Managed SIEM Agreement
Between
Unified IT Pty Ltd (ACN 144 048 091) (Unified IT) of 507 12-14 Claremont Street, South Yarra, VIC 3141. [Company]
AND
(The Client)
WHAT THIS AGREEMENT COVERS
DEFINITIONS
The following definitions apply in this agreement:
Client Data means the client’s data or content that Unified IT obtains through the delivery of Services.
Confidential Information means all information (whether received before or after the date of this Agreement) that is the Intellectual Property of a Party; or is by its nature confidential or proprietary to a Party; or is provided by a Party to the other Party under this Agreement where the receiving Party knows or ought reasonably to know that the information is confidential or proprietary to that Party and includes all personal, commercial, financial, legal and technical information (whether written, oral or in other recorded or tangible form) disclosed by a Party to the other Party (or to or by their respective directors, officers, employees, financiers or advisers) in relation to the business and affairs of the disclosing Party or its clients.
Intellectual Property means any copyright; registered or unregistered design, patent, trademark rights; trade, business, company or domain names; know-how, inventions, processes, trade secrets, confidential information; circuit layouts, databases or source codes; or similar rights in any part of the world, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.
IT means information technology.
TERM OF AGREEMENT
Applicability. These Terms and Conditions (“Terms and Conditions”) together with any documents referenced herein are the only terms and conditions under which [Company] (Unified IT Pty Ltd) shall provide the information technology services (the “Services”) described within the Quotation executed by [Company] and the other party thereto (the “Client”). The Terms and Conditions and Quotation are collectively referred to as the “Agreement.”
Term and Termination: The initial term of this Agreement shall commence as of the first date services are actually performed on behalf of Client by [Company] (such date, the “Start Date”) and shall continue for one year thereafter (the “Initial Term”); provided, however, that the term of this Agreement shall automatically renew for subsequent one year renewal terms each beginning on the applicable anniversary of the Start Date (each a “Renewal Term” and collectively with the Initial Term, the “Term”). [Company] may terminate this Agreement at any time by providing at least one hundred eighty (180) days’ written notice to Client. Client may terminate the Agreement at any time by providing prior written notice to [Company] and paying [Company] the Early Termination Fee (as defined below); provided, however, that Client shall not be required to pay the Early Termination Fee if (i) Client provides advance written notice of termination to [Company] at least one hundred eighty (180) days prior to the expiration of the Initial Term or any Renewal Term, as the case may be, in which case the Agreement shall end on the last day of the then-current Term (such termination, a “Non-Renewal Termination”), or (ii) Client terminates the Agreement for Good Reason (as defined below). In addition to any remedies that may be provided at law or under the Agreement, [Company] may terminate the Agreement with immediate effect with written notice to Client upon the occurrence of any of the following (each a “Cause Event”):
Client shall pay [Company] a fee (the “Early Termination Fee”) as calculated below upon the occurrence of any of the following: (i) Client terminates this Agreement, and such termination is without Good Reason, (ii) Client fails to comply with the requirements of a Non-Renewal Termination, or (iii) [Company] terminates this Agreement due to a Cause Event. The parties agree that the Early Termination Fee is a fair representation of the damages anticipated to be suffered by [Company] in the event of an early termination by Client and that the Early Termination Fee is not a penalty and is in addition to any other remedies that may be provided at law or under this Agreement. For purposes of this Agreement, the Early Termination Fee shall be calculated as follows:
Client may terminate this Agreement for “Good Reason” if [Company] fails to perform any material obligations under the Agreement and does not cure such failure within forty-five (45) days of receiving written notice from Client describing such failure in reasonable detail; provided, however, that any failure resulting from a Force Majeure Event shall not be deemed Good Reason.
Fees and Payment. In consideration of the provision of the Services by [Company], Client agrees to and shall pay all fees specified in each section of the Agreement. Invoices are payable upon receipt, unless otherwise specified in the applicable invoice. Client shall be responsible for all applicable taxes arising from the Services. On each anniversary of the Agreement Start Date, [Company] may, but shall not be required to, increase the fees set forth in the Agreement for [Company] fully managed services by the greater of: (i) five percent (5%), or (ii) the most recent annual percentage increase in the Australian Consumer Price Index. [Company] may suspend Services if Client has failed to pay any invoice within thirty (30) days of receipt. Unpaid invoices will be subject to a monthly service charge which is the lesser of one and one‐half percent (1 1/2 %) per month or the highest rate allowed by law. [Company] is not responsible to prepay any software licenses and/or subscriptions if the Client is past due for any payments claimed by [Company] to be due under the Agreement and Client acknowledges its sole and exclusive responsibility for any consequence or damages that may result from any software license or subscription expiration. [Company] may assign, transfer or factor all or any portion of its accounts receivable arising hereunder upon written notice to Client.
Third-Party Software Licensing and Subscription. [Company] reserves the right to adjust the price charged to Client for third-party software licensing and subscriptions that are re-sold, regardless of any term period referenced in Section 2 or price adjustments referenced in Section 3 of the Agreement, based on the most up-to-date pricing from the originating vendor and / or software developer. [Company] shall not be held responsible for any pricing updates from the originating vendor and / or software developer. [Company] will use commercially reasonable best efforts to notify Client upon [Company] receiving any such notification of pricing updates from the originating vendor or software developer.
Client’s Responsibilities. Client shall cooperate with [Company] in all matters relating to the Services and provide such access to its property, hardware, and software as may reasonably be requested by [Company] for the purposes of performing the Services, and respond promptly to any request by [Company] to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for the performance of the Services. Client shall provide such materials and/or information as [Company] may reasonably request to carry out the Services in a timely manner and ensure that such materials or information are complete and accurate in all material respects. Client shall also obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start and continue to obtain and maintain all necessary licenses and consents and to comply with all applicable laws in relation to the Services from and after the date on which the Services are to start and during the term of the Agreement. Client will use commercially reasonable efforts to ensure that Client’s core infrastructure hardware and any related software are current with manufacturer’s support and current best practices. Out of service life hardware and software support is considered to be undertaken only on a best-efforts basis by [Company] and at Client’s sole risk and [Company] shall not be liable for any damages, interruptions, or losses occasioned by any out of service life hardware in the event of hardware or software failure. [Company] and Client will put together a mutually agreed upon plan to refresh / replace hardware or software prior to the respective end of life, as dictated by the manufacturers of such products. Client shall designate in writing and make available to [Company] at least one qualified Client employee (the “Client Relationship Manager” or “General Manager”) with authority to (i) advise [Company] of Client’s requirements or criteria for any Services, which must not be inconsistent with this Agreement; (ii) provide information and give data with respect to the requested Service; and (iii) act and make binding decisions on behalf of Client.
Product Surcharge. [Company] reserves the right to charge Client for the reasonable and necessary time utilised in the development of quotes for hardware or software at the then current hourly rate for contracted clients which are not ultimately purchased through [Company].
Taxes. Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client to [Company] hereunder.
Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Client under the Agreement or prepared by or on behalf of [Company] in the course of performing the Services, including any items identified as such in the respective Quotation (collectively, the “Deliverables”) shall be owned by [Company]. During the term of the Agreement, [Company] hereby grants Client a license to use all Intellectual Property Rights free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicenseable, fully paid-up, and royalty-free basis to the extent necessary to enable Client to make reasonable use of the Deliverables and the Services. Upon termination of the Agreement, such license to use the Intellectual Property Rights shall immediately terminate.
Limited Warranty. (a) for a period of thirty (30) days following delivery of the Services (the “Warranty Period”), [Company] warrants that all services shall be performed in a professional manner in accordance with generally applicable industry standards. [Company]’ sole liability (and Client’s exclusive remedy) for any breach of this warranty shall be for [Company] to re‐perform any deficient Services, or, if [Company] is unable to remedy such deficiency within thirty (30) days, to void the invoice for the deficient Services. [Company] shall have no obligation with respect to a warranty claim: (i) if notified of such claim after the Warranty Period or (ii) if the claim is the result of third‐party hardware or software failures, or the actions of client or a third party. The remedies set forth herein shall be Client’s sole and exclusive remedy and [Company]’ entire liability for any breach of the limited warranty.
Client’s Acts Or Omissions. If [Company]’ performance of its obligations under the Agreement is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants or employees, [Company] shall not be deemed in breach of its obligations under these Terms and Conditions or any Quotation or otherwise liable for any costs, charges or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
Non-Solicitation Of [Company] Staff And Liquidated Damages. During any Term and for twelve (12) months thereafter, Client shall not solicit, seek to retain or retain the services (whether as an employee, independent contractor or otherwise) of any employee of [Company] (or ex‐employee within six (6) months of the employee’s date of termination of employment) that has worked to provide, or otherwise assisted with in any way, any of the Services to Client under the Agreement. Client and [Company] agree that any breach of the foregoing obligation would result in damage to [Company] and that it would be difficult to determine the damages that would be caused if the contemplated breach were to occur. Accordingly, Client and [Company] agree that for each such employee or ex‐employee solicited and/or retained in breach of this Section, the Client shall pay to [Company] the greater of Fifty Thousand Dollars ($50,000.00) or the sum of the most recent three (3) months billings for recurring Services with [Company] as liquidated damages (the “Liquidated Damages”). The parties agree that such Liquidated Damages are not a penalty, are an enforceable obligation and shall be due immediately to [Company] upon Client’s breach of this Section 11. The amount of Liquidated Damages is based upon a reasonable estimate of the foreseeable actual damages incurred by [Company] due to loss of business, loss of profitability, and replacement of such employee caused by Client’s breach.
LIMITATION OF LIABILITY. (A) NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR INTERRUPTION OF SERVICES, LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, OR LOSS OR INCREASED EXPENSE OF USE), WHETHER IN AN ACTION IN CONTRACT, WARRANTY, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR STRICT LIABILITY, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITIES. [COMPANY] SHALL NOT BE RESPONSIBLE FOR PROBLEMS THAT OCCUR AS A RESULT OF THE USE OF ANY THIRD‐PARTY SOFTWARE OR HARDWARE.
Confidential and Proprietary Information. Each party agrees that all know‐how, trade secrets, technology, business, technical and financial information, and all other non-public or proprietary information it obtains (as a “Receiving Party”) from the disclosing party (as a “Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as confidential. The Receiving Party will hold in confidence and protect all Confidential Information using the same degree of care as it uses to protect its own Confidential Information, but in no event less than reasonable care. The Receiving Party will not use any of the Disclosing Party’s Confidential Information except as may be necessary to perform its obligations under the Agreement. The Receiving Party’s nondisclosure obligation shall not apply to information that: (i) the Receiving Party can demonstrate with written evidence was known to it prior to receipt of the Confidential Information; (ii) is made available to the public through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party who does not owe a duty of confidentiality to the Disclosing Party; (iv) the Receiving Party can demonstrate with written evidence is independently developed by employees of the Receiving Party; or (v) is required to be disclosed pursuant to a regulation, law or court order. Any templates, schematics, processes or technical documentation provided by [Company] shall be deemed Confidential Information and proprietary information of [Company] without any marking or further designation. Client may use such information solely for its own internal business purposes. [Company] shall retain all rights to the aforementioned, which shall be returned to [Company] upon termination of the applicable Quotation. [Company] shall maintain the confidentiality of information in its possession regarding individual protected health information in accordance with applicable law, and shall not release such information to any other person or entity except as required by law.
Independent Contractor. [Company] and Client shall at all times be independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
No Third-Party Beneficiaries. Except as expressly set forth herein, the Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Agreement.
Assignment. Client may not assign its rights or obligations under this Agreement without the prior written consent of [Company], whether by merger (regardless of whether Client is the surviving entity), acquisition of stock or assets, change of control, operation of law, or otherwise, each of which will be considered an “assignment” for the purposes of this Section 16. [Company] may assign its rights or obligations under this Agreement without the Client’s consent to any of [Company]’ affiliates or subsidiaries, or to any successor to all or substantially all of [Company]’ business or assets (by merger, acquisition or otherwise). This Agreement is binding on, and inures to the benefit of, the parties’ authorized assignees and successors in interest. After an assignment of a party’s rights under this Agreement is validly made pursuant to this Section 16, (a) every reference in this Agreement to the assigning party will include the assignee, and (b) if [Company] assigns this Agreement pursuant to this Section 16 and the assignee assumes in writing or by operation of law all the liabilities and obligations of [Company] generally or under this agreement specifically, [Company] will be released from all its obligation to Client under this Agreement.
Disputes; Governing Law; Arbitration; Attorney’s Fees. Victorian law, without regard to its conflict of laws principles, shall govern and enforce all matters arising out of or related to the Agreement. Venue for any lawsuit between the parties shall take place in the State Courts of Victoria or the Federal Courts of Australia, and Client waives any objection to personal jurisdiction of those courts or to that venue based on forum non conveniens. Except for a claim of payments of amounts due, no legal action, regardless of form, may be brought by either party against the other more than one year after the cause of action has arisen. At the option of either Client or [Company], any dispute, including any requests for recovery or the amount of attorneys’ fees, shall be decided by binding arbitration by Arbitration Victoria in Melbourne, VIC and with all hearings occurring in Melbourne, Victoria in accordance with its Expedited Arbitration Procedures. At the request of either party, Arbitration Victoria proceedings may be conducted in secrecy. The prevailing party in any action arising out of the Agreement shall be entitled to an award of reasonable attorney’s fees and costs in addition to any other award or recovery to which such party may be entitled.
Complete Understanding; Modification. The Agreement shall constitute the full and complete understanding and Agreement between Client and [Company] and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein, even where such negotiations, discussions or Agreements were a material inducement for Client to engage [Company] to provide the Services. Any waiver, modification or amendment of any provision of the Agreement shall be effective only if in writing and signed by both Client and [Company]. In the event of any conflict between these Terms and Conditions and the Quotation, the Quotation shall govern. These Terms and Conditions prevail over any of Client’s general terms and conditions regardless whether or when Client has submitted or attempted to incorporate such terms. The provision of Services to Client does not constitute acceptance of any of Client’s terms and conditions and does not serve to modify or amend these Terms and Conditions.
Waiver and Severability. Waiver or failure by either party to exercise in any respect any right or obligation provided for in the Agreement shall not be deemed a waiver of any further right or obligation hereunder. If any provision of the Agreement is found by a court of competent jurisdiction to be unenforceable for any reason, the remainder of the Agreement shall continue in full force and effect.
Force Majeure. [Company] shall not be liable or responsible to Client, nor be deemed to have defaulted or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement or provision of Services when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of [Company] including, without limitation, acts of God, hurricanes, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemics, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdowns or power outages (each such event a “Force Majeure Event”).
Notices. Any notice or communication required or permitted to be given under the Agreement shall be in writing and addressed to the party at its applicable address specified in the Agreement and shall be deemed given: (i) upon receipt if by personal delivery; (ii) upon receipt if sent by Registered Australia post (return receipt requested); (iii) upon receipt if sent by email, or (iv) one day after it is sent if sent via next day delivery by a major commercial delivery service.
Amendment and Modification. [Company] may amend or modify these Terms and Conditions at any time by providing written notice to Client, along with a copy of the updated Terms and Conditions (or a link that can be used by Client to access such updated Terms and Conditions). Client will have thirty (30) days from receipt of such notice to review the updated Terms and Conditions and raise any objections. If Client does not object to such updated Terms and Conditions within thirty (30) days of receiving such notice, Client will be deemed to have accepted the updated Terms and Conditions.
WAIVER OF JURY TRIAL. To the extent the parties do not elect to arbitrate a dispute, each party acknowledges and agrees that any controversy that may arise out of or in any way related to the Agreement, including any tort or statutory claims, is likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to the Agreement or the parties’ relationship or the transactions contemplated hereby.
