Terms and Condition –
Online Data Storage
The following terms and conditions for online data storage apply to Computit (“Company”) of the services and/or products (referred collectively herein as “Services and Products”) described on the relevant Order Form, the Service Level Agreement and defined in any of the Company’s product support listings, to the customer (“Customer”) identified on the Service Descriptions. The Service Descriptions, these Terms and the attachments and any addenda hereto, executed with respect to the Services and Products, are referred to herein, collectively, as this “Agreement.” Computit reserves the right to modify these General Terms and Conditions at any time subject to one month’s notice.
1.1. The Deliverables to be delivered by Computit may consist of Infrastructure as a Service (IaaS), Platform as a Service (PaaS) and Software as a Service (SaaS) and any combinations thereof as well as any related services provided.
1.2. The Deliverables, e.g. data and server capacity, will be further specified when an order is placed and will appear from the order confirmation, a specific agreement or similar acceptance of agreement.
2. Contractual Basis
2.1. Regardless of the order method, the Customer accepts these General Terms and Conditions when placing an order.
2.2. An order will become binding on the Customer when placed or when the Deliverables are put into use. A placed order cannot be cancelled unless otherwise agreed in writing.
2.3. A placed order will not become binding on Computit until the Customer has received a written order confirmation or at the time of delivery. An order will be executed at the price applicable when Computit’s order confirmation is issued. If the order confirmation deviates from the Customer’s order, the Customer must inform Computit of such deviation within 3 business days. If not, the order confirmation will apply.
2.4. Quotations made by Computit will only be binding on Computit if conforming acceptance is received before the expiry date shown on the quotation.
3.1. All prices are in AUD and are exclusive of GST.
3.2. Deliverables are invoiced monthly in arrears on the basis of actual consumption unless otherwise agreed in writing.
3.3. Computit reserves the right to adjust prices and fees with 1 month’s notice.
4.1. The due date shall commence upon delivery unless otherwise agreed. If the Customer’s means of payment is not accepted, the order will not be executed, and the order will be considered as not accepted by Computit.
4.2. In case of the Customer’s late payment, Computit will also be entitled to suspend the Customer’s use of the Deliverables temporarily. The Customer will then be excluded from using the Deliverables until the full payment has been received.
4.3. The Customer’s obligation to pay on the due date stands regardless of whether the Customer has given notice of defects. The Customer is not entitled to any set-off. If the parties have entered into an agreement on instalment payments, and the Customer has failed to pay an instalment in full or in part, the full amount owing will fall due for immediate payment.
4.4. If Computit decides to terminate the agreement with immediate effect due to the Customer’s breach of contract, Computit will be entitled to demand payment of fees equivalent to 30% of total fees, unless the amount suffered due to such breach exceeds 30%.
5. Termination with Notice
5.1. The parties are entitled to terminate the agreement in full or in part by giving at least 1 month’s notice to expire on the last day of a month. The agreement must be terminated online or by email, stating the products and/or Deliverables affected.
5.2. As of the last day of the notice period, Computit will be entitled to delete all data relating to the Deliverables.
5.3. As regards prepaid Deliverables, the parties are not entitled to terminate the agreement on the delivery of Deliverables for the period and the Deliverables covered by the prepayment. If the agreement is terminated under clause
5.4, such prepaid amounts will therefore not be repaid, and the agreement will only be considered terminated on the last day.
6. Defects, Notice of Defects and Support
6.1. If the Customer discovers or should have discovered defects in the Deliverables, the Customer must give notice of such defects immediately. Notice of defects must be given by contacting Computit’s Help Desk. Notice of defects given to others, other than the Help Desk, will not be processed.
6.2. By putting the Deliverables into use, the Customer accepts that Computit’s Help Desk is entitled to provide service and support, including by using the Customer’s data for preventive troubleshooting and discovery and remedying of any defects discovered. In that connection, the use of the Customer’s data may include, on a non-exhaustive basis, the transfer, storage and other processing thereof.
7. Customer’s Use and Suspension of Use
7.1. Computit reserves the right to suspend the Customer’s use temporarily if:
(i) the Customer’s use of the Deliverables has an extreme or unusual negative impact on the systems of Computit or Computit ‘s sub-contractors which directly or indirectly affect Computit or Computit’s other customers;
(ii) in any other way, the Customer transfers any form of material which is capable of harming the IT environment of Computit or Computit’s sub-contractors or the Deliverables;
(iii) on a reasonable basis, it is considered necessary in order to prevent unauthorised access to data;
(iv) the Customer fails to meet the payment requirements as per the tax invoice or
(v) the Customer fails to meet the requirements for the Customer’s use of the Deliverables under these General Terms and Conditions.
7.2. In order to determine the extent to which the negative impact set out in clause 7.1
(i) is attributable to viruses, hackers or defects, the Customer must, at Computit’s request, provide information on the Customer’s consumption pattern. On the basis of the information provided, Computit will be entitled to demand that consumption is reduced. If the Customer fails to comply with such request, Computit will be entitled to suspend the Customer’s access to the Deliverables.
7.3. Computit reserves the right to request payment of an additional traffic consumption fee in case of extreme or unusual abuse of the Deliverables.
8. Customer’s Use and Breach of Contract
8.1. The Customer must observe all guidelines provided, including written as well as oral instructions.
8.2. The Customer is not entitled to use the Deliverables, including, but not limited to, servers and storage media:
(i) for the collection, registration, storage, processing or manipulation of data in violation of Australian legislation;
(ii) for the collection of unlawful data, including the redirection to unlawful links;
(iii) to obtain unauthorised access to systems, and
(iv) in violation of Australian legislation in force from time to time and any rules and regulations issued in pursuance thereof.
8.3. Any non-compliance on the part of the Customer of its obligations under these General Terms and Conditions will be considered a material breach of contract.
8.4. Computit will decide whether the Customer is in breach of its obligations.
9. Intellectual Property Rights
9.1. The Customer undertakes not to use the Deliverables in a manner infringing third party rights.
9.2. Any material, data and know-how disclosed by the Customer to Computit as part of the performance of the agreement may only be used by Computit to deliver the Deliverables.
9.3. Any equipment or software made available by Computit as part of the delivery of the Deliverables will remain Computit’s property. Computit will retain all rights in software, licences, equipment, inventions, improvements or further developments, know-how, etc. developed or used by Computit to deliver the Deliverables.
9.4. Any data stored using the server capacity made available by Computit as part of the Deliverables will remain the Customer’s property. The Customer may request at any time that such data be handed over or deleted against payment of hours spent.
10.1. Any licence acquired as part of the delivery of the Deliverables will remain Computit’s or the subcontractor’s property. If the licensed software is installed on the Customer’s own equipment, the Customer will be responsible
for uninstalling the licensed software after termination of the agreement and the expiry of Computit’s licences.
10.2. If the Customer uses third party software together with the Deliverables, Computit will not be liable for the functionality of such software or its use in relation to the Deliverables regardless of whether the third party software was sold to the Customer by Computit.
11. Geographical Location of Data
11.1. At the time when the Customer places its order, Computit may confirm that the Customer’s data will be stored only on servers in Australia at the Customer’s request. Computit thus guarantees that the servers on which the Customer’s data are stored will be physically located in Australia.
12.1. When placing an order, the Customer must state its address, company registration number (ABN, ACN number), telephone number and email address.
12.2. The Customer must ensure that the information and data required for placing orders and amending the agreement are correct and adequate at all times.
12.3. Computit will assist the Customer in good faith in migrating the Customer’s data. Computit’s fees for such migration will be calculated on the basis of Computit’s hourly rates applicable from time to time and the expenses incurred by Computit’s sub-contractors.
12.4. Computit is not liable for any defects or irregularities which are attributable to the Customer’s provision of inadequate or incorrect information.
13.1. Computit must keep confidential all confidential information received about the Customer’s business (“Customer Data”) unless disclosure is required by law. If Computit is contacted by a third party requesting disclosure of Customer Data, Computit will be entitled to request such a third party to contact the Customer directly, providing the Customer’s contact information at the same time. In case of any disclosure of Customer Data to a third party, Computit will inform the Customer immediately, sending a copy of the third party’s request for disclosure, unless Computit is prevented by law from doing so.
14. Data Protection
14.1. If Computit is the data processor, and the Customer is the data controller under the Australian Privacy Principle (Privacy Act 1988), the Customer’s data will belong to the Customer, and Computit will only act in accordance with the Customer’s instructions. Computit must implement the appropriate technical and organizational security measures required to protect data against accidental or unlawful destruction, loss or deterioration and against unauthorised disclosure, abuse or other processing in violation of the Privacy Act 1988.
14.2. At the Customer’s request, Computit must provide the Customer with adequate information to allow it to verify that such technical and organisational security measures have been implemented.
15. Use of Sub-Contractors
15.1. Computit is entitled to use sub-contractors for the delivery of the Deliverables and, for example, disclose Customer Data to such sub-contractors to the effect that the subcontractor in question becomes the sub-contracting data processor. Computit warrants that the sub-contractor is subject to the same contractual obligations as Computit.
15.2. At the Customer’s request, Computit must disclose the identity of the sub-contractors used in connection with the delivery of the Deliverables. Computit must ensure that the persons being authorised to access the Customer’s confidential information are subject to the same duty of confidentiality as Computit under these General Terms and Conditions.
16. Force Majeure
16.1. Neither party will be liable for events that are beyond the party’s control and which the party should not have taken into account when signing the agreement and should not have avoided or overcome (a “Force Majeure Event”).
16.2. Force Majeure Events include, but are not limited to:
– Unusual weather conditions and natural disasters;
– War and military mobilisation, civil unrest and similar situations as well as terrorist attacks;
– General strikes and lockouts;
– Fire, non-availability of means of transport and currency restrictions;
– Computer viruses, hacker attacks and attacks on IT systems from the outside;
– Import and export restrictions.
16.3. In case of a Force Majeure Event, Computit may decide to defer delivery until the Force Majeure Event preventing delivery has ceased to exist or to cancel the agreement in full or in part without compensation.
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