Terms & Conditions

Mangano IT Solutions Pty Ltd ATF Mangano IT Solutions Unit Trust
ABN 38 165 765 130

BACKGROUND

  1. Mangano IT is in the business of providing information technology products and services for businesses.
  2. Mangano IT and the Client have agreed that Mangano IT shall provide the Client with products and services as set out in the Client Agreement.
  3. The Client Agreement includes these Terms & Conditions, which set out Mangano IT’s general terms and conditions for the delivery of products and services applicable to all of Mangano IT’s client agreements.

OPERATIVE PROVISIONS

1. Definitions and interpretation

1.1 Definitions

In these Terms & Conditions:

Additional Charge means a charge payable by the Client in relation to the supply of a product or service incidental to the Services but that is:

      1. not itself a Service; and
      2. requested by the Client or deemed by Mangano IT to be reasonably necessary to give effect to the performance of the Client Agreement,

and for the avoidance of doubt includes the additional charges referred to in clause 4.2.

Additional IT Managed Services has the meaning given in the Services Schedule.

Billing Period means the billing period specified in the Services Schedule or, if such a period is not so specified, means a month, with the first month to start on the first day of the Term.

Business Day means a day that is not a Saturday, a Sunday or a gazetted public holiday in Queensland.

Client means the person named as the Client in the Services Schedule.

Client Agreement means:

      1. any Proposal;
      2. the Services Schedule; and
      3. these Terms & Conditions.

Commencement Date means the date for the commencement of the delivery of the Services as specified in the Services Schedule.

Confidential Information means:

      1. in respect of either party, any of the following supplied by or on behalf of that party under or in connection with the Client Agreement:
        1. pricing information, business and financial information, sales and supply details, marketing strategies, customer and supplier listings, staff information, business listings or information concerning the business or customers of that party;
        2. all Personal Information;
        3. any information that would otherwise at law be considered confidential information, whether or not marked “Confidential”; and
      2. in respect of Mangano IT, all processes, procedures, techniques, concepts, systems, manuals, licence agreements, disclosure documents, documents, agreements, contracts, notes, file and data base structures and software relating to the Services or any of them,

        but does not include information which:

        1. is in the public domain other than as a result of a breach of the Client Agreement; or
        2. at the time of first disclosure by or on behalf of a party was already known to the other party.

Corporations Act means the Corporations Act 2001 (Cth).

Disputed Amount has the meaning given in clause 4.5(a).

Due Date has the meaning given in clause 4.3(b).

Emergency means any event, situation or circumstance that will, or is reasonably likely to, threaten or adversely affect human life, property, goods or the businesses of either of the parties.

Equipment has the meaning given in clause 11.1(a).

Fees means the fees payable for the delivery of the Services, as specified in the Services Schedule and adjusted in accordance with these Terms and Conditions.

GST has the same meaning as in the GST Law.

GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Insolvency Event in relation to a party means:

      1. the party becomes an externally-administered body corporate for the purposes of the Corporations Act or an external insolvency administrator is appointed to that party under the provisions of any companies or securities legislation of another jurisdiction;
      2. a controller (as that term is defined in the Corporations Act) or mortgagee in possession is appointed to the assets of the party or any such appointment is reasonably likely;
      3. the party fails to comply with a statutory demand in the manner specified in section 459F of the Corporations Act and has not made an application to set aside such demand under section 459G of the Corporations Act within the period of 21 days after service of the statutory demand;
      4. a resolution is passed or an application is made to, or an order is made by, a court of competent jurisdiction for the winding up of the party (except pursuant to a solvent amalgamation or reconstruction);
      5. the party makes an arrangement for the benefit of or enters into an arrangement or composition with its creditors; or
      6. the party is unable to pay its debts as and when they fall due.

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

      1. patents, copyright, rights in circuit layouts, registered designs and trademarks; and
      2. any application or right to apply for registration of any of the rights referred to in paragraph (a) of this definition.

Invoice Dispute Notice has the meaning given in clause 4.5(a).

IT Managed Services has the meaning given in the Services Schedule.

Mangano IT means Mangano IT Solutions Pty Ltd ACN 165 765 130, as trustee for the Mangano IT Solutions Trust.

Minimum Term means the period specified in item 9 of the Details Section in the Services Schedule.

Other Services has the meaning given in the Services Schedule.

Out of Scope Hourly Rates means the rates specified in item 12 of the Details Section in the Services Schedule and adjusted in accordance with these Terms and Conditions.

Personal Information has the same meaning as in the Privacy Act.

PPS Register means the register of security interests kept under the PPSA.

PPSA means the Personal Property Securities Act 2009 (Cth).

Privacy Act means the Privacy Act 1988 (Cth).

Proposal means any proposal or quotation provided by Mangano IT to the Client for the provision of the Services or any one or more of them.

Service means each of the services to be supplied by Mangano IT to the Client on the terms of the Client Agreement, as set out in the Services Schedule.

Service Level has, in respect of a Service, the meaning given in the Services Schedule.

Services Schedule means the document so entitled describing the services to be provided by Mangano IT to the Client.

Support Hours means 8.00am to 6.00pm on a Business Day.

Suspension Event means any of the events described in clause 8.1(b).

Tax Invoice has the same meaning as in the GST Law.

Term means the Minimum Term, as it may be adjusted in accordance with clause 2.

Terms & Conditions means this document.

Unauthorised Purpose has the meaning given in clause 6.3(c).

Website means Mangano IT’s website, at www.manganoit.com.au.

Wholesaler means any person who provides goods or services to Mangano IT that are used in supplying the Services.

1.2 Interpretation

In these Terms & Conditions, except where the context otherwise requires:

      1. the singular includes the plural and vice versa, and a gender includes all other genders;
      2. another grammatical form of a defined word or expression has a corresponding meaning;
      3. a reference to a clause is a reference to a clause of these Terms & Conditions;
      4. a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
      5. a reference to $ is to Australian currency;
      6. a reference to time is to the time in Queensland, Australia;
      7. a reference to a party is to a party to the Client Agreement;
      8. a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
      9. a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
      10. the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
      11. headings are for ease of reference only and do not affect interpretation;
      12. if two or more persons are named as the Client, each reference to the Client means those persons collectively and each of them individually and all of the obligations of the Client under the Client Agreement bind them jointly and severally; and
      13. if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day.

1.3 Priority of Client Agreement documents

If there is any inconsistency between any of the documents forming part of the Client Agreement, those documents will be interpreted in the following order of priority to the extent of the inconsistency:

      1. the Services Schedule;
      2. these Terms & Conditions; and
      3. any Proposal.

1.4 Limitation of liability

Mangano IT enters into the Client Agreement solely in its capacity as trustee for the Mangano IT Solutions Trust.  Mangano IT’s liability under and in connection with the Client Agreement is limited to the extent that it can be satisfied out of the assets of the Mangano IT Solutions Trust.

2. Term of Client Agreement

      1. The Client Agreement continues for the Minimum Term unless it is terminated earlier in accordance with these Terms & Conditions or extended in accordance with clause 2(b).
      2. On expiry of the Minimum Term, the Client Agreement automatically extends on a month to month basis on its existing terms (including with respect to the payment of Fees), unless either party gives the other at least 30 days’ notice that it wishes to terminate the Client Agreement in which case the Client Agreement will terminate at the expiry of that notice period.

3. Services

3.1 Delivery of Services

      1. Mangano IT will provide the Services to the Client, and the Client will accept the Services, in accordance with the Client Agreement.
      2. Unless otherwise specified in the Services Schedule, Mangano IT will, in its sole discretion but without limiting its other obligations under the Client Agreement, decide the delivery method and technical means by which the Services are to be provided, whether by telephone, remotely, by onsite attendance or any other means Mangano IT deems fit having regard to the nature of the relevant Service.
      3. Mangano IT must provide the Services with reasonable care and skill and in accordance with standards generally observed in the information technology industry.
      4. If the Services include the provision of any goods, Mangano IT will ensure that those goods are reasonably fit for the purposes for which they are intended.
      5. If, in providing the Services, Mangano IT’s employees, agents or contractors are required to access the Client’s premises as contemplated by clause 6.1(f), Mangano IT will ensure that such persons comply with the Client’s occupational health and safety and physical security requirements as notified by the Client from time to time.
      6. Mangano IT, in providing the Services, will comply with all applicable laws.
      7. Except as set out in this clause 3.1 or as otherwise implied by law, Mangano IT does not provide representation and warranty in relation to the Services or any of them.  To the fullest extent permitted by law, Mangano IT excludes all warranties in respect of the Services implied by law.

3.2 Delays and interruptions

      1. Mangano IT does not warrant that the Services will be interruption or error free.
      2. Mangano IT will not be liable to the Client for any delay or failure to provide the Services, or any of them, if such delay or failure is due to a cause outside Mangano IT’s reasonable control including for the avoidance of doubt any act or omission of the Client in breach of the Client Agreement.

3.3 Service Levels

      1. Any Service Levels applicable to the Services, or any of them, are set out in the Services Schedule.
      2. Mangano IT’s ticket management system will be used to record and track all problems reported, inquiries or other types of calls received from the Client by Mangano IT’s service team.  This will provide metrics to the parties to allow the parties to assess whether Mangano IT has complied with the Service Levels, if applicable.
      3. If any Service Levels are applicable to the Services, or any of them, the parties will conduct calendar quarterly performance reviews during the Term to determine if the Service Levels are being met.
      4. If Mangano IT fails to meet any Service Level, the Client may be entitled to a service level credit, if specified in accordance with the Services Schedule.  If the Client may be entitled to a service level credit, it must notify Mangano IT within 30 days of the failure occurring, providing evidence to support the claim.  If the Client is not entitled to a service level credit in accordance with the Services Schedule, Mangano IT’s liability is limited to an amount equal to the Fees charged for the affected Service or Services for the period the Service Levels were not met.
      5. Mangano IT will not be liable for any failure to meet a Service Level where that failure was caused by:
        1. any action or event outside Mangano IT’s reasonable control, including for the avoidance of doubt any act or omission of the Client in breach of the Client Agreement; or
        2. any maintenance activity of Mangano IT in respect of its systems, network or infrastructure.

3.4 Maintenance impacting Services

      1. Mangano IT may undertake maintenance of its systems, network and infrastructure which prevents the provision of the Services (or any one or more of them) from time to time.  Where practicable, Mangano IT will undertake this maintenance outside of the Support Hours. 
      2. Mangano IT will use all reasonable endeavours to provide, in the case of:
        1. planned maintenance, not less than 7 days’ notice to the Client; and
        2. emergency maintenance, as much notice as is reasonably practicable in the circumstances.
      1. Any notice provided to the Client in accordance with this clause 3.4 will be sent by email or by posting a notice on the Website.

3.5 Additional Mangano IT general obligations

Without limiting its other obligations under the Client Agreement, Mangano IT will:

      1. at its cost maintain for the Term professional indemnity insurance on such terms as it determines and will provide a certificate of currency for its professional indemnity insurance upon request from the Client; 
      2. conduct business in a courteous and professional manner with the Client;
      3. log all information from the Client required to establish contact information, document the nature of the problem and the Client’s hardware and/or network environment (as applicable);
      4. escalate support requests which are required to be responded to as part of the Services to Mangano IT’s next level of internal support upon approach of established resolution targets;
      5. seek the Client’s approval before ticket closure in respect of any support request; and
      6. utilise the job and problem-ticket system for updating, tracking and closing trouble tickets as assigned to any support request made by the Client.

3.6 Issues with Client equipment

      1. The Client acknowledges and agrees that it is solely responsible for its own facilities and equipment.
      2. The Client may notify Mangano IT of any issue which relates to the age, configuration or implementation of any of the Client’s equipment that may interfere with the delivery by Mangano IT of the Services.
      3. The Client will carry out any repairs and maintenance of its own equipment which Mangano IT requests, acting reasonably, to allow Mangano IT to provide the Services (or any one or more of them).
      4. If the Client does not comply with a request made by Mangano IT in accordance with clause 3.6(c) or where, in opinion of Mangano IT, any of the Client’s equipment requires support beyond the scope of the Services due to its age, configuration or implementation, Mangano IT reserves the right in its sole discretion to cease support of the relevant item of equipment under the Client Agreement until the equipment is repaired and maintained or otherwise brought up to agreed industry standards.
      5. Mangano IT will work with the Client to proactively identify appropriate replacement solution options for any of the Client’s equipment that Mangano IT cannot support within the scope of the Services and will, if requested by the Client, assist the Client to procure such solutions. 

3.7 Third Party Software

      1. If the Services include the right to use any third party software then:
        1. the Client must comply with the third party’s licence terms and conditions that apply to use of that software; and
        2. the Client is solely responsible for ensuring the suitability and compatibility of that software for the Client’s use.
      1. If the Client’s software is not supplied or approved by Mangano IT, the Client acknowledges that it may result in interference to the Services and loss to the Client, for which Mangano IT is not responsible.  The Client is not released from any of its obligations under the Client Agreement, including its obligations under clause 4 of these Terms & Conditions, as a result of any interference to the Services caused by the Client’s software that is not supplied or approved by Mangano IT.

3.8 Client liability for errors

If the Client provides incorrect information to Mangano IT which is relied upon by Mangano IT to its detriment, the Client will be liable for all costs directly incurred by Mangano IT in connection with that reliance.

4. Fees

4.1 Fees payable

The Client must pay to Mangano IT the Fees.

4.2 Additional Charges

In addition to the Fees, the Client will pay Mangano IT additional charges for the following services, which are in any case requested by the Client and not included as part of the Services, at the same time as the Fees are payable in accordance with the Client Agreement, which fees will be charged at the Out of Scope Hourly Rates specified in the Services Schedule or, if no such rates are specified, at the rates that Mangano IT advises to the Client prior to the date the relevant services are delivered:

      1. the provision of the Services outside of the Support Hours (for the avoidance of doubt, unless the Services expressly include provision outside of these times); 
      2. travel time to and from, and support of equipment at, the Client’s premises and other locations, such as at staff homes;
      3. installation of devices or the provision of other services; and
      4. the relocation of equipment if the Client changes the location of its premises specified in the Services Schedule.

4.3 Due Date for payment

      1. If specified in the Services Schedule or any Proposal, the Client must pay the Fees, or part of the Fees, in advance.  Otherwise, Mangano IT will invoice the Client for the Services provided, and any other services provided by Mangano IT to the Client, in each Billing Period in arrears.
      2. Fees and all other amounts payable by the Client under the Client Agreement (including for the avoidance of doubt any Additional Charges) are due and payable within 14 days after the date of the Tax Invoice for those Fees and other amounts (each such date being a Due Date).
      3. Where Mangano IT invoices the Client for Services and other services in arrears, Mangano IT will use all reasonable endeavours to ensure that the relevant Fees for each Billing Period, and any additional costs incurred by the Client for a Billing Period (including Additional Charges), are included in the Tax Invoice issued by Mangano IT for that Billing Period.  Any Fees, or other amounts, payable in accordance with clause 4.2 which do not appear in the Tax Invoice for the relevant Billing Period may be included in a future Tax Invoice issued by Mangano IT to the Client.
      4. Unless otherwise agreed by Mangano IT, all payments required to be made by the Client will be made by direct debit and the Client will take all steps requested by Mangano IT, acting reasonably, to establish a direct debit arrangement.   Mangano IT will, subject to clause 4.5, debit the nominated direct debit account for the amount of each Tax Invoice it issues by the Due Date for that Tax Invoice.  If there are insufficient funds in the Client’s account to pay any amount owing under the Client Agreement, the Client must immediately pay that amount to Mangano IT and will be charged a reasonable administration fee by Mangano IT.

4.4 Overdue payments

      1. If the Client does not pay a Tax Invoice issued by Mangano IT by the Due Date, Mangano IT may charge daily interest on outstanding balances from the Due Date until the date on which payment in full is received, such interest to be 2% p.a. above the Reserve Bank of Australia cash target rate applying as at the date of the relevant Tax Invoice.  Interest will be computed on a daily basis for the actual days elapsed and will be compounded on the last day of each calendar month. 
      2. The Client will be liable for all reasonable costs and expenses incurred by Mangano IT in collecting an amount outstanding under the Client Agreement (including legal fees charged on a solicitor/own client basis).

4.5 Genuine Payment Dispute

      1. If the Client in good faith disputes an amount payable under a Tax Invoice issued by Mangano IT, the Client must notify Mangano IT within 7 days of the date of that Tax Invoice (Invoice Dispute Notice).  The Invoice Dispute Notice must set out the number of the Tax Invoice being disputed, the amount in dispute (Disputed Amount), and the reasons why the Client disputes the payment of the Disputed Amount. 
      2. If the Client issues an Invoice Dispute Notice, Mangano IT will not debit the Client’s nominated account for the Disputed Amount until it notifies the Client of its determination of the dispute in accordance with clause 4.5(c).  Mangano IT will then debit the Client’s nominated account for the amount it determines is payable by the Client (if any).  The Client is not entitled to withhold payment of any undisputed amount owing to Mangano IT as specified in the relevant Tax Invoice.
      3. Mangano IT will within 7 days of receipt of an Invoice Dispute Notice, review the relevant Tax Invoice, the content of the Invoice Dispute Notice and other facts and circumstances it considers relevant, for the purpose of resolving the dispute.  Mangano IT shall notify the Client of the result of its review, the amount it determines is payable by the Client (if any), and the reasons for its determination. 
      4. If the Client in good faith disputes any determination made by Mangano IT in accordance with clause 4.5(c) it must, within 7 days of notification of the determination, invoke the dispute resolution procedure under clause 12.

5. GST

      1. Any consideration to be paid or provided for a supply made under or in connection with the Client Agreement, unless specifically described in the Client Agreement as ‘GST inclusive’, does not include an amount on account of GST (GST Exclusive Consideration).
      2. If any supply made or to be made by a party (Supplier) under or in connection with the Client Agreement is a taxable supply, the Supplier may, in addition to the GST Exclusive Consideration, recover from the other party (Recipient) an amount on account of GST.  This is to be calculated by multiplying the GST Exclusive Consideration for the supply by the GST rate prevailing at the time that the supply is made.
      3. Any additional amount on account of GST payable by the Recipient under clause 5(b) is payable at the same time that the GST Exclusive Consideration is payable, provided the Recipient receives a Tax Invoice for the supply to which the payment relates.
      4. In this clause 5, words or expressions that are defined in the GST Law have the meaning given to them by the GST Law.

6. Client’s other obligations

6.1 General

The Client must, at no cost to Mangano IT:

      1. comply promptly with Mangano IT’s reasonable directions in relation to the provision of the Services;
      2. provide promptly all information, facilities, services and assistance Mangano IT reasonably requires to supply the Services including for the avoidance of doubt to diagnose any problem within the Client’s information technology infrastructure which may cause interference with the delivery of the Services (or any of them);
      3. promptly notify Mangano IT of any change of circumstances, or in previously supplied information, that is likely to materially affect the Services or the provision of them;
      4. not alter, tamper with or attempt to repair any of the Services, or appoint a third party to do so;
      5. comply with all laws, rules and regulations concerning the Client’s use of the Services;
      6. provide Mangano IT safe access to and egress from any premises to which the Services are supplied and, where required, obtain any consent, licence or permit of the owner of such premises or any other person including any governmental authority, for Mangano IT to access such premises to provide the Services and/or install, inspect, repair, maintain or remove any Equipment or any of the Client’s equipment used in connection with the provision of the Services; and
      7. notify Mangano IT of the Client’s inability to comply with any reasonable directions or requests made by Mangano IT pursuant to this clause, outlining why the Client cannot comply and providing alternate options so that Mangano IT may continue to provide the Services.

6.2 Security and third party access

      1. The Client is responsible for maintaining the security of all of its information technology systems, including the account details used in or in connection with the Services and all usernames and passwords.
      2. Where a third party uses any of the Client’s accounts, as between the Client and Mangano IT, the Client will be liable for costs incurred as a result of that third party’s access regardless of whether such use was authorised by or otherwise with the knowledge or consent of the Client or Mangano IT.
      3. If Mangano IT suspects that the security of the Client’s information technology systems, including its account details, has been compromised, Mangano IT may suspend and/or terminate the Services in accordance with clause 8.

6.3 Unauthorised Purpose

      1. The Client is solely responsible for its use of the Services.
      2. Where the Client Agreement provides that a Service is to be provided for a particular purpose, the Client may only use it for that purpose.  Without limiting this obligation, the Client must not use or permit any other person to use the Services, directly or indirectly, for any Unauthorised Purpose.
      3. Unauthorised Purpose means:
        1. attempts (whether or not successful) to access, modify or otherwise disrupt:
          1. any of the Services which the Client is not expressly authorised by Mangano IT to access or modify;
          2. Mangano IT’s systems, network or infrastructure; or
          3. any other client of Mangano IT or any computer system other than the Client’s;
        2. distributing unsolicited advertising or spamming, monopolisation of services, propagation or transmission of code or software containing computer worms, viruses, trojan horses, key loggers, or any other harmful code or software;
        3. publishing, distributing or disseminating defamatory material;
        4. making threats to, or harassing, abusing or stalking, any person;
        5. infringing on any third party’s copyright, patent, trademark, trade secret or other proprietary right;
        6. allowing a minor to be exposed to unsuitable material;
        7. storing or transmitting material that violates any law;
        8. any conduct of a fraudulent or obscene nature;
        9. any conduct that violates any law; or
        10. any conduct that may violate the legal rights of any other person.

6.4 Authorised representative

The Client must, prior to the first day of the Minimum Term nominate a person as the Client’s representative who will be authorised to bind the Client in all matters relating to the Services, until notice of a replacement Client’s representative is given to Mangano IT.  The Client must ensure its representative is contactable by Mangano IT at all reasonable times.

6.5 Additional Client general obligations

Without limiting its other obligations under the Client Agreement, the Client will:

      1. conduct business in a courteous and professional manner with Mangano IT, its employees, agents and contractors;
      2. ensure that it and its users, clients and suppliers using the Services will use the appropriate form of contact with Mangano IT to request support, as specified in the Services Schedule or as notified by Mangano IT to the Client and will ensure that all contact from the Client to Mangano IT for problem resolution is to occur through the Client’s support team;
      3. provide all information required by Mangano IT, acting reasonably, to open a support request in respect of the Services;
      4. in the case of IT Managed Services and Additional IT Managed Services, assist Mangano IT to assign incident classifications adhering to the correct usage of these classifications as defined in Attachment G of the Services Schedule; and
      5. in the case of IT Managed Services and Additional IT Managed Services, once a support request has been submitted by the Client to Mangano IT, make itself available to work with Mangano IT’s service resource assigned to the support request.

6.6 Indemnity

The Client must indemnify Mangano IT against, and hold it harmless from, all liability, claims, actions, loss, damage, cost and expense (including legal costs on a solicitor/own client basis) suffered by or threatened against Mangano IT resulting from or arising in connection with any breach by the Client of any obligation under the Client Agreement and any action taken in good faith by Mangano IT in response to such breach.

7. Variation of Fees or Services

7.1 Variation of Fees

      1. Subject to this clause 7.1, Mangano IT may change the Fees at any time on 30 days’ prior notice to the Client in respect of Services not then delivered or performed.
      2. Mangano IT may not increase any Fees for the IT Managed Services or the Other Services during the Minimum Term, except to pass on price increases from a Wholesaler in respect of an input required for any of those Services.  Mangano IT will provide 30 days’ prior notice to the Client of any such increase in the Fees.
      3. Mangano IT may adjust the Out of Scope Hourly Rates with effect from each 1 July that occurs during the Term on 30 days’ prior notice to the Client.  Any such notified Out of Scope Hourly Rate will be the Out of Scope Hourly Rate from the relevant 1 July until a further rate is notified by Mangano IT in accordance with this clause 7.1(c).
      4. Nothing in this clause 7.1 limits the rights of Mangano IT to agree with the Client the fees payable for any services provided by Mangano IT to the Client other than the Services.

7.2 Variation of Services

The parties may agree to vary the Services, including by the addition of different types of services, the inclusion of new sites for the delivery of the Services and changes to the number of users of the Services, and if applicable the Fees payable in respect of the varied Services, at any time by varying the Client Agreement in writing.  Unless otherwise agreed, such changes will take effect at the start of the next Billing Period.

7.3 Other changes to Client Agreement

      1. Mangano IT may amend the Client Agreement (excluding any amendments to which clause 7.1 or 7.2 applies):
        1. with immediate effect without notice to the Client if Mangano, acting reasonably, determines that the change is likely to benefit the Client or have a neutral impact on the Client; or
        2. otherwise, on not less than 30 days’ prior notice to the Client.
      2. Any amendments made to the Client Agreement in accordance with clause 7.3(a) will be notified by Mangano IT to the Client as follows:
        1. in the case of any amendment made in accordance with clause 7.3(a)(i), by email or by posting a notice on the Website; and
        2. otherwise, by email.
      3. The Client acknowledges and agrees that, subject to clause 7.3(d), it will be bound by any amendment to the Client Agreement made in accordance with clause 7.3(a).
      4. The Client may terminate the Client Agreement immediately on notice to Mangano IT, without penalty, if the Client determines, acting reasonably, that any proposed amendment to the Client Agreement referred to in clause 7.3(a)(ii) will have a detrimental impact on the Client.  The Client may only exercise its rights under this clause 7.3(d) prior to the date the notified amendment to the Client Agreement takes effect.  If the Client does not exercise its rights in accordance with this clause 7.3(d), the Client acknowledges and agrees it will be bound by any amendment to the Client Agreement made in accordance with clause 7.3(a)(ii).
      5. Mangano IT will ensure that the most up-to-date version of these Terms & Conditions is always available on the Website. 

8. Service suspension and termination

8.1 Suspension

      1. Without limiting Mangano IT’s other rights under the Client Agreement, Mangano IT may, by notice to the Client, immediately suspend the supply of the Services, or any one or more of them, without any liability for loss where a Suspension Event occurs.
      2. A Suspension Event will occur if:
        1. Mangano IT reasonably suspects that the Services, or any one or more of them, are being used for an Unauthorised Purpose;
        2. the Client does not make any payment required by the Client Agreement and does not remedy that failure within 7 days;
        3. the Client breaches any of its obligations under the Client Agreement (other than as referred to in clause 8.1(b)(i) or 8.1(b)(ii)) and, where that breach is capable of remedy, has not remedied that breach within 21 days of that breach occurring;
        4. Mangano IT suspects that the security of the Client’s information technology systems, including its account details, has been compromised;
        5. Mangano IT considers it necessary to suspend the Services, or any one or more of them, to protect its systems, network or infrastructure or otherwise because of an Emergency;
        6. Mangano IT, acting reasonably, suspects that a failure to suspend the Services, or any one or more of them, will create an unacceptable risk that there will be a breach of a law or any other agreement to which Mangano IT is a party, including any agreement with a Wholesaler;
        7. Mangano IT is required to suspend the Services, or any one or more of them, under the law or by a court, tribunal, governmental or enforcement agency;
        8. a Wholesaler requires Mangano IT to suspend the Services, or any one or more of them;
        9. Mangano IT is unable to provide the Services, or any one or more of them, due to an event outside its reasonable control; or
        10. the Client changes its contact details or premises without providing notice to Mangano IT.
      3. The Client will be liable for all Fees during any period the Services are suspended in accordance with clause 8.1(a) where the Suspension Event which gave rise to that suspension was caused by the Client’s breach of the Client Agreement or any other action or inaction of the Client.
      4. If Mangano IT suspends the Services (or any of them) in accordance with clause 8.1(a), it will immediately recommence delivery if:
        1. the Suspension Event is remedied to Mangano IT’s satisfaction, acting reasonably, within 14 days of its occurrence; or
        2. Mangano IT, in its discretion, agrees with the Client to recommence delivery of the suspended Service or Services.
      5. If Mangano IT does not recommence delivery of the suspended Service or Services in accordance with clause 8.1(d) within 21 days of the suspension first occurring:
        1. in the case of a suspension of all of the Services, the Client Agreement will be terminated with effect from the date which is 21 days after the suspension first occurred; or
        2. in any other case, the Client Agreement will be deemed to be amended with effect on and from the date which is 21 days after the suspension first occurred to exclude the suspended Service or Services and the parties will be bound by the Client Agreement as so amended.

8.2 Termination by Mangano IT

      1. Without limiting Mangano IT’s other rights under the Client Agreement, Mangano IT may terminate the Client Agreement immediately on notice to the Client if:
        1. a Suspension Event occurs (other than a Suspension Event referred to in clause 8.1(b)(x)); or
        2. an Insolvency Event occurs in relation to the Client (unless Mangano IT’s rights to do so are restricted by the Corporations Act);
        3. Mangano IT, acting reasonably, determines that the Client’s creditworthiness has deteriorated since the first day of the Minimum Term;
        4. the Client, being a sole trader dies; or
        5. the Client, being a partnership, is dissolved.
      2. Where the Client entered into more than one agreement with Mangano IT:
        1. a breach by the Client of its obligations under any such agreement is a breach by the Client of its obligations under each such agreement; and
        2. Mangano IT may exercise any of its rights under any of those agreements, including the Client Agreement, accordingly.

8.3 Termination by the Client

      1. The Client may terminate the Client Agreement during the Minimum Term on providing 30 days’ notice to Mangano IT.
      2. The Client may immediately terminate the Client Agreement, if:
        1. Mangano IT experiences an Insolvency Event (unless the Client’s rights to do so are restricted by the Corporations Act); or
        2. Mangano IT breaches a material term of the Client Agreement and Mangano IT has failed to remedy that breach within 14 days of notice from the Client.

8.4 Consequences of Termination

      1. If Mangano IT terminates the Client Agreement in accordance with clause 8.2 (other than where the termination is as a result of a Suspension Event that is not caused by the Client’s breach of the Client Agreement or any action or inaction of the Client) or if the Client terminates the Client Agreement in accordance with clause 8.3(a), the Client must immediately pay Mangano IT the following amounts:
        1. the Fees payable for Services provided during, and any Additional Charges or other costs payable in respect of, the Billing Period in which the termination occurs and any other Fees or other amounts payable under the Client Agreement that remain outstanding;
        2. if the termination occurs during the Minimum Term, all expenses incurred or paid by Mangano IT in anticipation of providing the Services for the Minimum Term as at the date of termination, that Mangano IT is not able to legally avoid paying or is not legally entitled to obtain a refund of; and
        3. if the termination occurs during the Minimum Term, 25% of the Fees that would have been payable by the Client during the unexpired period of the Minimum Term. 
      2. If the Client Agreement is terminated in circumstances other than as set out in clause 8.4(a):
        1. the Client must immediately on that termination occurring pay Mangano IT the Fees payable for Services provided during, and any Additional Charges or other costs payable in respect of, the Billing Period in which the termination occurs and any other Fees or other amounts payable under the Client Agreement that remain outstanding; and
        2. if the Client has paid for any Services that have not been delivered as at the date of termination, Mangano IT will promptly refund the payment received for such Services.
      3. The termination or expiry of the Client Agreement will not prejudice any equitable or legal right of action or remedy which may have accrued to either party prior to termination of the Client Agreement.
      4. Termination of the Client Agreement does not affect any provision of the Client Agreement relating to limitation of liability or any indemnity, which all continue in full force and effect.

9. Limitation and exclusion of liability

      1. Subject to clause 9(d), Mangano IT is not liable to the Client for any loss or damage whatsoever or howsoever caused arising directly or indirectly from or in connection with the Client Agreement or the provision or non-provision of Services, except to the extent that such liability may not lawfully be limited or excluded.  For the avoidance of doubt the benefit of this clause 9(a) extends to all employees, contractors, agents, representatives, licensees and permitted assigns of Mangano IT.
      2. Without affecting the generality of clause 9(a) and notwithstanding any other provision of the Client Agreement, Mangano IT expressly excludes liability for consequential loss or damage howsoever caused, whether arising from or in connection with the Services or their provision, including any loss of data, any loss of, or claim for, revenue, profits, actual or potential business opportunities or anticipated savings or profit, whether arising in contract, in tort, in equity or via breach of statute, even if Mangano IT was aware that such loss may be incurred by the Client. The Client releases Mangano IT from any such liability for consequential loss suffered by the Client.
      3. Where Mangano IT cannot by law exclude liability, its liability to the Client will be limited to:
        1. if the breach relates to a failure to comply with any Service Levels – any amount payable in accordance with clause 3.3;
        2. if the breach relates to goods — the replacement or repair, or the payment of the cost for the replacement or the repair, of the goods;
        3. if the breach relates to services (other than a failure to comply with any Service Levels) — the supply of those services again or the payment of the cost of those services being supplied again; or
        4. if none of clauses 9(c)(i), 9(c)(ii) or 9(c)(iii) applies, the costs or expense the Client reasonably incurs that is a direct result of and flows naturally from Mangano IT’s breach of the Client Agreement provided that the aggregate liability of Mangano IT under this clause 9(c)(iv) is limited to the aggregate of the Fees paid or payable by the Client under the Client Agreement for the Minimum Term.

        This clause 9(c) applies despite anything else in the Client Agreement and to the fullest extent permitted by law.

      4. The limitation of liability set out in clause 9(a) will not apply to any liability arising as a result of, or in connection with:
        1. fraud or wilful misconduct by Mangano IT; or
        2. death or personal injury to the Client or its employees caused by Mangano IT’s breach of the Client Agreement or Mangano IT’s negligence.
      5. Notwithstanding any other provision of the Client Agreement, Mangano IT’s liability to the Client will be reduced to the extent that any loss or damage incurred or suffered by the Client is caused or contributed to by the Client, its employees, agents or contractors.

10. Confidentiality obligations

      1. Each party must maintain strict confidentiality in relation to the Confidential Information of the other party, must keep that Confidential Information secure and must not use or divulge the Confidential Information of the other party except as permitted in accordance with this clause 10.
      2. Each party must only use the Confidential Information of the other party for the purpose of fulfilling the requirements of, and to give effect to, the performance of the Client Agreement or, in the case of the Client, using the Services.
      3. Either party may disclose the Confidential Information of the other party to:
        1. its accountant or its business, financial or legal advisors (Professional Advisors); and
        2. its officers, employees, agents or contractors, solely to comply with its obligations or to exercise its rights under the Client Agreement or to enable effective management or auditing of related activities of and incidental to fulfilling its obligations under the Client Agreement.
      4. Where a party discloses Confidential Information of the other party under clause 10(c) that party must:
        1. notify the receiving person that the information is Confidential Information; and
        2. not provide the information unless the receiving person is bound by an obligation to keep that information confidential or agrees in writing to keep the information confidential.
      5. It will not be a breach of this clause 10 if either party discloses the Confidential Information of the other party where authorised or required by law or by an order of any regulatory authority, stock exchange, judicial or parliamentary body or governmental agency provided that the disclosing party:
        1. notifies the other party prior to making the disclosure; and
        2. discloses only the Confidential Information required to comply with the applicable law or order.
      6. The obligations of each party under this clause 10 continue for a period of 3 years from the expiry or earlier termination of the Client Agreement.
      7. Nothing in this clause 10 limits the obligations either party may have under the Privacy Act and each party agrees to comply with the Privacy Act in respect of any Confidential Information of the other party that comprises Personal Information.

11. Security interest in equipment

11.1 Equipment Supply

        1. If the Services include the provision of any goods of any nature, including computer hardware (Equipment):
          1. Mangano IT retains title to and ownership of each item of the Equipment until all amounts due in respect of that item of the Equipment have been paid by the Client in full;
          2. risk of loss of, or damage to, the Equipment passes to the Client when it is delivered to the Client’s premises;
          3. the Client must fully insure each item of the Equipment from the time of delivery and maintain the insurance until the Client obtains title to that item or, if this occurs, until the item of Equipment is returned to Mangano IT.  The Client must insure the Equipment for its full value and ensure that Mangano IT’s interest is noted on the policy.  Mangano IT may at any time and from time to time require the Client to demonstrate compliance with this clause 11.1(a)(iii) by producing a copy of the insurance policy.
        2. The Client must not during the period Mangano IT retains title to and ownership of any item of Equipment:
          1. mortgage, charge or grant any other security interest in respect of that item of Equipment without Mangano IT’s prior consent; and
          2. loan, rent, licence, transfer or assign or part with possession of that item of Equipment without Mangano IT’s prior consent.
        3. The Client must allow Mangano IT to enter upon the Client’s premises to inspect any Equipment which Mangano IT retains title to and ownership of upon reasonable notice from time to time.
        4. If:
          1. the Client fails to pay any amount (whether in whole or part) payable in respect of any item of Equipment by the time required for payment; or
          2. the Client Agreement is terminated,

      Mangano IT may, without notice to the Client, enter at any reasonable time any premises where Equipment which Mangano IT retains title to and ownership of is located (or believed by Mangano IT, acting reasonably, to be located) and take possession of that Equipment. 

      1. The Client must reimburse to Mangano IT all reasonable costs incurred by Mangano IT in exercising Mangano IT’s rights under clause 11.1(d).

11.2 Additional PPSA provisions

      1. The Client acknowledges and agrees that Mangano IT has a security interest in the Equipment, including all proceeds, as defined in the PPSA, of any kind. 
      2. The Client consents to Mangano IT registering a financing statement in the PPS Register in respect of the security interest Mangano IT holds in the Equipment and proceeds.
      3. The Client must do anything (such as obtaining consents and signing documents) which Mangano IT, acting reasonably, requires for the purposes of:
        1. ensuring that Mangano IT’s security interest is enforceable, perfected and otherwise effective under the PPSA;
        2. enabling Mangano IT to gain first priority (or any other priority agreed to Mangano IT) for Mangano IT’s security interest; and
        3. enabling Mangano IT to exercise its rights in connection with that security interest.
      4. If Chapter 4 of the PPSA applies to the enforcement of Mangano IT’s security interest:
        1. Mangano IT is not obliged to comply with any provisions of that Chapter 4 which the parties may agree, in accordance with the PPSA, to contract out of; and
        2. the Client waives all rights under that Chapter 4 which, in accordance with that Chapter 4, it is entitled to waive.
      5. The Client agrees that Mangano IT is not required to provide any notice to the Client under the PPSA unless the PPSA provides that the giving of such notices may not be contracted out of.
      6. Mangano IT may recover from the Client the cost of registering a financing statement in the PPS Register in respect of the Equipment and proceeds.

12. Dispute resolution

12.1 Reasonable endeavours to settle

If a dispute arises in relation to either party’s obligations under the Client Agreement, other than a dispute which is the subject of an Invoice Dispute Notice (Dispute) the parties undertake in good faith to use all reasonable endeavours to settle the Dispute expeditiously in accordance with this clause 12.

12.2 Dispute Notice

Any party claiming that a Dispute has arisen may give a notice to the other party (Dispute Notice).  The Dispute Notice must:

      1. identify the party’s representative for negotiations relating to the Dispute, being a person with authority to settle the Dispute on behalf of that party; and
      2. set out succinctly the issues the subject of the Dispute and, with all relevant particulars, a description of the circumstances giving rise to the Dispute and the relief sought including, to the extent possible, any amount claimed.

12.3 Reply

The recipient of the Dispute Notice must, within 10 Business Days of receipt of the Dispute Notice, reply to the other party (Reply).  The Reply must:

      1. identify the recipient’s representative for negotiations relating to the Dispute, being a person with authority to settle the Dispute on behalf of the recipient; and
      2. set out succinctly the recipient’s response to the matters set out in the Dispute Notice and any additional matters the recipient considers relevant.

12.4 Negotiation

The representatives designated under clauses 12.2(a) and 12.3(a) will make whatever investigations each considers appropriate and, within 10 Business Days of receipt of the Reply by the party which issued the Dispute Notice, use their reasonable endeavours to resolve the Dispute.

12.5 Escalation of Dispute

      1. If the parties do not resolve the Dispute after following the procedure in clauses 12.1 to 12.4, then either party may request that the Dispute be considered by a member of senior management of each party.
      2. On a request being made under clause 12.5(a), those relevant personnel must:
        1. promptly commence discussions to attempt in good faith to resolve the Dispute; and
        2. negotiate in good faith to try to resolve the Dispute without resorting to any formal proceeding.

12.6 Independent Expert

      1. If the Dispute remains unresolved 20 Business Days after a request made under clause 12.5(a) the Dispute must be referred for determination to an independent expert of requisite experience appointed by agreement between the parties.
      2. If the parties are unable to agree as to the identity of the independent expert, the independent expert will be chosen by the managing director of the Australian Disputes Centre or his or her delegate.
      3. An independent expert appointed in accordance with this clause 12.6 will act as an expert and not as an arbitrator and (except for cases of Disputes regarding Intellectual Property Rights, manifest error or fraud) the decision of such an independent expert will be final and binding on the parties and not subject to appeal to any court or tribunal on any basis whatever. 

12.7 Right to suspend and terminate

This clause does not affect any rights to suspend or terminate Services or the Client Agreement under clause 8 or pursuant to any other rights of termination contained in the Client Agreement.

12.8 Parties to continue to perform

Notwithstanding the existence of a Dispute (but subject to clause 12.7), each party must continue to perform its obligations under the Client Agreement.

13. Notice provisions

      1. All notices and consents under or in connection with the Client Agreement must be sent by email to:
        1. in the case of Mangano IT, support@manganoit.com.au and accounts@manganoit.com.au; and
        2. in the case of the Client, the email address specified in the Services Schedule.
      2. An email sent in accordance with clause 13(a) will be deemed to have been received by the recipient upon the email leaving the sender’s system.

14. Assignment and subcontracting

      1. Neither party may assign, novate or otherwise transfer, or attempt to assign, novate or otherwise transfer, any rights or obligations arising under or in connection with the Client Agreement except with the prior consent of the other party, such consent not to be unreasonably withheld or delayed.
      2. Mangano IT may subcontract the delivery of the Services or any one or more of the Services provided that Mangano IT is:
        1. not relieved from any obligations under the Client Agreement; and
        2. liable for any breach of its obligations under the Client Agreement committed, caused or contributed to by any subcontractor appointed as permitted by this clause, subject always to the provisions of the Client Agreement relating to exclusion and limitation of liability.

15. Miscellaneous

15.1 Waiver

Delay by a party in exercising any right under the Client Agreement does not constitute a waiver of that right, nor will any waiver (either wholly or in part) by a party of any particular right under the Client Agreement operate as a waiver of the same or any other right.

15.2 Entire Agreement

The Client Agreement constitutes the entire agreement of the parties in respect of the matters dealt with in the Client Agreement and supersedes all prior agreements, understandings, undertakings and negotiations in respect of the matters dealt with in the Client Agreement.

15.3 Governing Law

The Client Agreement is governed by, and is to be construed and take effect in accordance with, the laws of the state of Queensland.

15.4 Severability

      1. Mangano IT and the Client consider the covenants, obligations and restrictions contained in the Client Agreement to be reasonable in all the circumstances of the Client Agreement.
      2. Unenforceability of a provision of the Client Agreement does not affect the enforceability of any other provision.
      3. If any provision of the Client Agreement is void, voidable or unenforceable, it is taken to be severed from the Client Agreement.

15.5 Non merger

All obligations of the parties which expressly or by their nature survive the expiration or termination of the Client Agreement will continue in full force and effect notwithstanding such expiration or termination.

15.6 Non solicitation

The Client must not, during the term of the Client Agreement and for 12 months after the expiry or earlier termination of the Client Agreement, solicit or attempt directly or indirectly to solicit or engage any of Mangano IT’s employees or contractors with whom the Client had contact in the 12 month period prior to expiry or termination of the Client Agreement (or, if this is a shorter period, the term of the Client Agreement).