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itGenius Australia Standard Terms of Service

Last Updated: 1 August 2023

This Agreement is made between itGenius Australia Pty Ltd (ABN 73 151 116 906) of Level 40, 100 Miller St, North Sydney, New South Wales, Australia (“itGenius Australia”) and persons and entities described in a Quotation, a Reseller Order that engage itGenius Australia for a Subscription to the provision of services or products described in this agreement (the “Customer”). By engaging itGenius Australia’s services via our online checkout, accepting an online Quote, or online Reseller Order or entering into a statement of work for Non-Reselling Based Consulting Services or making payment on any of our invoices you acknowledge your complete understanding of the following terms and agree to enter a binding agreement as follows:

1. Definitions

ExclusionsIn this Agreement, unless the context otherwise requires, the following expressions shall have the following meanings: Cloud Services” means reselling of Google Cloud, Google Workspace, which may include Resold Services provided by itGenius Australia;

Cloud Concierge Services” means itGenius Australia's value added services offered in conjunction with Cloud Services, being as described, and offered for the monthly charges as described in the table below :

Tier

Inclusions

Exclusions

Basic

  • Helpdesk Support for Google Workspace, including domain name services, managed by ITGenius via Chat, Email, and Phone within itGenius Australia's business hours (AEDT 9am – 5pm).
  • First response time support SLA for Priority 1 issues is 4 hours
  • First response time support SLA for all other enquiries 1 business day
  • Access to Genius Academy Online Courses 
  • Professional Implementation of Google Workspace (excluding Enterprise SKUs)
  • Automatic Policy Updates for Google Workspace
  • Personalised or onsite team training
  • Google Workspace Account migrations, restores & archiving
  • Proactive support & account monitoring
  • Professional Implementation for Google Workspace Enterprise level SKU’s
  • Any Professional Implementation Services for apps other than Google Workspace, being Google Data Studio, Copper CRM, Dialpad, Asana, Zapier and others.

Support

  • All inclusions specified in the Basic package
  • Extended US support hours 4am to 6pm (GMT+11) Tuesday to Sunday AEDT
  • First response time SLA for Priority 1 issues is 2 hours
  • First response time SLA for all other enquiries 4 hours
  • Google Workspace Account restores & archiving. Migration services with additional costs (quoted).
  • Proactive support & account monitoring
  • Setup of Genius Best Practices Templates including Google Drive Blueprint, Google Classroom, Google Business tools (Youtube, Google My Business), Jamboard, Google Chrome, Google Site (business intranet)
  • Professional implementation of Dialpad
  • Professional ‘Done with you’ Configuration Training of other products, including Copper CRM, HiverHQ, Asana & other apps.
  • 1 Subscription, including professional setup of each for the following:  Google Workspace Cloud Backup Licence, Webroot Mac/PC Antivirus License, Domain Name Registration, Cloudflare DNS Hosting, LastPass License
  • On-site Team Training Sessions
  • Helpdesk Support via Chat, Email, Phone and Google Meets outside ItGenius Australia’s business hours or extended hours
  • Account Migration Services from Another Service Provider are a separate product (Google Workspace implementation service) with additional costs
  • Advanced implementations ( done-for-you configuration, personalised training, automation, integrations & custom reports) for other products
  • Workflow automation & custom integration programming (including Google app script, zapier, Make, custom API programming & similar services)
  • Google Data Studio development
  • Dedicated account manager for duration of contracted service

Growth

  • All inclusions specified in the Support package
  • First response time support SLA for Priority 1 issues is 2 hours
  • First response time support SLA for all other enquiries 2 hours
  • Dedicated Account Manager for the duration of your annual contract (subject to unforeseen events and changes)
  • Professional Complete Implementation of other products, including Copper CRM, HiverHQ, Dialpad Asana and other apps
  • Workflow automation & custom integration programming (including Google app script, zapier, Make & similar services)
  • Google Data Studio Genius Dash template & custom dashboard development
  • 5 Subscriptions each for the following:  Google Workspace Cloud Backup Licence, Webroot Mac/PC Antivirus License, Domain Name Registration, Cloudflare DNS Hosting, LastPass License
  • Onsite Team Training Sessions
  • Google Data Studio Integration with customer or other non-standard data sources
  • Account Migration Services from another service provider are a separate product (Google Workspace implementation service) with additional costs

Scale

  • All inclusions specified in the Growth package
  • Dedicated Genius Team including account manager, project manager and Genius Support staff member
  • Quarterly IT Strategy Call with itGenius virtual IT strategist
  • Private team training sessions 
  • 10 Subscriptions each for the following:  Google Workspace Cloud Backup Licence, Webroot Mac/PC Antivirus License, Domain Name Registration, Cloudflare DNS Hosting, LastPass License
  • Account Migration Services from another service provider are a separate product (Google Workspace implementation service) with additional costs

 

Committed Term” The minimum term that the Customer agrees to acquire Cloud Services and/or Support Services beginning from the 1st day of service of that Subscription and continuing for the term of that Subscription, unless terminated earlier in accordance with this Agreement;

Dialpad Inc” means Dialpad Inc., with offices at 100 California Street, Suite 500, San Francisco, CA 94111 and includes, where appropriate, its affiliates;
Dialpad” means the Dialpad hosted telephone services currently known as Dialpad (as the services may be renamed from time to time), as provided by Dialpad Inc to the Client subject to the terms in Annexure 1;

“Copper CRM, INC” means Copper CRM, Inc., with offices at 301 Howard St. #600, San Francisco, CA 94105 and includes, where appropriate, its affiliates;

Copper” means the Copper which is a customer relationship management (CRM) platform built for businesses that use Google Workspace currently known as Copper (as the services may be renamed from time to time).

“Grexit, Inc.” means Hiver or Grexit, Inc.,  with offices at 1496/A, 1st and 2nd Floor, 19th main, 8th cross, Sector 1, HSR Layout Bengaluru 560102 and includes, where appropriate, its affiliates;

Hiver” means the Hiver customer service platform built for Google Workspace currently known as Hiver (as the services may be renamed from time to time).

“Asana, Inc.” means Asana Inc., with offices at 633 Folsom Street, Suite 100, San Francisco, CA 94107, United States and includes, where appropriate, its affiliates;

Asana” means the Asana, a variety of team productivity, collaboration, and organizational tools, currently known as Asana  (as the services may be renamed from time to time).

“Webroot, Inc.” means Webroot Inc., with offices at 385 Interlocken Crescent, Suite 800, Broomfield, CO 80021 USA and includes, where appropriate, its affiliates;

Webroot” means the Webroot that provides endpoint protection, network protection, and security awareness training solutions purpose-built for managed service providers and small businesses, currently known as webroot  (as the services may be renamed from time to time).

“Lastpass” means Lastpass, with offices at 333 Summer St, Boston, Massachusetts 02210, US, and includes, where appropriate, its affiliates;

Lastpass” means the Lastpass that provides password and identity management solutions that are convenient, easy to manage and effortless to use, currently known as Lastpass (as the services may be renamed from time to time).

“Backupify, Inc.” means Backupify, with offices at 50 Milk St, Boston, MA 02109, United States and includes, where appropriate, its affiliates;

Backupify” means that Backupify, a Datto company, provides cloud-to-cloud backup, enabling enterprises to extend data protection and accessibility best practices to the cloud, currently known as Backupify  (as the services may be renamed from time to time).

“PandaDoc, Inc.” means PandaDoc, Inc., with offices at 3739 Balboa St #1083, San Francisco, CA 94121, USA, and includes, where appropriate, its affiliates;

PandaDoc” means the PandaDoc that provides documentation automation software as a service that helps companies streamline processes to create, approve and eSign proposals, quotes, contracts, and other documents, currently known as PandaDoc  (as the services may be renamed from time to time).

“Altirnao, Inc.” means Altirnao, Inc. or AODocs, with offices at Ten Rockefeller Plaza, Suite 1001, New York, NY 10020 and includes, where appropriate, its affiliates;

AODocs” means the AODocs is an online document management solution that comprises several modules, currently known as AoDocs  (as the services may be renamed from time to time).

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

Goods” means any hardware or goods to be sold or otherwise provided to the Customer by itGenius Australia;

Google” means Google Inc., with offices at 1600 Amphitheatre Parkway, Mountain View, California 94043 and includes, where appropriate, its affiliates;

Google Cloud”, “Google Workspace” or “Google Apps” means the Google hosted services currently known as Google Cloud & Google Workspace (as the services may be renamed from time to time), and, where applicable, the services currently known as Google Vault and Google Drive storage (as these services may be renamed from time to time), as provided by Google to the Customer;

Google Workspace” means the services as described by Google as part of Google Workspace from time to time;

Google Workspace Terms of Service” means Google’s then current terms of service for Google Workspace;

Payment Date” means the date itGenius Australia receives payment in full from the Customer for Services;

Quotation” or “Quotes” means an online quotation for Cloud Services, Support Services or Goods delivered to the Customer via email or online portal link or for Non-Reselling Based Consulting Services delivered in the manner as described in a Statement of Work;

Reseller Order” means a Customer order accepted by itGenius Australia for Cloud Services and/or Support Services setting out the terms of the Subscription;

Non-Reselling Based Consulting Services” means the services to be provided by itGenius Australia to the Customer which may either be described in the Subscription, or in a separate statement of work, which may include data migration services, advisory and other professional services, or other bespoke services;

Related Body/ies Corporate” has the meaning of Section 50 of the Corporations Act (2001) (Cth);

Resold Services means services of third parties, including without limitation, Google, Dialpad Inc, Asana Inc, Hiver, Copper CRM, Inc., Backupify, Webroot, Domain Name Services and other third parties provided by itGenius Australia;

Services” means services provided by itGenius Australia to the Customer, including Cloud Services, Cloud Concierge Services with bundled Support Services and Non-Reselling Based Consulting Services;

Subscription” means the services provided by itGenius Australia to the Customer known as ‘Cloud Concierge IT Support Subscription’ including bundled Support Services, and such other Non-Reselling Based Consulting Services as agreed from time to time between the parties; and

“Support Services” means the bundled support services provided by itGenius Australia to the Customer known as part of the Subscription (but excluding, for the avoidance of doubt, Cloud Services), which may be offered at standard or premium tier and as part of Cloud Concierge Services.

2. Contract Formation & Ordering

a. A contract shall come into existence and all Reseller Order and Statement of Work shall be binding from the earliest of;

i. itGenius Australia's electronic  acceptance; or

ii. shipment of product or delivery of item as listed in the Quotation (where applicable); or

iii. use by the Customer of the applicable Services; or

iv. the raising by itGenius Australia of an invoice in respect of the items in the Quotation or as stated on the Reseller Order or Statement of Work

b. This agreement shall become binding for the term of the Subscription or Statement of Work, in each case unless terminated earlier in accordance with the terms of each or this agreement, in the manner described in this section, on a
clickwrap basis, and without the need for physical (wet) signatures. 

c. Quotes accepted via email link, online portal or email are binding and final. Refunds are not granted for change of mind, nor special order Goods.

d. All sales will be subject to satisfactory credit approval, either in respect of COD, credit card or direct debit payment arrangement. In placing an order with itGenius Australia, the Customer grants approval to itGenius Australia to seek a credit report from credit reporting agencies to permit the establishment of an account with itGenius Australia.

e. The price for the items listed in the Quotation shall be the 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.

f. Prices are exclusive of all country, state, and local sales, use, GST, or other consumption, fringe benefits, excise, privilege, franchise and similar taxes unless otherwise stated explicitly. Taxes imposed on itGenius Australia in connection with Cloud Services, Support Services or Goods purchased pursuant to this Agreement – including without limitation in connection with processing fees or fees on overdue payment shall be paid by the customer and will appear as separate items on the itGenius Australia invoice to the Customer.

g. 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. Except for express warranties described in this agreement, the Customer agrees that it has not relied on any representation or warranty made by itGenius Australia which has not been expressly stated in this agreement or Quotation or upon any catalogue, price lists or other literature produced by itGenius Australia.

h. In respect of Cloud Services, this agreement is intended to be read in conjunction with the Customer’s Workspace Terms of Service for each and any Resold Service (e.g. “Google ToS”) (as amended by those vendors from time to time). 

i. Any SLA Credits due to the Customer from Google or other Resold Services will be received from itGenius Australia, and not Google or those vendors.

j. The number of End Users as described on a Reseller Order may not be exceeded without additional payment. The number of End Users shall be no less than as described in the Reseller Order. Should the Customer not use the number of End Users specified in the Reseller Order, there shall be no credit or compensation for any shortfall or unused accounts for the term of the Subscription. 

k. Google Workspace or other Resold Services Promotional or Special Pricing Plans may be offered for a limited time, with the need to meet requirements that are specified by that vendor from time to time. For a Customer to be eligible for the special pricing, the Customer must have such special pricing recorded on a Reseller Order or Statement of Work approved by itGenius Australia.

l. For the avoidance of doubt, any Customer under a Promotional or Special Pricing Plan must maintain the minimum number of End Users as specified in the Reseller Order and remain on the same Tier plan for the agreed Committed Term as specified in the Reseller Order.

3. Customer use of Google Apps and access to Google Workspace

a. After signing this Agreement and once itGenius Australia has set up the Customer’s Google Cloud account in accordance with this Agreement, itGenius Australia shall provide the Customer with the login details provided by Google to itGenius Australia, to enable the Customer to log on to Google Workspace. When the Customer first logs on to Google Workspace, Google will present the Google Workspace 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 must comply with the terms of the Google ToS. 

b. The Customer acknowledges that 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 Australia in communications with Google. If authorized by the Customer, itGenius Australia may submit issues to Google on behalf of the Customer.

c. Google Apps will be provided in accordance with Google Cloud’s service level objectives (“SLOs”) which may be updated periodically by Google. The Customer accepts the SLOs as setting out its entire rights and remedies against itGenius Australia 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.

d. The Customer shall not resell, distribute, lease, or allow another third party to use, Google Apps.

e. The Customer’s use of Google Apps is subject to the Customer’s compliance with Google’s acceptable use policy (the “AUP”) which is posted at Google’s website at ​http://www.google.com/apps/intl/en/terms/use_policy.html or such other address as Google may use from time to time.

f. itGenius Australia may suspend access to, or terminate, the Customer’s use of Google Apps if: 

i. the Customer fails to make a payment on the due date for payment;

ii. 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 Apps; or 

iii. if Google terminates or suspends the provision of Google Apps to the Customer.

g. When the Customer uses Google Apps, the Customer acknowledges that Google may collect, maintain and use certain personal information about the Customer in accordance with the Google ToS and in accordance with the Google Apps Privacy Notice which is posted at Google’s website at ​http://google.com/a/help/intl/en/admins/privacy.html 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

4. Data Migration Service

In receiving data migration services from itGenius Australia, the Customer acknowledges that itGenius Australia 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 Australia. Accordingly, the Customer acknowledges that while itGenius Australia will use these tools as designed by the vendor, the migration of data achieved by these tools may not be 100% complete due to design or error and that itGenius Australia is not 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. Data Migration Service form part of itGenius’s Non-Reselling Based Consulting Services and are described in more detail in the relevant Statement of Work.

5. Payments

a. Unless otherwise arranged, payments to itGenius Australia for Services, or Goods are required to be made upfront and in full, before any delivery will commence. itGenius Australia reserves the right not to commence procurement of Goods on behalf of customers until the invoice for Goods has been settled. Recurring Services are invoiced ~25 days in advance of 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.

b. After payment has been collected for the Customer’s first order for Services,the Customer’s payment method will be saved for future automatic Subscription product renewals (or other payments authorised by Customer). itGenius Australia will automatically attempt to collect payment automatically 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 Australia accounts portal however this is strongly discouraged.

c. For single payment amounts, itGenius Australia will only accept EFT/bank transfers for single annual payments greater  than AUD$5000, unless waived by itGenius in its absolute discretion. All other payments are only accepted via Credit Card and automated Direct Debit..

d. 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 fee incurred by itGenius Australia for accepting the transaction. This fee is exclusive of taxes.

e. An additional administration fee may be added to any and all Credit Card and Direct Debit payments at itGenius Australia’s discretion for any transaction. This fee shall not exceed $10.00 per transaction, and is exclusive of taxes.

f. If payment is not received by the due date of any issued invoice, itGenius Australia may suspend Cloud Services, Support Services or delivery of Goods without prior written notice to the Customer and without prejudice to any other remedy available to itGenius Australia.

g. For the avoidance of doubt, this clause excludes Support Services or Goods. 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.

 

6. Delivery

a. Support Services will be supplied by itGenius Australia remotely via email, live chat, telephone or other appropriate medium such as screen-share or video conference.

b. The Customer will provide itGenius Australia with all necessary configuration information relating to the Customer’s current systems so far as it is necessary for itGenius Australia 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. Where Customers’ IT systems are managed by a 3rd party, the Customer will make all reasonable efforts to liaise with 3rd party service to allow staff of itGenius Australia to be granted access to these systems.

c. Outside of Cloud Services supplied by itGenius Australia, 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 Australia.

d. Work is to be carried out exclusively during itGenius Australia business hours (AEDT 9am-5pm) unless otherwise scheduled by special arrangement. Delivery of Support Services outside these hours is reserved for Customers who have pre-purchased growth or Scale tier of  ‘Cloud Concierge Services’ in their Subscription.

e. Title to Goods and associated risk of loss passes to the Customer upon full payment.

f. The Customer must have an account with Google in order to receive and use the Cloud Services and Cloud Concierge Services.

7. Cancellations

a. The minimum Committed Term that the Customer acquires each Subscription to receive the Services is specified on a per-product basis.

b. After the expiry of the minimum Committed Term, an automatic extension of an equal Committed Term will automatically commence unless the Customer requests cancellation of the Subscription in writing at least 14 days in advance of the Subscription term anniversary renewal date.

c. The customer is liable to pay 100% of any unpaid invoices for the current term of the applicable Subscription for Services and any other outstanding invoices owed before the Customer shall be released from the Subscription or new Committed Term renewal.

 

8. Confidentiality and Access to Customer’s Google Account by itGenius

a. itGenius Australia undertakes to use its best endeavours to hold any confidential information belonging to the Customer which itGenius Australia encounters during the performance of its duties under this Agreement in confidence and unless such confidential information has entered the public domain, 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 Australia may disclose such confidential information as reasonably necessary in the delivery of Services to companies such as Google, Dialpad Inc or such other parties in respect of which itGenius Australia provides Resold Services 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 Australia.

c. The Customer acknowledges that Google may share its confidential information with itGenius Australia.

d. The Customer grants itGenius a right to access The Customer’s Google account or the Google Account of the Customer’s End Users. Such access is not a breach of this section.

e. The Customer acknowledges that benefit of this Section applies to Related Bodies Corporate of itGenius Australia and to any 3rd parties that are required to effect a Data Migration. 

9. Privacy

a. The Customer acknowledges that, in the course of this Agreement, itGenius Australia may collect personal data relating to the Customer and the End Users. itGenius Australia may be required to provide such personal data to Google or parties in respect of which itGenius Australia provides Resold Services 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  is a US company with a group of related companies around the world, when personal data is transferred to Google, it may be transferred outside the Customer’s territory including outside Australia, New Zealand, the UK, European Union, and Hong Kong. The Customer confirms that it consents to itGenius Australia transferring such personal data to Google and/or parties in respect of which itGenius Australia provides Resold Services.

b. itGenius may disclose the information to other parties on the internet, subcontractors, trades people, corporations, government and statutory bodies and to third parties as required by law. itGenius will only disclose information in this way to other parties as required to perform their duties under our agreements or to achieve the purposes as allowed under the Privacy Act (1988) (Cth) and in accordance with itGenius Australia’s current privacy policy which can be located at https://www.itgenius.com/page/privacy-policy/. 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 request that their record be corrected 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.

10. Warranties and Indemnity

a. itGenius Australia warrants to the Customer that it will perform the Services with all reasonable skill and care.

b. Except as specifically provided herein, itGenius Australia gives no warranties and makes no representations in relation to the Services or Goods and without limitation, it does not warrant that they will meet the Customer’s requirements. The employees or agents of itGenius Australia are not authorised to make any representations unless such representations are confirmed by a director of itGenius Australia in writing. The Customer acknowledges that it does not rely on and waives any claim for breach of any such representations that are not so confirmed. Any warranties, representations or terms relating to the Services or Goods, which may have been implied by law, statute or otherwise, are hereby expressly excluded to the fullest extent permitted by law.

c. itGenius acknowledges that the Customer has consumer rights under the Australian Consumer Law (ACL), which are not excluded by this Agreement. itGenius Australia limits its liabilities in the case of Goods, to the replacement of the equipment or the supply of equivalent equipment, or the repair of equipment, or the paying of costs for replacing the equipment or requiring equivalent equipment, or the cost of having the equipment repaired; and in the case of Services, to the supplying of the services again, or the payment of the cost of having the services supplied again at the discretion of itGenius Australia.

d. The Customer warrants that it shall obtain all relevant consents from their End Users for their personal information to be processed in accordance with itGenius Australia’s current privacy policy.

e. The Customer shall indemnify and shall keep indemnified itGenius Australia against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Customer and arising directly or indirectly as a result of use of the Services by the Customer or End Users.

11. Liability

a. The Customer acknowledges that, in providing the Services hereunder itGenius Australia may be required to work on the Customer’s data and that it is the Customer’s responsibility to ensure that its 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 Australia shall not be liable for any data loss or data corruption which the Customer suffers before, during or after itGenius Australia have performed any services in relation to Cloud Services or any other Services if such data is not recoverable due to there being no available or proper backup of the Customer’s data.

b. The Customer acknowledges that Cloud Services are hosted services where its data is held by 3rd party companies or their agents, and not by the Customer. It is for the Customer to determine if such a service is suitable for its business given the nature of its business and data. Moreover, the Customer acknowledges that under Cloud Services neither Google, parties in respect of which itGenius Australia provides Resold Services nor itGenius Australia 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 Australia to supply the Customer a 3rd party backup solution (such as Backpify). itGenius Australia shall have no liability for the Customer’s failure to do so.

c. itGenius Australia shall not be liable to the Customer for any of the following types of loss or damage, whether arising under statute, or in tort or contract (in each case including negligence) or however arising namely: i. any indirect, special or consequential loss; ii. any loss of profits, anticipated savings, revenue, contracts, goodwill or business; or iii. any loss of or corruption to data.

d. Without prejudice to the foregoing provisions of this Agreement, should itGenius Australia have any liability to the Customer arising out of the provision of the Services howsoever, including from the provision of, or failure to provide, or any delay in providing, or any defects in, the Services, itGenius Australia’s total aggregate liability to the Customer in relation to all claims, losses or damages whether arising under statute in tort or contract, in each case including negligence or otherwise, shall not exceed the total fees for Cloud Services paid by the Customer to itGenius Australia for the annual period following the claim for loss or damage first arising (or pro rata in the first year of this agreement).

e. Without prejudice to the other limitations in this Agreement, itGenius Australia’s entire liability to the Customer in respect of all claims arising from this Agreement on whatever basis shall not in any event exceed the total amount paid by the Customer under this agreement for the annual period following the claim for loss or damage first arising (or pro rata in the first year of this agreement).

f. The parties agree having considered and determined appropriate allocation of risk and likelihood of claims for losses and damages, that this Section sets out a reasonable allocation of liability between them in all the circumstances including the availability of insurance and the nature and price of Cloud Services.

g. The Customer acknowledges that certain risks may be managed by insurance. The Customer is responsible for taking out insurance in respect of its data, including professional indemnity, and cyber cover.

h. Notwithstanding the other provisions in this Agreement, itGenius Australia does not exclude or limit its liability under this Agreement for:

i. death or personal injury caused by its negligence or that of its employees or agents;

ii. fraud or fraudulent misrepresentation; or 

iii. any liability the exclusion or limiting of which is forbidden by law is not subject to the liability limitations described in this Section

i. The Customer acknowledges that the liability of Google is limited in the manner as described in the Customer’s Google Workspace Terms of Service (as amended by Google from time to time).  

12. Force Majeure

itGenius shall not be liable for failure to deliver or for any delay in delivery of the Services and Goods arising from any cause whatsoever beyond the control of itGenius Australia, and itGenius Australia shall not be liable for any indirect, special or consequential loss or damage, injury, or prejudice emanating directly or indirectly from failure or delay in delivery or installation arising from such cause notwithstanding that itGenius Australia will be entitled to full payment for any Services already completed or deliveries made calculated on the quoted price and invoiced by itGenius Australia. For the avoidance of doubt, this includes any action or omission of Google, Dialpad Inc or any other partner or supplier of itGenius Australia including parties in respect of which itGenius Australia provides Resold Services. itGenius Australia may, at its option, extend the delivery, installation or delivery of Cloud Services, Support Services or Goods by declaring Force Majeure to the Customer.

13. Termination of Agreement

a. Without prejudice to the other provisions of this Agreement, and to any other rights or remedies available to it, either party may terminate this Agreement, which will terminate the supply of Cloud Services, Support Services and Goods, with immediate effect by serving written notice on the other: 

i. if the other party commits a material breach of its obligations hereunder and in the case of a breach capable of being remedied fails to remedy that breach within 30 days of receiving written notice specifying the breach and requiring the same to be remedied; or 

ii. if the other party is unable to pay its debts when they are due or is deemed under any statutory provision to be insolvent or enters into any arrangement, composition or compromise with its creditors or any class of them or if any order is made or a resolution is passed for the winding up of the other party (other than pursuant to a scheme solely for solvent reconstruction or amalgamation) or if a liquidator or provisional liquidator is appointed to the relevant party or an administrator is appointed to manage the other party’s affairs, business and property or if a receiver or administrative receiver is appointed over any of the other party’s assets or undertaking or if the other party takes or suffers any similar or analogous action in consequence of debt.

b. itGenius Australia may suspend this Agreement in any circumstances in which it is entitled to terminate this Agreement.

c. itGenius Australia may terminate this Agreement on termination of itGenius Australia’s reseller agreement with Google or any other supplier of Resold Services and in this event, or parties in respect of which itGenius Australia provides Resold Services, itGenius Australia will make all reasonable efforts to ensure continuity of customer services, and transfer resold licenses from itGenius Australia to the direct vendors for Cloud Services.

d. Upon termination, the Customer remains liable to itGenius Australia for any term based fees and charges described in a Reseller Order or Statement of Work, which shall become immediately due and payable upon such termination without demand, setoff or counter-claim.

14. Jurisdiction, Notices & Assignment

a. This Agreement shall be governed by and construed in accordance with the laws 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] for expedited response.

c. Neither party may assign its rights and obligations under this Agreement without the prior written consent of the other party. 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.

15. Updates to Agreement & Miscellaneous

a. This agreement may be amended or varied by itGenius Australia from time to time by giving 14 days (or otherwise agreed) prior written notice to the Customer via email. An amendment to this agreement will become effective if the Customer has not objected, disputed or challenged the amendment within 14 days (or otherwise agreed) of receipt of the notice.

b. This document and any exhibit attached or included with constitute the entire understanding and agreement of the parties, and any and all prior agreements, understandings, and representations relating to the specified works are hereby terminated and cancelled in their entirety and are of no further force and effect. For the avoidance of doubt, any prior amendment, change, or modification to this agreement shall be superseded by an update to the agreement as outlined in clause a.

c. No modification or amendment hereof shall be binding unless in writing and signed by a duly authorized representative of each party.

d. The invalidity, illegality or unenforceability of any term (or part of a term) of this Agreement shall not affect the continuation in force of the remainder of the term (if any) and this Agreement.

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

f. 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.

g. 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.

h. In the event of any conflict between the terms of this agreement and the terms of Customer’s Google Workspace Terms of Service (as amended by Google from time to time), the former shall prevail vis a vis the parties’ rights and obligations under this agreement; and the latter shall prevail with respect to Customer’s rights and obligations vis a vis Google.

i. In the event of any conflict between the terms of this agreement and the terms of any Reseller Order, Subscription or Statement of Work and itGenius’ website terms and descriptions, the terms of annexure or appendix, the terms of this agreement shall prevail.

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

k. Headings and captions used in the Agreement are for reference purposes only and will not have any effect on the interpretation of the Agreement.

Annex 1: Form Of Reseller Order – Subscription

Reseller Order – Subscription Terms

Customer Particulars

Customer Full Entity Name

Customer ABN ACN

Unincorporated Customer Name 

[if applicable]

Customer Address – Street

Customer Address – Suburb

Customer Address – State

Customer Address – Postcode

Customer Representative

Customer Representative – position held

Customer Representative Contact Phone Number 

Customer Representative email address

 

Annex 2: Terms for Dialpad Subscriptions

Dialpad Services means itGenius Australia's value-added services offered as a separate package from Cloud Services, being as described below:

Dialpad will issue 1 free administrator user license to the Customer for the access purposes of itGenius Australia, which must be kept active in Dialpad by the Customer for itGenius Australia 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 Australia’s access. If itGenius Australia is restricted from accessing the Customer’s Dialpad account by way of either of these administration accounts being restricted, reassigned, disabled or deleted – itGenius Australia reserves the right to temporarily suspend the service of Dialpad to the Customer until administration access is reactivated.