AustinCloud Hosting Services Terms

Background

Austin IT Pty Ltd trading as Austin Technology (ABN 70 615 425 557) (Austin) operates AustinCloud, a private cloud platform hosted in Perth, Western Australia across NextDC and Vocus datacentres.

These AustinCloud Hosting Services Terms (Terms) apply to any hosting, managed server, Microsoft licensing, connectivity or remote access service that Austin provides on AustinCloud. They are attached to and form part of the Austin Technology proposal accepted by the Customer, and are accepted when the Customer signs that proposal.

The Terms follow the structure that large cloud providers use for shared responsibility, service levels and allocation of risk, applied in a way that is proportionate to a Perth based provider hosting a small number of business critical servers for an Australian customer.

1Definitions and interpretation

1.1 In these Terms, unless the context requires otherwise:

1.2 Headings are for convenience only. The singular includes the plural. A reference to a person includes a company. A reference to a law includes any amendment or replacement. Where these Terms refer to a party using reasonable endeavours, that party is not obliged to incur material unbudgeted cost or to act against its own commercial interests.

2Structure and order of precedence

2.1 The Agreement consists of the Order Form, these Terms and the Schedules. These Terms govern both the recurring hosting Services and any project work in the Order Form, such as the build of the Customer Environment. The MSA applies to any managed IT services the Customer holds from Austin and to any matter not addressed in these Terms, including the Rate Card, service desk channels, holidays observed and general provisions.

2.2 If there is an inconsistency between documents that cannot be read together, the following order of precedence applies:

(a) the Order Form;

(b) these Terms including the Schedules;

(c) the MSA.

2.3 These Terms are accepted when the Customer accepts the proposal to which they are attached, by electronic signature or otherwise in writing. No separate execution of these Terms is required, although the parties may execute the acceptance page at the end of these Terms if either prefers.

2.4 Marketing material, capability statements and prior discussions are not incorporated into the Agreement except to the extent repeated in the Order Form or these Terms.

3Term and renewal

3.1 The Agreement continues for the Initial Term and then renews automatically for successive Renewal Terms unless either party gives at least sixty (60) days written notice before the end of the then current term that it does not wish to renew.

3.2 Austin will remind the Customer in writing of the renewal date and the notice period at least ninety (90) days before the end of each term.

3.3 Microsoft Licences and certain other Third Party Services are supplied on fixed commitments that are non cancellable after the vendor’s grace period. Austin will where practicable align those commitments to the anniversary of the Service Commencement Date so that licence and hosting commitments end together. Where the Customer asks Austin to acquire licences before the Service Commencement Date, the Customer accepts the resulting overlap.

4The Services and the shared responsibility model

4.1 Austin will provide the Services described in the Order Form with due care and skill, in a professional manner, in accordance with the Agreement and with the information security controls of its ISO 27001 certified management system.

4.2 The Services are provided on a shared responsibility basis. Austin is responsible for the layers it operates and controls. The Customer is responsible for the layers it operates and controls. Schedule 3 allocates responsibility for each layer of a typical Customer Environment. Where a matter is not listed, responsibility follows control: the party with administrative control of the component is responsible for it.

4.3 Without limiting Schedule 3, Austin is responsible for:

(a) the physical datacentre facilities through its Subprocessors;

(b) the AustinCloud hosts, hypervisor, storage and network fabric;

(c) the perimeter firewall and any site to site VPN tunnel included in the Order Form;

(d) the operating system layer of each Managed Server including patching, monitoring, endpoint protection and backup where included;

(e) any remote access service included in the Order Form; and

(f) the procurement, assignment and renewal of Microsoft Licences.

4.4 Without limiting Schedule 3, the Customer is responsible for:

(a) Customer Applications, their vendors and their licensing;

(b) the content, accuracy and lawfulness of Customer Data;

(c) deciding who has access, requesting the creation and removal of user accounts, and the conduct of its users;

(d) devices used by its users to connect to the Services and the security of their credentials;

(e) its own business continuity and disaster recovery planning; and

(f) complying with the terms of any Third Party Services it uses, including the Microsoft Customer Agreement.

4.5 Austin may improve, modify or replace components of AustinCloud from time to time provided the change does not materially reduce the functionality, capacity, security or performance of the Services. Austin will give at least thirty (30) days written notice of any change that would require the Customer to take action.

4.6 Austin does not monitor, and has no visibility of, the content of Customer Data in the ordinary course of providing the Services. Austin accesses the Customer Environment only to deliver, support and secure the Services, to comply with law, or as the Customer directs in writing.

4.7 The Services are delivered from a shared, multi tenant platform. Austin segregates the Customer Environment from other tenants at the network and storage layers but does not provide dedicated physical hardware unless the Order Form states otherwise.

5Service Level Targets

5.1 Austin will use reasonable endeavours to meet the Service Level Targets in Schedule 2.

5.2 The Service Level Targets are targets and not guarantees. They describe the level of service Austin designs for, measures and reports against. They are not warranties, and a failure to meet a Service Level Target is not of itself a breach of the Agreement.

5.3 Austin does not offer service credits, rebates or fee reductions for failure to meet a Service Level Target. The parties agree this reflects Austin’s pricing, which does not carry the risk premium that credit backed service levels attract, and that the remedies in clauses 5.5 to 5.8 are proportionate and appropriate for the Services.

5.4 Austin will measure Platform Availability using its own monitoring systems and will provide a monthly availability figure for the Customer Environment on request. Austin’s monitoring records are the reference data for any question about availability unless shown to be inaccurate.

5.5 If Austin fails to meet the Platform Availability target in any calendar month, Austin will on request provide a written root cause summary within five (5) Business Days of the request and describe the corrective action taken or planned.

5.6 If a Priority 1 incident affecting the AustinCloud platform lasts longer than four (4) hours, Austin will provide a written incident report within five (5) Business Days of restoration.

5.7 A Chronic Failure occurs if Platform Availability for the Customer Environment is below 99.5 percent in each of three (3) consecutive calendar months, or below 99.0 percent in any single calendar month, in each case after excluding the matters in Schedule 2.

5.8 On a Chronic Failure the Customer may terminate the Agreement by giving thirty (30) days written notice within sixty (60) days of the end of the month in which the Chronic Failure occurred. No Early Termination Fee applies to a termination under this clause. Austin will refund any Fees paid in advance for periods after the termination date, other than Fees for Third Party Services that Austin cannot cancel or recover, which the Customer remains liable for unless Austin is able to reassign them. This is the Customer’s sole remedy for a Chronic Failure.

5.9 Support requests and incidents are handled in accordance with the priority definitions and response targets in Schedule 2. Response targets apply during Business Hours except where Schedule 2 states that a priority is handled outside Business Hours.

6Maintenance, changes and project work

6.1 Austin performs Planned Maintenance on AustinCloud within the maintenance windows in Schedule 2. Austin will give at least five (5) Business Days notice of Planned Maintenance that is expected to cause an outage to the Customer Environment and will where practicable use live migration and other techniques to avoid an outage.

6.2 Austin may perform emergency maintenance at any time where it reasonably considers it necessary to address a security vulnerability, a threat to the integrity of AustinCloud or an imminent failure. Austin will give as much notice as is practicable and will notify the Customer afterwards of what was done.

6.3 Operating system and security patching of Managed Servers is performed within the windows in Schedule 2. The Customer may request that patching of a specific server be deferred for a business reason. Austin may decline a deferral where it considers the vulnerability critical, and the Customer accepts that any deferral it requests reduces the protection Austin can provide and that Austin is not responsible for the consequences.

6.4 Either party may request a change to the Customer Environment or the Services. Changes that are Adds, Moves and Changes under the MSA and are estimated at less than four (4) hours are included in the Managed Services. Other changes are quoted and delivered as project work at the Rate Card or a fixed price, and any change to recurring Fees is recorded in a Change Order.

6.5 The Customer will cooperate with reasonable requests for reboot windows and change approvals. Where the Customer delays a reboot or change that Austin has advised is required to maintain security or stability, Austin is not responsible for the consequences of that delay.

6.6 Project work in the Order Form, including the initial build of the Customer Environment, is performed as a fixed fee where the Order Form states one, otherwise on a time and materials basis at the Rate Card. A fixed fee assumes the scope, assumptions and exclusions in the Order Form hold. Where Austin finds that the Customer’s requirements or environment differ from those assumptions, or the Customer requests additional work, Austin will propose a variation before proceeding and is not obliged to continue work that depends on it until the Customer approves it in writing.

6.7 Austin may invoice up to 50 percent of a fixed fee on acceptance of the Order Form and the balance on completion, unless the Order Form states otherwise. Any deposit is non refundable to the extent of work performed and third party commitments incurred.

6.8 Austin will notify the Customer when project work is complete. Project work is accepted when the Customer confirms acceptance in writing, or five (5) Business Days after notification if the Customer has not given written notice of a material defect, or when the Customer puts the Customer Environment into production use, whichever happens first. Where the Customer gives notice of a material defect within that period Austin will rectify it. Acceptance is not to be withheld for minor issues that do not materially affect use.

6.9 For thirty (30) days after acceptance Austin will rectify at no charge defects in its own workmanship in the project work. This does not cover faults caused by Customer Applications, changes made by the Customer or third parties, issues already present in the Customer’s environment or data, or anything outside the agreed scope.

6.10 Dates for project work are estimates and time is not of the essence. They depend on the Customer’s inputs, vendor availability, third party lead times and matters outside Austin’s control.

6.11 The Customer may cancel project work before completion by written notice and must then pay for all work performed to the date of cancellation, any costs and third party commitments Austin has reasonably incurred, and any non cancellable Third Party Services ordered for the project.

7Customer responsibilities and acceptable use

7.1 The Customer will:

(a) nominate a primary contact with authority to approve changes and receive notices and keep those details current;

(b) provide information and decisions Austin reasonably needs within a reasonable time;

(c) ensure its users keep credentials confidential and use multi factor authentication where Austin has enabled it;

(d) promptly notify Austin of any suspected security incident or unauthorised access;

(e) maintain valid licences for Customer Applications; and

(f) comply with the Microsoft Customer Agreement and any other Third Party Services terms notified to it.

7.2 The Customer will not, and will ensure its users do not, use the Services to:

(a) store or transmit material that is unlawful, defamatory or infringes a third party’s rights;

(b) attempt to access another tenant’s environment or any part of AustinCloud not allocated to the Customer;

(c) conduct security testing of AustinCloud without Austin’s written consent;

(d) send unsolicited bulk email;

(e) run cryptocurrency mining or workloads that Austin reasonably determines degrade the platform for other tenants; or

(f) circumvent licensing controls or Austin’s security controls.

7.3 The Customer is responsible for the acts and omissions of its users, contractors and any third party it gives access to the Customer Environment, including application vendors and their implementation partners, as if they were the Customer’s own.

7.4 Where an application vendor or other third party requires administrative access to the Customer Environment, the Customer will request that access in writing and Austin will provide named accounts with an agreed scope and duration. Austin is not responsible for changes made under those accounts or for their consequences.

8Microsoft and Third Party licensing

8.1 Austin supplies Microsoft Licences as a Microsoft Cloud Solution Provider partner through an indirect provider. The Customer must accept the Microsoft Customer Agreement as a condition of Microsoft Licences being assigned to it. Microsoft’s terms govern the Customer’s use of Microsoft software. Austin gives no warranty on behalf of Microsoft.

8.2 Microsoft Licences for server software are subscription licences deployed on AustinCloud under the Flexible Virtualization Benefit in the Microsoft Product Terms. The Customer authorises Austin to assign the Microsoft Licences to the Customer Environment and to report or attest licence use to Microsoft or the indirect provider as required. Austin will maintain records of licence assignment and make them available to the Customer on request.

8.3 Microsoft Licences are acquired on the commitment term stated in the Order Form. Quantities may be increased at any time and the increase is charged from activation. Quantities may only be reduced at the end of a commitment term on notice given at least fourteen (14) days before the anniversary. Microsoft Licence Fees are non refundable after the vendor’s grace period regardless of use, suspension or termination.

8.4 Austin will notify the Customer at least sixty (60) days before each Microsoft Licence anniversary of the quantities due to renew and the price for the next commitment. Unless the Customer gives notice of a change, licences renew at the same quantities.

8.5 Microsoft and other vendors set the price of Third Party Services and may change it. Where a vendor increases its price to Austin, Austin may pass that increase through to the Customer from the next commitment period on thirty (30) days notice.

8.6 The Customer will not use Microsoft software on the Customer Environment beyond the quantities licensed, will not attempt to move Microsoft Licences to another provider during a commitment, and will cooperate with any licence verification Microsoft requires. The Customer is responsible for any licence shortfall assessed against use of the Customer Environment.

8.7 Third Party Services are supplied on the terms of the relevant vendor as notified by Austin. Austin will use reasonable endeavours to pass through vendor warranties and remedies but is not itself liable for a Third Party Service beyond the remedies the vendor makes available to Austin.

9Customer Data

9.1 The Customer owns Customer Data. Nothing in the Agreement gives Austin any right in Customer Data other than the limited right to host, copy, back up, transmit and display it as necessary to provide the Services.

9.2 Customer Data hosted on AustinCloud, including backups held by Austin, is stored only in datacentres located in Australia. Austin will not move Customer Data outside Australia, or allow a Subprocessor to do so, without the Customer’s prior written consent.

9.3 Austin will not access Customer Data except:

(a) to provide, support and secure the Services;

(b) at the Customer’s written direction;

(c) to comply with a law, court order or lawful request from a government authority, in which case Austin will notify the Customer before complying unless prohibited from doing so; or

(d) to investigate a suspected breach of clause 7.

9.4 Austin will not disclose Customer Data to a third party other than a Subprocessor bound by confidentiality obligations no less protective than the Agreement, or as required by law.

9.5 Austin logs administrative access to the Customer Environment. The Customer may request a summary of administrative access to its environment for any period within the preceding twelve (12) months.

9.6 The Customer warrants that it has all rights and consents needed to store Customer Data on the Services and to allow Austin to process it as contemplated by the Agreement, and that Customer Data does not contain material that Austin is prohibited by law from hosting in Australia.

10Backup and recovery

10.1 Where the Order Form includes backup for a Managed Server, Austin will back up that server using its enterprise backup platform, store the backup on storage separate from the production environment in a write protected form, and monitor backup jobs for completion. Frequency and retention are as configured by Austin from time to time in accordance with its standard practice, and Austin will describe the current configuration to the Customer on request.

10.2 Servers, systems and data that the Order Form does not identify as backed up are not backed up by Austin. The Customer accepts that those systems will be rebuilt from configuration on failure and that any data on them may be lost.

10.3 The backup service is designed to recover from hardware failure, corruption, ransomware and accidental deletion. It is not a substitute for the Customer’s own business continuity and disaster recovery planning. Unless the Order Form states a specific Recovery Point Objective or Recovery Time Objective, the Customer is responsible for defining and meeting its own recovery objectives and for determining whether Austin’s backup configuration is adequate for its business, regulatory and contractual obligations. The Customer may request a change to the configuration, which Austin will quote.

10.4 Austin’s obligation in a data loss event is limited to using reasonable efforts to restore Customer Data from the most recent successful backup available. Restoration times depend on data volume, the nature of the failure and the availability of the backup repository and are not guaranteed.

10.5 Restores requested by the Customer to recover from user error, application fault or actions of third parties given access under clause 7.4 may be charged at the Rate Card.

10.6 AustinCloud operates across multiple Perth datacentres and Austin maintains the ability to restore Managed Servers from backup to an alternate AustinCloud datacentre following loss of a datacentre. This is a restoration capability and not a replicated or automatically failing over environment. Replication or high availability across datacentres is available as a separately quoted service.

11Security and incident notification

11.1 Austin will maintain an information security management system certified to ISO/IEC 27001 for the duration of the Agreement and will provide a copy of its current certificate on request. Austin will implement and maintain security controls consistent with the summary in Schedule 4.

11.2 Without limiting clause 11.1, Austin will:

(a) restrict administrative access to AustinCloud and the Customer Environment to authorised personnel using named accounts and multi factor authentication;

(b) apply endpoint detection and response to every Managed Server with alert monitoring;

(c) segregate the Customer Environment from other tenants at the network and storage layers;

(d) encrypt backup data at rest; and

(e) maintain vulnerability management and patching in accordance with Schedule 2.

11.3 If Austin becomes aware of unauthorised access to or disclosure, alteration or loss of Customer Data, or unauthorised access to the Customer Environment (a Security Incident), Austin will:

(a) notify the Customer’s nominated contact without undue delay and in any event within forty eight (48) hours of confirming the incident;

(b) provide the information it has about the nature and extent of the incident and the Customer Data affected;

(c) take reasonable steps to contain and remediate the incident; and

(d) cooperate with the Customer’s reasonable requests in relation to any assessment or notification obligation the Customer has under the Privacy Act 1988 (Cth).

11.4 Where a Security Incident may be an eligible data breach under the Notifiable Data Breaches scheme, the parties will cooperate to determine which party is responsible for assessment and notification. Where both parties hold the affected personal information, the Customer as the collecting entity will lead the notification unless the parties agree otherwise, and Austin will provide the information needed to do so.

11.5 The Customer may request, once in each twelve (12) month period, a written summary of Austin’s security controls sufficient to complete a reasonable supplier security questionnaire or cyber insurance proposal, which Austin will provide at no charge. Independent audits, penetration tests of the Customer Environment or bespoke assurance reports may be requested and are quoted separately.

11.6 The Customer will not conduct or authorise penetration testing, vulnerability scanning or load testing against the Customer Environment or AustinCloud without Austin’s prior written consent, which Austin will not unreasonably withhold for testing scoped to the Customer Environment and scheduled in advance.

12Fees, invoicing and payment

12.1 The Customer will pay the Fees in the Order Form. Recurring Fees are invoiced monthly in advance on the first day of each month. Fees for the first partial month are pro rated. Project and Rate Card work is invoiced on completion or monthly in arrears.

12.2 Invoices are payable within fourteen (14) days of the invoice date. Amounts are exclusive of GST, which is payable in addition.

12.3 If the Customer disputes an invoice in good faith it must notify Austin within fourteen (14) days of the invoice date with reasons, pay the undisputed portion, and the parties will work to resolve the dispute within a further fourteen (14) days. Amounts not disputed within that period are taken to be accepted.

12.4 Austin may charge interest on overdue undisputed amounts at 2 percent per annum above the Reserve Bank of Australia cash rate, calculated daily from the due date until paid, and may recover reasonable costs of collection.

12.5 Recurring Fees are fixed for the Initial Term except for:

(a) changes to resources or quantities requested by the Customer under clause 13;

(b) vendor price changes passed through under clause 8.5; and

(c) changes in Third Party Services costs outside Austin’s control, which Austin may pass through on thirty (30) days notice.

12.6 Austin may adjust recurring Fees other than Third Party Services at the start of each Renewal Term by the greater of 3 percent or the percentage increase in the Consumer Price Index (All Groups, Perth) over the preceding twelve (12) months, by giving at least sixty (60) days written notice before the Renewal Term begins.

12.7 Austin’s Rate Card may change on thirty (30) days written notice. Rate Card changes apply only to work performed after the effective date.

13Resource changes

13.1 The Customer may request an increase in vCPU, memory, storage, backup storage, remote access connections or licensed users at any time. Austin will implement increases within two (2) Business Days where capacity allows, and the increase is charged from the date it is implemented, pro rated for the first month.

13.2 The Customer may request a decrease in vCPU, memory or storage on thirty (30) days notice, provided the remaining resources are sufficient to run the Customer Environment at a level Austin considers supportable. Decreases are reflected in the next monthly invoice after the notice period. Decreases in Microsoft Licences are subject to clause 8.3.

13.3 Austin will notify the Customer if a Managed Server is consistently running at or above 85 percent of allocated CPU, memory or storage and will recommend an adjustment. Austin is not responsible for performance degradation or failure caused by the Customer declining a recommended adjustment.

13.4 Changes to the number of vCPU on a server running Microsoft software licensed per core may change the licensing required. Austin will advise the licensing consequence before implementing any such change, and the Customer accepts that additional core licences are chargeable for the remainder of the commitment period.

14Suspension

14.1 Austin may suspend the Customer’s access to all or part of the Services if:

(a) an undisputed invoice is more than thirty (30) days overdue and Austin has given at least seven (7) days written notice of intended suspension;

(b) Austin reasonably believes the Customer Environment is being used in breach of clause 7 or presents a material security risk to AustinCloud or other tenants;

(c) a law, court order or a Third Party Services vendor requires it; or

(d) the Customer Environment is compromised and suspension is necessary to contain the incident.

14.2 Austin will limit any suspension to the extent and duration reasonably necessary, will notify the Customer as soon as practicable with the reason, and will restore the Services promptly once the cause is resolved. Customer Data is preserved during suspension.

14.3 Fees continue to accrue during a suspension under clause 14.1 (a) or (b), or under clause 14.1(d) where the compromise is attributable to the Customer, its users or Customer Applications.

15Termination

15.1 Either party may terminate the Agreement with immediate effect by written notice if the other party:

(a) commits a material breach that is not capable of remedy;

(b) commits a material breach capable of remedy and fails to remedy it within thirty (30) days of written notice; or

(c) becomes insolvent, enters administration, liquidation or a scheme with creditors, or has a receiver appointed.

15.2 Austin may terminate the Agreement by written notice if an undisputed invoice remains unpaid for forty five (45) days after written notice of non payment.

15.3 The Customer may terminate the Agreement under clause 5.8 for Chronic Failure.

15.4 Either party may terminate the Agreement at the end of the Initial Term or any Renewal Term by notice under clause 3.1.

15.5 The Customer may terminate the Agreement for convenience at any other time by giving thirty (30) days written notice and paying the Early Termination Fee.

15.6 The Early Termination Fee is:

(a) the recurring Fees other than Third Party Services that would have been payable for the remainder of the then current term; plus

(b) the full remaining cost of any Microsoft Licences and other Third Party Services with a fixed commitment that Austin cannot cancel or reassign. The parties agree the Early Termination Fee is a genuine pre estimate of Austin’s loss having regard to the capacity reserved for the Customer and the non cancellable commitments Austin enters on the Customer’s behalf.

15.7 No Early Termination Fee is payable where the Customer terminates under clause 5.8 or clause 15.1, or where Austin terminates other than under clause 15.1 or 15.2.

15.8 Termination does not affect rights accrued before termination. Clauses 1, 9, 16, 17, 18, 19, 21, 22 and 25 survive termination.

16Exit and return of Customer Data

16.1 For thirty (30) days after the effective date of termination or expiry (the Exit Period), Austin will keep Customer Data available and will on request provide the Customer with an export of each virtual machine in an industry standard format and a native backup of any database Austin administers, together with configuration documentation sufficient for a competent provider to rebuild the Customer Environment.

16.2 Exports are provided to storage media supplied by the Customer or to a secure transfer location nominated by the Customer within Australia. Exit assistance, including preparation of exports and migration to another provider, is charged at the Rate Card unless the Order Form states otherwise.

16.3 During the Exit Period the Customer Environment remains running only if the Customer requests it and pays the recurring Fees for that period pro rata. Otherwise the Customer Environment is powered off at termination and retained for export.

16.4 After the Exit Period Austin will securely delete Customer Data from AustinCloud and from backup storage in the ordinary course of its retention schedule, except to the extent Austin is required by law to retain it. Austin will confirm deletion in writing on request.

16.5 Where Microsoft Licences have remaining commitment at termination, Austin will use reasonable endeavours to reassign them to the Customer’s new provider where Microsoft’s program rules permit. Where they cannot be reassigned the Customer remains liable for them under clause 8.3 unless clause 15.7 applies.

17Warranties and disclaimers

17.1 Austin warrants that it will perform the Services with due care and skill and in accordance with the Agreement, that it holds and will maintain the insurances in clause 20, and that it will comply with laws applicable to its provision of the Services.

17.2 The Customer warrants that it has authority to enter the Agreement, that it holds and will maintain licences for all Customer Applications, and that its use of the Services will comply with law.

17.3 To the maximum extent permitted by law and save as expressly set out in the Agreement, Austin makes and the Customer receives no warranty, express or implied, and all warranties of merchantability and fitness for a particular purpose are excluded. In particular Austin does not warrant that the Services will be uninterrupted or error free, that the Service Level Targets will be achieved, that any backup will be complete or restorable, or that the Services are fit for a purpose Austin has not been told of in writing and accepted.

17.4 Austin does not warrant and is not responsible for the performance, availability, security or fitness of Customer Applications, or of any Third Party Service beyond the pass through of vendor remedies under clause 8.7.

17.5 Nothing in the Agreement excludes, restricts or modifies any guarantee, right or remedy conferred by the ACL or any other law that cannot be excluded. Where the ACL applies and permits it, Austin’s liability for failure to comply with a consumer guarantee is limited, at Austin’s option, to resupplying the Services or paying the cost of having the Services resupplied.

18Limitation of liability

18.1 Subject to clause 17.5 and to the maximum extent permitted by law, Austin’s total aggregate liability arising out of or in connection with the Agreement in any twelve (12) month period, whether in contract, tort (including negligence), under statute or otherwise, is limited to the total Fees paid by the Customer under the Agreement in the twelve (12) months immediately before the event giving rise to the liability, excluding amounts for Third Party Services, project work and GST.

18.2 To the maximum extent permitted by law, Austin is not liable to the Customer for any loss of profit, revenue, business, anticipated savings, goodwill, opportunity or reputation, for business interruption, for loss of or damage to data, or for any indirect, special or consequential loss of any kind, however arising and even if Austin has been advised of the possibility of that loss.

18.3 Austin is not liable for loss, corruption or inability to recover Customer Data except to the extent directly caused by Austin’s breach of the Agreement, and in that case Austin’s liability is limited to using reasonable efforts to restore Customer Data from the most recent available backup in accordance with clause 10.4. Austin has no liability for loss of Customer Data on any system the Order Form does not identify as backed up.

18.4 Austin is not liable for any loss or damage arising out of:

(a) inaccurate, incomplete or improper information or instructions provided by the Customer;

(b) errors, defects, malware or data present in the Customer Environment or Customer Applications that were not introduced by Austin;

(c) acts or omissions of the Customer, its users, application vendors or any third party given access under clause 7.4;

(d) the Customer’s failure to follow Austin’s advice or recommendations, including under clauses 6.3, 6.5 and 13.3;

(e) hardware, software, network or environmental faults not caused by Austin, including faults in the Customer’s office network, internet service or devices;

(f) Third Party Services;

(g) a Force Majeure Event; or

(h) suspension under clause 14 or a failure to meet a time or date for delivery of any Service.

18.5 The Customer’s liability to Austin for loss of profit and consequential loss is excluded on the same basis as clause 18.2, other than in respect of the Customer’s obligation to pay Fees and the Early Termination Fee, the Customer’s indemnities under clause 19, and breach of clause 7 or clause 21.

18.6 Each party must take reasonable steps to mitigate loss it suffers in connection with the Agreement. A party must commence any claim within twelve (12) months after it first became aware, or ought reasonably to have become aware, of the facts giving rise to the claim.

18.7 Each limitation and exclusion in this clause 18 is a separate and independent limitation. The parties acknowledge that the Fees reflect the allocation of risk in this clause, that replicated high availability and enhanced backup configurations are available at additional cost, and that Austin would not provide the Services at these Fees on a different allocation.

19Indemnities

19.1 The Customer will indemnify Austin, its directors, employees and Subprocessors against any loss, cost or liability arising from a third party claim to the extent caused by:

(a) Customer Data or Customer Applications, including any claim that they infringe a third party’s rights or breach law;

(b) use of the Services in breach of clause 7 or of Third Party Services terms by the Customer or its users; or

(c) the Customer’s breach of clause 8.6 or use of Microsoft or other software beyond its licences, including any licence shortfall assessed by the vendor.

19.2 Austin will notify the Customer of the claim promptly, give the Customer reasonable control of the defence and settlement, and provide reasonable cooperation at the Customer’s cost. The Customer may not settle a claim in a way that imposes an obligation on Austin or admits fault on Austin’s behalf without Austin’s consent.

19.3 The indemnity is reduced to the extent the loss was caused or contributed to by Austin.

20Insurance

20.1 Austin will maintain for the term of the Agreement, with reputable insurers authorised in Australia, at least the following insurances:

(a) professional indemnity insurance of $10,000,000 any one claim and $20,000,000 in the aggregate;

(b) cyber insurance covering Austin’s own cyber losses of $10,000,000 any one claim and in the aggregate;

(c) cyber liability insurance for liability to others of $10,000,000 any one claim and in the aggregate, with a combined aggregate for own losses and liability to others of $10,000,000;

(d) public and products liability insurance of $20,000,000 any one occurrence; and

(e) workers compensation insurance as required by law.

20.2 Austin will provide a certificate of currency on request and at each renewal. The existence of insurance does not increase Austin’s liability beyond clause 18.

20.3 The Customer is responsible for insuring its own business interruption, cyber and data risks.

21Confidentiality

21.1 Each party will keep the other’s Confidential Information confidential, use it only for the purposes of the Agreement, and disclose it only to its personnel, advisers and (in Austin’s case) Subprocessors who need to know it and are bound by equivalent obligations.

21.2 A party may disclose Confidential Information where required by law, a court or a regulator, provided it gives the other party as much notice as is lawful and practicable and discloses only what is required.

21.3 Austin’s engineers are bound by confidentiality obligations in their employment terms. Austin will consider executing a reasonable deed of confidentiality in the Customer’s form where the Customer requires one for its own contractual reasons.

21.4 This clause survives termination for five (5) years, and indefinitely in respect of Customer Data and trade secrets.

22Privacy and Subprocessors

22.1 Each party will comply with the Privacy Act 1988 (Cth) and the Australian Privacy Principles in connection with the Agreement. Where Austin handles personal information within Customer Data, it does so only to provide the Services and as the Customer instructs.

22.2 Austin uses the Subprocessors listed in Schedule 4 to deliver the Services and remains responsible for their acts and omissions in performing the Services. Austin will give the Customer at least thirty (30) days written notice before adding a Subprocessor that will host or have access to Customer Data. If the Customer reasonably objects on security or data location grounds and the parties cannot resolve the objection, the Customer may terminate the affected Services without Early Termination Fee.

22.3 Austin will assist the Customer, at the Rate Card where the assistance is material, to respond to requests from individuals to access or correct personal information held in Customer Data.

23Force majeure

23.1 A party is not liable for failure to perform an obligation, other than an obligation to pay money, to the extent the failure is caused by a Force Majeure Event, provided it notifies the other party promptly, uses reasonable endeavours to mitigate the effect, and resumes performance as soon as practicable.

23.2 If a Force Majeure Event prevents substantially all of the Services from being provided for more than thirty (30) consecutive days, either party may terminate the Agreement on fourteen (14) days written notice without Early Termination Fee, and Austin will refund Fees paid in advance for the period after termination other than for non cancellable Third Party Services.

24Non solicitation

24.1 The non hire provisions of the MSA apply to the Agreement. Without limiting them, the Customer will not, during the term and for twelve (12) months after, directly solicit for employment or engagement any Austin employee who was materially involved in the Services without Austin’s written consent.

25General

25.1 Governing law. The Agreement is governed by the laws of Western Australia. The parties submit to the non exclusive jurisdiction of the courts of Western Australia and courts competent to hear appeals from them.

25.2 Dispute resolution. Before commencing proceedings other than for urgent interlocutory relief or recovery of undisputed debts, a party must give written notice of the dispute and senior representatives of each party must meet within ten (10) Business Days to attempt to resolve it in good faith. If unresolved after a further twenty (20) Business Days, either party may refer the dispute to mediation administered by the Resolution Institute before commencing proceedings.

25.3 Notices. Notices must be in writing and sent by email to the addresses in the Order Form or as updated by notice. A notice takes effect when the sender’s system records successful transmission unless a delivery failure is received within 24 hours. Notices of breach, termination or dispute must also be copied to the recipient’s Managing Director or equivalent.

25.4 Variation. The Agreement may only be varied by a Change Order or a document accepted in writing or electronically by both parties, except where the Agreement expressly allows Austin to make a change on notice. Austin may update these Terms for future orders; changes apply to an existing Agreement only from the next Renewal Term and on at least sixty (60) days written notice.

25.5 Assignment and subcontracting. Neither party may assign or novate the Agreement without the other’s written consent, not to be unreasonably withheld, except that either party may assign to a related body corporate or a purchaser of substantially all of its business on notice, provided the assignee assumes the obligations. Austin may subcontract performance of the Services but remains responsible for its subcontractors.

25.6 Intellectual property. Austin retains all rights in AustinCloud, its tooling, scripts, documentation templates and know how. The Customer has a non exclusive licence to use them to receive the Services. Configuration documentation specific to the Customer Environment may be retained and used by the Customer after termination.

25.7 Unfair contract terms. The parties acknowledge that the unfair contract terms provisions of the ACL may apply to the Agreement and that each party has had the opportunity to review and negotiate its terms. If a term is found to be unfair, it is severed or read down to the minimum extent necessary and the balance of the Agreement continues.

25.8 Entire agreement, severability, waiver and counterparts. The Agreement is the entire agreement between the parties on its subject matter. If a provision is invalid it is severed and the rest continues. A waiver is effective only if in writing. The Agreement may be executed electronically and in counterparts.

25.9 Relationship. The parties are independent contractors. Nothing in the Agreement creates a partnership, joint venture, agency or employment relationship.

Schedule 1Service description

The Services available on AustinCloud are described below. The specific servers, resources, quantities, licences and options the Customer has purchased are set out in the Order Form. Where a service below is not listed in the Order Form it is not included.

Not included unless stated in the Order Form

Installation, configuration, licensing and support of Customer Applications and their licence servers; support of the Customer’s end user devices, office network and internet service beyond the site to site tunnel and remote access client; replicated high availability or automatic failover across datacentres; disaster recovery testing; project work under clause 6.4; after hours work other than platform incident response under Schedule 2; and anything listed as the Customer’s responsibility in Schedule 3.

Schedule 2Service Level Targets, support and maintenance

1. Platform Availability

Platform Availability means the percentage of minutes in a calendar month during which the AustinCloud platform is capable of running the virtual machines in the Customer Environment and passing traffic to and from the Customer’s tenant network segment at the AustinCloud internet edge. It is measured per calendar month across the Customer Environment as a whole using Austin’s monitoring systems.

2. Exclusions from Platform Availability

The following are excluded when measuring Platform Availability and when assessing Chronic Failure: (a) Planned Maintenance and emergency maintenance under clause 6; (b) unavailability caused by the Customer, its users, Customer Applications or third parties acting for the Customer; (c) unavailability caused by the Customer’s site internet service, site firewall or end user devices; (d) suspension under clause 14; (e) a Force Majeure Event; (f) failure of a Third Party Service other than the datacentre facilities and network fabric that Austin controls through its Subprocessors; (g) unavailability of a single virtual machine caused by a guest operating system or application fault while the platform is otherwise able to run it; and (h) periods during which the Customer has declined a recommended change under clause 6.3, 6.5 or 13.3 that would have prevented the incident.

3. Incident priorities and response targets

Response means an Austin engineer has acknowledged the ticket, assigned a priority and begun work. Target resolution times are targets and clause 5.2 applies. Timers start when a ticket is logged through the service desk channels in the MSA with the minimum required information, and pause while Austin is waiting on the Customer or a third party. Where a P1 platform incident occurs after hours, Austin’s on call engineer is alerted automatically by monitoring and no ticket is required from the Customer.

4. Maintenance windows

5. Reporting

On request Austin will provide, within five (5) Business Days, a report for any month in the preceding twelve (12) months showing Platform Availability, incidents logged by priority and response time achieved, and patch compliance of Managed Servers. A standing monthly report can be included by Change Order.

Schedule 3Shared responsibility matrix

A = Austin is responsible. C = Customer is responsible. S = shared, with the lead party listed first. Where an item is the Customer’s responsibility, Austin will assist on a reasonable endeavours basis and may charge at the Rate Card where the work exceeds what is included in the Managed Services.

Schedule 4Security overview and Subprocessors

1. Security controls summary

2. Subprocessors

Austin will update this list and notify the Customer under clause 22.2 before any change that affects the hosting of or access to Customer Data.