accurate and authoritative record of the matters discussed and agreed.

9. Employment of Personnel

9.1. Personnel

9.1.1. Future Computers shall make available sufficient personnel to provide the services at the times agreed between Future Computers and the Client for the performance of the Services. Subject as aforesaid, the Services shall be performed during Normal Working Hours by Future Computers and any hours worked outside Normal Working Hours for any out of scope services shall be charged separately as may be provided in the appropriate schedule.

9.1.2. Future Computers will ensure that the personnel assigned by Future Computers to the provision of the Services possesses the degree of skill and experience appropriate to the tasks to which they are allocated. Future Computers shall use reasonable endeavours to maintain the personnel so allotted but may substitute other suitably qualified personnel in connection with its own business requirements or if such personnel are promoted to a higher job category during the period of the Agreement and Client has requested that any such personnel should continue to provide Services, Future Computers may adjust the Service Charge to take account of the increased cost to Future Computers of employing such personnel.

9.2. Retention of personnel

9.2.1. During the Term and for a period of three (3) months thereafter, the Client and its Associates shall not without the prior written consent of Future Computers either directly or indirectly or in conjunction with any other person induce any employee of Future Computers directly involved in the supply or purchase of the Services to leave their employment and become an employee of the Client and its Associates.

9.2.2. As part of the written consent referred to in clause 9.2.1, Future Computers may in its absolute discretion require the Client to make a payment to Future Computers to reflect the cost of recruiting a replacement for such employee and to cover the cost of any delay or failure in completing any work being undertaken by such employee on behalf of Future Computers at the time such consent is given by reason of such employee ceasing to be employed by Future Computers.

10. Intellectual Property Rights

10.1. Unless otherwise agreed in writing, any Intellectual Property Rights arising solely out of and in the course of the work carried out by Future Computers as part of the Services shall vest in Future Computers.

10.2. Subject to the payment of all sums due to Future Computers under this Agreement, Future Computers agrees to grant or procure the grant to the Client a non-exclusive, perpetual royalty free license under the Intellectual Property Rights referred to in clause 10.1 to use and reproduce the results of such work for the purposes of its own business.

10.3. To the extent that Future Computers requires a license under any Intellectual Property Rights vested in or licensed to the Client to enable Future Computers to carry out the Services, the Client hereby grants to Future Computers and its Associates, and warrants that it has the right to grant to Future Computers and its Associates, a non-exclusive, royalty-free license for the duration of the Agreement.

11. Liability, Indemnity and Release

11.1. To the extent permitted by law, Future Computers (including its Associates, respective officers, employees, sub-contractors and agents) is not responsible or liable whatsoever for any loss suffered or sustained to a person or property and including but not limited to consequential (including economic) loss by reason or any act or omission, deliberate or negligent by Future Computers including its Associates, respective officers, employees, sub-contractors and agents in connection with the Services, this Agreement or howsoever arising.

11.2. In the event Future Computers is held liable for any matter under this Agreement and that liability may be limited or is capable to be limited by law, such liability is limited to, at the election of Future Computers, the provision of the Services again or to the amount of the Service Charge actually paid by the Client to Future Computers under this Agreement.

11.3. The Client indemnifies and agrees to keep indemnified Future Computers, its Associates, officers, employees, sub-contractors and agents on demand against any loss, expense, cost, damage, claim, demand, suit, action, proceeding, judgement, order of a court or tribunal, legal fees (on a solicitor and own client basis) which Future Computers pays, suffers or incurs or is liable for in respect of:

11.3.1. any negligent act or omission of the Client;

11.3.2. any act or omission of the Client which is intended to cause damage in any way to Future Computers knowingly or unknowingly; and

11.3.3. any breach of Agreement by the Client.

11.4. The Client releases Future Computers from, and agrees that Future Computers is not liable for, liability or loss arising from, and cost incurred with damage, loss, injury or death and anything Future Computers is permitted or required to do under this Agreement.

12. Publicity

12.1. The parties acknowledge that the terms of the Agreement are to be treated as confidential information pursuant to clause 14 and neither party shall disclose any such terms without the prior written approval of the other party.

12.2. The Client acknowledges that Future Computers may wish to publicise the existence of the Agreement, and its relationship with the Client and the general nature of the Services in connection with Future Computers’ advertising and publicity program. Future Computers shall prior to publication submit any publicity material containing any of the above references to the Client for approval, such approval must not to be unreasonably withheld or delayed by the Client.

13. Force Majeure

13.1. If Future Computer’s performance of its obligation is affected by Force Majeure it shall forthwith notify the Client of the nature and extent thereof. If by reason of Force Majeure, Future Computers is unable to perform or there are delays by it in the performance of any such obligations, Future Computers’ performances of any such obligation shall be suspended as long as the Force Majeure continues and the time for performance of that obligation shall be extended accordingly, and the Future Computers otherwise in default shall not in any event be liable to the Client for any loss or damage whatsoever and howsoever arising (whether direct or indirect loss or damage) incurred or suffered or for any breach of any of the terms of the Agreement by reason of such Force Majeure.

14. Confidentiality

14.1. Each party (“the receiving party”) shall at all times during the Term and after the termination of this Agreement:

14.1.1. maintain confidential all information given to him by the other party (“the disclosing party”) at any time in respect of the business and affairs of the other party, whether initially disclosed orally or in writing, or in the form of samples, models, computer data or software, or by demonstration or otherwise, which is by its very nature confidential or is previously identified or indicated to the receiving party by the disclosing party as being confidential information (“the information”);

14.1.2. not use the information other than for the purposes of this Agreement.

14.2. Information may be disclosed or reproduced by the receiving party to such an extent only as is necessary for the purposes contemplated by this Agreement, or as required by law and subject in each case to the disclosing party being satisfied that the receiving party has entered into an agreement on similar terms as contained in this clause 14 with the disclose as to the confidentiality and restricted use of such Information, so as to enable the receiving party to comply with its obligations under this Agreement.

14.3. Information disclosed pursuant to this Agreement shall be stored securely when not in use. Upon expiry or termination of this the receiving party shall return all Information and all or any permitted copies to the disclosing party.

14.4. Except where the disclosing party gives written instructions to the receiving party at any time that the obligations of confidentiality in respect of specified items of Information should be maintained for a different period the receiving party’s obligations pursuant to this Agreement shall notwithstanding subsequent termination continue for an indefinite period.

14.5. The receiving party shall be permitted to use for any purpose and to disclose any part of the Information to the extent only that:

14.5.1. The Information is in or comes into the public domain otherwise than by disclosure by the receiving party; or

14.5.2. The information was or is lawfully in possession of the same and free to disclose it; or

14.5.3.The receiving party already has knowledge of the information prior to disclosure by the disclosing party as evidence by written records; or

14.5.4. Law requires such disclosure.

14.6. Nothing in this Clause shall be deemed to grant a license expressly or by implication under any Intellectual Property Rights.

14.7. This Clause shall supersede any existing agreement between the parties concerning the confidentiality of information as may have been entered into in anticipation of the conclusion of the Agreement.

15. Termination

15.1. Termination by Future Computers

15.1.1. Future Computers may terminate this Agreement by written notice to the Client if:

15.1.1.1. any monies due under this Agreement are not paid in accordance with the terms of this Agreement;

15.1.1.2. the Client commits any material breach of any term of this Agreement which (in the case of a breach capable of being remedied) shall not have been remedied within fourteen (14) days of a written request to remedy the same; or

15.1.1.3. convenes a meeting of its creditors or a resolution is passed or Court order made for winding up of the Client or an administrator is appointed to the Client pursuant to any relevant law; or where a receiver or manager is appointed to the assets or undertaking of the Client or any part thereof, with such termination to be effective from the date stated in the notice.

15.1.2. Future Computers may terminate this Agreement at any time by giving the Client fourteen (14) days written notice of said termination.

15.2. Termination by the Client
15.2.1. The Client may terminate this Agreement within the first twelve (12) months of the Term by giving Future Computers thirty (30) days written notice of said termination and paying to Future Computers:

15.2.1.1. the sum equivalent to one (1) month of the Service Charge; and

15.2.1.2. the Transition Fee (where such fee was not paid by the Client to Future Computers at the commencement of the Term).

15.2.2. The Client may terminate this Agreement after the first twelve (12) months of the Term by giving Future Computers thirty (30) days written notice of said termination and paying to Future Computers the sum equivalent to one (1) month of the Service Charge.

15.3. Effect of termination

15.3.1. Any termination of this Agreement by Future Computers shall be without prejudice to any other rights or remedies Future Computers may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of Future Computers nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.

15.4. Acts upon termination

15.4.1. Upon termination of the Agreement, Future Computers shall be entitled to enter upon the premises of Client for the purposes of recovering any equipment or materials which are the property of Future Computers, for which purpose Client hereby grants Future Computers and irrevocable license to enter any such premises.

15.4.2. Upon termination under this clause 15, the Client must pay to Future Computers all monies outstanding under this Agreement immediately.

16. Nature of Relationship

16.1. This Agreement does not create, and must not be construed to create, any express or implied relationship between Future Computers or the Client of employment, principal and agency, franchisor and franchisee, partnership or joint venture.

17. Assignment of Agreement

17.1. Future Computers may at any time assign or transfer any right or liability under this document to any third party without the consent of the Client.

17.2. The Client must not transfer any right or liability under this document without the prior written consent of Future Computers with such consent not to be unreasonably withheld.

18. Waiver

18.1. The waiver by either party of the breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the party of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach of default by the other party.