This document sets out the Standard terms and conditions on which DaVichi Computer Services Pty Ltd [ABN 20 467 301 788] (“DaVichi Computer Services” or “DCS”) provides Services to you, the Customer. You accept these Terms and Conditions when you enter into a Full Service agreement with Davichi Computer Services. When you have accepted these Terms and Conditions, they become a legal agreement between you and Davichi Computer Services Pty Ltd. This MSA is to be read in conjunction with the Hosting Terms and Conditions and or the Full Service Agreement Terms and Conditions. Please read it carefully. Once you have accepted these Terms and Conditions, you can always access and review them via the Davichi Computer Services Website and its contents are owned and operated by Davichi Computer Services Pty Limited (“Davichi Computer Services” or “DCS”).
A. The Customer wishes to engage Davichi to perform the Services on the terms of this Agreement.
B. Davichi accepts its appointment on the terms of this Agreement.
C. Davichi agrees to provide the Services and the Customer agrees to pay Davichi the Fees in accordance with the Agreement.
D. Nothing in this Agreement requires Davichi to supply exclusively to the Customer any services the same as or similar to the Services. Davichi may supply such services to any third party at Davichi’s discretion.
E. To the extent of any inconsistency between the Customer and Davichi, the following order of precedence applies:
(a) this Agreement;
(b) the specific terms and conditions attached to the Services; and
(c) the Service Level Agreement.
(a) Davichi will provide the Customer with access to a customer portal.
(b) The customer portal allows the Customer to:
(i) log a support ticket(s);
(ii) access and update all outstanding support tickets; and
(iii) print copies of invoices,
(a) Davichi will provide the Customer with a user identification and password to access the Customer Portal for the purposes specified in clause 1.1(a).
(b) The Customer is solely responsible for maintaining the secrecy and confidentiality of the user identification and password assigned to them or their nominated representatives and remains liable for any fees or charges incurred by any person accessing the Customer Portal by using that user identification and password.
(a) Davichi’s office hours are Monday to Friday, 8:30am – 5:00pm AEST excluding Public Holidays.
(b) Davichi operates a phone service outside of the hours set out in clause 1.3(a).
(c) If the Customer makes calls to Davichi outside of the hours set out in clause 1.3(a), the Customer may be charged an additional fee.
(a) The Customer agrees to pay the Fees for the Services.
(b) The Customer acknowledges that there are additional fees, charges, levies and expenses that the Customer
may incur during the term of the Agreement. For example additional fees may be charged for:
(i) excess data, traffic, bandwidth and/or power usage by the Customer; and
(ii) additional licence fees under third software licences.
(c) All transactions are processed in AUD.
(a) The Fees will be reviewed monthly to take into account any changes in the usage by the Customer.
(b) Notwithstanding clause 2.2(a) Davichi reserves the right to increase any Fees yearly due to a Consumer Price Index (CPI) adjustment.
(a) Davichi will submit a Tax Invoice to the Customer and post it on the Customer Portal at each stage it is entitled to seek payment from the Customer for (the whole, or parts of, as relevant) the Services performed, setting out the basis for its calculation of the Fee and any additional charges.
(b) The Customer must pay Davichi the Fee and any additional charges payable to Davichi by the due date set out in the Tax Invoice.
(a) Davichi will use its best endeavours to bill all Fees and any additional charges for the relevant billing period in the invoice relating to that period.
(b) Where Fees and any additional charges relating to that billing period arise for any reason after the Tax Invoice is issued, including without limitation late notification of third party billing errors, Davichi will include such charges on a later Tax invoice.
(a) The Customer will pay all outstanding balances either by direct deposit or credit card, to Davichi’s nominated account.
(b) All trading terms with the Customer are cash on delivery unless otherwise agreed to in writing by Davichi.
(c) Accounts are in default if payment is not received within 5 Business Days of the due date.
(d) Accounts in default are subject to service interruption without notice. Such interruption does not relieve the Customer of the obligation to pay any outstanding balance.
(e) Accounts in default are subject to an interest charge of the lesser of 10% per month, or the maximum rate permitted by law, on the outstanding balance.
(f) The Customer agrees to pay Davichi all expenses as a result of any enforcement action, including legal and collection agency fees.
(a) If the Customer requests to vary the Services, which results in lower monthly fees, and Davichi agrees to such request, Davichi may charge the Customer a downgrade fee.
(a) The Customer agrees and consents to Davichi acquiring a credit report from any credit reporting agency containing personal information (as well as information concerning commercial creditworthiness and activities) for the purpose of assessment by Davichi of an application for credit (whether commercial or private) or for the collection of payments which are overdue.
(b) The Customer also agrees and consents to Davichi reporting information to any credit reporting agency that the Customer is in default of the trading terms of this Agreement or that it has handed over collection of the Customer’s account to a collection agency.
(a) The Customer agrees in the event of a merchant charge-back, the Customer’s account which the charge-back has occurred will be placed on credit hold and no further transactions will be processed until the outstanding amounts are settled.
(b) The Customer agrees that an additional fee of $25.00 per merchant charge-back is due and payable to Davichi, before the Customer’s account is removed from a credit hold.
(c) In accordance with clause 2.8, the Customer acknowledges a merchant charge-back may result in other services being disabled and not being renewed as a result of the Customer’s account being placed on credit hold.
(a) Davichi agrees to provide the Customer with the Services during the Term of the Agreement.
(b) Davichi and the Customer agree that the Term is automatically extended for a further Term unless the Agreement has been terminated in accordance with clause 4 or as otherwise agreed in writing by the parties.
(a) Davichi may terminate this Agreement immediately by giving written notice to the Customer if:
(i) the Customer becomes Insolvent; or
(ii) the Customer has failed to pay to Davichi any part of the Fees and any additional charges that are due and payable;
(iii) those Fees and any additional charges remain unpaid by the Customer for more than 20 Business Days after the Customer receives written notice from Davichi stated to be under this clause identifying:
(A) the part of the Fees and any additional charges that are due and payable; and
(B) the due date for payment; and
(C) the unpaid Fees are not the subject of a Dispute.
(b) Davichi may terminate this Agreement with 15 Business Days written notice to the Customer if:
(i) a Regulatory Authority directs it to do so; or
(ii) a third party supplier terminates an agreement to supply services that Davichi relies on in the provision of the Service, and as a result, Davichi is unable to provide the Services.
(c) Davichi terminate this agreement at any time during the Term if Davichi gives written notice of a material breach of this Agreement to the Customer, and the breach is not remedied by the Customer within 30 Business Days after receipt of the notice
(d) Davichi may terminate this Agreement at any time by providing 3 months written notice to the Customer.
(a) The Customer may terminate this Agreement immediately by giving written notice to Davichi if Davichi becomes Insolvent.
(b) The Customer may termination this Agreement at any time by providing 3 months written notice to Davichi.
(c) The Customer terminate this agreement at any time during the Term if the Customer gives written notice of a material breach of this Agreement to Davichi, and the breach is not remedied by Davichi within 30 Business Days after receipt of the notice.
(d) If the Customer terminates the Contract for reasons other than in 4.2(a) and 4.2(c), the balance of the total minimum cost less the amount already paid on under the Agreement shall become immediately due and the Customer will immediately pay that invoice and any other outstanding invoices.
(a) If this Agreement is terminated pursuant to clause 4.1 or clause 4.2, Davichi will discontinue the Services immediately.
(b) If this Agreement is terminated by the Customer under clause 4.2, the Customer must pay Davichi for the Services performed prior to the date of termination the amount which would have been payable if this Agreement had not been terminated and had Davichi issued a Tax Invoice to the Customer under clause 4.2 on the date of termination.
Davichi may, in its sole discretion and without derogating from its right to terminate this Agreement pursuant to clause 4, at any time suspend, restrict or disconnect the provision of the Services to the Customer on the occurrence of any of the following events:
(a) the Customer fails to pay any outstanding invoices within 7 days of written demand by Davichi;
(b) the Customer breaches Davichi’s Acceptable Use Policy and fails to rectify that breach immediately on written demand by Davichi;
(c) Davichi is directed by any Regulatory Authority and/or authorised law enforcement agency to do so; and/or
(d) during any technical failure, modification or maintenance of the Service, provided that Davichi will use reasonable endeavours to ensure that the Services are resumed as soon as practicable.
(a) If the Services are suspended in accordance with clause 5.1, the Customer must pay a re-connection and/or a re-activation fee.
(b) Davichi will not reconnect or re-activate Services suspended until the Customer has paid the re-connection and/or re-activation fee.
(c) The Customer will remain liable under this Agreement for all payments falling due within the period for suspension of Services, including without limitation for all Fees accruing and accrued during the suspension.
The Customer agrees to and shall hold harmless and indemnify Davichi against any Loss, expenses, liability, damages or claim made against it by any party whatsoever which Davichi may suffer resulting from or arising out of any actions taken by Davichi pursuant to clause 5.1.
(a) Davichi warrants that the Services will be supplied with due care and skill in accordance with the applicable services levels in Schedule 3 and that any material(s) supplied in connection with these Services are reasonably fit for the purposes for which they supplied.
(a) With the exception of the warranties set out in clause 6.1 and to the full extent permitted by law, all other express or implied warranties, representations, terms and conditions regarding Services and their use or regarding the Agreement are hereby expressly excluded.
(b) Davichi’s liability for breach of the warranties set out in clause 6.1 is limited to the resupply of Services, or payment of the cost of having the Services supplied again.
(c) In no event shall Davichi be liable for any loss of data, loss of profits or any other special, incidental, consequential, indirect or punitive damages, however caused and regardless of theory or liability, notwithstanding that Davichi has been made aware or advised of the possibility of such damages, except to the extent that such loss or damage is caused by an act of dishonesty, fraud or wilful misconduct by Davichi.
(a) Davichi may at any time give a written direction to the Customer to vary the nature and extent of, or increase, decrease or omit any part of, the Services. Davichi may only vary the Services if it receives a written direction from the Customer to do so.
(b) If Davichi considers that any direction given by the Customer involves a variation, Davichi must within 5 Business Days of the direction and before it begins implementing the direction give the Customer a written notice stating that it considers that it has been instructed to vary the Services and seek the Customer’s further written direction under clause (a) as to whether it is to proceed.
(c) Davichi is not entitled to make any claim for, and the Customer is not liable in respect of any Loss incurred by Davichi in respect of, any variation to the Services unless Davichi has complied strictly with this clause 7.2.
(a) Upon receipt of a written direction from the Customer to vary the Services and subject to clause7.3(b), Davichi and the Customer must agree in writing the details of the variation to the Services, including any adjustment to the Fee, before Davichi carries out the varied Services.
(b) If Davichi and the Customer are unable to agree the details of a variation within 10 Business Days of the Customer’s direction, the Customer may, in its absolute discretion:
(i) withdraw the variation; or
(ii) direct Davichi to immediately proceed with the variation and determine a reasonable adjustment to the Fees using the rates set out in Schedule 2, where applicable, and reasonable other details of the variation.
(c) Davichi must carry out the Service as varied by a direction as if the Services were originally defined in this Agreement to be the Services as varied.
(a) Davichi is the owner of all Intellectual Property Rights in and to the Services, derivative works, and anything developed or delivered by or on behalf of Davichi under this Agreement.
(b) Davichi grants to the Customer a non-exclusive and non-transferable license to use Davichi’s Intellectual Property Rights for the only purpose as is necessary for the Customer to enjoy the benefit of the Services.
(c) All right, title and interest (including copyrights and other intellectual property rights) in the Services belong to Davichi or Davichi’s third party suppliers.
(d) The Customer does not acquire any ownership of copyright or other intellectual property rights in the Services, any materials or copies thereof.
(e) The Customer indemnifies Davichi and Davichi’s personnel against all Loss that any or all of them suffer or incur as a result of any breach of this clause 8.
If a Dispute arises, either party may deliver a written notice to the other party which states that it is a notice of Dispute under this clause 10.1 and provides details of the Dispute, including:
(a) the facts that give rise to the Dispute;
(b) the legal basis for the Dispute; and
(c) if the Dispute relates to the payment of any money, how that payment is quantified.
(a) Within 5 Business Days of delivery of a notice of Dispute representatives of the parties who have authority to resolve the Dispute must meet in good faith and use their best endeavours to resolve the Dispute.
(b) Communications between the parties during that meeting are not admissible as evidence in any legal process unless in writing and signed by both parties.
(a) No party may commence proceedings in court in relation to a Dispute unless a notice of Dispute has been delivered in relation to that Dispute and the party has used its best endeavours to comply with clause 10.2.
(b) Nothing in this clause limits a party’s rights to seek urgent injunctive or urgent declaratory relief.
(a) Davichi may use contractors or suppliers located in Australia and overseas in the provision of the Services.
(b) The Customer consents to information provided to Davichi being transferred to those contractors or suppliers.
(a) Davichi will, whenever any of Davichi’s personnel requires access to the Offices in order to perform the Services, notify the Customer and obtain the Customer’s prior written consent to enter the Offices.
(b) The Customer must give Davichi reasonable access during business hours to the Offices for the purpose of performing the Services.
(a) Davichi may collect, use, and disclose information relating to the Customer for purposes related to the supply of Services, including without limitation billing and account management, business management and product development.
1.1 If GST is payable by a supplier (or by the representative member for a GST group of which the supplier is a member) on any supply made under or in relation to this Agreement, the recipient will pay to the supplier an amount equal to the GST payable on the supply. That amount is payable by the recipient in addition to and at the same time as the net consideration for the supply. The recipient need not make any payment for a taxable supply made under or in connection with this Agreement until the supplier has given the recipient a Tax Invoice in respect of the taxable supply.
1.2 If a party is required to make any payment or reimbursement, that payment or reimbursement will be reduced by the amount of any input tax credits or reduced input tax credits to which the other party (or the representative member for a GST group of which it is a member) is entitled for any acquisition relating to that payment or reimbursement.
1.3 This clause is subject to any other specific Agreement regarding the payment of GST on supplies.
1.4 Unless otherwise stated, all amounts payable for any supply under or in connection with this Agreement include GST.
A notice or other communication to or by a party under this Agreement:
(a) must be in writing and signed by the sender or a person authorised by the sender;
(b) may be served by delivery in person or by email, post or transmission by facsimile to an address or number of the recipient as nominated by the Customer and Davichi;
(c) subject to paragraph (d) is deemed to be given by the sender and received by the addressee:
(i) if delivered in person, upon delivery to the recipient;
(ii) if sent by email, on the date and time shown on the email;
(iii) if sent by facsimile transmission, on the date and time shown on the transmission report;
(iv) if posted, 2 Business Days (or 6 Business Days, if posted outside Australia) after the date of posting to the addressee, irrespective of whether the notice is received or not; and
(d) if delivered or received on a day which is not a Business Day, it is taken to have been delivered or received on the following Business Day and, if delivered or received after 4:00PM (addressee’s time), then notice is taken to have occurred at 9:00AM on the following Business Day.
A party may change the address or number to which notices can be delivered or sent to that party by giving the other party notice of such change in accordance with this clause.
This Agreement shall be governed by the laws in effect in the state of Queensland, and the parties submit to the jurisdiction of Queensland.
(a) The Customer may not transfer their rights or obligations under this Agreement to, or share them with, anyone without Davichi’s prior written consent.
(b) Davichi may transfer Davichi’s rights or obligations under this Agreement to, or share them with, anyone on notice to the Customer.
If any provision or portion of this Agreement is held to be unenforceable, it shall be enforced to the maximum extent permissible consistent with the terms hereof, and the remainder of this Agreement shall continue in full force and effect.
This Agreement represents the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior and/or contemporaneous agreements and understandings between the Parties with respect to the subject.
This Agreement may be executed in any number of counterparts.
In relation to the electronic exchange of documents:
(a) parties may exchange executed counterparts of this Agreement, or any other document required to be executed under this Agreement, by delivery from one party to the other party by email or other electronic means (Electronic Delivery);
(b) Electronic Delivery of an executed counterpart will be deemed effective delivery of the original executed counterpart, from the date and time of receipt by the other party; and
(c) a party that provides an executed counterpart by Electronic Delivery is still required to provide the original executed counterpart to the other party. However, a failure to adhere to this requirement has no effect on the formation or enforcement of this agreement or other relevant document.
Acceptable Use Policy: The policy set out at URL https://www.davichi.com.au/legal which defines acceptable and unacceptable use of the Services by the Customer.
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in Queensland.
Confidential Information means information in any form disclosed to, in the possession of or under the control of a party or to which a party gains access at any time and includes without limitation:
(a) information which is by nature confidential or by the circumstances in which it is disclosed is confidential; or
(b) information which is designated by either party as confidential or identified in terms connoting its confidentiality; or
(c) information which relates to either party’s members, systems, data, procedures, practices, intellectual property and know how, processes, projects, methods of operation, finances and commercially sensitive information;
but does not include:
(d) information which is or becomes public knowledge other than through a breach of this Agreement or obligation of confidence owed by either party; or
(e) information that is required by Davichi to be dislosed to third parties in the provision of the Services; or
(f) information required to be disclosed by law.
Customer means [details of Customer].
Customer Portal has the meaning set out in clause 1.1.
Davichi Website means the website located at the URL https://www.davichi.com.au.
Dispute means any disagreement, difference of opinion or issue between the parties concerning or arising out of or in connection with or relating to this Agreement. A reference to a Dispute, where the Dispute is partly resolved, refers to the unresolved part of the Dispute.
Fees means the Fees as set out in Schedule 2.
GST has the meaning given by section 195-1 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Insolvent means, in relation to a party, any one or more of the following events or circumstances:
(a) it is (or states that it is) an insolvent under administration or insolvent (each as defined in section 9 of the Corporations Act);
(b) it has had a controller appointed, or is in liquidation, in provisional liquidation, under administration or wound up or has had a receiver or receiver and manager appointed to any part of its property;
(c) it is subject to any compromise, arrangement, assignment, moratorium or composition, protected from creditors under any statute or dissolved (in each case, other than to carry out a reconstruction or amalgamation while solvent on terms approved by the other parties, such approval not to be unreasonably withheld);
(d) an application or order has been made (and in the case of an application, it is not stayed, withdrawn or dismissed within 20 Business Days), resolution passed, proposal put forward, or any other action taken, in each case in connection with that shareholder, which is preparatory to or could result in any of paragraphs (a), (b), (c) or above;
(e) it is taken (under section 459F(1) of the Corporations Act) to have failed to comply with a statutory demand;
(f) it is the subject of an event described in section 459C(2) or section 585 of the Corporations Act (or it makes a statement from which the other shareholder to this Agreement reasonably deduces it is so subject);
(g) it ceases or threatens to cease to carry on all or a material part of its business; or
(h) it suspends payments of its debts or is otherwise unable to pay its debts as and when they become due and payable,
unless such event or circumstance occurs as part of a solvent reconstruction, amalgamation, scheme, compromise, arrangement, merger or consolidation approved by the other shareholder to this Agreement (such approval is not to be unreasonably withheld or delayed).
Intellectual Property Rights means:
(a) patents, trade marks, service marks, rights in designs, trade names, copyrights, topography rights, design and databases in each case whether registered or not, and any applications for registration of any of them;
(b) invention, discovery, trade secrets, know-how, computer software and scientific, technical and product information.
(c) rights under licences and consents in relation to any of them; and
(d) other forms of protection of a similar nature or having equivalent or similar effect to any of them which may subsist anywhere in the world,
but excluding moral rights, existing prior to the commencement of this Agreement or developed by Davichi independently of (or not specifically and exclusively in) the provision of the Services.
Loss includes any cost, expense (including any legal and other professional charges and expenses), loss, damage or liability whether direct, indirect or consequential (including pure economic loss), present or future, fixed or unascertained, actual or contingent and any liability under an indemnity.
Offices means the Customer’s premises described in Schedule 1.
Regulatory Authority means the Australian Communications and Media Authority, the Australian Competition and Consumer Commission, the Australian Communications Industry Forum Limited, the Telecommunications Industry Ombudsman, the Internet Industry Association, the Asia Pacific Network Information Centre, authorised domain name registrars, and any other competent government or statutory body or authority having jurisdiction over Davichi Computer Services.
Services means the services to be performed by the Customer as set out in Schedule 1 and any services necessarily incidental to them, including:
(a) the provision of all services, professional advice and skills required for or incidental to the provision of such services; and
(b) any such services performed before the date of this Agreement.
Tax Invoice has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Term means from the date of this agreement for the period in individual agreement.
Please fill in this form, and our sales team will get back to you as soon as possible.