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Managed Services Terms and Conditions

Last Revision: 10 November 2021


These terms and conditions apply to the Services provided by GLiNTECH to the CLIENT as requested by the CLIENT via the Portal from time to time (together, the Agreement). This Agreement applies to all orders placed for GLiNTECH’s managed services (hereby referred to as, Services) by CLIENT, its corporate parent, and subsidiaries.


1 Services

1.1 Overview

(a) GLiNTECH will perform the Services requested by the CLIENT via the Portal, on the terms and conditions of this Agreement during Business Hours, unless otherwise agreed.

(b) GLiNTECH may revise the Services and the provisions of this Agreement from time to time. Where a revision has a materially detrimental impact on clients, GLiNTECH will display a notice on the Portal identifying the revisions and indicating when it takes effect. It is the CLIENT’s responsibility to regularly review the provisions of this Agreement on the Portal. Subject to section 1(c), CLIENT’s continued use of the Services after the date of any revisions to the Services and the provisions of this Agreement indicates the CLIENT’s acceptance of these revisions.  

(c) GLiNTECH will provide the Services for the following systems and environments only, and any Services in connection with any other systems and environments are outside of the scope of this arrangement:

(i) Atlassian authored software deployed as Server, Data Centre or Atlassian Cloud offerings,

(ii) Atlassian marketplace third party plugins

(iii) The supporting eco system of infrastructure (e.g. AWS, Azure, Windows, Linux, Active Directory, LDAP)

(iv) Custom development of client-specific software pertaining to the Atlassian eco-system

1.2 Service Levels

(a) GLiNTECH will use its reasonable endeavours to respond to requests raised by the CLIENT based on the Priority of the request as set out below within the following timeframes. GLiNTECH will determine the Priority of a request acting reasonably.

Priority

Description

Example

Time to first response (within business hours 9am – 5pm NSW time)

Critical

  • Complete Outage of Application
  • Server is down

2 hrs

High

  • Significant performance degradation
  • A heavily used addon is not functioning, preventing many users from using major functionality

4 hrs

Medium

  • Minor performance degradation and a workaround is available
  • A workflow automation rule is not working as intended

8 hrs

Low

  • A Minor cosmetic issue, or a minor issue affecting one or a small number of users
  • A question or query
  • A change required for a system
  • Customisation addon is not displaying a page correctly
  • Inquiring about an addon required to fill a functionality gap
  • Workflow changes

16 hrs

1.3 Estimations and practices

(a) The CLIENT acknowledges and agrees that any estimate of effort or Fees for any Services provided by GLiNTECH is for informational purposes only and the actual effort or Fees payable by the CLIENT for any Services may be higher or lower than such an estimate.

(b) Where GLiNTECH estimates that a task will take 8 hours or more, the parties agree that these services will be scheduled to be performed at a time agreed between the parties as Consultancy Services. Such services are governed by and supplied under either (i) a Master Services Agreement which must be agreed and executed by both parties prior to the services being performed or (ii) will be governed by and supplied under GLiNTECH’s Professional Services Agreement where no separate Master Services Agreement is agreed.

1.4 Fees and payment

(a) The full Fees for the Allotted Quantity of Hours ordered by the CLIENT are due and payable thirty (30) days post issuance of the invoice, or with immediate effect where the CLIENT is purchasing Services with Credit Card via the Portal.

(b) The CLIENT is purchasing an Allotted Quantity of Hours of Managed Services to be provided by GLiNTECH. The Services will be provided by GLiNTECH in 15 minute increments. For clarity, if a request by the CLIENT takes 35 minutes for GLiNTECH to perform, the CLIENT will be charged at the rounded-up amount of 45 minutes.

(c) Questions raised via the ‘Ask a question’ function are exempt from, and are not deducted from, the Allotted Quantity of Hours to the extent that

(i) the question is simple; and

(ii)GLiNTECH can reasonably respond to the question with a short (not more than a single paragraph) written response.

(d) Payment of the Fees is non-refundable and any outstanding hours, from the Allotted Quantity of Hours not used by the CLIENT by 12 months post issuance of the invoice will be forfeited.

(e) At GLiNTECH’s sole discretion, any remaining hours from the Allotted Quantity of Hours may be re-allocated to their equivalent monetary value in either GLINTECH’s Consulting Services or Training Services. These will be offered at GLINTECH’s standard rates at time of decision (which may differ from the paid for hourly charge rate of the Service).

(f)  Once the Allotted Quantity of Hours have been used in full, GLiNTECH may, at its sole discretion, either continue or cease to provide any further Services to the CLIENT. Where GLiNTECH provides further Services to the CLIENT, the CLIENT agrees and acknowledges that it must pay the Fees in respect of the Services in arrears.

(g) Any Services performed by GLiNTECH outside of business hours may be provided by GLiNTECH subject to prior written mutual agreement and on a reasonable endeavours basis. Any such Services will be provided in accordance with the table below.


Hours (AEST) Rate (AUD, ex GST)

Standard Hours

Monday - Friday; 9am - 5pm

Standard Drawdown Rate

Extended Hours

Monday - Friday; 6am - 8pm

Standard Drawdown Rate

Public Holidays & Weekends

(between 6am – 8pm)

2.0x Standard Drawdown Rate

(e.g. 15 minutes of time served is draw down as 30 minutes of the Allotted Quantity of Hours)

Nights

(between 8pm – 6am)

3.0x Standard Drawdown Rate

(e.g. 15 minutes of time served is draw down as 45 minutes of the Allotted Quantity of Hours)



2 Term

This Agreement commences on the date that the CLIENT accepts these terms via the Portal and, not withstanding changes to the agreement as per section 1.1(b), continues until it expires or is terminated in accordance with  its terms.



3 Taxes

(a) Terms in this section 3 defined in the GST Law but not defined in the Definitions section of this Agreement have the meaning given to those terms in the GST Law.

(b) All consideration to be paid or provided under this Agreement is expressed exclusive of GST unless otherwise stated in this Agreement.

(c) If GST applies to a Supply made under this Agreement and the consideration is expressed exclusive of GST, the recipient must pay to the supplier an additional amount equal to the GST payable on the supply (GST Amount). The GST Amount is payable at the same time that the first part of the consideration for the supply is to be provided. However, this section 3(c) will not apply if the GST on the supply is reverse charged and payable by the recipient.

(d) Notwithstanding any other provision, the recipient need not pay the GST Amount until it has received from the supplier a tax invoice or adjustment note (as the case may be).

(e) If an adjustment event arises in respect of a supply to which section 3(c) applies, the GST Amount must be adjusted to reflect the adjustment event and a payment must be made by the supplier to the recipient or by the recipient to the supplier, as the case may be.

(f)  If a party is entitled to be reimbursed or indemnified for a cost or expense under this Agreement, the amount to be reimbursed must be reduced to the extent that the party (or the representative member for a GST group of which that party is a member) is entitled to an input tax credit for the cost or expense.



4 Personnel

(a) GLiNTECH may without prior agreement from the CLIENT, reassign Personnel, or subcontract its obligations under this Agreement.

(b) GLiNTECH shall use reasonable efforts to provide Personnel in accordance with the CLIENT’s requested work schedules and to honour CLIENT’s request, if any, for the assignment of specific Personnel but shall have discretion to make changes if needed, in which event it shall provide replacements of similar ability.



5 Responsibilities of CLIENT

(a) CLIENT will provide GLiNTECH with access to the CLIENT’s sites and systems where reasonably required by GLiNTECH to provide the Services.

(b) CLIENT must:

(i) Maintain the CLIENT’s equipment and all systems in proper working order including by maintaining appropriate security during the Term of this Agreement;

(ii) complete in a timely manner any additional obligations and tasks required by GLiNTECH so GLiNTECH may provide the Services;

(iii) provide GLiNTECH with the number of logins required by GLiNTECH to provide Services under this Agreement, including by providing shared logins where requested by GLiNTECH and where possible so that Personnel only require one login to access the CLIENT’s systems; and

(iv) ensure where it provides to GLiNTECH any personal information (as that term is defined in the Privacy Act 1988 (Cth)) that it has all relevant consents for such disclosure or access to personal information from individuals.

(c) If CLIENT delays in providing necessary assistance or if GLiNTECH experiences other delays outside of its control in performing Services, then GLiNTECH may adjust the schedule for Services accordingly, and shall inform the CLIENT of any Fees or charges for additional work caused by such delays. Such additional Fees or charges shall reflect GLiNTECH’s then-current time and materials rates.

(d) The CLIENT representative shall have authority to act for and on behalf of CLIENT in fulfilment of CLIENT’s obligations under this Agreement, including, but not limited to:

(i) making decisions, approving plans, requesting work and granting requests on behalf of CLIENT in connection with the Services; and

(ii) making management decisions and providing Personnel, as reasonably required by GLiNTECH, in order to facilitate the Services provided by GLiNTECH.

(e) CLIENT warrants and represents that it has the authority to enter into and bind the CLIENT to this Agreement.



6 Confidentiality

(a) The parties agree to keep the Confidential Information of the other party, secret and confidential.

(b) A recipient of Confidential Information may only use the Confidential Information of the discloser for the purposes of performing its obligations under this Agreement, provided that GLiNTECH may use the CLIENT’s Confidential Information for GLiNTECH’s own internal business purposes relating to measuring, monitoring and improving GLiNTECH’s services (including for statistical analysis and benchmarking).

(c) A recipient must:

(i) not disclose Confidential Information of the discloser to any person except if permitted by this Agreement; and

(ii) not permit or assist any person to make any unauthorised use of the discloser’s Confidential Information.

(d) A recipient may disclose Confidential Information of the discloser to:

(i) the recipient's Personnel on a "need to know basis"; or

(ii) any other person with the discloser's prior written consent.

Before doing so, the recipient must ensure that those persons are aware of the confidential nature of the Confidential Information and are bound by confidentiality obligations consistent with this Agreement.

(e) A recipient may disclose Confidential Information of the discloser to the extent required by law. However, the recipient must give the discloser reasonable notice of any proposed disclosure (if permitted by law) to enable the discloser to seek a protective order or other remedy to prevent or limit the disclosure.

(f)  Each party acknowledges that any breach of this section 6 may result in damage to the other party for which monetary damages may not provide sufficient relief. Each party is entitled to enforce its rights under this section by specific performance or other injunctive proceedings.



7 Intellectual Property

(a) No right, title or interest in or to any Intellectual Property Rights of either party are assigned or otherwise transferred under this Agreement. For clarity, any GLiNTECH Data remains the property of GLiNTECH at all times.

(b) At all times all right, title or interest in or to Intellectual Property Rights in any Products and/or Services including those that may be created or enhanced by GLiNTECH in the course of, or in connection with this Agreement, will remain the sole property of the GLiNTECH.

(c) CLIENT grants to GLiNTECH a revocable, non-transferable, non-exclusive and royalty-free licence for the Term of this Agreement to use the CLIENT’s Pre-existing Intellectual Property Rights to the extent necessary for, and solely for the purposes of, GLiNTECH performing its obligations under this Agreement.

(d) CLIENT may give feedback to GLiNTECH on the Products, Services, Portal or any other aspect of the Parties’ relationship from time to time. CLIENT grants to GLiNTECH an irrevocable, perpetual licence to use any feedback that the CLIENT provides to GLiNTECH.

(e) GLiNTECH grants to the CLIENT a non-exclusive, revocable, royalty-free, non-transferrable licence to use:

(i) the Portal;

(ii) GLiNTECH’s Pre existing Intellectual Property Rights solely to the extent that such Pre existing Intellectual Property Rights are embodied or incorporated in any Products or are otherwise necessary for the CLIENT to benefit from the Services provided under this Agreement; and

(iii) GLiNTECH’s Intellectual Property Rights which may be created or enhanced by GLiNTECH in the course of, or in connection with, this Agreement solely to the extent that such Intellectual Property Rights are embodied or incorporated in any Products or are otherwise necessary for the CLIENT to benefit from the Services provided under this Agreement.



8 Indemnity

(a) Each Party (the Indemnifying Party) will defend and keep indemnified the other Party (the Indemnified Party), its Affiliates and their respective directors and officers (including after this Agreement ends) from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by Indemnified Party, its Affiliates and their respective directors and officers, directly or indirectly, in connection with:

(i) any injury to or death of persons or damage to property caused or contributed to by the Indemnifying Party or by Indemnifying Party’s Personnel; or

(ii) any wilful acts or omissions of the Indemnifying Party’s or its employees, officers, agents or sub-contractors in connection with the Services or this Agreement; or

(iii) any material breach of this Agreement.

(b) The Indemnifying Party’s liability to indemnify the Indemnified Party and Affiliates under this section 8 will be reduced proportionally to the extent that any of the Indemnified Party or its Affiliates acts or omissions, or those of any person for whom the Indemnified Party or Affiliates are vicariously liable, contributed to the loss or liability.


9 Limited Warranty

(a) Each party warrants and represents that it:

(i) is validly existing under the laws of its place of incorporation and has the power and authority to carry on its business as that business is now being conducted;

(ii) has the authority to grant the licence rights provided to the other party as set out in this Agreement; and

(iii) is duly authorised to enter into and be bound by this Agreement.

(b) GLINTECH warrants that it will perform the Services in a professional and workmanlike manner.

(c) To the maximum extent permitted by law, GLiNTECH excludes and disclaims all guarantees, conditions, warranties or terms of any kind, whether express or implied or imposed by any applicable law.

(d) GLiNTECH does not guarantee that your requirements will be met by the Services or that CLIENT’s use of any Products and/or Services will be uninterrupted, secure or error free. The CLIENT acknowledges that there may be times where its systems may be down or disrupted and that GLiNTECH is not liable for any interruptions or disruptions in any way.

(e) GLiNTECH does not represent or warrant that any faults in the Products and/or Services will be fixed or that they will be fixed within a certain period of time.

(f)  Upon written notice to GLiNTECH from the CLIENT of a breach of the obligation in section 9(b) (Confidentiality), (Intellectual Property), (Indemnity), (Limited Warranty) and (Limitation of Liability) of this Agreement together with any other provisions of this Agreement which by their nature are intended to survive the termination or expiry of this Agreement, will continue in full force and effect after the termination or expiry of this Agreement.



10 Limitation of Liability

(a) To the extent permitted by law, GLiNTECH’s aggregate liability for any loss arising under or in connection with this Agreement, however it arises and whether in contract, tort (including negligence and breach of statutory duty) or otherwise, is limited to any fees paid under the Agreement or paid within 12 months.

(b) Nothing in this Agreement excludes, restricts or modifies any modifies any guarantee, warranty, term or condition, right or remedy implied or imposed by applicable law which cannot lawfully be excluded, restricted or modified (a Non-excludable Provision). However, if a Non-excludable Provision can be limited, then GLiNTECH’s aggregate liability for any breach of a Non-excludable Provision will be limited, at GLiNTECH’s sole option:

(i) in relation to goods:

(A) the replacement of the goods or the supply of equivalent goods or payment of the cost of replacing the goods or acquiring equivalent goods; or

(B) the repair of the goods or payment of the cost of having the goods repaired;

(ii) in relation to services:

(A) the supplying of the services again; or

(B) the payment of the cost of having the services supplied again.

(c) GLiNTECH’s liability will be reduced proportionately to the extent that any loss or damage arises as a result of the negligence or wrongful acts or omissions of the CLIENT or as a result of any breach by the Client of an express or implied condition of this Agreement.

(d) To the extent permitted by law, the liability of a party under this Agreement will not include any consequential loss or damages.

(e) The limitations and exclusions of the liability set out in this agreement apply regardless of where such liability arises and regardless of the basis on which such liability arises, whether such basis is in contract, breach of statutory duty, tort (including negligence), in equity or under statute.



11 Termination

(a) This Agreement may be terminated by either party, with or without cause, upon not less than thirty (30) days’ written notice to the other party. Upon termination of this Agreement, CLIENT must promptly pay GLiNTECH for all Products and Services provided under this Agreement and all out-of-pocket expenses incurred by GLiNTECH up to the termination date.

(b) Upon GLiNTECH’s receipt of payment from CLIENT for all Products and Services provided and any out-of-pocket expenses incurred by GLiNTECH through the effective date of such termination, GLiNTECH shall provide to the CLIENT all relevant documentation generated during the performance this Agreement.

(c) Sections (Confidentiality), (Intellectual Property), (Indemnity), (Limited Warranty) and (Limitation of Liability) of this Agreement together with any other provisions of this Agreement which by their nature are intended to survive the termination or expiry of this Agreement, will continue in full force and effect after the termination or expiry of this Agreement.



12 Force Majeure

Neither party will be liable for any delay or failure to perform its obligations under this Agreement if such a delay is due to a Force Majeure Event. If a delay or failure of a party to perform its obligations is caused or anticipated due to a Force Majeure Event, the performance of that Party’s obligations will be suspended while the Force Majeure Event continues.



13 Miscellaneous

(a) The parties agree not to solicit, without written permission, any employee/ representative/ sub-contractor or agent of the other it has had contact with as a result of this Agreement for a period of six (6) months after termination of this Agreement.

(b) Any notice, approval or consent required to be given under this Agreement must be in writing and must be delivered by hand, mail or email to the address of the party as may be advised by the other party from time to time. Notice will be taken to have been given by a party to the other:

(i) if by hand, on written acknowledgment of receipt by an authorised employee, agent or representative of the receiving party;

(ii) if by mail, three (3) Business Days after the date of mailing within Australia;

(iii) if by email:

(A) when the sender receives an automated message confirming delivery; or

(B) 4 hours after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that delivery failed,

whichever happens first.

(c) Nothing in this Agreement creates a joint venture, partnership or agency relationship between the parties and neither party has authority to bind any other party.

(d) Neither party may assign this Agreement without the consent of the other party. An assignee of either party shall be bound by the terms of this Agreement. If any assignee shall fail to agree to be bound by all of the terms and obligations of this Agreement, then such assignment shall be deemed null and void and of no force or effect.

(e) This Agreement constitutes the entire agreement between the parties and supersedes all previous communications or agreements, either oral or written with respect to the subject matter.

(f)  No waiver of a right or remedy under this Agreement is effective unless it is in writing and signed by the party granting it. It is only effective in the specific instance and for the specific purpose for which it is granted. A single or partial exercise of a right or remedy under this Agreement does not prevent a further exercise of that or of any other right or remedy.

(g) If any provision in this Agreement is determined to be invalid or unenforceable, the provision is severed to the extent it is void or unenforceable. The remaining provisions of this Agreement will remain in full force and effect.

(h) This Agreement is governed by the laws of New South Wales, Australia. The parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales and the Commonwealth of Australia.



14 Definitions

(a) Allotted Quantity of Hours means the total number of Service hours that the CLIENT has agreed to purchase.

(b) Business Hours means a day on which banks are open for business excluding Saturdays, Sundays and public holidays in New South Wales, Australia between the hours of 9am – 5pm.

(c) Confidential Information means in relation to a party, information that is by its nature confidential, is designated by that party as confidential, or the other party knows or ought reasonably to know is confidential, and includes any information relating to the financial affairs, assets or liability of a party, or any information relating to the internal management of a party, its personnel, policies, plans, strategies, customers, suppliers, products or Services. Confidential Information does not include information or material which:

(i) is or becomes generally known to the public other than through a breach of this agreement;

(ii) at the time it was first disclosed to a party, was already in that party's lawful possession;

(iii) is developed independently by a party; or

(iv) is disclosed to a party by a third party entitled to disclose it.

(d) Consulting Services means, services provided by GLiNTECH’s professional services team and are required to be scheduled for dates. The terms of these engagements will not be governed by this agreement, but instead be governed by a Master Services Agreement, or equivalent.

(e) Fees means the fees payable by the CLIENT to GLiNTECH as specified for Services ordered and agreed.

(f)  Force Majeure Event means, in relation to a party, an act, omission or circumstance which:

(i) prevents in whole or part that party from carrying out its obligations under this Agreement;

(ii) is beyond the reasonable control of that party;

(iii) could not have been prevented by reasonable precautions or remedied by reasonable expenditure by the party which is seeking to rely on the event; and

(iv) could not reasonably be circumvented.

(g) GLiNTECH Data means all data and information relating to GLiNTECH’s operation of the Services, it’s Portal and ancillary information, including GLiNTECH’s Confidential Information.

(h) GST has the same meaning as in the GST Law.

(i) GST Law has the same meaning given as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(j) Intellectual Property Rights means all intellectual property rights of any kind including but not limited to copyright (including rights in computer software), trade mark, service mark, design, patent, trade secret, semiconductor or circuit layout rights, trade, business, domain or company names, rights in Confidential Information, know how or other proprietary rights (whether or not any of these are registered and including any application for registration) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world.

(k) Master Services Agreement means an agreement that governs the overarching, enduring relationship between GLiNTECH and CLIENT, and which stands outside of this agreement.

(l) Personnel of a party means officers, employees, contractors, agents, subcontractors and professional advisors of that party, and includes officers, employees, contractors, agents and subcontractors of any subcontractor.

(m) Pre-existing Intellectual Property Right means a person’s Intellectual Property Rights existing prior to the commencement of this Agreement or subsequently brought into existence other than in the course of performing this agreement and any improvements, enhancements, modifications, or developments thereof.

(n) Portal means the GLiNTECH Managed Services Portal, found at https://my.glintech.com or at https://service.glintech.com

(o) Professional Services Agreement means GLINTECHs standard terms of service as it relates to the performance of Consultancy Services. Details of this agreement can be found here: https://www.glintech.com/about-us/how-we-work/professional-services-agreement

(p) Products means software products or deliverables.

(q) Services means the managed services to be supplied by GLiNTECH to the CLIENT as selected by the CLIENT on the Portal.

(r) Term has the meaning given to it in section 2 of this Agreement.

(s) Training Services means services provided by a GLiNTECH trainer, who will deliver training in a classroom style fashion for a predetermined amount of time, with accompanying learning materials.