TCD SERVICE LEVEL AGREEMENT
THIS AGREEMENT
1. BETWEEN
TCD Management Pty Limited of 47 Virtue Street Condell Park NSW trading as “The Computer Department” hereinafter “TCD”.
AND The Client
.......................................................................................
Hereinafter “The Client”
THIS AGREEMENT WITNESSES
That in consideration of the mutual promises contained in this agreement, the parties agree to the following:
2. DEFINITIONS
2.1. Interpretation
In this Agreement:
(a) headings are for convenience only and do not affect interpretation;
and unless the context indicates a contrary intention;
(b) an obligation or liability assumed by, or a right conferred on, 2 or more persons binds or benefits them jointly and severally;
(c) ‘person’ includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture (whether incorporated or unincorporated), a partnership and a trust;
(d) a reference to a party includes that party's executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes a substituted or an additional trustee;
(e) a reference to a document (including this agreement) is to that document as varied, notated, ratified or replaced from time to time;
(f) a reference to a statute or statutory provision includes a statutory modification or re-enactment of it or a statutory provision substituted for it, and each ordinance, by-law, regulation, rule and statutory instrument (however described) issued under it;
(g) a word importing the singular include the plural (and vice versa), and a word indicating a gender includes every other gender;
(h) a reference to a party, clause, schedule, exhibit, attachment or annexure is a reference to a party, clause, schedule, exhibit, attachment or annexure to or of this Deed, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to this agreement;
(i) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(j) "includes" in any form is not a word of limitation;
(k) a reference to "$" or "dollar" is to Australian currency; and
3. ESSENTIAL OBLIGATIONS OF TCD UNDER THIS AGREEMENT;
3.1 TCD
will provide computer system support and management services and systems
to The Client on the terms and conditions set out herein. Such services
will be provided in a proper and efficient manner, using such plant and
equipment provided by TCD as is required to carry out and complete the said
services and systems. Such services and systems shall include but shall not
be limited to the following and shall be employed and implemented at the
discretion of TCD to facilitate the effective use of said services and systems;
3.2 General help desk and Information Technology
hereafter “IT” support and services including system support, network
administration, general system maintenance problems, diagnostics,
analysis and resolution.
3.3 Supply of system hardware and software including
servers, workstations software applications and tools as requested
and with consultation with The Client.
3.4 Management Consulting Services including general
IT consulting services, design of Disaster Recovery Plans, hereafter
“DRP”, Business Continuity Plans, hereafter “BCP”, Quality Assurance hereafter
“QA”, and Financial Service Reform hereafter
“FSR” system design and implementation and design of IT plan and
Business Plan
3.5 Internet system support maintenance including
support for World Wide Web hereafter “WWW” including monitoring of
WWW servers and associated components and design and implementation
of WWW website and web hosting services
3.6 Quality Assurance “QA” and Financial Service
Reform “(FSR) compliant Services including implementation of Disaster Recovery
Plan (DRP) and Business Continuity Plan (BCP)
3.7 Implementation of support of
Customer Relations Management hereafter “CRM” including
process and procedures design, and mapping.
4. ESSENTIAL OBLIGATIONS OF THE CLIENT UNDER THIS AGREEMENT:
4.1 The Client will be responsible to perform its own production tasks. For the purposes of this agreement the term “Production tasks” describes things like word processing, database processing and other related similar tasks. TCD may render assistance and provide training and assistance at its discretion.
4.2 The Client acknowledges it will be responsible for management of its own helpdesk functions. TCD will only respond to job requests that are initiated and for an item that is listed in Schedule 2 of this agreement. If the job request is for an item that is not listed in Schedule 2 of this agreement then whether TCD responds to that job request will be entirely in his discretion and TCD would not be in breach of any part of this agreement if they decide not to act on that request.
4.3 The client acknowledges it will be required to inform their staff that they are engaging TCD as outsourced IT services. Furthermore the client is required to carry out the following processes to assist TCD in order for TCD to carry out his tasks;
4.3.1 Submit job requests via their dedicated job request page
4.3.2 provide knowledge base process to TCD. For example internal procedures, vendor contracts and other like items.
4.3.3 provide operation information to TCD. For example who is in charge/ responsible for each operation.
4.3.4 provide brief operation guideline to assist TCD to fulfil our SLA.
4.3.5 The Client acknowledges it will implement the above process with staff changes.
4.3.6 The client acknowledges that TCD at no time under this agreement provides the services of an internal IT Department.
4.4 The Client will comply with the terms and conditions of this agreement, including but not limited to the following:
4.4.1 Will pay for services of TCD upon receipt of tax invoices and as otherwise set out in Schedule 2 hereto
4.4.2 Will implement any necessary changes to ensure that TCD or its representative(s) is fully accommodated for and receives the necessary support to carry out the duties and obligations of TCD hereunder.
4.4.3 Will provide the necessary and appropriate work environment for TCD and its representative(s) in your workplace including, inter alia, the following:
(i) Will provide the appropriate work space and network connection to allow access to all files and systems necessary for TCD to comply with the terms of this agreement;
(ii) Treat TCD and its representative(s) in a courteous manner at all times.
(iii) To pay, in addition to our aforesaid remuneration, all reasonable travelling and other like expenses incurred as a consequence of
working at your premises.
5. ESSENTIAL OBLIGATIONS OF TCD AND THE CLIENT UNDER THIS AGREEMENT:
5 The parties acknowledge that the specific services to be provided by TCD are itemised in Schedule 1 which is annexed to this agreement and signed and dated by TCD and the client.
6. TERM, TERMINATION and CONTINUATION
6.1 The term of this Agreement shall be for a period of twenty-four (24) calendar months from the date of execution hereof.
6.2 Either party may terminate this Agreement, with immediate effect, by giving written notice to the other party (“Other Party”), upon the occurrence of any one or more of the following events;
A voluntary administrator, receiver or liquidator is appointed by the Other Party or by the Court to conduct or control the affairs and or assets of the Other Party.
6.3 The Other Party is in breach of any term, provision or condition of this Agreement that is not capable of remedy or the Other Party fails to remedy the advised breach within 7 days of written notice being sent by the Non-defaulting Party.
6.4 Clause 6.3 above will cease to operate if the parties mutually agree in writing within seven (7) of the alleged breach on how to remedy the breach
6.5 Termination of this Agreement will not affect the accrued rights or remedies of either party and notwithstanding that termination is effected under the provisions of this clause or by virtue of receipt by one party from the other a notice in writing hereof, and each party shall return to the other party forthwith all hardware, information (including electronic information), documents and any correspondence that has been received by it and placed in that party’s possession as a consequence of entering into this agreement, and the Client shall immediately cease using any software or hardware supplied by TCD, and unless such software was purchased by the Client or is otherwise licensed in writing. TCD shall delete all copies of such software installed on your hardware on the day the termination is effective.
7. CONFIDENTIALITY and NON-DISCLOSURE
7.1 (Confidentiality) The parties agree this agreement is confidential.
7.2 (Keep Confidence ) Subject to clause 4.3 each party must keep the terms of this agreement confidential and not themselves nor through their servants, agents or employees directly or indirectly disclose its terms or express any opinion they might hold about those terms.
7.3 (Exceptions) A party may make any disclosure in relation to this agreement:
(i) To a professional adviser, legal practitioner, accountant, tax advisor financial advisor, banker, financier or auditor of a party if that person is obliged to keep the information confidential
(ii) To any of its employees to whom it is necessary to disclose the information
(iii) To obtain the consent of any third party to any term of, or to any act pursuant to this agreement.
(iv) To enforce its rights or to defend any claim or action under this agreement
(V) Information or knowledge that may fall under this agreement however either party may also obtain this information or knowledge by way of the public domain.
7.4 The obligations of confidentiality referred to in this clause shall survive the termination of this Agreement.
8. INTELLECTUAL PROPERTY
8. The Client agrees that TCD or the proprietor thereof, owns and has all the right, title and interest in all intellectual property rights including, inter alia, any trademarks, copyright, logos , software or patents that it may possess or utilise in carrying out the Services of TCD under this agreement. The Client agrees that TCD or its proprietor will gain and retain all such rights in any processes or developments of such intellectual property whilst carrying out the services on your behalf.
9. LIMITATION of LIABILITY
9. This Agreement involves the supply of services and TCD agrees that it will supply the services under this Agreement to the best of its ability. TCD however does not accept any liability for loss or damage to the Client’s equipment, software or data however it arises except to the extent required by law.
10. PERSONAL GUARANTEE
10.1 If the Client is a partnership or a company, then the person signing this document for the Client (“the Signatory”) personally guarantees to TCD that the debt will be met by the Client when it falls due, and indemnifies The Computer Department against any loss it may suffer as a result of the Client’s failure to pay. The Signatory hereby guarantees to TCD that the Signatory has authority to bind the Client to this agreement. If the Client has any payments that are overdue then services delivered by The Computer Department under this agreement will be suspended until outstanding monies are paid in full providing a TCD provides at least one (1) notice of intended of suspension of services which in that notice it gives the client a reasonable time (at least fourteen days from the posting of the notice to the client) to make good the payments before TCD actually suspends the client’s services under this agreement.
10.2 This clause shall survive any termination of this Agreement until all monies owed under this agreement are paid to TCD.
11. THIRD PARTY SYSTEMS APPLICATIONS and SUPPORT
11.1 The parties acknowledge that Third Party applications and
software that has been developed, supplied and supported
by other software Vendors. The supplier owns all
intellectual property right to their software. Problems and resolution
to any 3rd party software is not the responsibility of TCD. TCD will
endeavour to assist in the determination of such problems and
source a solution possible as
part of our service to you at its discretion.
11.2 The Client shall be responsible to ensure that separate and
valid service level agreements with the application vendors
are in place and proof of those service level
agreements needs to be sited by TCD on signing of this agreement
and can be re-sited at any time during the life of this agreement by
TCD if TCD makes such a request to the client. FOR EXAMPLE LOB (Line of Business)
applications stated in Schedule 1. The Client is required to have a valid
and current support agreement with their other software and/or telecommunication
(Telco) providers. The client is also required to have appropriate
maintenance service providers to ensure continuation of that service.
11.3 In the event TCD cannot directly identify the root cause or
reasonably suspects that the problem is
related to third-party hardware or software, TCD
undertakes to contact to third-party vendors and ascertain the level of technical
support the Client has with the Third-party supplier and attempt to remedy
said problem/s only to the level permitted by the level of service support
the Client has entered into with the Third-party supplier. In the event
the root cause is/or originates from a third-party vendor's product with
which TCD does not maintain a cooperative support relationship, TCD will
require the Client to open a support request with the third-party vendor's
support organization at its own expense.
11.4 In undertaking the tasks in 11.3 above TCD acknowledges and agrees it will not deliberately infringe any intellectual property rights of any other software vendors of third party applications and furthermore TCD agrees to provide limited support (limited support is not specifically defined under this agreement but the parties to this agreement acknowledge common sense shall prevail between the parties in defining this term) under to, including but not restricted to the following software:
11.4.1 Microsoft Offices applications, Winbeat, FastTrack, , Cargowise, Varidan EDI, SB Clients, Phone systems, Mobile phone systems, Broadband and Infrastructure supply, Management services, Account management and analysis
12. GENERAL PROVISIONS
12.1 The Client acknowledges that they have read and understood the terms and conditions of this agreement.
12.2 The client acknowledges that they have had the reasonable opportunity to seek independent legal advice on the terms and conditions of this agreement before agreeing to sign this agreement.
12.3 The parties hereto confirm their compliance with the provisions of all legislation, Commonwealth and State applicable to them including but not limited to those relating to Financial Services Reform and Occupational Health and Safety legislation.
12.4 In the event that any payment or service rendered under this agreement is considered a taxable supply under the GST Act (A New Tax System Goods and Services Act) 1999 (Commonwealth)) imposing upon the party providing the taxable supply, the requirement to pay GST (Goods and Services Tax) then the party who is required to make payment for the taxable supply must also pay the GST in addition to any other payment or remuneration hereunder. The party making the taxable supply must provide to the other party a tax invoice to cover the appropriate remuneration together with the payment for GST.
12.5 Nothing contained in this Agreement shall be deemed to constitute any party, the partners of any other party nor, except as otherwise herein expressly provided, to constitute any party the agent or legal representative of the other or any other or to create any fiduciary relationship between any one or more of the parties. No party shall have any authority to act for or to assume any obligation or liability on behalf of any other party except as is expressly provided in this Agreement.
12.6 Each party agrees to pay for his own legal representation and costs in relation to this Agreement.
12.7 This Agreement shall bind each party’s administrator’s executor’s assigns and successors.
12.8 The parties acknowledge and agree that their relationship cannot be construed and will not be considered that of any employer and employee.
12.9 Governing law
This agreement is governed by and must be construed according to the laws of New South Wales.
12.10 Jurisdiction
Each party irrevocably submits to the non‑exclusive jurisdiction of the courts of New South Wales, and the courts competent to determine appeals from those courts, with respect to any proceedings which may be brought at any time relating in any way to this agreement.
12.11 Severance
If at any time any provision of this agreement is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction that will not affect or impair:
(a) the legality, validity or enforceability in that jurisdiction of any other provision of this agreement; or
(b) the legality, validity or enforceability under the law of any other jurisdiction of that or any other provision of this Deed.
12.12 Entire agreement
To the extent permitted by law, in relation to the subject matter of this agreement, this agreement:
(a) Embodies the entire understanding of the parties, and constitutes the entire terms agreed by the parties; and
(b) Supersedes any prior written or other agreement of the parties.
12.13 Amendments
This agreement may only be varied by a agreement signed by or on behalf of each party.
12.14 Waiver
(a) Failure to exercise or enforce, or a delay in exercising or enforcing, or the partial exercise or enforcement of, a right, power or remedy provided by law or under this agreement by a party does not preclude, or operate as a waiver of, the exercise or enforcement, or further exercise or enforcement, of that or any other right, power or remedy provided by law or under this agreement.
(b) A waiver or consent given by a party under this agreement is only effective and binding on that party if it is given or confirmed in writing by that party.
(c) No waiver of a breach of a term of this agreement operates as a waiver of another breach of that term or of a breach of any other term of this agreement.
12.15 Counterparts
(a) This agreement may be executed in any number of counterparts and by the parties on separate counterparts.
(b) Each counterpart constitutes the agreement of each party who has executed and delivered that counterpart.
13. Continuation of this Agreement by Conduct:
13.1 The parties agree and hereby acknowledge that The Client can accept this agrrement either:
(i) by signing the agreement or
(ii) By “other conduct” (the “other conduct” means providing or continuing to provide TCD with oral and/or written instructions and/or after twenty-one (21) days after receiving a copy of this agreement signed by TCD.