Features & Terms and Conditions

  • Can include a public IP address for remote management and connectivity in the event of failover.
  • Used for failover only – not to be used or configured for load balance or primary connection
  • Only used on niss.au -approved routers
  • Requires an in-place and maintained existing primary internet connection
  • Paid monthly via direct debit
  • Minimum 30 days notice for cancellation
  • Subject to Fair Use
    • Excess data charges may be incurred for extended or reoccurring outages
  • Emergency installations during an outage encores $90 activation charge
  • Requires acceptance of niss.au /standard  terms and conditions
  • Installation, setup services, router configuration and Support Services charged for at NISS standard
    hourly rates
  • We recommend Peplink Routers that include inbuilt SIM cards
                    

Benefits:[1]


·         $0 upfront costs

·         $0 configuration and installation costs

·         Business Network Continuity [2]

·         Remote manageability

·         Fast Deployment

·         Lifetime warranty

·         Remote Monitoring

·         No hidden costs

·         Equipment may be retained at the end of the service term


 

Notes

1)      Enterprise-grade equipment. niss.au primary network equipment hardware supplier is Peplink[3]:

a)       Routers include LTE/5G failover internet connection

b)      Speed Fusion Bonding[4] and WAN smoothing[5]

c)       Live 24/7 Monitoring

d)      Advance Replacement Warranty

e)      Software and firmware updates including new features, security updates, and bug fixes

f)        Network device functionality

2)      Committed Service Terms require consecutive monthly service payments for the entire committed service term agreed upon at purchase. If service is cancelled prior to the end of the Committed Service Term, a lump sum payment for the remaining service term will be due immediately.

3)      Router WAN ports must be connected to a full-time primary Internet connection and used within the Terms & Conditions. LTE/5G failover service is supplied on a LTE/5G Network and is subject to limitations and interruptions from location, atmospheric, topographical or environmental conditions or activities affecting wireless service operations. Wireless service and/or features may not be available in all areas.


[1] Requires active service subscription

[2] Routers with LTE\5G failover

[3] niss.au may change network equipment suppliers as required

[4] Requires Multiple WAN Links

[5] Additional data usage charges apply

 


                    

Microsoft Customer Agreement

This Microsoft Customer Agreement (the “Agreement”) is between Customer and Microsoft and consists of these General Terms, the applicable Use Rights and SLAs, and any additional terms Microsoft presents when an order is placed. This Agreement takes effect when the Customer accepts these General Terms. The individual who accepts these General Terms represents that he or she is authorized to enter into this Agreement on behalf of the Customer.

General Terms

These General Terms apply to all of Customer’s orders under this Agreement. Capitalized terms have the meanings given under “Definitions.”

License to use Microsoft Products

a.     License grant. Products are licensed and not sold. Upon Microsoft’s acceptance of each order and subject to Customer’s compliance with this Agreement, Microsoft grants Customer a nonexclusive and limited license to use the Products ordered as provided in the applicable Use Rights and this Agreement. These licenses are solely for Customer’s own use and business purposes and are nontransferable except as expressly permitted under this Agreement or applicable law.

b.    Duration of licenses. Licenses granted on a subscription basis expire at the end of the applicable subscription period unless renewed. Licenses granted for metered Products billed periodically based on usage continue as long as Customer continues to pay for its usage of the Product. All other licenses become perpetual upon payment in full.

c.     Applicable Use Rights. For perpetual licenses, the Use Rights in effect when Customer orders a Product will apply. For subscriptions, the Use Rights in effect at the start of each subscription period will apply. Customers with subscriptions for Software may use new versions released during the subscription period subject to the Use Rights in effect when those versions are released. For metered Products billed periodically based on usage, the Use Rights in effect at the start of each billing period will apply during that period. Microsoft may update the Use Rights periodically, but material adverse changes for a particular version will not apply during the applicable license, subscription, or billing period.

d.    End Users. Customer will control access to and use of the Products by End Users and is responsible for any use of the Products that does not comply with this Agreement.

e.     Affiliates. Customer may order Products for use by its Affiliates. If it does, the licenses granted to Customer under this Agreement will apply to such Affiliates, but Customer will have the sole right to enforce this Agreement against Microsoft. Customer will remain responsible for all obligations under this Agreement and for its Affiliates’ compliance with this Agreement.

f.     Reservation of Rights. Microsoft reserves all rights not expressly granted in this Agreement. Products are protected by copyright and other intellectual property laws and international treaties. No rights will be granted or implied by waiver or estoppel. Rights to access or use a Product on a device do not give Customer any right to implement Microsoft patents or other Microsoft intellectual property in the device itself or in any other software or devices.

g.    Restrictions. Except as expressly permitted in this Agreement or Product documentation, Customer must not (and is not licensed to):

(1)   reverse engineer, decompile, or disassemble any Product, or attempt to do so;

(2)   install or use non-Microsoft software or technology in any way that would subject Microsoft’s intellectual property or technology to any other license terms;

(3)   work around any technical limitations in a Product or restrictions in Product documentation;

(4)   separate and run parts of a Product on more than one device;

(5)   upgrade or downgrade parts of a Product at different times;

(6)   transfer parts of a Product separately; or

(7)   distribute, sublicense, rent, lease, or lend any Products, in whole or in part, or use them to offer hosting services to a third party.

h.    License transfers. Customer may only transfer fully-paid, perpetual licenses to (1) an Affiliate or (2) a third party solely in connection with the transfer of hardware to which, or employees to whom, the licenses have been assigned as part of (a) a divestiture of all or part of an Affiliate or (b) a merger involving Customer or an Affiliate. Upon such transfer, Customer must uninstall and discontinue using the licensed Product and render any copies unusable. Customer must notify Microsoft of a License transfer and provide the transferee a copy of these General Terms, the applicable Use Rights and any other documents necessary to show the scope, purpose and limitations of the licenses transferred. Attempted license transfers that do not comply with this section are void.

i.      Customer Eligibility. Customer agrees that if it is purchasing academic, government or nonprofit offers, Customer meets the respective eligibility requirements (https://aka.ms/eligiblitydefinition). Microsoft reserves the right to verify eligibility and suspend product use if requirements are not met.

Non-Microsoft Products. 

Non-Microsoft Products are provided under separate terms by the Publishers of such products.  Customer will have an opportunity to review those terms prior to placing an order for a Non-Microsoft Product through a Microsoft online store or Online Service. Microsoft is not a party to the terms between Customer and the Publisher.  Microsoft may provide Customer’s contact information and transaction details to the Publisher.  Microsoft makes no warranties and assumes no responsibility or liability whatsoever for Non-Microsoft Products. Customer is solely responsible for its use of any Non-Microsoft Product.

 

Verifying compliance.

Customer must keep records relating to Products it and its Affiliates use or distribute. At Microsoft’s expense, Microsoft may verify Customer’s and its Affiliates’ compliance with this Agreement at any time upon 30 days’ notice. To do so, Microsoft may engage an independent auditor (under nondisclosure obligations) or ask Customer to complete a self-audit process. Customer must promptly provide any information and documents that Microsoft or the auditor reasonably requests related to the verification and access to systems running the Products. If verification or self-audit reveals any unlicensed use, Customer must, within 30 days, order sufficient licenses to cover the period of its unlicensed use. Without limiting Microsoft’s other remedies, if unlicensed use is 5% or more of Customer’s total use of all Products, Customer must reimburse Microsoft for its costs incurred in verification and acquire sufficient licenses to cover its unlicensed use at 125% of the then-current Customer price or the maximum allowed under applicable law, if less. All information and reports related to the verification process will be Confidential Information and used solely to verify compliance. 

 

Privacy.

a.     Personal Data. Customer consents to the processing of Personal Data by Microsoft and its Affiliates, and their respective agents and subcontractors, as provided in this Agreement. Before providing Personal Data to Microsoft, Customer will obtain all required consents from third parties (including Customer’s contacts, Partners, distributors, administrators, and employees) under applicable privacy and data protection laws.

b.    Location of Personal Data. To the extent permitted by applicable law, Personal Data collected under this Agreement may be transferred, stored and processed in the United States or any other country in which Microsoft or its Affiliates, or their respective agents and subcontractors, maintain facilities. Microsoft will abide by the requirements of European Economic Area and Swiss data protection law regarding the collection, use, transfer, retention, and other processing of Personal Data from the European Economic Area and Switzerland.

 

Confidentiality.

a.     Confidential Information.  “Confidential Information” is non-public information that is designated “confidential” or that a reasonable person should understand is confidential, including, but not limited to, Customer Data, the terms of this Agreement, and Customer’s account authentication credentials. Confidential Information does not include information that (1) becomes publicly available without a breach of a confidentiality obligation; (2) the receiving party received lawfully from another source without a confidentiality obligation; (3) is independently developed; or (4) is a comment or suggestion volunteered about the other party’s business, products or services.

b.    Protection of Confidential Information.  Each party will take reasonable steps to protect the other’s Confidential Information and will use the other party’s Confidential Information only for purposes of the parties’ business relationship. Neither party will disclose Confidential Information to third parties, except to its Representatives, and then only on a need-to-know basis under nondisclosure obligations at least as protective as this Agreement. Each party remains responsible for the use of Confidential Information by its Representatives and, in the event of discovery of any unauthorized use or disclosure, must promptly notify the other party. The Online Services Terms may provide additional terms regarding the disclosure and use of Customer Data.

c.     Disclosure required by law. A party may disclose the other’s Confidential Information if required by law, but only after it notifies the other party (if legally permissible) to enable the other party to seek a protective order.

d.    Residual information.  Neither party is required to restrict work assignments of its Representatives who have had access to Confidential Information. Each party agrees that the use of information retained in Representatives’ unaided memories in the development or deployment of the parties’ respective products or services does not create liability under this Agreement or trade secret law, and each party agrees to limit what it discloses to the other accordingly.

e.     Duration of Confidentiality obligation.  These obligations apply (1) for Customer Data, until it is deleted from the Online Services; and (2) for all other Confidential Information, for a period of five years after a party receives the Confidential Information.

 

Product warranties.

a.     Limited warranties and remedies.

(1)  Online Services.  Microsoft warrants that each Online Service will perform in accordance with the applicable SLA during Customer’s use. Customer’s remedies for breach of this warranty are described in the SLA.

(2)  Software.  Microsoft warrants that the Software version that is current at the time will perform substantially as described in the applicable Product documentation for one year from the date Customer acquires a license for that version. If it does not, and Customer notifies Microsoft within the warranty term, Microsoft will, at its option, (a) return the price Customer paid for the Software license or (b) repair or replace the Software.

The remedies above are Customer’s sole remedies for breach of the warranties in this section. Customer waives any warranty claims not made during the warranty period.

b.    Exclusions.  The warranties in this Agreement do not apply to problems caused by accident, abuse, or use inconsistent with this Agreement, including failure to meet minimum system requirements. These warranties do not apply to free, trial, preview, or prerelease products, or to components of Products that Customer is permitted to redistribute.

c.     Disclaimer.  Except for the limited warranties above and subject to applicable law, Microsoft provides no other warranties or conditions for Products and disclaims any other express, implied or statutory warranties for Products, including warranties of quality, title, non-infringement, merchantability, and fitness for a particular purpose.

d.    Consumer remedies.  Notwithstanding anything in this Agreement, consumers may have the benefit of certain rights or remedies pursuant to the Competition and Consumer Act 2010 (Cth) and similar state and territory laws in Australia in respect of which liability may not be excluded. If so, then to the maximum extent permitted by law, such liability is limited, at Microsoft’s option, in the case of goods, to either (1) replacement of the goods or (2) correction of defects in the goods.  Australian law requires us to notify consumer purchasers of Microsoft goods that: Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.

 

Defense of third-party claims.

The parties will defend each other against the third-party claims described in this section and will pay the amount of any resulting adverse final judgment or approved settlement, but only if the defending party is promptly notified in writing of the claim and has the right to control the defense and any settlement of it. The party being defended must provide the defending party with all requested assistance, information, and authority. The defending party will reimburse the other party for reasonable out-of-pocket expenses it incurs in providing assistance. This section describes the parties’ sole remedies and entire liability for such claims.

a.     By Microsoft. Microsoft will defend Customer against any third-party claim to the extent it alleges that a Product made available by Microsoft for a fee and used within the scope of the license granted under this Agreement (unmodified from the form provided by Microsoft and not combined with anything else), misappropriates a trade secret or directly infringes a patent, copyright, trademark, or other proprietary right of a third party. If Microsoft is unable to resolve a claim of misappropriation or infringement, it may, at its option, either (1) modify or replace the Product with a functional equivalent or (2) terminate Customer’s license and refund any license fees (less depreciation for perpetual licenses), including amounts paid in advance for unused consumption for any usage period after the termination date. Microsoft will not be liable for any claims or damages due to Customer’s continued use of a Product after being notified to stop due to a third-party claim.

b.    By Customer. To the extent permitted by applicable law, Customer will defend Microsoft and its Affiliates against any third-party claim to the extent it alleges that: (1) any Customer Data or Non-Microsoft Product hosted in an Online Service by Microsoft on Customer's behalf misappropriates a trade secret or directly infringes a patent, copyright, trademark, or other proprietary right of a third party; or (2) Customer’s use of any Product, alone or in combination with anything else, violates the law or harms a third party.

Limitation of liability.

For each Product, each party’s maximum, aggregate liability to the other under this Agreement is limited to direct damages finally awarded in an amount not to exceed the amounts Customer was required to pay for the Products during the term of the applicable licenses, subject to the following:

a.     Subscriptions.  For Products ordered on a subscription basis, Microsoft’s maximum liability to Customer for any incident giving rise to a claim will not exceed the amount Customer paid for the Product during the 12 months before the incident.

b.    Free Products and distributable code.  For Products provided free of charge and code that Customer is authorized to redistribute to third parties without separate payment to Microsoft, Microsoft’s liability is limited to direct damages finally awarded up to US$5,000.

c.     Exclusions.  In no event will either party be liable for indirect, incidental, special, punitive, or consequential damages, or loss of use, loss of profits, or interruption of business, however caused or on any theory of liability.

d.    Exceptions.  No limitation or exclusions will apply to liability arising out of either party’s (1) confidentiality obligations (except for liability related to Customer Data, which will remain subject to the limitations and exclusions above); (2) defense obligations; or (3) violation of the other party’s intellectual property rights.

 

Partners.

a.     Selecting a Partner. Customer may authorize a Partner to place orders on Customer’s behalf and manage Customer’s purchases by associating the Partner with its account. If the Partner’s distribution right is terminated, Customer must select an authorized replacement Partner or purchase directly from Microsoft. Partners and other third parties are not agents of Microsoft and are not authorized to enter into any agreement with Customer on behalf of Microsoft.

b.    Partner Administrator privileges and access to Customer Data. If Customer purchases Online Services from a Partner or chooses to provide a Partner with administrator privileges, that Partner will be the primary administrator of the Online Services and will have administrative privileges and access to Customer Data and Administrator Data. Customer consents to Microsoft and its Affiliates providing the Partner with Customer Data and Administrator Data for purposes of provisioning, administering and supporting (as applicable) the Online Services. Partner may process such data according to the terms of Partner’s agreement with Customer, and its privacy commitments may differ from Microsoft’s. Customer appoints Partner as its agent for purposes of providing and receiving notices and other communications to and from Microsoft. Customer may terminate the Partner’s administrative privileges at any time.

c.     Support and Professional Services. Customer’s Partner will provide details on support services available for Products purchased under this agreement. Support services may be performed by Partner or its designee, which in some cases may be Microsoft. If Customer purchases Professional Services under this agreement, the performance of those Professional Services will be subject to the terms and conditions in the Use Rights.

Pricing and payment.

If Customer orders from a Partner, the Partner will set Customer’s pricing and payment terms for that order, and Customer will pay the amount due to the Partner.  Pricing and payment terms related to orders placed by Customer directly with Microsoft are set by Microsoft, and Customer will pay the amount due as described in this section.

a.     Payment method. Customer must provide a payment method or, if eligible, choose to be invoiced for purchases made on its account. By providing Microsoft with a payment method, Customer (1) consents to Microsoft’s use of account information regarding the selected payment method provided by the issuing bank or applicable payment network; (2) represents that it is authorized to use that payment method and that any payment information it provides is true and accurate; (3) represents that the payment method was established and is used primarily for commercial purposes and not for personal, family or household use; and (4) authorizes Microsoft to charge Customer using that payment method for orders under this Agreement.

b.    Invoices. Microsoft may invoice eligible Customers. Customer’s ability to elect payment by invoice is subject to Microsoft’s approval of Customer’s financial condition. Customer authorizes Microsoft to obtain information about Customer’s financial condition, which may include credit reports, to assess Customer’s eligibility for invoicing. Unless the Customer’s financial statements are publicly available, Customer may be required to provide their balance sheet, profit and loss and cash flow statements to Microsoft. Customer may be required to provide security in a form acceptable to Microsoft to be eligible for invoicing. Microsoft may withdraw Customer’s eligibility at any time and for any reason. Customer must promptly notify Microsoft of any changes in its company name or location and of any significant changes in the ownership, structure, or operational activities of the organization.

c.     Invoice Payment terms. Each invoice will identify the amounts payable by Customer to Microsoft for the period corresponding to the invoice. Customer will pay all amounts due within thirty (30) calendar days following the invoice date.

d.    Late Payment. Microsoft may, at its option, assess a late fee on any payments to Microsoft that are more than fifteen (15) calendar days past due at a rate of two percent (2%) of the total amount payable, calculated and payable monthly, or the highest amount allowed by law, if less.

e.     Cancellation fee. If a subscription permits early termination and Customer cancels the subscription before the end of the subscription or billing period, Customer may be charged a cancellation fee.

f.     Recurring Payments. For subscriptions that renew automatically, Customer authorizes Microsoft to charge Customer’s payment method periodically for each subscription or billing period until the subscription is terminated. By authorizing recurring payments, Customer authorizes Microsoft to process such payments as either electronic debits or fund transfers, or as electronic drafts from the designated bank account (in the case of Automated Clearing House or similar debits), as charges to the designated card account (in the case of credit card or similar payments) (collectively, “Electronic Payments”). If any payment is returned unpaid or if any credit card or similar transaction is rejected or denied, Microsoft or its service providers reserve the right to collect any applicable return item, rejection or insufficient funds fee to the maximum extent permitted by applicable law and to process any such fees as an Electronic Payment or to invoice Customer for the amount due.

g.    Taxes.Microsoft prices exclude applicable taxes unless identified as tax inclusive. If any amounts are to be paid to Microsoft, Customer shall also pay any applicable value added, goods and services, sales, gross receipts, or other transaction taxes, fees, charges, or surcharges, or any regulatory cost recovery surcharges or similar amounts that are owed under this Agreement and that Microsoft is permitted to collect from Customer. Customer shall be responsible for any applicable stamp taxes and for all other taxes that it is legally obligated to pay including any taxes that arise on the distribution or provision of Products by Customer to its Affiliates. Microsoft shall be responsible for all taxes based upon its net income, gross receipts taxes imposed in lieu of taxes on income or profits, and taxes on its property ownership.

If any taxes are required to be withheld on payments invoiced by Microsoft, Customer may deduct such taxes from the amount owed and pay them to the appropriate taxing authority, but only if Customer promptly provides Microsoft an official receipt for those withholdings and other documents reasonably requested to allow Microsoft to claim a foreign tax credit or refund. Customer will ensure that any taxes withheld are minimized to the extent possible under applicable law.

Term and termination.

a.     Term. This Agreement is effective until terminated by a party, as described below.

b.    Termination without cause. Either party may terminate this Agreement without cause on 60 days’ notice. Termination without cause will not affect Customer’s perpetual licenses, and licenses granted on a subscription basis will continue for the duration of the subscription period(s), subject to the terms of this Agreement.

c.     Termination for cause. Without limiting other remedies it may have, either party may terminate this Agreement on 30 days’ notice for material breach if the other party fails to cure the breach within the 30-day notice period. Upon such termination, the following will apply:

(1)   All licenses granted under this Agreement will terminate immediately except for fully-paid, perpetual licenses.

(2)   All amounts due under any unpaid invoices shall become due and payable immediately. For metered Products billed periodically based on usage, Customer must immediately pay for unpaid usage as of the termination date.

(3)   If Microsoft is in breach, Customer will receive a credit for any subscription fees, including amounts paid in advance for unused consumption for any usage period after the termination date.

d.    Suspension. Microsoft may suspend use of an Online Service without terminating this Agreement during any period of material breach. Microsoft will give Customer notice before suspending an Online Service when reasonable.

e.     Termination for regulatory reasons. Microsoft may modify, discontinue, or terminate a Product in any country or jurisdiction where there is any current or future government regulation, obligation, or other requirement, that (1) is not generally applicable to businesses operating there; (2) presents a hardship for Microsoft to continue offering the Product without modification; or (3) causes Microsoft to believe these terms or the Product may conflict with any such regulation, obligation, or requirement. If Microsoft terminates a subscription for regulatory reasons, Customer will receive, as its sole remedy, a credit for any subscription fees, including amounts paid in advance for unused consumption for any usage period after the termination date.

Supply Terms

a.     Appointment as supplier. Some Products are distributed in certain countries by Microsoft Regional Sales Pte Ltd (“MRS”). Customer appoints MRS as the supplier of all such Products ordered directly from Microsoft under this Agreement. MRS is authorized by Microsoft to determine pricing and payment terms, place orders on behalf of Customer under the Agreement, and invoice Customer for the applicable Products (if Customer is eligible for invoicing). The terms of the Agreement will apply to each order. MRS has no obligations with respect to an order until Microsoft accepts it. MRS does not have authority to bind or impose any obligation or liability on the Microsoft entity that is a party to the Agreement.

b.    Invoicing and payment. MRS is the intended third-party beneficiary of Microsoft’s right to receive payment under this Agreement for the Products it distributes. If Customer is eligible for invoicing, MRS will send invoices to the billing contact identified on Customer’s account, and Customer must pay the amount due to MRS according to the payment terms on the invoice and in the Agreement. Customer’s failure to make any payment to MRS by the required date will constitute a material breach of the Agreement. In the event Microsoft terminates the Agreement for cause, all amounts due under any unpaid invoices shall become due and payable immediately.

Miscellaneous.

a.     Independent contractors. The parties are independent contractors. Customer and Microsoft each may develop products independently without using the other’s Confidential Information.

b.    Agreement not exclusive. Customer is free to enter into agreements to license, use, and promote the products and services of others.

c.     Amendments. Microsoft may modify this Agreement from time to time. Changes to the Use Rights will apply as provided in this Agreement. Changes to other terms will not apply until Customer accepts them. Microsoft may require Customer to accept revised or additional terms before processing a new order. Any additional or conflicting terms and conditions contained in a purchase order or otherwise presented by Customer are expressly rejected and will not apply.

d.    Assignment. Either party may assign this Agreement to an Affiliate, but it must notify the other party in writing of the assignment. Customer consents to the assignment to an Affiliate or third party, without prior notice, of any rights Microsoft may have under this Agreement to receive payment and enforce Customer's payment obligations, and all assignees may further assign such rights without further consent. Any other proposed assignment of this Agreement must be approved by the non-assigning party in writing. Assignment will not relieve the assigning party of its obligations under the assigned Agreement. Any attempted assignment without required approval will be void.

e.     U.S. export. Products are subject to U.S. export jurisdiction. Customer must comply with all applicable international and national laws, including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and end-user, end use and destination restrictions by U.S. and other governments related to Microsoft products, services, and technologies.

f.     Severability. If any part of this Agreement is held to be unenforceable, the rest of the Agreement will remain in full force and effect.

g.    Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver. Any waiver must be in writing and signed by the waiving party.

h.    No third-party beneficiaries. This Agreement does not create any third-party beneficiary rights except as expressly provided by its terms.

i.      Survival. All provisions survive termination of this Agreement except those requiring performance only during the term of the Agreement.

j.      Notices. Notices must be in writing and will be treated as delivered on the date received at the address, date shown on the return receipt, email transmission date, or date on the courier or fax confirmation of delivery. Notices to Microsoft must be sent to the following address:

Microsoft Operations Ireland Limited

c/o Microsoft Operations Pte Ltd

Dept. 551, Volume Licensing

182 Cecil Street

#13-01 Frasers Tower

Singapore 069547

Republic of Singapore

Notices to Customer will be sent to the individual at the address Customer identifies on its account as its contact for notices. Microsoft may send notices and other information to Customer by email or other electronic form.

k.     Applicable law. This Agreement will be governed by and construed in accordance with the laws of Ireland. The 1980 United Nations Convention on Contracts for the International Sale of Goods and its related instruments will not apply to this Agreement.

l.      Dispute resolution. When bringing any action arising under this Agreement, the parties agree to the following exclusive venues:

(1)  If Microsoft brings the action, the venue will be where Customer has its headquarters.

(2)  If Customer brings the action against Microsoft or any Microsoft Affiliate located outside of Europe, the venue will be the state or federal courts in King County, State of Washington, USA.

(3)  If Customer brings the action against Microsoft or any Microsoft Affiliate located in Europe, and not also against Microsoft or a Microsoft Affiliate located outside of Europe, the venue will be the Republic of Ireland.

The parties consent to personal jurisdiction in the agreed venue. This choice of venue does not prevent either party from seeking injunctive relief in any jurisdiction with respect to a violation of intellectual property rights or confidentiality obligations.

m.   Order of precedence. These General Terms will take precedence over any conflicting terms in other documents that are part of this Agreement that are not expressly resolved in those documents, except that conflicting terms in the Use Rights take precedence over these General Terms as to the applicable Products. Terms in the Online Services Terms take precedence over conflicting terms in the Product Terms. Terms in an amendment control over the amended document and any prior amendments concerning the same subject matter.

n.    Microsoft Affiliates and contractors. Microsoft may perform its obligations under this Agreement through its Affiliates and use contractors to provide certain services. Microsoft remains responsible for their performance.

o.    Government procurement rules. By accepting this agreement, Customer represents and warrants that (i) it has complied and will comply with all applicable government procurement laws and regulations; (ii) it is authorized to enter into this Agreement; and (iii) this Agreement satisfies all applicable procurement requirements.

Definitions.

“Administrator Data” means the information provided to Microsoft or its Affiliates during sign-up, purchase, or administration of Products.

“Affiliate” means any legal entity that controls, is controlled by, or is under common control with a party. “Control” means ownership of more than a 50% interest of voting securities in an entity or the power to direct the management and policies of an entity.

“Confidential Information” is defined in the “Confidentiality” section.

“Customer” means the entity identified as such on the account associated with this Agreement.

“Customer Data” means all data, including all text, sound, software, image or video files that are provided to Microsoft or its Affiliates by, or on behalf of, Customer and its Affiliates through use of Online Services.

“End User” means any person Customer permits to use a Product or access Customer Data.

“Licensing Site” means http://www.microsoft.com/licensing/contracts or a successor site.

“Microsoft” means Microsoft Ireland Operations Limited.

“Non-Microsoft Product” means any third-party-branded software, data, service, website or product, unless incorporated by Microsoft in a Product.

“Online Services” means Microsoft-hosted services to which Customer subscribes under this Agreement. It does not include software and services provided under separate license terms.

“Online Services Terms” means the additional terms that apply to Customer’s use of Online Services published on the Licensing Site and updated from time to time.

“Partner” means a company Microsoft has authorized to distribute Products to Customer.

“Personal Data” means any information relating to an identified or identifiable natural person.

“Product” means all Software and Online Services identified in the Product Terms that Microsoft offers under this Agreement, including previews, prerelease versions, updates, patches and bug fixes from Microsoft. Product availability may vary by region. “Product” does not include Non-Microsoft Products.

“Product Terms” means the document that provides information about Products available under this Agreement. The Product Terms document is published on the Licensing Site and is updated from time to time.

“Publisher” means a provider of a Non-Microsoft Product.

“Representatives” means a party’s employees, Affiliates, contractors, advisors and consultants.

“SLA” means Service Level Agreement, which specifies the minimum service level for the Online Services and is published on the Licensing Site.

“Software” means licensed copies of Microsoft software identified in the Product Terms. Software does not include Online Services, but Software may be part of an Online Service.

“use” means to copy, download, install, run, access, display, use or otherwise interact with.

“Use Rights” means the license terms and terms of service for each Product published on the Licensing Site and updated from time to time. The Use Rights supersede the terms of any end user license agreement that accompanies a Product. License terms for all Products are published in the Product Terms. Terms of service for Online Services are published in the Online Services Terms.

Purchase Agreement with the “Microsoft Sales Affiliate” ( )

Certain Products are offered by a local Microsoft Sales Affiliate that Microsoft has authorized to distribute such Products. If a Customer orders those Products directly from Microsoft, the Microsoft Sales Affiliate will be the seller.  By submitting the order, Customer is deemed to have accepted the terms offered by the Microsoft Sales Affiliate named above, forming a separate agreement with such Microsoft Sales Affiliate to purchase the Products (the “Purchase Agreement”).  The Purchase Agreement consists of all applicable terms of this Agreement, modified as follows:

a.     Licensing terms excluded.  All terms pertaining solely to licensing and support of such Products are deemed excluded.  Microsoft is the licensor of all Products, and the Agreement with Microsoft will continue to apply to any Products ordered from a Microsoft Sales Affiliate.  Microsoft Sales Affiliate does not have authority to bind or impose any obligation or liability on any other Microsoft entity.

b.    Pricing and payment.  Microsoft Sales Affiliate will determine pricing for the applicable Products.  All terms pertaining to pricing and payment apply to the Purchase Agreement. If Customer is eligible for invoicing, Microsoft Sales Affiliate will send invoices to the billing contact identified on Customer’s account (with taxes added where applicable), and Customer must pay the amount due to Microsoft Sales Affiliate according to the payment instructions on the invoice. Customer’s failure to make any payment due to Microsoft Sales Affiliate by the required date will constitute a material breach of both the Purchase Agreement and the Agreement with Microsoft. In the event Microsoft terminates the Agreement for cause, all amounts due under any unpaid invoices shall become due and payable to Microsoft Sales Affiliate immediately.

c.     Warranties, defense, and limitations of liability. All warranties, obligations to defend against third-party claims and limitations of liability shall also apply to claims under the Purchase Agreement. Microsoft, as licensor, is solely responsible for claims relating to the performance of Products and defense of third-party claims (including claims of intellectual property infringement).  Microsoft Sales Affiliate is not liable for such claims and, to the maximum extent permitted by applicable law, expressly disclaims all express, implied and statutory warranties and liability for such claims, including, without limitation, warranties of quality, title, non-infringement, merchantability, and fitness for a particular purpose.

d.    Applicable law. The applicable law will be that of the jurisdiction where the Microsoft Sales Affiliate has its headquarters.

e.     Additional terms.  Any additional terms that Microsoft Sales Affiliate presents in connection with an order are deemed included.  Any additional or conflicting terms and conditions contained in a purchase order or otherwise presented by Customer are expressly rejected and will not apply.

Microsoft Customer Agreement

This Microsoft Customer Agreement (the “Agreement”) is between Customer and Microsoft and consists of these General Terms, the applicable Use Rights and SLAs, and any additional terms Microsoft presents when an order is placed. This Agreement takes effect when the Customer accepts these General Terms. The individual who accepts these General Terms represents that he or she is authorized to enter into this Agreement on behalf of the Customer.

General Terms

These General Terms apply to all of Customer’s orders under this Agreement. Capitalized terms have the meanings given under “Definitions.”

FOR INDIVIDUAL USERS, ADDITIONAL TERMS UNDER “SUPPLEMENTAL INDIVIDUAL USER TERMS” APPLY.

License to use Microsoft Products

a.     License grant. Products are licensed and not sold. Upon Microsoft’s acceptance of each order and subject to Customer’s compliance with this Agreement, Microsoft grants Customer a nonexclusive and limited license to use the Products ordered as provided in the applicable Use Rights and this Agreement. These licenses are solely for Customer’s own use and business purposes and are nontransferable except as expressly permitted under this Agreement or applicable law.

b.    Duration of licenses. Licenses granted on a subscription basis expire at the end of the applicable subscription period unless renewed. Licenses granted for metered Products billed periodically based on usage continue as long as Customer continues to pay for its usage of the Product. All other licenses become perpetual upon payment in full.

c.     Applicable Use Rights. For perpetual licenses, the Use Rights in effect when Customer orders a Product will apply. For subscriptions, the Use Rights in effect at the start of each subscription period will apply. Customers with subscriptions for Software may use new versions released during the subscription period subject to the Use Rights in effect when those versions are released. For metered Products billed periodically based on usage, the Use Rights in effect at the start of each billing period will apply during that period. Microsoft may update the Use Rights periodically, but material adverse changes for a particular version will not apply during the applicable license, subscription, or billing period.

d.    End Users. Customer will control access to and use of the Products by End Users and is responsible for any use of the Products that does not comply with this Agreement.

e.     Affiliates. Customer may order Products for use by its Affiliates. If it does, the licenses granted to Customer under this Agreement will apply to such Affiliates, but Customer will have the sole right to enforce this Agreement against Microsoft. Customer will remain responsible for all obligations under this Agreement and for its Affiliates’ compliance with this Agreement.

f.     Reservation of Rights. Microsoft reserves all rights not expressly granted in this Agreement. Products are protected by copyright and other intellectual property laws and international treaties. No rights will be granted or implied by waiver or estoppel. Rights to access or use a Product on a device do not give Customer any right to implement Microsoft patents or other Microsoft intellectual property in the device itself or in any other software or devices.

g.    Restrictions. Except as expressly permitted in this Agreement or Product documentation, Customer must not (and is not licensed to):

(1)   reverse engineer, decompile, or disassemble any Product, or attempt to do so;

(2)   install or use non-Microsoft software or technology in any way that would subject Microsoft’s intellectual property or technology to any other license terms;

(3)   work around any technical limitations in a Product or restrictions in Product documentation;

(4)   separate and run parts of a Product on more than one device;

(5)   upgrade or downgrade parts of a Product at different times;

(6)   transfer parts of a Product separately; or

(7)   distribute, sublicense, rent, lease, or lend any Products, in whole or in part, or use them to offer hosting services to a third party.

h.    License transfers. Customer may only transfer fully-paid, perpetual licenses to (1) an Affiliate or (2) a third party solely in connection with the transfer of hardware to which, or employees to whom, the licenses have been assigned as part of (a) a divestiture of all or part of an Affiliate or (b) a merger involving Customer or an Affiliate. Upon such transfer, Customer must uninstall and discontinue using the licensed Product and render any copies unusable. Customer must notify Microsoft of a License transfer and provide the transferee a copy of these General Terms, the applicable Use Rights and any other documents necessary to show the scope, purpose and limitations of the licenses transferred. Attempted license transfers that do not comply with this section are void.

i.      Customer Eligibility. Customer agrees that if it is purchasing academic, government or nonprofit offers, Customer meets the respective eligibility requirements (https://aka.ms/eligiblitydefinition). Microsoft reserves the right to verify eligibility and suspend product use if requirements are not met.

Non-Microsoft Products. 

Non-Microsoft Products are provided under separate terms by the Publishers of such products.  Customer will have an opportunity to review those terms prior to placing an order for a Non-Microsoft Product through a Microsoft online store or Online Service. Microsoft is not a party to the terms between Customer and the Publisher.  Microsoft may provide Customer’s contact information and transaction details to the Publisher.  Microsoft makes no warranties and assumes no responsibility or liability whatsoever for Non-Microsoft Products. Customer is solely responsible for its use of any Non-Microsoft Product.

 

Verifying compliance.

Customer must keep records relating to Products it and its Affiliates use or distribute. At Microsoft’s expense, Microsoft may verify Customer’s and its Affiliates’ compliance with this Agreement at any time upon 30 days’ notice. To do so, Microsoft may engage an independent auditor (under nondisclosure obligations) or ask Customer to complete a self-audit process. Customer must promptly provide any information and documents that Microsoft or the auditor reasonably requests related to the verification and access to systems running the Products. If verification or self-audit reveals any unlicensed use, Customer must, within 30 days, order sufficient licenses to cover the period of its unlicensed use. Without limiting Microsoft’s other remedies, if unlicensed use is 5% or more of Customer’s total use of all Products, Customer must reimburse Microsoft for its costs incurred in verification and acquire sufficient licenses to cover its unlicensed use at 125% of the then-current Customer price or the maximum allowed under applicable law, if less. All information and reports related to the verification process will be Confidential Information and used solely to verify compliance. 

 

Privacy.

a.     Personal Data. Customer consents to the processing of Personal Data by Microsoft and its Affiliates, and their respective agents and subcontractors, as provided in this Agreement. Before providing Personal Data to Microsoft, Customer will obtain all required consents from third parties (including Customer’s contacts, Partners, distributors, administrators, and employees) under applicable privacy and data protection laws.

b.    Location of Personal Data. To the extent permitted by applicable law, Personal Data collected under this Agreement may be transferred, stored and processed in the United States or any other country in which Microsoft or its Affiliates, or their respective agents and subcontractors, maintain facilities. Microsoft will abide by the requirements of European Economic Area and Swiss data protection law regarding the collection, use, transfer, retention, and other processing of Personal Data from the European Economic Area and Switzerland.

 

Confidentiality.

a.     Confidential Information.  “Confidential Information” is non-public information that is designated “confidential” or that a reasonable person should understand is confidential, including, but not limited to, Customer Data, the terms of this Agreement, and Customer’s account authentication credentials. Confidential Information does not include information that (1) becomes publicly available without a breach of a confidentiality obligation; (2) the receiving party received lawfully from another source without a confidentiality obligation; (3) is independently developed; or (4) is a comment or suggestion volunteered about the other party’s business, products or services.

b.    Protection of Confidential Information.  Each party will take reasonable steps to protect the other’s Confidential Information and will use the other party’s Confidential Information only for purposes of the parties’ business relationship. Neither party will disclose Confidential Information to third parties, except to its Representatives, and then only on a need-to-know basis under nondisclosure obligations at least as protective as this Agreement. Each party remains responsible for the use of Confidential Information by its Representatives and, in the event of discovery of any unauthorized use or disclosure, must promptly notify the other party. The Online Services Terms may provide additional terms regarding the disclosure and use of Customer Data.

c.     Disclosure required by law. A party may disclose the other’s Confidential Information if required by law, but only after it notifies the other party (if legally permissible) to enable the other party to seek a protective order.

d.    Residual information.  Neither party is required to restrict work assignments of its Representatives who have had access to Confidential Information. Each party agrees that the use of information retained in Representatives’ unaided memories in the development or deployment of the parties’ respective products or services does not create liability under this Agreement or trade secret law, and each party agrees to limit what it discloses to the other accordingly.

e.     Duration of Confidentiality obligation.  These obligations apply (1) for Customer Data, until it is deleted from the Online Services; and (2) for all other Confidential Information, for a period of five years after a party receives the Confidential Information.

 

Product warranties.

a.     Limited warranties and remedies.

(1)  Online Services.  Microsoft warrants that each Online Service will perform in accordance with the applicable SLA during Customer’s use. Customer’s remedies for breach of this warranty are described in the SLA.

(2)  Software.  Microsoft warrants that the Software version that is current at the time will perform substantially as described in the applicable Product documentation for one year from the date Customer acquires a license for that version. If it does not, and Customer notifies Microsoft within the warranty term, Microsoft will, at its option, (a) return the price Customer paid for the Software license or (b) repair or replace the Software.

The remedies above are Customer’s sole remedies for breach of the warranties in this section. Customer waives any warranty claims not made during the warranty period.

b.    Exclusions.  The warranties in this Agreement do not apply to problems caused by accident, abuse, or use inconsistent with this Agreement, including failure to meet minimum system requirements. These warranties do not apply to free, trial, preview, or prerelease products, or to components of Products that Customer is permitted to redistribute.

c.     Disclaimer.  Except for the limited warranties above and subject to applicable law, Microsoft provides no other warranties or conditions for Products and disclaims any other express, implied or statutory warranties for Products, including warranties of quality, title, non-infringement, merchantability, and fitness for a particular purpose.

d.    Consumer remedies.  Notwithstanding anything in this Agreement, consumers may have the benefit of certain rights or remedies pursuant to the Competition and Consumer Act 2010 (Cth) and similar state and territory laws in Australia in respect of which liability may not be excluded. If so, then to the maximum extent permitted by law, such liability is limited, at Microsoft’s option, in the case of goods, to either (1) replacement of the goods or (2) correction of defects in the goods.  Australian law requires us to notify consumer purchasers of Microsoft goods that: Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.

 

Defense of third-party claims.

The parties will defend each other against the third-party claims described in this section and will pay the amount of any resulting adverse final judgment or approved settlement, but only if the defending party is promptly notified in writing of the claim and has the right to control the defense and any settlement of it. The party being defended must provide the defending party with all requested assistance, information, and authority. The defending party will reimburse the other party for reasonable out-of-pocket expenses it incurs in providing assistance. This section describes the parties’ sole remedies and entire liability for such claims.

a.     By Microsoft. Microsoft will defend Customer against any third-party claim to the extent it alleges that a Product made available by Microsoft for a fee and used within the scope of the license granted under this Agreement (unmodified from the form provided by Microsoft and not combined with anything else), misappropriates a trade secret or directly infringes a patent, copyright, trademark, or other proprietary right of a third party. If Microsoft is unable to resolve a claim of misappropriation or infringement, it may, at its option, either (1) modify or replace the Product with a functional equivalent or (2) terminate Customer’s license and refund any license fees (less depreciation for perpetual licenses), including amounts paid in advance for unused consumption for any usage period after the termination date. Microsoft will not be liable for any claims or damages due to Customer’s continued use of a Product after being notified to stop due to a third-party claim.

b.    By Customer. To the extent permitted by applicable law, Customer will defend Microsoft and its Affiliates against any third-party claim to the extent it alleges that: (1) any Customer Data or Non-Microsoft Product hosted in an Online Service by Microsoft on Customer's behalf misappropriates a trade secret or directly infringes a patent, copyright, trademark, or other proprietary right of a third party; or (2) Customer’s use of any Product, alone or in combination with anything else, violates the law or harms a third party.

Limitation of liability.

For each Product, each party’s maximum, aggregate liability to the other under this Agreement is limited to direct damages finally awarded in an amount not to exceed the amounts Customer was required to pay for the Products during the term of the applicable licenses, subject to the following:

a.     Subscriptions.  For Products ordered on a subscription basis, Microsoft’s maximum liability to Customer for any incident giving rise to a claim will not exceed the amount Customer paid for the Product during the 12 months before the incident.

b.    Free Products and distributable code.  For Products provided free of charge and code that Customer is authorized to redistribute to third parties without separate payment to Microsoft, Microsoft’s liability is limited to direct damages finally awarded up to US$5,000.

c.     Exclusions.  In no event will either party be liable for indirect, incidental, special, punitive, or consequential damages, or loss of use, loss of profits, or interruption of business, however caused or on any theory of liability.

d.    Exceptions.  No limitation or exclusions will apply to liability arising out of either party’s (1) confidentiality obligations (except for liability related to Customer Data, which will remain subject to the limitations and exclusions above); (2) defense obligations; or (3) violation of the other party’s intellectual property rights.

 

Partners.

a.     Selecting a Partner. Customer may authorize a Partner to place orders on Customer’s behalf and manage Customer’s purchases by associating the Partner with its account. If the Partner’s distribution right is terminated, Customer must select an authorized replacement Partner or purchase directly from Microsoft. Partners and other third parties are not agents of Microsoft and are not authorized to enter into any agreement with Customer on behalf of Microsoft.

b.    Partner Administrator privileges and access to Customer Data. If Customer purchases Online Services from a Partner or chooses to provide a Partner with administrator privileges, that Partner will be the primary administrator of the Online Services and will have administrative privileges and access to Customer Data and Administrator Data. Customer consents to Microsoft and its Affiliates providing the Partner with Customer Data and Administrator Data for purposes of provisioning, administering and supporting (as applicable) the Online Services. Partner may process such data according to the terms of Partner’s agreement with Customer, and its privacy commitments may differ from Microsoft’s. Customer appoints Partner as its agent for purposes of providing and receiving notices and other communications to and from Microsoft. Customer may terminate the Partner’s administrative privileges at any time.

c.     Support and Professional Services. Customer’s Partner will provide details on support services available for Products purchased under this agreement. Support services may be performed by Partner or its designee, which in some cases may be Microsoft. If Customer purchases Professional Services under this agreement, the performance of those Professional Services will be subject to the terms and conditions in the Use Rights.

Pricing and payment.

If Customer orders from a Partner, the Partner will set Customer’s pricing and payment terms for that order, and Customer will pay the amount due to the Partner.  Pricing and payment terms related to orders placed by Customer directly with Microsoft are set by Microsoft, and Customer will pay the amount due as described in this section.

a.     Payment method. Customer must provide a payment method or, if eligible, choose to be invoiced for purchases made on its account. By providing Microsoft with a payment method, Customer (1) consents to Microsoft’s use of account information regarding the selected payment method provided by the issuing bank or applicable payment network; (2) represents that it is authorized to use that payment method and that any payment information it provides is true and accurate; (3) represents that the payment method was established and is used primarily for commercial purposes and not for personal, family or household use; and (4) authorizes Microsoft to charge Customer using that payment method for orders under this Agreement.

b.    Invoices. Microsoft may invoice eligible Customers. Customer’s ability to elect payment by invoice is subject to Microsoft’s approval of Customer’s financial condition. Customer authorizes Microsoft to obtain information about Customer’s financial condition, which may include credit reports, to assess Customer’s eligibility for invoicing. Unless the Customer’s financial statements are publicly available, Customer may be required to provide their balance sheet, profit and loss and cash flow statements to Microsoft. Customer may be required to provide security in a form acceptable to Microsoft to be eligible for invoicing. Microsoft may withdraw Customer’s eligibility at any time and for any reason. Customer must promptly notify Microsoft of any changes in its company name or location and of any significant changes in the ownership, structure, or operational activities of the organization.

c.     Invoice Payment terms. Each invoice will identify the amounts payable by Customer to Microsoft for the period corresponding to the invoice. Customer will pay all amounts due within thirty (30) calendar days following the invoice date.

d.    Late Payment. Microsoft may, at its option, assess a late fee on any payments to Microsoft that are more than fifteen (15) calendar days past due at a rate of two percent (2%) of the total amount payable, calculated and payable monthly, or the highest amount allowed by law, if less.

e.     Cancellation fee. If a subscription permits early termination and Customer cancels the subscription before the end of the subscription or billing period, Customer may be charged a cancellation fee.

f.     Recurring Payments. For subscriptions that renew automatically, Customer authorizes Microsoft to charge Customer’s payment method periodically for each subscription or billing period until the subscription is terminated. By authorizing recurring payments, Customer authorizes Microsoft to process such payments as either electronic debits or fund transfers, or as electronic drafts from the designated bank account (in the case of Automated Clearing House or similar debits), as charges to the designated card account (in the case of credit card or similar payments) (collectively, “Electronic Payments”). If any payment is returned unpaid or if any credit card or similar transaction is rejected or denied, Microsoft or its service providers reserve the right to collect any applicable return item, rejection or insufficient funds fee to the maximum extent permitted by applicable law and to process any such fees as an Electronic Payment or to invoice Customer for the amount due.

g.    Taxes.Microsoft prices exclude applicable taxes unless identified as tax inclusive. If any amounts are to be paid to Microsoft, Customer shall also pay any applicable value added, goods and services, sales, gross receipts, or other transaction taxes, fees, charges, or surcharges, or any regulatory cost recovery surcharges or similar amounts that are owed under this Agreement and that Microsoft is permitted to collect from Customer. Customer shall be responsible for any applicable stamp taxes and for all other taxes that it is legally obligated to pay including any taxes that arise on the distribution or provision of Products by Customer to its Affiliates. Microsoft shall be responsible for all taxes based upon its net income, gross receipts taxes imposed in lieu of taxes on income or profits, and taxes on its property ownership.

If any taxes are required to be withheld on payments invoiced by Microsoft, Customer may deduct such taxes from the amount owed and pay them to the appropriate taxing authority, but only if Customer promptly provides Microsoft an official receipt for those withholdings and other documents reasonably requested to allow Microsoft to claim a foreign tax credit or refund. Customer will ensure that any taxes withheld are minimized to the extent possible under applicable law.

Term and termination.

a.     Term. This Agreement is effective until terminated by a party, as described below.

b.    Termination without cause. Either party may terminate this Agreement without cause on 60 days’ notice. Termination without cause will not affect Customer’s perpetual licenses, and licenses granted on a subscription basis will continue for the duration of the subscription period(s), subject to the terms of this Agreement.

c.     Termination for cause. Without limiting other remedies it may have, either party may terminate this Agreement on 30 days’ notice for material breach if the other party fails to cure the breach within the 30-day notice period. Upon such termination, the following will apply:

(1)   All licenses granted under this Agreement will terminate immediately except for fully-paid, perpetual licenses.

(2)   All amounts due under any unpaid invoices shall become due and payable immediately. For metered Products billed periodically based on usage, Customer must immediately pay for unpaid usage as of the termination date.

(3)   If Microsoft is in breach, Customer will receive a credit for any subscription fees, including amounts paid in advance for unused consumption for any usage period after the termination date.

d.    Suspension. Microsoft may suspend use of an Online Service without terminating this Agreement during any period of material breach. Microsoft will give Customer notice before suspending an Online Service when reasonable.

e.     Termination for regulatory reasons. Microsoft may modify, discontinue, or terminate a Product in any country or jurisdiction where there is any current or future government regulation, obligation, or other requirement, that (1) is not generally applicable to businesses operating there; (2) presents a hardship for Microsoft to continue offering the Product without modification; or (3) causes Microsoft to believe these terms or the Product may conflict with any such regulation, obligation, or requirement. If Microsoft terminates a subscription for regulatory reasons, Customer will receive, as its sole remedy, a credit for any subscription fees, including amounts paid in advance for unused consumption for any usage period after the termination date.

Supply Terms

a.     Appointment as supplier. Some Products are distributed in certain countries by Microsoft Regional Sales Pte Ltd (“MRS”). Customer appoints MRS as the supplier of all such Products ordered directly from Microsoft under this Agreement. MRS is authorized by Microsoft to determine pricing and payment terms, place orders on behalf of Customer under the Agreement, and invoice Customer for the applicable Products (if Customer is eligible for invoicing). The terms of the Agreement will apply to each order. MRS has no obligations with respect to an order until Microsoft accepts it. MRS does not have authority to bind or impose any obligation or liability on the Microsoft entity that is a party to the Agreement.

b.    Invoicing and payment. MRS is the intended third-party beneficiary of Microsoft’s right to receive payment under this Agreement for the Products it distributes. If Customer is eligible for invoicing, MRS will send invoices to the billing contact identified on Customer’s account, and Customer must pay the amount due to MRS according to the payment terms on the invoice and in the Agreement. Customer’s failure to make any payment to MRS by the required date will constitute a material breach of the Agreement. In the event Microsoft terminates the Agreement for cause, all amounts due under any unpaid invoices shall become due and payable immediately.

Miscellaneous.

a.     Independent contractors. The parties are independent contractors. Customer and Microsoft each may develop products independently without using the other’s Confidential Information.

b.    Agreement not exclusive. Customer is free to enter into agreements to license, use, and promote the products and services of others.

c.     Amendments. Microsoft may modify this Agreement from time to time. Changes to the Use Rights will apply as provided in this Agreement. Changes to other terms will not apply until Customer accepts them. Microsoft may require Customer to accept revised or additional terms before processing a new order. Any additional or conflicting terms and conditions contained in a purchase order or otherwise presented by Customer are expressly rejected and will not apply.

d.    Assignment. Either party may assign this Agreement to an Affiliate, but it must notify the other party in writing of the assignment. Customer consents to the assignment to an Affiliate or third party, without prior notice, of any rights Microsoft may have under this Agreement to receive payment and enforce Customer's payment obligations, and all assignees may further assign such rights without further consent. Any other proposed assignment of this Agreement must be approved by the non-assigning party in writing. Assignment will not relieve the assigning party of its obligations under the assigned Agreement. Any attempted assignment without required approval will be void.

e.     U.S. export. Products are subject to U.S. export jurisdiction. Customer must comply with all applicable international and national laws, including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and end-user, end use and destination restrictions by U.S. and other governments related to Microsoft products, services, and technologies.

f.     Severability. If any part of this Agreement is held to be unenforceable, the rest of the Agreement will remain in full force and effect.

g.    Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver. Any waiver must be in writing and signed by the waiving party.

h.    No third-party beneficiaries. This Agreement does not create any third-party beneficiary rights except as expressly provided by its terms.

i.      Survival. All provisions survive termination of this Agreement except those requiring performance only during the term of the Agreement.

j.      Notices. Notices must be in writing and will be treated as delivered on the date received at the address, date shown on the return receipt, email transmission date, or date on the courier or fax confirmation of delivery. Notices to Microsoft must be sent to the following address:

Microsoft Operations Ireland Limited

c/o Microsoft Operations Pte Ltd

Dept. 551, Volume Licensing

182 Cecil Street

#13-01 Frasers Tower

Singapore 069547

Republic of Singapore

Notices to Customer will be sent to the individual at the address Customer identifies on its account as its contact for notices. Microsoft may send notices and other information to Customer by email or other electronic form.

k.     Applicable law. This Agreement will be governed by and construed in accordance with the laws of Ireland. The 1980 United Nations Convention on Contracts for the International Sale of Goods and its related instruments will not apply to this Agreement.

l.      Dispute resolution. When bringing any action arising under this Agreement, the parties agree to the following exclusive venues:

(1)  If Microsoft brings the action, the venue will be where Customer has its headquarters.

(2)  If Customer brings the action against Microsoft or any Microsoft Affiliate located outside of Europe, the venue will be the state or federal courts in King County, State of Washington, USA.

(3)  If Customer brings the action against Microsoft or any Microsoft Affiliate located in Europe, and not also against Microsoft or a Microsoft Affiliate located outside of Europe, the venue will be the Republic of Ireland.

The parties consent to personal jurisdiction in the agreed venue. This choice of venue does not prevent either party from seeking injunctive relief in any jurisdiction with respect to a violation of intellectual property rights or confidentiality obligations.

m.   Order of precedence. These General Terms will take precedence over any conflicting terms in other documents that are part of this Agreement that are not expressly resolved in those documents, except that conflicting terms in the Use Rights take precedence over these General Terms as to the applicable Products. Terms in the Online Services Terms take precedence over conflicting terms in the Product Terms. Terms in an amendment control over the amended document and any prior amendments concerning the same subject matter.

n.    Microsoft Affiliates and contractors. Microsoft may perform its obligations under this Agreement through its Affiliates and use contractors to provide certain services. Microsoft remains responsible for their performance.

o.    Government procurement rules. By accepting this agreement, Customer represents and warrants that (i) it has complied and will comply with all applicable government procurement laws and regulations; (ii) it is authorized to enter into this Agreement; and (iii) this Agreement satisfies all applicable procurement requirements.

Definitions.

“Administrator Data” means the information provided to Microsoft or its Affiliates during sign-up, purchase, or administration of Products.

“Affiliate” means any legal entity that controls, is controlled by, or is under common control with a party. “Control” means ownership of more than a 50% interest of voting securities in an entity or the power to direct the management and policies of an entity.

“Confidential Information” is defined in the “Confidentiality” section.

“Customer” means the entity identified as such on the account associated with this Agreement.

“Customer Data” means all data, including all text, sound, software, image or video files that are provided to Microsoft or its Affiliates by, or on behalf of, Customer and its Affiliates through use of Online Services.

“End User” means any person Customer permits to use a Product or access Customer Data.

“Licensing Site” means http://www.microsoft.com/licensing/contracts or a successor site.

“Microsoft” means Microsoft Ireland Operations Limited.

“Non-Microsoft Product” means any third-party-branded software, data, service, website or product, unless incorporated by Microsoft in a Product.

“Online Services” means Microsoft-hosted services to which Customer subscribes under this Agreement. It does not include software and services provided under separate license terms.

“Online Services Terms” means the additional terms that apply to Customer’s use of Online Services published on the Licensing Site and updated from time to time.

“Partner” means a company Microsoft has authorized to distribute Products to Customer.

“Personal Data” means any information relating to an identified or identifiable natural person.

“Product” means all Software and Online Services identified in the Product Terms that Microsoft offers under this Agreement, including previews, prerelease versions, updates, patches and bug fixes from Microsoft. Product availability may vary by region. “Product” does not include Non-Microsoft Products.

“Product Terms” means the document that provides information about Products available under this Agreement. The Product Terms document is published on the Licensing Site and is updated from time to time.

“Publisher” means a provider of a Non-Microsoft Product.

“Representatives” means a party’s employees, Affiliates, contractors, advisors and consultants.

“SLA” means Service Level Agreement, which specifies the minimum service level for the Online Services and is published on the Licensing Site.

“Software” means licensed copies of Microsoft software identified in the Product Terms. Software does not include Online Services, but Software may be part of an Online Service.

“use” means to copy, download, install, run, access, display, use or otherwise interact with.

“Use Rights” means the license terms and terms of service for each Product published on the Licensing Site and updated from time to time. The Use Rights supersede the terms of any end user license agreement that accompanies a Product. License terms for all Products are published in the Product Terms. Terms of service for Online Services are published in the Online Services Terms.

Purchase Agreement with the “Microsoft Sales Affiliate” ( )

Certain Products are offered by a local Microsoft Sales Affiliate that Microsoft has authorized to distribute such Products. If a Customer orders those Products directly from Microsoft, the Microsoft Sales Affiliate will be the seller.  By submitting the order, Customer is deemed to have accepted the terms offered by the Microsoft Sales Affiliate named above, forming a separate agreement with such Microsoft Sales Affiliate to purchase the Products (the “Purchase Agreement”).  The Purchase Agreement consists of all applicable terms of this Agreement, modified as follows:

a.     Licensing terms excluded.  All terms pertaining solely to licensing and support of such Products are deemed excluded.  Microsoft is the licensor of all Products, and the Agreement with Microsoft will continue to apply to any Products ordered from a Microsoft Sales Affiliate.  Microsoft Sales Affiliate does not have authority to bind or impose any obligation or liability on any other Microsoft entity.

b.    Pricing and payment.  Microsoft Sales Affiliate will determine pricing for the applicable Products.  All terms pertaining to pricing and payment apply to the Purchase Agreement. If Customer is eligible for invoicing, Microsoft Sales Affiliate will send invoices to the billing contact identified on Customer’s account (with taxes added where applicable), and Customer must pay the amount due to Microsoft Sales Affiliate according to the payment instructions on the invoice. Customer’s failure to make any payment due to Microsoft Sales Affiliate by the required date will constitute a material breach of both the Purchase Agreement and the Agreement with Microsoft. In the event Microsoft terminates the Agreement for cause, all amounts due under any unpaid invoices shall become due and payable to Microsoft Sales Affiliate immediately.

c.     Warranties, defense, and limitations of liability. All warranties, obligations to defend against third-party claims and limitations of liability shall also apply to claims under the Purchase Agreement. Microsoft, as licensor, is solely responsible for claims relating to the performance of Products and defense of third-party claims (including claims of intellectual property infringement).  Microsoft Sales Affiliate is not liable for such claims and, to the maximum extent permitted by applicable law, expressly disclaims all express, implied and statutory warranties and liability for such claims, including, without limitation, warranties of quality, title, non-infringement, merchantability, and fitness for a particular purpose.

d.    Applicable law. The applicable law will be that of the jurisdiction where the Microsoft Sales Affiliate has its headquarters.

e.     Additional terms.  Any additional terms that Microsoft Sales Affiliate presents in connection with an order are deemed included.  Any additional or conflicting terms and conditions contained in a purchase order or otherwise presented by Customer are expressly rejected and will not apply.

Supplemental Individual User Purchase Terms

FOR INDIVIDUAL USERS (AS DEFINED BELOW), THE FOLLOWING ADDITIONAL TERMS BELOW ALSO APPLY.

IF INDIVIDUAL USER LIVES IN THE UNITED STATES, PLEASE READ THE “BINDING ARBITRATION AND CLASS ACTION WAIVER” CLAUSE IN THE “MISCELLANEOUS” SECTION. IT AFFECTS HOW DISPUTES CONCERNING THE MICROSOFT PRODUCT (INCLUDING ITS PRICE, ADVERTISING, MARKETING, OR COMMUNICATIONS), THE PURCHASE TRANSACTION, BILLING, OR THIS AGREEMENT ARE RESOLVED.

1.     Definitions applicable to these Supplemental Individual User Purchase Terms:

Customer” means the entity or individual identified as such on the account associated with this Agreement.

Customer Individual User” means an Individual User who subscribes for or orders Products using an authentication identity (such as an email address) provided by the Individual User’s organization (such as an employer or school).

Individual User” means any individual person (other than an Administrator) subscribing to Online Services for use by a member or members of the subscriber’s organization, and if such Online Services require payment of a fee, providing a payment method for which Individual User is personally responsible.

2.     The paragraph titled “Affiliates” in the “License to use Microsoft Products” section of this Agreement does not apply to Individual Users.

3.     The “License Transfer” paragraph under the “License to use Microsoft Products” section is replaced as follows:

For Individual User purchases, Customer may not assign this Agreement either in whole or in part or transfer licenses without Microsoft’s consent, except in case of an Administrator assumption of control as permitted in this Agreement.

4.     The below paragraphs are added under the “License to use Microsoft Products” section:

Individual User and Customer rights.  The following applies to Individual User purchases: To the extent Individual User is acting on behalf of its organization, the organization is the Customer and the owner of all rights and licenses to the Products that Individual User is purchasing hereunder, and Individual User’s access and rights thereto are granted to Individual User in its capacity as an end-user within such organization. In such case, if there is another agreement in effect with Microsoft pursuant to which the same organization maintains active subscriptions to Online Services (a “Prior Agreement”), then the terms of that Prior Agreement shall also govern the Customer’s use of and rights in and to the Online Services and control over any conflicting terms in the Agreement, but these Supplemental Terms shall continue to apply to Individual User.

Authorization to use Customer domain and acknowledgement of shared directory data. For Customer Individual User purchases, Customer Individual User (1) represents that they have the authority to use that organization’s domain to sign up for a subscription or order Products in their capacity as a member of that organization; and (2) acknowledges that they will be added to a directory of users that share the same domain, and that directory data (name, date of signup, and email address) may be visible to other users of the Online Services within the same organization’s domain. All of the terms of the Agreement applicable to Customer (as amended and supplemented by these Individual User Purchase Terms) also apply to Customer Individual User.

Assignment and assumption of rights and responsibilities.

(1)  For Customer Individual User purchases, the organization within which Online Services are used, as the owner of the domain associated with the authentication identity used for the purchase, may assume control over and manage Customer Individual User’s use of the Online Services. If it does, the organization’s designated administrator (the “Administrator”) may (i) control and administer Customer Individual User’s account, including modifying and terminating Customer Individual User’s access, and (ii) access and process Customer Individual User’s data, including the contents of Customer Individual User’s communications and files. For other Individual User purchases, the Administrator has the rights described in (i) and (ii) above from the time of purchase.

(2)  For any Individual User purchase, the Administrator may assume responsibility for future subscription fees or renewal fees. In such case, the Individual User must cancel the original subscription prior to the next renewal to avoid incurring any further payment obligation with respect to such subscription. 

(3)  Effective upon any assumption of control or responsibility by the Administrator over the Online Services, the subscription or associated fees, Individual User hereby assigns to such Customer organization all of its right, title and interest, if any, in the Products arising out of this Agreement. Microsoft may inform Individual User that Customer’s organization has assumed control of the Online Services covered by Individual User’s subscription or responsibility for the associated payment obligations, but Microsoft is under no obligation to provide such notice.

Data Subject Requests. Except where the Administrator has assumed control over the account, Customer Individual Users should direct data subject requests and privacy inquiries directly to Microsoft. For other Individual Users, since the organization is managing the account associated with Individual User’s subscription and administering use of the Online Services, Individual User should direct data subject requests and privacy inquiries to its Administrator.

5.      The “Privacy” section is replaced as follows.

Individual User’s privacy is important to Microsoft. Please read the Microsoft Privacy Statement ( https://go.microsoft.com/fwlink/?LinkId=521839 ) as it describes the types of data Microsoft collects from Individual user and Individual User’s devices (“Data”), how Microsoft uses that Data, and the legal bases Microsoft has to process that Data.

6.     The sections entitled “Confidentiality” and “Partners” do not apply to Individual Users.

7.     The first paragraph of the “Pricing and Payment” section is replaced as follows:

For Individual User purchases, pricing and payment terms for a given order are set by Microsoft, and Individual User will pay the amount due to Microsoft. In such case, Individual User remains solely responsible for timely payment of all amounts due to Microsoft in connection with the Products ordered by Individual User under this Agreement until they terminate the Agreement.

8.     The “Independent Contractors”, “Agreement not exclusive”, and “Assignment” paragraphs included in the “Miscellaneous” section do not apply to Individual Users.

9.     The “Amendments” paragraph included in the “Miscellaneous” section is replaced as follows:

Microsoft may modify this Agreement from time to time by notifying Customer. Changes to the Use Rights will apply as provided in this Agreement. Other changes are deemed to be accepted if Customer continues to purchase or consume Microsoft and/or Non-Microsoft Products. Microsoft may require Customer to accept revised or additional terms before processing a new order. Any additional or conflicting terms and conditions contained in a purchase order or otherwise presented by Customer are expressly rejected and will not apply.

10.  The below paragraph is added to the “Severability” paragraph of the “Miscellaneous” section:

For Individual User purchases, the “Binding arbitration and class action waiver” clause below describes what happens if parts of that “Binding arbitration and class action waiver” clause are found to be illegal or unenforceable. The “Binding arbitration and class action waiver” clause prevails over this section if inconsistent with it.

11.  The “No third-party beneficiary” paragraph of the “Miscellaneous” section is replaced as follows:

For Individual User purchases, except for the “Binding arbitration and class action waiver” clause below, this Agreement does not create any third-party beneficiary rights except as expressly provided by its terms.

12.  The “Applicable Law” paragraph of the “Miscellaneous” section is replaced as follows:

For Individual User purchases, If Customer lives in (or if an organization has assumed the obligations of Customer under of the “License to Use Microsoft Products” section above, and has its principal place of business in) the United States, the laws of the state where Customer lives (or where the organization’s principal place of business is located) govern all claims, regardless of conflict of laws principles, except that the Federal Arbitration Act governs all provisions relating to arbitration. Customer and Microsoft irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts in King County, Washington, for all disputes arising out of or relating to this Agreement or the Microsoft Product that are heard in court (excluding arbitration and small claims court). The 1980 United Nations Convention on Contracts for the International Sale of Goods and its related instruments will not apply to this Agreement.

13.  The “Dispute resolution” paragraph of the “Miscellaneous” section is replaced as follows:

a.     Binding arbitration and class action waiver. For Individual User purchases, If you live in (or if an organization has assumed the obligations of Customer under the “License to Use Microsoft Products” section above, and has its principal place of business in) the United States .

Customer and Microsoft agree to try for 60 days to resolve any dispute informally. If no resolution is reached, Customer and Microsoft agree to binding individual arbitration before the American Arbitration Association (“AAA”) under the Federal Arbitration Act (“FAA”), and not to sue in court in front of a judge or jury. Instead, a neutral arbitrator will decide, and the arbitrator’s decision will be final except for a limited right of review under the FAA. Class action lawsuits, class-wide arbitrations, private attorney-general actions, and any other proceeding where someone acts in a representative capacity aren’t allowed. Nor is combining individual proceedings without the consent of all parties. For purposes of this “Binding arbitration and class action waiver” clause, “Microsoft” includes Microsoft and its affiliates, and “Customer” includes any organization that assumed Customer’s obligations under the “License to Use Microsoft Products” section above .

(1)  Disputes covered – everything except IP. The term “dispute” is as broad as it can be. It includes any claim or controversy between Customer and Microsoft concerning the Product, its price, advertising, marketing, communications, the purchase transaction, billing, or this Agreement, under any legal theory including contract, warranty, tort, statute, or regulation, except disputes relating to the enforcement or validity of Customer’s, Customer’s licensors’, Microsoft’s, or Microsoft’s licensors’ intellectual property rights.

(2)  Mail a Notice of Dispute first. If Customer has a dispute and Microsoft’s customer service representatives can’t resolve it, send a Notice of Dispute by U.S. Mail to Microsoft Corporation, ATTN: CELA Arbitration, One Microsoft Way, Redmond, WA 98052-6399. Include Customer’s name and contact information, what the problem is, and what Customer wants. A form is available at http://go.microsoft.com/fwlink/?LinkId=245499 . Microsoft will do the same if it has a dispute with Customer. After 60 days, Customer or Microsoft may start an arbitration if the dispute is unresolved.

(3)  Small claims court option. Instead of mailing a Notice of Dispute, Customer may sue Microsoft in small claims court in Customer’s county of residence (or, if an organization assumed Customer’s obligations, its principal place of business) or King County, Washington, U.S.A. if the dispute meets the court’s requirements.

(4)  Arbitration procedure. The AAA will conduct any arbitration under its Commercial Arbitration Rules (or its Consumer Arbitration Rules if Customer is an individual and Uses the Product for personal or household use, or if the value of the dispute is $75,000 or less, whether or not Customer is an individual and regardless of how Customer Uses the Product). For more information, see http://www.adr.org or call 1-800-778-7879. To start an arbitration, submit the form available at http://go.microsoft.com/fwlink/?LinkId=245497 to the AAA and mail a copy to Microsoft. In a dispute involving $25,000 or less, any hearing will be telephonic unless the arbitrator finds good cause to hold an in-person hearing instead. Any in-person hearing will take place in Customer’s county of residence (or, if an organization assumed Customer’s obligations, its principal place of business) or King County, Washington. Customer chooses. The arbitrator may award the same damages to Customer individually as a court could. The arbitrator may award declaratory or injunctive relief only to Customer individually to satisfy Customer’s individual claim. Under AAA Rules, the arbitrator rules on his or her own jurisdiction, including the arbitrability of any claim. But a court has exclusive authority to enforce the prohibition on arbitration on a class-wide basis or in a representative capacity.

(5)  Arbitration fees and payments.

i.      Disputes involving $75,000 or less. Microsoft will promptly reimburse Customer’s filing fees and pay the AAA’s and arbitrator’s fees and expenses. If Customer rejects Microsoft’s last written settlement offer made before the arbitrator was appointed, Customer’s dispute goes all the way to an arbitrator’s decision (called an “award”), and the arbitrator awards Customer more than this last written offer, Microsoft will: (i) pay the greater of the award or $1,000; (ii) pay Customer’s reasonable attorney’s fees, if any; and (iii) reimburse any expenses (including expert witness fees and costs) that Customer’s attorney reasonably accrues for investigating, preparing, and pursuing Customer’s claim in arbitration.

ii.     Disputes involving more than $75,000. The AAA rules will govern payment of filing fees and the AAA’s and arbitrator’s fees and expenses.

(6)  Must file within one year. Customer and Microsoft must file in small claims court or arbitration any claim or dispute (except intellectual property disputes) within one year from when it first could be filed. Otherwise, it is permanently barred.

(7)  Severability. If any part of the “Binding arbitration and class action waiver” clause is found to be illegal or unenforceable, the remainder will remain in effect (with an arbitration award issued before any court proceeding begins), except that if a finding of partial illegality or unenforceability would allow class-wide or representative arbitration, the section will be unenforceable in its entirety.

(8)  Conflict with AAA rules. This Agreement governs to the extent it conflicts with the AAA’s Commercial Arbitration Rules or Consumer Arbitration Rules.

These terms of service ("Terms", "Agreement") are an agreement between the website ("Website operator", "us", "we" or "our") and you ("User", "you" or "your"). This Agreement sets forth the general terms and conditions of your use of this website and any of its products or services (collectively, "Website" or "Services").

STANDARD TERMS AND CONDITIONS of Trade

1  Application

These general terms and conditions govern niss.au pty ltd’ provision of goods and services to the Client.

2  Client Purchase Orders

(a)  niss.au pty ltd must provide the Client with a written quote for all purchases of goods and services before the Client places a purchase order.

(b)  All goods and services purchased must be supplied to the Client at the price on the quote unless otherwise agreed between niss.au pty ltd and the Client.

(c)  Unless otherwise stated all prices quoted for goods and services are exclusive of all taxes, handling, delivery, agents’ fees and any other fee, charge, duty or impost.

(d)  niss.au pty ltd is not bound by any quote it provides to the Client until niss.au pty ltd accepts the purchase order from the Client.

(e)  All purchase orders the Client submits must be accompanied by an official purchase order signed by an authorised representative of the Client and on the Client’s letterhead detailing the goods and services required.

(f)  Prices and other charges and discounts offered by niss.au pty ltd are subject to change without notice.  niss.au pty ltd must advise the Client of any purchase order it receives which quotes non-current pricing, goods or services and request resubmission of the purchase order.  The resubmitted purchase order must detail the amended pricing and other details.

(g)  niss.au pty ltd will not be bound by any terms attached to the purchase order by the Client unless the terms are expressly agreed by an authorised representative of Network Integration and Support.

(h)  niss.au pty ltd reserves the right to accept or reject any purchase order submitted by the Client at its absolute discretion.


3  niss.au pty ltd Personnel

The Client must not without niss.au pty ltd’ consent (which it may withhold at its discretion):

(a)      during the period of this agreement

(b)      for 12 months after completion of the Services

directly or indirectly:

(i)      employ or engage on any other basis

(ii)     offer employment or engagement to any of niss.au pty ltd’ employees or personnel who have been associated with the provision of the Services.

(a)      If the Client employs or engages any person in breach of this clause, the Client must pay niss.au pty ltd liquidated damages equal to the total payments niss.au pty ltd made to the person for services (as employee or contractor) in the six months preceding termination.

(b)      The liquidated damages specified in paragraph (c) is a genuine pre-estimate of the loss and damage niss.au pty ltd will incur as a result of a breach of this clause.

4  Fees

(a)      The Client must pay niss.au pty ltd at the times specified in a quote or, if not specified, within:

(i) 7 days of invoice for the provision of goods

(ii)         30 days of invoice for the provision of services.

(b)      niss.au pty ltd may review its fees and rates on 30 June in each year.

(c)      If the Client does not pay niss.au pty ltd at the time required under these general terms and conditions, the Client must pay niss.au pty ltd interest calculated at the business overdraft indicator lending rate quoted by the Commonwealth Bank of Australia from the date on which payment was due until payment.


 

5  Delivery

The Client:

(a)      acknowledges that delivery times given by niss.au pty ltd are estimates only

(b)      acknowledges that niss.au pty ltd may deliver its products in any number of instalments

(c)      must provide appropriate access for delivery

niss.au pty ltd is not liable for:

(i)      any late or non-delivery of its products

(ii)     any loss or damage to any instalment of its products whether or not niss.au pty ltd is legally responsible for the party who caused or contributed to that loss or damage

(iii)    any loss (including consequential loss), damage or delay suffered by the Client or any third party arising from anything referred to in (i) and (ii).

6  Passing of Risk

(a)      Risk of loss or damage to the products passes to the Client when the products are delivered to the Delivery Address.

(b)      The Client must insure all products that are at the Client’s risk.

7  Retention of Title

(a)      Despite clause 6(a), title to the goods will not pass to the Client until all amounts owed by the Client to niss.au pty ltd are paid in full.  Until that time:

(i)      niss.au pty ltd:

(1)      retains title to and property in the goods

(2)      may at any time enter the Client’s premises or any premises where the products are located without liability to any person for trespass or any resulting damages to repossess the goods

(3)      keep or resell any goods repossessed under this clause

(ii)     the Client:

(1)      must not claim any lien over the goods

(2)      is a bailee of the goods and owes niss.au pty ltd the duties and liabilities of a bailee

(3)      must not supply any of the goods to any party outside of its usual or ordinary course of business

(4)      must not allow any party to acquire any security interest in the goods

(5)      must properly store and insure the goods.

(b)      Despite clause 7(a), if the Client sells the goods or anything that incorporates any of the goods before paying niss.au pty ltd in full, then the Client must:

(i)      hold the proceeds of sale representing the price of the goods on trust for niss.au pty ltd as soon as they are received

(ii)     either pay the amount of the proceeds referred to in clause 6(b)(i) to niss.au pty ltd as soon as they are received or pay those proceeds into a separate identifiable account as trustee for niss.au pty ltd and pay niss.au pty ltd on request.

8  Return

(a)      The Client must notify niss.au pty ltd in writing of any goods it wishes to return within 14 days from the delivery date or invoice date, whichever is later.

(b)      Any goods returned for credit must be in pristine and unopened condition with all seals intact.  All inward freight will be the responsibility of the Client.  niss.au pty ltd is not liable for any cost of freight on returned product and will not accept responsibility for any damage or loss suffered by the Client.

(c)      niss.au pty ltd will not be liable for any damage or defects of the goods that have been caused through the improper storage, warehousing or transport, or by any neglect, abuse or improper use, installation, maintenance or unauthorised repair of the product.

(d)      If the Client returns any goods, it must pay any re-stocking and cancellation fees charged by the supplier to niss.au pty ltd.

9  Conditions

niss.au pty ltd may discontinue its provision of goods and/or services under these general terms and conditions if the Client fails to pay the fees when due or alters, modifies or changes the goods or accompanying documentation.

10 GST

(a)      Expressions in this clause have the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 the Act.

(b)      Unless otherwise stated, all amounts, prices, values or other sums payable or to be provided under these general terms and conditions are exclusive of GST.

(c)      If GST is payable on any supply made under these general terms and conditions the:

(i)      recipient of the taxable supply must pay to the supplier an amount equal to the GST payable on the taxable supply in addition to and at the same time as payment for the taxable supply is required to be made under these general terms and conditions

(ii)     supplier must give the recipient a tax invoice for the taxable supply within 7 days of a supply being made under these general terms and conditions.

(d)      Despite any other provision of these general terms and conditions, if the whole or part of any consideration under these general terms and conditions is a reimbursement or indemnification by one party of an expense, loss, outgoing or liability incurred or to be incurred by the other party, the consideration must exclude any GST included in any expense, loss, outgoing or liability incurred or to be incurred for which the other party can claim an input tax credit.  The other party will be assumed to be entitled to a full input tax credit unless it can establish otherwise.

(e)      If an adjustment event occurs in relation to a supply under these general terms and conditions, the supplier will issue to the recipient an adjustment note in relation to the adjustment event within 7 days of the supplier becoming aware of the adjustment event.

(f)      If the adjustment note gives effect to an increasing adjustment, the recipient will pay to the supplier the GST component of the increasing adjustment not later than the end of the month following the month in which the adjustment note is issued to the recipient.

(g)      If the adjustment note gives effect to a decreasing adjustment, the supplier will pay to the recipient the GST component of the decreasing adjustment not later than the end of the month following the month in which the adjustment note is issued to the recipient.

11 No Warranties

(a)      To the maximum extent the law permits, niss.au pty ltd does not give any warranty as to fitness for purpose or otherwise and the Client acknowledges that it has relied on its own inquiry as to the quality and performance of the goods and/or services. All terms, conditions, warranties, undertakings, inducements or representations whether expressed, implied, statutory or otherwise relating in any way to the goods and/or services, these general terms and conditions or niss.au pty ltd are excluded, to the maximum extent the law permits.

(b)      The obligations in this clause are material and survive termination of these general terms and conditions.

12 Confidentiality

(a)      The Client must not directly or indirectly, at any time during or after termination of these general terms and conditions disclose, use copy or reproduce any of niss.au pty ltd’ confidential information.

(b)      The Client must ensure that any person to whom confidential information is or may be disclosed is familiar with the provisions of this clause and is bound by obligations of confidentiality equivalent to the Client’s obligations under this clause.

(c)      The obligations in this clause are material and survive termination of these general terms and conditions.

13 Privacy

If a party discloses to the other party personal information as defined in the Privacy Act 1989 (Cth), that party:

(i)      receives that information in its capacity as the other party’s agent

(ii)     must:

(1)      only use the information for the purpose of fulfilling its obligations under these general terms and conditions

(2)      not otherwise use or disclose the information without the prior written consent of the other party

(3)      comply with the other party’s requirements or directions in relation to the information.

14 Liability

(a)      niss.au pty ltd’ maximum liability arising out of or in connection with these general terms and conditions and whether arising in contract, tort (including negligence) or otherwise, will in no circumstances exceed the aggregate fees paid by the Client to niss.au pty ltd.

(b)      niss.au pty ltd, its officers, employees and agents are not liable to the Client or any other person for any indirect loss, consequential loss, loss of profits, loss of sales, loss of revenue, loss of any software, hardware or data, loss or waste of management or personnel time, loss of goodwill, loss of opportunity, loss of anticipated savings or loss for personal injury, suffered or incurred by the Client or any other person relating to the performance, non-performance or any breach of these general terms and conditions.

(c)      Nothing in these general terms and conditions excludes, restricts or modifies any condition, warranty or liability which may at any time be implied by any trade practices, fair trading, sale of goods or credit legislation or regulation or any other law where to do so is illegal or would render any provision of these general terms and conditions void.  In this case and where the law permits, niss.au pty ltd’ liability in respect of any such provision is limited. niss.au pty ltd’ option to:

(i)      in the case of the supply of goods, the replacement of the goods or the supply of equivalent goods or the payment of the cost of replacing the goods or of acquiring equivalent software

(ii)     in the case of services, supplying the services again or the payment of the cost of having the services performed again.

(d)      The obligations in this clause are material and survive termination of these general terms and conditions.

15 Termination

(a)      niss.au pty ltd may terminate these general terms and conditions by written notice to the Client on any failure by the Client to make a payment under these general terms and conditions when it is due, within 14 days of niss.au pty ltd giving the Client notice in writing of the failure.

(b)      These general terms and conditions automatically terminate without the need for notice if:

(i)      the Client is insolvent, applies for the appointment of, or appoints a receiver, liquidator, provisional liquidator or administrator in respect of it or makes an assignment for the benefit of its creditors

(ii)     commits a material breach of these general terms and conditions.

(c)      If these general terms and conditions are terminated for any reason, without limiting niss.au pty ltd’ other rights and remedies, niss.au pty ltd will be discharged from any further liability to perform its obligations under these general terms and conditions and will not be required to refund any fees paid to it by the Client.

16      General Conditions

(a)      The Client must not assign, sub-license or otherwise dispose of any of its rights or obligations under these general terms and conditions without the prior written consent of niss.au pty ltd which niss.au pty ltd may withhold at its absolute discretion.

(b)      The Client will sign any documents and do anything else that may be necessary or desirable to give full effect to these general terms and conditions.

(c)      Provisions of these general terms and conditions which can, and are intended to, operate after termination continue to have full force and effect.

(d)      A waiver by niss.au pty ltd of the Client’s default under these general terms and conditions will not constitute a release of the Client’s obligation to observe and perform all of its obligations in the future.

(e)      These general terms and conditions may not be varied, discharged or abandoned unless the parties sign a document to that effect.

(f)      These general terms and conditions are governed by the law in force in New South Wales and the parties submit to the non-exclusive jurisdiction of the courts of or exercising jurisdiction in New South Wales.

(g)      niss.au pty ltd will not be liable to the Client if the performance of its obligations is prevented or hindered due to any circumstances outside of its reasonable control.

 

Privacy Policy for niss.au pty ltd

At niss.au, one of our main priorities is the privacy of our visitors. This Privacy Policy document contains types of information that is collected and recorded by niss.au and how we use it.

If you have additional questions or require more information about our Privacy Policy, do not hesitate to contact us.

This Privacy Policy applies only to our online activities and is valid for visitors to our website with regards to the information that they shared and/or collect in niss.au. This policy is not applicable to any information collected offline or via channels other than this website.

Consent

By using our website, you hereby consent to our Privacy Policy and agree to its terms.

Information we collect

The personal information that you are asked to provide, and the reasons why you are asked to provide it, will be made clear to you at the point we ask you to provide your personal information.

If you contact us directly, we may receive additional information about you such as your name, email address, phone number, the contents of the message and/or attachments you may send us, and any other information you may choose to provide.

When you register for an Account, we may ask for your contact information, including items such as name, company name, address, email address, and telephone number.

How we use your information

We use the information we collect in various ways, including to:

  • Provide, operate, and maintain our website
  • Improve, personalize, and expand our website
  • Understand and analyze how you use our website
  • Develop new products, services, features, and functionality
  • Communicate with you, either directly or through one of our partners, including for customer service, to provide you with updates and other information relating to the website, and for marketing and promotional purposes
  • Send you emails
  • Find and prevent fraud

Log Files

niss.au follows a standard procedure of using log files. These files log visitors when they visit websites. All hosting companies do this and a part of hosting services' analytics. The information collected by log files include internet protocol (IP) addresses, browser type, Internet Service Provider (ISP), date and time stamp, referring/exit pages, and possibly the number of clicks. These are not linked to any information that is personally identifiable. The purpose of the information is for analyzing trends, administering the site, tracking users' movement on the website, and gathering demographic information.

Cookies and Web Beacons

Like any other website, niss.au uses 'cookies'. These cookies are used to store information including visitors' preferences, and the pages on the website that the visitor accessed or visited. The information is used to optimize the users' experience by customizing our web page content based on visitors' browser type and/or other information.

Advertising Partners Privacy Policies

You may consult this list to find the Privacy Policy for each of the advertising partners of niss.au.

Third-party ad servers or ad networks uses technologies like cookies, JavaScript, or Web Beacons that are used in their respective advertisements and links that appear on niss.au, which are sent directly to users' browser. They automatically receive your IP address when this occurs. These technologies are used to measure the effectiveness of their advertising campaigns and/or to personalize the advertising content that you see on websites that you visit.

Note that niss.au has no access to or control over these cookies that are used by third-party advertisers.

Third Party Privacy Policies

niss.au's Privacy Policy does not apply to other advertisers or websites. Thus, we are advising you to consult the respective Privacy Policies of these third-party ad servers for more detailed information. It may include their practices and instructions about how to opt-out of certain options.

You can choose to disable cookies through your individual browser options. To know more detailed information about cookie management with specific web browsers, it can be found at the browsers' respective websites.

CCPA Privacy Rights (Do Not Sell My Personal Information)

Under the CCPA, among other rights, California consumers have the right to:

Request that a business that collects a consumer's personal data disclose the categories and specific pieces of personal data that a business has collected about consumers.

Request that a business delete any personal data about the consumer that a business has collected.

Request that a business that sells a consumer's personal data, not sell the consumer's personal data.

If you make a request, we have one month to respond to you. If you would like to exercise any of these rights, please contact us.

GDPR Data Protection Rights

We would like to make sure you are fully aware of all of your data protection rights. Every user is entitled to the following:

The right to access – You have the right to request copies of your personal data. We may charge you a small fee for this service.

The right to rectification – You have the right to request that we correct any information you believe is inaccurate. You also have the right to request that we complete the information you believe is incomplete.

The right to erasure – You have the right to request that we erase your personal data, under certain conditions.

The right to restrict processing – You have the right to request that we restrict the processing of your personal data, under certain conditions.

The right to object to processing – You have the right to object to our processing of your personal data, under certain conditions.

The right to data portability – You have the right to request that we transfer the data that we have collected to another organization, or directly to you, under certain conditions.

If you make a request, we have one month to respond to you. If you would like to exercise any of these rights, please contact us.

Children's Information

Another part of our priority is adding protection for children while using the internet. We encourage parents and guardians to observe, participate in, and/or monitor and guide their online activity.

niss.au does not knowingly collect any Personal Identifiable Information from children under the age of 13. If you think that your child provided this kind of information on our website, we strongly encourage you to contact us immediately and we will do our best efforts to promptly remove such information from our records.

Changes to This Privacy Policy

We may update our Privacy Policy from time to time. Thus, we advise you to review this page periodically for any changes. We will notify you of any changes by posting the new Privacy Policy on this page. These changes are effective immediately, after they are posted on this page.

Our Privacy Policy was created with the help of the TermsFeed Privacy Policy Generator.

Contact Us

If you have any questions or suggestions about our Privacy Policy, do not hesitate to contact us.


Technician

  • Desktop repairs and support
  • Basic server and SaaS admin tasks

Systems Engineer

  • Networking
  • Voice
  • Server and SaaS configuration
  • Backups and Security
  • Server maintenance
  • Application and Web Development

Senior Systems Engineer 

  • Complex server and SaaS configuration
  • Virtualization
  • Citrix
  • CISCO
  • Storage
  • Application Developer Senior

Project Manager

  • Co-ordinate and manage projects

Travel / Callout

  • Callout within niss.au Service Areas charged at a flat rate per on-site callout.
  • Travel time outside niss.au Service Areas (or beyond 50km of resource location) charged at 50% of rate for the type of work performed.
  • Additional travel expenses such as airfares and accommodation will be quoted when they apply. 

SERVICE AGREEMENT


Service agreements are based on the details provided in an online quotation delivered and signed on the website www.nis.au

These details include service provider and client names and addresses, monthly terms and commencement date.

 

BACKGROUND

The Client requires the services, as described in this Agreement (hereinafter "the Services") to be provided.

The Client wishes to hire an independent contractor to provide the Services to the Client.

The Service Provider has the necessary skills, qualifications and experience to provide the Services to the Client.

The Service Provider agrees to provide the Services to the Client on the terms and conditions set out in this Agreement.

OPERATIVE PROVISIONS

In consideration of the matters described in this document, and of the mutual benefits and obligations described in this Agreement, the receipt of which and the sufficiency of which are hereby acknowledged, the Service Provider and the Client hereby agree as follows:

1.      SERVICES

In consideration for the Client paying the Fees, and subject to the provisions of this Agreement, the Service Provider hereby agrees to provide the Client with the services as listed in the online quotation supplied:

 

The Services may also include any other tasks which the Parties may agree on.

2.      EXCLUSIONS

·         As listed in the online quotation

 

3.      LOCATION OF SERVICES

As Specified in the online service agreement quotation

4.      FEES

In consideration for the Service Provider providing the Services in accordance with this Agreement, the Client agrees to pay fees to the Service Provider ("Fees") as follows:

(1)   a monthly amount per online order

(2)   the Parties acknowledge that the Fees are exclusive of any Goods and Services Tax ("GST") that may be charged by the Service Provider and therefore that the Service Provider will be entitled to add GST to the Fees.

5.      TIMING OF SERVICES

a)      The Service Provider will commence providing the Services on per online order

b)      The Service Provider will stop providing the Services on the End Date.

6.      TERM

a)      The term of this Agreement ("the Term") will commence on the Agreement Date and will continue until the Services have been completed, or such other time as provided in this Agreement.

b)      The Term may be extended by written agreement of the Parties.

7.      DEFINITIONS

"Agreement" means this Service Agreement

"Agreement Date" means online order customer acceptance date

"Claims" means any claims, losses, proceedings, damages, punitive damages, penalties, demands, fines and liabilities whether criminal, civil, in tort, in contract or otherwise

"Client" means Cust Co Name Pty Ltd

"Commencement Date" means per online order

"Confidential Information" has the meaning described in the "Confidential Information" clause of this Agreement

“Business hours” means 8:30 am to 530 pm in the Clients Australian local time zone, Monday to Friday, excluding public holidays.

"End Date" means end of agreement monthly term from placement of order

"Fees" means fees paid by the Client to the Service Provider in accordance with this Agreement

"GST" means Goods and Services Tax imposed on a supply of goods or services in Australia, pursuant to the GST Law

"GST Law" means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth)

"Intellectual Property" includes but is not limited to processes, business systems, business know-how, trade secrets, moral rights, goodwill, registered designs, copyrights, patents, trademarks, trade dress, industrial design, trade names or other similar rights, or rights to apply for any of these rights

"Losses" means any losses including but not limited to financial losses, expenses, damages, costs including legal fees, legal costs and other expenses of any nature whatsoever

"Party" means either the Client or the Service Provider

"Parties" means the Client and the Service Provider collectively

"Receiving Party" in relation to a piece of Confidential Information means the Party which receives the Confidential Information from the other Party (whether directly or indirectly)

"Services Location" means the location as described in the "Location of Services" clause.

"Service Provider" means niss.au pty ltd. Trading as Network Integration and Support Service and NISS Group

"Services" means the services to be provided by the Service Provider to the client, the specific description of which is as described in this Agreement

"Supplying Party" in relation to a piece of Confidential Information means the Party which supplies the Confidential Information to the other Party (whether directly or indirectly)

"Termination Date" means the earlier of the date that this Agreement is terminated by the Client or the Service Provider, or the date of expiry of this Agreement

8.      INTERPRETATION

In this Agreement, unless the context otherwise requires, the following rules of interpretation shall apply:

a)      Words referring to one gender include every other gender.

b)      Words referring to a singular number include the plural, and words referring to a plural include the singular.

c)      Words referring to a person or persons include firms, corporations, associations, partnerships, joint ventures, authorities, governments bodies, organisations and other legal entities, and vice versa.

d)      Headings and titles are included in this Agreement for convenience only and shall not affect the interpretation of this Agreement.

e)      Each Party must, at its own expense, take all reasonable steps and do all that is reasonably necessary to give full effect to this Agreement and the events contemplated by it.

f)       Any obligation on a Party not to do something includes an obligation not to allow that thing to be done.

9.      PERFORMANCE OF SERVICES  

a)      The Services may be performed by the Service Provider personally, or by any employees, agents or subcontractors as chosen by the Service Provider in the Service Provider's sole discretion.

b)      The Service Provider may not use any persons to perform the Services except for those persons expressly permitted by this clause, or except for any other persons expressly permitted in writing by the Client.

c)      The Service Provider is responsible for any work undertaken by the Service Provider's subcontractors, employees or agents.

d)      Any Services undertaken by the Service Provider's subcontractors, employees or agents must be undertaken to, at a minimum, the same standards as set out in this Agreement.

e)      The Service Provider is solely responsible for any payments to the Service Provider's employees, agents, subcontractors or affiliates in relation to the provision of the Services under this Agreement, including any payments due for salary, wages, annual leave, sick leave, long service leave, superannuation and any other amounts to which the Service Provider's employees, agents, subcontractors or affiliates may be entitled in relation to the provision of the Services under this Agreement.

f)       The Service Provider is solely responsible for ensuring compliance with any legislation which applies to the Service Provider's employees, agents, subcontractors or affiliates.


 

10.  INSURANCE

a)      The Service Provider must obtain all relevant insurance policies ("the Insurance Policies"), including but not limited to:

b)      all those insurance policies required by law; and

c)      public liability insurance for a minimum of an amount to be agreed;

d)      Upon the request of the Client, the Service Provider must provide to the Client a copy of the Insurance Policies.

11.  NATURE OF RELATIONSHIP

a)      Nothing in this Agreement constitutes an employment relationship between the Client and the Service Provider or between the Client and the Service Provider's workers (such as the employees, agents or subcontractors of the Service Provider). No relationship of employer and employee is created by this Agreement.

b)      Nothing in this Agreement creates a partnership, joint venture, fiduciary relationship, agency or other relationship between the Client and the Service Provider except for the contractual relationship which is provided in this Agreement.

c)      The Parties hereby acknowledge and confirm that it is the express intention of all Parties that the Service Provider is acting in relation to the Client as a contractor and not as an employee, partner, joint venture partner, agent or otherwise.

12.  CURRENCY

Unless otherwise specifically provided, all monetary amounts contained in this Agreement are in Australian Dollars (AUD).

13.  MATERIALS, COSTS AND DISBURSEMENTS

In addition to the Fees, the Service Provider may charge the Client for materials, costs and/or disbursements incurred in performing the services, including:

Software licenses such as Operating System, MS Office, Office 365, Computer and network hardware such as PC's, monitors, routers, switches and associated cables, and cabinets.

14.  INVOICING

a)      The Service Provider must provide the Client with a tax invoice in accordance with the GST Law in relation to the Fees.

b)      The Service Provider will be entitled to invoice the Client: monthly

c)      Once the Service Provider provides a valid invoice in relation to the Fees ("the Invoice"), the Client must make payment within the following timeframe: 14 Days

d)      The client must sign up to the Service providers direct debit payment system in order to automate payments. Direct Debit payments are processed on or the 14th of each month or the closest business day if the 14th falls on a weekend.

15.  LATE PAYMENT OF INVOICE

a)      If the Client does not make payment by the due date for payment as specified in the Invoice, the Service Provider may charge interest on any amounts outstanding, at the rate of: 7 % per annum, accruing daily

b)      If the Client does not make payment by the due date for payment as specified in the Invoice, the Service Provider may refrain from providing any further Services, or any other work for the Client or any other services to the Client (even if that work or those services are dealt with under a separate service agreement) until the Invoice has been paid in full.

c)      If the Client does not make payment by the due date for payment as specified in the Invoice, the Service Provider may require the Client to pay in advance for any future Services or any part of the Services which have not been performed.

d)      If the Client does not make payment by the due date for payment as specified in the Invoice, the Service Provider may impose the following penalties:

Suspension of all or any services provided.

16.  CLIENT OBLIGATIONS

The Client:

i.     must, at the Client's own cost, take all reasonable steps to cooperate in good faith with the Service Provider during the period while the Service Provider is providing the Services to the Client, including by providing to the Service Provider any information or documentation that the Service Provider reasonably requires in order to provide the Services, and making available to the Service Provider any facilities, resources or personnel that the Service Provider reasonably requires in order to provide the Services.

ii.    must ensure that the Client's employees, agents and other contractors take all reasonable steps to cooperate in good faith with the Service Provider during the period while the Service Provider is providing the Services to the Client, including by making available any information, documentation, facilities, resources or personnel as reasonably required by the Service Provider, in accordance with this clause.

iii.  will, in the event that the Client does not provide the information, documentation, facilities, resources or personnel or does not take any other steps to cooperate with the Service Provider as the Service Provider reasonably requires, within the time period that the Service Provider reasonably requires, be liable for any additional costs and expenses which are reasonably incurred by the Service Provider.

iv.  will, purchase all information technology equipment and licenses, such as, and not exclusive to, MS office 365, laptop computers, desktop PC’s, servers, network equipment, monitors, printers etc. used in the supported network through the Service Provider.

v.    must ensure the minimum standard equipment levels are maintained including:

·   A Spare PC to be kept onsite and configured as a hot spare.

·   Use recommended equipment listed in negotiation.

·   Use only Windows Professional Operating Systems

17.  RETURN OF PROPERTY

a)      Upon the termination or expiration of this Agreement, each Party will promptly return to the other Party ("the Second Party") respectively any property, documentation, records or confidential information which is the property of the Second Party.

b)      In the event that the Client terminates this Agreement prior to completion of the Services:

i.      the Service Provider will be entitled to attend the location or locations where the Services were undertaken strictly in order to recover any materials and/or equipment which are the property of the Service Provider; or

ii.    if agreed between the Parties, the Client may retain the Service Provider's materials and/or equipment but must compensate the Service Provider for the said materials and/or equipment in an amount as agreed between the Parties.

18.  CONFIDENTIAL INFORMATION

a)      Each Party ("the Receiving Party") shall keep the confidential information of the other Party ("the Supplying Party") confidential and secret, whether disclosed to or received by the Receiving Party. The Receiving Party shall only use the confidential information of the Supplying Party for the purpose of performing the Receiving Party's obligations under this Agreement. The Receiving Party shall inform its employees, officers, agents or subcontractors of the Receiving Party's obligations under the provisions of this clause, and must ensure that the Receiving Party's officers, employees and agents meet the obligations.

b)      For the purpose of this Agreement, "Confidential Information" means all information relating to the Supplying Party which might fairly be considered to be of a confidential nature and includes, but is not limited to:

(i)      information of whatever nature, without limitation, which is obtained in any form by the Receiving Party from the Supplying Party or its advisers, or by observations during visits, or by demonstrations;

(ii)    information of whatever nature relating to the business activities, practices and finances of the Supplying Party;

(iii)  any evaluation material, design work, technologies, technological ideas or strategies, strategic plans and ideas, innovations, creative plans, concepts and any other plans or ideas developed by the Supplying Party or on its behalf or used by the Supplying Party, whether relating specifically to the Services or otherwise;

(iv)  any information derived from any other information which falls within this definition of Confidential Information;

(v)    any copy of any Confidential Information; and

(vi)  the fact that discussions are taking place between the Parties

but does not include information which:

(i)      was known or in the possession of the Receiving Party before it was provided to the Receiving Party by the Supplying Party;

(ii)    is, or becomes, publicly available, through no fault of the Receiving Party;

(iii)  is provided to the Receiving Party without restriction or disclosure by a third party, who did not breach any confidentiality obligations by making such a disclosure;

(iv)  is provided to the Receiving Party by the Supplying Party and is marked "Non Confidential"; or

(v)    is required by law or regulation to be disclosed, but in the event that this exception applies, it applies only to the absolute minimum necessary and provided that the Supplying Party is first consulted to establish whether and if so how far it is possible to prevent or restrict such enforced disclosure.

If there is any doubt as to whether any particular information constitutes Confidential Information, written confirmation is to be obtained from the Supplying Party.

This clause will survive termination or expiration of this Agreement.

19.  INTELLECTUAL PROPERTY

a)      In connection with the provision of the Services, the Service Provider may generate, create, write or produce intellectual property ("Created IP"), including but not limited to plans, reports, drawings, specifications, advice, analyses, designs, methodologies, code, artwork, or any other intellectual property as required in order to provide the Services to the Client.

b)      Unless otherwise agreed between the Parties, any intellectual property rights in any Created IP generated by the Service Provider in connection with the provision of the Services to the Client shall belong to the Client.

c)      Unless otherwise agreed between the Parties, any intellectual property rights in any intellectual property provided by the Client to the Service Provider in order to assist in the provision of the Services, shall belong to the Client.

d)      This clause will survive the termination or expiration of this Agreement.

20.  WARRANTIES

a)      The Service Provider warrants and represents that it will perform the Services using reasonable care and skill for a Service Provider in its field.

b)      The Service Provider warrants and represents that any end products or materials given by the Service Provider to the Client under the terms and conditions of this Agreement will not infringe on or violate the intellectual property rights or any other right of any third party.

c)      This clause will survive the termination or expiration of this Agreement.

21.  LIMITATION OF LIABILITY

a)      Except in cases of death or personal injury caused by either party's negligence, either party's liability in contract, tort or otherwise arising through or in connection with this Agreement or through or in connection with the completion of obligations under this Agreement, liability shall be limited to Fees paid by the Client to the Service Provider.

b)      To the extent it is lawful, neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including without limitation any economic loss, data loss, loss of goodwill, or other loss of turnover, profits or business.

c)      This clause will survive the termination or expiration of this Agreement.

22.  INDEMNITY

Except to the extent paid in settlement from any applicable insurance policies, and to the extent permitted by applicable law, each Party agrees to indemnify and hold harmless the other Party, and its respective affiliates, officers, agents, employees, and permitted successors and assigns against any and all claims, losses, damages, liabilities, penalties, punitive damages, expenses, reasonable legal fees and costs of any kind or amount whatsoever, which result from or arise out of any act or omission of the indemnifying party, its respective affiliates, officers, agents, employees, and permitted successors and assigns that occurs in connection with this Agreement. This indemnification will survive the termination of this Agreement.

23.  WORKPLACE HEALTH AND SAFETY

a)      The Client is committed to providing a workplace to its employees, agents, subcontractors, affiliates or other visitors which is healthy, safe and clean.

b)      The Client is committed to creating, motivating and maintaining a positive workplace culture, particularly in relation to workplace health, safety, welfare and wellbeing.

c)      The Client's commitment to workplace health and safety may be reflected and implemented through various standards, procedures, guidelines and/or policies ("WHS Policies").

d)      The Service Provider must, at the Service Provider's cost, comply with all relevant WHS Policies or any other standards and regulations in relation to workplace health, safety, welfare and wellbeing as required by the Client or by law.

24.  NON EXCLUSIVITY

The Parties acknowledge that this Agreement is non-exclusive and that either Party will be free, during and after the Term, to engage or contract with third parties for the provision of services similar to the Services.

25.  POST TERMINATION RESTRAINT.

The Service Provider agrees that for a period of 12 months it will not directly or indirectly endeavour to entice away from the Client or any of their related entities any person or organisation who is a client, employee, customer or contractor of the principal or any of its related entities.

26.  COMPLIANCE WITH LAWS

a)      The Service Provider must, at the Service Provider's own cost, comply with all laws which relate to or affect the Services, the Agreement or the Service Provider, including but not limited to regulations, legislation, delegated legislation, ordinances, rules, codes and any other requirements of any Federal, State or Local authorities, bodies or government departments ("the Laws").

b)      The Service Provider hereby indemnifies, keeps indemnified and holds harmless the Client against any actions, costs, charges, claims or demands in relation to a breach of the Laws.

c)      This clause will survive the termination or expiration of this Agreement.

27.  ENTIRE AGREEMENT

a)      The Parties agree that in relation to the subject matter of this Agreement, this Agreement represents the entire agreement between the Parties. The Parties confirm that no warranties, representations, conditions or collateral agreements affect this Agreement or the subject matter of this Agreement except as expressly provided in this Agreement.

b)      The Parties each respectively agree that in entering into this Agreement, they did not do so in reliance on any representations, warranties or other provisions except for those which are expressly provided in this Agreement.

c)      The Parties agree that any warranties, conditions or other terms implied by law are expressly excluded from this Agreement to the maximum extent permitted by law.

d)      No amendment to or modification of this Agreement, and no additional obligation or obligations in relation to this Agreement or the subject matter of this Agreement, will bind any Party unless evidenced in writing and signed by both Parties.

28.  NOTICES

a)      Any notice, demand, request or other correspondence in relation to this Agreement, which is required or permitted to be given in writing will be deemed validly given to the Client if delivered to the following address:

as per onlin order

 

b)      Any notice, demand, request or other correspondence in relation to this Agreement, which is required or permitted to be given in writing will be deemed validly given to the Service Provider if delivered to the following address:

55 Pyrmont Bridge Road Pyrmont NSW 2009

c)      Either Party ("the Nominating Party") may nominate another address ("the New Address") by notifying the other Party in writing of the New Address. Any notice demand, request or other correspondence in relation to this Agreement, which is required or permitted to be given in writing will, after nomination of the New Address, be deemed validly given if delivered to the Nominating Party at the New Address.

29.  WRITTEN COMMUNICATION

a)      In relation to any correspondence or notification which is required under this Agreement to be provided in writing from one Party to the other Party:

(i)      such notice is properly given if given to the other Party:

a.      by email to an email address that the other Party has nominated, acknowledged or used in connection with the Services or this Agreement.

b.      by post to a postal address the other party has nominated, acknowledged or used in connection with the Services or this Agreement.

(ii)    such notice is taken to be received:

a.      if sent by email, when the email becomes capable of being retrieved by the recipient at the relevant email address.

b.      if sent by facsimile, at the time shown of correct and complete transmission to the recipient's facsimile number by the sending machine.

c.       if sent by prepaid post within Australia, five (5) days after the date of posting.

d.      if sent by prepaid post to or from an address outside Australia, twenty one (21) days after the date of posting.

30.  TERMINATION

a)      This Agreement may be terminated by either Party, upon notice in writing:

(i)      if the other Party commits a material breach of any term of this Agreement that is not capable of being remedied within fourteen (14) days or that should have been remedied within fourteen (14) days after a written request and was not;

(ii)    if the other Party becomes unable to perform its duties under this Agreement, including a duty to pay or a duty to perform;

(iii)  if the other Party or its employees or agents engages in any conduct prejudicial to the business of the other, or in the event that either Party considers that a conflict or potential conflict of interest has arisen between the Parties.

b)      This Agreement may be terminated by the Service Provider if the Client fails to pay any requisite Fees within seven (7) days after the date they are due. The Service Provider may terminate the Agreement immediately, with no notice period, in writing.

c)      If this Agreement is terminated before the expiration of its natural term, the Client hereby agrees to pay for all Services rendered up to the date of the termination, and for any and all expenditure due for payment after the date of termination for commitments reasonably made and incurred by the Service Provider related to the rendering of Services prior to the date of termination.

d)      Any termination of the Agreement under this clause shall not affect the accrued rights and liabilities of either Party under this Agreement or at law and shall be without prejudice to any rights or remedies that either Party may be entitled to.

e)      Any part of this Agreement which is meant to continue after termination or which is meant to come into force at or after termination shall not be affected by this clause.

31.  ASSIGNMENT

Neither Party will, whether voluntarily or by operation of law, assign, subcontract, delegate, mortgage, charge or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party.

32.  DISPUTE RESOLUTION

a)      General

(i)      If a dispute arises out of or relates to this agreement, including any dispute as to breach or termination of the agreement or as to any claim in tort, in equity or pursuant to any statute, neither party may commence any court or arbitration proceedings relating to the dispute unless they have complied with this clause except where they seek urgent interlocutory relief.

(ii)    Notice specifying the nature of the dispute

(iii)  The party to this agreement claiming that a dispute has arisen under or in relation to this agreement must give written notice to the other party to this agreement specifying the nature of the dispute.

(iv)  On receipt of the notice referred to in this clause by that party, both parties must endeavour to resolve the dispute expeditiously using informal dispute resolution techniques such as mediation, expert evaluation, determination or similar techniques agreed by them.

b)      Mediation

(i)      If the Service Provider and the Client do not agree within 7 days of receipt of the notice, or such further period as agreed in writing by them, as to:

(ii)    The dispute resolution technique and procedures to be adopted;

(iii)  The timetable for all steps in those procedures; and

(iv)  The selection and compensation of the independent person required for such technique,

(v)    then they must mediate the dispute in accordance with the mediation rules of the recognised professional association for IT Professionals in the State of New South Wales.

(vi)  The president of this professional association or the president's nominee will select the mediator and determine the mediator's remuneration.

c)      Proceedings

(i)      If the mediation referred to above is not completed within four weeks of reference to a mediator then either party may commence any court or arbitration proceedings relating to the dispute as they see fit.

(ii)    Associated costs

(iii)  The costs of the mediation will be borne equally by the parties.

33.  WAIVER

a)      The waiver by either Party of any right or remedy in relation to a breach, default, delay or omission by the other Party of any provision or provisions of this Agreement will not be construed as a waiver of any subsequent breach of the same or other provisions of this Agreement.

b)      The failure or delay by either Party in exercising any right or remedy under this Agreement will not constitute a waiver of that right or remedy, nor will it prevent or impair that Party from subsequently exercising that right or remedy.

c)      Any rights or remedies provided in this Agreement are cumulative and are in addition to any rights or remedies provided by law.

34.  FORCE MAJEURE

a)      In the event that circumstances arise which:

a.      are outside of the reasonable control of a Party; and

b.      materially affect that Party's performance of its obligations under this Agreement; and

c.       could not have been reasonably foreseen or avoided;

d.      (hereinafter "the Circumstances"), then that Party will not be deemed to be in breach of this Agreement and will not have any liability under this Agreement for any delays or failures in performance of that Party's respective obligations under this Agreement.

e.      In the event that such a delay or failure occurs, the Party affected by the Circumstances must immediately notify the other Party in writing of when the Circumstances cause a delay or failure in performance, and when the Circumstances no longer cause a delay or failure in performance.

f.        Either Party may terminate this Agreement, if the Circumstances continue for a continuous period of three months or more, by providing written notice to the other Party.


 

35.  APPLICABLE LAW

This Agreement is subject to the laws of New South Wales and each Party submits to the jurisdiction of the courts of New South Wales.

36.  SEVERABILITY

If any clause or sub-clause of this Agreement is held to be invalid or unenforceable, it is to be read down or severed such that the remaining clauses and sub-clauses will be enforced to the maximum extent possible. In such circumstances the remaining provisions of this Agreement shall continue in full force and effect.

37.  SURVIVAL OF OBLIGATIONS

At the termination or expiration of this Agreement, any provisions of this Agreement which would by their nature be expected to survive termination or expiration shall remain in full force and effect, including but not limited to any provisions which explicitly state that they will survive termination or expiration.


 


Carrying out technical tasks is the core business of niss.au. Each technical task is referred to as a Service Request. Each Service Request has a ticket generated in niss.au’s ERP system.

Every service request is categorised to meet the standards of service that NISS strives to achieve.


SERVICE LEVELS

Definitions of Category service levels are:

Critical – A full-service outage
High – An incident which completely impacts the user’s ability to do work –or- an issue that partially impacts a VIP.
Medium – An incident that partially impacts the user’s ability to do work or one for which a workaround exists
Low – An incident that has no impact on the user’s ability to do work

 

SERVICE LEVEL AGREEMENTS

 All NISS customers are assigned niss.au's standard Service Level Agreement (SLA).

 NISS Standard SLA’s purpose is to ensure NISS strives to achieve high levels of customer satisfaction to the smallest customer.

Priority Action

​Low – Action within 1 business day, resolution within 3 business days
​Medium – Action within 2 hours, resolution within 2 days
​High – Immediate action, resolution within 1 business day
​Critical – Immediate action required. All other tasks to be postponed until critical category lowered

If a customer requires a guarantee that the niss.au standard SLA or higher level SLA is to be met, then these contractual SLA’s are to be included in fully executed contractual documents.


                    

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Terms and Conditions

Welcome to niss.au!

These terms and conditions outline the rules and regulations for the use of niss.au pty ptd's Website, located at www.niss.au.

By accessing this website we assume you accept these terms and conditions. Do not continue to use niss.au if you do not agree to take all of the terms and conditions stated on this page.

The following terminology applies to these Terms and Conditions, Privacy Statement and Disclaimer Notice and all Agreements: "Client", "You" and "Your" refers to you, the person log on this website and compliant to the Company’s terms and conditions. "The Company", "Ourselves", "We", "Our" and "Us", refers to our Company. "Party", "Parties", or "Us", refers to both the Client and ourselves. All terms refer to the offer, acceptance and consideration of payment necessary to undertake the process of our assistance to the Client in the most appropriate manner for the express purpose of meeting the Client’s needs in respect of provision of the Company’s stated services, in accordance with and subject to, prevailing law of Netherlands. Any use of the above terminology or other words in the singular, plural, capitalization and/or he/she or they, are taken as interchangeable and therefore as referring to same.

Cookies

We employ the use of cookies. By accessing niss.au, you agreed to use cookies in agreement with the niss.au pty ptd's Privacy Policy.

Most interactive websites use cookies to let us retrieve the user’s details for each visit. Cookies are used by our website to enable the functionality of certain areas to make it easier for people visiting our website. Some of our affiliate/advertising partners may also use cookies.

License

Unless otherwise stated, niss.au pty ptd and/or its licensors own the intellectual property rights for all material on niss.au. All intellectual property rights are reserved. You may access this from niss.au for your own personal use subjected to restrictions set in these terms and conditions.

You must not:

  • Republish material from niss.au
  • Sell, rent or sub-license material from niss.au
  • Reproduce, duplicate or copy material from niss.au
  • Redistribute content from niss.au

This Agreement shall begin on the date hereof. Our Terms and Conditions were created with the help of the Free Terms and Conditions Generator.

Parts of this website offer an opportunity for users to post and exchange opinions and information in certain areas of the website. niss.au pty ptd does not filter, edit, publish or review Comments prior to their presence on the website. Comments do not reflect the views and opinions of niss.au pty ptd,its agents and/or affiliates. Comments reflect the views and opinions of the person who post their views and opinions. To the extent permitted by applicable laws, niss.au pty ptd shall not be liable for the Comments or for any liability, damages or expenses caused and/or suffered as a result of any use of and/or posting of and/or appearance of the Comments on this website.

niss.au pty ptd reserves the right to monitor all Comments and to remove any Comments which can be considered inappropriate, offensive or causes breach of these Terms and Conditions.

You warrant and represent that:

  • You are entitled to post the Comments on our website and have all necessary licenses and consents to do so;
  • The Comments do not invade any intellectual property right, including without limitation copyright, patent or trademark of any third party;
  • The Comments do not contain any defamatory, libelous, offensive, indecent or otherwise unlawful material which is an invasion of privacy
  • The Comments will not be used to solicit or promote business or custom or present commercial activities or unlawful activity.

You hereby grant niss.au pty ptd a non-exclusive license to use, reproduce, edit and authorize others to use, reproduce and edit any of your Comments in any and all forms, formats or media.

Hyperlinking to our Content

The following organizations may link to our Website without prior written approval:

  • Government agencies;
  • Search engines;
  • News organizations;
  • Online directory distributors may link to our Website in the same manner as they hyperlink to the Websites of other listed businesses; and
  • System wide Accredited Businesses except soliciting non-profit organizations, charity shopping malls, and charity fundraising groups which may not hyperlink to our Web site.

These organizations may link to our home page, to publications or to other Website information so long as the link: (a) is not in any way deceptive; (b) does not falsely imply sponsorship, endorsement or approval of the linking party and its products and/or services; and (c) fits within the context of the linking party’s site.

We may consider and approve other link requests from the following types of organizations:

  • commonly-known consumer and/or business information sources;
  • dot.com community sites;
  • associations or other groups representing charities;
  • online directory distributors;
  • internet portals;
  • accounting, law and consulting firms; and
  • educational institutions and trade associations.

We will approve link requests from these organizations if we decide that: (a) the link would not make us look unfavorably to ourselves or to our accredited businesses; (b) the organization does not have any negative records with us; (c) the benefit to us from the visibility of the hyperlink compensates the absence of niss.au pty ptd; and (d) the link is in the context of general resource information.

These organizations may link to our home page so long as the link: (a) is not in any way deceptive; (b) does not falsely imply sponsorship, endorsement or approval of the linking party and its products or services; and (c) fits within the context of the linking party’s site.

If you are one of the organizations listed in paragraph 2 above and are interested in linking to our website, you must inform us by sending an e-mail to niss.au pty ptd. Please include your name, your organization name, contact information as well as the URL of your site, a list of any URLs from which you intend to link to our Website, and a list of the URLs on our site to which you would like to link. Wait 2-3 weeks for a response.

Approved organizations may hyperlink to our Website as follows:

  • By use of our corporate name; or
  • By use of the uniform resource locator being linked to; or
  • By use of any other description of our Website being linked to that makes sense within the context and format of content on the linking party’s site.

No use of niss.au pty ptd's logo or other artwork will be allowed for linking absent a trademark license agreement.

iFrames

Without prior approval and written permission, you may not create frames around our Webpages that alter in any way the visual presentation or appearance of our Website.

Content Liability

We shall not be hold responsible for any content that appears on your Website. You agree to protect and defend us against all claims that is rising on your Website. No link(s) should appear on any Website that may be interpreted as libelous, obscene or criminal, or which infringes, otherwise violates, or advocates the infringement or other violation of, any third party rights.

Your Privacy

Please read Privacy Policy

Reservation of Rights

We reserve the right to request that you remove all links or any particular link to our Website. You approve to immediately remove all links to our Website upon request. We also reserve the right to amen these terms and conditions and it’s linking policy at any time. By continuously linking to our Website, you agree to be bound to and follow these linking terms and conditions.

Removal of links from our website

If you find any link on our Website that is offensive for any reason, you are free to contact and inform us any moment. We will consider requests to remove links but we are not obligated to or so or to respond to you directly.

We do not ensure that the information on this website is correct, we do not warrant its completeness or accuracy; nor do we promise to ensure that the website remains available or that the material on the website is kept up to date.

Disclaimer

To the maximum extent permitted by applicable law, we exclude all representations, warranties and conditions relating to our website and the use of this website. Nothing in this disclaimer will:

  • limit or exclude our or your liability for death or personal injury;
  • limit or exclude our or your liability for fraud or fraudulent misrepresentation;
  • limit any of our or your liabilities in any way that is not permitted under applicable law; or
  • exclude any of our or your liabilities that may not be excluded under applicable law.

The limitations and prohibitions of liability set in this Section and elsewhere in this disclaimer: (a) are subject to the preceding paragraph; and (b) govern all liabilities arising under the disclaimer, including liabilities arising in contract, in tort and for breach of statutory duty.

As long as the website and the information and services on the website are provided free of charge, we will not be liable for any loss or damage of any nature.