Service Provider Agreement

Service Provider Agreement

This Agreement is made on the commencement  service date.

BETWEEN:

Australian Software Distribution Pty. Ltd. A.C.N 085 046 331  as trustee for  ASD Trust ABN 83 387 896 891of c/- Steeles Chartered Accountants, Level 2, 380 Queen Street, Brisbane QLD 4000, AUSTRALIA (“Service Provider”, “ASD” and “ the Distributor”); and The Customer and The Customers

BACKGROUND

A. The Customer wishes to use a Virtual Private Network (VPN) to remotely access and monitor a computer network.
B. The Service Provider is a VPN and Network Monitoring Service Provider.
C. The Service Provider will provide VPN services and network monitoring services to the Customer on the terms of this agreement.
D. The Service Provider, as Distributor, provides software and licensing from The Licensor.

TABLE OF CONTENTS

1.      Definitions
2.      Access Period
3.      Provision of Service
4.      Customer obligations
5.      Use of the Service
6.      Charges
7.      Indemnity
8.      Implied terms
9.      Liability of the Service Provider
10.     Termination
11.     Entire agreement
12.     Notices
13.     Assignment
14.     Law
15.     Waiver
16.     Severability
17.     Dispute resolution
18.     Interpretation

SCHEDULE 1

OPERATIVE PROVISIONS

1.         Definitions

Acceptable Use Policy means the conditions of use applicable to the Service as published by the Service Provider from time to time;

Access Period means a renewable period of three (3) calendar months;

Charges means the charges payable by the Customer to the Service Provider pursuant to this agreement;

Commencement of Service Date means the date of creation of an on-line account at www. met-connect.com by The Customer or The Customers with the Service Provider

Compatible Hardware means electronic equipment meeting the minimum specifications and software versions specified from time to time on the MET Connect website www.met-connect.com

Internet means the worldwide connection of computer networks providing for the transmittal of electronic mail, online information, information retrieval and file transfer protocol;

GST means:

(a)        the same as in the GST Law;

(b)        any other goods and services tax, or any tax applying to this agreement in a similar way; and

(c)        any additional tax, penalty tax, fine, interest or other charge under a law of such a tax.

GST Law means the same as “GST law” in A New Tax System (Goods and Services Tax) Act 1999 (Cth); Portal means the private internet log-in service at http://portal.met-connect.com/ Service means Virtual Private Network account access to the Portal and VPN servers of the Service Provider.

The Customer means the party or parties who have an on-line account created on the Portal, and any party or parties that use the Service including end users.

The Licensor and Copyright Holder means IS Systems Technology Pty Ltd A.C.N. 608 132 529 as trustee for IS Systems Trust ABN 169 489 710 36.

2.         Access Period

(a)        The Service Provider will provide the Service to the Customer from the commencement date for the Access Period.

(b)        This agreement may be renewed for subsequent periods of three (3) months, subject to approval by the Service Provider.

(c)        Renewal of this agreement for a subsequent period may involve an adjustment to the Charges as a condition of the Service Provider providing its consent to renewal.

3.         Provision of Service

(a)        The Service Provider, in accordance with the terms and conditions of this agreement, shall provide the Customer with the Service by such means as the Service Provider determines.

(b)        The Service Provider shall provide the service on a continuous basis during the term of this agreement. The Service Provider will inform the Customer if the Service is unavailable for access by the Customer due to maintenance or any other foreseeable factor.

(c)        The Service Provider shall provide the Customer with all identification and log-in information required for connection to the Service.

4.         Customer obligations

(a)        The Customer must provide its own compatible hardware or purchase a MODEM from the Service Provider.

(b)        The Customer is responsible for maintaining the secrecy and confidentiality of all identification and log-in information required by the Customer to access the Service.

(c)        The Customer agrees not to disclose to any other person, corporation, entity or organisation any identification or log-in information, whether in use or not, nor any other confidential information relating to the service or the Service Provider.

(d)        The Customer is liable for all fees resulting from use of the Service accessed through the Customer’s identification or log-in information, whether authorised by the Customer or not.

(e)        An invoice raised by the Service Provider shall be deemed to be correct and prima facie evidence of all connection, access, usage and other fees contained therein.

5.         Use of the Service

(a)        The Customer shall comply with all reasonable directions by the Service Provider in the access and use of the service.

(b)        Throughout the Access Period, the Customer shall comply with the Acceptable Use Policy.

(c)        The Customer warrants that in accessing and using the Service it will only use software that it is legally entitled to use.

(d)        The Customer acknowledges that the Service Provider does not and cannot in any way supervise, edit or control the content and form of any information or data accessed through the Service and the Service Provider shall not be held responsible in any way for any content or information accessed via the Service.

(e)        The Service Provider disclaims all or any liability for any material on the network that the Customer finds offensive, upsetting, defamatory or personally offensive.

(f)         The Customer shall refrain from disruptive activities which may include, but are not limited to, the circulation of any unsolicited publicity or advertising material, propagation of computer worms and viruses, use of the Service to gain unauthorised access to any other computer system, the sending of harassing, obscene, offensive or threatening electronic mail, forgery of electronic mail and the placement or transmission or storage of any defamatory material on the Internet.

(g)        The Customer will not access, nor permit any other party to access, the Service for any purpose or activity of an illegal or fraudulent nature.

(h)        The Customer will not reproduce, distribute, transmit, publish, copy, transfer or commercially exploit any information accessed through or received from the Service that would infringe the intellectual property right of any person.

(i)         The Customer is responsible for preparing and maintaining sufficient backup files and data storage capacity for all Customer data including electronic messages.

(j)         The Service Provider has no responsibility to provide training in the use of the Service pursuant to this Agreement. Training may be provided or procured for an additional fee at the Service Provider’s discretion.

6.         Charges

(a)        The Customer shall pay the Charges at the rate and in the manner specified in Schedule 1. Payment must be made in advance of connection or where relevant, renewal of the Access Period.

(b)        If the Customer disputes the whole or any part of the amount claimed in an invoice submitted by the Supplier pursuant to this Agreement, the Customer will pay the undisputed portion no later than the due date.  The dispute regarding the remainder may be referred to the dispute resolution procedure prescribed by this agreement.  If it is subsequently resolved that a further amount is payable, the Customer will pay that amount together with interest at the rate of 12 per cent per annum.

(c)        Words defined in the GST Law have the same meaning in this clause, unless the context makes it clear that a different meaning is intended.

(d)        In addition to paying the Charges and any other amount payable or in connection with this agreement (which is exclusive of GST), the Customer will:

(i)         pay to the Supplier an amount equal to any GST payable from any supply the Service Provider in respect of which the Charges or any other amount is payable under this Agreement; and

(ii)        make such payment either on the date when the Charges are due or within seven days after the Customer is issued with a tax invoice, whichever is the later.

(e)        The Service Provider must, within 28 days of request from the Customer, issue a tax invoice (or an adjustment note) to the Customer for any supply under or in connection with this agreement.

(f)         The Service Provider will promptly create an adjustment note for (and apply to the Commissioner of Taxation for) a refund, and refund to the Customer, any over payment by the Customer for GST but the Service Provider need not refund to the Customer any amount for GST paid to the Commissioner of Taxation unless the Service Provider has received a refund or credit for that amount.

7.         Indemnity

The Customer releases and indemnifies the Service Provider and or The Licensor, their  servants and agents against all actions, claims and demands which may be instituted against the Service Provider and or The Licensor arising out of a breach of this agreement by the Customer or of any other person for whose acts or omissions the Customer is vicariously liable.

8.         Implied terms

(a)        Subject to subclause (b), any condition or warranty which would otherwise be implied in this Agreement is hereby excluded.

(b)        Pursuant to section 64A of the Australian Consumer Law, this subclause applies in respect of any goods or services supplied under this agreement which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, provided that this subclause will not apply if the Customer establishes that reliance on it would not be fair and reasonable. Liability for breach of a guarantee conferred by the Australian Consumer Law other than those conferred by sections 51 to 53 of that Law is limited:

(i)         in the case of goods, to any one of the following as determined by the Supplier:

(A)       the replacement of the goods or the supply of equivalent goods;

(B)       the repair of the goods;

(ii)        the payment of the cost of replacing the goods or of acquiring equivalent goods; or

(iii)       the payment of the cost of having the goods repaired; or

(A)       in the case of services, to any one of the following as determined by the Supplier:

(B)       the supplying of the services again; or

(C)       the payment of the cost of having the services supplied again.

9.         Liability of the Service Provider

The Service Provider and or The Licensor shall be under no liability to the Customer in respect of any loss or damage (including consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of goods or services supplied pursuant to this agreement or in respect of a failure or omission on the part of the Service Provider to comply with its obligations under this agreement.

10.      Termination

(a)        For the purpose of this agreement, each of the following is a Terminating Event:

(i)         the breach or threatened breach by either party of any of its material obligations under this agreement;

(ii)        the appointment of any type of insolvency administrator in respect of the property or affairs of either party;

(iii)       the entry or proposed entry by either party into any scheme, composition or arrangement with any of its creditors; and

(iv)       the merger with or the takeover of either party by another person.

(b)        This agreement may be terminated immediately on the happening of a Terminating Event at the option of the affected party.

(c)        If a Terminating Event occurs, the affected party must give to the other party notice of the happening of that event and require the breach to be remedied or a written undertaking to be given that the breach will not occur, as the case may be. If the breach is not remedied or the undertaking not given (as the case may be) within 14 days the affected party may agree to waive its rights under this clause if satisfied that the happening of the Terminating Event has not in any way prejudiced its position under this agreement.

(d)        Neither party shall be liable for the consequences of an occurrence of any event beyond its reasonable control.

(e)        Any termination of this agreement shall not affect any accrued rights or liabilities of either party, nor shall it affect any provision of this agreement which is expressly or by implication intended to continue in force after such termination.

11.      Entire agreement

This agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the Services. No addition to or modification of any provision of this agreement shall be binding upon the parties unless made by written instrument signed by a duly authorised representative of the party.

12.      Notices

All notices which are required to be given under this agreement must be in writing and must be sent to the address of the recipient set out in Schedule 1 or such other address as the recipient may designate by notice given in accordance with this clause. Any notice may be delivered by hand or by prepaid letter or email. Any such notice will be deemed to have been served when delivered (if delivered by hand) or 48 hours after posting (except by prepaid letter) or when on transmission by the sender (if sent by facsimile) or (if sent by email and unless agreed otherwise), when the email enters the recipient’s mail server.

13.      Assignment

Neither party shall assign, whether in whole or part, the benefit of this agreement or any rights or obligations hereunder, without the prior written consent of the other party.

14.      Law

This agreement shall be governed by and construed in accordance with the laws for the time being in force in the State of Queensland and the parties agree to submit to the jurisdiction of the courts and tribunals of that State.

15.      Waiver

No forbearance, delay or indulgence by a party in enforcing the provisions of this agreement shall prejudice or restrict the rights of that party, nor shall any waiver of those rights operate as a waiver of any subsequent breach.

16.      Severability

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.      Dispute resolution

Any Dispute or difference arising in connection with this agreement shall be submitted to arbitration in accordance with, and subject to, the Rules for the Conduct of Commercial Arbitrations of the Institute of Arbitrators and Mediators, Australia. During such arbitration, both parties may be represented by a duly qualified legal practitioner.

18. Interpretation

In this Deed unless the context indicates a contrary intention:

(a) words in the singular include the plural and vice versa;

(b) words importing one gender include each of the other genders;

(c) “person” includes a corporation and a body politic;

(d) headings in this Deed are for convenience only and are not part of, or to be used in the interpretation or construction of, this Deed;

(e)references to parties, recitals, clauses, paragraphs, Schedules and Annexures are references to parties, recitals, clauses, paragraphs, Schedules and Annexures to or of this Deed and a reference to this Deed includes any Schedule or Annexure;

(f)references to this Deed, or any other deed, agreement, instrument or document will be deemed to include references to this Deed, or such other deed, agreement, instrument or document as amended, novated, supplemented, varied or replaced from time to time;

(g)if any provision of this Deed or its application to any person or circumstances is or becomes invalid or unenforceable, then the remaining provisions are not affected and each provision of this Deed is valid and enforceable to the fullest extent permitted by law;

(h)a reference to a document includes any written agreement and any certificate or note or other document of any kind;

(i)references to any person or to any part to this Deed will include that person’s or party’s successors in title and permitted assigns;

(j)where any word or phrase is given a defined meaning any other part of speech or grammatical form in respect of such word or phrase has a corresponding meaning;

(k)where the day on or by which any sum is payable hereunder or any act, matter or thing is to be done is a day other than a Business Day such sum will be paid and such act, matter or thing will be done on the immediately preceding Business Day;

(l) references to payments to any party to this Deed will be construed to include payments to another person upon the direction of such party;

(m) unless otherwise expressly stated in this Deed, all payments to be made pursuant to this Deed will be made by electronic funds transfer to the National Australia Bank BSB 084004 Account 366168289, or secure Credit Card processing via the MET Connect portal.

(n) reference to any legislation or to any section or provision of any legislation includes any statutory modification or re-enactment or any statutory provision substituted therefor and all ordinances, by-laws, regulations and other statutory documents issued thereunder.

SCHEDULE 1

Charges

Charges for the products and services are outlined on the website:  www.met-connect.com
Address for service of notices:

Physical Address:

Australian Software Distribution Pty. Ltd.
C/- Steeles Chartered Accountants Level 2
380 Queen Street
Brisbane
QLD 4000
AUSTRALIA

Postal Address:

Australian Software Distribution Pty. Ltd.
GPO Box 2511
BRISBANE CITY Q 4001