OneKloudX Terms of Business

This Agreement applies to the provision of Services and Deliverables by OneKloudX Pty Ltd (ABN 62 629 675 074) (OneKloudX) to the party identified in the Statement of Work as the client (Client).

Each party warrants to the other that it has full power and authority to enter into and perform its obligations under the Agreement which, when executed, will bind that party.

1. AGREEMENT

1.1 - Structure: The Agreement comprises the following:

a. these Terms of Business;

b. any Statement of Work to which these Terms of Business are attached; and

c. any Associated Document.

 

1.2 - Commencement Date of Agreement: The Agreement starts on the date the Statement of Work is signed by both parties.

 

1.3 - Conflict: Unless expressly stated otherwise in the Statement of Work, the terms of this Agreement prevail as follows to the extent of inconsistency between them:

a. the Statement of Work;

b. these Terms of Business; and

c. any Associated Document.

 

1.4 - Third party terms: Where any Deliverable is subject to any third-party terms (e.g., license or hardware terms), the provision and use of that Deliverable is subject to those terms.

2. ONEKLOUDX OBLIGATIONS

2.1 - OneKloudX: Subject to clause 2.2, OneKloudX must provide the Services and Deliverables:

a. in accordance with:

        i. the relevant Statement of Work; and

        ii. all applicable laws; and

b. as far as is reasonably practical, in accordance with any Associated Document.

 

2.2 - Timetable: OneKloudX will use reasonable endeavours to meet any timetable and/or milestone set out in the Statement of Work or an Associated Document. However, the Client acknowledges and agrees that any timetable and/or milestone is indicative only.

3. CLIENT OBLIGATIONS

The Client must:

 

a. act reasonably in the exercise of any discretion;

b. promptly make decisions and provide approvals and perform all Client responsibilities set out in the Statement of Work or an Associated Document;

c. use suitably experienced, qualified and skilled personnel to perform its obligations and ensure those personnel have authority to bind the Client;

d. promptly provide the following upon request for OneKloudX to supply the Services and Deliverables:

        i. any information within the Client’s control;

        ii. its personnel; and

        iii. access to its facilities, equipment and data;

e. subject to OneKloudX personnel complying with the Client’s reasonable health and safety policies notified to those personnel, ensure the health, safety and welfare of any OneKloudX personnel who are providing Services and Deliverables at the Client’s premises; and

f. use all Services and Deliverables for lawful purposes and in a manner that complies with all applicable laws, including the Spam Act 2003 (Cth) and Privacy Act 2003(Cth).

4. MUTUAL OBLIGATIONS

4.1 - Representative: Each party must maintain an authorised representative to act for it under the Agreement and must notify the other party of who this individual is, or any replacement.

 

4.2 - Reporting: Each party will provide the reports set out in the Statement of Work. If no reporting obligations are set out in the Statement of Work, OneKloudX will provide monthly reports in respect of Services and Deliverables, setting out a summary of work completed, work planned and estimated completion times and costs.

 

4.3 - Non-solicitation: During the term of the Agreement and for 6 months after its expiry or termination, neither party may, without the prior written consent of the other party, directly solicit or offer employment or any contract for services to any of the other party’s personnel.

5. WARRANTIES

5.1 - General:

a. OneKloudX warrants that:

        i. it will use and apply reasonable care, skill and diligence in the performance of the Services and Deliverables; and

       ii. the Services and the Deliverables will materially conform to the relevant Specification (if any).

 

5.2 - Breach of warranty: If a Service or Deliverable does not meet an applicable warranty within 30 days of delivery, OneKloudX must, at the request of the Client, re-perform the defective Service or remedy, repair, enhance or replace the defective Deliverable so that it meets and satisfies that warranty, and:

a. in the case of work the subject of a Statement of Work being performed on a time and materials basis, the work carried out under this clause 5.2 will be at the Client’s cost on the time and materials rates agreed; or

b. in the case of work the subject of a Statement of Work being performed for a fixed cost, the work carried out under this clause 5.2 will be at OneKloudX’s cost; and

c. in each case, OneKloudX’s performance of its obligations under this clause 5.2 (breach of warranty) is the Client’s sole remedy against OneKloudX for breach of warranty.

 

5.3 - Third party products:

a. Where OneKloudX procures third party products (including software and hardware) on behalf of the Client:

        i. to the extent it is able, OneKloudX will transfer to the Client the benefit of any applicable third party warranty; or

        ii. if that is not possible, OneKloudX will hold the warranty for the benefit of the Client.

b. OneKloudX’s performance of the obligation under clause 5.3a is the Client’s sole remedy against OneKloudX relating to the third-party products. OneKloudX shall have no other liability, responsibility or obligation to the Client in respect of those products or any issue with them.

c. Clauses 5.1 and 5.2 do not apply to third party products.

 

5.4 - Exclusion: To the maximum extent permitted by law:

a. OneKloudX’s warranties are limited to those stated in the Agreement and any implied condition, guarantee or warranty not contained in this Agreement is excluded;

And

b. OneKloudX makes no representations concerning the quality of any software provided to the Client under or in connection with this Agreement and does not promise that the software will be error free or will operate without interruption.

 

5.5 - Statutory rights: Nothing in the Agreement excludes, restricts or modifies any condition, warranty or guarantee imposed by statute which cannot lawfully be excluded, restricted or modified, including any consumer guarantee under the Australian Consumer Law.

 

5.6 - Limitation of liability for statutory rights: If, despite the exclusions and liability limitations in the Agreement, OneKloudX is held or found to be liable to the Client for any condition, warranty or guarantee that cannot be excluded, to the fullest extent permitted by law, OneKloudX’s liability in respect of that condition, warranty or guarantee is limited at OneKloudX’s option to OneKloudX re-performing the defective Service or remedying, repairing, enhancing or replacing the defective Deliverable so that it meets and satisfies that condition, warranty or guarantee, or paying the cost of having the defective Service or Deliverable supplied again.

The Client must:

a. act reasonably in the exercise of any discretion;

b. promptly make decisions and provide approvals and perform all Client responsibilities set out in the Statement of Work or an Associated Document;

c. use suitably experienced, qualified and skilled personnel to perform its obligations and ensure those personnel have authority to bind the Client;

d. promptly provide the following upon request for OneKloudX to supply the Services and Deliverables:

        i. any information within the Client’s control;

        ii. its personnel; and

        iii. access to its facilities, equipment and data;

e. subject to OneKloudX personnel complying with the Client’s reasonable health and safety policies notified to those personnel, ensure the health, safety and welfare of any OneKloudX personnel who are providing Services and Deliverables at the Client’s premises; and

f. use all Services and Deliverables for lawful purposes and in a manner that complies with all applicable laws, including the Spam Act 2003 (Cth) and Privacy Act 2003(Cth).

6. INTELLECTUAL PROPERTY

6.1 - Pre-existing IPR: The following Intellectual Property remains the property of the current owner (including a third-party owner):

a. Intellectual Property that existed prior to the Commencement Date; and

b. Intellectual Property that was developed independently of the Agreement.

 

6.2 - Ownership going forward: Subject to clause 6.1 and unless stated otherwise in the Statement of Work:

a. All new Intellectual Property created or developed by OneKloudX in providing the Services and Deliverables is owned by OneKloudX; and

b. OneKloudX grants or must obtain for the Client a non-exclusive, non-transferable and royalty free license to use any OneKloudX or third party Intellectual Property necessary to enable the Client to use the Deliverables and Services.

 

6.3 - License to use Client IP: Client grants or must obtain for OneKloudX a non-exclusive, non-transferable and royalty free license to use any Client or third party Intellectual Property incorporated in materials provided by Client necessary to enable OneKloudX to provide the Deliverables and Services and otherwise comply with its obligations under this Agreement.

 

6.4 - Intellectual Property Rights indemnity:

a. Each party (indemnifying party) must indemnify and keep indemnified the other party (indemnified party) from and against all costs (including legal costs on a solicitor own client basis) and liability in connection with the infringement or alleged infringement of any third party's Intellectual Property Rights (IP Claim) arising out of or in connection with the indemnified party’s use of the indemnifying party’s Intellectual Property in accordance with the Agreement.

b. The indemnifying party’s obligations under clause 6.4a are conditional upon the indemnified party:

        i. promptly notifying the indemnifying party in writing of any allegation of infringement; and

        ii. making no admission of liability without the indemnifying party’s consent.

c. The indemnified party must, at the indemnifying party’s request, allow the indemnifying party to conduct and/or settle all negotiations and litigation and give the indemnifying party all assistance reasonably requested by it. The indemnifying party must reimburse the indemnified party’s reasonable costs associated with providing assistance under this clause.

d. The indemnifying party is not required to indemnify the indemnified party under clause 6.4a to the extent that the indemnified party caused or contributed to the IP Claim.

e. If an IP Claim arises, OneKloudX may terminate the Agreement with immediate effect.

7. CHARGES

7.1 - Charges: The Client must pay the Charges to OneKloudX in accordance with this clause 7 and any payment terms in the relevant Statement of Work.

7.2 - Invoicing:

a. OneKloudX must provide the Client with a valid GST tax invoice:

        i. at the invoicing dates stated in the Statement of Work; or

       ii. if no invoicing dates are stated, either:

               - after completion of a particular milestone; or

               - monthly in arrears for that part of the Charges due in respect of work undertaken in the previous month, including any ongoing work.

b. Each invoice must specify the Services and/or Deliverables to which the invoice relates.

c. Charges exclude any and all taxes (including GST, income tax and any duties and levies imposed by any competent authority in any jurisdiction) which will be payable by the Client on taxable supplies under the Agreement.

d. Client must pay all OneKloudX invoices in full within 15 days from the date of invoice electronically in cleared funds without set off or deduction of any kind to the account listed on OneKloudX’s invoice.

e. If the Client is required by law to deduct any tax (or similar levy) from any amount payable under this Agreement, Client must increase the amount payable to ensure OneKloudX receives a net amount equal to the amount that OneKloudX would have received had no such deduction been made.

7.3 - Service Rates:

a. An hourly Service Rate will be charged in full for each hour or part hour worked during a Business Day. Overtime rates apply outside Business Hours and are charged at 150% of the hourly rate.

b. A daily Service Rate is applicable for a Business Day for up to 8 hours. A half day of 50% of the Daily Rate will be charged when up to 4 hours is worked in a single day, with overtime rates applying outside Business Hours, which are charged at 150% of the Daily Rate.

7.4 - Expenses:

a. Unless otherwise specified in the Statement of Work, all costs incurred by OneKloudX in the course of providing the Services and Deliverables to the Client, including out of town travelling, accommodation, meals, communication fees, courier fees, shipment of parcels, word processing, typing, photocopying and printing of manuals and technical documentation, data entry, computer use, computer consumables, and other disbursements will be charged to the Client at cost plus a 10% administration fee.

b. If any OneKloudX consultant provides Services at the Client’s premises, the Client must pay travelling time at the applicable Service Rate, unless the consultant is providing those Services:

        i. on a full-time basis; and

        ii. within the city of that consultant’s ordinary place of residence.

7.5 - Time and materials work:

a. Where Services and Deliverables are provided on a time and materials basis, the Client acknowledges that:

        i. any estimate provided in respect of those Services and Deliverables is an estimate for budget purposes only and not a guarantee that OneKloudX can complete all Services and Deliverables necessary within the estimates provided; and

        ii. the Client’s acceptance of an estimate constitutes a spending authority to enable OneKloudX to begin work under the Agreement.

b. OneKloudX will:

        i. use reasonable endeavours to provide the Services and Deliverables within the estimate set out in the Statement of Work; and

        ii. only invoice the Client for time and materials spent in providing the Services and Deliverables.

c. When OneKloudX has exhausted 80% of the relevant estimate or Monetary Cap, OneKloudX will review the status of the project with the Client and OneKloudX may request the Client’s consent (not to be unreasonably withheld or delayed) for the relevant estimate or Monetary Cap to be increased by an amount OneKloudX considers is required (acting reasonably) to provide the Services and Deliverables. If the parties:

        i. agree to increase the relevant estimate or Monetary Cap, the parties must sign a statement documenting the agreed increased estimate or Monetary Cap, at which point that statement is an amendment to the Agreement; or

        ii. cannot agree an increased estimate or Monetary Cap, OneKloudX may cease supplying the Services and Deliverables when the estimate or Monetary Cap is exhausted.

7.6 - Changes: Unless stated otherwise in the Statement of Work, OneKloudX may increase:

a. its recurring Charges and/or Service Rates stated in the Statement of Work on at least 3 months’ notice; and

b. any Charges and/or Service Rates which relate directly to an increase in charges by a third-party supplier for OneKloudX ‘s on-supply of that third party’s products or services to the Client, on such notice as is reasonably practicable in the circumstances.

7.7 - Currency conversion:

a. Unless stated otherwise in the Statement of Work, where conversion is required of an amount stated in a foreign currency into an alternative currency, the rate of exchange used on the conversion date is the spot rate shown on the website of the Australia and New Zealand Banking Group Limited or such other financial institution selected by OneKloudX for the nearest Business Day.

b. Where all or any part of the Charges (whether fixed or not) are based on costs external to OneKloudX that are paid in a foreign currency, OneKloudX may adjust the Charges to reflect any exchange rate fluctuations from the date the Charges were first set or last adjusted.

7.8 - Overdue amounts: If payment is not received on the due date, without prejudice to any other right or remedy available to OneKloudX:

a. OneKloudX may charge interest on the overdue amount. Interest will be calculated daily from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft rate (monthly charging cycle) applied by OneKloudX’s primary trading bank as at the due date plus 3% per annum;

and

b. the Client must pay all fees, charges, interest, commission and any other costs incurred by OneKloudX in the settlement, recovery and/or in any attempt to collect any monies owed by the client to OneKloudX under this Agreement including debt collection agent costs, repossession costs, location search costs, process server costs and solicitor costs on a solicitor/client basis.

7.9 - Disputed invoices: Despite anything to the contrary in this clause 7:

a. The Client may withhold payment of an invoice or part of an invoice if the Client considers, acting reasonably, that the Services and/or Deliverables to which the invoice relates have not been supplied materially in accordance with the Agreement and the non-performance has not been remedied to the Client’s reasonable satisfaction within 14 days of OneKloudX receiving notice of the non-performance. Any such withholding must be proportionate to the non- performance. The Client must notify OneKloudX of a dispute under this clause within 7 days of receiving the invoice.

b. The Client must pay that part of the disputed invoice in respect of which no dispute exists, by the due date for that invoice.

c. Any dispute under this clause 7.9 must be dealt with in accordance with clause 12.

8. CONFIDENTIALITY

8.1 - Security: Each party agrees that, unless it has the prior written consent of the other party, it will:

a. keep confidential at all times the Confidential Information of the other party; and

b. ensure that any personnel or professional adviser to whom a party discloses the other party’s Confidential Information is aware of, and complies with, the provisions of this clause 8.1.

 

8.2 - Disclosure required: The obligations of confidentiality in clause 8.1 do not apply to any disclosure:

a. required by law, a court order or the rules of any stock exchange;

b. of Confidential Information which:

        i. is publicly available through no fault of the recipient of the Confidential Information or its personnel;

        ii. was rightfully received from a third party without restriction or without breach of the Agreement; or

        iii. was independently developed by the recipient without breach of the Agreement; or

        iv. by OneKloudX if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that OneKloudX enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 8.

 

8.3 - Publicity: OneKloudX may use the Client’s name, brand and logo when making general public statements about the provision of Services and Deliverables to the Client, including in any proposal, promotional material, press release, customer list or on OneKloudX’s website, provided that no commercially sensitive information is used in such public statement.

9. LIABILITY

9.1 - Maximum liability: The maximum aggregate liability of OneKloudX under or in connection with a Statement of Work, however arising, must not exceed an amount equal to the Charges (plus GST) paid by the Client for the Services and Deliverables under that Statement of Work in the preceding 12 months less the value of any Charges paid by the Client which relate directly to the on supply of any third party products or licenses.

 

9.2 - Unrecoverable loss: Except for the Client’s liability to pay the Charges, neither party is liable to the other for any:

a. loss of profit, revenue, data, anticipated savings, bargain, business, revenue, opportunities and/or goodwill; or

b. Consequential Loss, arising under or in connection with the Agreement.

 

9.3 - Unlimited liability: A party’s liability for the following remains unlimited:

a. indemnity under clause 6.4a (intellectual property);

b. personal injury or death;

c. fraud or willful misconduct; or

d. breach of clause 8 (confidentiality).

 

9.4 - No liability for the other’s failure: Neither party will be liable to the other party for loss to extent that such loss is directly caused or contributed to by the other party.

 

9.5 - Client indemnity: Client indemnifies OneKloudX and its personnel from and against any and all claims, losses, damages, costs, judgments, expenses and liabilities of any kind (including legal costs on a solicitor own client basis) as result of any third-party claim arising out of, or in connection with:

a. the Client’s use of the Services or Deliverables; or

b. the Client’s breach of this Agreement.

 

9.6 - Time bar: OneKloudX will not be liable to the Client in respect of any claim under or in connection with the Agreement unless the Client has notified OneKloudX of that claim within six months of the event giving rise to the claim.

10. TERM AND TERMINATION

10.1 - Duration: Unless terminated in accordance with its terms, the Agreement starts on the Commencement Date and continues for the term stated in the Statement of Work.

 

10.2 - Termination for breach: If:

a. a party (non-defaulting party) notifies the other party (defaulting party) regarding a material breach of the Agreement by the defaulting party and the breach is not:

        i. remedied within 20 days of the receipt of the notice from the non-defaulting party requiring it to remedy the breach; or

        ii. in the reasonable opinion of OneKloudX, capable of being remedied; or

b. an Insolvency Event occurs or is likely to occur (in the reasonable opinion of the non-defaulting party) in relation to the defaulting party, the non-defaulting party may in writing immediately terminate the Agreement.

 

10.3 - Consultation on default: Upon receipt of a notice under clause 10.2, the parties will:

a. meet within three Business Days of the date of the notice to discuss the default; and

b. attempt in good faith to agree a plan for resolving or otherwise addressing the default.

 

10.4 - No fault termination: Either party may terminate the Agreement by providing no less than 30 days’ notice in writing to the other party.

 

10.5 - Consequences of expiry or termination:

a. Expiry or termination of the Agreement is without prejudice to the other rights and obligations of the parties accrued up to and including the date of termination.

b. The Client must pay for any Services and Deliverables provided in accordance with the Agreement up to the date of expiry or termination.

 

10.6 - Termination charges: Where the Client terminates the Agreement under clause 10.4 or OneKloudX terminates the Agreement under clauses 10.2 or 13.1c, the Client must pay to OneKloudX termination charges calculated on OneKloudX’s reasonable unrecovered sunk capital costs, plus any other cost which OneKloudX has or will incur by reason of the termination where OneKloudX has entered into commitments, arrangements or agreements with third party suppliers that, despite using reasonable endeavours, OneKloudX is not able to terminate and/or that will not expire prior to the termination date (Termination Charges). Termination Charges will exclude:

a. all profit elements and post termination operation costs in connection with providing the Services and Deliverables; and

b. any costs recovered by the Client paying the Charges up to the date of termination.

 

10.7 - Return or destruction of material: Except to the extent either party has ongoing rights to use any Confidential Information under this Agreement, each party will, at the request of the other party following termination or expiry of the Agreement, within 10 Business Days of the request:

a. return to the other party:

        i. all of the other party’s Confidential Information;

and

        ii. all of the other party’s property, which is in the first party’s possession or control;

and/or

b. if requested by the other party, destroy or erase all copies in any form of the other party’s Confidential Information or Intellectual Property and any documents which contain or reflect any of the other party’s Confidential Information or Intellectual Property.

 

10.8 - Disengagement Services: Where the Agreement is terminated by the Client under clause 10.2, OneKloudX must, if requested by the Client, provide disengagement services described in the Statement of Work (if any) to the Client, or to a supplier nominated by the Client, commencing at any time before or from the termination or expiry date for a period not exceeding 30 days. The Client must pay OneKloudX for those disengagement services at the Service Rates. Where the Agreement is terminated for any other reason, OneKloudX has absolute discretion as to whether it may provide disengagement services.

 

10.9 - Obligations continuing: Clauses which, by their nature are intended to survive expiry or termination, including clauses 3f, 4.3, 5, 6, 8, 9 and 10, continue after expiry or termination of the Agreement.

11. CHANGE REQUESTS

11.1 - Change request: A party may request an amendment to the terms of the Statement of Work (including the addition or removal of any Services or Deliverables or change to the Charges) at any time by providing notice of a change request (Change Request). A Change Request from the Client must contain all of the following information:

a. a title and high-level description;

b. date raised;

c. the priority and any critical implementation dates;

d. any known dependencies;

e. whether the activity is within or outside budgeted (core service fee) Services and Deliverables;

f. any potential impacts to the Services and Deliverables;

and

g. anticipated outputs and outcomes.

 

11.2 - Statement: OneKloudX must, within 30 days of receipt of a Change Request from the Client (subject to receiving an estimate approval under clause 11.4) or upon the issue of OneKloudX’s Change Request to the Client, provide the Client with a statement (Change Statement) signed by its authorised representative, setting out:

a. how the proposed change would be implemented, including details of any proposed changes to the Services, Deliverables or any other term of the Statement of Work, including any timetable or resource implications; and

b. the cost of implementing the change, including any change to the Charges.

 

11.3 - Refusal of Request: OneKloudX may in its discretion refuse a Change Request from the Client and provide the Client reasons for its refusal, which may include:

a. the change requested would adversely affect Services and Deliverables;

b. the change is not technically or operationally feasible;

c. the change would result in a breach of law; or

d. the change is not commercially viable for OneKloudX.

 

11.4 - Cost of the statement: OneKloudX may charge, at the Service Rates, its reasonable costs of preparing a Change Statement in response to a Change Request from the Client where its time in preparing the change statement would exceed 4 hours of work, provided that OneKloudX provides to the Client for its approval a reasonable estimate of the number of hours that it will take it to prepare the Change Statement. OneKloudX is not required to prepare the Change Statement where the Client does not approve the estimate.

 

11.5 - Consideration: Within 30 days of receipt from OneKloudX of a Change Statement, the Client must respond to OneKloudX in writing either:

a. a requesting OneKloudX to negotiate the terms of the Change Statement in which case both parties agree to negotiate in good faith;

b. accepting the Change Statement; or

c. declining to proceed with the Change Request.

 

11.6 - Termination if change request declined: If the Client declines to proceed with any Change Request initiated by OneKloudX, OneKloudX may suspend performance of the Services and Deliverables until the dispute is resolved in accordance with clause 12. If the dispute is not resolved, either party may terminate the Agreement by written notice to the other party.

 

11.7 - Amendment:

a. Upon acceptance by the Client of a Change Statement:

        i. the parties must sign the Change Request and Change Statement documenting the agreed changes; and

        ii. the signed Change Request and Change Statement constitute an amendment to the Statement of Work.

b. OneKloudX will have no obligation to proceed to implement any Change Request until such Change Request has been agreed in writing.

12. DISPUTE RESOLUTION

12.1 - Application. If a dispute arises out of or relating to this Agreement, the parties must comply with the provisions of this clause 12 before having recourse to arbitration or litigation.

 

12.2 - Good faith negotiations: Both parties must use their best efforts to resolve any dispute that may arise under, or in connection with, the Agreement through good faith negotiations.

 

12.3 - Mediation: If a dispute cannot be resolved under clause 12.2 within 10 Business Days then, either party may refer the dispute to mediation, in which case the following procedure applies:

a. the mediation will be conducted by a single independent mediator in accordance with the terms of the Australian Commercial Disputes Centre guidelines (Guidelines);

b. the mediator will be chosen, and the mediator’s fee determined, in accordance with the Guidelines; and

c. unless agreed otherwise or unless the mediator considers it unreasonable, the mediator’s fee must be borne equally by the parties.

 

12.4 - Obligations continue: Despite the existence of a dispute and the operation of this clause 12, each party must, to the extent possible, continue to perform its obligations under the Agreement.

 

12.5 - Right to seek relief: This clause 12 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief from any court of competent jurisdiction.

13. GENERAL PROVISIONS

13.1 - Force majeure:

a . Neither party is liable to the other for any failure to perform its obligations under the Agreement by reason of any cause or circumstance beyond the party’s reasonable control (force majeure).

b. The party affected must:

        i. immediately notify the other party and provide full information concerning the event of force majeure;

        ii. use best endeavours to overcome the event and minimise the loss to the other party; and

        iii. continue to perform its obligations as far as practicable.

c. The other party may terminate the Agreement by notice if, as a result of the force majeure, the affected party is unable to perform any of its material obligations under the Agreement for 30 days or more.

13.2 - Non-waiver: A party is not deemed to have waived any right under the Agreement unless the waiver is in writing and signed by that party. A failure to exercise or delay in exercising any right under the Agreement will not operate as a waiver.

 

13.3 - Independent contractor: OneKloudX is an independent contractor and the Agreement must not be construed to create a joint venture, agency, trust, partnership or employment relationship between OneKloudX and the Client.

 

13.4 - Notices:

a . All notices given by a party under the Agreement may be delivered via email to an email address notified by the other party for this purpose.

b. A notice under the Agreement is deemed to be received at the time the email leaves the communications system of the sender, provided that the sender:

        i. does not receive any error message relating to the sending of the email at the time of sending; and

        ii. has obtained confirmation that the email has been delivered to the recipient (which confirmation may be in the form of an automated delivery receipt from the communications system of the recipient),

provided that any notice received after 5pm or on a day which is not a Business Day is deemed not to have been received until the next Business Day.

 

13.5 - Severability: Any illegality, unenforceability or invalidity of any provision of the Agreement does not affect the legality, enforceability or validity of the remaining provisions of the Agreement.

 

13.6 - Variation:

a. Subject to clause 13.6b to 13.6c, any variation to the Agreement must be in writing and signed by both parties.

b. OneKloudX may vary these Terms of Business. Any such variation will only apply to Services and Deliverables provided after the effective date of the variation.

c. Where the Services and Deliverables are being delivered using the agile (or a similar) methodology, the parties acknowledge that they may agree changes to the Services and Deliverables, and delivery terms, in accordance with that methodology.

 

13.7 - Entire Agreement: The Agreement constitutes the entire agreement and understanding of the parties in relation to its subject matter. No earlier representation, warranty or agreement in relation to any matter dealt with in the Agreement has any force from the Commencement Date.

 

13.8 - Subcontracting and assignment:

a . Subject to clause 13.8c neither party may assign, delegate, subcontract or transfer any of its rights and obligations under the Agreement without the prior approval in writing of the other party (not to be unreasonably withheld). The first party remains liable for the performance of its obligations under the Agreement despite any approved subcontracting, assignment, delegation or transfer.

b. Any change of control of the Client is deemed to be an assignment for which OneKloudX’s prior approval in writing is required under clause 13.8a. In this clause change of control means any transfer of shares or other arrangements affecting the Client or any member of its group which results in a change in the effective control of the Client.

c. OneKloudX may from time to time subcontract or delegate the exercise of its rights and performance of its obligations under the Agreement to third parties. Wherever practicable, OneKloudX will consult the Client before any material subcontracting or delegation. OneKloudX remains liable for the performance of its obligations under the Agreement despite any subcontracting or delegation under this clause.

 

13.9 - Counterparts: The Statement of Work may be signed in counterparts, each of which constitutes an original and all of which constitute the same agreement. A party may enter into the Agreement by signing and sending (including by facsimile or email) a counterpart copy of the Statement of Work to the other party.

 

13.10 - Governing law: The Agreement is governed by the laws of Victoria and the parties submit to the non-exclusive jurisdiction of the courts of Victoria.

14. DEFINITIONS

 

14.1 - Definitions: In the Agreement, the following terms have the stated meaning:

 

Agreement: the documents listed in clause 1.1.

 

Associated Document: any document referred to in, or forming part of, the Statement of Work, including a project plan, invoice, or purchase order, and any terms of reference, specifications and standards agreed in writing between OneKloudX and the Client.

 

Business Day: a day excluding Saturday, Sunday and any public holiday in Melbourne, Victoria.

 

Business Hours: means the hours of 8.00am to 5.00pm on a Business Day.

 

Charges: the charges stated in the Statement of Work for the Services and Deliverables to which the Statement of Work relates, which are payable in accordance with clause 7 and the Statement of Work.

 

Commencement Date: the date stated in clause 1.2.

 

Confidential Information: the terms and conditions of the Agreement and any information which is not public knowledge, and which is obtained from the other party in the course of, or in connection with, the Agreement. Intellectual Property owned by OneKloudX is OneKloudX’s Confidential Information.

 

Consequential Loss: means any losses suffered by a party to this Agreement as a result of a breach of this Agreement that cannot reasonably be considered to arise naturally from that breach.

 

Deliverables: any hardware, equipment, products, software (including fixes, patches, developments and releases), reports, documentation, and other output

required to be supplied by OneKloudX under the Statement of Work.

GST: goods and services tax chargeable under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any penalty or interest payable in relation to that tax.

 

Insolvency Event: means: (a) where a party is a body corporate – a party becomes an externally-administered body corporate; or (b) where a party is a person – a party becomes an insolvent under administration, as those terms are defined in the Corporations Act 2001 (Cth).

 

Intellectual Property Rights: includes copyright, and all rights conferred under statute, common law or equity in relation to inventions (including patents), registered and unregistered trademarks, registered and unregistered designs, circuit layouts, confidential information, know-how, techniques, ideas, methodologies and all other rights resulting from intellectual activity, together with all rights, interest or licence in or to any of them. Intellectual Property has a corresponding meaning.

 

Monetary Cap: means a monetary cap set out in an attached Statement of Work. Pre-existing IPR means those Intellectual Property Rights set out in clause 6.1.

 

Services: the services to be performed by OneKloudX under the Statement of Work, as described in the Statement of Work.

 

Service Rates: means the rates stated in the relevant Statement of Work or, where none are stated, the rates stated in OneKloudX’s commercial rates card, as that card is updated from time to time.

 

Specifications: the specifications (if any) for Services and Deliverables as set out or referred to in the relevant Statement of Work.

 

Statement of Work: an agreement between the Client and OneKloudX for the supply of Services and/or Deliverables.

 

Terms of Business: clauses 1 to 14 of this document.

 

Year: a 12-month period starting on the Commencement Date or an anniversary of that date.

 

14.2 - Interpretation:

a. Clause and other headings are for ease of reference only and do not affect interpretation.

b. Words in the singular include the plural and vice versa.

c. The rule of construction known as contra proferentem does not apply to the interpretation of the Agreement

d. A reference to:

        i. a party to the Agreement includes that party’s permitted assigns;

        ii. $ or dollars is to Australian dollars;

        iii. personnel include officers, employees, agents and contractors;

        iv. including and similar words do not imply any limitation; and

        v. a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them.

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