TERMS AND CONDITIONS
These Terms and Conditions apply to the provision of Support and Consulting Services by BOAB IT Pty Ltd ACN 163 343 208 or its subsidiaries (as applicable) (BOAB IT) to Customers and their end users of BOAB IT’s hardware and software subscription based products and services.
1.1 In these Terms and Conditions:
Support Services has the meaning given in clause 3.1.
Consulting Services has the meaning given in clause 3.2.
End User means any individual who is a party to the Agreement, Support Services Order or other agreement with BOAB IT to which these Terms and Conditions apply.
Website means the website maintained by BOAB IT at which information relevant to this agreement, including pricing, is published and which, as at the date of these Terms and Conditions can be accessed at https://boabit.wpengine.com.au
Subscription means the hardware, software and service subscriptions provided by BOAB IT to the Customer as per the associated Agreement.
Customer means (as applicable) an business or company including, but not limited to, End Users of hardware, software and/or service subscriptions provided by BOAB IT who has an Agreement, Support Services Order or other agreement with BOAB IT to which these Terms and Conditions apply.
Partner means a business or company BOAB IT work with to deliver hardware and software based products and/or services to its Customers.
24/7 Portal means the 24/7 portal available at https://my.boabit.com.
Support Services Guide means the Support Services Guide published on the 24/7 Portal and BOAB IT Website.
Support Request means a request for Support Services (as applicable under clause 3 of these Terms and Conditions and the relevant Agreement, Subscription, Support Services Order or other agreement with BOAB IT to which these Terms and Conditions apply).
Support Services Order means the order for Support Services or Consulting Services which is placed via the 24/7 Portal or directly to a BOAB IT Account Manager.
Technicians, Vendors and Associates means and includes:
(a) any employees, agents, sub-contractors or other representatives of BOAB IT or (to the extent applicable);
(b) any Vendor or their employees, agents, sub-contractors or other representatives, (and Technician, Vendor or Associate has a corresponding meaning).
Vendor means the vendor to BOAB IT (or through BOAB IT) of hardware, software and services for use by Customers and End Users in respect of which BOAB IT provides the Support Services.
1.2 A reference to time, whether in these Terms and Conditions or in a document to which these terms and conditions refer, unless otherwise specified is a reference to Australian Eastern Standard Time or Australian Eastern Daylight Time (where applicable).
1.3 In these Terms and Conditions, unless expressed to the contrary:
(a) words importing the singular include the plural and vice versa; and any gender includes the other gender;
(b) if a word or phrase is defined, cognate words and phrases have corresponding definitions;
(c) a reference to a person includes its legal personal representative, successors and assigns;
(d) a right includes a benefit, remedy, discretion, authority or power;
(e) an obligation includes a warranty or representation and a reference to a failure to observe or perform an obligation includes a breach of warranty or representation;
(f) claims includes actions, suits, causes of action, debts, liabilities, demands, damages, losses, costs and expenses of any description, decisions, judgments and orders either at law or in equity or arising under any statute;
(g) where there are two or more persons bound or to be bound by any agreement or obligation such agreement or obligation binds each of those persons severally and any two or more of them jointly;
(h) a reference to a party includes that party’s executors, administrators, successors and permitted assigns;
(i) a reference to a document or agreement, including this agreement, includes a reference to that document or agreement as novated, altered or replaced from time to time;
(j) a reference to anything includes the whole or part of that thing and a reference to a group of things or persons includes each thing or person in that group.
(k) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement.
2 Relationship to Support Services Guide
2.1 These Terms and Conditions set out the terms and conditions applicable to the provision of Support Services by BOAB IT. In the event of any inconsistency between these Terms and Conditions and anything in the Support Services Guide, these Terms and Conditions prevail.
3 Support Services and Consulting Services
3.1 Support Services
Support Services include services provided by BOAB IT in respect of the hardware, software and/or subscription based products and services specified in section 5 in the Support Services Guide.
BOAB IT will provide Support Services:
(a) to Customers and their End User’s in respect of the Agreement or Support Services Order provided that:-
(i) the applicable Agreement or Subscription has not expired or been terminated;
(ii) there are no outstanding amounts owing or payable to BOAB IT under the Agreement; and
(iii) the Customer is not in breach of the Agreement (for any reason) or any other contractual obligation owed to BOAB IT.
3.2 Consulting Services
Consulting Services include but are not limited to:
(a) any services specified as Consulting Services in the Support Services Guide; and
(b) any services notified to the Customer (as applicable) as being Consulting Services in accordance with a variation of these Terms and Conditions under clause 9.
3.3 Replacement guarantee
For BOAB IT to ensure the replacement guarantee can be achieved in a timely fashion, the following conditions must be met:
(a) A Customer must have the a current Agreement in place for the failed hardware; and
(b) No outstanding finance agreement documents; and
(c) No outstanding invoices.
For the Hardware Team to ensure delivery of the faulty hardware can be achieved, the following workflow must be met:
(d) A support request submitted to the Support Centre set to P1;
(e) A Support Technician will confirm the hardware failure is non-recoverable and escalated the request to the Hardware Team;
(f) The Hardware Team will prepare and deploy a replacement device within 12 hours.
BOAB IT utilise the Australia Post Express network to facilitate the delivery of a faulty device from its Head Office in Sydney – NSW.
4 Delivery of the Support Services
4.1 BOAB IT shall provide the Support Services by providing technical support and assistance in response to Support Requests submitted by Customers and their End Users. Although BOAB IT will use its best endeavours to resolve Support Requests, the Customer agrees and acknowledges that such resolution may be affected by a range of factors, many of which are outside BOAB IT’s control, and the Customer agrees and acknowledges that BOAB IT makes no promise to fully resolve every Support Request, and that BOAB IT shall not be liable for any failure to fully resolve a Support Request.
4.2 The Customer may make a Support Request by telephone, email or using the 24/7 Portal, in accordance with the Support Services Guide (and during the times set out in section 3 of the Support Services Guide).
4.3 BOAB IT or any of its Technicians, Vendors and Associates, may reject, terminate or refuse to action any Support Request that it, he or she reasonably considers to be:
(a) not genuine;
(b) previously resolved, so that no further action is required;
(c) not possible to be further resolved, so that no further action is possible;
(d) unreasonable or unintelligible;
(e) outside the scope of the Support Services applicable to that Customer under these Terms and Conditions together with a current Agreement, Support Services Order or other agreement with BOAB IT; or
(f) not made by a Customer in accordance with these Terms and Conditions and a current Agreement, Support Services Order or other agreement with BOAB IT.
4.4 BOAB IT will use its best endeavours to respond to Support Requests within the time frames set out in section 3.3.2 of the Support Services Guide according to priority. The Customer acknowledges and agrees that:
(a) BOAB IT has the sole discretion in determining the priority level of a Support Request;
(b) the Support Services are subject to varying levels of demand from other End Users of BOAB IT Support Services, and it may be necessary to respond to higher priority level Support Requests submitted by other End Users before responding to the Support Request submitted by the Customer and their End Users;
(c) BOAB IT shall not be liable for any failure to respond to or resolve a Support Request within the time frames set out in the Support Services Guide, where that failure arises as a result of circumstances outside of BOAB IT’s control or because of high End User demand for the Support Services at that time.
4.5 BOAB IT shall not be liable for any temporary unavailability of the Support Services, including telephone, email or 24/7 Portal facilities due to maintenance, downtime or any circumstance out of BOAB IT’s control.
4.6 Requests for information and failure to follow instructions or advice:
(a) BOAB IT, or any of its Technicians, Vendors and Associates may request further information or provide instructions to the Customer in relation to the Support Request. The Customer agree to provide any such information or follow such instructions where reasonably requested to do so.
(b) BOAB IT, or the Technician, Vendor or Associate working on or responding to the Support Request may close and refuse to take any further action on any Support Request if (without limitation):
(i) the Customer fails to provide information reasonably requested;
(ii) the Customer fails to follow reasonable instructions given by BOAB IT, or the Technician, Vendor or Associate in relation to the Support Request; or
(iii) the Customer fails to follow the Support Guide, until such time as the failure has been remedied by the Customer.
5 Pricing, billing and payment Pricing
5.1 Unless otherwise specified, the cost of Support Services is included in the Support Services Order, Subscription or Agreement to which those Support Services relate.
5.2 Pricing for Support Services is listed on the BOAB IT website and the 24/7 Portal. BOAB IT reserve the right to vary the prices at any time without notice.
6.1 Fees for the Support Services (where applicable) will be billed:
(b) between the 15th and the 20th day of each month.
7.1 Payment must be:
(a) by direct debit unless otherwise agreed to by BOAB IT; and
(b) made within 7 business days after the invoice is issued unless otherwise agreed in writing.
7.2 In the event that Customer fails to pay any invoice that BOAB IT renders to the Customer in full within 7 days from the date it is due for payment:
(a) BOAB IT shall be entitled to cancel or suspend the supply of any Support Services to the Customer, and the Customer shall indemnify and hold BOAB IT harmless from any claims of whatever nature including but not limited to any claims for loss, compensation or damage that may be made by the Customer or its Customers arising from or relating to such cancellation or suspension of the supply of Subscriptions by BOAB IT;
(b) In the event that Customer fails to pay three (3) invoices, BOAB IT reserves the right to invoice the Customer for the full term of the Support Services Order, Subscription or Agreement to which those invoices relate.
(c) BOAB IT shall be entitled to immediately commence legal proceedings for the recovery of the unpaid amount of any and all invoice(s) and the Customer hereby irrevocably agrees that:
(i) the Customer shall pay the legal costs and disbursements incurred in any such proceeding by BOAB IT on a solicitor and client basis; and
(ii) a certificate in writing of the amount due by the Customer to BOAB IT signed by an officer of BOAB IT shall be admitted in evidence in any such proceeding as conclusive proof of the amount owing by the Customer to BOAB IT.
8 Limitation of warranty, limitation of liability and disclaimer
8.1 To the extent permitted by law, and other than as expressly provided in these Terms and Conditions, BOAB IT makes no warranty as to:
(a) the quality of the Support Services;
(b) the time in which the Support Services will be completed (whether in whole or in part); or
(c) whether the Support Services will, or will be able to, fully resolve any technical or other problem, issue or defect the Customer is experiencing with the Subscription, CSP Partner Portal or software or other product to which the Support Services relate.
8.2 BOAB IT shall not be liable to the Customer or End User for any damage or loss arising out of or in connection with the failure (whether by act or omission) of any Partner, Customer, Contracting Party or other person acting on their behalf to:
(a) comply with the instructions set out in the Support Services Guide;
(b) comply with a reasonable request or instruction of BOAB IT or any of its Technicians, Vendors or Associates in relation to the delivery of the Support Services or in connection with the Subscriptions or products and services to which the Support Services relate; or
(c) to the extent that that damage or loss arises out of that Partner’s, Customer’s or other Contracting Party’s failure to take reasonable care to avoid damage or loss.
8.3 To the maximum extent permitted by law, BOAB IT’s liability under these Terms and Conditions or in respect of the Support Services or any other work performed under these Terms and Conditions or any Support Services Order shall be limited to direct damages up to the amount the Contracting Party has paid BOAB IT for the Support Services in the immediately preceding six (6) months.
8.4 To the maximum extent permitted by applicable law, BOAB IT shall not be liable to the Customer for any indirect damages (including without limitation, consequential, special, punitive, or incidental damages, damages for loss of profits or revenue, loss of privacy, business interruption, or loss of business information, failure of security or lost data), arising out of the supply of products and/or services, by BOAB IT.
8.5 The limitations on and exclusion of liability for damages in this Agreement shall apply regardless of whether the liability is based on breach of contract, tort, strict or product liability, statute or breach of warranty.
8.6 BOAB IT ACCEPTS NO RESPONSIBILITY FOR ANY TECHNICAL SERVICES OR OTHER PRODUCTS OR SERVICES NOT SOLD OR PROVIDED DIRECTLY BY BOAB IT.
9 Variation of Terms and Conditions
9.1 BOAB IT shall be entitled to vary these Terms and Conditions, including the Support Services Guide or any other document referred to or incorporated into these Terms and Conditions, from time to time by giving 7 days’ notice to the Customer and thereafter:
(a) any new Subscriptions or orders, or any new Support Services Order or other agreement or order for Support Services placed by the Customer (to the extent applicable) shall be subject to the new Terms and Conditions or related document (as varied);
(b) any renewal (where the variation notice is given at least 7 days before the last day on which the Customer would otherwise be entitled to give notice of termination or non-renewal, or otherwise the first renewal thereafter) of any Agreement, Subscription, Support Services Order or other agreement with BOAB IT to which these Terms and Conditions apply shall be subject the new Terms and Conditions or related document (as varied).
10 Intellectual Property
10.1 The Customer acknowledges that nothing in these Terms and Conditions or any Support Services Order (unless expressly stated to the contrary) has the effect of creating, vesting, transferring, assigning or licencing any intellectual property rights upon the Contracting Party or any other person.
11 Termination and renewal
11.1 Where the Customer terminates an Agreement, Subscription, Support Services Order or other agreement (Terminated Agreement) with BOAB IT, all of BOAB IT’s obligations in respect of (including the provision of) Support Services under or in connection with that Terminated Agreement shall immediately cease.
11.2 Where termination is not otherwise provided for, BOAB IT or the Customer may terminate any agreement or Support Services Order to which these Terms and Conditions relate (but only insofar as concerns the provision of Support Services) on 90 days’ written notice.
11.3 In the event of termination under clause 11.2, the Customer must immediately pay BOAB IT in full any unpaid invoices and other amounts accrued or owing as at the time of termination.
11.4 Where no provision has been made in respect of term, termination and renewal, then:
(a) the minimum term of the relevant agreement is for a period of 12 months; and
(b) the term will automatically renew for further periods of 12 months indefinitely unless terminated by either party in accordance with the terms of the agreement and these Terms and Conditions, or otherwise on 90 days’ written notice (such termination to take effect at the end of the then current term).
12.1 Where the Customer completes or terminates an Agreement, Subscription, Support Services Order or other agreement (Terminated Agreement) with BOAB IT, all of the hardware associated with the Support Services Order, Agreement and/or Subscription must be returned to BOAB IT within 14 business days at the Customers expense.
In the event of the hardware not being returned, the Customer agrees to pay BOAB IT the fair market rate value of the hardware.
12.2 The Customer always owns their own data. A Customer may download a copy of their data at any time. If a Customer has overdue invoices as per Clause 7, access to this data may be limited or suspended.
13 Collection of Information
13.1 Any personal or private information that BOAB IT collects regarding the Customer or any of their business or partners is solely for the purpose of providing the Support Services. The Customer agrees that BOAB IT may collect personal information for this purpose, including passing that information on to Microsoft, or another Vendor, and the Customer shall procure the written agreement of the Customer and any other applicable person in this regard. BOAB IT will not make this information available to any third parties other than Microsoft, or another Vendor or use the information itself for marketing purposes. In all the dealings with BOAB IT, the Customer agrees and consents to provide Customer details in accordance with the Vendor Agreements to the extent permitted by existing privacy laws.
13.2 The Customer irrevocably authorises BOAB IT and its servants and agents to make such enquiries from time to time as BOAB IT may deem necessary to obtain information and/or to investigate the creditworthiness of the Customer including enquiries of persons nominated as trade references, bankers of the Customer, credit providers, any credit reporting agency, any land titles office, and/or any similar body and/or related information service (“the sources”) and including enquiries as to personal credit and consumer credit information and any property, business and/or solvency information. The Customer by this clause irrevocably authorises the sources to disclose all information concerning the Customer which is in the source’s possession.
14.1 All notices which are required to be given under this agreement shall be in writing and shall be sent to the address of the recipients nominated by the parties or such other address as the recipient may designate by notice given in accordance with this clause.
14.2 Any notice may be delivered by hand, post or pre-paid post, facsimile transmission or email. Any such notice shall be deemed to have been served when delivered (if delivered by hand) or 48 hours after posting or transmission by facsimile or email provided receipt has been acknowledged by the recipient.
15 Assignment and subcontractors
15.1 The Customer agrees that BOAB IT may engage subcontractors to perform any or all of its obligations under these Terms and Conditions and any agreement to which these Terms and Conditions Apply.
15.2 Unless otherwise specified in the Agreement, Support Services Order or other agreement to which these Terms and Conditions Apply:
(a) BOAB IT may assign the benefit of that agreement or any rights thereunder (including any benefit or rights accruing under these Terms and Conditions) at any time and in its sole discretion; and
(b) the Customer shall not assign, whether in whole or part, the benefit of that agreement or any rights or obligations thereunder, without the prior written consent of BOAB IT which may be withheld in BOAB IT’s absolute discretion. If consent is granted to the assignment then it shall be on the same terms and conditions as applied prior to the assignment (including these Terms and Conditions) unless otherwise agreed by the parties in writing.
16.1 Should any part of this agreement be or become invalid, that part shall be severed from this agreement. Such invalidity shall not affect the validity of the remaining provisions of the agreement.
17.1 A party’s failure or delay in exercising any power or right it has under this Agreement will not operate as a waiver of that power or right, and the exercise of any such power or right will not preclude any other or future exercise of that power or right.
17.2 Waiver of any provision of or right under this Agreement:
(a) must be in writing signed by the party entitled to the benefit of that provision or right; and
(b) is effective only to the extent set out in any written waiver.
18 Governing Law and Jurisdiction
18.1 The parties agree that this agreement shall be subject to and interpreted in accordance with the laws of the State of New South Wales, Australia and the parties agree to submit to the exclusive jurisdiction of the Courts of New South Wales, Australia.
Last Update – 31/10/2016