i360 Cloud Services - Service Supply Agreement

Service Supply Agreement

1. Recitals

A. Innovation360 Pty Ltd (trading as i360 Cloud) is an Australian company providing cloud, technology, communications, security, backup, licensing, automation and managed support services to businesses.

B. The Client wishes to use one or more of those services.

C. This Service Supply Agreement sets out the terms and conditions on which Innovation360 provides those services to the Client.

2. Interpretation and governing law

2.1 This Agreement is governed by the laws of New South Wales. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales and courts entitled to hear appeals from them.

2.2 In this Agreement:

(a) references to legislation include amendments, re-enactments and subordinate legislation made under it;

(b) the singular includes the plural and vice versa;

(c) a reference to a person includes an individual, body corporate, partnership, trust, association, government authority and other legal entity;

(d) a reference to a document or agreement includes that document or agreement as amended, novated or replaced;

(e) defined words and phrases have the meanings given in clause 20;

(f) grammatical forms of defined words and phrases have corresponding meanings;

(g) dates and times are determined by reference to Sydney, New South Wales;

(h) money means Australian dollars unless otherwise stated;

(i) if something must be done on a Saturday, Sunday or public holiday in the place where it is to be done, it may be done on the next Business Day;

(j) a reference to a party includes its successors and permitted assigns and transferees; and

(k) headings are for convenience only and do not affect interpretation.

3. Services

3.1 We will provide the Services selected or ordered by You in accordance with this Agreement, any applicable order, proposal or service schedule, and Our Service Level Statement published at https://www.i360cloud.net.au/service-level-statement.

3.2 The Service Level Statement forms part of this Agreement. If there is an inconsistency, a specific written order or service schedule takes precedence over the Service Level Statement, and this Agreement takes precedence over the Service Level Statement unless expressly stated otherwise.

3.3 Some Services depend on third-party products, networks, platforms, licences or infrastructure. Their availability and functionality may be subject to the relevant third party's terms and technical limitations.

4. Microsoft and other third-party agreements

4.1 Software, licences and third-party services that We provision or resell to You are subject to the applicable vendor terms. You agree to comply with those terms where applicable.

4.2 Information about Microsoft product and licensing terms is available at https://www.microsoft.com/licensing/terms/.

4.3 By ordering or using Microsoft products or services through Us, You acknowledge that You may be required to enter into and comply with the Microsoft Customer Agreement or another applicable Microsoft agreement notified from time to time.

4.4 We provide Microsoft products and services as an indirect reseller and purchase those products and services through an authorised distributor.

5. Billing and payments

5.1 First invoice
Your first invoice will be issued on or around the date We provision or activate the relevant Service, unless otherwise agreed in writing.

5.2 Monthly billing cycle

(a) Your monthly subscription invoice will generally be issued on the same date each month and is payable within seven days of its invoice date.

(b) Recurring Services are invoiced in advance based on Services active at midnight Sydney time on the billing date, unless otherwise stated.

(c) Additions, removals or other changes to Services will ordinarily be reflected on the next invoice after the requested change is processed.

5.3 Payment process and fees

(a) You agree to pay invoices using Our nominated direct-debit or payment provider unless We approve another payment method.

(b) Your use of a third-party payment provider is subject to that provider's terms and privacy policy. We do not store or control payment-card or bank-account details held directly by that provider.

(c) Any applicable card surcharge, dishonour fee or other payment-processing fee may be charged to You at the amount disclosed by Us or the payment provider from time to time.

(d) If payment is not received within seven days after the invoice date, We may send a reminder to Your nominated email address.

(e) If payment remains outstanding nine days after the invoice date, We may send a further reminder, suspend the affected Service and charge a reconnection fee of up to $55 including GST.

(f) A suspended Service will not be reconnected until all overdue amounts and any applicable reconnection fee have been paid.

(g) If an invoice remains unpaid 30 days after its issue date, We may terminate the affected Service and this Agreement. Subject to applicable law and any agreed data-retention period, associated Service Data may then be permanently deleted. We will give at least 24 hours' notice by email before deletion where reasonably practicable.

5.4 Pricing amendments

(a) We may amend recurring fees from time to time by giving notice before the affected invoice is issued.

(b) Unless otherwise advised, recurring prices may increase by between 2% and 5% in July each year, having regard to Australian CPI and Our increased costs.

(c) Time-billed work is payable on the same payment terms as subscription fees. After-hours work may incur additional fees.

(d) We are an online merchant located in Australia.

6. Managing Your account

6.1 Account Holder

(a) You must nominate an Account Holder and provide their current mobile telephone number and email address.

(b) If Your Account Holder changes because of a sale, restructure or for another reason, the existing Account Holder must complete Our Change of Account Holder process. We may require the incoming Account Holder to sign the relevant form and provide reasonable identity evidence.

6.2 Authorised Representatives

(a) The Account Holder may nominate one or more Authorised Representatives to manage operational aspects of the Services.

(b) Unless We otherwise agree in writing, an Authorised Representative cannot terminate this Agreement, appoint another Authorised Representative, request a complete export of Service Data, or change the identity of the Client or Account Holder.

(c) You are responsible for the acts and omissions of Your Authorised Representatives and for keeping their authority current.

6.3 Passwords and access credentials
You are responsible for selecting strong passwords, changing them when appropriate, safeguarding passwords and access credentials, and promptly notifying Us if You suspect unauthorised access.

7. Insurance

You are responsible for maintaining cyber insurance and any other insurance reasonably appropriate to Your business, risks and use of the Services.

8. Privacy

8.1 Each party must comply with the privacy laws that apply to it.

8.2 You remain responsible for determining whether the Services are appropriate for the Personal Information and other data You process. Outsourcing hosting, backup, management or support to Us does not remove Your obligations under privacy or other applicable laws.

8.3 We recommend that You undertake an appropriate privacy impact and security assessment before placing sensitive information in the Services.

8.4 Our handling of Personal Information is also governed by Our published privacy policy.

9. Acceptable use

9.1 You and Your users must comply with the Acceptable Use Policy in clause 19.

9.2 If You breach that policy, We may, having regard to the nature and seriousness of the breach:

(a) warn You and require remedial action;

(b) suspend an affected Service until the breach is remedied; or

(c) terminate an affected Service or this Agreement immediately where the breach is material, unlawful, creates a security risk or may expose Us or another person to harm or liability.

10. Termination

10.1 Termination by You

(a) You may terminate this Agreement or an affected Service by submitting a termination request through Our secure helpdesk portal using the Account Holder's authorised account, unless We approve another written method.

(b) Unless otherwise agreed, termination takes effect on the last day of the next billing cycle after We receive a valid request, and fees for that billing cycle remain payable.

10.2 Termination by Us

(a) We may terminate this Agreement or an affected Service for convenience by giving at least 30 days' written notice to the Account Holder.

(b) We can terminate this Agreement without prior notice to You should you breach a material term of this Agreement.

(d) If a Service has not been accessed for more than six months, We may ask You to confirm that You wish to continue it. If We receive no confirmation within 30 days, We may terminate that Service.

10.3 Data after termination

(a) You are responsible for exporting or downloading Service Data before termination or during any post-termination access period We provide.

(b) Unless a different period is required by law or agreed in writing, We may delete Service Data within 30 days after termination.

(c) To the extent permitted by law, We are not liable for loss arising from deletion carried out in accordance with this clause.

11. Changes to this Agreement

11.1 We may update this Agreement or the Service Level Statement from time to time to reflect changes to the Services, suppliers, technology, security requirements, law, operating practices or commercial arrangements.

11.2 We will give You written notice of a material change before it takes effect. The notice will identify the effective date and provide access to the updated terms.

11.3 If a change is materially adverse to You, You may terminate the affected Service by giving written notice before the change takes effect. Unless Our notice states otherwise, termination will take effect immediately before the change and no additional termination charge will apply.

11.4 If You continue using the affected Service after the notified effective date without terminating it, You will be taken to have accepted the updated terms.

12. Disputes

12.1 Before commencing court or arbitration proceedings, except to seek urgent interlocutory relief or recover an undisputed debt, a complainant must notify the other party in writing of the nature of the dispute, the outcome sought and the action it believes may resolve the dispute.

12.2 The parties must use reasonable efforts to resolve the dispute through good-faith negotiations between authorised representatives within 14 Business Days after the notice.

12.3 If the dispute remains unresolved, either party may refer it to mediation in Sydney under the Mediation Rules of the Resolution Institute. The parties will share the mediator's fee equally and otherwise bear their own costs.

12.4 This clause survives termination.

13. Waiver

13.1 A delay or failure to exercise a right does not waive that right.

13.2 A waiver must be in writing and applies only to the specific instance for which it is given. A waiver of one breach is not a waiver of a later breach.

14. Liability, consumer rights, release and indemnity

14.1 Limitation of liability

(a) To the extent permitted by law, We are not liable for any indirect, special or consequential loss or damage incurred by You, including but not limited to liability for loss of profits, loss of business opportunity, loss of savings, or loss of data or access to data.

(b) To the extent permitted by law, Our total aggregate liability arising from or connected with this Agreement is limited to the fees paid or payable by You to Us during the 12 months preceding the event giving rise to the claim.

(c) We are not liable to the extent loss was caused or contributed to by You, Your users, a third party or an event outside Our reasonable control.

(d) Third-party software and services remain the responsibility of their vendors. Except to the extent required by law, We do not warrant their functionality, availability or fitness for a particular purpose.

(e) Neither party is liable for delay or failure caused by an event outside its reasonable control, other than an obligation to pay an amount already due. The affected party must notify the other where practicable and take reasonable steps to minimise the impact.

14.2 Australian Consumer Law

(a) Nothing in this Agreement excludes, restricts or modifies any condition, warranty, guarantee, right or remedy that cannot lawfully be excluded, restricted or modified, including under the Australian Consumer Law.

(b) Where permitted by section 64A of the Australian Consumer Law, Our liability for a failure to comply with a consumer guarantee relating to services not ordinarily acquired for personal, domestic or household use is limited, at Our option, to supplying the services again or paying the cost of having the services supplied again.

14.3 Release and indemnity

(a) Subject to applicable law, You release Us and Our officers, employees and agents from claims arising from deletion of Service Data in accordance with clause 10.3.

(b) You indemnify Us and Our officers, employees and agents against liabilities, losses, damages, expenses and reasonable legal costs arising from a third-party claim connected with:

(i) material, data or content supplied, uploaded, generated or hosted by You or Your users;

(ii) Your breach of privacy, data-protection, intellectual-property or other applicable law; or

(iii) Your material breach of this Agreement,

except to the extent the claim was caused or contributed to by Our breach, negligence or wilful misconduct.

15. Severance

If a provision of this Agreement is invalid or unenforceable, it will be read down to the minimum extent necessary or, if that is not possible, severed without affecting the remaining provisions.

16. Notices

16.1 A formal notice under this Agreement must be in writing and may be:

(a) delivered personally;

(b) sent by prepaid post to the recipient's most recently notified address; or

16.2 A notice is treated as received:

(a) if delivered personally, when delivered;

(b) if posted within Australia, on the second Business Day after posting; or

(c) if emailed, on the next Business Day after it enters the recipient's information system, unless the sender receives a delivery-failure notification.

17. Assignment, novation and transfer of Services

17.1 We are an independent contractor, and neither party may bind the other.

17.2 You must not assign, novate or otherwise transfer this Agreement or any right or obligation under it without Our prior written consent.

17.3 You consent in advance to Us assigning or novating this Agreement, or transferring provision of all or part of the Services, to a suitably qualified related entity or third party as part of a genuine corporate restructure, merger, business sale or transfer of all or part of Our service operations, subject to clauses 17.4 and 17.5.

17.4 We will give You at least 30 days' written notice of the proposed transfer. The notice will identify the incoming provider and proposed transfer date. The incoming provider must assume Our ongoing obligations relating to the transferred Services and maintain appropriate confidentiality, privacy and information-security protections. You authorise Us to provide the incoming provider with Client information, Service Data, service records and access details reasonably required to evaluate, prepare for and complete the transfer, subject to those protections. You agree to provide reasonable cooperation and sign any reasonable document required to give effect to the transfer.

17.5 If You do not wish to receive the transferred Services from the incoming provider, You may give Us written notice at any time before the transfer date. The affected Services will terminate immediately before the transfer takes effect, without any additional notice period or termination charge. We remain responsible for Our obligations arising before the transfer date, and the incoming provider is responsible for obligations arising from the transfer date.

18. Costs

Each party will bear its own costs of negotiating, entering into and administering this Agreement.

19. Acceptable Use Policy

19.1 You and Your users must use the Services lawfully, responsibly and in a way that does not infringe another person's rights or cause damage, disruption, loss or unreasonable risk to Us, Our suppliers, the Services or another person.

19.2 Without limiting clause 19.1, You and Your users must not use the Services to:

(a) breach any law, including privacy, data-protection, copyright, intellectual-property, communications, export-control or spam laws;

(b) commit, facilitate or promote fraud, theft, harassment, unlawful discrimination, identity theft, phishing or another offence;

(c) upload, install, distribute or execute malicious code, viruses, worms, Trojan horses, ransomware, email bombs or similar material;

(d) access, intercept, monitor, probe, scan, corrupt or interfere with data, systems, networks, accounts or communications without authority;

(e) circumvent authentication, access controls or security measures;

(f) conduct denial-of-service activity, packet spoofing, network flooding or other disruptive activity;

(g) send unsolicited commercial electronic messages or use the Services to spam or harass any person;

(h) copy, distribute or use software, music, video, images or other content without the required rights or licences;

(i) reveal credentials to an unauthorised person or allow an unauthorised person to use the Services; or

(j) make fraudulent offers or publish or transmit unlawful content.

19.3 We may take reasonable steps to investigate suspected misuse and protect the Services, affected users and third parties, including suspending access where clause 9.2 applies.

20. Definitions

In this Agreement:

**Account Holder** means:
(a) for a sole trader, that individual;
(b) for a company with one director, that director;
(c) for a company with multiple directors, the director nominated to Us as Account Holder; and
(d) for a trust, charity, incorporated body or unincorporated association, the properly authorised officer nominated to Us as Account Holder.

**Agreement** means this Service Supply Agreement together with the Service Level Statement and any applicable order, proposal, service schedule or other document expressly incorporated into it.

**Authorised Representative** means a person authorised by the Account Holder to manage the Client's account, subject to clause 6.2.

**Business Day** means a day other than a Saturday, Sunday or public holiday in New South Wales.

**Client**, **You** or **Your** means the person or entity that orders, receives or uses the Services under this Agreement.

**Personal Information** has the meaning given in the Privacy Act 1988 (Cth).

**Service Data** means data, content, records, configurations and access information processed, stored or maintained in connection with the Services for the Client.

**Service Level Statement** means the service-level and service-description document published at https://www.i360cloud.net.au/service-level-statement, as updated in accordance with clause 11.

**Services** means the products and services supplied, managed, licensed, resold or supported by Us for You.

**We**, **Our** or **Us** means Innovation360 Pty Ltd (trading as i360 Cloud), ACN 617 873 006, and where the context permits its successors and permitted assigns.