Last updated: 20 July 2020
1.1 These terms. The Customer Managed Service (CMS) is the managed IT engineering service that we provide to customers (CMS Customer or you). These terms (Customer Managed Service Terms or CMS Terms) are part of the Terms and Conditions and apply to you as a user of the CMS. You should read these terms in conjunction with the Master Terms and other applicable documents within the Terms and Conditions.
1.2 Updates. We periodically update the CMS Terms. If we notify you of an update, you will be deemed to have accepted the updated CMS Terms when you next access the Itarmi Platform after being notified.
2.1 Defined terms in these CMS Terms.
Background Checks means certain enquiries relating to an Engineer, including identity, right to work, qualifications and certifications.
CMS Customer Tasks means any agreed tasks, provision of materials, ensuring workplace safety and any preparation to be carried out or procured by or on behalf of the CMS Customer or its agents, and any information to be notified to any party.
CMS Standard means the exercise of reasonable skill and care consistent with industry standards, meeting agreed specifications in relation to Deliverables and not infringing intellectual property rights of a third party.
Deliverables means items specifically identified as deliverables as part of an Assignment.
Milestone means any milestone or measurement agreed in relation to an Assignment.
2.2 Other defined terms. Certain words and expressions in these CMS Terms are defined in the Master Terms.
2.3 Affiliates. In these CMS Terms, as the context requires, any act to be carried by a CMS Customer shall include the procuring of such act by any Affiliates.
3.1 CMS Subscription required. You may not use the CMS without having an active CMS Subscription. These CMS Terms operate in conjunction with your CMS Subscription.
4.1 Assignment terms. You acknowledge and agree that when you confirm an Assignment, you will be bound by the terms set out in the Itarmi Platform (including pricing, location, duration, start time and scope of work), subject to the Terms and Conditions. Only expenses pre-approved by the Customer shall be reimbursed unless otherwise agreed in writing).
4.2 Pricing policies. You acknowledge and agree that the Assignment pricing policy may change periodically (with immediate effect) and it is your responsibility to remain informed of applicable pricing policies. Dynamic pricing may also apply at certain times, such that the price may change while you are browsing. The agreed price of a confirmed Assignment shall not change, unless you change its specifications such that it is deemed to be a new Assignment.
4.3 Completion of Assignment. You will be deemed to have agreed to the satisfactory achievement of a Milestone or completion of an Assignment after two (2) Business Days following such event unless you (acting reasonably and in good faith) provide Itarmi with clear written reasons for not so agreeing.
4.4 Engineer not available. If the assigned Engineer is delayed or cancels your Assignment, we shall use reasonable efforts to promptly re-assign it to another suitably qualified Engineer.
4.5 Changing an Assignment. You acknowledge and agree that if you change any specifications of your Assignment and the assigned Engineer does not accept the updated Assignment:
4.5.1 if the change is less than 24 hours before the start of the original Assignment, you will be liable to pay the original Assignment fee and reasonable expenses incurred before you requested the change
4.5.2 we may use reasonable efforts to re-assign your Assignment to another Engineer but we are not obliged to do so; and
4.5.3 if we re-assign your Assignment, you will also be liable to pay the updated Assignment fee and agreed expenses.
4.6 Cancelling an Assignment. You acknowledge and agree that if you cancel an Assignment less than 24 hours before the start time of the Assignment, you will be liable to pay the Assignment fee and agreed reasonable expenses incurred before you cancelled the Assignment.
4.7 Substitution of Engineer. You acknowledge and agree that we may substitute an alternative Engineer (for example, if the original Engineer is materially delayed, cancels the Assignment or wishes to substitute an alternative Engineer); provided that:
4.7.1 the alternative Engineer has the necessary qualifications and experience to carry out the relevant Assignment; and
4.7.2 we shall notify you as soon as reasonably practicable and use reasonable efforts to minimise disruption to the Assignment.
4.8 Hardware. The transportation and storage of equipment purchased or to be purchased by you or any third party is not part of the CMS, unless expressly agreed with you in writing.
4.9 Business Days. Assignments will be carried out on Business Days, unless expressly agreed with you in writing.
5.1 Liability for your account. Any services we provide in relation to your account shall be deemed to have been provided to you. You shall be liable for all obligations arising in relation to services procured by any party that you authorise to use your account.
6.1 CMS Standard. We shall perform the CMS to the CMS Standard. The level of service management that we provide to you for the CMS is set out in your CMS Subscription.
6.2 CMS Customer Tasks. You shall carry out, or procure the carrying out of, any CMS Customer Tasks so that the Assignment can be carried out in an efficient, safe and timely manner (as agreed or required, prior to the start of an Assignment).
6.3 Co-operation. You shall co-operate with the assigned Engineer and us (for example, giving timely access to a site). The parties shall co-operate in any interface with the CMS Customer’s or End Client’s third party suppliers where required for the CMS.
6.4 Ratings. If you receive a review or a 1- or 2-star rating that you consider is unjustified, you may request a review, with supporting evidence, and our decision following a review shall be final and binding on you.
7.1 Your intellectual property. You retain all intellectual property rights in materials that you own and provide in connection with the CMS.
7.2 Deliverables. Deliverables that we provide to you shall not infringe the intellectual property rights of a third party. You shall own any intellectual property rights in the Deliverables, except any intellectual property rights owned by Itarmi in items inextricably embedded in the Deliverables. No aspect of the Itarmi Platform shall form part of any Deliverable.
8.1 Escalation contact. If you contact us about any material service delivery issue, you may do so through the Itarmi Platform, by e-mail at email@example.com or call if it is urgent.
8.2 Stopping an Assignment. If, acting reasonably and in good faith, you consider that an Assignment is not being carried out according to the CMS Standard, you may ask the Engineer to stop work on the Assignment; provided that:
8.2.1 you must immediately notify us, quoting the Assignment reference number and giving a reasonable account of the circumstances; and
8.2.2 you acknowledge and agree that, following our review of your complaint, you and we shall enter into good faith discussions to determine how much of the Assignment fee and expenses are payable.
8.3 No waiver. The availability of escalation procedures will not in any way limit the rights of either party.
9.1 Independence. You acknowledge and agree that an Engineer:
9.1.1 is not authorised to bind us to any contract, liability or obligation;
9.1.2 may need to be substituted by another Engineer who is appropriately qualified and experienced, in which case, we shall use reasonable endeavours to minimise disruption;
9.1.3 shall use his own expertise, judgment and experience and shall not subject to supervision, direction or control in carrying out Assignments;
9.1.4 carries out each Assignment under a separate contract for services and no contract for services exists in between Assignments;
9.1.5 is not obliged to accept an Assignment; and
9.1.6 is not entitled to any minimum number or length of Assignments.
9.2 No incorporation. You agree not to issue any Engineer with your branded business cards, incorporate him into your organisational or employee framework, or ask him to supervise or manage your own employees.
10.1 Disclaimer regarding Background Checks. Although Itarmi may carry out Background Checks, using third party services as appropriate, Itarmi cannot confirm that each user is who they claim to be or that their information is genuine and correct. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ITARMI DISCLAIMS ALL EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, CONDITIONS AND WARRANTIES REGARDING ALL BACKGROUND CHECKS, INCLUDING BUT NOT LIMITED TO ACCURACY AND COMPLETENESS.
10.2 No responsibility outside CMS Subscription. YOU ARE SOLELY RESPONSIBLE FOR MANAGING SERVICES OUTSIDE YOUR CMS SUBSCRIPTION. WE WILL NOT BE LIABLE FOR ANY LOSS THAT MAY ARISE FROM OR IN CONNECTION WITH ANY SERVICE MANAGEMENT, ACTS OR OMISSIONS OUTSIDE THE SCOPE OF YOUR CMS SUBSCRIPTION.
10.3 No responsibility for hardware. WE ARE NOT RESPONSIBLE OR LIABLE IN CONNECTION WITH THE TRANSPORTATION OR STORAGE OF EQUIPMENT OR HARDWARE, UNLESS OTHERWISE PRE-AGREED IN WRITING.
10.4 Failure by Customer. WE ARE NOT LIABLE FOR ANY LOSS OF ANY PARTY ARISING DIRECTLY OR INDIRECTLY AS A RESULT OF ANY DELAY OR FAILURE BY YOU TO CARRY OUT ANY TASKS AGREED TO BE CARRIED BY YOU IN CONNECTION WITH ANY ASSIGNMENT.
END OF CMS TERMS
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