Veeps Hosting Terms

These Veeps Hosting Terms apply to each Customer Service Agreement between VEEPS PTY LIMITED ABN 18 164 248 417 of 1206/100 Walker Street, North Sydney NSW 2060, Australia (Veeps) and the Customer that has signed a Services Schedule as provided to the Customer by Veeps. 

Each Customer Service Agreement consists of:

  1. the Services Schedule; and
  2. the Veeps Hosting Terms .

If there is any inconsistency between the Services Schedule and these Veeps Hosting Terms, then the Veeps Hosting Terms will prevail.

All capitalised terms have the meaning that they have as set out in the Dictionary at the end of the Veeps Hosting Terms. The Dictionary also sets out the rules of interpretation which apply to the Customer Service Agreement.

1. SERVICES

  1. Subject to clause 4, Veeps will provide the Services to the Customer at the Service Levels as set out under the heading "Service Levels" at the end of these Veeps Hosting Terms and otherwise in accordance with the Customer Service Agreement for the Initial Term and thereafter until the Customer Service Agreement is terminated.
  2. Veeps will use reasonable endeavours to ensure that the Services are substantially available at all times. However, Veeps does not warrant that the Services will be available 24 hours a day or that any fault will be corrected within a specified timeframe.
  3. Veeps may change, add, or remove any part of the Customer Service Agreement by providing written notice to the Customer.  If the Customer disagrees with the change they have the right to terminate the Customer Service Agreement immediately by giving written notice to Veeps and ceasing to use the Services.

2. FEES

  1. In consideration for Veeps providing the Services to the Customer, the Customer will pay Veeps the Fees.
  2. Veeps reserves the right to increase the Fees payable under the Customer Service Agreement on the anniversary of the Initial Term, or at any time thereafter, by providing written notice to the Customer notifying a date for such increase being not less than 30 days prior to the date of service of the notice.  

3. PAYMENT TERMS

  1. The Customer must pay Veeps the Fees in the manner provided in the Services Schedule and, in any case, within 7 days of Veeps issuing an invoice to the Customer unless otherwise agreed between the parties.
  2. Payment of the Fees must be made by electronic transfer or other pre-arranged payment method unless Veeps has agreed to provide credit terms to the Customer.
  3. If the Customer does not pay the full amount of the Fees for any non disputed invoices, Veeps may elect to terminate the Customer Service Agreement after providing written notice to the Customer.
  4. Veeps will notify the Customer of any default payments and provide reasonable time to rectify prior to instructing its solicitors to collect an overdue amount, all Legal Fees shall be borne by the Customer and all payments made by the Customer will firstly be allocated towards such Legal Fees and then to the overdue amount.
  5. If the Customer is required to withhold or deduct Tax from the Fees, the Customer is required to pay Veeps an additional amount to ensure that Veeps receives a net amount equal to the full amount of the Fees.

4. CUSTOMER RESPONSIBILITIES AND OBLIGATIONS

  1. The Customer:some text
    1. must have the right hardware, software, internet speed, and equipment to allow Veeps, acting reasonably, to provide the Services to the Customer;
    2. must provide Veeps with all information and other assistance reasonably required to enable Veeps to provide the Services;
    3. must comply with the licence terms and conditions of any third party software or hardware supplied to the Customer by Veeps.
    4. is responsible for their password and account details, must keep them confidential and not disclose them to any other party; 
    5. where, in using the Services, stores, processes and/or transmits data relating to payment card transactions, must comply with the Payment Card Industry Data Security Standard;
    6. comply with all applicable legislation, including anti-spam, anti-phishing, identity theft, defamation, privacy, pornography and Intellectual Property Rights legislation; and
    7. comply with the Customer Obligations as set out at the end of these Hosting Terms.
  2. The Customer must not:some text
    1. deliberately interfere with or disrupt the network, any other user, or the service or equipment of Veeps or any other user, or substantially affect the operation of the Services, including introduce or allow any software virus through its negligence or dishonesty;
    2. engage in the business of reselling or exporting the Services or any part of the Services
    3. use the Services for any illegal, unauthorised or dangerous purpose;
    4. use the Services or any Veeps Intellectual Property Rights to develop technology the same as or similar to the Services or the Veeps Intellectual Property Rights or to compete against Veeps;
    5. publish any material for which the Customer is not the Intellectual Property Right owner or is so authorised to publish.
    6. store, process and/or transmit data relating to payment card transactions other than in compliance with the Payment Card Industry Data Security Standard.
  3. The Customer acknowledges that Veeps does not and cannot monitor or control the content and information accessed via the Internet and shall not hold Veeps responsible in any way for any content or information accessed via the Internet.

5. VEEPS RIGHTS AND OBLIGATIONS

Veeps may in its reasonable opinion, without incurring any liability for doing so:

  1. suspend the Service if the Customer is in breach of clause 4.B;
  2. delete any data found on Veeps equipment or systems and/or refuse to publish any data which is, unauthorised; illegal or possibly illegal; unlawful; obscene; infringes any Intellectual Property Right of any third party; defamatory; excessive in volume; or otherwise dangerous;
  3. take action if it suspects that malicious, illegal or unacceptable usage (as described in the paragraph 5.B) of the Services is occurring or has occurred.

Veeps agrees to perform Services with professional care and skill to an appropriate level, comply with applicable laws, not infringe third party Intellectual Property Rights, and take due care to only engage with third parties that uphold the same responsibilities.

6. EXCLUSIONS AND LIMITATION OF LIABILITY

  1. Customer acknowledges that;some text
    1. the Services supplied by Veeps are not Services of a kind likely to be used by the Customer, for personal, domestic or household use or consumption;
    2. any Services supplied by Veeps will be used by the Customer in trade or commerce
  2. To the full extent allowed by law and subject to clause 6(C), Veeps is not responsible for, without limitation:some text
    1. ensuring that the Services are suitable for the Customer’s requirements or fit for any purpose;
    2. any interruption to the Services due to, without limitation, equipment failure, the need for routine maintenance or peak demand, provided Veeps has taken all reasonable steps to mitigate and prevent the occurrence of such interruption;
    3. the supply or maintenance of the Customer’s equipment or software;
    4. monitoring, controlling or ensuring the accuracy, appropriateness or content of any information or material on the Internet and does not do so;
    5. any failure to supply the Services directly resulting from the Customer’s failure to comply with clause 4;
    6. any loss of data provided by, uploaded, downloaded, stored, processed, accessed or shared by the Customer, except where such loss arises or is contributed to by any act or omission of Veeps or any of its officers, employees, advisers or related bodies corporate, that is negligent, in wilful default of Veeps’ obligations or fraudulent;
    7. the acts or omissions of any third party including any breach of security.
  3. If Veeps fails to comply with any statutory guarantees and warranties that cannot be excluded by law, Veeps’ liability is limited to:some text
    1. the supplying of the Services again to the reasonable satisfaction of the Customer; or
    2. the payment of the cost of having the Services supplied again.
  4. Subject to clause 6(C), Veeps is not liable to the Customer or any other person, and the Customer releases each of Veeps and its officers, employees, advisers and related bodies corporate for any costs, loss, liability or claim whether direct, indirect or consequential arising out of Veeps’ supply or failure to supply the Services or otherwise under the Customer Service Agreement, except as a result of negligence, wilful default or dishonesty of Veeps or any of its officers, employees, advisers or related bodies corporate.
  5. Subject to clause 6(D) in the case of Veeps, each party indemnifies the other against any costs, loss, liability or claim suffered or incurred by them arising from a breach of a Customer Service Agreement or of any law. However, neither party will be held responsible for any loss of opportunity, revenue, profit, or other indirect or consequential losses. To the extent permitted by law, the Customer’s maximum liability under each Customer Service Agreement is the amount the Customer has paid to Veeps and its related bodies corporate in the 12 month period prior to the liability arising. 

7. CONTENT

  1. The Customer may upload content to the Services in connection with the use of the Services. 
  2. Veeps does not verify, endorse or claim ownership of any content, and the Customer retains all right, title and interest to that content. 
  3. By maintaining the content on the Services, the Customer grants Veeps a non-exclusive, worldwide, perpetual, royalty-free and fully paid license under all Intellectual Property Rights to reproduce, copy, distribute, publish, communicate, transmit, publicly display, publicly perform and reformat the content solely to deliver the Services to the Customer. 

8. STORAGE AND USE OF INFORMATION

  1. Veeps retains the right to create reasonable limits on the use of content such as limits on file size, storage space, processing capacity and similar limitations as otherwise determined by Veeps. Veeps must communicate these reasonable limits to the Customer in a timely manner.
  2. The Customer acknowledges that Veeps may introduce technical barriers and filters to limit or exclude the type or size of data stored, uploaded, downloaded, processed, accessed or shared. 

9. DISPUTE RESOLUTION

  1. If any dispute or difference arises between the parties in connection with any aspect of the Customer Service Agreement, Veeps and the Customer undertake with each other to use all reasonable endeavours, in good faith, to settle the dispute or difference by negotiation.
  2. If Veeps and the Customer or their representatives do not settle the dispute by negotiation within 14 days, each party must appoint a senior executive to participate in the negotiations to settle the dispute or difference.
  3. If the dispute is not resolved within one month, or agreed period, after referral of the dispute to the senior executives, then either party may exercise any other rights they may have.
  4. This clause is without prejudice to either party’s right to seek interlocutory relief on an urgent basis to restrain any actual or threatened breach of this Agreement or any applicable law.

10. GST

  1. Any consideration or payment obligation in the Customer Service Agreement is exclusive of GST unless stated otherwise.
  2. A party who receives consideration, whether monetary or otherwise, for a taxable supply under the Customer Service Agreement, must give the other party a tax invoice in a form which complies with the GST Law.

11. RELATIONSHIP BETWEEN THE PARTIES

  1. The Customer Service Agreement does not create a relationship of employment, agency or partnership between Veeps and the Customer.
  2. Neither party is authorised to, nor may undertake to bind the other party in any way by any warranty, agreement, contract, representation or other written or oral arrangement or by any instrument or action of any kind.

12. TERMINATION

  1. Each party may terminate the Customer Service Agreement at any time following the expiry of the Initial Term, by giving the other party 60 days written notice.
  2. A party may terminate the Customer Service Agreement with immediate effect by giving written notice to the other party, if:some text
    1. the other party breaches a material obligation under the Customer Service Agreement and if the breach is capable of being remedied does not remedy that breach within 28 days after receipt of written notice requiring it to do so;
    2. an Insolvency Event occurs in relation to the other Party.
  3. Veeps may terminate the Customer Service Agreement with immediate effect by giving written notice to the Customer if:some text
    1. the Customer does not pay any amount due under the Customer Service Agreement or any amount due under any other agreement or arrangement between Veeps and the Customer, and such amount remains outstanding 14 days after receipt by Customer of written notice of the unpaid amount;
    2. the Customer is in breach of a material obligation under another agreement between Veeps and the Customer, and if possible, that breach has not been remedied within 14 days after receipt of written notice requiring it to do so;
    3. in Veeps’ reasonable opinion, the Customer has failed or is threatening not to comply with applicable laws including antispam, anti-phishing, identity theft, defamation, privacy, pornography and Intellectual Property Rights laws;
    4. in Veeps’s reasonable opinion, it is or will be illegal for Veeps to provide the Services to the Customer.
  4. The Customer may terminate the Customer Service Agreement in accordance with clause 1(c).
  5. On termination of the Customer Service Agreement:some text
    1. Veeps must provide reasonable assistance on the Customer’s request to transfer the Services to the Customer or a nominated replacement provider. This clause does not limit Veeps’s Intellectual Property Rights under the Customer Service Agreement;
    2. each party must immediately return to the other party all of the other party’s confidential information in its possession or control, and remove it from its electronic systems; and
    3. the Customer must within 7 days pay all outstanding amounts owing under the Customer Service Agreement as at the date of termination.
  6. For clarity, termination of a Customer Service Agreement does not automatically result in termination of each other Customer Service Agreement.

13. NOTICES

  1. Any notice or other communication, given under the Customer Service Agreement must be in English and is deemed to be received by the addressee in accordance with clause 13(b).
  2. A notice is deemed to be received:some text
    1. if sent by email, on receipt of a read acknowledgement email,
    2. if sent via an approved online ticketing system, on acknowledgement via the online ticketing system

but if the delivery or receipt is on a day which is not a Business Day or is after 4.00 pm in the place of delivery or receipt it is regarded as received at 9.00 am on the following Business Day.

14. GOVERNING LAW

The laws of New South Wales govern the Customer Service Agreement. Each party submits to the non-exclusive jurisdiction of the Courts of that State.

15. CONFIDENTIALITY

A party may not disclose the provisions of the Customer Service Agreement or Confidential Information about the other party except:

  1. after obtaining the written consent of the other party;
  2. on a confidential basis to an officer, employee or professional adviser; or
  3. as required by any applicable law,

and must use its best endeavours to ensure all permitted disclosures are kept confidential by the party to whom the disclosure was made.

16. NO ASSIGNMENT

A party may not assign the Customer Service Agreement or otherwise transfer the benefit or obligations of the Customer Service Agreement or a right or remedy under it, without the prior written consent of the other party. The Customer acknowledges that Veeps may assign the benefit of the Customer Service Agreement to another person as part of a corporate restructure or as part of the sale of substantially the whole of Veep’s business, and will notify the Customer promptly of any such restructure or sale.

17. ENTIRE AGREEMENT

The Customer Service Agreement constitutes the entire agreement between Veeps and the Customer and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.

18. FURTHER ASSURANCE

Each party must do all things necessary to give full effect to the Customer Service Agreement and the transactions contemplated by the Customer Service Agreement.

19. PERFORMANCE OF THE CUSTOMER SERVICE AGREEMENT

The Customer acknowledges that Veeps may use a related body corporate, with notification to the prior consent of the Customer, to perform any of its obligations or otherwise do anything that Veeps is required or permitted to do under the Customer Service Agreement, and that Veeps remains responsible for the performance of its obligations under this agreement.

20. SEVERABILITY

If any provision of the Customer Service Agreement is held to be ineffective, unenforceable or illegal for any reason, that decision will not affect the validity or enforceability of any or all of the remaining proportions.

21. WAIVER

Either party’s failure on any occasion to insist on the strict performance of any term or condition of the Customer Service Agreement will not constitute a waiver of compliance with the particular term or condition or a waiver of any default.

22. AMENDMENTS

The Customer Service Agreement may only be amended by a written document signed by the parties.

23. AUTHORITY TO ENTER AGREEMENT

The person who signs the Customer Service Agreement on behalf of the Customer warrants that they have the authority and power to enter into the Customer Service Agreement and bind the Customer.

SUPPORT AND SERVICE LEVELS

Standard Support is included with all Veeps server deployments and includes:

  • Monitoring of the platform: hardware and virtual server layers including storage and compute resources, Network and Operating System to ensure it is functioning correctly.
  • Backup services as defined in the Customers Services Schedule including restoration of services from backup.
  • DNS Changes if the zone is hosted by Veeps
  • Questions relating to included services, to which the Response Times below apply.
  • Infrastructure level patching including operating system.

Extended Support is support related to hosting options selected by the customer as outlined in their Service Schedule.

  • 24/7 Monitoring and Alerting - Veeps will monitor and support your selected monitoring services which may include, CPU, Disk, Memory, System Load, SMTP, SSH, HTTP, TCP, MySQL performance and application. 
  • Managed Offsite Backups - Veeps will support requests to retrieve all data backed up off site in the event that local backups are not available. Data may include application configuration, log files, code tree and database files.
  • Managed Firewall - Veeps will firewall out any unwanted traffic at the hardware layer before it reaches your server. Support for firewall configuration changes is available during business hours only.
  • Server Management - Veeps will support customer specific server management packages as outlined in the Customers Services Schedule.
  • Security Management - Veeps will support customer specific security management packages as outlined in the Customers Services Schedule.

Paid Support is support that is requested by the customer that is not included in Standard Support or the Customers selected Extended Support. Customers should refer to their Services Schedule for support rates.

Service Levels

‍Contact Details

  • During business hours (8am-6pm AEST), all support issues can be logged using Veeps online ticketing system webqem-veeps.monday.com 
  • Support for Blocker (Priority 1) issues is available outside of business hours and can be accessed by logging a ticket with Blocker status using Veeps online ticketing system webqem-veeps.monday.com.  Blocker tickets will be escalated to Veeps 24/7 on-call team.

In the event of system outage Veeps will provide a debrief to the Customer explaining the nature of the problem and remedial steps taken on receipt of request.

‍

Response Times

  • Priority 1: 1 hour 24/7
  • Priority 2: 2 hours during Business hours
  • Priority 3: 4 hours during Business hours
  • Priority 4: 1 Business Day

Priority Levels

  • Blocker (Priority 1) — means your production system or other mission-critical feature/function is down and no workaround is immediately available. You have a substantial loss of service.
  • Critical (Priority 2) — occurs when a major functionality is severely impaired. Operations can continue in a restricted fashion, although long-term productivity might be adversely affected. A major milestone is at risk. Ongoing installation/configuration is at risk.
  • Major (Priority 3) — involves partial, non-critical loss of functionality of the production system. Impaired operations of some components, but allows the user to continue using the system or service. Initial installation/configuration milestones are at risk.
  • Minor/Trivial (Priority 4) — refers to general usage questions. Cosmetic issues, enhancement requests, documentation or functionality questions.

CUSTOMER OBLIGATIONS

Abuse

The Customer must not use the Services to engage in, foster, or promote illegal, abusive, or irresponsible behaviour, including but not limited to:

  1. unauthorised access to or use of data, services, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without written authorisation of the owner or operator of the system or network;
  2. monitoring data or traffic on any network or system without the written authorisation of the owner or operator of the system or network;
  3. interference with service to any user, host or network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks;
  4. use of an Internet account or computer without the owner's written authorisation;
  5. collecting information by deceit, including, but not limited to Internet scamming (tricking other people into releasing their passwords), password robbery, phishing, security hole scanning, and port scanning;
  6. use of any false, misleading or deceptive TCP-IP packet header or any part of the header information in an e-mail or a newsgroup posting;
  7. use of the Services to distribute software that covertly gathers information about a user or covertly transmits information about the user;
  8. any activity or conduct that is likely to result in retaliation against Veep's network;
  9. any activity or conduct that is likely to be in breach of any applicable laws, codes or regulations including data protection, identity theft, anti-spam, anti-phishing, defamation, privacy, pornography or Intellectual Property Rights;
  10. introducing intentionally or knowingly into the Services any virus or other contaminating code;
  11. the omission, deletion, forgery or misreporting of any transmission or identification information, such as return mailing and IP addresses, or any activity intended to withhold or cloak identity or contact information; or
  12. any activity or conduct that unreasonably interferes with any other customers' use of Veep's services.

Offensive Content

The Customer shall not publish, display or transmit via the data centres’ network and equipment any content or links to content that Veeps reasonably believe:

‍

  1. constitutes, facilitates or encourages child pornography, bestiality, non-consensual sex acts, or is otherwise morally repugnant;
  2. is excessively violent, incites or encourages violence, threatens violence, or contains harassing content or hate speech;
  3. is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes;
  4. is defamatory or violates a person's privacy or any right of publicity;
  5. creates a risk to a person's safety or health, creates a risk to public safety or health, compromises national security, is likely to cause or encourage public disorder, or interferes with an investigation by law enforcement bodies;
  6. improperly exposes trade secrets or other confidential or proprietary information of another person;
  7. constitutes unfair competition;
  8. is discriminatory, or encourages or incites hatred or discrimination or adversely affect the equal opportunities in any way, including by way of sex, race, or age, colour, nationality, national origin, ethnicity;
  9. involves theft or, fraud,
  10. involves drug-trafficking, money laundering, arms-trafficking, the proliferation of weapons of mass destruction, or terrorism;
  11. denounces political or religious beliefs;
  12. is otherwise malicious, fraudulent, abusive, menacing, intentionally misleading, vulgar, of doubtful propriety, is likely to damage public morals, or may to result in retaliation against Veeps by offended viewers;
  13. is likely to adversely affect Veeps' commercial reputation and goodwill;
  14. is otherwise illegal or solicits or is likely to encourage conduct that is illegal under laws applicable to you or to Veeps; or
  15. states or implies an affiliation with, or sponsorship or support of any prohibited content or activity.
  16. Content "published or transmitted" via the data centres’ network or equipment includes Web content, e-mail, bulletin board postings, chat, and any other type of posting, display or transmission that relies on the Internet.

DATA SECURITY AND PRIVACY

  1. Privacy 
  1. Each party must comply with:some text
    1. the Privacy Act (including the Australian Privacy Principles set out in the Privacy Act) as if it were an entity bound by the Privacy Act and notwithstanding the application of the small business exception in the Privacy Act; and
    2. any other applicable Privacy Laws,

in respect of Personal Information.

  1. The Supplier must take all reasonable technical, operational and physical measures to protect Customer Data and any other Personal Information held by it in connection with the Agreement from: some text
    1. misuse, interference and loss; and 
    2. unauthorised access, interference, modification or disclosure. 
  1. Security Incidentssome text
    1. The Supplier must, as soon as reasonably practicable (and in any event, within 48 hours), notify the Customer upon becoming aware of a Security Incident.
    2. After notifying the Customer in accordance with sub-clause (a), the Supplier must:some text
      1. promptly investigate and remedy the Security Incident;
      2. promptly cooperate with all lawful directions of the Customer in respect of the Security Incident; and
      3. where applicable, and at the Customer's option, either:some text
        1. prepare a proposed statement in accordance with section 26WK(3) of Part IIIC of the Privacy Act, obtain the Customer's written approval to that statement and the method of notification for issuing such statement to affected individuals and the OAIC, and, if so instructed, issue the statement to affected individuals and the OAIC on behalf of itself and the Customer; or 
        2. provide all necessary information, documents and assistance required by the Customer in order for the Customer to prepare such statements and notify such individuals and the OAIC in respect of the Security Incident in accordance with Division 3B of Part IIIC of the Privacy Act. 
    3. Where the Supplier identifies that a critical security vulnerability may impact the Supplier systems, the Supplier has the right to immediately patch any customer systems at the Customers cost, subject to hosting options selected by the customer as outlined in their Service Schedule.
  2. Confidential Information 
  1. Subject to clause 2(c), each party shall treat, and shall cause its related entities and its own and its related entities' Personnel to treat, any Confidential Information disclosed to it by or on behalf of the other party as strictly confidential and not disclose any Confidential Information.
  2. No party may use Confidential Information disclosed by or on behalf of the other party for a purpose other than as expressly contemplated by the Agreement and must not permit or assist any person to make any unauthorised use of the other party's Confidential Information.
  3. Notwithstanding the terms of this clause 2, either party may disclose Confidential Information of the other if and to the extent that:some text
    1. the information is in or enters the public domain other than by reason of a breach of this clause 2 by the person receiving such information;
    2. the information was in the possession of the receiving person prior to its disclosure;
    3. the disclosure is required by applicable Law;
    4. the disclosure is to the party's related entities, legal and professional advisors and service providers who have a need to know such information, and only to the extent of such need (and subject to terms of confidentiality that are substantially similar to this clause 2); or
    5. the disclosure is made with the consent of the other party.
  4. Before any disclosure in reliance on clause 2(c)(iii), the party concerned must, where not prohibited by law, take all reasonable steps to preserve the confidentiality of the information and immediately notify the other party of such requirement, giving full details of the circumstances of the proposed disclosure, in order to enable the other party to have a reasonable opportunity to contest such disclosure.
  5. Each party must notify the other party promptly in writing if it becomes aware that any person not authorised to have access to the Confidential Information of the other party under the Agreement has obtained access to or is using any such Confidential Information.
  6. Each party acknowledges that any breach of this clause 2 may result in damage to the other party for which monetary damages may not provide sufficient relief. Each party is entitled to seek enforcement of its rights under this clause by specific performance or other injunctive proceedings.
  1. Consequences of termination or expiry
  1. Without limiting anything else in the Agreement and except as otherwise required by any applicable law or as agreed between the parties, on the expiry or termination of the Agreement for any reason: some text
    1. the Supplier must promptly (at the Customer's option) destroy or return to the Customer all Customer Data, all Personal Information disclosed to it in connection with the Agreement, and all Confidential Information of the Customer; and 
    2. the Customer must promptly (at the Supplier's option) destroy or return to the Supplier all Confidential Information of the Supplier (which does not incorporate Customer Data or Confidential Information of the Customer). 
  2. Clause 4(a) does not apply to any encrypted data stored as part of automated-business-as usual backups of any systems on which Customer Data resides.

5 General

  1. Without limiting any other provision of the Agreement, the Supplier: some text
    1. must not subcontract any use, storage, handling or other processing of Customer Data unless it enters into a written agreement with the sub-contractor, which contains terms no less onerous than this Schedule; and 
    2. acknowledges that it is solely responsible for all use, storage, handling or other processing of Customer Data required of it under the Agreement, including where such activities are undertaken by a subcontractor. 
  2. In this Schedule, definitions in clause 6 apply unless the context requires otherwise.
  1. Definitions

Confidential Information:

  1. in relation to any party, means any confidential or proprietary information arising or disclosed pursuant to the Agreement (including the terms of the Agreement, the parties' trade secrets and other information not generally known to the public such as business plans, strategies, practices, products, personnel and finances), which:
  1. if disclosed in written or other tangible form, including any electronic or magnetic form, is clearly designated as confidential or proprietary or the like; 
  2. if disclosed orally or visually, is identified at the time of disclosure as being confidential and confirmed as confidential in written summary form within thirty (30) days of such disclosure; or
  3. regardless of the form of disclosure, would reasonably be considered, given the nature of the information or the circumstances surrounding its disclosure, to be confidential; and
  1. in relation to the Customer, also includes the Customer Data and the Customer's Personal Information. 

Customer Data means:

  1. any data and information relating to the Customer (including data and information of any customer of the Customer, or the data and information of any end user of any of the Services) or its operations, facilities, clients, personnel and assets in whatever form that information may exist, which is accessed by the Supplier in connection with the Agreement and/or which is input into, stored in, generated by or processed as part of a Service; and
  2. any other data relating to the engagement of the Supplier by the Customer pursuant to the Agreement, including Confidential Information.
  1. OAIC means the Office of the Australian Information Commissioner.

Personal Information means "personal information" as defined in the Privacy Act and any other information relating to individuals that is subject to the operation of the Privacy Laws that a party:

  1. has collected, received or otherwise has access to; or
  2. discloses or otherwise makes available to the other party
  1. in connection with the Agreement.
  2. Privacy Act means the Privacy Act 1988 (Cth) as amended from time to time.
  3. Privacy Law means:some text
    1. the Privacy Act;
    2. any legislation from time to time in force in any:
  1. Australian jurisdiction (which includes the Commonwealth of Australia and any State or Territory of Australia); and/or
  2. non-Australian jurisdiction (to the extent that either party is subject to the laws of that jurisdiction),

affecting privacy, personal information or the collection, handling, storage, processing, protection, use or disclosure of data; and

  1. any ancillary rules, guidelines, orders, directions, directives, codes of conduct or other instruments made or issued by a government agency under an instrument identified in paragraphs (a) or (b),

as amended from time to time.

Security Incident means any suspected, likely or actual: 

  1. security incident (including any vulnerability or compromise) which will impact, or is reasonably likely to impact any of the Supplier's Systems, any Customer Data or Customer Systems; 
  2. breach of any Data Security Requirement which will impact, or is reasonably likely to impact any Customer Data or Customer Systems;
  3. misuse, interference with, or unauthorised access to, or unauthorised disclosure or modification of, Customer Data or Customer Systems; or
  4. loss or unauthorised destruction of Customer Data.

Services has the meaning given to that term in the Service Schedule.

DICTIONARY

Part 1 – Definitions

Business Day means a day on which banks are open for business in New South Wales excluding a Saturday, Sunday or public holiday.

Customer Maintenance means work by the Customer either planned or required on an urgent basis to maintain and support the hardware, software and/or hosting environment of the Customer which prevents the operation of the systems of the Customer

Dollars, A$ and $ means the lawful currency of Australia.

Emergency or Scheduled Change Control means work by Veeps or a third party either planned or required on an urgent basis to maintain and support the hardware, software and/or hosting environment of the Customer which prevents the operation of the systems of the Customer

Targeted Cyber Security Attack means a deliberate attack by a known or unknown party resulting in an outage to the Services.

Fees has the meaning set out in the Services Schedule.

GST means goods and services tax under the GST Law, as that expression is defined in A New Tax System (Goods and Services Tax) Act, 1999.

Initial Term has the meaning set out in the Services Schedule. 

Insolvency Event means the occurrence of any one or more of the following events in relation to any party:

  1. an application is made to a court for an order that it be wound up, declared bankrupt or that a provisional liquidator or receiver or receiver and manager be appointed;
  2. a liquidator or provisional liquidator or an administrator is appointed;
  3. it enters into an arrangement or composition with one or more of its creditors, or an assignment for the benefit of one or more of its creditors;
  4. it ceases to carry on business or threatens to do so; or
  5. anything occurs under the law of any jurisdiction which has a substantially similar effect to any of the above paragraphs of this definition.

Late Fee Rate means, at any time, the lower of 2% per month calculated daily, compounded monthly, or the maximum rate allowed by law.

Legal Fees means those fees charged by the lawyers of Veeps to Veeps on a solicitor client basis.

Intellectual Property Rights means all intellectual property rights at any time protected by statute or common law, including but not limited to:

(a) patents, patent rights, copyrights, rights in circuit layouts, registered designs, design rights, trade marks, trade names, licenses, utility models, logotypes and service marks and any right to have confidential information kept confidential; and

(b) any application or right to apply for registration of any of the rights referred to in (a).

Payment Card Industry Data Security Standard means the standard described as such by the PCI Security Standards Council, LLC and as published on its website at https://www.pcisecuritystandards.org/

Priority Levels are as defined under the heading "Service Levels" below

Quarter means each period of 3 months.

Services has the meaning set out in the Services Schedule.

Services Schedule means the schedule of Services and Fees as agreed to apply between Veeps and the Customer

Tax means a tax, levy, charge, impost, fee, deduction, withholding or duty of any nature, including, without limitation, stamp and transaction duty, which is imposed, withheld or collected by a government agency.

Part 2 - Interpretation

  1. Unless the context otherwise requires:some text
    1. words importing the singular include the plural and vice versa;
    1. words which are gender neutral or gender specific include each gender;
    2. other parts of speech and grammatical forms of a word or phrase defined in the Customer Service Agreement has a corresponding meaning;
    3. an expression importing a natural person includes a company , partnership, joint venture, association, corporation or other body corporate and a Government Agency;
    4. a reference to a thing (including, but not limited to, a chose-in-action or other right) includes a part of that thing;
    5. a reference to a clause, party, schedule or attachment is a reference to a clause of the Customer Service Agreement , and a party, schedule or attachment to, the Customer Service Agreement and a reference to the Customer Service Agreement includes a schedule and attachment to the Customer Service Agreement ;
    6. a reference to a law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, by‑law judgement, rule of common law or equity or a rule of an applicable stock exchange and is a reference to that law as amended, consolidated or replaced;
    7. a reference to a document includes all amendments or supplements to that document, or replacements or novations of it;
    8. a reference to a party to a document includes that party's successors and permitted assigns;
    9. an agreement on the part of two or more persons binds them severally; and
    10. a reference to an agreement, other than the Customer Service Agreement , includes an undertaking, deed, agreement or legally enforceable arrangement or understanding, whether or not in writing.
  2. Where the day on or by which something must be done is not a Business Day, that thing must be done on or by the following Business Day.
  3. Headings are for convenience only and do not affect the interpretation of the Customer Service Agreement.
  4. The Customer Service Agreement may not be construed adversely to a party just because that party prepared the agreement.
  5. A term or expression starting with a capital letter:some text
    1. which is defined in this Dictionary, has the meaning given to it in this Dictionary; and
    2. which is defined in the Corporations Act but is not defined in this Dictionary, has the same meaning as in the Corporations Act.