1 DEFINITIONS

1.1 The following definitions apply in this document:

(a) ABN means Australian Business Number.

(b) Agreement means this Client Terms & Conditions.

(c) Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Melbourne, Australia.

(d) Client IP means all Intellectual Property of the Client contained in any information provided to Red IT Solutions in the course of providing the Services.

(e) Confidential Information has the meaning set out in clause 9.1 but does not include information that Red IT Solutions can establish:
i Was in the public domain at the time it was given to Red IT Solutions;
ii Became part of the public domain, without Red IT Solutions’ involvement in any way, after being given to Red IT Solutions;
iii Was in Red IT Solutions’ possession when it was given to the Red IT Solutions, without having been acquired (directly or indirectly) from the Client; or
iv Was received from another person who had the unrestricted legal right to disclose that information free from any confidentiality obligation.

(f) Fee means a fee charged by Red IT Solutions for the provision of any Services.

(g) Force Majeure Event means an event, or series of events, outside the reasonable control of Red IT Solutions including (without limitation) death or total and permanent disability, fire, lightning, explosion, flood, earthquake, storm, hurricane, action of the elements, riots, civil commotion, malicious damage, armed conflicts, acts of terrorism, war (declared or undeclared), blockade, revolution, sabotage, radioactive contamination, toxic or dangerous chemical contamination or any other catastrophes.

(h) GST has the same meaning as in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(i) Intellectual Property means any intellectual property rights, whether registrable or not, including all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property of a party in any part of the world, and including applications for the registration of any such rights and any improvements, enhancements or modifications to such registrations.

(j) Minimum Term means the Client’s fixed minimum term for the Services, as may be agreed in the Scope.

(k) Privacy Act means the Privacy Act 1988 (Cth).

(l) Red IT Solutions means Infrared Group Pty Ltd trading as Red IT Solutions ABN 79 643 403 365.

(m) Red IT Solutions IP means all Intellectual Property of Red IT Solutions incorporated in the Services.

(n) Service Level Agreement means Red IT Solutions’ target response and resolution time commitments for the Services, as described in the Scope.

(o) Services means the IT services provided by Red IT Solutions to the Client subject to this Agreement, as described in the Scope.

(p) Scope means any scope, project specification, statement of work, proposal or quote prepared by Red IT Solutions and accepted by the Client in writing.

(q) Special Conditions means any particular arrangements made between the parties that are governed by this Agreement and/or change any term or condition of this Agreement.

(r) Tax Invoice has the same meaning as in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(s) Third Party Service means any service, software, platform or system supplied by a third party.

2 AGREEMENT AND COMMENCEMENT

2.1 The relationship between the parties shall be governed by the terms of this Agreement together with the Scope until validly terminated.

2.2 In order to accept the terms of a Scope, the Client must accept the terms of this Agreement. If the Client does not accept the terms of this Agreement, it must not accept a Scope.

3 RELATIONSHIP

3.1 Red IT Solutions is an independent service provider to the Client and that it is not an employee or partner of the Client in any way.

3.2 Red IT Solutions will not:

(a) Hold itself out as an agent of the Client, except to the extent necessary to carry out the Services; or

(b) Incur obligations or liabilities on behalf of the Client unless the Client provides written permission.

4 SERVICES

4.1 Red IT Solutions will provide the Services to the Client in accordance with the Scope.

4.2 Any Scope prepared by Red IT Solutions and accepted by the Client shall set out the entire scope of the Services, including specified inclusions and exclusions.

4.3 The Services will not extend beyond that Scope unless Red IT Solutions and the Client agree in writing from time-to-time.

5 RED IT SOLUTIONS’ KEY OBLIGATIONS

5.1 Red IT Solutions will:

(a) Ensure that the Services are provided in accordance with the Scope;

(b) Ensure that the standards set out in the Service Level Agreement are met;

(c) Comply with all the relevant laws and industry standards in respect of providing the Services; and

(d) Act in accordance with the Client’s reasonable directions while providing the Services.

6 THE CLIENT’S KEY OBLIGATIONS

6.1 The Client will:

(a) Ensure that Red IT Solutions has access to all the:

i Resources, personnel, electronic systems and premises required to provide the Services, which may include after-hours access to the Client’s premises and unlimited, unrestricted access to the Client’s systems and software; and

ii Facilities and materials and information reasonably requested by Red IT Solutions to provide the Services;

(b) Establish and maintain clear channels of communication at all times with Red IT Solutions;

(c) Promptly provide clear, complete and timely instructions and all necessary information and documents to enable Red IT Solutions to provide the Services effectively;

(d) Promptly advise Red IT Solutions if Red IT Solutions has misunderstood the Client or made incorrect assumptions; and

(e) Promptly provide Red IT Solutions with a copy of all applicable policies, procedures, rules, regulations, standards of conduct and requirements relevant to the provision of the Services (if any).

7 FEES AND PAYMENT

7.1 Fees

(a) Red IT Solutions will charge the Client the Fees as specified in the Scope.

(b) Unless agreed otherwise between the parties, the Fees will be paid on an ongoing monthly basis and are exclusive of GST.

(c) Fees are charged of the number of active users, devices, sites, end points and/or other variables in the manner agreed in the Scope. Where the number of these variables changes during the term of this Agreement, Red IT Solutions will charge the Client new Fees based on the updated number in the following payment period. Where applicable, Red IT Solutions will provide prior written notice to the Client of the new Fees and the Client agrees to pay the new Fees to continue using the Services.

(d) Red IT Solutions reserves the right to not undertake any Services falling outside the agreed Scope without additional payment or an agreement by the Client to pay Red IT Solutions at its hourly rates. Red IT Solutions will advise the Client as soon as reasonably practicable where work falls outside the Scope and give the Client an estimate of the additional costs and rates.

(e) Red IT Solutions may charge, and the Client agrees to pay for all disbursements properly incurred in performing the Services under this Agreement as notified to the Client, including for Third Party Services. The Client acknowledges that the failure to pay fees for the ongoing use of Third Party Services will interrupt the availability of the Services.

(f) Where a Minimum Term is agreed, the Client shall remain liable for any outstanding Fees for the remainder of the Minimum Term in accordance with the Scope irrespective of earlier termination under clause 14. Red IT Solutions shall be authorised to deny access to equipment and services until full payment is met.

7.2 Invoicing & Payment

(a) Red IT Solutions shall provide a Tax Invoice to the Client for any paid Services, which shall be provided on the first day of each calendar month unless agreed otherwise.

(a) The Client agrees to pay any Tax Invoice promptly and within the stated timeframe, which in default shall be paid by direct debit payment.

(b) Where Fees are paid by direct debit, the Client:

i Authorises Red IT Solutions to automatically deduct the agreed Fees from the Client’s nominated bank account; and

ii Acknowledges that the respective third-party direct debit party’s terms and conditions will apply, and the Client agrees to be bound by the said terms and conditions and liable to pay the direct debit party’s fees.

(c) Where Fees are not paid by direct debit, the Client agrees to pay any Tax Invoice promptly and within the stated timeframe, which in default shall be 10 Business Days from the date of the invoice. Payment shall be made by electronic transfer into Red IT Solutions’ nominated bank account unless otherwise agreed between the parties.

7.3 Disputed Tax Invoice

(a) It shall be the Client’s responsibility to check the Tax Invoice to confirm the Fees charged are accurate, especially with respect to the variables affecting Fees described under clause 7.1(c).

(b) Should the Client dispute any charge on a Tax Invoice, the Client must notify Red IT Solutions of the disputed item within 5 Business Days of the date of the Tax Invoice.

(c) Failure by the Client to notify Red IT Solutions of a disputed Tax Invoice within 5 Business Days shall be deemed acceptance by the Client of the entire Tax Invoice.

7.4 Interest

Red IT Solutions may charge interest at a rate of 5% per month on overdue Tax Invoices, compounding daily.

7.5 Late Payment.

(a) If the Client does not pay the full Fees as required, Red IT Solutions may suspend all Services.

(b) If Fees are not brought out of arrears within 15 days of becoming overdue, Red IT Solutions may cease providing the Services without notice and/or end this Agreement in its discretion. For clarity, termination shall not affect the Client’s liability to pay any outstanding Fees.

(c) The Client agrees that Red IT Solutions shall not be responsible or liable in any way for:

i Interruptions to the availability of Services in the event of (a); or

ii Loss of Client IP in the event of (b).

8 INTELLECTUAL PROPERTY

8.1 Red IT Solutions IP

(a) The Client acknowledges that Red IT Solutions retains ownership of all of Red IT Solutions IP.

(b) Red IT Solutions grants the Client a non–exclusive, perpetual, non–transferable, royalty free and worldwide licence to use, for the purposes of its day to day business, the Red IT Solutions IP to the extent that it is contained within the Services.

(c) The Client agrees that they shall return and/or cease using Red IT Solutions IP upon the termination of the Agreement, unless otherwise permitted in writing by Red IT Solutions.

8.2 Client IP

(a) Red IT Solutions acknowledges that the Client retains ownership of all of Client IP.

(b) The Client grants Red IT Solutions a non–exclusive, perpetual, non–transferable, royalty free and worldwide licence to use the Client IP to the extent that it is contained within the Services.

(c) The Client grants Red IT Solutions a non–exclusive, perpetual, non–transferable, royalty free and worldwide licence to use the Client’s name and logo in Red IT Solutions marketing or tender documents, unless the Client directs Red IT Solutions not to.

9 CONFIDENTIALITY

9.1 Confidential Information means any written or verbal information that:

(a) Is connected with the Client and is obtained from the Client or one of the Client’s representatives;

(b) The Client informs Red IT Solutions that the Client considers it confidential and/or proprietary; or

(c) Is personal information within the meaning of the Privacy Act 1988 (Cth).

9.2 Red IT Solutions will keep all Confidential Information in confidence on an ongoing basis in accordance with this Agreement.

9.3 The Confidentiality obligations owed under this Agreement shall survive termination of the Agreement.

9.4 Nothing in this Agreement shall prevent Red IT Solutions from using the name of the Client in any list of clients used by Red IT Solutions for its own promotional purposes in accordance with clause 8.2(c).

9.5 Red IT Solutions must not:

(a) Use any of the Confidential Information except to the extent necessary to exercise its rights and perform its obligations under this Agreement; or

(b) Disclose any of the Confidential Information except in accordance with clauses 9.6 or 9.7.

9.6 Red IT Solutions may disclose Confidential Information to its personnel (including to third parties engaged by Red IT Solutions to provide services in connection with the Services) if:

(a) The disclosure is required to enable Red IT Solutions to perform its obligations or to exercise its rights under this document; and

(b) Prior to disclosure, Red IT Solutions informs the person of Red IT Solutions’s obligations in relation to the Confidential Information under this document;

9.7 Subject to clause 9.8, Red IT Solutions may disclose Confidential Information that Red IT Solutions is required to disclose by law.

9.8 If Red IT Solutions is required to make a disclosure under clause 9.7, Red IT Solutions must:

(a) To the extent possible, notify the Client immediately after it anticipates that it may be required to disclose any of the Confidential Information; and

(b) Only disclose Confidential Information to the extent necessary to comply.

9.9 The Client and Red IT Solutions must each assist the other to comply with its obligations under the Privacy Act 1988 (Cth) in relation to Confidential Information.

10 PRIVACY AND DATA

10.1 Red IT Solutions may collect personal information about the Client, its representatives and employees in the course of acting for the Client. This personal information will only be disclosed and used for the purposes of providing the Services, improving Red IT Solutions services and obtaining feedback, or otherwise in accordance with the Client’s instructions.

10.2 Where the Client provides Red IT Solutions with the personal information of its customers, employees, contractors or other individuals, the Client warrants that it is duly authorised to do so.

10.3 Unless express notified otherwise, the Client authorises Red IT Solutions to record telephone calls made to and from Red IT Solutions to the Client and/or its end users for quality assurance purposes.

10.4 While all reasonable efforts are made to backup Client data, Red IT Solutions cannot be held responsible for backup failure and the Client shall maintain and implement independent backup measures to ensure the ongoing availability of its data.

11 THIRD PARTY DEPENDENCIES

11.1 The Client agrees and acknowledges that Red IT Solutions has third party dependencies which may affect the availability of the Services and shall not be liable for any interruptions to such. For clarity, any interruption to the Services caused by that Third Party Service shall not be taken into account for the purposes of the Service Level Agreement.

11.2 Red IT Solutions may utilise Third Party Services to deliver the Services. In the event such Third Party Services become unavailable or incur a price rise, Red IT Solutions will provide the Client with 30 days’ written notice of the upcoming change and providing the new pricing of the Third Party Services has not changed by more than 20% and do not occur any more than once annually, the Client accepts these changes.

12 EQUIPMENT

12.1 As part of the Services, Red IT Solutions may install or loan equipment to the Client from time-to-time, which may incur additional Fees as agreed with the Client.

12.2 Where equipment is provided to the Client, ownership in the equipment shall continue to vest in Red IT Solutions at all times and the Client shall:

(a) Not remove or obscure any identification marks on the equipment;

(b) Make it clear to all persons that the equipment is owned by Red IT Solutions;

(c) Comply with all reasonable instructions from Red IT Solutions with respect to the equipment; and

(d) Not do anything or allow anything to be done with the equipment which might affect Red-IT Solutions ownership, such as assign, sell, lend, part with possession of or otherwise dispose of the equipment.

13 LIABILITY AND INDEMNITY

13.1 To the maximum extent permitted by law, the provisions of this Agreement exclude all implied conditions and warranties except any implied condition or warranty, the exclusion of which would contravene any laws or cause this condition to be void.

13.2 In no circumstances will Red IT Solutions be liable for any direct, incidental, consequential or indirect damages, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the Client’s access to, or use of, or inability to use the Services, and in particular any decisions made in reliance on advice and recommendations, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not Red IT Solutions knew or should have known of the possibility of such damage, to business interruption of any type, whether in tort, contract or otherwise.

13.3 The Client agrees to indemnify Red IT Solutions for any loss, damage, cost or expense that Red IT Solutions may suffer or incur as a result of or in connection with the Client’s use of or conduct in connection with the Services, including any breach by this Agreement,

13.4 Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, Red IT Solutions excludes all conditions and warranties that may be implied by law. To the extent permitted by law, liability of Red IT Solutions for breach of any implied warranty or condition that cannot be excluded is restricted, at Red IT Solutions’s option to:

(a) The re-supply of services or payment of the cost of re-supply of services; or

(b) The replacement or repair of goods or payment of the cost of replacement or repair.

13.5 Each party releases the other party from any liability for any claims arising as a result of delay or failure to provide the Services or to comply with this Agreement to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party (including a Force Majeure Event), and which by its nature could not have been foreseen or, if it could have been foreseen, was unavoidable, provided that the affected party has used all reasonable endeavours to promptly cure such an event or circumstance.

13.6 To the fullest extent permitted by law, no party will be liable for any consequential or indirect loss of the other party in contract, tort, negligence, breach of statutory duty or otherwise.

14 TERMINATION

14.1 Without affecting any other rights or obligations of the parties, either party may terminate this Agreement by giving 60 days’ written notice.

14.2 Where a party is in material breach of this Agreement, the other party may provide the breaching party a notice to remedy the breach within a reasonable time, which shall not be less than 15 Business Days (Breach Notice Period). Should the breach remain unremedied at the expiry of the Breach Notice Period, then the other party may terminate this contract by written notice.

14.3 For the purposes of clause 14.2, a material breach of this Agreement shall be constituted by Red IT Solutions’ failure to meet the Service Level Agreement in accordance with this Agreement for a period of three consecutive months provided the Client has made all reasonable efforts to advise Red IT Solutions that the Service Level Agreement standards have not been met for each month.

14.4 Termination is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this Agreement up to the date of termination, in particular the Client’s obligation to pay outstanding Fees which shall become immediately due and payable as a liquidated debt.

14.5 For the avoidance of doubt, this Agreement shall not expire at the end of the Minimum Term but will automatically roll over on a quarerly basis or such other period as may be agreed between the parties until validly terminated.

15 DISPUTE RESOLUTION

15.1 If any dispute arises between the Client and Red IT Solutions in connection with this Agreement (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:

(a) Includes or is accompanied by full and detailed particulars of the Dispute; and

(b) Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.

15.2 Within 10 Business Days after a Dispute Notice is given, a representative (with the authority to resolve the dispute) of the Client and Red IT Solutions must meet and seek to resolve the Dispute.

15.3 Subject to clause 15.4, a party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.

15.4 Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a Dispute.

15.5 Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.

16 MODIFICATION OF TERMS

16.1 The terms of this Agreement may be updated by Red IT Solutions from time-to-time.

16.2 Where Red IT Solutions modifies the terms, it will provide the Client with 30 days’ written notice, and the Client will be required to accept the modified terms in order to continue using the Services.

16.3 If the Client does not accept the modified terms, it must notify Red IT Solutions and terminate this Agreement.

17 ELECTRONIC COMMUNICATION AND NOTICES

17.1 The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.

17.2 A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.

17.3 The parties agree to be bound by this Agreement if entered into, accepted, signed or agreed to electronically.

17.4 Notices must be sent to the parties’ most recent known contact details.

18 GENERAL

18.1 Special Conditions. The parties may agree to any Special Conditions to this Agreement in writing.

18.2 Prevalence. To the extent that the Scope is inconsistent with the terms of this Agreement, the terms of the Scope will prevail. To the extent that the Special Conditions are inconsistent with any other term of this Agreement, the Special Conditions will prevail.

18.3 Assignment.

(a) The Client may not assign or otherwise create an interest in this Agreement without the written consent of Red IT Solutions.

(b) Red IT Solutions may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the Client.

18.4 Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.

18.5 Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.

18.6 Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.

18.7 Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.

18.8 Governing Law. This Agreement is governed by the laws of the state of Victoria, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.

18.9 Severability. Any clause of this Agreement, which is invalid or unenforceable is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.

18.10 Interpretation. Headings are only for convenience and do not affect interpretation. The following rules apply unless the context requires otherwise:

(a) The singular includes the plural and the opposite also applies.

(b) If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.

(c) A reference to a clause refers to clauses in this Agreement.

(d) A reference to legislation is to that legislation as amended, re enacted or replaced, and includes any subordinate legislation issued under it.

(e) Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.

(f) A reference to a party to this Agreement or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).

(g) A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.

(h) A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.

(i) A reference to dollars or $ is to an amount in Australian currency unless otherwise explicitly specified.

END CLIENT TERMS & CONDITIONS

UPDATED: 9th December 2022