Since The following are the Terms and Conditions for the use of IT Company Australia Products and/or Services (“IT Company Australia Products and/or Services” or “the Products” or “the Services”) by the User (“User” or “Users”). Any User accessing and using the Products or availing the Services and/or any part thereof shall invariably be bound by these Terms and Conditions. These Terms and Conditions are valid, binding and enforceable for all persons that access the IT Company Australia website, the web pages or any part thereof. Hence, if you do not agree to be bound over by these Terms and Conditions, then you may not use the IT Company Australia website. The reasonable use of the IT Company Australia website shall automatically bind the Users to this agreement.
The Services offered by IT Company Australia also consist of, but not limited to, the following: Domain Registration, World wide web hosting, SMS Core Messaging Platform Access, Data Encryption, Data Transmission, Data Access, and Data Storage, WAN Solutions, Website Templates, Multimedia Presentation, Interactive CD, Multimedia Marketing, Internet Marketing, Search Engine Optimization, Software development and wherever applicable, the Synchronization Software.
IT Company Australia offers only some of its Services free of cost while others are offered at a price. Most of the price details are mentioned prominently on our web site. IT Company Australia offers Application Programming Interface (API), Software Development Kit (SDK), Tools like HTTP/S, XML, SMTP and/or COM Object Tool and/or SMPP Protocol to connect to IT Company Australia Core Messaging Platform. These provide an easy, efficient and flexible option to integrate with the User’s website/application, facilitating auto-generated SMS Text messages to be delivered to the intended recipients’ mobile phones. IT Company Australia charges a one-time setup fee for activating such connectivity.
IT Company Australia also provides World Wide Web Site hosting & Data storage facility. IT Company Australia reserves the right to terminate or interrupt any account in part or in full without refund for violation of these Terms of Services. In all but the most extreme or serious cases, good faith attempts will be made to resolve an issue without interruption of service. In cases where service has been terminated or interrupted, resolution will be handled on an individual case basis, at IT Company Australia’s sole discretion.
The Products and/or Services are “AS IS” and are subject to the disclaimers of warranty and the limitations of liability as found in this agreement and which are subject to testing by the Users before entering into this agreement.
IT Company Australia reserves the right to change or terminate the Services and/ or alter the Terms and Conditions of this Agreement at any time with/without notice and/or with immediate effect. All the fees paid to IT Company Australia when such termination occurs are addressed in detail in the sections below.
IT Company Australia respects the privacy of the Users and assures that it shall not monitor, edit, or disclose any personal information about the Users or about the User’s IT Company Australia account, which includes all of its contents, without the User’s prior permission. However, this will not apply if IT Company Australia has to:
Conform to the statutory and/or legal requirements or comply with the legal process;
Protect and defend the rights or property of IT Company Australia;
Enforce this Agreement or protect IT Company Australia business or reputation, including without limitation, upon termination, cancellation or suspension of this Agreement by IT Company Australia;
Respond to the request for identification in connection with the claim of copyright or trademark infringement by the Users or to a claim by a third party that the Users is using the Services in connection with an infringement, illegal or improper activity; or
Act to protect the interests of the Users or any others in general
The User agrees that IT Company Australia can access his/her account, including the message content, as stated above or respond to product specific queries or technical issues.
The User hereby permits IT Company Australia to send him/her communication via email/sms of any updates, upgrades, notices, or any other information that IT Company Australia deems important for the Users to know, relating to our Services.
IT Company Australia expressly prohibits any unauthorized commercial use of the Services. The User gives irrevocable agreement to abide by all the applicable local, national and international laws and regulations and is solely responsible for all acts or omissions (that occur under his/her account or password), including responsibility for the content of any transmissions through IT Company Australia.
IT Company Australia provides by way of example, and not as a limitation, the stipulation that the Users agree not to, directly or indirectly:
Reverse engineer, de-compile, disassemble or otherwise make any attempt to establish the source code or the underlying ideas or algorithms of the Services;
Modify, translate, or create distinctive and derivative works based on the Services; Copy (except for archival purposes), rent, lease, distribute, assign, or otherwise transfer rights to the Services;
Use Services for timesharing or to the benefit of a third party;
Remove any proprietary notices or label(s) that identify IT Company Australia Services.
Use the Services in any way connected to any chain letters, junk sms text messages, spam or any unsolicited messages (commercial or otherwise);
Harvest or otherwise collect, information about other Users, including email addresses, without obtaining their consent;
Transmit any unlawful, harassing, libelous, or abusive, threatening, and harmful, or vulgar, obscene or otherwise any objectionable material of any kind or nature;
Transmit any material that is an infringement of the intellectual property rights or other rights of third parties, which will include any trademark, copyright or right of publicity;
Defames or slanders any person, or try to infringe upon any person’s privacy rights;
Transmit any material that may contain any viruses, Trojan horses, worms, time bombs, cancel bots, or any other harmful or deleterious programs;
Interfere with or disrupt the networks connected to IT Company Australia or violate the regulations, policies or procedures of such networks;
Attempt to gain unauthorized access to the Products and/or Services or to other accounts, computer systems or networks connected to IT Company Australia; interfere with another User’s peaceful use and enjoyment of the Products and/or Services; or Engage in any other activity that IT Company Australia could believe may subject it to criminal liability or civil penalty or judgment.
IT Company Australia does not allow any of the following content to be stored on its servers:
Illegal Material – This includes copyrighted works, and any material in violation of any Federal or Provincial regulation.
Adult Material – Includes all [Censored]ography, erotic images, or otherwise lewd or obscene content. The designation of “adult material” is left entirely to the discretion of IT Company Australia.
pirated software – pirated software, cracking/hacking tools – includes software/techniques used to crack or hack any software network.
Other – Web sites that contain material that is intentionally offensive to racial minorities are not permitted. Sites that are found to contain such offensive content will be closed. Email Server Policy:
IT Company Australia reserves the right to block incoming email from any remote SMTP relay at any time for any reason. If a remote SMTP relay is misconfigured, spammers will often exploit the remote relay to send thousands (sometimes millions) of spams. If a spammer is abusing a remote SMTP relay to mail bomb domains at IT Company Australia, IT Company Australia will immediately block the IP of the SMTP relay that the spammer is abusing. IT Company Australia also subscribes to multiple RBL’s (real-time blocking lists) to automatically block known open SMTP relays and known spamming relays. While this policy dramatically reduces the amount of spam sent to IT Company Australia, this may inadvertently block some legitimate email.
Domain names owner are distinguished by their email addresses. The person having the control over email address (Email associated with the account having domain name) is the considered the ultimate owner of the domain. Owner transfer can only be initiated by the person who is the current owner of the domain.
All domains that are not paid within 1 month of registration/renewal are transferred in favor of IT Company Australia. A transfer fee (minimum 5 times the cost of domain name registration) is charged if such domains are reclaimed by actual owner. If unpaid domains are not claimed within 2 months of registration/ renewal no claims will be valid for ownership of the domain and IT Company Australia will be sole owner of the domain.
Payment for the Products and/or Services
All accounts and services are set up on a prepay basis. IT Company Australia reserves the right to change prices of accounts or services at any time. In case of Web Hosting, Payment is due each anniversary year / month following the date the account was established. IT Company Australia reserves the right to suspend services until the outstanding debt is cleared. No bills or invoices will be sent by regular mail. All invoices will be sent directly to customers via email.
In consideration for the use of AB Services, the Users agree and shall pay to IT Company Australia a sum called a set-up fee or transaction fee or subscription fee (as appropriate), at the prescribed and applicable rate then in effect. IT Company Australia may, from time to time, and at its own discretion, offer different promotional schemes during which no fees or reduced fees may apply. During such promotions, all provisions of this Agreement shall remain in full force and effect.
All fees are payable upfront. Upfront payment refers to payment that is made within a reasonable time to allow IT Company Australia to activate/upgrade the account, provide access to specific feature(s) and/or add credits to the User’s account.
IT Company Australia may take anything between 12 hours to 24 hours, after the payment has been realized, to activate/upgrade the account, provide access to specific feature(s) and/or add credits to the User’s account. IT Company Australia reserves the right to approve Users at its sole discretion.
No refunds will be made in any case for any fees already collected like branding (Sender Name/Number) fees, one-time setup fees, license/subscription fees, monthly administration fees, and any other such fee that the Users may pay to IT Company Australia.
From time to time, IT Company Australia may revise its prices for its Products and/or Services. IT Company Australia undertakes to notify the Users of such adjustments within a reasonable time frame prior to implementing such adjustments, unless the prices are adjusted due to reasons, which are beyond IT Company Australia control.
The Users expressly understand that the number of credits consumed to terminate to a specific destination network may change due to various factors, and that IT Company Australia may adjust this number whenever it deems necessary to do so, with or without prior notice to the Users. For any services provided by ITCOMPANY, refund is not possible whether it’s mentioned in our contract or not as far as our big projects are concerned, cancellation is possible but we don’t have any return policy and advance for any projects is not refundable.
SMS Messages will be considered as delivered when IT Company Australia has delivered, or sent the messages to the immediate destination that IT Company Australia Core Messaging Platform has been programmed to do, which include SMPP/SMTP servers, or Mobile Telephone Networks. In addition, any other intermediary server or API is also deemed to be the point of dispatch of the message. IT Company Australia does not extend guarantee of delivery on behalf of the Mobile Telephone Networks or Servers.
Although IT Company Australia makes all efforts to ensure delivery and prides itself on speedy delivery of messages, messages may be delivered late as a result of queuing or network congestion/traffic.
IT Company Australia lays no claim to its network coverage. Although IT Company Australia focuses on giving extensive coverage aggregation services, the mobile networks may choose from time to time to not be a part of IT Company Australia or of its Service Providers’ Networks. This may lead to messages not being delivered to those particular networks. Though IT Company Australia makes all possible efforts to inform the Users of non-availability of a network as soon as it is aware of the same, there can be networks appearing on the Coverage List but IT Company Australia is unable to deliver to.
IT Company Australia continually makes efforts to improve all of its existing Products and/or Services, apart from adding new ones, resulting in frequent updates or modifications. Such changes often dictate that we simultaneously modify our Terms and Conditions. Hence, IT Company Australia shall have the right to modify any or all the terms of this Agreement and to change or drop any aspect or feature of the IT Company Australia Products and/or Services, as it deems reasonably necessary. Such changes shall be effective immediately upon posting of such addition, change or deletion. Any use by the Users of the Products and/or Services after any such change has been posted, shall be construed as the acceptance of the change. If the User is not agreeable to any such change, the relevant Product and/or Services or the User account, may be cancelled in accordance with the procedures for cancellation set forth in this Agreement. The Users acknowledge their responsibility to read and review this Agreement from time to time and also to be aware of any such changes.
This Agreement and the User account can be terminated, canceled and/or suspended by IT Company Australia at any time if, in IT Company Australia’s sole discretion, the User has breached the Terms of this Agreement. Such termination, cancellation and/or suspension by IT Company Australia shall come into effect immediately after giving notice by IT Company Australia to the Users in any reasonable manner, including but not limited to, notification by email/sms. In addition, IT Company Australia has the right to recover any and all damages from the Users arising from or relating to the event(s) giving rise to the suspension, termination or cancellation. IT Company Australia reserves the right to suspend the User’s account at any stage for any reason that it may deem necessary in order to continue to provide any of its Products and or Services in a way that may be hindered by the User’s status as being a IT Company Australia User, or the financial status of the User or the content of the messages originating from the User.
In the event that IT Company Australia has cause to receive complaints from recipients or third parties with respect to the use of the Products and/or Services, IT Company Australia additionally reserves the right, in its sole discretion, to disclose any and all information to the recipient, applicable authorities or any other related party with regard to its Users.
The User has the right and is free to terminate or cancel this Agreement and his/her IT Company Australia account at any time and for any reason. The User only has to intimate IT Company Australia by sending an email of this intention. However, it is to be noted clearly that any sum or pre-paid credit amount remaining pending at the time of cancellation of this Agreement shall not be repaid to the User.
Upon the termination, cancellation and/or suspension of this Agreement, the Users remains responsible for any obligations that have been accrued including, but not limited to, payment of any costs or charges, including legal obligation that may be arising in connection with such termination, cancellation and/or suspension, and payment of all outstanding transaction fees for use prior to said termination, cancellation and/or suspension occurs. Upon termination and/or cancellation, for any reason, the User agrees to immediately cease using IT Company Australia Products and/or Services and removes all the IT Company Australia software and applications on any computer, database, and server (local or remote) in its possession or under its control. IT Company Australia shall have no obligation whatsoever to the User after the termination or cancellation of this Agreement.
While it is to be understood that IT Company Australia shall make all efforts to ensure that the Products and/or Services are reasonably available, through the required access protocols, and shall endeavor to maintain connections to as many Aggregators, Gateways and Carriers as are, in its discretion, commercially viable, the User acknowledges that IT Company Australia cannot guarantee the availability of the Products and/or Services at all times and all locations. The User expressly acknowledges and agrees that the use of the Products and/or Services is generally at its own risk and that IT Company Australia Products and/or Services are being provided “AS IS” and “AS AVAILABLE” without any warranties or conditions whatsoever, express or implied.
IT Company Australia does not make any warranties or representations that the IT Company Australia website shall be available at all times. Users acknowledge that the IT Company Australia website may be unavailable due to updates or other causes beyond the reasonable control of IT Company Australia, including, but not limited to virus infection, unauthorized access (hacking), power failure or other “acts of God”.
IT Company Australia cannot and will not be held liable for any problem incurred while any service with IT Company Australia. By service with IT Company Australia, you assume any and all risk for possible downtime and other server/connection related problems. If you are not willing to assume this risk, you should not host or work with IT Company Australia. While IT Company Australia makes every possible attempt to maintain the highest possible level of uptime & covering all expects, and in providing the services whatever service it is, delay is possible if we are dealing with any development , IT Company Australia will not under any circumstances make any expressed or implied guarantee for any specific level of uptime
Though IT Company Australia shall take all reasonable caution about the quality and accuracy of content available from the IT Company Australia website, IT Company Australia does not make any warranties or representation that the content available shall in all cases be true, correct or free from any errors. The information, ideas and opinions expressed on the IT Company Australia website should not be regarded as professional advice or the official opinion of IT Company Australia, and Users are strongly encouraged to consult professionals before taking on any course of action that is related to the information, ideas or opinions expressed on the IT Company Australia website.
IT Company Australia is under no legal duty to encrypt any of the content or communications from and to Users and is also under no legal duty to provide the digital authentication of any pages on the IT Company Australia website.
IT Company Australia (which also includes its owners, employees, suppliers, services providers, partners, licensors, affiliates and agents) shall in no event be held liable to the Users or anyone else for any inaccuracy, error or omission in, or loss, injury or damage caused in whole or in part by the failures, delays or interruptions of the Products and/or Services generally, and any aspect ancillary thereto; the User agrees to indemnify IT Company Australia for any and all third party claims arising from any such or of the failures, delays or interruptions in connection with regard to use of the Products and/or Services.
To the full extent permitted by law, all terms, conditions, warranties, undertakings, inducements and representations relating in any way to the services provided by IT Company Australia. Without limiting this, IT Company Australia will not be liable for any loss or damage (including consequential loss or damage) however caused (whether by negligence or otherwise) which may be suffered or incurred or which may arise directly or indirectly in respect of any services provided by IT Company Australia
Commissions quoted exclude GST. Where IT Company Australia is entitled to make any payment, IT Company Australia will also pay the amount of the GST on any supply (within the meaning of the GST Legislation).
IT Company Australia will comply with the Privacy Amendment (Private Sector) Act 2000 and the National Privacy Principles in respect of the storage and handling of information. GOVERNING LAW
IT Company Australia Services and Solutions are governed by the laws of the State of NSW.
These Terms and Conditions constitute the whole agreement between IT Company Australia and the User and neither party shall be bound by any undertakings, representations, warranties, promises or the like not recorded herein.
The Children’s Online Privacy Protection Act [COPPA] requires web sites to obtain verifiable parental consent if they collect age identifying information or a birth date from a child under the age of 13. If the Company does not wish to obtain verifiable parental consent, it must bump-out any user that indicates an age under 13.
To correct this issue please do the following:
The Company has three options for dealing with the collection of age identifying information:
Do not collect age identifying information. The Children’s Online Privacy Protection Act [COPPA] does not require general audience Web sites to screen the age of its users.
If the Company must collect age identifying information, the user must be given the opportunity to input their correct age, in essence, to “tell the truth”.
Implement an under age 13 bump-out mechanism. If a user indicates they are under the age of 13, then the Web site needs to bump that user to an error page informing the user that the Web site is not able to accept their registration at this time. The bump-out message needs to be generic (i.e. “sorry we are not able to accept your registration at this time”) and cannot indicate that age is a factor of registration. Also the registration form itself cannot indicate that age is factor of registration (i.e. “you must be at least 13 to register”).
If the Company must inform the user that age is a factor of registration (i.e. “you must be at least 13 to register”) within the error message, then a session cookie needs to be set to prevent the user from going back and changing their age.
For more information around TRUSTe’s requirements around the collection of age identifying information for general audience Web sites, please review TRUSTe’s Complying with COPPA Guidelines for General Audience Web Sites at http://www.truste.org/docs/How_to_Comply_with_COPPA.doc.
IT Company Australia reserves the right to revise its policies at any time.
This Agreement shall apply to the delivery of information technology services, support, and functions as further described in Statements of Work (SOW) that may be proposed and approved by the parties. Any such approved SOW shall be incorporated herein by reference (the services and functions described in any SOW are hereafter referred to
as the “Services”). In the event that the scope of the Services is expanded, revised, or modified, for any SOW incorporated herein, the parties shall prepare and sign an amended or new SOW (or change order), which likewise shall be attached hereto and incorporated herein by reference. Absent the execution of a SOW, this Agreement does not, in and of itself, represent a commitment by Client to receive any Services from ITC or pay ITC any fees.
The term of this Agreement will commence on the day of the project assignment and will continue until terminated by either party as provided below (“Term”). In the
event that the SOW provides for a different Term, the SOW Term will control for that specific SOW only.
2.2 Either party shall have the option to terminate this Agreement, without cause, by providing 2 week’s notice, in writing, of its intent to terminate the Agreement without cause. In the event that a SOW provides for a different termination notice period, the SOW termination clause will control for that specific SOW only.
2.3 In the event that there is a continuing need for any Services identified in an SOW, after the expiration of this Agreement and the Client requests, in writing, to have ITC complete the Services, this Agreement will automatically renew for the period of time that it takes for the completion of such Services.
2.4 The Agreement can be terminated for cause, as defined in paragraph 14.1 herein, at any time provided the alleged breaching party is provided an opportunity to cure the alleged breach in the manner set forth in paragraph 14.1 below or a Permitted Delay, as defined in paragraph 14.4 herein, does not apply.
2. Fees and Payment Terms.
3.1 In exchange for the Services performed by ITC, as set forth in any SOW, Client agrees to compensate ITC at the rates identified in the fee schedule set forth in a SOW. Such rates are exclusive of any federal, state, or local sales or use taxes, or any other taxes or fees assessed on, or in connection with any of the Services rendered herein. Client will pay all undisputed invoices within fifteen (15) days of receipt thereof.
3.2 In addition, Client shall reimburse ITC its actual out-of-pocket expenses as reasonably incurred by ITC in connection with the performance of Services. Additional expenses for materials, services, training and hardware may only be incurred by ITC and charged to Client if prior written approval from Client has been obtained.
3.3 A late charge of one and one-half percent (1.5%) per month, or the legal maximum if less, shall accrue on past due billings unless Client notifies ITC of a billing dispute in writing prior to the payment due date. Client shall be responsible for any costs incurred by IT Company Australia in the collection of unpaid invoices including, but not limited to, collection and filing costs and reasonable attorney’s fees of not less than fifteen percent (15%) of the outstanding balance due.
3. Change Orders or Out of Scope Services.
To the extent that Client requires or requests additional services or services that exceed the Services set forth in any SOW incorporated herein, ITC will charge an additional fee for such additional services or out of scope work. Fees for such additional services or out of scope work will be set forth on a Change Authorization Order (CAO), which will also provide a description of the changed or additional service(s) being
requested. Once a CAO is signed by both parties, it will be incorporated into the Agreement and have the same legal effect as the SOW that is incorporated into the Agreement.
4. Ownership of Materials Related to Services.
The parties agree that any materials prepared and delivered by ITC in the course of providing the Services shall be considered works made for hire. All rights, title, and interests of such materials shall be and are assigned to Client as its sole and exclusive property. Notwithstanding the foregoing, the parties recognize that performance of ITC hereunder will require the skills of ITC and, therefore, ITC shall retain the right to use, without fee and for any purpose, such “know-how”, ideas, techniques and concepts used or developed by ITC in the course of performance of the services of this Agreement.
5. Independent Contractor.
The parties enter into this Agreement as independent contractors and nothing within this Agreement shall be construed to create a joint venture, partnership, agency, or other employment relationship between the parties. All ITC employees who are assigned to perform services at any Client owned or leased facility shall be considered to be an employee of ITC only and will not be considered an agent or employee of Client for any purpose. ITC will be solely responsible for payment of all compensation owed to its employees, including all applicable federal, state and local employment taxes and will make deductions for all taxes and withholdings required by law. In no event will any ITC employee be eligible for or entitled to any benefits of Client.
6. Confidential Information.
7.1 Client understands and acknowledges that ITC may, from time to time, disclose “Confidential Information” to Client. For purposes of this Agreement, the term “Confidential Information” shall include, but not be limited to, any non-public and/or proprietary information or materials relating to ITC’s promotional and/or marketing strategy and activity, ITC’s pricing information (including but not limited to rates, margins, and budgets), ITC’s financial and budget information, ITC’s customer lists, information about the education, background, experience, and/or skills possessed by ITC employees, ITC employee compensation information, ITC’s service and/or sales concepts/methodologies/techniques, ITC’s customer satisfaction data or sales information, or any information which ITC marks or identifies as “confidential” at the time of disclosure or confirms in writing as confidential within a reasonable time (not to exceed thirty (30) days) after disclosure. Client will not disclose ITC’s Confidential
Information to any third party at any time without the prior written consent of ITC and shall take reasonable measures to prevent any unauthorized disclosure by its employees, agents, contractors, or consultants. Further, ITC’s Confidential Information shall include the terms set forth in this Agreement, all of which shall remain the property of ITC and shall in no event be transferred, conveyed, or assigned to Client as a result of the services provided pursuant to this Agreement. The foregoing duty shall survive any termination or expiration of this Agreement.
7.2 ITC also understands and acknowledges that Client may, from time to time, disclose to ITC proprietary ideas, concepts, expertise, and technologies developed by Client relating to computer application programming, installation, and operation (collectively “Client’s Confidential Information”). Client may further provide to ITC
documentation, reports, memoranda, notes, drawings, plans, papers, recordings, data, designs, materials, or other forms of records or information relating to Client’s business operations (collectively “Confidential Trade Information”). ITC agrees (i) not to use any Client Confidential Information or Confidential Trade Information for its own use or for any purpose other than the specific purpose of completing the Services; (ii) not to voluntarily disclose any Client Confidential Information or Confidential Trade Information to any other person or entity; and (iii) to take all reasonable measures to protect the secrecy of, and avoid disclosure or use of, Client Confidential Information and/or Confidential Trade Information in order to prevent it from falling into the public
domain or the possession of persons other than those persons authorised hereunder to have such Customer Confidential Information and/or Confidential Trade Information. The foregoing duty shall survive any termination or expiration of this Agreement.
7.3 In no event shall Client use ITC’s Confidential Information to reverse engineer or otherwise develop products or services functionally equivalent to the products or services of the Owner.
7.4 The parties agree that the disclosure of any of the foregoing Confidential Information by either party shall give rise to irreparable injury to the owner of the Confidential Information, inadequately compensable in monetary damages. Accordingly, the non-disclosing party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available.
7. Non Solicitation of Employees.
Client will not, either directly or indirectly (except through ITC) solicit, hire, or contract with any ITC employee during the term of this Agreement and for a period of one (1) year following termination thereof (hereafter the “Non Solicitation Term”). In the event that Client desires to directly hire any ITC employee during the Non Solicitation Term, Client must first seek ITC’s consent to directly hire the employee and to speak with the ITC employee about the employment opportunity. In the event that ITC grants Client the option to directly hire ITC employee, and the ITC employee accepts an offer of employment from Client, the parties shall discuss issues related to the employee’s transition to Client. The employee’s start date will be mutually agreed upon by Client and ITC in writing. Provided the parties agree to the ITC employee’s transition terms, Client shall pay ITC a placement fee of no less than 30% of offered annual salary prior to the ITC employee commencing work as an employee of Client. Unless the parties agree otherwise, Client shall not directly hire more than two ITC employees during the Non Solicitation Term. If Client hires an ITC employee without first obtaining the consent of ITC, Client shall pay ITC a liquidated damage equal to 100% of the employee’s fair market salary, as determined by ITC in its sole discretion.
8. Client Responsibilities.
In addition to any obligations and responsibilities described in the SOW or elsewhere in this Agreement, Client shall have shared responsibility with ITC regarding the following:
(i) To ensure that the necessary business and application knowledge is available and conveyed from the Client’s existing support team to ITC’s support team.
(ii) Provide ready access to all appropriate computing platforms, documentation (eg: program source, copybooks, tables, subroutines) and personnel (i.e., end users and technical representatives) necessary to fully understand the current business systems and environments throughout the life of the engagement.
(iii) Provide at its facility, office space and equipment for ITC’s on-site employees. Access will also be provided to the Client’s source libraries, test systems, and test data.
(iv) Provide external communications capability and/or access to its work facility to enable ITC’s on site project team to access the Client’s information technology system for after hours or weekend Services as required.
(v) Client shall assign an employee or representative to be present at the work facility for any after hours or weekend Services. In the event that Client declines or fails to assign an employee or representative to be present during such hours, Client waives any and all claims for any property damage or loss that occurs during such time that ITC’s employee(s) is on the Client’s work facility.
(vi) Provide computer passwords and access to ITC employees as needed.
(vii) If the Client wishes to re-engage the services of ITC within a period of 12 months from the end of the Term, ITC and Client shall enter into a new contract of which these Terms and Conditions together with any amendments or
alternations there to or any reissue there of shall be incorporated. The Client is required to refer to IT Company Australia any inquiry for direct negotiations with the Client or for negotiations with the Client through any other party for a period not exceeding twelve months from the date of the ending of the Client contract or any extension thereof.
9. Warranty of Services.
Any warranty offered by ITC for Services provided herein shall be set forth in the SOW.
In the absence of any warranty stated in the SOW, ITC warrants that all Services performed pursuant to this Agreement will be performed in accordance with the general standards to this Agreement will be performed in accordance with the general standards and practices of the information technology industry in existence at the time the and practices of the information technology industry in existence at the time the Services are being performed. IN THE EVENT THAT THERE IS NO WARRANTY SET FORTH IN THE SOW, THE FOREGOING EXPRESS LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS EXPRESSED OR IMPLIED, ORAL OR WRITTEN, CONTRACTUAL OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE TO THE EXTENT APPLICABLE.
10. Limitation of Liability.
Client agrees that ITC shall not be liable to Client, or any third party, for:
(i) any liability claims, loss, damages or expense of any kind arising directly or indirectly out of services provided herein for;
(ii) any incidental or consequential damages, however caused, and Client agrees to indemnify and hold ITC harmless against such liabilities, claims, losses, damages (consequential or otherwise) or expenses, or actions in respect
thereof, asserted or brought against ITC by or in right of third parties or for;
(iii) any punitive damages. For the purposes of this Agreement, incidental or consequential damages shall include, but not be limited to, loss of anticipated revenues, income, profits or savings; loss of or damage to business reputation or goodwill; loss of Customers; loss of business or financial opportunity; or any other indirect or special damages of any kind categorised as consequential or incidental damages under the law of the New South Walls ITC’s liability for any damages hereunder shall in no event exceed the amount of fees paid by Client
to ITC as of the date the alleged damages were incurred.
Ensure that it’s valid and adequate Customer’s and Employer’s Liability Insurance remain in force throughout the duration of the Agreement.
11 Termination for Cause
If either party believes that the other party has failed in any material respect to perform its obligations under this Agreement (including any Exhibits or Amendments hereto), then that party may provide written notice to the other party’s management representative describing the alleged failure in reasonable detail. If the alleged failure
relates to a failure to pay any sum due and owing under this Agreement or if Client makes an unauthorized solicitation of an ITC employee under the provisions of point 8 herein, the breaching party shall have ten (I0) business days after notice of such failure to cure the breach. If the breaching party fails to cure within ten (I0) business days, then the non-breaching party may immediately terminate this Agreement, in whole or in part, for cause by providing written notice to the management representative of the breaching party. With respect to all other defaults, if the breaching party does not, within thirty (30) calendar days after receiving such written notice, either (i) cure the material failure or (ii) if the breach is not one that can reasonably be cured within thirty (30) calendar days, then the non-breaching party may terminate this Agreement, in
whole or in part, for cause by providing written notice to the management representative of the breaching party.
11.2 Termination for Bankruptcy
Either party shall have the immediate right to terminate this Agreement, by providing written notice to the other party, in the event that (i) the other party becomes insolvent, enters into receivership, is the subject of a voluntary or involuntary bankruptcy proceeding, or makes an assignment for the benefit of creditors; or (ii) a substantial
part of the other party’s property becomes subject to any levy, seizure, assignment or sale for or by any creditor or government agency.
11.3 Payments Due
The termination of the Agreement shall not release either party from the obligation to make payment of all amounts then or thereafter due and payable.
11.4 Permitted Delays
Each party hereto shall be excused from performance hereunder for any period and to the extent that it is prevented from performing any services pursuant hereto in whole or in part, as a result of delays caused by the other party or an act of God, or other cause beyond its reasonable control and which it could not have prevented by reasonable precautions, including failures or fluctuations in electric power, heat, light, air conditioning or telecommunication equipment, and such non-performance shall not be a default hereunder or a ground for termination hereof ITC’s time of performance shall be enlarged, if and to the extent reasonably necessary, in the event: (i) that Client fails to submit information, instructions, approvals, or any other required element in the prescribed form or in accordance with the agreed upon schedules; (ii) of a special request by Client or any governmental agency authorized to regulate, supervise, or impact ITC’s normal processing schedule; (iii) that Client fails to provide any
equipment, software, premises or performance called for by this Agreement, and the same is necessary for ITC’s performance hereunder. ITC will notify Client of the estimated impact on its processing schedule, if any.
11.5 Continuation of Services
ITC will continue to perform Services during the notice period unless otherwise mutually agreed upon by the parties in writing. In the event that Client provides the notice of termination and directs ITC not to perform the services through the notice period, Client agrees to pay ITC an amount equal to the amount normally due to ITC for the notice period. Upon termination by either party, Client will pay ITC for all services performed and charges and expenses reasonably incurred by ITC in connection with the services provided under this Agreement through the date of termination.
14. Miscellaneous Clauses
15.1 Non-Restrictive Relationship
ITC may provide the same or similar services to other customers and Client may utilize other information technology service providers that are competitive with ITC.
15.2 Place of jurisdiction, applicable law
The laws of New South Walls shall apply to this contract without reference rules to foreign laws.