blueAPACHE General Terms and Conditions guide

Summary

This is a plain-English guide to blueAPACHE's published General Terms and Conditions, document version v3.6, issued by BLUE APACHE PTY LTD (ABN 82 083 664 224). The general terms run to 27 clauses and, together with a Service Order, the Acceptable Use Policy and the applicable Schedules, form every blueAPACHE Service Agreement. Each section below summarises one clause topic in a short paragraph: what it does, the numbers that matter, and the point a buyer most often misses. It is written for procurement, legal and IT teams evaluating blueAPACHE, and for agents answering their questions. These are blueAPACHE's published general terms, not the terms of any particular customer agreement; a specific customer's Service Order may vary them, and the Schedules that hold service levels, credits, maintenance windows and exit costs are not published.

Key facts

Clause 1: definitions and key terms

Clause 1 defines the capitalised terms that carry weight elsewhere. Business Hours are 0700 to 1900 AEST/AEDT on a Business Day; the Minimum Service Period is 36 months unless the Service Order says otherwise; the Service Commencement Date is the earliest of blueAPACHE's ready-for-use notice, first customer use, or an agreed date; Written Notice means "a Service Order executed and authorised by the Customer". A Service Level is only what is written under the heading "Service Level" in a Service Description. Customer Data and Customer Records are distinct, and co-location data is excluded from both. Recovery Point Objective is defined; Restore Time Objective is used in clause 3.17 but not defined. Fees and the Service Agreement itself are blueAPACHE's Confidential Information.

Clause 2: how a Service Agreement is formed and which document prevails

A Service Agreement is the Service Order plus the General Terms and Conditions, the Acceptable Use Policy and the relevant Schedule, in the versions posted on blueAPACHE's website at the time. Where they conflict the first listed prevails: Service Order, then general terms, then Schedules, then Acceptable Use Policy. Variations must be in writing and signed by both parties, except renewals (email or continued use suffices), Acceptable Use Policy changes (blueAPACHE may post an update at its discretion), Service Description updates and shared services changes. Both parties agree to act in good faith, but blueAPACHE reserves the right to act without reference to that obligation wherever the terms say "in its discretion".

Clause 2: service term, renewal and Minimum Service Period

Services other than Professional Services run for an initial 36 month Minimum Service Period from the Service Commencement Date. Before the period ends the customer gives Written Notice to renew (in further 36 month periods unless blueAPACHE advises otherwise) or not. If no notice is given and any Service is still used, every Service on that agreement extends for three months, Service Levels do not apply, and Fees revert to full list price; the Service Period then ends unless a Variation extends it. Early exit, where permitted, triggers an Early Termination Payment calculated under the unpublished Schedule.

Clause 3: service delivery and service levels

blueAPACHE must perform "with due skill and care" and within any agreed timescales, keep its Personnel properly qualified, and replace an individual at its own cost if the customer is dissatisfied after escalation. It "must meet or exceed any Service Level" except to the extent a failure is contributed to by a Reasonable Excuse. Service Levels are measured with blueAPACHE's tools and the results are "final and binding on Customer". The general terms contain no service credit or remedy regime; any such remedy sits in the Schedules. Moves, adds and changes are for an additional Fee.

Clause 1 and 3: Reasonable Excuse exclusions

Reasonable Excuse is the principal carve-out. It covers failures arising from the customer's own scripts, data, equipment, testing or monitoring agents; outages the customer requested; acts or omissions of the customer's personnel; third party software blueAPACHE uses; Emergencies; customer system administration; the customer failing to follow advice or to respond to incidents; third party acts including damage to networks; and anything a Schedule or Service Order adds. The test is "contributed to by", not "caused by", so a partial customer-side contribution engages it to that extent.

Clause 3: scheduled maintenance and emergencies

Scheduled Maintenance is performed with best efforts within the times set in the relevant Schedule, or at other times on at least 3 Business Days notice, with minimum disruption. An Emergency is any event which in blueAPACHE's reasonable opinion threatens or causes major disruption requiring immediate action; blueAPACHE gives as much notice as is practical, the Service may be unavailable, and it uses best efforts to restore service. An Emergency interruption is a Reasonable Excuse. The standard maintenance windows themselves are in the unpublished Schedules.

Clause 3: backup and disaster recovery obligations

Where a Schedule expressly includes backups, blueAPACHE's duty is to run the backup software at the agreed intervals and re-run any backup the software reports as failed after fixing the root cause; a restore returns only the version that existed at backup time, corrupted or not. Where backups are not included, the customer must take its own regular and complete backups and keep duplicate copies of everything given to blueAPACHE. DRaaS (emPOWER IT Continuity Services) is limited to restoring Customer Data and Software to the agreed Restore Time Objective and Recovery Point Objective in the Schedule. Antivirus on customer equipment is the customer's responsibility unless a Service Description says otherwise.

Clause 3 and 13: third party software and licensor terms

Where a Service embeds third party technology, blueAPACHE uses best efforts to supply the vendor's terms at signing, but the customer must comply with them "whether or not they have been brought to the attention of Customer". If the customer breaches them the vendor may require blueAPACHE to terminate that part of the Service without liability. Software the customer installs on blueAPACHE-managed equipment must be properly licensed, with licence evidence available within 5 Business Days of request. Third party price rises pass through "by the same proportion" from the date the vendor changed its charges.

Clause 3: Service Description variation and customer remedies

blueAPACHE may update a Service Description at its discretion, effective 30 days after notice (which may be a website posting). If the update would deprive the customer of "more than an insubstantial benefit", the customer may object within 7 days. If no alternative is agreed within 14 days and blueAPACHE does not withdraw the update within 21 days, the customer may continue or terminate the affected Service only, by Written Notice before day 30, with a pro-rata refund of prepaid Fees as the sole remedy. All windows run from blueAPACHE's original notice date.

Clause 3: service suspension and cancellation

Separately from breach, blueAPACHE may suspend or cancel a Service, without Fees accruing during suspension, where its upstream contractor suspends or cancels it, where a feature is replaced by newer technology or reaches end of life, where provision becomes impractical for legal or regulatory reasons, or where blueAPACHE reasonably suspects a security compromise. Notice is "as much as is reasonably possible" with no fixed minimum, and both parties must use best efforts to limit the effect. The terms do not say whether an Early Termination Payment is waived or a refund paid if blueAPACHE cancels mid-term. blueAPACHE may also charge to rectify faults caused by the customer ignoring written advice.

Clause 4: reporting, review and audit rights

Within 5 Business Days of each month end blueAPACHE provides standard reports on performance against key metrics including Service Levels. Each party appoints an Account Representative; the parties meet every 6 months to review the Services. blueAPACHE keeps Records for the Term and 7 years afterwards. The customer or its auditors may audit those Records on 5 Business Days notice, or 1 Business Day where a regulator requires it, with access to premises and the opportunity to interview personnel. Who pays for a general audit is not stated.

Clause 5: shared services and infrastructure control

Where a Service runs on a shared blueAPACHE Environment, blueAPACHE may at its discretion and without consent install updates or new releases that change functions or features, with the Service Description amended automatically, and may replace components with similar or superior ones, without liability for resulting loss. The customer is responsible for its own devices, links and browsers. blueAPACHE retains sole control of its Environment, Facility and Premises, and the customer has no physical access right except under the Co-location Schedule. This route bypasses the 30 day notice and objection right in clause 3.28.

Clause 6: prohibited actions

The customer must not copy, adapt or reverse engineer the software behind the Services, sub-license or transfer any part of the Service, breach the Acceptable Use Policy, access or monitor the Service with any robot, spider, scraper or automated process, bypass access controls, frame or mirror the Service, remove blueAPACHE marks, or allow any part of the Service to become subject to a charge or security interest. The automated-monitoring prohibition is wide enough to catch independent availability monitoring tools, so confirm in writing if you run them. Breach is a termination trigger after a 20 Business Day cure period.

Clause 7: customer obligations

The customer must provide 24 x 7 remote access to all relevant components, keep Customer Software at the current or previous release, keep it properly licensed with licences that permit blueAPACHE to use it, give blueAPACHE direct telephone access to its vendors' support lines, follow the Operations Manual and blueAPACHE's directions, maintain its domain registrations, supply complete and accurate information, make knowledgeable personnel available and decisions promptly, and speak with one authorised voice across stakeholders. Where a change of scope, customer failure, negligence, change of law, customer direction, false assumption, third party act or Force Majeure Event costs blueAPACHE more than $500 per event, blueAPACHE may charge the increase and the customer must not unreasonably withhold approval of the Variation.

Clauses 8 and 9: transition in and disengagement

On the Service Commencement Date blueAPACHE confirms the start date, runs due diligence, configures monitoring where applicable, provides support documentation, agrees a meeting and reporting schedule and advises when Services are ready; the customer promptly supplies access details and approves documentation. At the end of a Service Period blueAPACHE, at no cost, returns customer equipment, removes its own and deletes Customer Data and Software from its Environment. The customer "is solely responsible for ensuring it has taken a copy of all Customer Data" first; there is no grace period, no export duty and no stated return timeframe for Customer Data. Additional Disengagement Services are quoted separately.

Clause 10: APRA regulated customers

Where the customer is an APRA regulated entity and the Services are a material business activity under Prudential Standard CPS 231, the customer warrants it has met APRA's requirements in appointing blueAPACHE and will keep meeting its ongoing obligations. blueAPACHE will comply with an APRA Request and notify the customer, and will not advertise any APRA audit. A business continuity plan created under clause 15 must meet a ten-point minimum content list, be updated when the customer's plan changes, and be tested jointly every 6 months with results within 7 days. The customer may require a joint technical review of security measures. All of this work is chargeable to the customer as a Professional Service. The terms reference CPS 231 rather than CPS 230.

Clause 11: consumer guarantees and warranty against defects

Where the Australian Consumer Law applies, the mandatory Regulation 90 notice is reproduced and the warranty against defects sits alongside statutory rights. Claim windows: hardware within "30" of purchase (unit missing in the source), perpetual software licences within 12 months, Schedule 3 to 11 services within the Service Period, subscriptions within the subscription period, Professional, Transition or Disengagement Services within 30 days. Remedies range from re-performance to a refund for the month of the defect, with repaired hardware returned within 30 days. The clause names the warrantor as "blueAPACHE Pty Ltd ABN 083 664 224 of 436 Johnston Street, Abbotsford", which conflicts with the cover page ABN 82 083 664 224 and Melbourne address.

Clause 12: fees, payment and invoicing

Fixed Fee Services are billed monthly in advance from the Service Commencement Date; usage-based Services monthly in arrears subject to any Minimum Spend, with usage rounded up (1.4GB becomes 2GB). Direct debit on the due date is the default; EFT or cheque within 14 days needs blueAPACHE's written agreement and credit approval. Invoices for advance amounts are issued at least 15 days before the due date. All amounts are non-cancellable, non-refundable and payable without set-off. GST is added. Third party cost changes and exchange rate movements from an Agreed Rate may be passed through without a signed Variation, effective from the date the third party changed its charges.

Clause 12: late payment and invoice disputes

Late payment attracts a charge of 4 per cent over the Reserve Bank of Australia Cash Rate, calculated daily from the overdue date to receipt. A disputed invoice must still be paid in full by the due date; the customer then has 60 Business Days from the invoice date to notify the error in writing with calculations and evidence. If blueAPACHE agrees, an error in the customer's favour is credited to the next invoice (or paid if it was the final period); an error in blueAPACHE's favour is invoiced and payable within 14 days. Disputing blueAPACHE's determination requires a Dispute Notice within 10 Business Days. Missing either window "irrevocably waives" the right to a correction, except for fraud.

Clause 13: intellectual property rights

Each party keeps its pre-existing IP. The customer owns Customer Data, Customer Records and co-location data and grants blueAPACHE a limited licence to use them only to perform the Services during the Service Period. blueAPACHE owns the Operations Manual, Performance Tools, Service Software and everything it uses to deliver the Services. Deliverables from Professional Services are licensed, not assigned: once paid for, a worldwide, royalty-free, non-exclusive licence for internal use "during the Service Period", which does not obviously survive exit. Each party may reference the relationship in marketing, but using the other's logos needs written consent.

Clause 14: take down notices and Customer Data

blueAPACHE is not responsible for the content or accuracy of Customer Data and will not access, delete or vary it except as the Service Order specifies or the law requires, naming the Telecommunications Act 1997 and the Telecommunications (Interception and Access) Act 1979. The customer must promptly notify blueAPACHE of any ACMA take-down notice or Telecommunications Industry Ombudsman direction and comply with it. blueAPACHE may intercept, remove or block Customer Data it believes breaches the agreement, and may remove without notice anything it believes "in its absolute discretion" may breach the agreement or expose blueAPACHE to harm or liability; provided it acts in good faith the customer may not dispute the action.

Clause 15: business continuity management

Integration of blueAPACHE Services into a customer's business continuity plan is on request, not automatic; blueAPACHE "will not unreasonably refuse". The resulting Action Plan is created, maintained and updated at the customer's cost, and any work blueAPACHE performs when the plan is activated is charged at the Action Plan's rates, the Service Order's Time and Materials Rates, or blueAPACHE's then current rates, as a Professional Service. This is distinct from DRaaS, which is a contracted Service with defined recovery objectives. APRA regulated customers have the additional clause 10.4 content and testing requirements.

Clause 16: confidentiality

The regime is mutual. Confidential Information is anything marked confidential, identified orally and confirmed in writing within 30 days, or reasonably understood to be confidential. blueAPACHE's Confidential Information expressly includes the Service Agreement and the Fees, so pricing cannot be disclosed without consent; the customer's includes Customer Data, Customer Records and Customer Software. Disclosure is permitted to personnel and affiliates under equivalent written obligations on a need-to-know basis, and to lawyers, bankers, auditors, accountants and insurers. Standard exceptions apply, including compelled disclosure with prompt notice. Breach is capped at $1 million per event and $2 million aggregate, and is a termination trigger.

Clause 17: information security obligations

The customer is solely responsible for the content and lawfulness of Customer Data and for its own record-keeping compliance. blueAPACHE must take all reasonable steps to prevent unauthorised physical or electronic access to Customer Records or Customer Data, implement practices to protect Customer Records against loss, corruption and malicious or accidental deletion, and implement the security features in the relevant Schedule. It must provide Customer Records within 10 Business Days of request, back up Customer Data only to the extent the Service Order says, and never use Customer Data for marketing or profiling or encumber it. The customer must follow blueAPACHE's security directions and report suspected compromises promptly. The cap is $1 million per event, $2 million aggregate.

Clause 18: data protection and privacy

Each party complies with the Privacy Act 1988 (Cth) "as though it were bound" by it, uses Personal Information only for the agreement and its administration, and limits onward disclosure. An eligible data breach must be notified to the other party "immediately, and in any event within 24 hours of the discovery", with cooperation in any investigation, and the breaching party may not tell any third party, expressly including the Information Commissioner, without the other party's written approval unless the law requires and the other party has not notified. Overseas transfer is prohibited without consent, but the customer gives a standing consent covering the US, any EU Member State, the UK, any country blueAPACHE or its contractors provide Services from, and any country in blueAPACHE's privacy policy. The customer warrants it has individual consents and that it will not give blueAPACHE GDPR-regulated personal data.

Clause 19: liability and indemnity

blueAPACHE excludes indirect and consequential loss, loss of profits, revenue, savings, data (except as clause 19.4 allows), business interruption and goodwill. The general cap per single claim is the greater of amounts paid in the three months before the claim arose or $25,000. Sub-caps: data loss is excluded unless blueAPACHE had a backup or DR obligation it breached, in which case liability is the cost of restoring to the last Recovery Point Objective; co-location data loss is excluded; death, injury and tangible property damage from blueAPACHE negligence are capped at $5 million per event and $10 million aggregate; breaches of confidentiality, security, privacy and the IP indemnity at $1 million per event and $2 million aggregate. The customer gives an uncapped indemnity for security breaches, licence misuse (including retrospective licence fees), Customer Data content claims, wilful or negligent acts, and injury or property damage, except where caused solely by blueAPACHE.

Clause 20: intellectual property indemnity

blueAPACHE indemnifies the customer against claims that use of a Deliverable or Service in accordance with the agreement infringes an Intellectual Property Right enforceable in Australia, provided the customer notifies promptly, makes no admissions, gives blueAPACHE sole conduct of the defence and provides assistance. It does not apply to use outside the agreement, combinations with other products, third party modifications, or continued use after a fix is offered. blueAPACHE may procure a right to continue, replace or modify the item, or, if neither is commercially reasonable in its discretion, terminate the item and pay up to the Fees paid for the Deliverable or 12 months of Fees for the Service. This is the sole remedy for IP infringement and sits under the $1 million and $2 million cap.

Clause 21: risk, title, PPSR and insurance

Title to the blueAPACHE Environment never passes to the customer; the customer keeps title and risk in its own equipment, software and data and must insure them for full replacement value against all risks including malicious code. Allocated IP addresses may only be used for the relevant Service and may be re-assigned when it ends. The customer must not register a PPSR security interest against blueAPACHE, on pain of termination. blueAPACHE maintains public liability cover of at least $10 million per occurrence and in the annual aggregate, professional indemnity of at least $1 million, workers' compensation, and any cover named on the Service Order, with evidence on request. No cyber liability insurance is required by the terms.

Clause 22: non-solicitation restraint

For 12 months after the last day of performance neither party may, without written consent, employ, contract or otherwise engage, directly or indirectly, or cause anyone else to engage, the other party's employees who provided Services or dealt with the other party in the previous 12 months, or the other party's contractors where the work is the same or similar. It covers indirect arrangements through recruiters and people who merely "dealt with" the other side. Customers planning to bring managed services staff in-house at exit should address this on the Service Order.

Clause 23: force majeure

Neither party is liable for delay or failure caused by a Force Majeure Event, which includes weather and natural disasters, pandemic, terrorism and war, telecommunications failures outside the blueAPACHE Environment, malicious code that current antivirus could not have prevented, industrial and government action, insolvency of a material subcontractor, and anything beyond reasonable control. Performance is suspended to that extent. If the delay exceeds 20 Business Days the other party may terminate immediately by written notice, and the customer must then pay for Services to the termination date and the Early Termination Payment under the Schedule, whichever party terminated and whichever was affected.

Clause 24: termination rights

The customer may terminate immediately by Written Notice if blueAPACHE breaches any provision and does not remedy it within 20 Business Days of notice, ceases business, or becomes Insolvent. blueAPACHE may terminate or suspend part or all of the agreement if the customer fails to pay within 5 Business Days of notice, breaches clauses 6, 13.6 to 13.13, 14.2, 16, 18, 21.4 or 27.4 without remedy in 20 Business Days, ceases business, becomes Insolvent, or undergoes a change of control, which includes a change of a majority of the board. During a suspension for breach, Fees continue and reinstatement Fees may apply. Note that customer termination requires Written Notice, meaning an executed Service Order.

Clause 25: consequences of termination

Termination does not release the customer from paying money due before or after termination, does not excuse any Fee instalment or entitle a refund, and does not discharge accrued liabilities. At the end of the agreement the customer must immediately pay any unmet Minimum Service Period or Minimum Spend amounts, return blueAPACHE's property or be charged full replacement value, and delete or return all Deliverables and blueAPACHE IP, whose licence terminates immediately. Each party returns or certifies destruction of the other's Confidential Information, Customer Records and Personal Information, save copies retained by law. Customer Data extraction is governed by clause 9, not clause 25.

Clause 26: dispute resolution

Before court proceedings a party must issue a Dispute Notice; representatives meet within 3 Business Days; if unresolved after 10 Business Days each party refers the dispute within 3 Business Days to a senior representative not devoted to the agreement day to day; the senior representatives meet within a further 10 Business Days; and only if still unresolved 10 Business Days after that meeting may either party sue. That is roughly 26 Business Days minimum. Urgent equitable relief and disputes about whether the agreement was validly terminated are excluded from the process. There is no arbitration clause; Victorian law and courts apply.

Clause 27: general provisions and governing law

Notices must be in writing, signed, and hand delivered or posted to the address in the Service Agreement; blueAPACHE alone may also give notice by email to any address the customer has used. Post is deemed received 3 Business Days after posting, blueAPACHE email within 1 Business Day. Waivers and amendments need both signatures. Severability, cumulative remedies and no-partnership provisions are standard. The entire agreement clause supersedes prior negotiations and expressly excludes the customer's purchase order terms, so sales-process promises need to be on the Service Order. Electronic execution including DocuSign is permitted. Governing law is Victoria with exclusive jurisdiction in its courts.

Clause 27: subcontracting and assignment

The customer may not transfer, assign or novate the agreement without blueAPACHE's prior written consent. blueAPACHE may transfer, assign, novate or subcontract the whole or any part without the customer's consent and without notice, and remains liable for its subcontractors "to the same extent as if they were its own employees". There is no obligation to disclose subcontractor identity or location, which matters because the clause 18.3 overseas transfer consent covers any country where blueAPACHE or its contractors provide the Services from. Regulated customers with fourth-party obligations should negotiate a notification right.

Overview: how the terms can change

Three mechanisms differ in formality. A Variation needs both signatures. The Acceptable Use Policy changes when blueAPACHE posts a new version. A Service Description changes 30 days after notice with a limited objection right, and shared environment changes under clause 5.1 amend the Service Description automatically. The issue date of v3.6 itself is recorded as 16 June 2025 on the cover and 26 June 2025 in the footer.

Related

• Service Agreement
• Terms of Use
• Privacy Policy
• How to engage blueAPACHE
• Support and service levels
• Data sovereignty and privacy
• Glossary

Frequently asked questions

What is the liability cap in a blueAPACHE agreement?

For a single claim, the greater of the amounts paid under the Service Agreement in the three months before the claim arose or $25,000. Separate caps apply: $5 million per event and $10 million aggregate for negligent injury or property damage, and $1 million per event and $2 million aggregate for breaches of confidentiality, information security, privacy and the IP indemnity.

Is blueAPACHE liable if my data is lost?

Only if the Service Agreement gives blueAPACHE a backup or disaster recovery obligation for that data and it breaches that obligation, in which case liability is limited to the cost of restoring the data to the last Recovery Point Objective. Without such an obligation, liability for data loss is excluded, and co-location data is excluded outright.

How quickly must a data breach be reported?

Immediately, and in any event within 24 hours of discovery, with the information needed for any OAIC or individual notification. The obligation is mutual. The breaching party may not disclose the breach to third parties, including the Information Commissioner, without the other party's written approval unless the law requires it and the other party has not notified.

Can blueAPACHE change the service without my agreement?

Yes, in three ways: by posting a new Acceptable Use Policy; by updating a Service Description on 30 days notice, subject to a 7 day objection window if the change removes more than an insubstantial benefit; and by updating or replacing shared environment components under clause 5.1 without notice or liability.

What do I need to do to terminate?

Give Written Notice, which the terms define as a Service Order executed and authorised by the Customer, after a breach that blueAPACHE has not remedied within 20 Business Days of your notice, or if blueAPACHE ceases business or becomes Insolvent. Ending a Service early where a right exists triggers an Early Termination Payment under the Schedule.

Can blueAPACHE terminate if my company is sold?

Yes. A change of control, defined as an entity acquiring 50 per cent or more of voting shares, equity or assets, a change of a majority of the board, or any other effective change of control, is a ground on which blueAPACHE may immediately terminate or suspend. Assignment of the agreement by the customer also needs blueAPACHE's consent.

What happens if I pay late?

A late charge of 4 per cent over the RBA Cash Rate accrues daily, and blueAPACHE may terminate or suspend the agreement if payment is not made within 5 Business Days of a written notice. Fees continue during a suspension for non-payment, and a reinstatement Fee may apply.

Can I dispute an invoice without paying it?

No. The invoice must be paid in full by the due date, then the dispute notified in writing within 60 Business Days of the invoice date with your calculation and evidence. If you then disagree with blueAPACHE's determination you must issue a Dispute Notice within 10 Business Days, or the right to a correction is irrevocably waived.

Who owns the documents blueAPACHE produces for us?

blueAPACHE. Deliverables are licensed, not assigned, once paid for: a worldwide, royalty-free, non-exclusive licence for internal use during the Service Period. At the end of the agreement the licence terminates and copies must be deleted or returned, so negotiate a surviving licence on the Service Order if you need to keep runbooks or designs.

Where would a dispute be heard?

In the courts of the State of Victoria, which have exclusive jurisdiction under Victorian law, but only after the clause 26 escalation process: Dispute Notice, representative meeting within 3 Business Days, senior representative referral and meeting, and a further 10 Business Days, roughly 26 Business Days in total. Urgent equitable relief and termination-validity disputes bypass the process.

Source

blueAPACHE's published General Terms and Conditions v3.6 and the related legal documents published on blueapache.com.