This Agreement is made between itGenius Australia Pty Ltd 33A Albany St Crows Nest, Australia (“itGenius Australia”) and persons and entities that engage itGenius Australia for the provision of services or products described in this agreement (the “Client”). By engaging itGenius for support services via our online checkout, you acknowledge your complete understanding of the terms and binding agreement as follows.
a. In this Agreement, unless the context otherwise requires, the following expressions shall have the following meanings:
i. “End Users” means the individuals the Client permits to use Google Apps;
ii. “Goods” means any hardware or goods to be provided to the Client by itGenius Australia as set out in the Schedule to this Agreement and such other hardware or goods as agreed from time to time between the parties;
iii. “Google” means Google Inc., a Delaware corporation, with offices at 1600 Amphitheatre Parkway, Mountain View, California 94043 and includes, where appropriate, its affiliates;
iv. “Google Apps” means the Google hosted services currently known as Google Apps for Work (as the services may be renamed from time to time), and, where applicable, the services currently known as Google Apps Vault and Google Drive storage (as these services may be renamed from time to time), as provided by Google to the Client;
v. “Google ToS” as defined in Clause 2.d;
vi. “Payment Date” means the date itGenius Australia receives payment in full from the Client of the first annual fee for Google Apps in accordance with Clause 2.b; and
vii. “Services” means the services to be provided by itGenius Australia to the Client as are set out in the Schedule to this Agreement and such other services as agreed from time to time between the parties (but excluding, for the avoidance of doubt, Google Apps).
2. Google Apps
a. The Client acknowledges Google Apps is provided to the Client by Google, subject to payment within 14 days of issue to the Client of itGenius Australia’s invoice for Google Apps. itGenius Australia is a Google appointed reseller and facilitates the Client’s use of Google Apps by enabling the Client to access Google Apps in accordance with this Clause 2 and providing the Services and Goods all in accordance with this Agreement.
b. An annual fee is payable to itGenius Australia by the Client for Google Apps. The annual fee is payable in advance although itGenius Australia may first provision the Client with temporary trial Google Apps licences on initial setup to facilitate such set up and the calculation of how many Google Apps licences the customer shall need. The first annual fee is set out in the Schedule to this Agreement and thereafter the annual fee shall be as advised to the Client by itGenius Australia. The first annual fee shall be payable to itGenius Australia in accordance with this Clause 2 and said Schedule.
c. Unless this Agreement is terminated or suspended at an earlier date in accordance with its terms, Google Apps shall be provided by Google for a period of 12 months from the Payment Date (the “Initial Term”) and, after that, shall continue to be provided, subject to payment within 14 days of issue of itGenius Australia’s invoice for the applicable annual fees and any other invoice issued by itGenius Australia for Services and Goods, until this Agreement is terminated by one of the parties giving to the other not less than 3 months’ notice, such notice to expire on any anniversary of the end of the Initial Term.
d. After signing this Agreement and once itGenius Australia has set up the Client’s Google Apps in accordance with this Agreement, itGenius Australia shall provide the Client with the login details provided by Google to itGenius Australia, to enable the Client to log on to Google Apps. When the Client first logs on to Google Apps, Google will present the Google terms of service(“Google ToS”) to the Client. The Google ToS must be accepted by the Client before it can gain access to, or use, Google Apps. The Google ToS shall form an agreement between Google and the Client relating to the provision of Google Apps to the Client by Google. The Client shall comply with the terms of the Google ToS.
e. The Client shall only be entitled to have Google Apps 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 Client is purchasing Google Apps as at the date of this Agreement is set out in the Schedule to this Agreement. The Client may increase the number of End Users subject to first notifying itGenius Australia and paying itGenius Australia the additional fees due.
f. Unless otherwise agreed, where the Client has purchased Google Apps Vault, with each additional purchase of End User accounts for Google Apps for Business by the Client, the Client will be invoiced for and receive access to Google Apps Vault for the same number of End Users.
g. Google will provide technical support services directly to the Client’s IT administrators, pursuant to the technical support services guidelines specified in the Google ToS. The Client may choose, in its sole discretion, to include itGenius Australia in communications with Google. If authorized by the Client, itGenius Australia may submit issues to Google on behalf of the Client.
h. Google Apps will be provided in accordance with the service level agreement (“SLA”) located at http://www.google.com/apps/intl/en/terms/reseller_sla.html. This SLA may be updated periodically by Google. In the event of a breach of the SLA, itGenius Australia will provide to the Client only the remedies specified in the SLA, all in accordance with and subject to the terms of the SLA. The Client accepts the SLA 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 Apps or any unavailability of Google Apps.
i. The Client shall not resell, distribute, lease, or allow another third party to use, Google Apps.
j. The Client’s use of Google Apps is subject to the Client’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.
3. Services and Goods
a. Services other than those set out in the Schedule to this Agreement will be supplied by itGenius Australia to the Client at a rate of AUD 150 excluding GST per hour if supplied during business hours namely Monday to Friday 9am to 5pm and AUD 300 excluding GST per hour if outside those hours.
b. Charges will be applied in 15 minute increments for any such Services which are supplied remotely from itGenius Australia’s office. For any such Services supplied by itGenius Australia outside their office a full hour will be charged for the first hour or any part of that hour and in 1hr increments thereafter.
c. The Client will be required to ‘pre-pay’ for blocks of service credits in advance to access itGenius Australia’s support services, accessible via online checkout and credit card payment at www.itGenius.com/support. Service credits will be retained in credit until they expire as outlined on the sales page at www.itGenius.com/support.
d. itGenius Australia will submit an invoice to the Client at the end of each month for any such Services supplied outside or above the allocated pre-paid service credits during that month, which, unless disputed within 7 days by the Client, will be automatically processed via the Client’s credit card on file within 14 days.
e. Goods supplied by itGenius Australia to the Client will be invoiced to the Client at the time of ordering, which invoice will be settled in full within 7 days. itGenius Australia reserves the right not to commence procurement of goods on behalf of customers until the invoice for goods has been settled.
f. Services will be supplied by itGenius Australia at itGenius Australia’s office, the Client’s office, or remotely via email, the Internet, telephone or other appropriate medium.
4. Confidential Information
a. itGenius Australia undertakes to use its best endeavours to hold any confidential information belonging to the Client which itGenius Australia 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 Client or where required by law, provided that itGenius Australia may disclose such confidential information as reasonably necessary to Google in connection with the provision of Google Apps.
b. The Client gives equal and corresponding undertakings in respect of confidential information belonging to itGenius Australia.
b. The Client acknowledges that, in the course of this Agreement, itGenius Australia may collect personal data relating to the Client and the End Users. itGenius Australia may be required to provide such personal data to Google but otherwise shall only use such personal data for the purposes of complying with its obligations as set out in this Agreement. The Client 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 Client’s territory including outside the UK, European Union, Australia and Hong Kong. The Client confirms that it consents to itGenius Australia transferring such personal data to Google.
c. The Client should notify any End User of the ways in which their personal information may be processed as set out in this Agreement and the Google ToS and shall obtain the relevant consents from their End Users for their personal information to be processed in these ways.
6. Current Configuration
a. The Client will provide itGenius Australia with all necessary configuration information relating to the Client’s current systems so far as it is necessary for itGenius Australia to perform the Services under this Agreement.
7. Media and Licensing
a. The Client 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.
8. Health and Safety
a. The Client shall provide a work environment for itGenius Australia and its staff that adheres to all current relevant Health and Safety regulations.
a. itGenius Australia warrants to the Client that it will perform the Services with all reasonable skill and care.
b. Goods supplied by itGenius Australia are guaranteed for 30 days. Thereafter the Client shall rely on any manufacturer’s warranty for repair or replacement of any faulty item.
c. Except as specifically provided herein, itGenius Australia gives no warranties and makes no representations in relation to the Goods, the Services or Google Apps and, without limitation, it does not warrant that they will meet the Client’s requirements. Any warranties, representations or terms relating to the Goods, the Services or Google Apps, which may have been implied by law, statute or otherwise, are hereby expressly excluded to the fullest extent permitted by law.
10. Limits of Liability
a. The Client acknowledges that, in providing the Services hereunder itGenius Australia may be required to work on the Client’s data and that it is the Client’s responsibility to ensure that its data is backed up properly and adequately. In particular, without limitation, it is the Client’s responsibility to ensure that its data is saved only to a server, which server is frequently backed up, and not, for example, to a local PC or laptop hard drive, that appropriate backup media is inserted or connected to such a server and that a full and regular backup is performed on the server. itGenius Australia shall not be liable for any data loss which the Client suffers before, during or after itGenius Australia have performed any services in relation to Google Apps or any other Services if such data is not recoverable due to there being no available or proper backup of the Client’s data.
b. The Client acknowledges that Google Apps is a hosted service where its data is held by Google or its agents, and not by the Client. It is for the Client to determine if such a service is suitable for its business given the nature of its business and data. Moreover the Client acknowledges that under Google Apps neither Google 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. itGenius Australia shall have no liability for the Client’s failure to do so.
c. The Client acknowledges that in providing Services hereunder, itGenius Australia may use tools made available to Google Apps customers by Google for the purposes of migrating data from mail servers and software clients to Google Apps and that the design and efficacy of these tools is not within the control of itGenius Australia. Accordingly, the Client acknowledges that while itGenius Australia will use these tools as designed by Google, the migration of data achieved by these tools may not be 100% complete due to design or error and that itGenius Australia will not be responsible for achieving a higher degree of migration efficacy than the tools themselves provide. For these reasons, the Client should ensure that it has a backup of all data being migrated and that such backup is retained for as long as the Client might require or desire to access and use such data in the future.
d. itGenius Australia shall not be liable to the Client for any of the following types of loss or damage, howsoever arising namely: i. any indirect or consequential loss; ii. any loss of profits, anticipated savings, revenue, contracts, goodwill or business; or iii. any loss of data.
e. Without prejudice to the foregoing provisions of this Agreement, should itGenius Australia have any liability to the Client arising out of Google Apps howsoever, including from the provision of, or failure to provide, or any delay in providing, or any defects in, Google Apps, itGenius Australia’s total liability to the Client in relation to all claims arising in each consecutive 12 month period starting on the Payment Date or any anniversary thereof, whether arising in contract, negligence or otherwise, shall not exceed the total fees for Google Apps paid by the Client to itGenius Australia pursuant to Clause 2.b in that 12 month period.
f. Without prejudice to the other limitations in this Agreement, itGenius Australia’s entire liability to the Client in respect of all claims arising from this Agreement on whatever basis shall not in any event exceed the total amount paid by the Client under this Agreement.
g. The parties agree that this Clause sets out a reasonable allocation of liability between them in all the circumstances including the availability of insurance and the nature and price of Google Apps.
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.
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 Goods and Services, 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.
d. Without prejudice to the other provisions of this Agreement, itGenius Australia may only suspend or terminate the provision of GoogleApps by Google to the Client if the Client fails to pay itGenius Australia for Google Apps in accordance with this Agreement and itGenius Australia shall not be entitled to suspend or terminate the provision of Google Apps by Google to the Client for any other reason.
12. Force Majeure
a. itGenius Australia shall have no liability to the Client for any delay or failure in performing its obligations hereunder caused by circumstances or events outwith its reasonable control, including for the avoidance of doubt, any action or omission of Google.
a. 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.
b. This Agreement sets out all terms agreed between the parties in relation to its subject matter and supersedes all previous agreements between the parties relating to the same. In entering into this Agreement neither party has relied on any statement, representation or warranty not expressly set out in this Agreement.
c. No modification or amendment hereof shall be binding unless in writing and signed by a duly authorized representative of each party.
d. Failure of either party to enforce rights under this Agreement shall not constitute a waiver of such rights.
a. Neither party may assign its rights and obligations under this Agreement without the prior written consent of the other party.