Toshiba Managed IT Services Agreement Terms

In your signed Agreement, below sets out the terms and conditions in which the CUSTOMER has engaged TOSHIBA to provide the Managed IT Services.

Definitions

In this Agreement the following words shall have the corresponding meanings:
1. “Agreement” means
  - “Managed Service Agreement” or “Managed Print Services Agreement”; and
  - “Sales Order” and “Service Agreement” or “MPS Service Agreement”; and
  - “Annexure F”;
2. “Annexure F” means the annexure attached to this Agreement;
3. “Confidential Information” means all information, documents, computer disks, accounts, know-how, plans, drawings, specifications, designs, customer lists, supplier lists, ideas, trade secrets and all other information which a Party is informed is confidential or should reasonably conclude is confidential due to its nature or content;
4. “Consumer Price Index” means the consumer price index for the immediately preceding 12 months published by the Australian Government statistician.
5. “Fees” means our fees included in the Agreement for the service in Annexure F plus any applicable GST;
6. “GST” means any goods and services tax levied under the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
7. “Intellectual Property Rights” means all intellectual property rights of any sort whatsoever, including without limitation copyright, patents, database related rights, design right, trade marks, service marks, in each case whether registered or unregistered, whether currently existing or which in the future come into existence anywhere in the world whether now known or unknown and all similar property rights including those subsisting (in any part of the world) in inventions, designs, drawings, performances, computer programs, Confidential Information, trade secrets, business names, goodwill and the style and presentation of goods or services and applications for protection of any of the above rights;
8. “Notice” means a written notice, consent, approval, direction, order or other communication;
9. “Party” means a party to this Agreement;
10. “Services” means the information technology business services and solutions that Toshiba will provide You as set out in the Annexure F and any goods provided by Toshiba in providing the Services.
11. “Toshiba” means Toshiba (Australia) Pty Ltd and “Customer” refers to the client or customer on signed Agreement.
Commencement of Services
1. The Agreement shall commence on the Commencement Date or a date as communicated by Toshiba, and will continue for the duration of the signed term unless it is terminated earlier in accordance with the terms of the Agreement.
Our obligations and rights
1. In accordance with the terms and conditions of this Agreement we will:
  1. provide Customer with the Services; and
  2. subject to 4, provide you with tax invoices for our Fees as and when we consider appropriate, but not more frequently than once every month or as agreed in writing by Customer and Toshiba.
2. Toshiba may:
  1. immediately suspend the Services in the event the Customer fails to pay the Fees as and when they fall due;
  2. increase Our Fees annually on the anniversary of the Commencement Date in accordance with variations to the Consumer Price Index;
  3. After providing notice to the client increase Our Fees at our discretion in direct proportion to the increased cost in the event that the cost to Toshiba of providing the Services increases because of any 3^rd Party cost increases, new or modified computer or equipment or software used by Customer or because Customer change location or require Toshiba to work from multiple locations.
3. Toshiba will not be responsible for the purchase, or relocation, by the Customer of computer and related equipment, software or consumables to enable Toshiba to provide the Services.
4. Where we purchase computer and related equipment, software or consumables on Customers behalf, at Customers request, Customer agree to immediately reimburse Toshiba for the amount incurred in the purchase upon provision of invoice, or alternatively Toshiba may offer an option to finance the equipment.
5. Toshiba will not be responsible for any repairs, or the rectification of defects or errors, caused by:
  1. computer and related equipment or software used by Customer and not approved by Toshiba in writing for use in connection with the Services;
  2. any unauthorized modification of Our Services, or any software provided as part of the Services;
  3. malicious operator damage;
  4. Services, computer and related equipment or software that are the subject of a warranty under another agreement;
  5. Main supply electrical surges, lightning strikes, neglect or misuse by Customer or unauthorized or unqualified persons and water damage.
  6. Toshiba will lease with vendor on behalf of the client to facilitate warty when equipment was purchased via Toshiba.
Performance by Affiliates or Subcontractors.

Customer agrees, acknowledges, and understands that performance of the Services may be accomplished by corporate affiliates of Toshiba and that Toshiba may, from time to time, subcontract any or all of the Services to trusted third-party providers. For purposes of this Agreement, performance of the Services by such affiliate or third-party provider shall be deemed performance by Toshiba itself.
Product Support.

Toshiba will provide Support to Customer pursuant to its standard support plan then in effect. Customer agrees to provide all information reasonably requested by Toshiba that Toshiba deems necessary for Support. At Toshiba’s sole discretion, Support may be provided by Toshiba, a Toshiba affiliate, or an agent of Toshiba or its affiliate.
Change or Discontinuance of IT Services.

Toshiba may, in its sole discretion, change, modify, or discontinue a service at any time, either in whole or in part. Toshiba may release alternate version of a service and Customer understands and agrees that Customer will use or migrate to the most recent version of that service. In the event of a change, new version, discontinuance, or end-of-life of a service, Toshiba will provide Customer with reasonable prior written notice. In that event, Customer’s rights will be limited to those specified in this Agreement.
Assignment

Toshiba may assign this Agreement and take all steps necessary to effectuate or complete such assignment, including transfer Backup Data, Account Data, Support Data, and/or Relationship Data, and other information in a manner consistent with law and the terms of this Agreement. Customer may not assign this Agreement, either voluntarily or by operation of law, or otherwise transfer its rights and obligations under this Agreement except with the prior written consent of Toshiba, which consent will not be unreasonably withheld, and any attempted assignment, delegation or transfer without such consent shall be void. For the purposes of this provision, a change of control associated with Customer shall be deemed an assignment, regardless of whether such change of control would otherwise be deemed a transfer or assignment under applicable law. A change of control includes a transaction in which Customer becomes a subsidiary to another entity or the sale, exchange, or other disposition of fifty percent (50%) or more of Customer’s outstanding voting equity securities to a single person or group of persons under common control. A change in control of Toshiba, however, shall not be deemed an assignment. This Agreement shall bind and inure to the benefit of the Parties’ successors and permitted assigns.
Fees and Charges

On or around the 10th of each Month, Toshiba will provide an Invoice for the agreed Managed Service Fee as per the Agreement. Customer agrees to pay the Service Fees and other fees and charges included on the statement and that payment of these fees is a condition of its use of the IT Products and Services. The Invoice will be provided electronically by email, to the nominated email address.
Customer Obligations
1. Customer will:
Confidential Information

All Confidential Information exchanged between the Parties under this Agreement or during the negotiations preceding this Agreement is confidential to the disclosing Party and may not be disclosed by the recipient to any other person except:

to employees, legal advisers, auditors and other consultants of the recipient or its related bodies corporate requiring the Confidential Information for the purposes of this Agreement;
with the written consent of the party who supplied the Confidential Information, which consent may be given or withheld with its absolute discretion;
if the information is, at the date this Agreement is entered into, lawfully in the possession of the recipient of the Confidential Information through sources other than the party who supplied the Confidential Information;
if required by law or the rules of a stock exchange;
if strictly and necessarily required in connection with legal proceedings relating to this Agreement; or
if the Confidential Information is generally and publicly available other than as a result of a breach of confidence by the person receiving the information.

Both Parties acknowledge that they will take all action necessary to maintain the confidential nature of the Confidential Information provided to them by the other Party.
Each Party has the right to equitable relief against the other Party, in addition to any other rights available under this Agreement or at law, if the other Party breaches their obligation of confidentiality.

Intellectual Property

The Parties agree that:

all Intellectual Property Rights that are used to provide the Services belong to Toshiba;
all Intellectual Property Rights created or modified in providing the Services belong to Toshiba;
all other Intellectual Property Rights shall remain the property of its respective owners;
Toshiba may use Customers Intellectual Property to the extent and duration necessary to provide the Services;
a Party must only use the other Party’s Intellectual Property Rights in a manner consistent with this Agreement; and
a Party must notify the other Party within five days of its knowledge or suspicion of an infringement of the other party’s Intellectual Property.

Disputes

Any complaint or dispute relating to this Agreement or the Services shall initially and immediately be communicated by the Party with the complaint or dispute in writing to the other party.
The Parties must use reasonable attempts to resolve any complain or dispute before either Party may commence legal proceedings against the other Party to resolve the dispute.

Termination

Either Party may terminate this Agreement by giving 90 days written notice to the other Party. If accompanied with financed equipment, the finance portion and associated fees will continue for the remainder of the signed term.
Either Party may terminate this Agreement by giving 30 days written notice to the other Party if that other Party is in breach of this Agreement and the breach cannot be remedied, or has not been remedied, within 14 days of the written notice to the Party in breach of this Agreement saved for any finance payments.
Upon termination of this Agreement for any reason:

Customer shall immediately pay Toshiba all amounts properly due and payable for any of the Services undertaken by Toshiba under this Agreement up to the date of termination;
Customer will be solely responsible for arranging an alternative service provider for the Services and notifying any persons affected by the termination of this Agreement;
Customer shall immediately return to Toshiba, or destroy at Our written direction, Our Confidential Information and Intellectual Property; and
Toshiba shall immediately return to Customer, or destroy at Customers written direction, Customers Confidential Information and Intellectual Property.

Our Liability

Under applicable State, Territory and Commonwealth Law (including, without limitation the Competition and Consumer Act 2010 (Cth)“CCA”), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
Toshiba acknowledge that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, We make no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods or Services. Our liability in respect of these warranties is limited to the fullest extent permitted by law.
If Customer is a consumer within the meaning of the CCA, Our liability is limited to the extent permitted by section 64A of Schedule 2 of the CCA.
To the extent permitted by law, our liability for anything done, or failed to be done, in connection with the Services shall be limited to:

in the case of a liability arising out of goods - the replacement or repair of the goods, or the payment to Customer of the cost of the replacement or repair of the goods.
in the case of a liability arising out of services - the resupply of the services or the payment to Customer of the cost of the resupply of the Services.

Where Toshiba liability may not be limited as described above then, except in relation to liability for personal injury, property damage or an infringement of rights in Confidential Information or Intellectual Property, Toshiba liability in damages (including special, indirect or consequential damages), expenses and costs in respect of any act or omission by Toshiba in connection with Toshiba’s obligations under this Agreement will not exceed the amount for which Toshiba has invoiced Customer in respect of that part of the Services giving rise to the relevant liability.
In no circumstances will we be liable for any loss of actual or prospective profits, opportunities or productivity, wasted overheads or expenses, machine work, labour changes, loss of or corruption of data or software or recovery of data.

Limitation on Warranties. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE PRODUCTS AND SERVICES ARE PROVIDED AND LICENSED “AS IS”, “WHERE IS”, “AS AVAILABLE”, AND WITH ALL FAULTS. CUSTOMER AGREES THAT ITS USE OF THE PRODUCTS OR SERVICES IS AT ITS OWN RISK. THERE ARE NO WARRANTIES, REPRESENTATIONS, OR CONDITIONS, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF LAW, OR OTHERWISE, REGARDING THE CLOUD PRODUCTS, THE SERVICES OR ANY TOSHIBA PRODUCT OR SERVICE PROVIDED UNDER THIS AGREEMENT OR IN CONNECTION WITH IT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TOSHIBA DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY (IF ANY) WARRANTIES OR CONDITIONS OF, OR RELATED TO: MERCHANTABILITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, NON-INFRINGEMENT, SERVICE UP-TIME, SERVICE DOWN-TIME, ACCURACY OR COMPLETENESS OF RESPONSES, WORKMANLIKE EFFORT, AND LACK OF NEGLIGENCE. TOSHIBA MAKES NO WARRANTY THAT THE PRODUCTS OR SERVICES WILL MEET CUSTOMER’S REQUIREMENTS; THAT CUSTOMER’S USE OF THE PRODUCTS OR SERVICES WILL BE TIMELY, UNINTERRUPTED, ERROR-FREE, OR SECURE; OR THAT ANY DEFECTS OR ERRORS IN THE PRODUCTS OR SERVICES WILL BE CORRECTED. CUSTOMER UNDERSTANDS THAT THE PRODUCTS AND SERVICES INVOLVE THE TRANSFER OF DATA OVER THE INTERNET, THAT TOSHIBA DOES NOT OPERATE OR CONTROL THE INTERNET, AND THAT THE DATA MAY BE SUBJECT TO MALWARE AND COMPUTER CONTAMINANTS SUCH AS VIRUSES, WORMS, AND TROJAN HORSES, AS WELL AS ATTEMPTS BY UNAUTHORIZED PERSONS, SUCH AS HACKERS, TO ACCESS, MISAPPROPRIATE OR DAMAGE THE DATA. CUSTOMER UNDERSTANDS THAT TOSHIBA IS NOT RESPONSIBLE FOR SUCH ACTIVITIES. NO AGREEMENTS VARYING OR EXTENDING THE FOREGOING WARRANTIES OR LIMITATIONS WILL BE BINDING UNLESS IN WRITING AND ACCEPTED BY TOSHIBA. CUSTOMER ALSO UNDERSTANDS AND AGREES THAT THE PRODUCTS AND SERVICES CONTAIN TECHNOLOGY THAT IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED, INTENDED OR SUITABLE FOR USE IN ENVIRONMENTS OR APPLICATIONS IN WHICH THE FAILURE OF THE SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PROPERTY OR ENVIRONMENTAL DAMAGE. AU CONSUMER GUARANTEES LAW: IN THE EVENT THAT ANY SUPPLY OF GOODS OR SERVICES UNDER THIS AGREEMENT CONSTITUTES A SUPPLY OF GOODS OR SERVICES TO A CONSUMER AS DEFINED IN SCHEDULE 2 TO THE COMPETITION AND CONSUMER ACT 2010 (CTH) (AUSTRALIAN CONSUMER LAW), AS AMENDED, OR OTHER RELEVANT AUSTRALIAN STATE OR TERRITORY LEGISLATION, OR THE CONSUMER GUARANTEES ACT 1993 (NZ) (COLLECTIVELY, THE “ACTS”), NOTHING CONTAINED IN THIS AGREEMENT EXCLUDES, RESTRICTS, OR MODIFIES ANY CONDITION, WARRANTY OR OTHER OBLIGATION IN RELATION TO THIS AGREEMENT AND THE GOODS AND SERVICES TO BE SUPPLIED UNDER THIS AGREEMENT, WHICH PURSUANT TO THE ACTS OR ANY OF THEM IS APPLICABLE OR IS CONFERRED ON THE RECEIVING PARTY WHERE TO DO SO IS UNLAWFUL. TO THE FULL EXTENT PERMITTED BY LAW, WHERE THE BENEFIT OF ANY SUCH CONDITION, GUARANTEE, WARRANTY, OR OTHER OBLIGATION IS CONFERRED PURSUANT TO ANY OF THE ACTS, TOSHIBA’S SOLE LIABILITY FOR BREACH OF ANY SUCH CONDITIONS, GUARANTEES, WARRANTIES, OR OTHER OBLIGATION, INCLUDING ANY CONSEQUENTIAL LOSS WHICH THE RECEIVING PARTY MAY SUSTAIN OR INCUR, SHALL BE LIMITED (EXCEPT AS OTHER SPECIFICALLY SET FORTH HEREIN) AS FOLLOWS: IN RELATION TO GOODS, TO (A) THE REPLACEMENT OF THE GOODS OR THE SUPPLY OF EQUIVALENT GOODS OR PAYMENT OF THE COST OF REPLACING THE GOODS OR ACQUIRING EQUIVALENT GOODS, OR (B) THE REPAIR OF THE GOODS OR PAYMENT OF THE COST OF HAVING THE GOODS REPAIRED. IN RELATION TO SERVICES, TO (AA) THE SUPPLYING OF THE SERVICES AGAIN, OR (BB) THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN. IN RELATION TO THE FOREGOING LIABILITY LIMITATION ON GOODS AND SERVICES, TOSHIBA SHALL HAVE SOLE AND COMPLETE DISCRETION IN DETERMINING WHICH REMEDY WILL BE PROVIDED.
Limitations on Liability. CUSTOMER UNDERSTANDS AND AGREES THAT TOSHIBA, ITS SUPPLIERS, LICENSORS, DISTRIBUTORS, PARTNERS, AND AFFILIATES WILL NOT BE LIABLE TO CUSTOMER, CUSTOMER’S CUSTOMERS, OR TO OTHER THIRD PARTIES FOR ANY: (A) CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, REVENUES OR OTHER EXPECTED BENEFIT, EVEN IF REASONABLY FORESEEABLE; (B) DAMAGES FOR LOSS OF DATA; (C) DAMAGES FOR BUSINESS INTERRUPTION; OR (D) ANY CONDUCT OF A DISTRIBUTOR OR ANY BREACH OF A DISTRIBUTOR AGREEMENT. THESE LIMITATIONS APPLY EVEN IN THE EVENT OF FAULT, TORT, NEGLIGENCE, MISREPRESENTATION, OR STRICT OR PRODUCT LIABILITY.TOSHIBA’S TOTAL CUMULATIVE LIABILITY, IF ANY LIABILITY, SHALL BE LIMITED TO CUSTOMER’S DIRECT DAMAGES INCURRED IN REASONABLE RELIANCE UPON TOSHIBA UP TO AN AMOUNT NOT TO EXCEED ONE HUNDRED PERCENT (100%) OF THE AMOUNT CUSTOMER HAS PAID TO TOSHIBA UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE DAMAGES ARISING. CUSTOMER ASSUMES ALL RISKS ASSOCIATED WITH USE OF THE CLOUD PRODUCTS AND SERVICES AND IN PROVIDING CLOUD PRODUCTS AND SERVICES TO CUSTOMERS OR OTHER THIRD PARTIES. THE LIMITATIONS IMPOSED BY THIS SECTION AND THE REMEDIES AVAILABLE TO THE PARTIES REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES, THEY ARE A MATERIAL FACTOR IN TOSHIBA’S AGREEMENT TO PROVIDE SERVICES TO CUSTOMER, AND THEY ARE AN ESSENTIAL FACTOR IN ESTABLISHING THE PRICE OF THE CLOUD PRODUCTS AND SERVICES. CUSTOMER RELEASES TOSHIBA FROM ALL LIABILITY IN EXCESS OF THE LIABILITIES THAT ARE LIMITED BY THIS SECTION, INCLUDING WITHOUT LIMITATION ANY CLAIM FOR INDEMNIFICATION OR CONTRIBUTION (WHETHER ARISING UNDER STATUTORY OR COMMON LAW). BECAUSE SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN DAMAGES, SUCH AS INCIDENTAL OR CONSEQUENTIAL DAMAGES, SOME OF THE STATEMENTS IN THIS SECTION MAY NOT APPLY TO CUSTOMER.
Indemnification.

In addition to any indemnification obligations specified elsewhere in this Agreement, Customer agrees to indemnify, defend and hold Toshiba harmless from any and all claims, liabilities, losses, fines, penalties, damages, obligations, expenses (including without limitation reasonable attorneys’ and experts’ fees and costs) and costs arising in connection with any third-party claim, lawsuit, proceeding or other action arising out of or related to:
(a) Customer’s actual or alleged breach of representations, covenants, warranties or obligations under this Agreement; and/or
(b) Customer’s breach, default, or nonperformance under any agreement Customer may have with Customers or other third parties for claims associated with products or services Customer provides or fails to provide to such third parties, its breach of laws or regulations applicable to Customer’s performance of this Agreement or its agreements with Customers or other third parties (a “Third-Party Claim”).

General

The Agreement constitutes the entire agreement between the parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.
No right under the Agreement shall be deemed to be waived except by express notice in writing signed by each Party.
The Agreement cannot be amended or varied except in writing signed by the Parties.
The Agreement is personal to the Parties and, except as provided otherwise, neither Party may assign, transfer or sub-license any of its rights or obligations hereunder without the prior written consent of the other party.
If a provision of the Agreement is invalid or unenforceable in a jurisdiction, it is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability and that fact does not affect the validity or enforceability of that provision in another jurisdiction or the remaining provisions of this Agreement.
The Agreement may be executed in one or more counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement, provided that this Agreement shall be of no force and effect until all counterparts are exchanged.
The Agreement will be governed by and construed according to the law of the Australian Capital Territory and the Parties submit to the jurisdiction of any courts in the Australian Capital Territory having jurisdiction to decide a matter concerning this Agreement.
If covenants or obligations are undertaken or benefits are received under this Agreement by a Party comprising 2 or more persons or a group of parties described by one term by this Agreement, then such covenants, obligations or benefits are undertaken or received by those persons or the persons comprising the group of parties jointly and severally.
If there is a conflict between the elements of the combined Agreement, to the extent of the inconsistency, the terms and conditions of the Agreements will take the following order of precedence:

terms and conditions of the Managed Service Agreement or the Managed Print Services Agreement;
terms and conditions of the Sales Order and Service Agreement or MPS Service Agreement; and
these terms and conditions

Notices given under the Agreement must be:

in writing;
signed by the party giving the Notice; and
transmitted by facsimile or electronic mail to the Notice Address of the person receiving the Notice.

Last modified on 26th April, 2022.

Terms and Conditions