Managed Terms

MANAGED SERVICES TERMS

A. Interaction with Trading Terms

  1. 1. Rosh Tech has Trading Terms which apply to all goods and services supplied by Rosh Tech to the Customer. Those Trading Terms have previously been provided to the Customer, and a current version of them can also be found on Rosh Tech’s website, currently at the location Trading Terms. These Managed Services Terms specifically apply to the particular goods and services supplied by Rosh Tech to the Customer in relation to, or associated with, Managed Services (also referred to as Managed Technology Services). Both the Trading Terms and these Managed Services Terms form part of the agreement between Rosh Tech and the Customer in relation to Managed Services. If there is an inconsistency between the terms set out in the Trading Terms and in these Managed Services Terms, then the latter will prevail.
  2. Clauses 2, 3.1.1 to 3.1.3, 3.1.6 to 3.1.9, 3.2, 4.1, 4.3 to 4.17, 5, 6, 9, 10, 11.4 to 11.8, 12 and 13 from the Trading Terms, and any definitions or terms referred to in those clauses are relevant and apply in relation to Managed Services.

B. Definitions

  1. “agreement” means the agreement with the Customer for Managed Services, which consists of the Quote (once accepted) and these Managed Services Terms.

    “ACL”, “Claim”, “Costs”, “Interest”, “Loss” and “Quote” have the meaning set out in clauses 1, 4.9.2 and 4.9.3 of the Trading Terms.

    “Backup Systems” means software, online systems, data centres and other infrastructure used by Rosh Tech to provide services to the Customer including configuring and conducting backups, testing the validity of backups, and providing redundant backups and similar services.

    “Carrier” means the provider of an internet path from the premises of the Customer.

    “Casual Support” means services provided under the agreement by Rosh Tech after the Contract Term has expired or after the agreement has been terminated.

    “Contract Term” means 36 months (or, if a different period is stated in the Quote, then the period stated), commencing when Rosh Tech issues its first invoice to the Customer for all of the elements of the Managed Services to be provided under this agreement, plus any period prior to that during which there is Partial Provisioning of the Managed Services to be provided under this agreement. For example, if there is Partial Provisioning for two months and then Rosh Tech issues an invoice for the third month for all of the elements of the Managed Services to be provided under this agreement, then the total Contract Term would be two months plus 36 months (or the other period stated in the Quote instead of 36 months).

    “Customer” means the customer named in the Quote and includes its employees or agents and successors.

    “goods” means the goods to be supplied (whether gratuitously or not) by Rosh Tech.

    “internet path” means a method by which the Customer gains access to the internet.

    “Monitoring Software” means software used by Rosh Tech to provide services to the Customer including monitoring of the Customer’s equipment, maintenance, alerting to events, reporting, remote control and remote support and similar services.

    “Partial Provisioning” means that some of the Managed Services to be provided under this agreement can be provided by Rosh Tech, but that other elements of the Managed Services to be provided under this agreement cannot yet be provided due to delays in availability or other intervening circumstances.

    “services” means the services to be performed (whether gratuitously or not) by Rosh Tech.

C. Payment, and Default and Termination

  1. The provisions of clause 4.2 of the Trading Terms (under the heading, “Payment”) do not apply to this agreement. Instead, the Customer must pay any upfront amount stated in the Quote immediately upon acceptance of said Quote, and then pay monthly amounts as stated in the Quote on the 1st day of each calendar month. During any period of Partial Provisioning, Rosh Tech may only invoice (on a reasonable basis) for, and the Customer is only required to pay for, those elements of the Managed Services to be provided under this agreement which are actually being provided by Rosh Tech. Any amounts due under this agreement must be paid promptly and cannot be deferred on the basis of any credit arrangements which may be separately entered into between Rosh Tech and the Customer.
  1. The provisions of clauses 4.1 and clauses 4.3 to 4.17 of the Trading Terms (under the heading, “Payment”) still apply to this agreement.
  1. The provisions of Clauses 11.1, 11.2 and 11.3 of the Trading Terms (under the heading, “Default and termination”) do not apply to this agreement.
  1. This agreement cannot be cancelled or terminated, except as specifically contemplated in this agreement.
  1. If the Customer wishes to terminate this agreement during the Contract Term, then Rosh Tech may elect to (but is not obliged to) provide the Customer with a payout figure which will include break costs, as well as a factor for any lost profit or other costs to Rosh Tech arising from such early termination. If Rosh Tech elects to provide such a payout figure, and if the Customer pays the relevant payout figure to Rosh Tech at the time identified by Rosh Tech, then Rosh Tech will allow termination of this agreement in return for that payment.
  1. The provisions of clauses 11.4-11.8 of the Trading Terms (under the heading, “Default and termination”) still apply to this agreement.
  1. If:
    2. i. Rosh Tech breaches an important obligation to the Customer under this agreement; and
    ii. the Customer gives Rosh Tech reasonable notice of that breach; and
    iii.  Rosh Tech does not either remedy that breach or provide the Customer with reasonable compensation for that breach within a reasonable period of time (which must have regard to Rosh Tech’s need to liaise with any third party about that breach, where relevant) after actually receiving notice from the Customer of that breach;
    then the Customer may terminate this agreement, at any time within 30 days after Rosh Tech’s failure to remedy that breach or to provide compensation for that breach, by notice to Rosh Tech.

D. Pricing will increase for Casual Support

  1. If the Contract Term has expired or the agreement has been terminated, then Rosh Tech may elect to provide Casual Support to the Customer, upon request by the Customer, in spite of that expiry or termination. However, if Rosh Tech does so, then the Customer must pay a fee for each period (corresponding to the payment period previously applying) which is 10% greater than the fee which the Customer was obliged to pay to Rosh Tech prior to the expiry or termination.
  2. If the Contract Term has expired and neither party has indicated to the other party that they want Rosh Tech to cease providing services under this agreement, then the Customer and Rosh Tech agree that this agreement will continue on a month to month basis with the monthly fee increasing to 10% greater than the fee which the Customer was obliged to pay to Rosh Tech prior to the expiry of the Contract Term. In these circumstances, either the Customer or Rosh Tech can stop the agreement from continuing by giving at least 10 business days’ notice to the other party, with the notice to be effective at the end of a calendar month.

E. Limitation or exclusion of liability

1. If the ACL applies to the relevant relationship between Rosh Tech and the Customer, then Rosh Tech is not permitted to exclude its liability for consequential loss or damage and does not attempt to do so. However, to the extent permitted by the ACL and by law generally, Rosh Tech will be under no liability whatsoever to the Customer and/or any third party for any indirect, special, consequential or exemplary Loss or Claim or personal injury suffered by the Customer and/or any third party directly or indirectly in connection with the goods and services, or directly or indirectly arising out of the agreement or otherwise from the relationship between Rosh Tech and the Customer and any third party, whether actionable in contract, tort (including negligence), equity or otherwise.

2. If Rosh Tech causes any Loss to the Customer as a result of:
i. any deficiencies in the goods or in the performance of the services; ii. any negligence of Rosh Tech; iii. or any other cause,

then (where permissible under the ACL, if it applies) the extent of Rosh Tech’s liability will be limited to a maximum of the fee actually paid to Rosh Tech by the Customer for the goods and services. Rosh Tech’s liability will also be reduced to the extent that the Customer or any other person contributed to the Loss.

3. In addition to each other limitation which applies to the relationship between Rosh Tech and the Customer, Rosh Tech is only required to (and its liability is limited to):
i. either replacing or repairing the goods, or reimbursing the Customer for the repair or replacement of the goods (at the election of Rosh Tech); and/or
ii. either re-supplying the services, or reimbursing the Customer for paying someone else to supply the same services (at the election of Rosh Tech).

4. If the ACL applies to the relevant relationship between Rosh Tech and the Customer, then this clause only applies in relation to goods and services which are not used for personal, domestic or household purposes.

F. Indemnity

1. To the extent permitted by law, the Customer indemnifies Rosh Tech against any Loss or Claim:
i. arising, directly or indirectly, in connection with the goods and services; or ii. directly or indirectly out of the agreement or otherwise from the relationship between Rosh Tech and the Customer and any third party.
2. This includes indemnifying Rosh Tech for any Loss or Claim, including Interest and Costs, associated directly or indirectly with the breach of the agreement by the Customer.
3. If the ACL applies to the relevant relationship between Rosh Tech and the Customer, then this indemnity is intended to be read down or severed, if necessary, to the extent necessary to ensure that there is no breach of the ACL.

G. Reliance on third party software

1. 1. The Customer acknowledges that it is aware that Rosh Tech must contract with providers of Monitoring Software (and, where Rosh Tech is providing the Customer with backup services, also with providers of Backup Systems), and that Rosh Tech depends on the providers of Monitoring Software (and, where relevant, the providers of Backup Systems) to perform their obligations to Rosh Tech, in order for Rosh Tech to be able to perform its obligations to the Customer under the agreement. The Customer acknowledges that it is not part of the scope of Rosh Tech’s engagement to design or deploy its own Backup Systems (even when Rosh Tech is supplying backup services to the Customer), and that Rosh Tech relies on typical commercially available Backup Systems. 2. The Customer accepts that the responsibilities and obligations of Rosh Tech under this agreement are put into context and qualified by those acknowledged factors stated in G.1 above. The Customer confirms and acknowledges that Rosh Tech is not responsible for events which Rosh Tech does not control, and that Rosh Tech’s liability to the Customer and any responsibility of Rosh Tech for any Loss or Claim to the Customer are both limited and reduced by those acknowledged factors.

H. Redundant internet paths

1. Rosh Tech recommends to the Customer that it should always maintain redundant internet paths. Rosh Tech advises that redundant internet paths should be achieved (where possible) by various means, including, for example:
i. engaging different Carriers to provide a preferred internet path and an alternate backup internet path; and/or
ii. using different technology methods to achieve a preferred internet path and an alternate backup internet path; and
iii. using technology to provide for switching between those internet paths when necessary.

2. Rosh Tech recommends that the Customer should maintain redundant internet paths because:
i. every internet path relies on technology and involves many elements, including elements which are not in the control of the Customer or of Rosh Tech, and which can be subject to physical and other interference; and
ii. doing so is likely to reduce the likelihood of loss of access to Managed Services for the Customer and is likely to reduce the adverse impact for the Customer of loss of access, if loss of access of one internet path occurs.

3. Rosh Tech can be engaged to advise on and implement redundant internet paths for the Customer, but is not engaged to do so unless that is clearly agreed to be part of the services.

4. If the Customer does not accept Rosh Tech’s recommendation that it should maintain redundant internet paths, then the Customer confirms that it has been warned that elements of any internet path may fail, and that Rosh Tech may be unable to deliver its obligations under this agreement due to the impact of loss of access to Monitoring Software and loss of access to the Customer’s hardware. The Customer also confirms that, while maintaining redundant internet paths is likely to reduce the likelihood of loss of access for the Customer, it remains possible that even redundant internet paths may fail at the same time, for reasons which are beyond the control of Rosh Tech.

I. Hardware failure and Backup Systems failure

1. The Customer acknowledges that: i. computer hardware will inevitably fail at some time, and that Rosh Tech cannot predict when particular computer hardware (even computer hardware owned by Rosh Tech) will fail; ii. even if Rosh Tech is obliged to repair or replace computer hardware after failure or to reinstall backups from Backup Systems, such repair or replacement will take time; and iii. provided that Rosh Tech provides services on agreed terms, it is not in breach of this agreement as a result of any failure of computer hardware(or any failure of Backup Systems, where relevant). 2. The Customer accepts that the responsibilities and obligations of Rosh Tech under this agreement are put into context and qualified by those acknowledged factors stated in I.1 above. The Customer confirms and acknowledges that Rosh Tech is not responsible for events which it does not control, and that Rosh Tech’s liability to the Customer and any responsibility of Rosh Tech for any Loss or Claim to the Customer are both limited and reduced by those acknowledged factors.ctors.

J. Scope of Managed Services

    1. The Managed Services provided by Rosh Tech are intended to cater for routine circumstances and do not extend to dealing with the consequences of cyber-attacks, failures requiring the reload of operating systems, or the consequences of natural disasters.
    2. “Managed” products and services provided by Rosh Tech include Managed Backup, Managed Network, Managed Server, Managed IT, Managed Security, Managed Voice, Managed Print (and may include other further products in the future) and these products and services may have different BAU Support and inclusions and different non-BAU events and exclusions than those listed here.
    3. Some of the Managed Services provided by Rosh Tech involve the supply of goods on a rental basis to the Customer.When goods are supplied on a rental basis, this will be indicated in the Product Sheets mentioned below. For example, all equipment supplied as part of a Managed Print or Managed Voice product is supplied on a rental basis. Where goods are supplied on a rental basis:

i. Those goods remain the property of Rosh Tech throughout the whole Contract Term and continue to be owned by Rosh Tech after the Contract Term;

ii. At the end of the Contract Term, the Customer may typically request to extend the Contract Term, upgrade the goods to newer hardware based on a new agreement with Rosh Tech, or return the goods to Rosh Tech;

iii. Those goods are at the risk of the Customer and the Customer must arrange insurance for the goods, ensuring that Rosh Tech is noted by the insurer as an interested party on the relevant policy; and

iv. The Customer must supply Rosh Tech with a certificate of currency of insurance meeting the above requirements, at least annually and whenever reasonably requested by Rosh Tech.

    1. Where there are differences in BAU Support, inclusions, non-BAU events and exclusions for those products and services, the details of those things will be set out in the following Product Sheets which describe the product and/or service.

a. Managed Backup
b. Managed Network
c. Managed Server
d. Managed IT
e. Managed Security
f. Managed Voice
g. Managed Print

  1. Project work and new equipment installation are not included within the scope of Rosh Tech’s manage services. Examples of project work and new equipment installation work include, but are not limited to:
      • a. Installation of new/additional hardware or equipment.
      • b. Rectification of damage caused accidentally or deliberately.
      • c. Rectification work falling outside the scope of factory warranty support.
      • d. Repetitive failures where recommendations to replace / upgrade items are ignored.
      • e. Disaster recovery planning and/or projects.
      • f. Rectification of damage caused by malicious software/actions (e.g. Viruses / Hackers)
      • g.Rectification of damage caused by cybercrime.

Should services like the above or other out of scope work be required, they will be charged at fixed fee rates or on the basis of hourly rates as set out here (https://roshtech.com.au/fixed-fee-services) or treated as fixed-price projects.

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