Service Agreement Terms

This agreement between the ‘Customer’ and Reliance Communications will govern the services delivered (‘Service’) from Reliance Communications, as described in the Order form to, or any statement of working referencing this Agreement.

 

1.Definitions

• Customer means the individual or entity that has entered into the Service Agreement with Reliance Communications.
• Days means calendar days, including public holidays and weekends, unless it is specified that it is to be business days. If reference is made to business days it is to mean weekdays, exclusive of public holidays.
• Fees means the total fee comprising each fee as described in Order Form to the Agreement, as amended from time to time by the Reliance Communications and notified to the Customer.
• Nominated User/s means the person or persons nominated by the Customer, to use the Service.
• Platform means the telecommunications software product, the on-line platform services. 
• Reliance Communications means Reliance Communications Pty Ltd ACN 003 990 841 and its representatives.

 

2. ORDERS

• a.  Orders are subject to acceptance by Reliance Communications. Reliance Communications may accept an order by scheduling of or commencing to perform Services. Accepted orders will be deemed to incorporate and be subject to this Agreement. All other terms and conditions contained in any Customer purchase order or other document not expressly referenced in this Agreement will have no effect.

3.‘IN SERVICE DATE’

• a. The ‘In-Service Date’ means the date on which Reliance Communications notifies Customer that the Reliance Communications-services are scheduled in accordance with order form and/or statement of work.

 

4.TERM

• a. The Term commences on the Commencement Date and continues until the Expiry Date. After the Expiry Date, this Agreement will automatically renew on the same terms as this Agreement for successive 12 month periods unless written notice is received by the Reliance Communications from the Customer no less than 30 days prior to the Expiry Date, or unless the Agreement is terminated earlier pursuant to this Agreement or otherwise agreed in writing by the Reliance Communications

 

5. SUPPLY OF SERVICES

• a. Reliance Communications grants to the Customer a non-exclusive, non-transferrable License to access the Platform to allow the Nominated Users to use the Service strictly in accordance with the terms of this Agreement for the Term.
• b. Reliance Communications reserves the right to vary the Service at its discretion with notice to the Customer.
• c.The Customer acknowledges that the Platform is being developed by Reliance Communications and its suppliers and the platform is confidential, proprietary, commercially sensitive and innovative. The Customer agrees that it will not, and will ensure that the Nominated Users do not, share any of the information it comes into contact whilst using the Platform and the Service, including any methodology, process-flows, documentation or any other materials without the prior written consent of Reliance Communications, which may be withheld at its absolute discretion.
• d. Reliance Communications reserves the right to audit:
• i. the access and use of the Platform and the Service by the Customer and Nominated Users to determine if it is in accordance with the terms of this Agreement; and
• ii. the number of Nominated Users to determine if it is in accordance with the numbers of approved Nominated Users.
• e. The Customer agrees to do all that is reasonably necessary to assist Reliance Communications in exercising the right to audit. Reliance Communications will only exercise this right reasonably and with minimal disruption to the Customer’s day-to-day business operations. If an audit conducted pursuant to clause 4 e. results in a discrepancy whereby the Customer appears to be in breach of its right of access under this Agreement, the Customer must promptly pay to Reliance Communications:
•  i.        any fees associated with that discrepancy including any additional Fees;
•  ii.        the reasonable costs incurred by Reliance Communications to conduct that audit; and
• f. The Customer acknowledges that the Platform and the Service may require modifications, updates, or changes from time to time. Reliance Communications will use its best endeavors to make any required changes at scheduled times notified to the Customer in advance. Reliance Communications shall notify the Customer of any changes or updates to the Platform within 10 business days prior to the changes taking place.
• g. The Reliance Communications will not be liable for any loss or damage suffered by the Customer as the result of denial of access to the Platform or the Service due to such modifications, updates or changes.

 

6. INVOICING AND PAYMENT

• a. The Customer is liable to pay to Reliance Communications the Fee within the term for payment, as specified in the Order Form to this Agreement.
• b. Payment on invoices is due within fourteen (14) days from the date of the invoice. If Customer disputes an invoice, it must provide the notice of dispute within 7 days of the invoice date and pay the undisputed portion. For any disputed portion the parties must in good faith attempt resolution before the due date (14 days) failing which the dispute resolution provisions of this agreement will apply in respect to the unpaid portion.
• c. Any overdue payments will be subject to a late payment charge of two percent (2%) per month or the maximum rate allowed by applicable law, whichever is less.
• d. If Reliance Communications reasonably incurs additional expenses or disbursements necessary to carry out its obligations under this Agreement, it may pass through those expenses or disbursements to Customer.
• e. Taxes. Unless Customer provides Reliance Communications with a tax exemption certificate, Customer is solely responsible for paying all legally required taxes, including without limitation any sales, excise or other taxes and fees which may be levied upon the sale, transfer of ownership, license, installation or use of the Products, except for any income tax assessed upon Reliance Communications. Customer will pay all shipping, handling, rigging and other destination charges relating to the shipment and delivery of the Products to the location specified on the applicable order.
  
  

7.  RISK

• a. The risk in the use of the Service passes to the Customer at the time of access to the Platform and the use of the Service.

 

8. CUSTOMER RESPONSIBILITIES 

• a. Customer will cooperate with Reliance Communications as reasonably necessary for Reliance Communications’ performance of its obligations under an order, including doing such things as:
• b.  Ensuring it has the authority to enter into and perform its obligations under this Agreement and that this Agreement has been duly executed and is a legal, valid and binding Agreement;
• c. Providing Reliance Communications with designated points of contact to allow Reliance Communications to effectively implement the Services required un the agreement;
• d. It will give full and punctual performance of its obligations under this Agreement including providing any reasonable information and assistance requested by Reliance Communications where relevant;
• e. It will act in good faith towards Reliance Communications and provide such assistance and co‐operation as is practicable on request by Reliance Communications for the delivery of the Services;
• f. In relation to Customer Data the following shall apply:
• i. Reliance Communications acknowledges that Customer Data is Confidential Information and is the sole and exclusive property of Customer and Reliance Communications or its suppliers do not have any interest in any Customer Data. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and Intellectual Property Rights ownership or right to use all Customer Data, and Reliance Communications will not be responsible or liable for the deletion, correction, destruction, damages, loss or failure to store any Customer Data.
• ii.   Customer warrants that no third party Intellectual Property Rights are or will be infringed by Customer’s use of the Product in association with the Customer Data, including any such third party Intellectual Property Rights in any Customer Data.
• iii.  Customer acknowledges that it is solely responsible for the accuracy and appropriateness of any Customer Data.
• g. Customer indemnifies Reliance Communications, and will keep Reliance Communications indemnified from and against any and all liabilities, losses, claims, damages, demands, expenses or costs (including without limitation all consequential or special losses, loss of profit, loss of reputation and all interest, penalties and legal or other professional advisors’ fees) resulting from or in connection with Customer Data, except and to the extent arising from any negligent act or omission of Reliance Communications.
• h. All items to be provided by Customer are at Customer’s expense. Customer is responsible for ensuring that its networks and systems are adequately secured against unauthorized intrusion or attack and regularly backing up its data and files in accordance with good computing practices. 

 

9. INTELLECTUAL PROPERTY

 

• a.  Customer acknowledges that:
• i. Reliance Communications and is Suppliers owns or has the right to use all Intellectual Property Rights in the Service provided under this agreement, and that this Agreement does not transfer ownership of any Intellectual Property Rights to Customer.
• ii. Any Intellectual Property Rights in improvements, amendments or adaptations to the Service or Documentation whether made by Reliance Communications, the Customer or anyone else is the property of Reliance Communications. Customer agrees to do all things reasonably required to give effect to this clause.
• iii. Customer must notify Reliance Communications immediately if it becomes aware of any:
• 1. unauthorized access to or use of the Service or the Platform; or
• 2. Other breach of any Intellectual Property Rights of Reliance Communications.
• b. The Customer grants to Reliance Communication a Licence to use its Intellectual Property rights in the Platform, the Service and anything related to it pre-existing materials owned by or licensed to the Customer for Reliance Communication meeting its obligations under this Agreement.

 

10. WARRANTIES

• a. Reliance Communication expressly denies and excludes any warranties or conditions which would otherwise be implied to the maximum extent permitted by law, however Reliance Communication acknowledges that this Agreement does not exclude any statutory warranties implied by law.
• b. Reliance Communication warrants:
•  i.   it has the power to enter this Agreement;
• ii.  it has all necessary licenses and consents required to make the Service available to the Customer and to the Nominated Users;
• iii. the use of the Platform and the Service by the Customer and the Nominated Users will not infringe any rights (including any Intellectual Property rights) of any third party; and
• iv.  it will use its best endeavors to make the Platform and the Service available in accordance with the Customer Service level agreement attached to this agreement.
• c. The Customer warrants as follows in relation to the use of the Platform and the Service:
• i. it has the power to enter this Agreement, is solvent and able to pay its debts as and when they fall due, and this agreement creates a binding and legal obligation on the Customer;
• ii.  it has relied on its own knowledge and skill in assessing whether the Service is suitable for its needs;
• iii. it will comply with all reasonable directions of Reliance Communication in respect of access and use of the Platform and Service and the Customer acknowledges that Reliance Communication is not liable if the Customer has failed to comply with any requirements of Reliance Communication;
• iv. the Nominated User/s are current employees and contract staff of the Customer;
• v.  the Customer will ensure that each Nominated User complies with this Agreement with respect of access and use of the Platform and the Service and it will not alter or remove any notices relating to Intellectual Property rights embedded in the Platform or the Service;
• vi. it will use the Platform and the Service only in the manner contemplated under this Agreement; and
• vii. it can comply with its obligations under this Agreement.
• d.  The Customer further acknowledges that:
•  i.  the Platform is a portal that gives the Customer and the Nominated Users access to third party owned intellectual property which Reliance Communication has the right to make available to the Customer;
•  ii.  The access and use of the Platform and the Service is personal to each Nominated User only, and will ensure that each Nominated User does not share any information acquired by that Nominated User (including any access codes or password) with any third party without the prior written consent of Reliance Communication.

 

11. TERMINATION AND CANCELLATION

• a. Termination with notice:
• i.  Reliance Communications may terminate this Agreement at any time by giving the Customer 180 days written notice.
• b. Termination for cause
• i.  either Party may terminate this Agreement immediately upon written notice if:
• 1.  if a Party becomes insolvent or appoints an administrator, receiver, receiver and manager, liquidator or trustee in bankruptcy
• 2.  the Customer has breached any of its obligations under this Agreement;
• 3.  the other Party is in breach of any provision of this Agreement and does not or cannot remedy that breach within 30 days of receiving written notice from the original Party; or
• 4.  Reliance Communications has failed to achieve the minimum agreed service level in the Customer Service Level Agreement for a period of three (3) consecutive months.
• ii.  If Reliance Communications receives notice from the Customer under clause 11 b i 4. in respect of any event of interrupted performance of, or for any denial or limited access to the Platform or Service which continues for a period of 90 days, and that arises solely and as a direct result of a proven failure: 
• c. Reliance Communications may terminate this Agreement by written notice if:
• i.  The Customer has not paid a tax invoice within 60 days of issue and has not notified Reliance Communications of a concern in relation to the accuracy or adequacy of the Tax Invoice; or
• ii.  where the Customer or Nominated User is in breach of an obligation under this Agreement which cannot be remedied; or
•  iii.  where the Customer or a Nominated User habitually breaches the terms of access and use for the Platform and the Service;
• iv. Where Reliance Communications supplier goes into an insolvency situation as defined under applicable laws; or
• v. Where Reliance Communications supplier terminates its agreement with Reliance Communications.
• d. On expiry or termination of this Agreement, the Customer must:
•  i.  make payment to Reliance Communications of all outstanding tax invoices;
•  ii. on termination due to default of the Customer, on demand by Reliance Communications, the Customer must make payment of the remainder of the amount due and owing to Reliance Communications for the term as liquidated damages. The Customer acknowledges and agrees this amount is a genuine pre-estimate of the loss suffered by Reliance Communications as a result of the termination.
• e. On expiry or termination of the Agreement, Reliance Communications may in its absolute discretion:
•  i.  terminate supply of the Service and access to the Platform;
•  iii. take any steps it deems necessary to recover the amounts owing by the Customer pursuant to clause 16.5;
• f.  And Reliance Communications is not liable to the Customer for any consequential loss or damage arising out of exercise of Reliance Communications’ rights under this clause 11 d.
• g. On termination or expiry of this Agreement or as otherwise requested by Reliance Communications, the Customer must deliver to Reliance Communications the following:
• i.  the Confidential Information of Reliance Communications;
• ii.  Intellectual Property owned or licensed by Reliance Communications;
• iii.  any other property of Reliance Communications in the possession or control of the Customer.
• h. 9  If any of property referred to in clause 11 g. is in the form of any video, tape, digital or electronic or any similar medium, Reliance Communications may require the Customer to delete or erase the information so it cannot be retrieved and undertake to be liable for any damages suffered by Reliance Communications if this does not occur.

 

12.  LIMITATION OF LIABILITY

• a. As far as the law permits, and unless otherwise specified in this Agreement, Reliance Communications will not be liable to the Customer in tort (including negligence), contract, statute or otherwise for any direct or indirect loss or damage (including loss of business revenue, loss of profits or anticipated savings, failure to realise expected profits or savings, economic loss, loss or corruption of data, or any consequential damage) incurred by the Customer or a third party in connection with any act or omission by Reliance Communications under or in relation to this Agreement.
• b. For any liability which cannot lawfully be excluded, but can be limited, Reliance Communications’ liability is limited to its choice of re-supplying or paying the cost of re-supplying services and repairing, replacing or paying the cost of repairing or replacing goods.
• c. Notwithstanding anything else in this clause, ‘Reliance Communications’ liability will be reduced to the extent the loss or damage is caused by the Customer or its Personnel.

 

13. GOVERNING LAW AND DISPUTE RESOLUTION

• a. Governing Law. This Agreement and any disputes arising out of or relating to this Agreement (‘Disputes’) will be governed by the laws of New South Wales, excluding both the conflict of law principles and the United Nations Convention on Contracts for the International Sale of Goods.
• b. Disputes. If a dispute arises out of or in relation to this Agreement the parties agree:
•  i.  either party may notify the other in writing in which case the nominated representative of each affected party must promptly attempt in good faith to resolve the dispute. If the parties are unable to resolve the dispute within seven (7) days of the written notification referred to in this clause, each party must promptly refer the dispute for resolution to a senior corporate executive of that party.
• ii. If the parties are unable to resolve the dispute within fourteen (14) days following referral to the senior corporate executives of the relevant parties, the parties must agree in good faith to attempt to resolve the dispute by attending a mediation conducted in accordance with the rules of the Australian Commercial Disputes Centre (ACDC). If the parties cannot agree on the appointment of a mediator, the mediator will be appointed by the president for the time being of the Law Society of New South Wales.
• iii. The costs of the mediator will be shared equally between the parties.
• iv.  If a dispute remains unresolved after mediation has been conducted in good faith then either party may use such lawful dispute resolution procedures or seek such legal and equitable remedies as it considers necessary or appropriate in its sole discretion. The parties agree that any breach or threatened breach of this Agreement will cause the other party to suffer damages for which monetary damages alone would not be an adequate remedy.
• v.        Nothing in this clause shall prevent a party from seeking urgent injunctive relief before an appropriate court.

 

14. Confidential Information

• a. The term ‘Confidential Information’ means either party’s business and/or technical information, any pricing and discounts and any other information or data, regardless of whether in tangible, electronic or other form if it is marked or otherwise expressly identified as confidential in writing. Information communicated verbally will qualify as Confidential Information if designated as confidential or proprietary at the time of disclosure and summarised in writing within thirty (30) days after verbal disclosure. Confidential Information does not include materials or information that:
• i.  is generally known by third parties as a result of no act or omission of the receiving party;
• ii.  subsequent to its disclosure was lawfully received from a third party having the right to disseminate the information and without restriction on disclosure;
• iii.  was already known by the receiving party prior to receiving it from the other party and was not received from a third party in breach of that third party’s obligations of confidentiality;
• iv.  was independently developed by the receiving party without use of Confidential Information of the disclosing party; or
• v.  is required to be disclosed by court order or other lawful government action, but only to the extent so ordered, and provided that the receiving party promptly notifies the disclosing party of the pending disclosure in writing so that the disclosing party may attempt to obtain a protective order. In the event of a potential disclosure in the case of subsection above, the receiving party will provide reasonable assistance to the disclosing party where the disclosing party attempts to obtain a protective order. 
• b. Each party will protect the secrecy of all Confidential Information received from the other party with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than a reasonable degree of care. Neither party will use or disclose the other party’s Confidential Information except as permitted in this Section or for the purpose of performing obligations under this Agreement. The confidentiality obligations of each party will survive expiration or termination of this Agreement. Upon termination of the Agreement, each party will cease all use of the other party’s Confidential Information and will promptly return, or at the other party’s request destroy, all Confidential Information in tangible form and all copies of Confidential Information in that party’s possession or under its control, and will destroy all copies of Confidential Information on its computers, disks and other digital storage devices. Upon request, a party will certify in writing its compliance with this Section.

 

15. MISCELLANEOUS

• a. Reliance Communications may assign this Agreement and any order hereunder to any of its affiliated entities or to any entity to which Reliance Communications may sell, transfer, convey, assign or lease all or substantially all of the assets or properties used in connection with the performance hereunder. 
• b. Reliance Communications may subcontract any or all of the obligations to be performed by it hereunder, but will retain responsibility for the work. 
• c. Neither party will be liable for any delay or failure in performance to the extent such delay or failure is caused by events beyond the party’s reasonable control, such as fire, flood, Act of God, explosion, war or the engagement of hostilities, strike, embargo, labor dispute, government requirement, civil disturbances, civil or military authority, and inability to secure materials or transportation facilities. 
• d. The failure of either party to assert any of its rights under this Agreement will not be deemed to constitute a waiver by that party of its right thereafter to enforce each and every provision of this Agreement in accordance with its terms. 
• e. This Agreement constitutes the entire understanding of the parties with respect to the subject matter thereof and will supersede all previous and contemporaneous communications, representations or understandings, either oral or written, between the parties relating to that subject matter and will not be contradicted or supplemented by any prior course of dealing between the parties. 
• f. All notices under this Agreement and any modifications or amendments to this Agreement must be in writing.