Mokse Pty Ltd (ACN 104 679 487) ATF Keith Bloomfield Family Trust trading as Excellence IT (ABN 27 592 779 109) (Excellence IT)
These are the Excellence IT (we, our or us) Terms and Conditions for the supply of Cloud Services.
Where you as the customer (you or customer) engage us to supply Cloud Services, these terms will apply in addition to our Standard Terms and Conditions. In the event of any conflict between these terms and the Standard Terms and Conditions, the Standard Terms and Conditions will prevail.
1. ACCEPTANCE OF THESE TERMS
- Any act by you or those legally acting on your behalf which requests us to begin supplying Cloud Services will be deemed as acceptance of these terms.
- Once these terms are accepted they are irrevocable and cannot be amended without our written consent.
- If there is more than one party as a customer to these terms, all customers will be jointly liable under these terms.
2. CLOUD SERVICES
- We will perform the hosting and/or offsite backup services described in your Work Order (Cloud Services) in accordance with these terms.
- must provide us with such operational and/or personnel, data and programs as are reasonably requested by us for the purposes of providing the Cloud Services;
- must provide us with all relevant licence details and server information together with all other details and access as required for the incorporation of any Third Party Materials to provide the Cloud Services;
- are responsible for the supply and maintenance of equipment at your sites to enable access to the Cloud Services within the Cloud Infrastructure from your sites;
- must restrict access to the Cloud Services through the Cloud Infrastructure to employees, agents and sub-contractors who either need to know or who are engaged in the use of the Cloud Services as authorised users and who have been issued with secure passwords and login details for accessing the Cloud Services. The authorised users will be required to keep their passwords and login details confidential and secure and not disclose those passwords and login details to any third party or any other personnel employed or engaged by you;
- understand that without prompt and adequate cooperation, we will not be able to supply the Cloud Services, or if supplied, the Cloud Services may be materially altered or delayed. Accordingly, you must promptly provide us with all cooperation necessary for us to supply the Cloud Services, including any obligations that are your responsibility as detailed in the Work Order with us. If you do not provide reasonably adequate cooperation in accordance with this clause, we will not be responsible for any failure or delay to supply the Cloud Services and you will not be entitled to a refund of charges paid in such circumstances; and
- agree that, despite our obligation to back up Customer Data as part of the Cloud Services, you must complete a backup of all existing data, software and programs on your current live systems prior to and during the supply of the Cloud Services.
- We will not be liable for any loss, damage or delay caused to the supply of the Cloud Services where this is caused by you or by any other third party.
- We will use all reasonable endeavours to make the Cloud Services available throughout the term of your agreement with us, including during ordinary office hours of 9:00am to 5:00pm provided that we will notify you:
- of any planned Downtime to enable us or our contractors to carry out routine maintenance, repairs, reconfigurations or upgrades during the planned Downtime; or
- of any unplanned Downtime as soon as is reasonably practicable after our discovery of the unplanned Downtime.
- Unless expressly stated in a Work Order, we will not be responsible for maintaining any back-up procedures to replace Customer Data in the event of loss or damage.
- You will be responsible for the regular backup of all Customer Data required to restore your computer system to full operational capability following any event which caused loss or corruption of data.
- We will apply upgrades or new functionality during pre-published planned Downtime. Software fixes will be applied as soon as possible after a fix is made available to resolve a fault identified by you.
4. WARRANTIES AND REPRESENTATIONS
- You warrant, represent and undertake to us that:
- you have provided us with all required information relating to the set up and operation of the Cloud Services that we require in order to comply with your requirements for supply of the Cloud Services (Customer Requirements), and that such information is complete, accurate and up-to-date;
- the Customer Requirements represent your accurate requirements relating to the provision of the Cloud Services, and that you have made your own assessments relating to those requirements;
- any third-party software that you wish to place within the Cloud Infrastructure will be fully licensed by you, and the inclusion of such third-party software in the Cloud Infrastructure will not infringe the rights (including the intellectual property rights) of any third party; and
- your data will be legal and you will have the responsibility for the reliability, integrity, accuracy and quality of your data.
- We warrant, represent and undertake to you that the receipt of the Cloud Services by you in accordance with this agreement does not, at the date we first provide the Cloud Services, infringe any proprietary right or any intellectual property rights of any third parties.
- We accept no liability for any loss of, or corruption or damage to Customer Data.
- We will use our reasonable endeavours to restore any lost or damaged Customer Data from the latest back-up of such Customer Data as maintained by you under clause 3, but we do not warrant or guarantee that we will be able to restore any lost or damaged Customer Data .
- We will not be responsible for any loss, destruction, alteration, corruption or disclosure of Customer Data caused by any third party, except those third parties engaged by us in connection with the provision of the Cloud Services.
- You acknowledge that we have no control over the nature, accuracy or content of information, data or programs transmitted or received by you over the Cloud Service, and you agree to indemnify and hold us harmless from and against any and all claims made by third parties against us in respect of such information, data or programs accessed or otherwise exchanged by you.
6. THIRD PARTY PROVIDERS
- Where our supply of Cloud Services involves or utilises services provided by a third-party provider, you agree to fully comply with the terms and conditions of the third-party provider applicable to the Cloud Services, and you agree not to misuse, use inappropriately or illegally or interfere with any equipment and services provided by any third-party providers.
- We agree to use all reasonable efforts to pro-actively manage the provision of services by the third-party provider, subject always to you providing all reasonable assistance and information (at your expense) that we require in order to perform our obligations under these terms, to the extent that we are reasonably able to do so in accordance with our contractual arrangements with the third-party provider, including:
- promptly managing and escalating third-party provider non-performance; and
- notifying you on becoming aware of any issues or problems with the third-party provider’s services.
||means the hardware and software platform and intellectual property rights hosted by us in the data centre from which we supply the Cloud Services to you.
||means all data provided to us by you in connection with the supply of our services set out in any Work Order, including personal information provided by you.
||means any period during which any software and/or the Cloud Services are unavailable or otherwise unusable.
|Third Party Material
|means any material (including, but not limited to source code, software, and as part of the Cloud Services):
(a) in which the intellectual property rights are owned by a third party; and
(b) which is identified in a work order as being owned by a third party and as requiring a licence from that third party to either us or to you.
||means a quotation, work order or similar document setting out the services we will provide, the price and any other conditions agreed by us.