In this Agreement, unless the context otherwise requires, the following expressions shall have the following meanings:

“Business Hours” means our standard operating hours, as published on our website and Annex 1, excluding Australian public holidays.

“Cloud Services” means products and services ordered by the Customer via a Quotation, our online purchasing or reseller portal, or provided by us to the Customer free of charge (as applicable) or under a free trial, that enable the Customer and its End Users to access resources and information online (i.e. “in the cloud”) from any internet connected device, eliminating the need for local storage or software installation.

“Committed Term” means the minimum term that the Customer agrees to acquire Cloud Services and/or Support Services beginning from the 1st day of service of the same.

“Control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Customer Data” means electronic data and information submitted by or for the Customer to us.

“Dialpad” means the Dialpad hosted telephony services currently known as Dialpad (as the services may be renamed from time to time), as provided by Dialpad Inc to the Customer.

“Dialpad Inc” means Dialpad Inc., and includes, where appropriate, its affiliates.

“End Users” means the individuals the Customer permits to use Cloud Services or any other Goods or services provided by itGenius.

“Goods” means any software, hardware, products or goods sold or otherwise provided to the Customer by itGenius.

“Google” means Google Inc., and includes, where appropriate, its affiliates;

“Google Cloud”, “Google Workspace”, “Google Vault”, “Google Drive” or “Google Apps” means the Google services currently known as such (and as may be renamed from time to time) as provided by Google

“Intellectual Property Rights” means all industrial and intellectual property rights, both in Australia and throughout the world, and includes any copyright, moral rights, patent, registered or unregistered trademark, registered or unregistered design, trade secret, knowhow, right in relation to semiconductors and circuit layouts, trade or business or company name, indication or source or appellation of origin or other proprietary right, or right of registration of such rights.

“itGenius” means itGenius Australia Pty Ltd ACN 151 116 906 and any entity that it directly or indirectly Controls, is Controlled by, or is under common Control with and includes but is not limited to Onsite Helper.

“itGenius Material” means any material created and/or provided by itGenius to the Customer or to which access is given by itGenius to the Customer for the purposes of this Agreement or a Quotation (but does not include Third Party Material).

“Onsite Helper” means Onsite Helper Pty Ltd ACN 164 543 640.

“Quotation” or “Quotes” means a paper, electronic or online quotation (including via our website or reseller portal) for Cloud Services, Support Services and/or Goods, including any addenda and supplements thereto.

“Relevant Supplier” means the third party manufacturer and/or supplier of Goods, products and services as indicated in a Quotation e.g. Google, Dialpad Inc etc.

“Support Level(s)” or “SLA (Support Level Agreement)” means the general and/or specific services applicable to the Customer’s acquisition, which may include, but not be limited to, time, product, device, prepaid hour blocks and/or service based parameters and/or limits.

“Support Services” means the services provided by us to the Customer, including but not limited to implementation, support, managed services and security services and any non-reselling based consulting services as agreed from time to time between the parties (but excluding, for the avoidance of doubt, Cloud Services) and if applicable, at the Support Level that has been purchased or in accordance with an SLA.

“Third Party Material” means Intellectual Property Rights owned or licensed by a third party.

a. We will:

(i) make the Cloud Services, Support Services and/or Goods available to you under this Agreement, the Quotation, and, if applicable, at the Support Level that has been purchased or in accordance with an SLA. For time-based services, we charge an hourly rate, which we will either or both publish on our website and/or notify you of in advance of commencing said services.

(ii) use commercially reasonable efforts to provide the Support Services with due care and skill and make the Support Services available in the times stated in this Agreement, except for:

(I) planned downtime (of which we will give you advance notice)

(II) any unavailability caused by circumstances beyond our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labour problem, internet service provider failure or delay, or denial of service attack

(III) provide the Cloud Services, Support Services and/or Goods in accordance with laws and government regulations applicable to our provision of the same to our customers generally (i.e., without regard for your particular use), and subject to your use of the Services in accordance with this Agreement and the applicable Quotation

(iii) provide basic support/configuration if the Customer has acquired internet & VOIP services from us. Where internet and/or VOIP are not installed or lack infrastructure e.g. internal cabling etc, it is the Customer’s responsibility to arrange the same from an appropriate third party supplier and/or contractor, as its cost. Standard labor charges may otherwise apply along with any charges from the appropriate third party supplier and/or contractor. If the Customer is migrating an internet or VOIP service from a third party, it is the Customer’s responsibility to terminate its service with said third party. itGenius will not be liable for any additional charges from said third party.

b. This Agreement commences on the earlier of the date the Customer accepts it or the applicable Quotation (either in writing or online) and continues until the last to occur of all applicable subscriptions, products, or services hereunder have expired, have been shipped, have been terminated or have been provided, or the Committed Term has expired (if not renewed).

c. Unless otherwise agreed in writing, Cloud Services are purchased as subscriptions for the term stated in the applicable Quote or the applicable online purchasing or reseller portal, or if not stated will be for a minimum term of no less than 12 months, and may be subject to stated usage limits, which if exceeded may result in additional cost to the Customer.

d. The Customer:

(i) will be responsible for its End Users’ compliance with this Agreement and Quotations

(ii) acknowledges that Cloud Services are hosted services and the Customer Data is held by third party companies or their agents, and not by the Customer

(iii) agrees that it is responsible for the accuracy, quality, use and legality of its Customer Data, including but not limited to ensuring that its Customer Data is backed up properly and adequately. In particular, without limitation, it is the Customer’s responsibility to ensure that critical business data is saved externally to Cloud Services. itGenius shall not be liable for any data loss which the Customer suffers before, during or after itGenius have performed any services in relation to Cloud Services or any other services if such Customer Data is not recoverable due to there being no available or proper backup of the Customer’s Data. Moreover the Customer acknowledges that under Cloud Services neither Google, Dialpad Inc nor itGenius provide a backup service for any data and that, if it requires such a service, it is responsible for setting up its own service or engaging itGenius to supply the Customer a third party backup solution (such as Backpify). itGenius shall have no liability for the Customer’s failure to do so

(iv) agrees that it is for the Customer to determine if the Goods and/or services to be provided under this Agreement are suitable for the Customer’s business given the nature of its business and its data

(v) understands and accepts the risk that the use of third party plugins, platforms and the like which may interoperate with the Goods and/or services to be provided under this Agreement. Risk from the use of such third party products or services is a matter solely between the Customer and the applicable third party goods or service provider, even if said third party product or service may have been recommended to the Customer by itGenius. itGenius does not warrant or support such third party products or services, unless expressly provided otherwise in a Quotation or annex to this Agreement and use of the same is at the risk of the Customer. itGenius is also not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such third party products or services

(vi) will use commercially reasonable efforts to prevent unauthorized access to or use of the Cloud Services, Support Services and/or Goods

(vii) will use the Cloud Services, Support Services and/or Goods only in accordance with this Agreement, the Quotation and applicable laws and government regulations

(viii) will provide us with sufficient, free, and safe remote access to the Customer’s computer systems, networks and facilities, and, if requested or required by us, or if part of the services we have been engaged to provide is in person, on-site at the Customer’s location or facilities

(ix) will reasonably co-operate and provide us with access to its data, information and assistance reasonably necessary to enable us to comply with our obligations pursuant to this Agreement and grants us a non-exclusive licence to use the Customer Data to enable us to provide Goods and/or services under this Agreement.

(x) will not sell, resell, license, sublicense, distribute, rent or lease the Cloud Services.

e. All sales will be subject to satisfactory credit approval (and in relation to Goods, may also be subject to 3 months of payment history), either in respect of COD, credit card or direct debit payment arrangement. In placing an order with itGenius, the Customer grants approval to itGenius to seek a credit report from credit reporting agencies to permit the establishment of an account with itGenius.

f. The fees and/or prices listed in the Quotation shall be the fees and/or price current on the day of delivery or as listed in the Quotation and in the case of Goods to be supplied, are subject to change until delivery has been completed.

g. Fees and/or prices are exclusive of all country, state, and local sales, use, goods and services, fringe benefits, excise, privilege, franchise and similar taxes unless otherwise stated explicitly. Taxes imposed on itGenius in connection with Cloud Services, Support Services and/or Goods purchased pursuant to this Agreement – including without limitation in connection with processing and financial institution fees or fees on overdue payment shall be paid by the Customer and will appear as separate items on the tax invoice to the Customer.

Google Promotions or Special Pricing

From time to time, Google may offer promotional or Special Pricing plans for a limited time and subject to additional terms and conditions. To take advantage of these limited offers and incorporate it into the services provided under this Agreement, the Customer must follow the instructions provided by itGenius, use a coupon code provided by itGenius or checkout page provided by itGenius. Failure to do so will be at the Customer’s risk. In addition, the Customer must:

a. be an online-contract customer and make the acquisition via the itGenius reseller portal

b. be on a flexible or monthly contract with their existing Google Workspace account. If not and if the Customer is on an annual-commit plan, the Customer will forfeit the payment made for the annual contract if it elects to commence a new contract before expiry

c. be an existing Google Workspace customer with us for a minimum of 3 paid months at the time of upgrade

d. have a minimum of 1 user and commit to the offer for the contract term specified in the promotion, including a minimum number of licenses, which cannot be downgraded during the promotional contract term. The Customer may, however, upgrade their licenses with the same discounted cost until the renewal date.

e. not use the offer to downgrade

f. not combine the offer with any other offer unless agreed in writing by itGenius

g. agree to a minimum promotional contract term of service as specified by itGenius. In the event that the offer is terminated by the Customer prior to the end of the relevant term, the Customer must pay itGenius the amount of any shortfall between the discounted price and the amount paid to itGenius up to the date of termination. For the avoidance of any doubt, the Customer will be required to pay 100% of the remaining term.

h. receive the Customer’s formal written approval or acceptance of the applicable Quotation, and any required payment, at least seven (7) days prior to the commencement or renewal date of the relevant service. Failure to provide such approval and payment by this deadline may result in the forfeiture of the promotional pricing and the application of standard list pricing, or non-renewal of the service, at itGenius’s sole discretion.

a. The Customer must pay all fees for Cloud Services, Support Services and/or Goods acquired from us and, if applicable, in accordance with the Support Levels and/or SLA that apply thereto without set off and by the due date. Except as otherwise specified herein, in a Quotation or as required by law:

(i) fees are based on the Cloud Services, Support Services and/or Goods purchased and not actual usage. They may be on a fixed price basis or a time and materials basis. If a Quotation states that the fees are an estimate only, the Customer acknowledges and agrees that the fees will be based on itGenius’ estimate, however the final fees may be more or less than that estimate

(ii) payment obligations are non-cancelable and non-refundable (including for any unused prepaid time) and must be paid in advance

(iii) quantities purchased on a subscription cannot be decreased during any applicable fixed subscription term

(iv) unless otherwise agreed, payment for Cloud Services, Support Services or Goods must be received prior to us placing an order for the Customer. Where we have ordered and paid for Goods at your request, you must make payment without delay. We will provide you with notice of any changes to the price for Goods in order to take into account any changes in the cost incurred by us and we reserve the right to apply freight charges or delivery fees on Goods requested by you. The freight charges or delivery fees will be advised in advance. Title and property in all Goods remain vested in itGenius until full payment is received.

b. Recurring Cloud Services and Support Services are invoiced approximately 25 days in advance of the upcoming service period (meaning an invoice generated early January for a monthly service will be for the service month of February) and for Customers who sign up mid-month will be prorated on a ‘month + partial month’ basis.

c. After payment has been received for the Customer’s first order for Cloud Services, Support Services or Goods, the Customer authorises itGenius to charge such payment method for future fees and for the duration of the subscription terms. itGenius will automatically attempt to collect payment 1-15 days before the due date of any recurring subscription invoice to ensure service continuity. The Customer may at their discretion opt to remove their stored payment details via the itGenius’ accounts portal, however this is strongly discouraged and may result in cancellation or suspension of services.

d. Unless otherwise agreed, single payment amounts less than AUD$5000, payments are only accepted via credit card or automated direct debit. Single payments equal to and in excess of AUD$5000 are additionally accepted via EFT/Bank Transfer.

e. A processing fee shall be added to all credit card and direct debit payments equal to the greater of 1.5% of the total transaction amount (exclusive of taxes) OR the actual processing/merchant fee raised by the credit card processor. This fee is exclusive of taxes.

f. If payment is not received by the due date of any issued invoice, itGenius may do any or all of the following:

(i) accelerate any unpaid fee obligations under this Agreement so that all such obligations become immediately due and payable

(ii) suspend Cloud Services, Support Services and/or delivery of Goods without prior written notice to the Customer and without prejudice to any other remedy available to itGenius

(iii) charge the Customer interest at the rate of 0.0833% per month or 10% per annum of the total invoice amount above the corporate reference rate of our principal banker compounded monthly until payment is received in full, or the maximum rate permitted by law, whichever is lower

(iv) charge the Customer service restoration fees of a minimum of $65.

g. Without prejudice to the other provisions of this Agreement, itGenius may suspend or terminate the provision of Cloud Services to the Customer if the Customer fails to pay itGenius in accordance with this Agreement.

h. Accounts overdue by more than 14 days may be referred to professional collection agencies. Debt collection, solicitors’ costs and all additional administrative costs incurred in collecting outstanding accounts will be charged at cost to the Customer.

i. The Customer is responsible for providing complete and accurate billing and contact information to itGenius and notifying us of any changes to such information.

a. Support Services will, unless agreed otherwise, be supplied by itGenius remotely via email, live chat, telephone or other appropriate medium such as screen-share or video conference. The Customer will provide us with sufficient, free, and safe remote access to the Customer’s computer systems, networks and facilities, and, if requested or required by us, or if part of the Support Services we have been engaged to provide is in person, on-site at the Customer’s location or facilities.

b. The Customer will provide itGenius with all necessary configuration information relating to the Customer’s current IT systems so far as it is necessary for itGenius to perform the Support Services under this Agreement. This includes but is not limited to access to Customer’s IT systems, routers & network equipment, email hosting systems, DNS/domain name management console, local computers etc. Where the Customers’ IT systems are managed by a third party, the Customer will instruct and liaise with the third party servicer provider to ensure itGenius is granted access to these systems.

c. Outside of Cloud Services supplied by itGenius, the Customer shall ensure that all software in use by it is fully licensed and that all software media is available should it be required by itGenius.

d. Unless otherwise agreed, Support Services will be performed by us during itGenius’ Business Hours. Delivery of Support Services outside Business Hours will be charged at an hourly rate, which we will either or both publish on our website and/or notify you of in advance of commencing said services.

e. itGenius may subcontract the performance of all or any part of its obligations under this Agreement. itGenius remains liable for the acts and omissions of its subcontractors, as if they were its own acts and omissions. For the avoidance of doubt, Relevant Suppliers are not itGenius’ subcontractor where the Customer and the Relevant Supplier enter into an additional agreement.

a. The minimum Committed Term for a subscription to Cloud Services and/or Support Services is specified on a per-product basis in the Quotation, or as annexed to this Agreement (or may be separately agreed in writing between the parties).

b. At least 30 days prior to the expiry of a subscription period, either party may notify the other that it does not wish for the subscription to be renewed and in that event, the subscription will expire at the end of the initial period or then-current renewal period (as applicable). In the event that the Customer does not advise itGenius that it does not wish for the subscription to be renewed, the subscription will continue to be provided but will revert to being on a month to month basis at itGenius’ prevailing pricing, unless the subscription is terminated earlier in accordance with this Agreement, the parties otherwise agree, it relates to Cloud Support (which will renew annually) or the Customer opts to renew on an annual basis. Except as expressly provided in the applicable Quotation, renewal of promotional or one-time priced subscriptions will be at itGenius’ applicable list price in effect at the time of the applicable renewal.

c. You must provide us with at least 30 days’ notice to cancel any monthly subscriptions and must pay all monthly subscription amounts (and any other costs or expenses incurred by us in terminating the subscription, including but not limited to fees charged by the third-party subscription provider) up to and until the effective termination of your subscription.

d. Our goods and services come with guarantees that cannot be excluded under Australian Consumer Law. For major failures, you are entitled to:

(i) cancel your contract with us and

(ii) a refund for the unused portion or compensation for its reduced value.

You are also entitled to choose a replacement for major failures with Goods. If a failure does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done, you are entitled to a refund for the goods and to cancel the contract and obtain a refund for any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.

e. We do not offer refunds for change of mind.

a. itGenius undertakes to use its best endeavours to hold any confidential information belonging to the Customer which itGenius encounters during the performance of its duties under this Agreement in trust and confidence and will not at any point in time disclose to any person, corporation or entity, nor use for its own business or benefit, any such information without the express written consent of the Customer or where required by law, provided that itGenius may disclose such confidential information as reasonably necessary in the delivery of services to companies such as Google, Dialpad Inc or others in connection with the provision of respective services to the Customer.

b. The Customer gives equal and corresponding undertakings in respect of confidential information belonging to itGenius.

a. The Customer acknowledges that, in the course of this Agreement, itGenius may collect personal data relating to the Customer and the End Users. The Customer consents to itGenius providing such personal data to Google or Dialpad Inc but otherwise shall only use such personal data for the purposes of complying with its obligations as set out in this Agreement. The Customer acknowledges that as Google and Dialpad Inc are both US companies with a group of related companies around the world, when personal data is transferred to Google or Dialpad Inc, it may be transferred outside of Australia.

b. itGenius may disclose personal data relating to the Customer and the End Users to other third parties so as to perform its obligations or as allowed under the Privacy Act 1988. If the Customer would like to access this information they can do so by contacting itGenius at [email protected] or at PO Box 417, Crows Nest NSW 1585. The Customer can also correct this information if it is inaccurate, incomplete or out of date.

c. The Customer should notify any End User of the ways in which their personal information may be processed as set out in this Agreement and is responsible to obtain any relevant consents from their End Users for their personal information to be processed in these ways.

a. Each party represents that it has validly entered into this Agreement and has the legal power to do so.

b. Except as expressly provided in this Agreement and to the extent permitted by law, liability for all representations and warranties, whether implied, express or otherwise, are excluded. Manufacturers may provide separate warranties which will likely accompany the item on delivery and you are entitled to seek a remedy directly from us or the manufacturer, however, to accelerate processing any warranty claim it may be prudent to contact the manufacturer directly.

c. Where any statute or law implies warranties or conditions into this Agreement, which cannot be lawfully modified or excluded under this Agreement (“Non-excludable Condition”) then this Agreement will be read subject to such Non-excludable Condition. Where such statute or law permits, itGenius limits its liability to the Client for breach of such Non-excludable Condition to re-performing the services or paying for the re-performance.

d. To the maximum extent permitted by law and notwithstanding any other clause of this Agreement, itGenius will not be liable to the Customer for indirect or consequential loss or damage of any kind, loss of profits, loss of opportunity, revenue and economic loss, loss of data, failure to realise expected profits or savings, overhead costs, loss of reputation or goodwill arising out of or in any way connected with this Agreement (including under statute or in tort).

e. Notwithstanding any other clause of this Agreement, the total extent of itGenius’ aggregate liability to the Customer, whether arising under or in connection with this Agreement or the performance or non-performance thereof or anything incidental thereto, is limited to an amount equivalent to the fees paid by the Customer to itGenius over a 6-month period. The parties agree that this is a reasonable allocation of liability between them in all the circumstances including the availability of insurance and the nature and price of the services provided herein.

f. To the extent permitted by law the liability of a party under or in connection with this Agreement will be reduced proportionately by the extent, if any, to which a breach, or the negligent acts or omissions of, the other party (or its personnel) caused or contributed to the relevant loss suffered or incurred by the other party.

g. A Force Majeure event means anything outside reasonable control of a party, including but not limited to:

(i) power, data or communication outages, virus, sabotage

(ii) acts of God

(iii) industrial action

(iv) any legislation or regulation and any action or inaction of any government or government agency.

h. If any party is wholly or partially unable to perform its obligations because of a Force Majeure event except for its obligation to pay money, then:

(i) as soon as reasonably practicable after the Force Majeure event arises, the party must notify the other party of the extent to which the notifying party is unable to perform its obligations and

(ii) that party’s obligation to perform will be suspended for the duration of the delay arising directly out of the Force Majeure event.

i. Whilst itGenius Australia takes every care and precaution in the preparation of its marketing materials, technical brochures, price lists, and its other literature (including emails, online website(s), social media accounts and other digital publications), these documents are for the Customer’s general guidance only. The Customer agrees that it has not relied on any representation made by itGenius which has not been expressly stated in this Agreement or Quotation or upon any catalogue, price lists or other literature produced by or on behalf of itGenius.

a. A party may terminate this Agreement for cause

(i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or

(ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

b. The Customer may terminate this Agreement by notice in writing on no less than 4 week’s notice. A minimum 1 hour termination fee will be charged upon termination, to cover the cost of providing the Customer with all relevant documentation from their account, removal of the Customer’s documentation, billing and remote access from itGenius’ system, advising the Customer on password reset, and 15 minutes for handover to the Customer’s new IT service provider or IT manager. The Customer may request for additional time from itGenius for the handover which will be charged on a time basis. All outstanding invoices must be paid before itGenius is required to hand over documentation, including login details, as part of the termination/handover process.

c. itGenius may terminate this Agreement by notice at any time if

(i) the Customer’s business is no longer a fit for our services e.g. the size of the business or the type of business that requires a specific IT requirement

(ii) the Customer is not aligned with our values and ethics

(iii) we have discontinued providing support for a product the Customer is seeking support for

(iv) our reseller rights have come to an end (and in that instance, we will use reasonable endeavours to migrate the Customer to a direct relationship with the Relevant Supplier)

(v) the Customer has repeatedly been in arrears.

d. On termination or expiry this Agreement:

(i) itGenius will cease to provide goods and services under this Agreement to the Customer

(ii) accrued rights or remedies of a party are not affected

(iii) the Customer must pay all outstanding fees

(iv) except as expressly specified otherwise, all licences and similar rights granted, cease to be granted immediately.

e. itGenius may suspend this Agreement in any circumstances in which it is entitled to terminate this Agreement. itGenius will restore the Customer’s access to goods and services as soon as reasonably possible once the reason for the suspension has been addressed or removed.

a. itGenius retains ownership of all Intellectual Property Rights subsisting in all itGenius Materials.

b. Any modification or enhancement to any itGenius Materials is deemed to form part of the itGenius Materials (as applicable) and all Intellectual Property Rights in such modification or enhancement vest in itGenius immediately from creation.

c. itGenius grants to the Customer:

(i) a perpetual, non-exclusive, non-assignable, non-sublicensable, global licence to use the Intellectual Property Rights in any itGenius Materials that form part of the services provided under this Agreement, solely for the purpose of the Customer’s internal business use and

(ii) for as long as this Agreement exists, a non-exclusive, non-assignable, non-sublicensable, global licence to use the Intellectual Property Rights in any itGenius Materials that form part of the services, solely for the purpose of enjoying those services for the Customer’s internal business use.

d. The Customer acknowledges that Goods and/or services provided under this Agreement may include Third Party Material. Any rights you may have to access Third Party Material shall be limited to extent of itGenius’ ability to pass on such rights to the Customer.

e. The Customer hereby grants itGenius permission to use and publish in any medium or format whatsoever, including without limitation, on our website or marketing collateral, the Client’s name, logo and trademark and references to the fact that the Customer is a customer of itGenius.

a. During the currency of this Agreement and the Restraint Period, the Customer will not solicit or entice any employee or contractor of itGenius to work for the Customer or any competitor of itGenius’ business, unless the Customer obtains itGenius’ prior written consent. Restraint Period means:

(i) 24 months after the termination or expiry of this Agreement

(ii) 12 months after the termination or expiry of this Agreement

(iii) 6 months after the termination or expiry of this Agreement.

b. The undertakings in the prior clause constitute a separate and independent provision, severable from the other undertakings and enforceable by itGenius separately against the Customer and independently of each of the other undertakings. If a court of competent jurisdiction decides any such undertaking to be unenforceable in whole or in part, the enforceability of the remainder of that undertaking or any other undertaking will not be affected.

c. The Customer agrees that the undertakings contained in this clause and resulting from any combination of the wording are no more extensive than is reasonable to protect itGenius.

a. This Agreement shall be governed by and construed in accordance with the law in force in New South Wales in Australia and all disputes arising in connection with this agreement shall be submitted to the jurisdiction of the courts in New South Wales in Australia.

b. Any and all notices, demands, or other communications required or desired to be given by any party shall be in writing and shall be validly given or made to another party if sent by registered mail. Such notice shall be conclusively deemed given seven business days after the date of posting to the following address: PO Box 417, Crows Nest NSW, 1585 Australia. Any and all notices should also be cc’d to [email protected] & [email protected] for expedited response.

c. All of the provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, if any, successors, and assigns.

a. If there is any inconsistency between the provisions of this Agreement, a Quotation and any annexed document, a descending order of precedence will be accorded to:

(i) any annexed document

(ii) this Agreement

(iii) the Quotation

so that the provision in the higher ranked document, to the extent of the inconsistency, will prevail.

b. The parties agree that any standard terms, purchase order terms or similar that are provided or made available by the Customer will have no legal effect.

c. Unless expressly stated otherwise in this Agreement, the rights and remedies under any indemnity or otherwise provided hereunder are cumulative and not exclusive of any rights or remedies provided by law or any other right or remedy.

d. This Agreement:

(i) may only be amended or varied by written agreement between the parties

(ii) supersedes all previous agreements about its subject matter and embodies the entire agreement between the parties.

e. To the extent permitted by law, any statement, representation or promise made in any negotiation or discussion is withdrawn and has no effect except to the extent expressly set out or incorporated by reference in this Agreement. Each party acknowledges and agrees that it does not rely on any prior conduct or representation by the other party in entering into this Agreement.

f. The Customer must do all things necessary to give effect to this Agreement and the transactions contemplated by it.

g. A clause or part of a clause of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining clauses or parts of the clause continue in force.

h. Failure of either party to enforce rights under this Agreement shall not constitute a waiver of such rights.

i. Waiver by one party hereto of breach of any provision of this Agreement by the other shall not operate or be construed as a continuing waiver.

j. The various rights and remedies of the parties under this Agreement or otherwise shall be construed to be cumulative, and no one of them shall be exclusive of any other or of any right or remedy allowed by law.

k. This Agreement shall not render itGenius an employee, partner, agent of, or joint venture with the Customer for any purpose. itGenius is and will remain an independent consultant in its relationship to the Customer.

This Annex sets out the Service Levels applicable to the Customer’s acquisition of Managed Support and/or Cloud Concierge Support Services from itGenius.

This excludes any resold services, which have their own applicable Service Level Agreements.

Business Hours:

12:00 AM – 5:00 PM and 11:00 PM – 12:00 AM Australian Eastern Standard Time (AEST/AEDT), or
12:00 AM – 2:00 AM and 8:00 AM – 12:00 AM American Eastern Time (AET/AEDT).

Support Levels

Each level of Cloud Concierge and Managed Support has different inclusions and benefits advertised from time to time on the itGenius website. These tiers are defined below with a broad summary:

• Quickfix: One time Support Services as per our catalogue of support services available at itgenius.com
• TechDone: One time Project Services as per our catalogue of support services available at itgenius.com
• Community: Google Workspace Licence holders with itGenius to access basic enablement and discounts to key Support Services.
• Starter: Essential Google Workspace Business ed. support, DNS management & customer enablement services for businesses under 10 seats.
• Growth: Complete Google Workspace Business ed. support with ongoing security & performance monitoring for businesses under 50 seats.
• Scale: Complete Google Workspace Enterprise ed. support with ongoing enterprise security and performance monitoring for businesses above 50 seats.

Support Categories

All Support Items are categorised into the following based on impact to the Client’s business:

• P1 (Emergency): Business continuity emergency.
• P2 (Urgent): High priority, significant business disruption.
• P3 (Regular): Normal technical, non-disruptive incidents.

Our Responsibilities

Clients on Scale & Premium Managed Support will receive priority Service over Clients on the other Service Levels. Support Items for Clients on Service Levels (other than Scale & Premium) will be prioritised based on urgency and the time the Support Item is received. For these Clients itGenius uses commercially reasonable efforts, while making no guarantees whatsoever, to meet the response times set forth in the table below:

Customer Responsibilities

To initiate itGenius Resolution SLAs, the customer agrees to the following:

• Provide itGenius with sufficient, free and safe remote access to the Customer’s computer systems, networks and facilities, and, if requested or required by us, or if part of the Support Services we have been engaged to provide is in person, on-site at the Customer’s location or facilities.
• Provide itGenius with all necessary configuration information relating to the Customer’s current IT systems so far as it is necessary for itGenius to perform the Support Services under this Agreement. This includes but is not limited to access to Customer’s IT systems, routers & network equipment, email hosting systems, DNS/domain name management console, local computers etc.
• Where the Customer’s IT systems are managed by a third party, the Customer will instruct the third party service provider to ensure itGenius is granted access to these.
• Ensure that all software in use by it is fully licensed and that all software media is available should it be required by itGenius.
• Ensure that its Customer Data is backed up properly and adequately. In particular, without limitation, it is the Customer’s responsibility to ensure that critical business data is saved externally to Cloud Services.
• Acknowledge that while itGenius will use third-party migration tools for data migration, the migration may not be 100% complete due to design or error, and itGenius will not be responsible for achieving a higher degree of migration efficacy than the tools themselves provide. For these reasons, the Customer should ensure that it has a backup of all data being migrated and that such backup is retained for as long as the Customer might require or desire to access and use such data in the future.

Committed Term

Minimum Annual Subscription: 12 months

Flexible Subscription: 2 months (30 days renewal term after first Committed Term)

Committed Term

Minimum Annual Subscription: 12 months

Flexible Subscription: 1 month

Additional Terms

1. After signing this Agreement and once itGenius has set up the Customer’s Google Cloud account in accordance with this Agreement, itGenius shall provide the Customer with the log in details provided by Google to itGenius, to enable the Customer to log on to Google Workspace. When the Customer first logs on to Google Workspace, Google will present the Google terms of service (“Google ToS”) to the Customer. The Google ToS must be accepted by the Customer before it can gain access to, or use, Google Workspace. The Google ToS shall form an agreement between Google and the Customer relating to the provision of Google Workspace to the Customer by Google. The Customer shall comply with the terms of the Google ToS.

2. Google may provide technical support services directly to the Customer’s IT administrators, pursuant to the technical support services guidelines specified in the Google ToS. The Customer may choose, in its sole discretion, to include itGenius in communications with Google. If authorized by the Customer, itGenius may submit issues to Google on behalf of the Customer.

3. Google Workspace will be provided in accordance with the service level agreement (“SLA”) located at https://workspace.google.com/terms/apac-reseller-premier-terms/. This SLA may be updated periodically by Google. In the event of a breach of the SLA, itGenius will provide to the Customer only the remedies specified in the SLA, all in accordance with and subject to the terms of the SLA. The Customer accepts the SLA as setting out its entire rights and remedies against itGenius in the event of a failure by Google to provide, or any defect, or service failure, in, Google Workspace or any unavailability of Google Workspace.

4. The Customer’s use of Google Workspace is subject to the Customer’s compliance with Google’s acceptable use policy (the “AUP”) which is posted at Google’s website at https://workspace.google.com/terms/premier_terms/ or such other address as Google may use from time to time.

5. itGenius may suspend access to, or terminate, the Customer’s use of Google Workspace if (a) the Customer engages in illegal or deceptive trade practices or any other behaviour prohibited by the Google ToS or otherwise by applicable terms of use for Google Workspace; or (b) if Google terminates or suspends the provision of Google Workspace to the Customer.

6. When the Customer uses Google Workspace, Google may collect, maintain and use certain personal information about the Customer. In the Google ToS Google agrees to deal with such personal information in accordance with the Google Workspace Privacy Notice which is posted at Google’s website at https://policies.google.com/privacy or such other address as Google may use from time to time. The Customer acknowledges that it has read the said privacy policy and accepts its terms.

7. The Customer acknowledges that in providing data migration services, itGenius may use tools made available to business customers by Google or 3rd party companies for the purposes of migrating data from mail servers and software clients to Google Cloud and that the design and efficacy of these tools is not within the control of itGenius. Accordingly, the Customer acknowledges that while itGenius will use third party migration tools, the migration of data achieved by these tools may not be 100% complete and that itGenius will not be responsible for achieving a higher degree of migration efficacy than the tools themselves provide. For these reasons, the Customer should ensure that it has a backup of all data being migrated and that such backup is retained for as long as the Customer might require or desire to access and use such data in the future.

Committed Term

Minimum Annual Subscription: 12 months

Additional Terms

1. Upon signature and acceptance of the Quotation for Dialpad licenses and setup fees, the Customer agrees to have tested Dialpad in different network situations and across different devices and declares the quality of the product is acceptable to their use.

2. itGenius will not provide refunds or early cancellation for Dialpad licenses outside of Committed Term for claims of poor network performance, system quality or features except where Dialpad Inc has acknowledged and granted a special refund to the Customer at their own discretion.

3. An annual fee is payable to itGenius Australia by the Customer for Dialpad. The annual fee is payable in advance although itGenius Australia may first provision the Customer with temporary trial Dialpad licences on initial setup to facilitate such set up and the calculation of how many Dialpad licences the Customer shall need.

4. Dialpad Inc’s online administration interface includes the ability to ‘Add a License’ to facilitate the Customer adding additional staff members to Dialpad in a ‘self serve’ manner. The Customer acknowledges that any licenses added via the online interface by Dialpad administrators operating under the Customer’s Dialpad account are binding and non-refundable. itGenius advises that there is a recurring software bug that will, at times, show additional license prices in USD or NZD instead of the correct AUD user/room license pricing. For the avoidance of doubt, licenses added via ‘self service’ administration will be billed according to the nominal user, department or room license rate charged to the Customer for other licenses.

5. Once itGenius has set up the Customer’s Dialpad in accordance with this Agreement, itGenius shall provide the Customer with the log in details provided by Dialpad to itGenius, to enable the Customer to log on to Dialpad. The Dialpad ToS shall form an agreement between Dialpad Inc and the Customer relating to the provision of Dialpad to the Customer by Dialpad Inc. The Customer shall comply with the terms of the Dialpad ToS. Dialpad’s current terms are available at https://dialpad.com/legal and may change from time to time.

6. The Customer shall only be entitled to have Dialpad used by the number of End Users for which it has purchased the service from time to time. The number of End Users for which the Customer is purchasing Dialpad as at the date of this Agreement will be set out in writing by itGenius. The Customer may increase the number of End Users subject to first notifying itGenius and paying itGenius the additional fees due. Reducing licenses will only be available during the 30 days prior to renewal dates and is subject to the minimum required per license type. Prorated refunds or credits of annual license fees will not be issued for license downgrades, however each active user license may be ‘transferred’ to other users an unlimited number of times (allowing for staff changes without requiring new licenses unless total staff headcount increases).

7. Dialpad will issue 1 free administrator user license to the Customer for the access purposes of itGenius, which must be kept active in Dialpad by the Customer for itGenius to deliver support and gather usage data. In addition, to facilitate this access, the Customer must retain an active, non-administrator mailbox within their primary email domain named itGenius@[companydomain] (at the potential cost of the Customer) to facilitate itGenius’ access. If itGenius is restricted from accessing the Customer’s Dialpad account by way of either of these administration accounts being restricted, reassigned, disabled or deleted – itGenius reserves the right to temporarily suspend the service of Dialpad to the Customer until administration access is reactivated.

8. Dialpad Inc may provide technical support services directly to the Customer’s IT administrators, pursuant to the technical support services guidelines specified in the Dialpad Inc ToS. The Customer may choose, in its sole discretion, to include itGenius in communications with Dialpad Inc. If authorized by the Customer, itGenius may submit issues to Dialpad Inc on behalf of the Customer.

9. Dialpad will be provided in accordance with the terms of service (“SLA” for Enterprise licenses) located at https://dialpad.com/legal. This SLA may be updated periodically by Dialpad Inc. In the event of a breach of the SLA, itGenius will provide to the Customer only the remedies specified in the SLA, all in accordance with and subject to the terms of the SLA. The Customer accepts the SLA as setting out its entire rights and remedies against itGenius in the event of a failure by Dialpad Inc to provide, or any defect, or service failure, in, Dialpad or any unavailability of Dialpad.

10. Please note for clarity that ‘Standard’ and ‘Pro’ Dialpad licenses do not include guaranteed uptimes or remedies for system/platform outages from either itGenius or Dialpad Inc. ‘Enterprise’ licenses do include this SLA.

11. The Customer’s use of Dialpad is subject to the Customer’s compliance with Dialpad’s acceptable use policy (the “AUP”) which is posted at Dialpad’s website at https://dialpad.com/legal or such other address as Dialpad may use from time to time.

12. itGenius may suspend access to, or terminate, the Customer’s use of Dialpad if (a) the Customer engages in illegal or deceptive trade practices or any other behaviour prohibited by the Dialpad ToS or otherwise by applicable terms of use for Dialpad; or (b) if Dialpad Inc terminates or suspends the provision of Dialpad to the Customer.

Limits of Liability

The Customer acknowledges that Dialpad Inc is responsible for hosting any phone numbers ‘ported-in’ to Dialpad and Dialpad Inc is obliged to allow free porting-out of those numbers in compliance with the Australian Telecommunications Act 1997. itGenius will support and help facilitate any Customer requests to port-out numbers from Dialpad with best efforts.