TERMS & CONDITIONS
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ACCEPTANCE
BY CLICKING ON THE “ACCEPT” BUTTON, YOU OR THE ENTITY THAT YOU REPRESENT (“YOU”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY, AND ARE BECOMING A PARTY TO, A SUPPLY CONTRACT AND AN ORDER CONSISTING OF THE SERVICE SCOPE, THIS PARAGRAPH, THE SERVICE LEVEL AGREEMENT AND THE FOLLOWING STANDARD TERMS OF SERVICE (THE “AGREEMENT”) FOR THE PROVISION OF SERVICES BY US TO YOU.
IF A SEPARATE WRITTEN AGREEMENT AND SOW ABOUT THE SERVICES ALREADY EXISTS BETWEEN YOU AND US, THE TERMS OF THAT WRITTEN AGREEMENT (EXCLUDING THE PRE-PRINTED TERMS OF ANY PURCHASE ORDER, CONFIRMATION OR SIMILAR DOCUMENT, WHICH WILL HAVE NO EFFECT AND WILL NOT BE CONSIDERED AGREED TO BY US) WILL TAKE PRECEDENCE OVER THIS AGREEMENT, AND YOU ACKNOWLEDGE THAT YOU ARE BOUND BY THE TERMS OF THAT WRITTEN SERVICES AGREEMENT RATHER THAN THESE TERMS.
IF YOU DO NOT UNCONDITIONALLY AGREE TO THE TERMS SET OUT IN THIS AGREEMENT, AND WE HAVE NO WRITTEN AGREEMENT AND SOW ALREADY IN PLACE BETWEEN US, CLICK THE “CANCEL” BUTTON AND THE SERVICE PROVISIONING PROCESS WILL NOT CONTINUE. IF YOU CONTINUE WITH SERVICE PROVISIONING, YOU ARE REPRESENTING AND WARRANTING THAT YOU ARE AUTHORIZED TO DO SO.
1. Supply Contract
1.1 Formation of Supply Contract
A Supply Contract between the parties will consist of:
1.1.1 any Special Conditions to the relevant Statement of Work;
1.1.2 the relevant Statement of Work;
1.1.3 the terms and conditions of this Agreement;
1.1.4 the schedules to this Agreement; and
1.1.5 any of Iron Triangle Management Solutions LLC (i.e. ITMS hereafter)’s standard form documents (including policies and procedures) incorporated by reference.
1.2 Priority of Documents
In the event and to the extent of any ambiguity, inconsistency or discrepancy between two or more documents which form part of the Supply Contract, a descending order of priority will apply to those documents so that a document appearing higher in the list of documents in clause 1.1 will prevail over a document appearing lower in the list.
1.3 Entire Agreement and Variation
1.3.1 The Supply Contract constitutes the entire agreement between the parties and supersedes all communications, negotiations, arrangements and agreements, whether oral or written, between the parties with respect to the subject matter of the Supply Contract.
1.3.2 No agreement or understanding varying or extending the Supply Contract will be legally binding upon either party unless in writing and signed by both parties, or submitted by the Customer as an Order and accepted by ITMS.
1.4 Benefit of Supply Contract
The Customer:
1.4.1 acknowledges that ITMS enters into the Supply Contract for the benefit of the ITMS entity; and
1.4.2 agrees that ITMS holds the benefit of the Supply Contract (including the right to recover any Liability) for itself and on trust for ITMS Entity and is entitled to enforce the Supply Contract (including any indemnity), whether by way of equitable, legal or statutory relief, for itself and on behalf of ITMS Entity.
2. Appointment and Term
2.1 Appointment
2.1.1 The Customer appoints ITMS, and ITMS accepts the appointment, to deliver the Services and Deliverables specified in a Statement of Work in accordance with the Supply Contract.
2.1.2 In consideration of ITMS delivering to the Customer the Services and Deliverables specified in a Statement of Work, the Customer will pay to ITMS the Fees in accordance with the Supply Contract.
2.2 Term
2.2.1 This Agreement commences on the Effective Date and continues for the Initial Term, unless terminated earlier in accordance with this Agreement.
2.2.2 The Initial Term will be automatically extended for the rolling further periods specified in the applicable Statement of Work, unless either party gives written notice to the other party no less than 30 days before the expiry date of the Agreement that the rolling further period will not apply.
2.2.3 Notwithstanding anything else in this Agreement, the expiry of this Agreement shall not terminate any Statement of Work, and the terms of this Agreement remain effective as to any such Statement of Work, until that Statement of Work or Order has been completed or has terminated.
2.3 Term of Statements of Work
The term of a Statement of Work will be the term specified in the Statement of Work, including any extensions, renewals or amendments.
2.4 Issuing a Statement of Work
2.4.1 A Statement of Work entered into during the Term of this Agreement has effect according to its terms, pursuant to this Agreement.
2.4.2 If, after having received a draft Statement of Work from IMS, the Customer instructs ITMS to commence the provision of Services described in the draft Statement of Work, then the Customer will be deemed to have agreed to and accepted that draft Statement of Work in its entirety, and that draft Statement of Work will form a Statement of Work under a Supply Contract.
2.5 Compliance with Statements of Work
The parties must comply with the requirements of any Statement of Work in relation to the provision of the Services pursuant to the Supply Contract.
3. Services and Delivery
3.1 Delivery of Services
3.1.1 ITMS will:
(a) provide the Services and any Deliverables to the Customer in accordance with the Supply Contract; and
(b) use reasonable commercial endeavours:
(i) to ensure that the Services and Deliverables comply with the applicable Statement of Work; and
(ii) where applicable, to achieve the Service Levels or acceptance criteria as specified in a SOW or Order when performing the Services.
3.1.2 ITMS, in its sole discretion, may nominate ITMS Entity to provide the Services or any part of the Services.
3.2 Performance Methods
3.2.1 Subject to compliance with the Supply Contract, ITMS:
(a) will select the means, manner, mode, methods and location of; and
(b) may provide and use its own equipment and/or use the Customer Equipment in, providing the Services.
4. Changes to Statements of Work
4.1 The Customer may request that a change to the Services or Deliverables be made at any time prior to completion of the Services specified in a SOW (Change Request).
4.2 Unless otherwise specified in the relevant Statement of Work, all Change Requests must be made via one of the following mechanisms:
4.2.1 where the Change Request will result in increase in the Fees payable or delay in the completion of the Services, the parties must agree in writing, detailing the changes and the effect on the costs and timing of completion;
4.2.2 an Order; or
4.2.3 the Customer raises a Change Request in the Console or through their account.
4.3 ITMS will notify the Customer in writing within 5 days of receipt of the Change Request whether it:
4.3.1 approves the Change Request, in which case either:
(a) if the Change Request has been submitted as an Order or is made via the Console or through their account, ITMS will accept the Change Request; or
(b) the parties will execute a document to vary the terms of the Supply Contract or any applicable Statement of Work to give effect to the Change Request; or
4.3.2 rejects the Change request, in which case ITMS may, where appropriate, make professional recommendations in respect of the Change Request (Recommendations) and request the Customer to accept Recommendations in writing. Where the Customer:
(a) accepts the Recommendations in writing, then the parties will execute a document to terms of the Supply Contract or any applicable Statement of Work to give effect to the Change Request; or
(b) rejects the Recommendations and elects to resubmit an amended Change Request, then the Customer must follow the requirements set out in clause 4.2.
4.4 If ITMS does not notify the Customer within the timeframe specified in clause 4.3 above, ITMS is deemed to have rejected the Change Request.
4.5 The document referred to in clause 4.3.1 must be executed by each party in order to be binding on the parties.
5. Customer Premises and Equipment
ITMS will comply with:
5.2.1 the reasonable Customer policies and procedures applicable to access to the Customer’s premises or Customer Equipment, including all occupational health and safety related policies and all confidentiality and security related policies, provided such policies have been provided to ITMS in writing before ITMS accesses the premises or Customer Equipment; and
5.2.2 any reasonable direction of any authorised representative of the Customer in relation to such policies.
Unless otherwise agreed by the parties in writing in the applicable Statement of Work, the Customer is responsible, at its cost, for obtaining any approvals or licences that are necessary or required by any contract or Law for the performance of the Services under the Supply Contract.
The term ‘access’ in this clause 5 includes access by any means including technology.