BMYIT provides certain products and services relating to information and computer technology and automation.
These General Terms and Conditions (”Terms”) constitute an agreement between BMYIT (“BMYIT”, “us”, “we” or “our”) and You, or, if You represent an entity or other organization, that entity or organization (in either case “You” or “Your”) and govern use of and access to BMYIT Services by You, Partners, Staff and Customers.
By holding an Account with BMYIT, and accessing the services You agree to be bound by the following General Terms and Conditions by which BMYIT will provide You with rights to use its services.
The Managed Services Agreement incorporates the following documents by reference:
(i) the Services Description that describes the Services you are buying and related fees;
(ii) these General Terms and Conditions containing the general terms and conditions applicable to all Services,
(iii) the specific Product Terms and Conditions containing the additional terms for the particular Managed Services you are buying,
(iv) the Acceptable Use Policy, and
(v) if your Managed Service will be provided from data centres located both in Australia and one or more non-Australian jurisdictions, the Country Specific Terms that may be applicable in those jurisdictions.
When we use the term “Managed Services Agreement” or “Agreement” in any of these documents, we are referring collectively to all of them.
The Agreement is effective as of the time that you sign the form of Agreement prepared by BMyIT, or accept the Agreement as part of BMyIT’s online order process.
Some words used in the Agreement have particular meanings:
(i) unpublished prices and other terms of service, audit and security reports, product development plans, non-public information of the parties relating to its business activities or financial affairs, data centre designs, server configuration designs, and other proprietary information or technology, and
(ii) information that is marked or otherwise conspicuously designated as confidential. Information that is developed by one of us on our own, without reference to the other’s Confidential Information, or that becomes available to one of us other than through violation of the Agreement or applicable law, shall not be “Confidential Information” of the other party. Confidential Information shall not include Customer Data.
BMyIT’s obligation to begin providing Services is contingent on your satisfaction with BMyIT’s credit approval criteria. BMyIT will provide the Managed Services in accordance with the Managed Services Description, the Service Level Guarantees, and other specifications in this Agreement. BMyIT will perform any Supplementary Services in a good and professional manner. BMyIT will maintain security practices that are at least as stringent as the minimum security practices described at https://www.bmyit.com.au/legal/securitypractices.php, and will provide the specific security services described in your Managed Services Description. BMyIT will perform all Services in accordance with applicable law.
You must use reasonable security precautions in connection with your use of the Services. You must comply with the laws applicable to your use of the Services and with the Acceptable Use Policy. You must cooperate with BMyIT’s reasonable investigation of Service outages, security problems, and any suspected breach of the Agreement. You are responsible for keeping your account permissions, billing, and other account information up to date using BMyIT defined process. You must pay when due the fees for the Services stated in the Services Description or other agreement between us.
Customer Data Security: In addition to the foregoing obligations, you acknowledge that you are solely responsible for taking steps to maintain appropriate security, protection and backup of Customer Data. BMyIT’s security obligations with respect to Customer Data are limited to those obligations described in Section 3 above. BMyIT makes no other representation regarding the security of Customer Data. Customer is solely responsible for determining the suitability of the Services in light of the type of Customer Data used with the Services.
5.1 We do not promise, but we will use our best endeavours to ensure, that the Services will be uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, Customer Data, Confidential Information and property.
5.2 Except to the extent otherwise required by the Australian Consumer Law, we disclaim any and all warranties not expressly stated in the Agreement including the implied warranty of noninfringement. You are solely responsible for the suitability of the services chosen, including the suitability as it relates to your Customer Data. Any services that we are not contractually obligated to provide but that we may perform for you at your request and without any additional charge are provided on an AS IS basis.
5.3 We do not promise to backup your data unless you have purchased backup services. If you purchase backup services, we do not promise to retain the data backup for longer than the agreed data retention period.
5.4 We will provide Support only to your administrative or technical contacts listed on your account. We will not provide support directly to your end users unless specifically agreed in writing.
5.5 Certain BMyIT Services are designed to help you comply with various regulatory requirements that may be applicable to you. However, you are responsible for understanding the regulatory requirements applicable to your business and for selecting and using those Services in a manner that complies with the applicable requirements.
6.1 BMyIT is not responsible to you or any third party for unauthorized access to your data or the unauthorized use of the Services unless the unauthorized access or use results from BMyIT’s failure to meet its security obligations stated in Section 3 (Our Obligations) of these General Terms and Conditions or the Services Description. You are responsible for the use of the Services by any employee of yours, any person you authorize to use the Services, any person to whom you have given access to the Services, and any person who gains access to your data or the Services as a result of your failure to use reasonable security precautions, even if such use was not authorized by you.
6.2 BMyIT agrees that it will not use or disclose Customer Data. Customer Data is and at all times shall remain the exclusive property of Customer and will remain in the exclusive care, custody, and control of Customer.
7.1 Goods and Services Tax. Unless otherwise expressly provided in the Agreement or included in the invoice for the Services, all amounts due to BMyIT under the Agreement are exclusive of the goods and services tax (GST). If BMyIT is required by law to collect GST or any other taxes and levies on the provision of the Service, BMyIT will invoice you for such taxes and levies and you must pay BMyIT the amount of the tax that is due or provide BMyIT with satisfactory evidence of your exemption from the respective tax. The obligation to pay any taxes that Customer may be required to pay in connection with Customer’s use of Services or Customer’s payment of amounts due to BMyIT under the Agreement shall be borne exclusively by Customer. You must provide BMyIT with accurate factual and adequate information and documentation (as determined by BMyIT), to help BMyIT determine if any tax is due with respect to the provision of the Services.
7.2 Withholding Taxes. All payments to BMyIT shall be made without any withholding or deduction for any Taxes, except for any withholding (or similar) taxes imposed on income that may be attributed to BMyIT in connection with its provision of the Services that you are legally required to withhold from such payment and remit to the applicable governmental or taxing authority (such taxes, “Local Withholding Taxes”). You agree to timely provide BMyIT with adequate and accurate factual information and documentation (as determined by BMyIT), including tax receipts, of your payment of any such Local Withholding Taxes. BMyIT shall remit such cost to you in the form of a credit on your outstanding account balance following receipt of sufficient evidence of payment of any such Local Withholding Taxes as set forth above.
You represent and warrant that you are not legally prohibited to be provisioned with the Services in accordance with Australian federal laws. You may not provide administrative access to the Services to any person (including any natural person or government or private entity) that is located in or is a national of any country that is embargoed or restricted under Australian export regulations.
See your applicable Product Terms and Conditions and Services Description for applicable term and renewal information as well as fee and pricing information.
We may suspend Services without liability if:
(i) we reasonably believe that the Services are being used in violation of the Agreement;
(ii)you don’t cooperate with our reasonable investigation of any suspected violation of the Agreement;
(iii)there is an attack on your Managed System, or your Managed System is accessed or manipulated by a third party without your consent,
(iv)we are required by law, or a regulatory or government body to suspend your Services, or
(v)there is another event for which we reasonably believe that the suspension of Services is necessary to protect the BMyIT network or our other customers.
We will give you advance notice of a suspension under this paragraph of at least twelve (12) Business Hours unless we determine in our reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect BMyIT or its other customers from imminent and significant operational, legal, or security risk. If your Managed System is compromised, then you must address the vulnerability prior to BMyIT placing the Managed System back in service or, at your request, we may be able to perform this work for you at our standard hourly rates as a Supplementary Service.
11.1 You may terminate the Agreement for breach if:
(i) we fail to provide the Services as agreed and do not remedy that failure within ten (10) days of your written notice describing the failure,
(ii) we fail to meet the Service Level Guarantee, or
(iii) we materially fail to meet any other obligation stated in the Agreement and do not remedy that failure within thirty (30) days of your written notice describing the failure.
11.2 We may terminate the Agreement for breach if:
(i) we discover that the information you provided for the purpose of establishing the Services is materially inaccurate or incomplete,
(ii) the individual signing the Agreement did not have the legal right or authority to enter into the Agreement on behalf of the person represented to be the customer,
(iii)your payment of any invoiced amount is overdue and you do not pay the overdue amount within seven (7) Business Days of our written notice,
(iv)without notice if you have made payment arrangements via credit card or other third party, and the third party refuses to honour our charges, or
(v)you fail to comply with any other provision of the Agreement and do not remedy the failure within thirty (30) days of our notice to you describing the failure.
We may also terminate the Agreement for breach if you violate the AUP more than once even if you cure each violation, or if your agreement for any other BMyIT service is terminated for breach of the acceptable use policy applicable to that service.
11.3 Either of us may terminate the Agreement if the other party becomes insolvent or is unable to pay its debts or enters into or files (or has filed or commenced against it) a petition, arrangement, application, action or other proceeding seeking relief or protection under the bankruptcy laws of the Commonwealth of Australia or any similar laws of the Commonwealth of Australia or any state of Australia.
Each of us agrees not to use the other’s Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, as may be required by law, or as set forth below.
Each of us agrees not to disclose the other’s Confidential Information to any third person except as follows:
13.1 We are not liable to you for failing to provide the Services unless such failure results from a breach of a Service Level Guarantee, or results from our gross negligence, wilful misconduct, or intentional breach of the Agreement. The credits stated in the Service Level Guarantee are your sole and exclusive remedy for our failure to meet those guarantees for which credits are provided unless such failure is due to BMyIT’s wilful misconduct.
13.2 Neither of us (nor any of our employees, agents, Affiliates or suppliers) is liable to the other for any indirect, special, incidental, exemplary or consequential loss or damages of any kind. In addition, neither of us is liable for any loss that could have been avoided by the damaged party’s use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either of us be liable to the other for any punitive damages or for any loss of profits, revenue, customers, contracts or goodwill.
13.3 We are not liable to you for lost data unless and to the extent you purchase data backup services from BMyIT and we fail to provide the backup services as agreed. If you purchase backup services, you release BMyIT from liability for loss of data to the extent that the data has changed since the time that we were last required by the Agreement to perform a backup.
13.4 Notwithstanding anything in the Agreement to the contrary, except for liability based on wilful misconduct or fraudulent misrepresentation, and liability for death or personal injury resulting from BMyIT’s negligence, the maximum aggregate monetary liability of BMyIT and any of its employees, agents, suppliers, or affiliates in connection with the Services, the Agreement, and any act or omission related to the Services or Agreement, under any theory of law (including breach of contract, tort, strict liability, violation of law, and infringement) shall not exceed: (i) for Managed Services an amount that is twelve (12) times one month’s recurring fee under the Agreement for the Services that are the subject of the claim as of the time of the occurrence of the events giving rise to the claim, and (ii) for Supplementary Services, fees paid for the Supplementary Services that are the subject of the claim.
14.1 If we, our Affiliates, or any of our or their respective employees, agents, or suppliers (the “Indemnitees”) is faced with a legal claim by a third party arising out of your actual or alleged gross negligence, wilful misconduct, violation of law, failure to meet the security obligations required by the Agreement, violation of the Acceptable Use Policy, violation of your agreement with your customers or end users, or violation of Section 8 (Export Matters) or Section 16 (Software) of this General Terms and Conditions, then you will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine or other amount that is imposed on the Indemnitees as a result of the claim. Your obligations under this subsection include claims arising out of the acts or omissions of your employees or agents, any other person to whom you have given access to the Services, and any person who gains access to the Services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by you. You must also pay reasonable attorney fees and other expenses we incur in connection with any dispute between persons having a conflicting claim to control your account with us, or any claim by your customer or end user arising from an actual or alleged breach of your obligations to them.
14.2 We will choose legal counsel to defend the claim, provided that these decisions must be reasonable and must be promptly communicated to you. You must comply with our reasonable requests for assistance and cooperation in the defence of the claim. We may not settle the claim without your consent, although such consent may not be unreasonably withheld. You must pay expenses due under this Section as we incur them.
You agree that we may publicly disclose that we are providing Services to you and may use your name and logo to identify you as our customer in promotional materials, including press releases. We will not use your name or logo in a manner that suggests an endorsement or affiliation.
You may not copy any software we provide for your use unless expressly permitted by the Agreement or use such software after the expiration or termination of the Agreement. You may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any software we provide for your use. Unless permitted by the terms of an open source software license, you may not reverse engineer, decompile or disassemble any software we provide for your use except and to the extent that you are expressly permitted by applicable law to do this, and then following at least ten (10) days advance written notice to us.
16.2 Customer Provided Licenses.
If you use any non-BMyIT provided software on your Managed System you represent and warrant to BMyIT that you have the legal right to use the software in that manner. If BMyIT has agreed to install, patch or otherwise manage software in reliance on your license with a software vendor (rather than BMyIT’s license with the software vendor), then you represent and warrant that you have a written license agreement with the vendor that permits BMyIT to perform these activities. On BMyIT’s request you will certify in writing that you are in compliance with the requirements of this paragraph and any other software license restrictions that are part of the Agreement, and will provide evidence of your compliance as we may reasonably request. If you fail to provide the required evidence of licensing BMyIT may, at its option, either (i) charge you its standard fee for the use of the software in reliance on BMyIT’s licensing agreement with the vendor until such time as the required evidence is provided or (ii) suspend or terminate the Agreement. Please Note: Your licensed software may not be compatible with BMyIT’s standard process for deploying and repairing Managed Systems. In addition, in order to install the software BMyIT may require you to send the physical or electronic media provided to you by the vendor, both for deployment and again in the event of a failure of your Managed System. You agree that BMyIT will not be in breach of any Service Level Guarantee or other obligation under this Agreement that would not have occurred but for a delay resulting from our agreement to use your licensed software.
BMyIT personnel may from time to time recommend third party software or other products and services for your consideration. BMYIT MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING PRODUCTS AND SERVICES THAT ARE NOT PURCHASED FROM BMYIT. Your use of any such products and services is governed by the terms of your agreement with the provider of those products and services.
You may permit your subsidiaries and affiliated companies to use the Services if you wish, however you are responsible for the acts or omissions of your permitted users. BMyIT will provide support only to you, not to your customers, subsidiaries or affiliates. There are no third-party beneficiaries to the Agreement, meaning that your customers, subsidiaries, affiliates and other third parties do not have any rights against either of us under this Agreement.
If you use any Services that have been designated as a “Beta” service, limited release, pilot test, or with similar designation, then your use of that Service is subject to the terms at https://bmyit.com.au/legal/testterms.php.
You agree that you will not interfere with any services management software agent(s) that BMyIT installs on your Managed System. BMyIT agrees that its agents will use only a minimal amount of computing resources, and will not interfere with your use of your Managed System. BMyIT will use the agents to track system information so that it can more efficiently manage various service issues, such as patching exceptions and product life cycles. BMyIT may also use the agents to identify security vulnerabilities. BMyIT will not use the agents to view or capture your content or data. Your Services will become “unsupported” as described in the Product Terms if you disable or interfere with our services management software agent(s). You agree that BMyIT may access your Managed System to reinstall services management software agents if you disable them or interfere with their performance.
Your routine communications to BMyIT regarding the Services, including any notice of non-renewal, should be sent to BMyIT account team at email@example.com. If you want to give a notice regarding termination of the Agreement for breach, indemnification, or other non-routine legal matter, you should send it by electronic mail and AusPost to:
BMyIT Pty Ltd P.O. Box 42 Applecross, WA 6953
BMyIT’s routine communications regarding the Services and legal notices will be sent to the electronic mail indicated on your account with BMyIT or sent to the individual(s) you designate as your contact(s) on your account either by electronic mail (including an electronic mail referring you to a ticket posted on your BMyIT Support Portal), AusPost, or overnight courier. Notices are deemed received as of the time posted or delivered, or if that time does not fall within a Business Day, as of the beginning of the first Business Day following the time posted or delivered. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices must be given in the English language.
Each of us retains all right, title and interest in and to our respective trade secrets, inventions, copyrights and other intellectual property. Any intellectual property developed by BMyIT during the performance of the Services shall belong to BMyIT unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property.
You do not acquire any ownership interest in or right to possess the Managed System, and you have no right of physical access to the Managed System. We do not acquire any ownership interest in or right to the information you transmit to or from or store on your BMyIT servers or other devices or media.
If BMyIT or any of its customers is faced with a credible claim that the Services infringe on the intellectual property rights of a third party, and BMyIT is not reasonably able to obtain the right to use the infringing element or modify the Services such that they do not infringe, then BMyIT may terminate the Services on reasonable notice of at least ninety (90) days, and will not have any liability on account of such termination except to refund amounts paid for Services not used as of the time of termination.
Neither party may assign the Agreement without the prior written consent of the other party except that BMyIT may assign the Agreement to an Affiliate with sufficient financial standing in order to meet its obligations under this Agreement or as part of a bona fide corporate reorganization or a sale of its business. BMyIT may use third party service providers to perform all or any part of the Services, but BMyIT remains responsible to you under this Agreement for Services performed by its third party service providers to the same extent as if BMyIT performed the Services itself.
Neither of us will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond our control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labour action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
The Agreement is governed by the laws of the State of Western Australia, exclusive of any choice of law principle that would require the application of the law of a different jurisdiction, and the laws of the Commonwealth of Australia, as applicable. Each of us agrees that any dispute or claim, including without limitation, statutory, contract or tort claims, relating to or arising out of this Agreement or the alleged breach of this Agreement, shall, upon timely written request of either of us, be submitted to the courts of Western Australia in accordance with the respective procedural rules.
These General Terms and Conditions, the applicable Product Terms, and any applicable Country Specific Terms are incorporated in your Agreement by reference to pages on the BMyIT website. Although we may from time to time revise the General Terms and Conditions, Product Terms, and Country Specific Terms posted on those pages, those revisions will not be effective as to an Agreement that you signed prior to the date we posted the revisions, and your Agreement will continue to be governed by the General Terms and Conditions and Product Terms posted on the effective date of the Agreement until the first day of any renewal or extended term that follows the date we published the revision. However, if over time you accept multiple Agreements for a single Managed System – for example, to add service elements to an existing Managed System, then the version of the General Terms and Conditions, Product Terms and Conditions, and Country Specific Terms (if any) referenced in the last Agreement will govern the entire Managed System, unless otherwise agreed in writing.
Unless otherwise expressly permitted in this Agreement, the General Terms and Conditions, Product Terms and Conditions, Acceptable Use Policy, Country Specific Terms and Conditions, and any addenda referenced in any of them, may be amended only by a formal written agreement signed by both parties. A Services Description may be amended to modify, add, or remove Services, by a formal written agreement signed by both parties, or by an exchange of correspondence, including via electronic mail or the BMyIT support system, that includes the express consent of an authorized individual for each of us. The pre-printed terms on your purchase order or other business forms will not become part of this Agreement.
If there is a conflict between the terms of any of the documents that comprise the Agreement, the documents will govern in the following order: signature page for Managed Service Agreement, Country Specific Terms (if any), Services Description, Product Terms and Conditions, any addendum to the General Terms and Conditions, the General Terms and Conditions, and the Acceptable Use Policy. If any part of the Agreement is found unenforceable by a court, the rest of the Agreement will nonetheless continue in effect, and the unenforceable part shall be reformed to the extent possible to make it enforceable but still consistent with the business and financial objectives of the parties underlying the Agreement. Each of us may enforce each of our respective rights under the Agreement even if we have waived the right or failed to enforce the same or other rights in the past. The relationship between us is that of independent contractors and not business partners. Neither of us is the agent for the other, and neither of us has the right to bind the other on any agreement with a third party. The captions in the Agreement are for convenience only and are not part of the Agreement. The use of the word “including” in the Agreement shall be read to mean “including without limitation.” The words “our” and “us” refers to BMyIT, unless the context clearly indicates another meaning. The Agreement is effective when you sign it, even though the “initial term” may be defined in the Agreement with reference to the Service Commencement Date or other date. The following provisions shall survive expiration or termination of the Agreement: (i) Sections 5.1, 5.2, 7, 12, 13, 14, 20, 21, 22, 23, 24 and 28 of this General Terms and Conditions, (ii) all provisions in the Agreement requiring you to pay fees for Services provided prior to the time of expiration or termination or requiring you to pay an early termination fee, and (iii) all other provisions of the Agreement that by their nature are intended to survive expiration or termination of the Agreement.
If you have made any change to the Agreement that you did not bring to our attention in a way that is reasonably calculated to put us on notice of the change, the change shall not become part of the Agreement.
The Agreement may be signed in multiple counterparts, which taken together will be considered one original. Facsimile signatures, signatures on an electronic image (such as .pdf or .jpg format), and electronic signatures shall be deemed to be original signatures.
BMYIT reserves the right to update and change this Agreement from time to time and without notice. You can review the most current version of the Agreement at any time at https://bmyit.com.au/legal.