This Agreement is made between OZISP Pty Ltd ABN 31 003 434 277
of PO Box 349 NUNAWADING VIC 3131 (“OzISP”);
and the entity specified as the Customer in a Services Request.
Customer engages OZISP to provide Internet Services as follows.
1.1 In this Agreement, unless inconsistent with the context:
a. Agreement means this agreement, its recitals, provisions and any schedule of this agreement including any Service Request.
b. Clause means a clause of this Agreement.
c. Client means a client of OZISP.
d. Confidential Information includes information which relates to:
i. Software including activation codes, development concepts, source code, object code, configuration and other scripts, specifications, data models and schema, protocols, algorithms, manuals, drawings and data created or used by OZISP;
ii. account details and passwords;
iii. the trade secrets and research and development activities of OzISP, its Clients and or business partners;
iv. OzISP’s business relationships with its Clients and potential Clients including contracts, customer lists, product and pricing plans, marketing plans and proposals, financial statements and information;
v. OZISP’s personnel;
vi. materials marked as confidential; and
vii. the terms of this Agreement.
e. Confidential Client Data Information means information which relates solely to Customer’s business and does not include any underlying data structures or concepts.
f. Corporations Act means the Corporations Act 2001 (Cth) and its regulations and rules.
g. Force Majeure means an act, omission or circumstance over which OZISP could not have reasonably exercised control including telecommunication failures.
h. Intellectual Property Right includes any right arising from or capable of arising from the: Circuits Layout Act 1989 (Cth); Copyright Act 1968 (Cth); Designs Act 2003 (Cth); Patents Act 1990 (Cth); Trade Marks Act 1995 (Cth); any similar legislation outside the Commonwealth of Australia; any similar unregistered right and Confidential Information.
i. Interest Rate means the rate of 10% per annum calculated monthly in arrears and added to the outstanding sum.
j. Internet Services includes all the services supplied by OzISP to Customer including web site hosting, application hosting, domain name registration services, support and all other services offered to Customer by OZISP from time to time and the Software.
k. Moral Rights has the same meaning as “moral rights” under Section 189 of the Copyright Act 1968 (Cth).
l. Party and Parties means a party to this Agreement and their respective successors, trustees and permitted assigns.
m. Related Entity has the same meaning as “related entity” under Section 9 of the Corporations Act.
n. Restraint Period means the period commencing on the execution of this Agreement and expiring the later of (after applying the interpretation provisions of this Agreement) 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 or 12 months after the termination of this Agreement.
o. Service Request means a written or electronic request for OZISP to provide services to Customer.
p. Software means all the software hosted by OZISP.
q. Sub-clause means a sub-clause of this Agreement.
r. Taxes includes taxes, duties and government charges, fees, levies, any penalty for not paying same and any liability for same.
2.1 In this Agreement, unless inconsistent with the context:
a. Words denoting a person shall include corporations, statutory corporations, partnerships, joint ventures, associations, boards, governments or semi-government agencies or authorities.
b. Words denoting the singular number shall include the plural number and vice versa.
c. Words denoting any gender shall include all other genders.
d. A reference to a statute or a regulation also refers to any statute or regulation amending, or consolidating or re-enacting same.
e. Money references are references to Australian currency.
f. A reference to “includes”, “including” or “inclusive” is to be construed as being a reference to “includes, without limitation”, “including, without limitation”, and “inclusive, without limitation” respectively.
g. Headings used in this Agreement are for convenience and ease of reference only, and are not part of this Agreement and shall not be relevant or affect the meaning or interpretation of this Agreement.
h. Every obligation express or implied into this Agreement and entered into by more than one Party shall bind them jointly and severally.
i. Every right express or implied into this Agreement granted in favour of more than one Party shall be for the benefit of each of them jointly and severally.
j. A provision of this Agreement shall not be construed adversely to the Party that drafted it.
k. If any provision or part provision of this Agreement is held invalid, unenforceable or illegal for any reason, this Agreement shall remain otherwise in full force apart from such provision or part provision which shall be deemed deleted.
l. The recitals, provisions and any schedule to this Agreement form part of this Agreement and shall be read in the following order of precedence: this Agreement; and thereafter the Schedules to this Agreement.
m. No right or remedy granted to OZISP pursuant to this Agreement excludes or shall be deemed to exclude or modify any other right or remedy which would otherwise be available to OZISP and all such granted rights and remedies are cumulative.
3. Service Requests
3.1 OZISP shall provide Software and Internet Services as described in one or more Service Requests.
3.2 A periodic Service Request shall continue for another term of the same length unless it is terminated by either Party upon 90 days’ notice in writing prior to the expiration of any such Service Request.
4. Intellectual Property Rights
4.1 Customer acknowledges that OZISP remains and shall be the sole owner of the Intellectual Property Rights in the Internet Services.
4.2 Customer hereby assigns any interest it may have in relation to the Internet Services to OZISP.
4.3 The ownership and assignment referred to in this Clause is and shall be absolute, worldwide and includes all Intellectual Property Rights arising from or in relation to any past or future Internet Services.
4.4 Customer shall, subject to full compliance at all times with this Agreement, enjoy a non-exclusive and non-transferable licence to use the Internet Services whilst an extant Service Request is in place for the purpose stated in the Service Request.
4.5 Customer warrants that all materials (including source code) supplied to OZISP by it do not infringe the Intellectual Property Rights of any person.
5. Confidential Information
5.1 To the extent that Confidential Information is not in the public domain (other than by way of breach of this Agreement) and is not known by Customer at the time of disclosure, Customer:
i. keep such information confidential;
ii. take all necessary precautions to prevent any disclosure of Confidential Information to unauthorised third parties; and
iii. inform OZISP of any suspected or actual disclosure of Confidential Information; and
b. shall not, without the express written consent of OZISP:
i. directly or indirectly divulge or communicate or otherwise disclose any Confidential Information, in whole or part to any third party;
ii. use any Confidential Information, other than for the express purpose set out in this Agreement; or
iii. remove or cause to be removed from OZISP’s, Client’s or their business partners’ premises or systems any Confidential Information.
iv. This Clause shall survive the termination of this Agreement.
6. Confidential Client Data Information
6.1 To the extent that Confidential Client Data Information is not in the public domain (other than by way of breach of this Agreement and is not known by OZISP at the time of disclosure, OZISP:
a. shall keep such information confidential;
b. shall not, without the express written consent of Customer:
i. directly or indirectly divulge or communicate or otherwise disclose Confidential Client Data Information, in whole or part to any third party; or
ii. use Confidential Client Data Information for its own purposes.
c. This Clause shall survive the termination of this Agreement.
7. Support Services
7.1 OzISP shall perform such services as it considers reasonable to ensure the Internet Services materially comply with the Service Request for the Duration.
7.2 Such services shall, at the sole option of OZISP, take the form of: email advice;
a. telephone advice;
b. remote access connection; and or
c. access to OZISP’s website and downloads.
8. Support Times
8.1 A request for Internet Services during the Support Times shall be acknowledged and resolved within the Acknowledgement and Resolve Times respectively.
8.2 Unless expressly specified otherwise in a Service Request, OZISP does not warrant that it shall be capable of promptly receiving, processing or otherwise acting upon a request for support which is made outside the Support Times.
9. Support Exclusions
9.1 Support Services do not include:
a. on-site attendances;
b. correction of defects caused by:
i. incorrect use of the Internet Services;
ii. use of the Internet Services other than as expressly specified by OZISP;
iii. the use of unauthorised software;
iv. Customer’s failure to:
1. provide a properly configured operating environment including operating systems, third party software, networks, firewalls and printers;
2. provide suitability qualified and adequately trained staff for the operation of the Internet Services;
3. apply the then most current security or corrective release to all third party software;
4. scan for viruses and other malware; and
5. comply with this Agreement or any other agreement with OZISP;
v. hardware or third party software faults;
vi. telecommunications failure;
vii. data conversion, modification, revision, variation, translation or alteration of the Software not authorised by OZISP;
viii. the use of the Internet Services by a person not authorised by OZISP; and
ix. lack of training;
c. hardware or third party software maintenance;
d. installation and integration of new software of any kind;
e. printing and telecommunication related problems; and
f. support of software which is no longer supported by the developer of same.
9.2 OZISP may, without obligation to do so, upon request from Customer supply such goods or services referred to in this Clause and Customer shall pay OZISP for same.
10.1 Customer shall at all times and at its expense supply OZISP with:
a. access to all Customer’s staff, equipment, power and telecommunication services as and when required; and
b. all the information, facilities, assistance and accessories reasonably required by OZISP
11.1 All data including software is backed up pursuant to the OZISP Pty Ltd Back up Policy which can be found at https://www.ozisp.com.au/html/ozisp-backup-policy.html.
12. Support Levels
12.1 OZISP shall during the Support Times comply with the Service Levels.
12.2 If OZISP fails to comply with 3 or more Service Levels in one calendar month then Customer shall be entitled to a credit of the sum of the Support Rebate.
12.3 The credit is not redeemable for cash.
13.1 Customer shall:
a. keep its user accounts, passwords and activation codes details confidential and not disclose same to any other party. Customer shall be responsible for all use of same whether authorised by Customer or not. Should any such disclosure occur Customer shall report same to OZISP in writing as soon as possible;
b. provide equipment which OZISP considers suitable to use Internet Services;
c. comply with OZISP’s Reasonable Use Policy which may be updated and changed from time to time and is currently located at https://www.ozisp.com.au/html/acceptableuse.html
d. apply or accept, without delay, all updates issued by OZISP from time to time to which Customer is entitled and all third party updates recommended by OZISP;
e. agree to and comply with the terms and conditions of any third party software or services supplied by OZISP or made available with Internet Services and or not use such third party software and services The details of the third party terms and conditions can be found at the following URLs:
g. comply with all applicable laws;
h. conduct all appropriate virus and security checks;
i. ensure that its customers, employees, sub-contractors and other agents who have authorised access to Internet Services are made aware of the terms of this Agreement;
j. supervise and control the use of Internet Services in accordance with the terms of this Agreement;
k. immediately advise OZISP in writing upon Customer becoming aware of any person using Internet Services who is not authorised by OZISP to do so; and
l. train its staff in the use of Internet Services and the internet.
13.2 Customer shall not:
a. copy, reproduce, translate, adapt, vary, modify, decompile, disassemble, reverse engineer, create derivative works of, sub-license, rent, lease, loan or distribute the Internet Services other than as expressly authorised by this Agreement;
b. engage in password sharing, remote desktop access or port aggregation without the express permission of OZISP;
c. exceed the usage permissions as detailed in the Service Request;
d. install, upload or execute any computer programs which have not been checked and are not expressly specified by OZISP as suitable;
e. interfere with the network or disrupt any other user, service or equipment;
f. permit any act which infringes the Intellectual Property Rights which subsist in the Internet Services and which belong to OZISP.
g. provide or otherwise make available Internet Services in any form to any other person;
h. use the Internet Services for any illegal, unauthorised or dangerous purpose including unsolicited commercial e-mail;
i. use the Internet Services for or in connection with a service bureau operation; or
j. use the Internet Services to publish any material for which it is not the Intellectual Property Right owner or licensed by the Intellectual Property Right owner or is defamatory.
14. OZISP’s rights
14.1 OZISP may, whilst being under no obligation to do so and at its sole discretion, without notice or giving any reason or incurring any liability for doing so:
a. delete, remove or refuse to publish, receive or transmit any material which is, in its sole opinion, without limitation:
ii. found in an unauthorised area;
iii. excessive in volume;
v. uncollected for an excessive period;
vii. in breach of OZISP’s Reasonable Use or Publishing Policy; and
b. take action if it suspects that malicious, illegal or unacceptable usage of Internet Services is occurring or has occurred, including destruction or disposal of Customer’s access passwords.
15. Domain Name Registration
15.1 If a Service Request requires a domain name to be registered, Customer hereby appoints OZISP as Customer’s agent in relation to the registration of any domain name on Customer’s behalf and Customer hereby agrees to the standard terms and conditions of any registry offering such registration.
16.1 Customer shall pay OZISP the Fees without withholding, deduction or offset of any amounts for any purpose.
16.2 OZISP may increase the Fees upon one month’s notice. Fees cannot be increased during the term of any extant Service Request.
16.3 An account rendered by e-mail or otherwise by OZISP shall be prima facie evidence for a Court of the provision of the items referred to in same to Customer by OZISP.
17.1 Unless expressly stated to the contrary and to the extent permitted by law:
a. the Fees are exclusive of all Taxes which may arise in relation to the subject matter of this Agreement;
b. Customer shall immediately pay any applicable Taxes to OZISP; and
c. Customer shall indemnify and keep indemnified OZISP from payment of the Taxes and any penalties arising from non-payment of same.
18.1 Customer shall pay OZISP interest at the Interest Rate on all overdue amounts from the due date until payment is made.
19. Suspension of Obligations
19.1 If Customer breaches any provision of this Agreement OZISP may, without further notice to Customer:
a. suspend all its obligations to Customer under this Agreement;
b. disable the Software using time out codes, remote access or other technological measures; and or
20. Restraint Period
20.1 During the Restraint Period, Customer shall:
a. not solicit or transact business directly or indirectly on its own account or as an officer, employee or agent of another entity with any of the entities with which Customer was materially involved with OZISP during the term of this Agreement unless expressly authorised by OZISP;
b. not solicit for employment, whether directly or indirectly through a Related Entity, any person who is or was an officer, employee or contractor of OZISP during the term of this Agreement;
c. promptly advise OZISP if a person who is or was employed or contracted by OZISP seeks to be employed or contracted by Customer or a Related Entity of Customer; and
d. ensure that each of its Related Entities act in a similar manner.
21. Limitation of Liability
21.1 To the extent permitted by law and except as expressly provided to the contrary in this Agreement, all warranties whether express, implied, statutory or otherwise, relating in any way to the subject matter of this Agreement or to this Agreement generally, are excluded. Where legislation implies in this Agreement any condition or warranty and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or the exercise of or liability under such term, such term shall be deemed to be included in this Agreement. However, the liability of OZISP for any breach of such term shall be limited, at the option of OZISP, to any one or more of the following: if the breach related to goods: the replacement of the goods or the supply of equivalent goods; the repair of such goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired; and if the breach relates to services the supplying of the services again; or the payment of the cost of having the services supplied again.
21.2 To the extent permitted by law and except as expressly provided to the contrary in this Agreement, OZISP shall not be under any liability (contractual, tortious or otherwise) to Customer in respect of any loss or damage (including consequential loss or damage) howsoever caused, which may be suffered or incurred or which may arise directly or indirectly in respect to the supply of goods or services pursuant to this Agreement or an act, failure or omission of OZISP.
21.3 Customer warrants that it has not relied on any representation made by OZISP or upon any descriptions or illustrations or specifications contained in any document including any catalogues or publicity material produced by OZISP.
22.1 To the extent permitted by law, Customer shall release, indemnify and keep indemnified OZISP , its officers, employees and agents, against any injury, death, damage, loss, costs (including legal costs on an indemnity basis), expenses, interest, taxes or liability whether direct or indirect and whether sustained by OZISP, OZISP’s officers, employees and agents, Client, Client’s officers, employees and agents, Customer, Customer’s officers, employees and agents or a third party arising out of:
a. a breach of this agreement by Customer;
b. any wilful, unlawful or negligent act or omission of Customer, its officers, employees or agents;
c. any injury suffered by Customer’s officers, employees or agents; and
d. the discharge of Customer’s obligations pursuant to this Agreement.
22.2 This indemnity applies regardless of whether or not legal proceedings are instituted.
22.3 This indemnity applies to any payment, settlement, compromise or determination regardless of whether same is, or is not, authorised by Customer.
22.4 It is not necessary to incur any expense or make any payment before enforcing any right of indemnity under this Agreement.
22.5 This Clause survives termination of this Agreement.
23. Further Assistance
a. declare, make or sign all documents and do all things necessary or desirable to give full effect to this Agreement; and
b. if applicable, procure its officers, employees and agents to do same.
24.1 This Agreement may be terminated by either Party without cause on 30 days notice provided that there is no then extant Service Request.
24. 2 OZISP may terminate this Agreement or any Service Request immediately by notice if:
a. any payment due from Customer to OZISP remains unpaid for a period of 21 days;
b. Customer breaches any Clause and such breach is not remedied within 21 days of notice by OZISP;
c. Customer becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration;
d. Customer, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;
e. Customer being a natural person, dies; or
f. Customer ceases or threatens to cease conducting its business in the normal manner.
24.3 If notice is given to Customer pursuant to this Clause then OZISP, in addition to terminating this Agreement or any Service Request:
a. may retain any moneys paid;
b. may charge a reasonable sum for any un-invoiced items;
c. shall, in the event of termination of this Agreement, be regarded as discharged from any further obligations under this Agreement;
d. shall, in the event of termination of a Service Request, be regarded as discharged from any further obligations under that Service Request; and
e. may pursue any additional or alternative remedies provided by law.
24.4 If Customer terminates a Service Request for convenience Customer shall pay OZISP the full amount remaining payable under the Service Request as if the Service Request was not so terminated.
25.1 The provisions of this Agreement which are capable of having effect after the expiration of this Agreement shall remain in full force and effect following the expiration of this Agreement.
26. Force Majeure
26. OZISP shall not be liable for any delay or failure to perform its obligations if such a failure or delay is due to Force Majeure.
27. Assignment, Novation and Sub-Contracts
27.1 Customer shall not sub-contract, sub-licence, assign or novate, in whole or part, any entitlement or obligation under this Agreement without the prior written consent of OZISP.
27.2 Any consent provided by OZISP to subcontract shall not relieve the Customer from any liability or obligation under this Agreement.
27.3 Customer shall be liable to OZISP for the acts and omissions of Customer’s subcontractors and employees and agents of subcontractors as if they were acts or omissions of Customer.
27.4 OZISP may:
a. sub-contract for the performance or part performance of this Agreement; and
b. assign this Agreement to a third party without notice and in such circumstances, OZISP’s rights and obligations under this Agreement shall be immediately terminated upon assignment.
28.1 No right of OZISP under this Agreement shall be deemed to be waived except by notice in writing signed by OZISP . Any such waiver shall be limited to its express terms.
28.2 Any failure by OZISP to enforce any provision of this Agreement, or any forbearance, delay or indulgence granted by OZISP shall not be construed as a waiver of OZISP’s rights.
29. Entire Agreement
29.1 Unless stated expressly to the contrary in this Agreement:
a. this Agreement constitutes the entire agreement between the Parties for the subject matter referred to in this Agreement. Any prior arrangements, agreements, representations or undertakings are superseded;
b. this Agreement is not to be construed as creating a joint venture, partnership or agency situation between the Parties. No Party may represent that there exists such a relationship between the Parties;
c. no Party may bind another Party to any agreements, arrangements, contracts or understanding or represent that they have such authority; and
d. no modification or alteration of any provision of this Agreement shall be valid except in writing signed by each Party save that OZISP may on 30 days notice change any term of this Agreement and in such a case Customer may terminate this Agreement during that notice period without further obligation.
30. Governing Law
30.1 This Agreement shall be governed by and construed according to the law of Jurisdiction.
30.2 The Parties irrevocably submit to the exclusive jurisdiction of the Courts of Jurisdiction and the Commonwealth of Australia. Any proceedings in a Commonwealth Court shall be commenced in Jurisdiction.
31.1 Notices under this Agreement may be delivered by hand, by mail or by email to the addresses specified in Schedule 1.
31.2 Notices shall be deemed given in the case of:
a. hand delivery, upon written acknowledgment of receipt by an officer or other duly authorised employee, agent or representative of the receiving party;
b. posting, 3 days after dispatch; and
c. email, upon acknowledgment of receipt.
32. Support Levels
|Support Levels||Description||Response Times during Support Times|
|Critical||A critical fault whereby none of the specifications set out in the Service Request are satisfied.||1 Hour||4 Hours|
|Important||A fault which results in a material departure from the Service Request.||2 Hours||2 Working Days|
|Standard||A fault which results in a non-material departure from the Service Request and or a fault for which a work around has been supplied.||4 Hours||5 Working Days|
|Support Rebate||50% of the Support Fee for the calendar month.|
|Support Times||Between 0900 hours and 1700 hours on any day except Saturday, Sunday or a public holiday.|