1         Introduction

1.1     Background of the agreement

This document outlines the basic terms on which Mycelium IT provides managed services to customers. They apply to every service Mycelium IT supplies, and are called ‘core terms’.

1.2   Parties involved

“Mycelium”, “we”, “us”, “our” means Mycelium IT (AU) Pty Limited or, if specified otherwise in a statement of work or services schedule, a related company of Mycelium.

“You” or “your” means you as the customer in the agreement between you and us that is formed as described below.

1.3   Definitions and interpretation

A ‘service’ means any goods or service that we offer or supply.  Each service may be briefly identified by its ‘service description’.

1.3.1           Managed Services

Mycelium manage an agreed scope of your IT environments and associated components (IT Environments and Components). Some of your IT environments and associated components may be hosted by us as part of Mycelium Hosting and Connectivity Services.

In addition to the terms set out in this section, service specific details for each component of your Mycelium Managed Service are set out in:

(a)      the Managed Service Description(s) (MSD(s)); and

(b)      where you purchase Mycelium Hosting and Connectivity Service, the Service Description (SD(s))

attached to your Mycelium Managed Services Invoice.

Unless otherwise stated all Mycelium Managed Services are delivered remotely.

The features and functionality of Mycelium Managed Services are dependent on the capabilities of the IT Environment and Components being managed and the ability of our systems to connect to the IT Environment and Components to obtain information.

2      Scope of services

We provide a variety of IT management and support services that are customised to suit the requirements of our clients. These services consist of, among other things, active network supervision, periodic system upkeep, prompt software upgrades, reliable helpdesk assistance, and strong cybersecurity precautions.

More information about the particulars and features of these services are outlined in your Service Order, which is an essential component of this contract.

2.1   Service delivery

Mycelium, acting in accordance with industry best practices and standards, shall deliver the agreed-upon services to Clients. Such service provision shall be carried out with due diligence, competence, and professionalism. Delivery methods may include remote assistance, on-site visits, or a combination thereof, as prescribed by the nature and exigencies of the services. Mycelium shall offer services within the target service levels, response times, and performance metrics stipulated in the Service Order, thereby ensuring consistent and reliable support. Any deviations will be communicated to Clients, along with proposed remedial actions and timelines for resolution. Mycelium reserves the right to engage subcontractors or third-party providers, subject to the Client's prior consent, to assist in fulfilling its obligations under this Agreement, provided that such engagement does not compromise the quality or security of the services rendered.

2.2Ancillary services

Ancillary services refer to additional offerings provided by Mycelium to support the core managed services. These supplementary services may include project management, consultancy, training, and advisory services aimed at enhancing client's IT infrastructure and operational efficiency.

2.3Managed service components

Service components break down the comprehensive suite of Managed Services into distinct modules or elements. You may be receiving one or more service components (listed below) as per your service order.

MYCELIUM Managed Service components include:

·         service configuration management

·         monitoring and event management

·         incident management

·         problem management

·         change enablement

·         release management

·         deployment management

·         service level management

·         relationship management

·         third party network services

·         hosting connectivity services.

The following subsections describe the MYCELIUM delivery approach for each of these components.

2.3.1         Service configuration management

Service configuration management involves the systematic management and control of configuration items within an IT service, ensuring accurate documentation, version control, and alignment with service requirements and objectives. It aims to maintain the integrity and consistency of service configurations throughout their lifecycle.

Mycelium strives to provide reliable and updated information about service configuration whenever it is required. If you change any part of your environments that might affect any Mycelium Managed Services that we offer, you need to make sure that you give us all the updates for Service Configuration Management. If you fail to do this, you may incur additional charges for activity that is outside the scope.

2.3.2       IT monitoring and support

IT monitoring and support encompasses the surveillance of IT systems, networks, and infrastructure to swiftly identify and resolve issues, ensuring optimal performance and availability. This proactive approach involves troubleshooting and incident resolution to minimise downtime and uphold IT operations stability.

We provide essential monitoring and support tools for installation in your infrastructure, enabling remote monitoring of managed IT environments and components. The monitoring tool securely communicates with our central system, delivering vital system availability, performance, and capacity data to our Managed Services Team. Through custom filters, events are generated based on predetermined rules and thresholds, either managed automatically by our Service Management System or assessed by our team for potential incident creation.

Our monitoring tool processes alerts and integrates built-in call-home features to generate automated alerts and tickets within the Service Management System, unless specified otherwise in the MSD. We also conduct capacity and performance management activities, monitoring key performance indicators (KPIs) like CPU utilisation, memory usage, disk I/O, and network bandwidth to identify bottlenecks and constraints. Historical performance data and trend analysis aid in forecasting future capacity needs and scalability planning.

Our 24 x 7 x 365 monitoring includes additional support for managing any P1 or P2 events, with incident investigations determined in collaboration with you, considering both business and non-business hours. The specifics of monitoring, as part of our Monitoring and Event Management services, are elaborated in the MSD(s) within the service order, subject to the capabilities of managed IT environments and components.

We commit to maintaining the monitoring tool, handling patching, licensing, and ongoing maintenance as per our procedures. Each event detected by the monitoring tool undergoes thorough processing and analysis to gauge its significance and impact on the IT environment. Alerts or notifications are then generated based on predefined rules and thresholds, promptly informing our Managed Services Team of any issues or potential problems requiring attention.

2.3.3       Incident Management

Incident Management is the process of efficiently and effectively responding to and resolving unplanned disruptions or incidents in IT services. This involved the identification, logging, categorisation, prioritisation, investigation, diagnosis, resolution, and closure of incidents, aiming to restore normal service operation as quickly as possible and mitigate adverse effects on business activities.

To support with categorisation at MYCELIUM, all new Incidents will undergo an initial assessment of impact and urgency to determine the priority level. We will try to determine the number of users and/or systems affected and establish the impact to your managed IT Environments and Components. If a common position on the priority of the Incident cannot be agreed upon, your requested status will be used until an agreed priority status is met.

2.3.4       Problem Management

As part of our managed services agreement, we take proactive steps to manage and resolve IT issues efficiently. A problem is defined as underlying cause or root cause of one or more incidents within an IT service. It represents an issue that has not yet been identified or resolved, potentially leading to recurring incidents or disruptions.

If any problems occur, MYCELIUM will investigate the root causes and apply effective solutions to ensure minimal disruption to your business operations. Our focus is on maintaining the reliability of your IT systems, and we continuously refine our processes to deliver optimal service.

2.3.5       Service Request Management

A service request is defined as any formal inquiry or demand made by you the Client to us the MSP for the provision of services, inclusive of system changes, enhancements, or modifications. The delineation of each element is clearly outlined within the Service Level Agreement (SLA) for transparency and understanding. Upon request, we shall share information regarding service availability and the requisite procedures for soliciting these services. In instances where a service request necessitates a system change, enhancement, or modification, we shall adhere to the conditions as delineated in the SLA. Any deviations from standard procedures shall be subject to prior written approval. Service request credits may be granted at the discretion of MYCELIUM on a case-by-case basis, contingent upon review of the nature and scope of the requested services.

2.3.6       Change management

Change management is a structured approach to managing and controlling changes to IT services, infrastructure, and systems in your organisation. Change Management encompasses processes for requesting, evaluating, approving, implementing, and reviewing changes to ensure that they are carried out in a controlled and systematic manner implemented to ensure minimal disruption and maximum benefit to your business operations.

As part of our managed services, we will facilitate change enablement activities by:

·         Establishing a change management process to assess and prioritise proposed changes based on their impact and urgency.

·         Providing change advisory services to consider the proposed changes, assess potential risks, and make recommendations for approval or rejection.

·         Coordinate with relevant stakeholders to communicate planned changes, obtain necessary approvals, and implement changes in a controlled manner.

·         Conducting post-implementation debriefs to discuss the success of changes, identify any issues or areas for improvement, and incorporate lessons learned into future change initiatives.

In addition, we require that internal client approvals are efficiently facilitated by the client project lead to ensure timely progression within established timelines.

2.3.7       Service Level Management

Service level management is our MYCELIUM process of ensuring that service level agreements (SLAs) are met or surpassed according to the agreed-upon standards. As part of our managed services, we will handle service level management activities by:

·         Working with you to set clear and measurable SLAs that match your business goals and service needs.

·         Setting up key performance indicators (KPIs) and service level goals for each service or service component, including metrics like uptime, response time, and resolution time.

·         Using monitoring and reporting tools to measure service performance against SLA goals and detect any gaps or areas for improvement.

·         Holding regular service reviews and performance reviews with you to evaluate SLA performance, discuss service quality issues, and find ways to improve service.

·         Offering proactive service management and continuous service improvement actions to increase service quality, reliability, and customer satisfaction over time.

Unless otherwise stated these service levels are a target noting the service desk may have reduced capacity over public holidays and is not available after hours unless in the event of a P1 or P2 (as identified in IT monitoring and support).

2.3.8       Account Management

Account management is how we work with you as the client to build and maintaining positive, collaborative relationships to understand your business needs, expectations, and concerns and ensure the successful delivery of managed services. As part of our managed services, we will manage relationship management activities by:

·         Assigning dedicated business development managers to serve as the primary point of contact for clients and facilitate effective communication and collaboration.

·         Conducting regular meetings and check-ins with clients to review service performance, discuss upcoming initiatives, and address any issues or concerns.

·         Proactively identifying opportunities to add value and deliver additional services or solutions that align with clients' strategic objectives and business priorities.

·         Resolving conflicts or disputes promptly and professionally, seeking mutually beneficial resolutions that preserve the integrity of the client-provider relationship and foster long-term partnership and loyalty.

2.3.9      Wide Area Network Services

Connectivity Agreements

The Client acknowledges and agrees to abide by the terms and conditions set forth in any connectivity agreements (e.g. the National Broadband Network (NBN) Connectivity Agreement) entered between the Managed Services Provider (MSP) and any relevant third-party network service. The Client shall adhere to all obligations and requirements stipulated therein, including but not limited to payment of fees, compliance with usage policies, and adherence to service levels.

Payment Obligations

The Client shall be responsible for the timely payment of all fees, charges, and expenses associated with the provision of NBN connectivity services, as outlined in the applicable Network Agreement. Payment shall be made in accordance with the payment terms specified therein and shall not be contingent upon the Client's satisfaction with other services rendered under this Agreement.

Compliance with third party terms

The Client shall ensure compliance with all terms, conditions, and policies established by the third-party service provider, including those related to acceptable use, fair usage, data usage limits, and service restrictions. Any breach of the Third-Party Agreement by the Client shall constitute a breach of this Agreement, and the MSP reserves the right to take appropriate action, including termination of services, in accordance with the terms herein.

Indemnification

The Client shall indemnify, defend, and hold harmless the MSP from and against any claims, damages, losses, liabilities, costs, and expenses (including legal fees) arising out of or relating to the Client's use of the third-party connectivity services, including but not limited to any violations of the Agreement, infringement of third-party rights, or unauthorised use of the third-party network.

Termination of third-party network services

In the event of termination or suspension of third-party connectivity services by the third-party service provider due to the Client's breach of the Agreement, the Client shall remain liable for any outstanding fees, charges, or penalties incurred as a result of such termination or suspension, in addition to any other remedies available to the MSP under this Agreement or applicable law.

2.3.10    Hosting and Connectivity Services

Restrictions and limitations

Mycelium may impose certain restrictions and limitations on the use of hosting and connectivity services to ensure optimal performance, security, and compliance. These may include:

·         Bandwidth and data transfer limits to prevent network congestion and ensure fair usage.

·         Storage capacity limits to manage resource allocation and prevent over utilisation.

·         Prohibitions on hosting illegal, infringing, or harmful content to maintain service integrity and comply with legal requirements.

·         Usage policies outlining acceptable behaviour and usage patterns to protect against abuse and ensure a positive user experience.

Agreed data locations

The parties shall agree upon specific data storage and processing locations to ensure compliance with data protection laws and regulations and meet performance requirements. Factors to consider may include:

·         Legal and regulatory requirements governing data residency and sovereignty.

·         Performance considerations such as latency, proximity to users, and network connectivity.

·         Security and privacy requirements to safeguard sensitive data and mitigate risks associated with data transfers and storage.

Scheduled Maintenance

MYCELIUM will conduct scheduled maintenance activities to ensure the ongoing reliability, security, and performance of hosting and connectivity services. This includes:

·         Performing regular software updates, patches, and upgrades to address security vulnerabilities and improve service functionality.

·         Conducting proactive hardware maintenance and upgrades to maintain infrastructure performance and reliability.

·         Optimising system configurations and performance settings to enhance service efficiency and responsiveness.

·         Scheduling maintenance windows during off-peak hours to minimise disruption to client operations, with advance notice provided to clients for planned maintenance activities.

Disengagement services

In the event of termination or disengagement from hosting and connectivity services, Mycelium shall provide disengagement services to facilitate a smooth transition.

In the event of non-payment your service may be tethered or disconnected. A service reactivation charge may also be applied.

This includes:

·         Assisting with data migration, including exporting data and configurations to compatible formats and providing guidance on data transfer methods.

·         Furnishing documentation and resources to aid in the transition process, such as network diagrams, configuration files, and user guides.

·         Coordinating with the client's new provider or internal IT team to ensure a seamless handover of responsibilities and services.

·         Securely decommissioning services and deleting client data from hosting infrastructure in compliance with data protection laws and regulations, while ensuring data integrity and confidentiality are maintained throughout the process.

3      Responsibilities and Obligations

3.1    Responsibilities of the Managed Services Provider 

As your Managed Services Provider, our foremost responsibility is to ensure seamless and reliable delivery of services that meet your business needs. We are committed to proactively monitoring and maintaining your IT infrastructure, promptly addressing any issues or concerns that may arise. Our team will implement security measures to protect your data and systems from threats, including regular backups, encryption protocols, and vulnerability assessments. Additionally, we will provide ongoing support and guidance to optimise the performance and efficiency of your IT environment.

3.2Responsibilities of the Client

Your participation and collaboration are vital for the success of our partnership as our valued client. We depend on you to give us prompt access to the necessary systems and resources, and accurate information about your business needs and goals. It is important you:

·         Adhere to the agreed schedules for system maintenance, updates, and testing to reduce service interruptions.

·         Communicate changes or additions to the MYCELIUM managed environment as this may affect SLA compliance.

·         Advise MYCELIUM of issues or concerns to help us solve issues quickly and ensure the ongoing smooth operation of your IT infrastructure.

·         Maintain local security as aligned with best practices and policies that our team provides to help protect your data and keep your systems secure in the cloud environment.

3.3            Transition In Services and Disengagement

We will work closely with you to ensure a smooth transition during the onboarding process and any subsequent disengagement from our services. We will provide support and assistance during the transition period, including knowledge transfer, training, and documentation.

Upon disengagement, we will facilitate the transfer of assets, data, and responsibilities in accordance with the terms of the agreement, ensuring minimal disruption to your operations.

Please note, all outstanding payments must be received prior to handover and disengagement from our service.

3.4            Compliance with APRA Regulations

We are committed to complying with all applicable regulations, including those set forth by the Australian Prudential Regulation Authority (APRA). As part of our managed services, we will implement and maintain appropriate controls, policies, and procedures to ensure compliance with APRA regulations.

3.5            Consumer Rights and Warranties

We respect consumer rights and warranties under Australian law and will ensure that our services comply with all relevant consumer protection regulations. We will provide clear and accurate information about our services, including any warranties or guarantees offered, and address any consumer complaints or concerns in a timely and professional manner. Our goal is to ensure a positive and transparent experience for all consumers utilising our services.

4      Payment and Invoicing

4.1   Pricing

·         Our pricing structure is based on the current price list, subject to periodic adjustments.

·         Changes to the price list will be communicated to you in advance, with a clear explanation of the modifications.

·         We reserve the right to modify prices due to changes in market conditions, regulatory requirements, or other relevant factors.

·         Pricing for additional services not included in the initial agreement will be negotiated separately, considering factors such as scope, complexity, and resource requirements.

4.2             Charges and Payment Terms

·         Charges for services rendered will be invoiced according to the agreed-upon payment schedule, typically on a monthly or quarterly basis.

·         Payment terms are outlined in the provided quote and typically require payment within a specified number of days from the date of invoice.

·         Late payment may result in penalties, tethering or suspension of services until payment is received in full.  

·         In the event of a dispute regarding charges, either party may submit a written notice outlining the nature of the dispute to the other party. Subsequently, both parties shall endeavor to resolve the dispute amicably through negotiation and mediation within a specified timeframe.

4.3             Annual Rate Review

•                     An annual rate review will be conducted to assess the appropriateness of current pricing in relation to market conditions and service quality.

•                     Both parties will have the opportunity to discuss any proposed changes to pricing during the annual review process.

•                     Changes resulting from the annual rate review will be implemented with advance notice to ensure transparency and allow for appropriate budgetary planning.

4.4            Cost of Third-Party Goods and Services

•                     In addition to our core services, there may be costs associated with third-party goods and services necessary for service delivery.

•                     These costs will be clearly outlined in the service order and may include expenses such as software licenses, hardware purchases, or subcontractor fees.

•                     Any changes in the cost of third-party goods and services will be communicated to you in a timely manner, with an explanation of the reasons for the adjustment.

•                     We will work collaboratively with you to identify cost-saving opportunities and optimise the use of third-party resources wherever possible.

5      Intellectual Property and Confidentiality

5.1   Ownership and Usage of Intellectual Property

We retain ownership of any pre-existing intellectual property used in delivering the managed services, including proprietary software, tools, and methodologies. Any new intellectual property developed during providing the services shall be jointly owned by both parties, with each party granted a non-exclusive, royalty-free license to use such intellectual property for the duration of the agreement. This ensures that both parties can continue to benefit from the intellectual property created during our engagement.

5.2             Confidentiality and Data Protection

We are committed to maintaining the confidentiality and security of your confidential information and data. We will implement appropriate technical and organisational measures to protect against unauthorised access, disclosure, or use of such information. Any personal data processed in connection with the provision of managed services shall be handled in accordance with applicable data protection laws and regulations. We will not disclose your confidential information to third parties without your prior written consent, except as required by law or to fulfill our obligations under this agreement.

5.3             Take Down Notices

In the event that we receive a notice alleging that any content or material provided by you infringes upon the rights of a third party, we will promptly notify you of such notice and may temporarily suspend access to the infringing content or material pending resolution of the issue. We will cooperate with you in responding to any such notices and take reasonable steps to address the alleged infringement, including removing or disabling access to the infringing content or material if necessary.

5.4            Business Continuity Management

We have implemented a business continuity management plan to ensure the uninterrupted provision of managed services in the event of a disruption or disaster. This plan includes measures such as regular backups of critical data, redundant infrastructure, and procedures for quickly restoring services in the event of an outage. We regularly test and update our business continuity plan to ensure its effectiveness and reliability, providing you with peace of mind knowing that your services will remain operational even in challenging circumstances.

6     Liability and Indemnity

6.1   Limitation of Liability

In no event shall either party be liable to the other for any indirect, incidental, consequential, special, punitive, or exemplary damages, including but not limited to loss of profits, revenue, data, or goodwill, arising out of or in connection with this agreement, regardless of the form of action, whether in contract, tort (including negligence), strict liability, or otherwise, even if advised of the possibility of such damages.

The total liability of either party under this agreement shall not exceed the total amount paid or payable by the client under this agreement during the twelve (12) months immediately preceding the date on which the claim arose.

6.2            Indemnification

You agree to indemnify, defend, and hold us harmless from and against any claims, damages, liabilities, costs, and expenses, including reasonable legal fees, arising from any breach of this agreement, negligence, or willful misconduct on your part. This indemnification obligation extends to third-party claims and is subject to the terms and conditions of this agreement. It provides assurance that you will bear the consequences of your actions, while we continue to deliver our services with integrity and professionalism.

6.3            Insurance Requirements

We maintain comprehensive insurance coverage, including but not limited to professional liability insurance, general liability insurance, and cyber liability insurance, with policy limits and terms acceptable to you. These insurance policies are maintained throughout the term of our agreement and name you as an additional insured. Compliance with these insurance requirements is a material condition of our agreement, ensuring that both parties are adequately protected from potential risks and liabilities associated with the provision and use of our managed services.

7      Termination and Dispute Resolution

7.1    Term and Termination

Either Party may terminate their agreement no less than 60 days prior written notice to the other Party, for any reason or no reason. Termination shall not relieve either Party of any obligations accrued prior to termination.

Automatic renewal of the contract and the process for renegotiating terms at the end of each term.

7.2  Consequences of Termination

Upon termination of this Agreement for any reason, the following shall occur:

a) The Managed Services Provider shall cease providing all services under this Agreement.

b) The Client shall promptly settle any outstanding invoices or payments owed to the Managed Services Provider for services rendered up to the effective date of termination.

c) Any licenses, rights, or privileges granted under this Agreement shall terminate, and the Client shall cease using any materials, software, or intellectual property provided by the Managed Services Provider.

7.3  Dispute Resolution Mechanisms

In the event of any dispute arising out of or relating to this Agreement, the Parties shall endeavor to resolve such dispute amicably through good faith negotiations. If the Parties are unable to resolve the dispute within 30 days after written notice of the dispute, either Party may initiate formal mediation proceedings. If mediation is unsuccessful, the Parties agree to submit the dispute to binding arbitration, with the arbitration conducted in Victoria, Australia.

7.4             Governing Law and Jurisdiction

This Agreement shall be governed by and construed in accordance with the laws of Australia, without regard to its conflicts of law principles. Any legal action or proceeding arising out of or relating to this Agreement shall be brought exclusively in the courts of Australia, and the Parties hereby consent to the jurisdiction of such courts for such purposes.

8      General Provisions

8.1   Notices

Any notices, requests, demands, or other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given if delivered by hand, registered mail, or email to the Parties at their respective addresses specified herein or as otherwise notified in writing.

8.2             Force Majeure

Neither Party shall be liable for any delay or failure to perform its obligations under this Agreement to the extent that such delay or failure is caused by circumstances beyond its reasonable control, including but not limited to acts of God, natural disasters, war, terrorism, strikes, or governmental actions.

8.3             Severability

If any provision of this Agreement is held to be invalid, illegal, or unenforceable under applicable law, such provision shall be deemed modified to the minimum extent necessary to make it valid, legal, and enforceable. If such modification is not possible, the provision shall be severed, and the remaining provisions of this Agreement shall remain in full force and effect.

8.4            Assignment

Neither Party may assign, transfer, or sublicense any of its rights or obligations under this Agreement without the prior written consent of the other Party, except that either Party may assign this Agreement to its affiliate or successor in connection with a merger, acquisition, or sale of all or substantially all of its assets.

8.5             Entire agreement

This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions, whether oral or written, between the Parties regarding such subject matter.

8.6            Amendments and Waivers

No amendment or modification of this Agreement shall be valid or binding unless in writing and duly executed by both Parties. The failure of either Party to enforce any provision of this Agreement shall not constitute a waiver of such provision or any other provision of this Agreement.

8.7             Interpretation and Execution

This Agreement shall be interpreted and construed fairly and in accordance with its plain meaning, without any presumption or bias in favour of or against either Party. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.