Legal – New Era Technology AU05

These Standard Terms and Conditions list the general terms and conditions that apply to the relationship between you and New Era Technology AU-05 Pty Ltd and its Related Bodies Corporate (“New Era”).

Your Agreement with New Era will consist of these Standard Terms and Conditions, your Managed Services Agreement or other Service Agreement (as applicable). Please note that these Standard T&Cs need to be read together with your Managed Services Agreement / Service Agreement.

By signing the Managed Services Agreement, you also agree to these Standard Terms and Conditions. Should there be any inconsistencies between these Standard Terms and Conditions and your Managed Services Agreement, the order of preference in applying these documents is: first the Managed Services Agreement, for it may have special terms agreed between New Era and you, then Standard Terms and Conditions.

Definitions

“Agreement” means these Standard Terms and Conditions and the Managed Services Agreement or other Service Agreement;

“Australian Consumer Legislation” means Schedule 2 of the Competition and Consumer Act 2010 (Cth).

“Authorised Subcontractor” means a Related Body Corporate of New Era such as CrossPoint Telecom Pte. Ltd. Company Number 200922788K, a company incorporated in Singapore and having its registered address at 30 Cecil Street, #19-08 Prudential Tower, Singapore;

“Business Day” means a day which is not a Saturday, Sunday or public holiday in the location where the Service is being provided;

 “Committed Term” means the number of months subscribed to use the Service and pay the Fees, as specified in your Managed Services Agreement;

“Confidential Information” means oral, written or electronic information, including but not limited to the Client or New Era Intellectual Property, operational information, all trade secrets, know-how, computer programs, network diagrams, designs, equipment configurations, processes, formulae, computer processing systems and techniques, data files, flow charts, specifications, pricing or client information, practice procedures, marketing plans or other confidential financial or business information;

“Coverage Hours” means the Service Classification selected in your Managed Services Agreement, being either of:

“Monthly Fees” means the monthly committed Service Fees listed in your Managed Services Agreement;

“Equipment” means either New Era Equipment or the Purchased Equipment or both, as the context requires;

“Fee” or “Fees” means the fee(s) (exclusive of GST) in relation to a Service as set out in the relevant Managed Services Agreement and in clause 3 below, and as applicable, include installation fees and monthly Service fees);

“GST” means Goods and Services Tax (as defined under Australian law in “A New Tax System (Goods and Services Tax) Act 1999 (Cth)) or similar value added tax;

“Included Services” means any Services that are deemed “in scope”, that are provided to you as part of your Managed Service and included in your monthly Service Fees. Included Services are listed in your MSA;

“Intellectual Property” means any right in relation to copyright, patent, patent application, registered or unregistered trade mark, trading name, domain name, registered or unregistered design, trade secret, know how, Confidential Information, common law intellectual property right of New Era or any licence to lawfully use any of the above and all other intellectual property as defined in article 2 of the Convention establishing the World Intellectual Property Organisation of July 1967, including any right to register those rights, whether created before or after you Managed Services start date, whether existing in your local country or any other country and in all cases for the duration of those rights;

“MSA” means your Managed Services Agreement or Service Agreement agreed in writing between you and New Era;

“New Era” or “we” means New Era Technology AU-05 Pty Ltd (A.C.N. 114 647 942) of 122 O’Riordan Street, Mascot NSW 2020 and its Related Bodies Corporate;

“New Era Equipment” means any equipment that New Era or its third party suppliers may provide to you as part of the Service under this Agreement but excluding Purchased Equipment;

“Planned Outage” means a period, as reasonably determined by New Era and agreed to in Writing by you, that New Era may interrupt supply of the Service to you for routine maintenance, repairs, upgrading or other similar activities after giving you 3 (three) days’ prior notice;

“POA” or “Price on Application” means an item on your Agreement which, if requested by you, will be quoted separately on each occurrence. This may include Project Fees.

“Purchased Equipment” means any equipment which you purchase from New Era under the MSA;

“Related Bodies Corporate” means an entity directly or indirectly controlling a party; which is under the same direct or indirect ownership or control as that party; or which is directly or indirectly owned or controlled by that party. An entity will be treated as being controlled by another if that other entity has fifty percent (50%) or more of the votes in such entity, has the same shareholding as that party and is able to direct its affairs and/or to control the composition of its board of directors or equivalent body.

“Service” and “Services” means the services and products set out in the relevant MSA and/or Service Schedule;

“Service Exception” means instances or faults which are not covered by the New Era Managed Services or SLAs, and which are more specifically listed in clause 4.1.

“Standard Terms and Conditions” means the general terms and conditions applicable to your Service as set out in this document;

“Support Request” means a request through the New Era Service Desk, logged by your authorised user, which may be responded to either remotely by our Service Desk or by an on-site engineer.

“We” and “Us” means New Era; and

 “Works” means any services such as assessment and design configuration and provisioning, as-built project documentation as well as any implementation, project management, remote and on-site installation, change management) works required to enable provision of the Service.

“Writing” will have the meaning given to it in clause 12.

“You” and “Your” means your company or your business, as identified on the MSA;

1. Provision of Service

1.1 Installation and Commissioning

(a)    New Era will use its best endeavors to carry out any Works within the agreed timeframe. This timeframe may be set out in the MSA or agreed in other communication between you and New Era. Completion of Works in a timely manner will depend on timely performance by third party suppliers, such as internet service providers, equipment vendors and logistic services providers.

(b)    The Fees for any Works are based on the information you have provided to us. If that information is inaccurate or an unforeseen event occurs, we may charge you for any additional cost incurred by us in completing the Works. Such additional cost will be communicated to you and agreed before being incurred.

(c)     You agree that you will always provide us with safe and adequate access (by prior appointment) to your premises that complies with current local occupational health and safety requirements and reasonable and timely assistance from your employees to allow us to carry out the Works.

1.2 Service

(a)    We will provide you with the Included Services as part of your Service. Any other Services listed as “out of scope” or “Price On Application” can be provided to you upon request and at an additional cost. Your MSA sets out the scope and nature of the Service that we will provide to you.

(b)    Services will be supported during Coverage Hours. You agree that you will give New Era at least three (3) Business Days’ notice should support be required outside of Coverage Hours. Any additional Support outside of the scope of your Included Services will be charged as an additional service (as a POA item), and if the upgrade to higher Coverage Hours is permanent, this will be agreed in Writing and added to your monthly Service Fees from the date of upgrade.

(c)     Whenever we provide you with a Service, we endeavour to: 

(i)     provide the Service with reasonable care and skill and with technical knowledge and perform our obligations in a timely manner;

(ii)    subject to any delays by third party service providers or delivery of Equipment by our third-party suppliers, begin providing the Service within a reasonable time or by any Service Start Date, connection date, installation date or other time set out in your MSA; and

(iii)   ensure that the Service substantially conforms to any specifications that we provide.

1.3 Equipment

(a)    If required for your Managed Service, we may supply Equipment to you. This Equipment may be Purchased Equipment (which you buy from us) or New Era Equipment (which we provide to you for your use during the duration of the Service).

(b)    You may request upgrades or new versions of Equipment and we will advise you of the availability and any additional costs associated with the upgrade or new version.

1.4 Support and Maintenance

(a)    New Era will provide you with such level of monitoring, support and other Services as listed in your MSA as Included Services. In relation to any issues with our Managed Service, it is the responsibility of New Era to promptly upon becoming aware of any issue with the Service arrange for the maintenance, support or repair of any fault in the Service or, as applicable, in the Equipment or New Era Equipment.

(b)    Your Monthly Fees will cover the cost of  support and maintenance of the Service during the Coverage Hours (in the location and country where the Service is provided) unless extensive support or repair of faults is required (delaying other support or Services we provide to you and therefore affecting our ability to meet our SLAs) and it is determined to be caused or contributed to by you,  your employees, your contractors or third party service providers not authorised by New Era.

1.5 Reporting

(a)    As part of the Managed Services, we may provide you with reporting. Any reports will be listed in your MSA.

(b)    At an additional cost (POA), we may also, upon request, provide you with other non-standard reports.

2. Responsibilities

2.1 General Responsibilities

Whenever we provide a Service to you, you agree to:

(a)    comply with the Agreement;

(b)    complete any pre-requisites set out in the Agreement;

(c)     follow our directions and instructions provided to you in Writing regarding the use of the Service;

(d)    as may be applicable and required for your Managed Service, allow us to maintain constant remote access to all your systems and, as required, safe and reasonable physical access to the Equipment and safe and adequate working facilities for on-site support visits by our engineers;

(e)    maintain an adequate internet link with sufficient speed to facilitate efficient remote monitoring by New Era;

(f)     as applicable, ensure that New Era Equipment (if any) is kept safe and secure to a standard accorded to your own equipment whilst in your premises and that your users will use the New Era Equipment appropriately and exercise due care with New Era Equipment;

(g)    pay invoices for the Fees by their due date, even if you dispute an invoice and you are waiting to clear the invoicing dispute with us, in which instance you will only need to pay the undisputed part of the invoice;

(h)    ensure that all information and data you give us is correct, up-to-date and complete, including but not limited to the list of users who are authorised to send support requests to New Era;

(i)     be solely liable for all data content carried over a third party network;

(j)     use the Service for lawful purposes;

(k)     provide New Era with access to such information and such of your authorised users or other individuals that may be required to resolve a support incident effectively and promptly;

(l)     agree to inform us of any activity that may adversely affect the provision of New Era Managed Services to you, including but not limited to, any interruptions to the supply of electricity or scheduled maintenance breaks or outages (whether by you or your third party service providers)

(m)   ensure that any of your new staff that will become authorised users will receive appropriate training for the use of the New Era Service Desk; and

(n)    comply with all applicable laws, regulations, standards, and codes.

2.2 New Era Equipment (as applicable)

This clause 2.2 is only applicable where New Era Equipment is provided to you as part of your Managed Services.

(a)    New Era Equipment remains the property of New Era or our suppliers (as the case may be) throughout the Committed Term and any extension of it (or during rolling over on a month by month basis, as applicable). Upon termination of your Service by either party, you will be required to return the New Era Equipment to us. All New Era Equipment is provided to you on an “as is’ basis without any express or implied representations or warranties (other than the original manufacturer’s warranty and our applicable Service SLAs) of any kind by New Era.

(b)    All your equipment is and will remain your property and New Era will not claim any title or interest in your equipment. 

(c)     You agree not to make, or allow to be made, any alterations, modifications, adjustments or repairs to the New Era Equipment or servicing of the New Era Equipment and you must not remove or alter or allow anyone to remove or alter any labels fixed to the New Era Equipment;

(d)    We may, at any time and at our cost, modify or replace New Era Equipment provided that there is no adverse impact on the Service during your normal business hours.

(e)    For your own safety, and so that the Service is not disrupted, you must:

(i)     allow us to install or arrange for New Era Equipment to be installed in a suitable, air-conditioned and dry, reasonably accessible place;

(ii)    as we may specify, protect New Era Equipment from radio or electrical interference, power fluctuations, humidity and water, abnormal environmental conditions, loss, theft and any other risks and ensure it is not damaged and remains in good condition;

(iii)   only use New Era Equipment at the agreed site location and according to our instructions;

(iv)    not enter into any agreement for the transfer, sale, mortgage, grant of any security interest or other similar dealing, in respect of New Era Equipment;

(v)     give us reasonable access to your premises (at all times by prior appointment unless we have agreed to place a permanent on-site support resource at your premises) for the purpose of repairing, maintaining or developing New Era Equipment, or for any other reasonable purpose;

(vi)    only permit New Era Equipment to be repaired, serviced, moved or disconnected by us or our authorised contractors unless we otherwise authorise in Writing;

(vii)   obtain our written approval prior to connecting anything to or changing a connection to New Era Equipment;

(viii)  always follow the reasonable directions of us or our contractors and any directions from the manufacturer as communicated in Writing from us to you, when connecting anything to New Era Equipment or otherwise operating New Era Equipment, ensure it is installed according to our written specifications;

(ix)    never use the Equipment for purposes for which it is not designed; and

(x)     pay our Fees for repairing or replacing any part of New Era Equipment which is lost, stolen, destroyed or damaged by you, or by anyone entering your premises (other than New Era). If you become aware of any loss, theft or destruction of, or damage to, New Era Equipment, you must notify us immediately in writing. There is no charge where damage occurs through normal wear and tear.

(f)     Where third party equipment or network is used to provide the Service, you must comply with any requirements of such third party in relation to that equipment or network.

(g)    It is a condition of your Service that you arrange suitable insurance cover for any loss, damage, destruction or theft of New Era Equipment or any other liability you may incur arising from this Agreement, You agree to reimburse New Era for any loss or damage (whether full or partial, but excluding normal wear or tear) of New Era Equipment to the extent of replacement value of such Equipment, subject always to any reasonable liability cap under the insurance policy.

2.3 Software

(a)    Where New Era provides you with any software to use and unless the software has been directly licensed under your name: 

(i)     it remains the owner or licensee of the software;

(ii)    you may use the software only for the purposes for which it is provided;

(iii)   your right to use the software may not be assigned or otherwise transferred to anyone else without the prior written consent of New Era;

(iv)    you will not change or interfere with the software in any way;

(v)     you will not use the software to recreate or reverse engineer any source code;

(vi)    you will not copy any part of the software except for the purposes of New Era’s approved backup or testing procedures; and

(vii)   you will comply with any further requirements imposed by New Era in relation to the software or where relevant, any requirements of the owner or licensor of the software.

(b)    New Era may at any time install upgrades or new versions of the software. Such upgrades or new versions will be included in your Fees.

2.4 Purchased Equipment

(a)    As applicable and if required for the provision of the Service and agreed to by you, New Era will sell to you the Purchased Equipment and in return, you will pay to New Era the agreed purchase price quoted by New Era. 

(b)    Title to, and legal and beneficial ownership of, the Purchased Equipment remains with us until we have received payment in full for the Purchased Equipment. You agree to indemnify New Era against any damage to the Purchased Equipment, however caused, while in your custody or possession, or in the custody of your contractors or agents, until such transfer of title has occurred.

(c)     Risk of damage to, or loss or theft of, the Purchased Equipment passes to you on delivery of the Purchased Equipment to your requested delivery address.

(d)    All Purchased Equipment will be supplied with the original manufacturer’s warranty.

        This may be stated in the quotation, or in the documentation that arrives with the Purchased Equipment. If the warranty period is not clear, New Era will assist you in obtaining this information from the original manufacturer. New Era will make all reasonable efforts to assist you in obtaining repairs or replacement of goods from the original manufacturer under their warranty in respect of the Purchased Equipment but gives no direct warranties regarding the Purchased Equipment.

(e)    For your own safety, and so that the Service we provide to you is not disrupted, you will:

(i)     allow us to install or arrange for Purchased Equipment to be installed in a suitable, reasonably accessible place;

(ii)    as we may specify, protect Purchased Equipment from radio or electrical interference, power fluctuations, abnormal environmental conditions which may impact the Service provided by New Era; and

(iii)   always follow the reasonable directions of us or our contractors and any directions from the manufacturer as communicated in Writing from us to you, when connecting anything to or otherwise operating Purchased Equipment, ensure it is installed according to our written specifications.

2.5 Indemnity

(a)    We agree to indemnify you for any reasonable loss or liability, costs, charges or expenses incurred or suffered by you or any of your officers to the extent that such loss, liability, cost, charge or expense is caused by or arises from a material breach of New Era’s obligations under the Agreement, or the gross negligence or dishonesty of New Era.

(b)    You agree that you will take all commercially reasonable steps to mitigate all losses after becoming aware of any event which could reasonably be expected to give rise to a loss, however you are not obliged to take any such steps if doing so might be prejudicial to you.

(c)     Indemnities given under this clause (the “Included Indemnities”) will be limited to the amounts specified in clause 6.2 of this Agreement.

(d)    You agree that you have relied on your own judgment to evaluate the suitability of the Service for the purpose for which you require the Service.

 3. Fees, Invoicing and Payment

3.1 Our Fees

(a)    You agree to pay the Fees for all the Services and any Purchased Equipment (as applicable) as set out in the Managed Services Agreement in accordance with this Agreement.

(b)    Service charges are exclusive of any usage fees (such as telephone call usage fees or network usage fees). Such fees may be subject to a separate service agreement between you and the third party service provider.

 3.2 Invoicing

(a)    Unless otherwise specified in your MSA, your monthly Service Fees will be billed monthly in advance from the date of the Service, or any part of it, begins or is installed (the “Commencement Date”). Invoices will be raised from the month of the installation of the Service, or three months after the date of Signing the New Era MSA, whichever is earlier. Service additions (if any) will be billed during the month following the installation of the addition and are calculated on a pro rata basis from the installation date to the end of that monthly billing period.

(b)    Any hardware or software purchases will be billed upon receipt or a valid purchase order.

(c)     Payment terms are fourteen (14) days from date of invoice.

(d)    If you do not pay an undisputed invoice by the due date for payment, you will be in default and New Era may charge you interest on the undisputed amount remaining unpaid calculated on a daily basis commencing 30 days after the date of invoice until payment is made at the rate of one and a half  per cent (1.5%) per annum above the base lending rate of New Era’s principal bank, prevailing from time to time. This right is without prejudice to any other right or remedy of New Era under this Agreement to recover cost incurred in pursuing payment for the outstanding Fees.

(e)    If you consider there is a mistake in any invoice, you may raise a valid billing dispute by notifying New Era in Writing within one (1) month from the date of invoice with full details of the disputed Fee. New Era will investigate the matter and report back to you within a reasonable time. You agree to pay only the undisputed amount of the disputed invoice in full by its due date. New Era will refund the Fees or give you a credit note for the wrongly invoiced Fees, should the dispute later be determined in your favour. If the matter cannot be resolved, the procedure under clause 10 must be followed. No interest will be charged on the part of Fees being the subject of a valid billing dispute.

(f)     Your invoice will indicate the outstanding balance and the methods of payment acceptable to New Era.  New Era may include unbilled Service Fees in later invoices.

(g)    New Era uses reasonable endeavors to invoice you on a monthly basis but may invoice up until twelve (12) months from the date when Fees have been incurred.

(h)    New Era will be entitled to (with notice provided to you in advance) deduct (in whole or in part) any amount payable by New Era (whether due to a credit or other reason) to you from any monies due and payable by you to New Era.

 3.3 Change to Fees

(a)    Fees will remain fixed during the Committed Term.

(b)    Notwithstanding the statement in 3.3 (a) above, the Fees will be subject to an annual increase of two and a half per cent (2.5%) over your monthly Committed Fees or the rate equivalent to the then applicable annual percentage increase in the Consumer Price Index (CPI) (in the country where the Services are being performed, at or around the anniversary of the start date for the Committed Term), whichever is higher. The annual increase will be applied to the Fees at each anniversary of the start date of the Committed Term.

(c)     In addition to the annual increase, New Era may vary the Fees only with your prior written consent if there is a significant increase in the cost of providing the Service to you and / or if you have requested a change to the Service in Writing and New Era has agreed in Writing to that change.

 3.4 Cancellation Fees

(a)    You will be liable to pay Cancellation Fees (as defined below) if:

(i)     You cancel the Service and terminate this Agreement for convenience before the end of the Committed Term; and

(ii)    (as a direct consequence of your breach of not paying invoices as they fall due under this Agreement) New Era terminates the Service prior to the end of the Committed Term,

Provided that no Cancellation Fees will apply for any termination event set out under Clause 11.2(a) (ii) and (iii) of these Standard Terms and Conditions.

(b)    The table below represents the discount allowance against the cancellation Fees which will be    the remaining Service monthly Fees, multiplied by the total number of remaining months before the end of the Committed Term (“Cancellation Fees”).

(c)     You agree that the Cancellation Fees are a reasonable estimate of the likely loss incurred by New Era if the Service is terminated early.

(d)    The following example sets out the method of calculation of the final Cancellation Fees payable under clause 3.4(b).

In this example:

• Committed Term is 60 months;
• Monthly Service charge during the Committed Term is $5,000;
• Effective date of termination occurs in the 22nd month of the Committed Term; and
• Discount applied to Cancellation Fees is 10%.

Cancellation Fees before discount = (60-22) X $5000 = $190,000

Final Cancellation Fees payable after discount = $190,000 – (10% x $190,000) = $171,000

3.5 Taxes

Unless otherwise expressly stated, the Fees are exclusive of government taxes to be levied on New Era (such as GST, VAT, sales tax or withholding tax). You must pay to us, in addition to the Fees, an amount equal to any tax payable on the supply of the Service according to the rate of the applicable tax in the country where the Service is being provided. That additional amount is payable at the same time as any part of the Fees is payable. We will issue a tax invoice to you for the supply of the Service at or before that time.

4. Service Levels

4.1 Service Disruptions and Service Levels

(a)    Some Services may be affected by your levels of use, the levels of use of other users and of facilities used to provide the Service. For this reason, we do not warrant that your Services will be free of disruptions, blockages, delays or faults of any kind.

(b)    You agree that New Era will not be responsible for any unplanned service disruptions or outages due to disruptions in any services being provided by third parties (referred to as “Third Party Provided Services”), which may affect the Service.  

(c)     The New Era SLA will define the applicable availability for your Service based on the Service Coverage and any rebates to which you may be entitled if New Era fails to achieve the relevant Service Levels in any month.

(d)    Unless otherwise stated in a Service Schedule, we will contact you and work with you to arrange for a suitable window of time for a Planned Outage as follows:

(i)     where reasonably possible, we will give you at least three (3) days’ notice for a Planned Outage that is likely to affect your Service; and

(ii)    not schedule a Planned Outage period between 8.30am – 5.30pm unless we agree with you first.

 5. Service Desk, Support Requests and Fault Reporting

5.1 Service Desk

(a) The New Era Service Desk is your first point of contact for reporting incidents and making service or support requests. Unless another method of logging tickets in our system has been specified in your Managed Services Agreement, contact to our Service Desk will be made by sending an email to supportsydney.au05@neweratech.com or (if a URL, login name and password are provided to you by New Era) by accessing and logging a ticket via the incident management system directly.

(b) Our Service Desk will:

(i)        provide incident tracking number (“Ticket Number”) numbers to the authorised person within your organisation who logged the support request;

(ii)       make an initial assessment of each incident and service request and, if appropriate, attempt to resolve the incident or satisfy the service request, or refer it to the next level of support;

(iii)      provide updates on incidents and service requests to the authorised person within your organisation who logged the request;

(iv)      close incidents or service requests after confirming that the person who logged the call, or the authorised user (as the case may be) is satisfied that the incident has been fixed or that the service request has been completed.

(C) Unless otherwise specified in your MSA, the New Era Service Desk will operate during the hours of 8.30am to 5.30pm (AEDT), Monday- Friday, excluding public holidays. Support requests may be reported at any time (24 x 7 x 365).

How we action our support requests

(a) When you raise a Support request via our ticketing system, our Service Desk will:

– liaise with our other service areas;

– liaise with our technical areas, as needed;

– track progress of your request;

– confirm completion and close of your request; and

– update you and any of your configuration records following completion of your request.

5.2 Fault Reporting

As soon as you become aware of a fault in your Service, you need to report it to New Era by sending an email to supportsydney.au05@neweratech.com or (if a URL, login name and password are provided to you by New Era) by accessing and logging a ticket via the incident management system directly. New Era may charge you for any reasonable costs incurred by it to investigate any fault that turns out to be directly caused by you, your third-party service provider, or your own equipment.

6. Warranties and Liabilities

6.1 Warranties

• New Era resells hardware, software and services from a variety of third-party suppliers. All hardware, software and services are supplied with the manufacturer’s (or service provider’s) original warranty. New Era will not be responsible for any additional warranty over those goods and services and will not be liable for complying with the terms of such manufacturer’s warranties.
• In certain instances, warranty periods may have been stated in your sales quotation. In other instances, the warranty period will be stated on documentation that comes with the hardware, software or services. New Era will gladly assist you in any query regarding warranty periods by its suppliers and manufacturers.
• If any hardware, software or services are found to be faulty within the applicable manufacturer’s warranty period, New Era will assist you in obtaining any repairs or replacements under warranty. New Era reserves the right to charge for the time it spends on lengthy warranty claims or organizing repairs.
• In relation to services that New Era provides itself, via its Authorised Subcontractor or subcontractor(s), such as support and maintenance services, New Era hereby warrants that the Services will be rendered with diligence and will be executed in a good workmanlike manner and in accordance with the practices and professional standards used in well-managed operations performing services similar to the Services.
• In performing the Services all reasonable precautions are taken by it to prevent loss and alteration of any data or programs, to prevent introduction of viruses to your systems and to prevent improper access to your environment and information.
• You warrant that, if other equipment than New Era Equipment is used upon your request, you own such equipment, or you have a valid, lawful lease to use such equipment.
• You further warrant that you have obtained and will maintain, all necessary licences (including those relating to software), permits, consents, authorisations and approvals necessary to operate such equipment and permit us to perform our obligations under the New Era Managed Services Agreement to you.

 6.2 Limitation of Liability

(a)     Nothing in this Agreement excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition implied or imposed by the Australian Consumer Legislation that cannot be lawfully excluded or limited. Subject to any rights that consumers may have under the law that cannot be excluded, limited or modified, and unless otherwise expressly set out in this Agreement, New Era (including its Related Bodies Corporate):

(i)      excludes all other conditions, warranties and representations, whether express or implied, to the extent permitted by law;

(ii)     limits its liability for any breach of any condition, warranty or representation relating to the provision of goods under this Agreement to (i) the replacement of the goods or the supply of equivalent goods, (ii) the repair of such products, or (iii) the payment of cost replacing or repairing such goods; and

• limits its liability for any breach of any condition, warranty or representation relating to the performance or provision of Services under this Agreement to (i) the resupply of the Services or (ii) the payment of cost of having the services resupplied.
• Obligations to replace equipment or resupply equipment or services will not be adversely affected, or liability increased due to restrictions in access to your Service Site.

(b)    Where either you or New Era (including Related Bodies Corporate) is liable to pay the other any damages, refunds, rebates or other compensation under this Agreement (“Compensation”) or any costs, charges and expenses under the Included Indemnities given by New Era in clause 2.5 of this Agreement (“Indemnities”), the following limits apply, to the extent permitted by law: 

• the maximum combined amount of Compensation or Indemnities New Era or its Related Bodies Corporate will have to pay you, and anyone else who uses New Era Equipment or any Service provided to you under this Agreement, is the sum of the total Fees paid or payable by you in the twelve (12) month period preceding the date of the event that gave rise to the claim;
• the maximum amount of Compensation you will have to pay us is equivalent to the sum of the Fees paid or payable by you in the (six) 6-month period preceding the date of the event that gave rise to the claim;
• both you and New Era will not be liable in any way for any loss of profit, loss of savings or for any indirect or consequential loss, including any losses that may reasonably be supposed to have been in the contemplation of the parties (as at the date of the first supply of the Service) as a probable result of any act or omission, arising out of or in connection with the supply of any Service or any equipment under this Agreement or otherwise in connection with the relationship established by this Agreement, including any loss or damage caused by negligence or any fundamental breach of this Agreement;
• the amount of Compensation or Indemnities that either of us must pay the other will be reduced to the extent that the event giving rise to the obligation to pay Compensation or Indemnities has been caused or contributed to by the other.

6.3 Force Majeure

If you or New Era is delayed or interrupted in, or prevented from, performing our obligations under this Agreement by any cause beyond your or our reasonable control (and that cause was not originally and directly caused by the act or omission of that party), including but not limited to acts or omissions of third party network operators or suppliers, acts of war or terrorism, natural disasters (including but not limited to floods, tsunamis, earthquakes, bushfires and the like), strikes, lockouts or premises access restrictions (whether by you or by a third party), that party will not be in breach of this Agreement and the time for performance of its obligations will be extended by a period of time equal to the duration of the cause of the delay, interruption or prevention.

7. Property Rights

7.1 New Era Equipment

Acquiring Managed Services from us does not give you any ownership or other property rights in New Era Equipment or software provided by New Era in conjunction with the Service.

 7.2 Intellectual Property

(a)     Any Intellectual Property owned by either of us prior to entry into the Agreement or developed independently of this Agreement by either of us, will continue to be owned by you or New Era, as the case may be.

(b)    New Era either owns the Intellectual Property in the Service provided to you, or where it uses any Intellectual Property belonging to anyone else, New Era has a license to do so.

(c)     We grant you non-exclusive, non-transferable, royalty-free licence for the duration of the Term under this Agreement to use any Intellectual Property provided by us to you under these terms.

(d)    You acknowledge that none of the Intellectual Property is transferred to you. You further acknowledge that unless specifically authorised by this Agreement, you cannot, and will not, use or reproduce the Intellectual Property for any purpose outside this Agreement.

(e)     All Intellectual Property in any improvements or changes to any Service devised or made by anyone during the time we are providing the Service to you, belongs to us.

(f)     You grant us a broad licence to any Intellectual Property provided by you to us under these terms. 

(g)    Each party warrants that the use (as permitted or necessitated by these terms) of any Intellectual Property licensed to the other party under these terms will not infringe any person’s rights in that Intellectual Property or constitute a misuse of any person’s confidential information.  Each party indemnifies the other party against all reasonable loss, damage, injury, claim, demand, cost or expense (including reasonable legal fees and expenses) that it suffers or incurs as a result of any direct breach of any warranty in this clause.

8. Information

8.1 Confidential Information

(a)    you and we must always keep each other’s Confidential Information confidential.

(b)    you and we both agree:

(i)     to use the Confidential Information of the other only to the extent required for the purpose it was provided;

(ii)    not to copy or reproduce any of the Confidential Information of the other in any way; and

(iii)   to disclose the other’s Confidential Information only to employees, advisers and contractors who need access to the information and who have agreed to keep it confidential.

(c)     you or we must promptly return all Confidential Information of the other (including any copies of it) in our possession or control, at the other’s request.

(d)    you and we acknowledge that Confidential Information excludes information generally available in the public domain (without unauthorised disclosure under this Agreement) and excludes information received from a third party entitled to disclose it.

(e)     Unless you advise us in Writing to the contrary, New Era may use your organization name as a current or past customer for referencing purposes.

8.2 Data Protection

(a)    New Era will at all times and at its own cost comply with all Data Protection Laws applicable to your Service.

(b)    For the avoidance of doubt, New Era will not be responsible for any Personal Data hosted on cloud servers and processed by third party service providers. Unless your Managed Services Agreement specifies that the Services include Back Up and Storage Services, you will be responsible for making periodic copies of the data, files and programs stored on your systems (including hard drives and the cloud), as a precaution against possible failures, alteration, or loss of data and in order to restore any lost or altered files, data and programs.

(c)     New Era will, and will procure in a contract made in Writing that our personnel (including any Authorised Subcontractor) will:

• only use Personal Data for the Permitted Purpose, or such purposes for which Personal Data was disclosed or provided to it;
• ensure that any Personal Data in New Era’s possession or control is stored or recorded accurately and completely, and take all reasonable steps to protect Personal Data in our possession or control against accidental and/or unauthorised collection, use, access, copying, modification, disclosure, disposal or destruction, or other similar risks, by making reasonable security arrangements including taking all reasonable physical, administrative, procedural, technical and organisational measures into consideration;
• comply with any request made or direction given by you in connection with your obligations under any Data Protection Laws. If we receive any request or complaint from an individual, we will promptly inform you in writing of the request and comply with any reasonable and lawful direction issued by you in respect of such request or complaint;
• only act on your instructions regarding the processing of any such Personal Data;
• not transfer or process any Personal Data provided by or obtained from you or which we may process on your behalf, outside of the jurisdictions of Australia, Singapore and the Philippines (countries where New Era operates its 24/7 Service Desk), without your prior written consent and subject to such conditions as may be imposed by you (as communicated to us in Writing at the time of entering into your Managed Services Agreement);
• immediately suspend all access to your systems should New Era suspect or notice or be notified by you that there is a potential or suspected breach of privacy and risk of unauthorized access to Personal Data; and
• ensure that there is no act or omission by us and/or any of our personnel that cause you to be in breach of Data Protection Laws.

(d)    New Era will on the earlier of the expiry or termination of the Agreement, or at your option or request at any time, either:

(i)     return to you copies of all Personal Data in our possession or control; or

(ii)    destroy all Personal Data in our possession or control;

and confirm in Writing that we or it no longer possesses any Personal Data if requested to do so by you. Where applicable, we will also instruct all Authorised Subcontractor(s) and other third parties to whom Personal Data has been disclosed for the purposes of the Agreement to return or destroy such Personal Data.

 For the purposes of this clause:

         “Permitted Purpose” means the collection, use, disclosure, storage or handling of Personal Data for New Era to comply with its obligations under the Agreement;

         “Personal Data” means any data or information that is governed or regulated by the relevant Data Protection Laws, including any data or information, whether true or not, about an individual who can be identified:

         (a)  from that data or information; or

         (b)  from that data and other information to which an organisation has or is likely to have access.

         “Data Protection Laws” means all applicable laws that relate to the protection of Personal Data including the Privacy Act 1988 (Cth) of Australia, the Personal Data Protection Act 2012 (No. 26 of 2012) of Singapore and Data Privacy Act 2012 (Republic Act 10173) of the Philippines together with any equivalent legislation of any other applicable jurisdiction including any mandatory guidance and code of practice issued by a regulatory authority, all as amended from time to time;

9. Non-Poaching of Staff

You and New Era each undertake that we will not, without the other party’s express consent in Writing, for a period of twelve (12) months from the termination or expiry of the most recent Managed Services Agreement or Statement of Work under these Standard Terms and Conditions, directly or indirectly solicit, employ or contract or endeavor to solicit, employ or contract from each other any employee of the other party.  We further acknowledge and agree that the prohibition and restriction contained in this clause is reasonable and necessary to protect each other’s business interests.

 10. Dispute Resolution

(a)        Where a dispute arises between us, whether it be for breach of this Agreement, termination or validity thereof, or in general relating to the Agreement, it will be referred to New Era’s and your representatives for resolution. The representatives will meet in order to attempt to resolve the dispute within a period of thirty (30) days from the date of referral of the dispute to them. You and New Era agree to try solving any disputes amicably and in good faith and on a without prejudice basis and not begin court proceedings or mediation or arbitration proceedings until the dispute resolution channel provided in this clause has been exhausted.

(b)       If the dispute remains unresolved, the parties will endeavor to settle the dispute by mediation administered by a mutually acceptable mediator. If the parties are unable to agree as to a suitable mediator, the mediation will be administered by the Australian Commercial Disputes Centre (“ACDC”).

(c)        If the dispute has not been settled within another thirty (30) days (or such other period as is agreed in Writing by the parties) after the appointment of the mediator, the dispute will be submitted to expert determination administered by, and subject to the Rules for Binding Expert Determination of, the ACDC.

(d)       Each of New Era and you will accept the determination of the expert as final and binding. The expert will be a person agreed between the parties but, failing agreement, the expert will be a person appointed by the ACDC. The expert will not be the same person as the mediator.

(e)        Any disputed regarding this Agreement will be heard in Sydney, New South Wales.

(f)        Until a party has complied with the preceding provisions of this clause, that party may not commence court proceedings relating to the dispute except that nothing in this clause precludes a party seeking injunctive relief from an appropriate court where failure to obtain that relief would cause irreparable damage to the party concerned.

11. Term and Termination

11.1 Term of the Agreement and Automatic Renewal to a Rolling On-Going Agreement 

Unless otherwise specified in your Managed Service Agreement, this Agreement will, subject to clause 11.2:

(a)    remain in effect for the Committed Term and any extension of the Term (as may be applicable in each case); and

(b)    after the expiry of the Committed Term the parties will work in good faith to agree on a new managed services agreement with its new term. Until such time when a new managed services agreement is agreed and signed between the parties, the Agreement will remain ongoing unless terminated by either party with ninety (90) days’ notice in writing of that party’s wish to terminate the Agreement.

 11.2 Termination

(a)    Either of us may terminate this Agreement immediately upon written notice:

(i)     where the other party commits a breach of any of the provisions of this Agreement and such breach relates to the Service, and in the case of a breach capable of remedy that party has subsequently failed to remedy the breach within ten (10) Business Days of receipt of written notice from the other party, as the case may be;

(ii)    where a liquidator, receiver, manager and receiver or any other administrator is appointed over the assets of the business of the other party, or if the other party is unable to pay its debts as they fall due or is otherwise insolvent or enters any composition with its creditors; or

(iii)   if required to do so by law. 

 (c)    You may cancel the Service and terminate this Agreement at any time prior to the end of the Committed Term by giving at least thirty (30) days written notice to New Era, in which instance you will need to pay Cancellation Fees as specified in clause 3.4. 

(d)    In the event that the Service is terminated for whatever reason, you may request that we continue to provide the Service (in which case you must continue to pay for the Service Fees) for a period of up to 3 months after the effective date of termination. During this period, we will provide, at an additional cost to be quoted and performed as an out-of-scope Additional Service (quoted as a POA item), all reasonable assistance to you for the orderly transfer of the Service, functions and operations provided pursuant to the Agreement to another service provider.

 11.3 Suspension Rights

(a)    Without prejudice to other rights or remedy New Era has under this Agreement, if you are in breach of this Agreement (including by non-payment of our Fees when due) and it is a breach capable of being remedied, New Era has the right (subject to prior notice to you in Writing) to suspend, downgrade or restrict the performance of any or all of its obligations under the Agreement, until such breach has been remedied. The Committed Term covered by the Agreement is not affected by the suspension of Services by New Era.

(b)    We may also temporarily suspend, downgrade or restrict any Service:

(i)      if you misuse the Service or non-compliant equipment is used by you which in the reasonable opinion of New Era would have a negative impact on the Service, and, after 10 Business Days from receipt of written notification from New Era requesting you to cease misusing the Service or using any such non-compliant equipment, you continue to do so;

(ii)     if you have outstanding Fees owed to New Era unless failure to pay is (a) due to late receipt of notice or (b) caused by administrative or technical error and payment is made within 30 Business Days of the due date;

(iii)   during any Planned Outage, scheduled according to clause 4.1(d);

(iv)    if we think it is reasonable or necessary to carry out urgent repairs to New Era Equipment;

(v)     in order to comply with any applicable law or an order or request of any government or regulatory body;

(vi)    if New Era loses remote access to the New Era system or if New Era is denied reasonable physical access to the New Era Equipment; or

(vii)   where a liquidator, receiver, manager and receiver or any other administrator is appointed over your assets, or if you enter any composition with your creditors; or

(viii)  where the Service is affected by Force Majeure.

(d)    For any service suspension, downgrade or restriction effected pursuant to clause 11.3(a), New Era may charge you for the full Fees only in the events set out under clause 11.3(b)(i) and 11.3(b)(ii). In any other event, Fees will be calculated on a pro- rata basis.

11.4 Recovery of New Era Equipment

(a)    On termination of the Service under this Agreement, you will be required to return the New Era Equipment to us after New Era giving you notice in writing.

(b)    If, following 30 days from the date of termination of the Service, you fail to return New Era Equipment, or refuse to allow us to recover New Era Equipment, you agree that such New Era Equipment will be deemed as lost and New Era will charge you for the replacement value (at the current recommended retail price of that time) of the lost New Era Equipment.

11.5 Post Termination

Clauses 6, 7, 8, 9, 10, 11, 12, 13 and 14 survive termination of this Agreement.

12. Notices

(a)    All notices and invoices must be in writing and be sent by post or via email to the address and contact person listed in the Managed Services Agreement, or to a nominated replacement address or email address. Any notice to New Era in writing may further be in the form of a customer purchase order to New Era or a ticket logged in the New Era incident management system or an email request from you to New Era (in this Agreement all methods listed in this paragraph (a) will be referred to as communication “in Writing”).

(b)    Any notice or invoice sent by post to that contact address will be assumed to have been delivered two (2) Business Days after it is posted. Any notice sent by email to that contact number or email address will be assumed to have been delivered immediately.

13. General

(a)    You and New Era will comply with reasonable requirements for security and health and safety when working at each other’s premises. Where practical, these requirements will be communicated to each other in Writing;

(b)    You may not assign any of your rights, benefits or obligations under this Agreement without the written consent of New Era (such consent not to be unreasonably withheld or delayed);

(c)     Subject to meeting requirements under any relevant laws and any due diligence checks you may wish to perform, New Era may use subcontractors or to meet any of its responsibilities under the Agreement but New Era will remain liable to you for meeting its responsibilities under this Agreement. The parties acknowledge that the Authorised Subcontractor has been pre-approved as a subcontractor for the purposes of providing support and maintenance under this Agreement;

(d)    This Agreement is not intended to create a partnership, a joint venture or a relationship of principal and agent between you and New Era; and neither party will hold itself out as being so related;

(e)    This Agreement sets out the entire agreement between you and New Era concerning all matters dealt with by it, and it supersede any prior agreement between us regarding those matters;

(f)     You agree that you have entered into this Agreement entirely based on your own enquiries and without relying on any representation by New Era or by any person purporting to represent New Era, except as expressly set out in this Agreement;

(g)    The waiver of a breach of any term of this Agreement will not be a waiver of any other breach of that term or the breach of any other term. No waiver of a breach of any term of this Agreement will be valid unless it is in writing;

(h)    If a provision of this Agreement is void or voidable or unenforceable or the invalid part severed, the remainder of this Agreement will not be affected;

(i)     If a you or New Era is delayed or interrupted in, or prevented from, performing its obligations under this Agreement by any cause beyond that party’s control (and that cause was not originally and directly caused by the act or omission of that party), that party will not be in breach of this Agreement and the time for performance of its obligations will be extended by a period of time equal to the duration of the cause of the delay, interruption or prevention; and

(j)     The Agreement will be governed by the laws of NSW, Australia and both you and New Era agree to submit to the non-exclusive jurisdiction of the courts of NSW, Australia and the courts entitled to hear appeals from such courts.

 14. Interpretation

(a)    Headings are for convenience only and do not affect the interpretation of these Terms and Conditions;

(b)    Reference to the singular includes the plural and vice versa;

(c)     Reference to a person includes a corporation and vice versa; and reference to a person or a corporation includes a firm, a body corporate, an incorporated association or an authority;

(d)    Reference to a party includes that party’s executors, administrators, successors and permitted assigns;

(e)    Every obligation by two or more parties binds them jointly and each of them severally;

(f)     Any term which is defined in the descriptions of the parties, the recitals or elsewhere in this Agreement has the meaning there defined;

(g)    Where any word or phrase is defined in these Terms and Conditions, any other grammatical form of that word or phrase has a corresponding meaning;

(h)    Reference to a schedule or an annexure is to a schedule or an annexure to these Terms and Conditions;

(i)     Reference to any agreement or terms and conditions or any other document referred to in these Terms and Conditions includes any amendments to it and any document in addition to or in substitution for it;

(j)     No provision of this Agreement will be construed adversely to a party on the ground that the party was responsible for the preparation of this Agreement or that provision;

(k)     Reference to “month” is to a calendar month;

(l)     Reference to a time is to the official time in the location where the Service is being provided;

(m)   Reference to a statute, ordinance, code or other law includes any amendment to it, any replacement of it and any statute, ordinance, code or other law intended to operate in conjunction with it and, in each instance, includes every regulation, rule and other instrument pursuant to it;

(n)    “Including” and similar expressions are not words of limitation.

15. Exchange by Electronic Communication

Each of the parties acknowledge and agree that the Agreement may be signed by exchanging email copies of the Agreement with execution pages duly signed by the parties or by signing using electronic signatures. Neither party will raise a challenge that the Agreement is invalid or unenforceable only due to the fact that it has been signed electronically.         

16. Changes to these Standard Terms and Conditions

These Standard Terms and Conditions may be updated from time to time, in which case we will use reasonable efforts to notify all of our clients in writing one (1) month prior to posting the updated version of these Standard Terms and Conditions on our website.