ABN 69 206 764 121
PO Box 373, Arundel DC, QLD 4214
PH: 07 5594 0099 FAX: 07 5594 0033
TERMS AND CONDITIONS
COMPUTER SYSTEMS MANAGED SERVICE AGREEMENT
The agreement, is effective upon the date signed, shall remain in force for a period of twelve months and will be reviewed annually. The Service Agreement automatically renews for a subsequent one year beginning on the day immediately following the end of the Initial Term, unless either party gives the other sixty (60) days prior written notice of its intent not to renew this Agreement. Early termination will require the client to pay the balance in its entirety of the 12 month acceptance. You may upgrade this agreement to a larger plan at no penalty.
GST will be payable and included in invoices. Settlements of accounts are due within 21 days of invoice. This service arrangement is to be paid (1) monthly in advance, should the account not be paid within these terms additional service charges may be applicable.
ONGC Systems will provide a system engineer to work both offsite (remote) and on-site during business hours unless specified. Business hours are 8am to 5pm Monday to Friday, excluding public holidays. Work outside these hours will be charged per the service matrix document.
a) This Agreement may be terminated by the Client upon 60 day’s written notice if the Service Provider:
Fails to fulfil in any material respect its obligations under this Agreement and does not cure such failure within 14 days of receipt of such written notice.
Breaches any material term or condition of this Agreement and fails to remedy such breach within 14 days of receipt of such written notice.
Terminates or suspends its business operations, unless it is succeeded by a permitted assignee under this Agreement.
b) This Agreement may be terminated by the Service Provider upon sixty (60) days written notice to the Client.
c) If either party terminates this Agreement, Service Provider will assist Client in the orderly termination of services, including timely transfer of the services to another designated provider. Client agrees to pay Service Provider the actual costs of rendering such assistance.
The parties acknowledge and agree that the limitations contained in this clause are reasonable in the light of all the circumstances.
The Client’s statutory rights as a consumer (if any) are not affected. All liability that is not expressly assumed in this Agreement is hereby excluded. These limitations will apply regardless of the form of action, whether under statute, in contract or tort including negligence or any other form of action. For the purposes of this clause, “ONGC” includes its employees, sub-contractors and suppliers who shall all have the benefit of the limits and exclusions of liability set out above in terms of the Contracts (Rights of Third Parties) Act 1999. Nothing in this Agreement shall exclude or limit liability for fraudulent misrepresentation.
The Client will allow and provide suitable access to the equipment and a safe work place for ONGC when they attend onsite.
Live monitoring and alerts are provided for (per schedule) for Microsoft Windows Servers which are managed by ONGC Systems. Servers are defined as any device (Physical or Virtual) running a server or host server operating system. The server management software will provide live monitoring and alerts to the ONGC Systems team. In the event that a fault is detected, ONGC will notify The Client of the occurrence and provide relevant recommendations to resolve the issue. Items identified with this benefit may require additional and unexpected labour, hardware and consumable costs which if exceed the standard terms of this agreement, will be charged separately.
ONGC Systems will maintain a register in-house, which will detail all activities undertaken by their representatives whilst working with the system. This will also keep a running total of time utilised and issues outstanding.
Preventative maintenance time will also be used to ensure all servers (and workstations if included) have the latest Windows Security patches and virus definitions. Time un-used in these sessions may be utilised for any other issues that the client may have. Please note during pre-programmed maintenances there may be short term system outages.
Repair Service will consist of ONGC Systems carrying out servicing and repairs to the listed equipment and replacing such parts thereof any may from time to time be necessary to remedy defects in, or breakdowns of, the equipment under the proviso that this service does not extend to repairs to or replacement of the equipment which in ONGC Systems’ opinion, are rendered necessary mainly as a result of:
- Any issues arising after direct or indirect operator misuse or unauthorised access, configuring, modifications or additions without previous written acceptance from ONGC Systems.
- Failure of any power source provided by the User
- Equipment utilised outside of manufacturers recommendations.
Consumables and parts are not covered by this Agreement and shall be provided only at the users request and expense. Parts will be supplied by ONGC Systems subject to availability, and charged at fair market value.
ONGC may suspend this agreement should any invoices issued by ONGC to The Client remain outstanding for 7 days after the due date for the payment of the same. ONGC’s obligations under this agreement will be suspended until all outstanding monies are received in full. In the event Customer fails to make full payment by the Due Date, Customer also shall pay a late fee in the amount of the lesser of one and one-half percent (1 ½%) of the unpaid balance per month or the maximum lawful rate under applicable state law that shall accrue from the Due Date. Customer will not withhold payments that are not subject to a good faith dispute.
ONGC Systems will at all times use their best judgement in advising The Client of best value scenario. I.e. if a printer is out of its recommended life cycle or costing more due to exceeded print volumes, a representative will advise the relevant authorities within The Client as to best value option. This agreement will not cover ‘pirated’ or unauthorised software. Should any recommendations by ONGC not be acted upon by The Client, ONGC shall not be liable for any consequences of flow on effects to The Client systems or hardware.
ONGC may sell to Customer certain devices, including, but not limited to phones, routers, switches, and modems, etc. (“Purchased Devices”) for Customer’s use in conjunction with the Services. Full payment for Devices shall be due at the time of purchase. Purchased Devices shall be listed on a Purchase Agreement. Ownership of, and title to, the Purchased Devices shall transfer from ONGC to Customer at the time of sale. Customer will own and bear all risk of loss, theft, or damage.
ONGC makes no warranty as to the Devices (“Devices” includes both Purchased Devices and Rented Devices) either expressed or implied. All such warranties, including without limitation, the implied warranties of merchantability and fitness for a particular purpose, are expressly excluded. For devices that fail to operate in a manner to support the associated ONGC Service, ONGC will make all reasonable attempts in a timely fashion to provide assistance with repair or replacement with a like device., Expedited delivery services (E.g. Next Business Day Delivery) when available can be provided to a customer location for an additional charge when equipment is in stock either at ONGC or the equipment manufacturer. ONGC may also offer certain types of support pursuant to certain service plans if Customer elects to pay for and receive this additional Service, the terms and conditions for which are set forth in the applicable Service Agreement. Non-expedited shipping charges to return the device to the manufacturer will be the responsibility of client.
EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, THE PARTIES DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY. IN SOME INSTANCES, ONGC IS SUPPLYING DEVICES (PURCHASED DEVICES, RENTED DEVICES AND LEASED DEVICES &/or SOFTWARE) TO CUSTOMER NECESSARY FOR CUSTOMER TO RECEIVE THE SERVICES, ONGC IS NOT THE MANUFACTURER OF THE DEVICES OR SOFTWARE MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, DIRECTLY OR INDIRECTLY, EXPRESS OR IMPLIED, AS TO THE SUITABILITY, DURABILITY, FITNESS FOR USE, MERCHANTABILITY, CONDITION, QUALITY, PERFORMANCE, OR NON-INFRINGEMENT OF THE DEVICES OR SOFTWARE. WITH RESPECT TO ONGC, CUSTOMER’S PURCHASE OR LEASE OF THESE DEVICES IS “AS-IS.” PURCHASED DEVICES OR SOFTWARE SHALL BE SUBJECT TO ANY WARRANTIES PROVIDED TO CUSTOMER BY THE DEVICES OR SOFTWARE MANUFACTURER. MODIFICATIONS MAY VOID OR OTHERWISE LIMIT ANY WARRANTY APPLICABLE TO THE DEVICES. ONGC MAY PROVIDE ASSISTANCE WITH THE DEVICES, INCLUDING REPLACEMENT AND REPAIR, AT AN ADDITIONAL CHARGE. ONGC MAY OFFER AND CUSTOMER MAY ELECT TO PURCHASE A SERVICE PLAN FOR CERTAIN DEVICES. ONGC MAKES NO WARRANTIES WHATSOEVER AS TO THE COMPATIBILITY OF ITS SERVICES WITH EQUIPMENT, DEVICES OR SOFTWARE SUPPLIED BY CUSTOMER OR PURCHASED BY CUSTOMER FROM A VENDOR OTHER THAN ONGC.
The client declares that whilst this Agreement is in place no party other than recognised client staff and ONGC Systems and its servants and agents shall carry out or attempt to carry out any modification, experiment, maintenance or repair of the equipment or move the equipment from the location designated to some other location without ONGC Systems’ prior approval and advice. Relocation of equipment is to be advised to ONGC Systems by the user in writing. This agreement shall not impede any current relationships in place with existing suppliers for servicing and supply of copier and printing equipment. Additionally The Client is free to continue to utilise services of independent contractors in relation to existing and future data/telephony cabling requirements.
Should the client request the administration password or administrative access, then by ONGC providing such access to other users or external parties, ONGC no longer take responsibility for any data loss, system failures or any other faults by whatsoever cause.
Your agreement does NOT cover the following items:
- Any losses related to theft, vandalism, natural disaster or act of god.
- Any issues arising after direct or indirect operator misuse or unauthorised access, configuring, modifications or additions without previous written acceptance from ONGC Systems.
- Problems due to file damage caused by a computer virus or similar program.
- Any consequential losses, arising from non-performance of systems or services provided by ONGC Systems.
LIABILITY OF ONGC Systems
If a documented service request submitted by the client though the correct channels and acknowledged by ONGC is not attended to in the agreed time frames per the outlined schedule and agreed to by the client there will be a credit of 20% applied to the account for the future month.
ONGC Systems will exercise all care when dealing with the system at The Client and all reasonable measures will be undertaken to ensure continued operation with minimal downtime. ONGC Systems will not accept responsibility financial or otherwise for losses incurred by system downtime. In no event shall a Party that incurs liability for a Cause of Action be liable for any indirect or consequential loss or damage or loss of revenue, profits, goodwill, bargain or opportunities or loss or corruption of data or loss of anticipated savings incurred or suffered by the other Party whether caused by negligence or otherwise or whether or not the first Party was or should have been aware of the possibility of such loss or damage
ONGC Systems shall not be liable to compensate the Customer for any loss of anticipated profits, damages to the Customer or its reputation or goodwill, loss of expected future business, damages, costs, and expenses payable to the Customer or to any third party or any other indirect or consequential losses. ONGC Systems shall have no liability for destruction or damage to the Customer’s data. The Customer agrees to keep a copy of all data access to which shall be denied to ONGC Systems its employees or agents.
In this clause, Cause of Action means a breach of this Services Agreement or any other common law or equitable statutory cause of action arising out of the operation of this Services Agreement. This clause survives the expiry or termination of this Services Agreement.
ONGC Systems’ liability for any breach of this agreement shall be limited to the supply of the relevant service or the payment of the cost associated to have a third party provide the relevant service again, no payments will be made without written consent from ONGC.
ONGC Systems shall use commercially reasonable efforts to maintain the clients technology infrastructure covered under this agreement. ONGC Systems will use its best endeavours to promptly and efficiently carry out the maintenance functions herein provided for, but notwithstanding and breach of or failure by ONGC Systems to perform any of its obligations to the User, or any negligence on the part of ONGC Systems, its employees, agents or contractors, ONGC Systems shall in no event be liable for or in respect of any loss of use of equipment, loss of data or loss of profits howsoever arising or any special, indirect or consequential damage suffered by the User howsoever arising. ONGC shall have the right, but not the obligation, to monitor and record oral communications with the Customer regarding Customer’s account or Services for the purpose of service quality assurance.
Notwithstanding any other provision of this agreement, neither party will be liable for any failure to fulfill any term of the Agreement if such fulfillment is delayed, prevented, restricted or interfered with for any reason outside that party’s control, including without limitation any act of terrorism, Denial of Service (DOS) or Distributed Denial of Service (DDOS) attack, third party provider outages, cable cuts, acts of god, inclement weather, failure or shortage of power supplies, floods, drought, fire, lightning strike, lock-out, trade dispute or labour disturbance, state or national emergencies, riots, wars, any act or omission of any governmental agency, highways or authorities. .The party unable to perform its obligations must: notify the other party promptly of any delay; and use its best efforts to resume performance in accordance with the Agreement as soon as possible.
If any event referred to in this clause continues for more than 1 month, then the Agreement may be terminated forthwith by either party giving notice to the other party.
Any upgrades and/or installations that under previous operations have required third parties to come in complete tasks at their standard rate will remain in the same, with ONGC Systems given first & final opportunity to provide this service. The Client may utilise the time of the consultant simultaneous to that of ONGC Systems outside staff after providing ONGC with sufficient cause as to why such upgrade or installation could not be completed by ONGC. Please note any additions or modifications will incur addition costs beyond the coverage of this agreement.
ONGC Systems is to provide a skilled and competent staff member to attend and maintain the Client site, for the duration of the agreement, or any variation or extension there to. It is expected that this person will adequately perform the duties as listed above. Should The Client feel that this is not being achieved they may lodge a complaint in writing to ONGC Systems. ONGC Systems will then have fourteen days to respond to the highlighted issues with the client in order to rectify the alleged professional deficiencies. Should this fail 3rd party arbitration may be required to fully assess the claim. Both parties shall agree on an independent arbitrator.
The Client shall nominate an Authorised Representative to be available to liaise with, and respond to queries from, ONGC’s Authorised Representative (for example, as to the resolution of conflicting priorities between two or more items of support or maintenance).
ONGC may assign or novate the Agreement to a related body corporate without consent. The client will not unreasonably withhold your consent to any other assignment or novation. ONGC may subcontract all or any part of the Service. This Agreement is governed by, and must be construed in accordance with the laws of the State of Queensland. Notices may be served on the parties at the addresses specified in the Agreement. The client may not directly or indirectly reproduce duplicate, copy, sell, provision, resell, rent, lend, pledge, transfer, distribute or exploit any portion of the Services without ONGC’s prior written consent
ONGC Systems has strict rules about the independence of its professional staff, particularly in respect of investments in client organisations. Staff involved in assignments with client organisations may be precluded from having any personal financial dealings with that organisation. In accordance with customary practice, we will require that you do not approach any member of ONGC Systems staff to offer them any form of employment, (casual, part-time, permanent or contract). Failure to observe this may result in The Client reimbursing ONGC Systems all costs in relation to refilling the position and any lost revenue.
In the event that ONGC is requested to provide additional administrational resources to manage the account which is in addition to the standard commercial administrative practice, the client will be billed in line with the standard time allowances which are allocated against the chosen agreement.
ONGC utilises current social media technologies as an information dissemination tool for our clients. Our Facebook page, found at: (https://www.facebook.com/ongcsystems) provides immediate and relevant technology updates to our clients. As an undertaking this agreement THE CLIENT acknowledges that they will provide a key staff member, social media manager or THE CLIENT‘s own Facebook page to ‘Like’ the ONGC page in order to receive these immediate updates
No addition, amendment or modification to these Terms and Conditions shall be effective unless it is in writing and signed by both Parties to this Agreement.
Client logs job with ONGC Systems in either of two ways:
Calling ONGC Systems reception on 07 5594 0099 or email: firstname.lastname@example.org/backup. If you require priority support after hours please obtain the Priority Support number from one of our representatives. Penalty rates apply. Priority Support either within or outside of office hours will only be provided whilst a current agreement is in place and all related invoices are settled within the set terms.