Last Updated 21 July 2021
This is a legally binding agreement
between you (you or your)
and Mjenzi Cloud (we, us or our).
This Agreement consists of (in order of precedence) the Proposal (if
applicable), these Standard Terms and Conditions and any annexures to these
Standard Terms and Conditions (Agreement).
2.
TERM
2.1. Subject to either:
(a) us receiving the signed Proposal from
you before the expiry date set out therein; or
(b) you clicking “yes” when creating a Web
Order,
this Agreement starts on the Commencement Date and continues for the
Term.
2.2 This Agreement will automatically
renew for further successive terms of one calendar month on each anniversary of
the Commencement Date, unless terminated earlier in accordance with this
Agreement.
3.
OUR SERVICES
3.1 We will provide the Services in
accordance with this Agreement.
3.2
If requested (or specified in the Proposal), we will also provide:
(a) the Additional Services in accordance
with this Agreement; and
(b) any out-of-scope services at our then
current time and materials rates or in accordance with a proposal.
4.
SERVICE LEVELS
4.1 We will use reasonable endeavours to
meet the Service Levels.
4.2 If we fail to meet any Service Levels,
your sole and exclusive remedy is to claim a Service Credit in accordance with
the terms and conditions set out in Annexure A.
4.3 You must promptly notify us of any
faults in relation to the Services and/or Additional Services.
4.4 We may charge you for fault resolution
services at our then current time and materials rates if we respond to a
request from you and determine that the fault was not caused by our
acts/omissions or any breach of our obligations under this Agreement.
4.5 You acknowledge and agree that we are
not responsible for resolving faults caused by any software, hardware or other
components outside our network, circumstances beyond our reasonable control or
Scheduled Outages.
5.
THIRD PARTY PRODUCTS
5.1 The Services and/or Additional
Services may include Third Party Products. You acknowledge that:
(a) your use of the Third Party Products
will be subject to the Third Party Contract(s); and
(b) the Third Party Contract(s) will be
between you and the Third Party Supplier.
5.2 You authorise us to enter into the
Third Party Contract(s) on your behalf.
6.1 We do not represent or warrant that
the operation of our Website will be secure, confidential, uninterrupted,
error-free, accurate, complete or current.
6.2
We regularly update and carry out scheduled maintenance on our Website, so we
may have to suspend access to, or functionality on, our Website from time to
time.
7.1 You must pay us the Fees in accordance
with this Agreement.
7.2 We will calculate, and invoice you
for, the Fees in accordance with the Proposal and terms and conditions set out
in this clause 7.
7.3
We may charge interest on overdue amounts at the rate of 1.5% per month and may
suspend your account and our performance of the Services and Additional
Services until all overdue amounts are paid.
7.4 All amounts specified in this
Agreement are exclusive of GST unless specified otherwise. If GST is payable on
any supply made by us under this Agreement, you must pay us an additional
amount equivalent to the GST at the time that payment to us is due.
8.
YOUR ACCOUNT
8.1 In order for us to provide you with
the Services and/or the Additional Services, you must sign up for an account
with us, which can be done on our Website.
8.2 You are solely responsible for
maintaining the confidentiality and security of your account. You are also
solely responsible for all activities on your account.
8.3 You must notify us immediately of any
unauthorised use of your account. We will not be liable for any loss or damage
arising in connection with any unauthorised use of your account.
9.
YOUR OBLIGATIONS
9.1 You must do all things necessary to
enable us to perform our obligations under this Agreement including, without
limitation:
(a) performing or connecting any services
as required by us; and
(b) providing information, documentation
and access to your resources and premises as requested by us.
(a) withhold any information or materials
which could impact our performance of our obligations under this Agreement;
(b) use the Services to send unsolicited
emails to third parties;
(c) use the Services for any unlawful
activities; or
(d) use the Services to publish any
materials or store content that is unlawful, pornographic, defamatory, abusive,
insulting, threatening, obscene, inflammatory, offensive or otherwise
inappropriate or objectionable.
9.3 You must ensure all information and
material you provide to us:
(a) is accurate, complete and current;
(b) is provided promptly or otherwise
within the agreed timeframes;
(c) does not infringe the intellectual
property or other rights of any person; and
(d) is not misleading, deceptive,
unlawful, fraudulent or defamatory.
9.4
You must comply with all our Policies, as amended and updated from time to
time.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 You own all rights (including intellectual
property rights), title and interest to Your Content. You grant us a
non-exclusive licence to use Your Content for the purpose of performing our
obligations under this Agreement.
10.2 You consent to us using your company name and
reproducing your logos for promotional and publicity purposes.
10.3
We own all rights (including intellectual property rights), title and interest
to the Contract Materials. We grant you a
non-exclusive and non-transferable licence to use the Contract Materials for
the Term.
11.1 The parties must:
(a) take all reasonable precautions to
maintain the confidentiality of the Confidential Information and to protect the
Confidential Information from authorised use, disclosure or availability;
(b) not disclose the Confidential
Information to any person other than their Associates on a need-to-know basis
or as required by law; and
(c) use the Confidential Information for
the sole purpose of performing its obligations under this Agreement.
11.2 The parties must:
(a) take all reasonable precautions to
maintain the confidentiality of the Confidential Information and to protect the
Confidential Information from unauthorised use, disclosure or availability; and
(b) promptly notify the other if it
appears that Confidential Information has been compromised, or if the parties
are required by law to disclose the Confidential Information.
11.3 Upon request, the parties must immediately return
or destroy the Confidential Information and all documents and materials
containing the Confidential Information which are in that party’s possession or
control.
11.4 The parties acknowledge that a breach of its
obligations under this clause 11 is likely to cause damage to the other party,
and agree that the party not in breach will be entitled to seek injunctive
relief to prevent a breach of this clause 11 and to compel specific performance
of this clause 11.
12.1 We make no representations or warranties in
relation to any Third Party Products.
12.2 Our liability for breach of a statutory guarantee
which cannot be excluded by law is limited, at our option, to either the supply
of the services (or equivalent services) again or the payment of the cost of
having the services supplied again.
12.3 You indemnify, defend and hold us harmless
against all loss, damage, claims, liabilities, costs and expenses (including
legal fees) arising from, or in connection with:
(a) any Third Party Products, including
any failure by a Third Party Supplier to provide the Third Party Product(s) or
comply with a Third Party Contract;
(b) any claim or demand brought by third
parties, including a claim that the intellectual property rights of any third
party are infringed;
(c) any negligent, wrongful, unlawful or
fraudulent act or omission or any breach of this Agreement by you or your
Associates.
12.4 We exclude liability for:
(a) any issues or failure of installation
or integration of the Third Party Products due to incompatibility with your
hardware, software, firmware, protocols, systems or infrastructure;
(b) any costs, expenses, claims or
liability suffered or incurred by you as a result of us complying with your
directions; and
(c) loss of profit or revenue, loss of
business opportunities, loss of software or data and any indirect or
consequential loss arising in connection with this Agreement.
12.5
To the extent permitted by law, our aggregate liability in connection with this
Agreement will not exceed the Fees paid by you to us in the 30 days preceding
the date of the claim.
12.6 We will not be liable for any delay or
non-performance of our obligations under this Agreement if it is caused by
strike, fire, flood, failure of suppliers, or any other circumstances beyond
our reasonable control.
13.
SUSPENSION AND TERMINATION
13.1
Without limiting any remedies available to us under this Agreement or at law,
we may suspend the Services and/or terminate this Agreement with notice to you
if:
(a) you fail to remedy a breach within 7
days of a notice from us requesting you to do so;
(b) your Fees are outstanding for more
than 7 days past the due date; or
(c) you become insolvent, bankrupt, enter
into administration, are wound up or a receiver or creditor is appointed over
any part of your business.
13.2 You may terminate this Agreement at any time by
sending a cancellation request to us at support@mjenzi.com, subject to the
following terms:
(a) if we receive your cancellation
request at least 4 Business Days prior to the end of the then current Term,
this Agreement will be terminated at the end of the then current Term; and
(b) if we do not receive your cancellation
request at least 4 Business Days prior to the end of the then current Term:
(i) this Agreement will automatically renew for a further
term on the last day of the then current term in accordance with clause 2.2;
(ii) we will charge you, and you must pay, the Fees for the
renewed Term of this Agreement; and
(iii) this Agreement will terminate on the last day of the renewed Term.
13.3
We may terminate this Agreement at any time by giving you at least 30 days’
prior written notice. In this instance, we will refund any prepaid Fees
applicable to the unused portion of any Services and/or Additional Services.
13.4 Upon the termination of this Agreement for any
reason, you must pay all outstanding Fees to us and any reasonable costs
incurred by us as a result of the termination (including third party
cancellation fees and administrative costs).
4.
CHANGES TO FEES AND TERMS
14.1 If we provide the Services to you under a Web
Order:
(a) we may change, remove or add to, the
Fees, Service Levels, Service Credits and any of the terms and conditions in
this Agreement at any time during the Term; and
(b) we will notify you of any changes by
emailing you or posting a notice on our Website at least 24 hours before the
date on which the changes are effective. Your continued use of the Services
will constitute your acceptance of the changes.
14.2 If we provide the Services to you under a
Proposal:
(a) the Fees shall be fixed for the
duration of the Term (but we reserve the right to increase the Fees on any
renewal or extension of the Term); and
(b) otherwise, no changes will be made to
this Agreement unless both parties agree in writing to such changes.
5.
GENERAL TERMS
15.1 Except as otherwise provided for in this Agreement,
nothing in this Agreement will be taken as giving rise to a relationship of
employment, agency or partnership.
15.2
We may sub-contract the performance of any part of the Services or Additional
Services to any third party or assign this Agreement or any of our rights or
obligations under this Agreement.
15.3 This Agreement contains the entire understanding
between the parties concerning the subject matter of the Agreement and
supersedes all prior communications.
15.4 The failure of either party to enforce any
provisions under this Agreement will not waive the right of such party
thereafter to enforce any such provisions.
15.5 All notices and consents relating to this
Agreement must be in writing.
15.6 If any term or provision of this Agreement is
held by a court to be illegal, invalid or unenforceable under the applicable
law, that term or provision will be severed from this Agreement and the
remaining terms and conditions will be unaffected.
15.7 This Agreement is governed by, and construed in
accordance with the laws of New South Wales. The parties agree to submit to the
non-exclusive jurisdiction of the courts of New South Wales.
6.
DEFINITIONS
16.1 In this Agreement:
(a) Additional
Services mean any additional product(s) or
service(s) that you have requested us to provide, including, without
limitation, the provisioning of space on one of our servers, and connection to
and from the internet for web, email and FTP functions.
(b) Associates mean the officers, directors, employees, subcontractors,
consultants or agents of a party.
(c) Beta means when a product is released to the market for testing and
feedback.
(d) Business
Day means any day which is not a
Saturday, Sunday or a public holiday in Sydney, Australia.
(e) Commencement
Date means either the date specified
in the Proposal or the date on which the Web Order is accepted (as applicable).
(f) Confidential
Information means, regardless of the time
or method of disclosure: (i) all information of, or used by the disclosing
party relating to that party’s transactions, operations and affairs and
includes the Order; (ii) all other information treated by the disclosing party as
confidential; and (iii) all information the receiving party knows, or
reasonably ought to know is confidential; but does not include information that
is public knowledge, required to be disclosed under law or otherwise within the
knowledge of the receiving party (otherwise than as a result of a breach of a
confidentiality obligation of the receiving party).
(g) Contract
Materials mean all materials, reports,
diagrams, code, processes, methods, specifications and other works created or
produced by us arising in connection with the provision of the Services or
Additional Services including our Pre-Existing Materials.
(h) Documentation means manuals or other documentation that we make available with
the Services or Additional Services.
(i) Fees mean the fees payable by you for the Services and Additional
Services (as applicable) in accordance with the terms and conditions set out in
Annexure B.
(j) GST
Law means A New Tax System (Goods
and Services Tax) Act 1999 (Cth) and any regulations made pursuant to that Act.
(k) Order means either the Website Order or the Service Order issued by us
to you (as applicable).
(l) Mjenzi
Cloud Services means the on-demand infrastructure
service provided by us under this Agreement using the Mjenzi Cloud Platform.
(m) Polices means any of our policies which can be accessed on the Website,
including without limitation, our privacy and security policy and our
acceptable use policy.
(n) Pre-Existing
Materials mean any of our materials existing at
the date of this Agreement, including all trade marks, designs, design
specifications, software, hardware or other documentation and materials used in
our business or operations.
(o) Proposal means the proposal attached to these Standard Terms and Conditions
issued by us to you in relation to the Services and/or Additional Services (as
applicable).
(p) Scheduled
Outages is defined in Annexure A.
(q) Service
Credits means the service credits set
out in Annexure A.
(r) Service
Levels means the service levels set out in
Annexure A.
(s) Services mean the Mjenzi Cloud Services as requested by you, either: (a) as
described in the Proposal; or (b) in the case of a Web Order, selected by you
on our Website.
(t) Term means either: (a) in the case of a Proposal, the term specified in
the Proposal; or (b) in the case of a Web Order, one calendar month.
(u) Third
Party Contract(s) means the contract(s) entered
into between you and the Third Party Supplier.
(v) Third
Party Product(s) means the product(s)
supplied by the Third Party Supplier.
(w) Third
Party Supplier means the supplier that
supplies the Third Party Products (other than us).
(x) Time
to Repair Window means the 1.5 hour window,
during which we will use all commercially reasonable effects to restore
availability to your instance.
(y) Web
Order means an order for the Services
and Additional Services placed by you on our Website.
(z) Website means the website located at www.mjenzi.com.
(aa) Your
Content means all information and materials
provided by you to us in connection with this Agreement.
Service Level
1.
We will use reasonable endeavours to
ensure that the Mjenzi Cloud Platform provides Service Availability of at least
99.95% measured over a calendar month, subject to the terms and conditions set
out in this Annexure.
Definition of Service Availability
2.
“Service Availability” describes the
availability of:
(a) a cloud instance (where the instance is up
and available to the internet); and
(b) the hosting environment (being the servers,
storage, routers, switches and internet connectivity) under our exclusive
control.
3.
Service Availability is measured as a
percentage of time that the Mjenzi Cloud Platform is operational and
contactable from the internet, calculated over a calendar month, excluding any
Scheduled Outages.
Service Level inclusions and exclusions
4.
The Service Level applies only to a
released product.
5.
The Service Level does not apply to:
(a) any
scheduled outages, being any outage windows scheduled by us when maintenance is
required to be performed on the Mjenzi Cloud Platform (Scheduled
Outages);
(b) any services running within the cloud
instances;
(c) any Beta product (being any product released
to the market for testing and feedback);
(d) any outages or downtime initiated or caused
by your acts or omissions, any software of configuration issues relating to
your software, hardware or services.
6.
We have no obligation to meet the
Service Level if any undisputed invoice is overdue for payment or if your
account is suspended for any reason in accordance with this Agreement.
Outages
7.
We will use reasonable endeavours to
notify you of any Scheduled Outages at least 5 Business Days prior to the date
on which the Schedule Outage is proposed to occur.
8.
If we anticipate that the Services
and/or Additional Services will be offline for more than 30 consecutive minutes
at any time, we will notify you by posting details on our Website.
Service Credits
9.
If we fail to meet any Service Level
(Service Level Failure), your sole and exclusive remedy is to claim a Service Credit equal to
10% of the monthly fees paid or payable for the Services (excluding GST) in the
calendar month in which the Service Level Failure occurred, subject to the
terms and conditions set out in this Annexure.
10.
To claim a Service Credit, you must email us at support@mjenzi.com within 30
days of the Service Level Failure and provide the following details:
(a) your registered email address, contact name
and phone number;
(b) details of the date(s) and time(s) of the
Service Level Failure; and
(c) details
of the outage you experienced (Service
Credit Claim).
1.
We will assess your Service Credit
Claim within 20 Business Days of receipt of all information required to be
provided pursuant to clause 10 of this Annexure.
12.
If we are satisfied that a Service Level Failure occurred in accordance with
your Service Level Claim, we will apply the Service Credit to any fees and
charges invoiced by us to you within 3 months of the date of your Service Level
Claim. We are not obliged to apply the Service Credit to any invoice after this
timeframe.
3.
Service Credits cannot be transferred
or applied to another account, and are not redeemable for cash.
Annexure
B Fees, invoicing and payment
Fees
1.
You must pay:
(a) the fees and charges for the Services and/or
the Additional Services at the rates specified in the Order; and
(b) any additional fees and charges (as set out
on our Website) applicable to this Agreement (including, without limitation,
late payment fees and administration fees).
2.
You will incur the Fees on an hourly
basis, starting from the second in which time of your first instance
provisioning. You will be billed in 1 second intervals, at the rates quoted by
the hour
Invoicing
3.
We will invoice the Fees on a
monthly-in-arrears basis on the first Business Day of each calendar month.
Payment
4.
You must pay the Fees by credit card.
5.
You authorise us to charge your
credit card for the Fees and for any additional amounts incurred in connection
with your account (including, without limitation, late payment fees, interest
charges, cancellation fees and any adjustments to the Fees).
6.
If any charge to your credit card is
declined, you authorise us to continue to charge your credit card account for
the outstanding amount, together with any other applicable fees and charges
until payment has been received.
7.
If your credit card has insufficient
funds or has expired, you must make alternative arrangements to pay the
invoiced amount in full within 3 days of the due date for payment.
If you fail to do so, we may suspend the Services and/or Additional Services
without notice to you.
Annexure C Additional
Services
Traffic
1.
You must pay for traffic charges
based on either of the following options::
(a) on a flat rate, where your traffic charges
are fixed and do not vary in relation to traffic usage; or
(b) based on usage, where your traffic charges
are calculated at the rates specified in the Order.
2.
We calculate the volume of inbound
and outbound traffic by the number of gigabytes. Our calculations are final and
binding on the parties.
Power Requirements
3.
If you have servers co-located within
our facilities, you will be allocated a certain amount of power for each piece
of server equipment (Equipment), as outlined in the Order.
4.
If your Equipment exceeds the amount
of power allocated, you must purchase additional power capacity to meet the
requirements of your Equipment. This additional power capacity will be billed
at the same rate as specified in the relevant Order.
Access to Equipment
5.
If you are entitled to access the
Equipment, you will be charged at the rate outlined in the Order for such
access.
6.
We reserve the right to charge
additional fees if you access the Equipment outside our standard business hours
and if you require access more than once in any calendar month.
Upgrades
7.
We will process an upgrade immediately
upon our receipt of your request, unless you specify an alternative date.
8.
If the upgrade is effective on the
monthly anniversary of the Commencement Date, we will charge you an increased
fee to reflect the upgrade. However, if the upgrade is effective after the
monthly anniversary of the Commencement Date, we will pro-rate the increased
fee based on the number of days remaining in the current billing cycle.
Downgrades
9.
We will process a downgrade
immediately upon our receipt of your request, unless you specify an alternative
date.
10.
We will apply a credit to your
account for the difference of any pro-rated pre-paid amount less the pro-rated
cost of the new plan.
11.
We may charge you an administration
fee for a downgrade request. You may also be required to pay additional fees if
we have to perform work to process your request (for example, reseller hosting
to single hosting, intercontinental transfers, inter-server transfers).
Supply of Microsoft Products
2.
At your request, we may provide
products from the Microsoft Corporation, or an affiliate of the Microsoft
Corporation (“Microsoft Products”), including software, media, printed material
and electronic documentation, to you.
3.
You acknowledge and agree that we can
only provide Microsoft Products to you under our existing Microsoft Services
Provider License Agreement with the Microsoft Corporation and only in
accordance with the Microsoft Volume Licensing Services Provider Use Rights
found at http://www.microsoftvolumelicensing.com/DocumentSearch.aspx?Mode=3&DocumentTypeId=2 and
you agree to be bound by any provision of these terms that Microsoft
Corporation and its licensors require to apply to any person to whom we licence
Microsoft Products.
4.
In addition to the terms referred to
at paragraph 13, if you choose to use the Microsoft Products, the Microsoft
Corporation and its licensors require that you agree to these additional terms
and conditions, which Mjenzi Cloud does not have the authority to vary, alter
or amend:
(a) OWNERSHIP OF MICROSOFT PRODUCTS: The Microsoft Products
are licensed to Mjenzi Cloud and all title and the Microsoft Corporation owns
all rights and intellectual property in relation to them. Your possession,
access, or use of the Microsoft Products does not transfer any ownership of the
Microsoft Products or any intellectual property rights to you.
(b) USE OF MICROSOFT PRODUCTS: The Microsoft Products are
neither sold nor distributed to you and you may use it solely in conjunction
with the services provided to you by Mjenzi Cloud
(c) COPIES: You may not make any copies of the Microsoft
Products or any printed materials accompanying the Microsoft Products.
(d) PROHIBITION ON IP: You are prohibited from removing,
modifying or obscuring any copyright, trademark or other proprietary rights
notices that are contained in or on the Products
(e) LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION AND
DISASSEMBLY: You may not reverse, engineer, decompile, or disassemble the
Microsoft Products, except and only to the extent that applicable by law
(f) NO RENTAL: You may not rent, lease, lend,
pledge, or directly or indirectly transfer or distribute the Microsoft Products
to any third party, and you may not permit any third party to have access to
and/or use the functionality of the Microsoft Products
(g) PRODUCT SUPPORT: The Microsoft Corporation does not
provide support for the services provided to you by Mjenzi Cloud. Mjenzi Cloud
should provide all support for these services. Do not contact the Microsoft
Corporation for support.
(h) NO WARRANTIES, LIABILITIES OR REMEDIES BY MICROSOFT: The
Microsoft Corporation disclaims all warranties, liabilities or remedies as
provided by Mjenzi Cloud. These are Mjenzi Cloud’s representations and not made
by the Microsoft Corporation.
(i) TERMINATION: Without prejudice to any other
rights, Mjenzi Cloud may terminate your rights to use the Microsoft Products if
you fail to comply with these terms and conditions. In the event of termination
or cancellation, you must stop using and/or accessing the Microsoft Products,
and destroy all copies of the Microsoft Products and all of its component
parts.
(j) MICROSOFT END USER: Microsoft will be an
intended third party beneficiary of the End User Agreement, with the right to
enforce provisions of the End User Agreement and to verify the compliance of
the End User
(k) LIABILITY FOR BREACH: In addition to any liability
you may have to Mjenzi Cloud, you agree that you will also be legally
responsible directly to Microsoft for any breach of these terms and conditions.
(l) The Microsoft Products may contain
technology that is not fault tolerant and is not designed, manufactured, or
intended for use in environments or applications in which the failure of the
Microsoft Products could lead to death, personal injury, or severe physical,
property or environmental damage.
(m) NO HIGH RISK USE: You are not granted any right to use the
Microsoft Products in any application, controlling aircraft or other modes of
human mass transportation, nuclear or chemical facilities, life support
systems, implantable medical equipment, motor vehicles, weaponry systems, or
any similar scenario (collectively, “High Risk Use”). The Microsoft Corporation
and its suppliers disclaim any express or implied warranty of fitness for High
Risk Use. High Risk Use does not include utilization of the Microsoft Products
for administrative purposes, to store configuration data, engineering and/or
configuration tools, or other non-control applications, the failure of which
would not result in death, personal injury, or severe physical or environmental
damage. These non-controlling applications may communicate with the
applications that perform the control, but must not be directly or indirectly
responsible for the control function.
(n) LEGAL JURISDICTION:
The Microsoft Products are of U.S. origin for purposes of U.S. export control
laws. You agree to comply with all applicable international and national laws
that apply to the Microsoft Products, including the U.S. Export Administration
Regulations, as well as end-user, end-use and destination restrictions issued
by U.S. and other governments. For additional information see http://www.microsoft.com/exporting/