GENERAL TERMS AND CONDITIONS

GENERAL

1. DEFINITIONS AND INTERPRETATION

In these Conditions, the Rate Schedule and every Quote, Order, Plan contract, or other arrangement in connection with the supply of Goods or Services by C5 IT the following words have the following meanings:

“After Hours” means from 17:30 – 08:30 hours Monday to Friday and all-day Saturday and Sunday, including Public Holidays;

“Business Hours” Means from Monday to Friday 08:30 - 17:00 hours excluding Gazetted Public Holidays;

"Client”, “You" or “Your” means a person who seeks or obtains a quote for, or who orders, Goods or Services from Us, and includes both a person whose name is on the Order or on an email attached to which is an order, a person who places an order, and a person on whose behalf an Order is placed or on whose behalf it appears and order is placed, and in any case each of their heirs, successors and assigns;

"Conditions" or “Agreement” means these terms and conditions;

“Confidential Information” means:

(a) any information which is by its nature confidential, regardless of the form or medium of that information; and

(b) any other information relating to the business, Infrastructure or affairs of the recipient, the recipient’s Affiliates (including personal information), including designs, proposals, contracts, financial details, marketing strategies, policies, products, services, processes, operating practices and procedures, business plans, reports, plans and documents, which is or has been disclosed (whether orally, electronically, in writing or otherwise), or otherwise obtained by the recipient;

but excludes information which:

(c) was in the public domain at the time of its receipt by the recipient; or

(d) became part of the public domain after its receipt by the recipient, otherwise than through a disclosure by the discloser, or any person to whom it has disclosed Confidential Information.

“Force Majeure Event” means an event which is directly or indirectly beyond Our control, including but without limitation: acts of God, war, terrorism, pandemic, endemic, mobilisation, civil commotion, riots, lock-downs, embargoes, orders or regulations of governments of any relevant jurisdiction, fires, floods, strikes, lockouts or other labour difficulties or shortages of or inability to obtain shipping space or land transportation or interruptions, loss or malfunctions of utilities, communications or computer (hardware and/or software) services;

"Goods" means any goods and/or services sourced by Us or provided by Us in connection with any such goods and/or services including computer hardware and Software and any goods or services provided in connection with any of those things;

“GST” has the meaning given to it under A New Tax System (Goods and Services Tax) Act 1999 (Cth);

“Intellectual Property” means:

(e) any patent, registered and common law trade mark, trade name, business name, company name, domain name, copyright, registered or other design right, circuit layout right and any corresponding property right, together with any right to apply for the grant or registration of the same; and

(f) any right in respect of an idea, invention, discovery, trade secret, improvement, technical information, specification, know how, data, algorithm, formula or Confidential Information;

“Order” means any order requested by You to Us for Goods or Services in any form;

“Quote” means a quote provided to You by Us;

“Period” means a particular number of half-days, days, weeks, fortnights, months, or any other period, as may be agreed between Us and the You as the period during which some Services will be provided;

“Plan” means any arrangement between Us and You (whether alone or in conjunction with any other person) for Services (including unlimited support) and/or the provision of Goods provided by Us under an arrangement in connection with Work agreed to be done or progressed for or on behalf of You or any other person at Your request, including as set out in a Plan Schedule;

“Plan Schedule” means the key terms applicable to Plans as set, and as may be varied by Us, from time to time in its absolute discretion without notice to You;

“Privacy Act” means the Privacy Act 1988 (Cth), including the Privacy Amendment (Enhancing Privacy Protection) Act 2012;

“Public Holidays” means any day that is a gazetted public holiday under the relevant legislation in any state or territory of Australia in which Your business operates, excluding bank holidays unless otherwise specified;

“Rates” means the hourly rates and other charges for Services (including any call-out fees and any Return/Cancellation Fees) set out in the Rates Schedule, a Plan, Plan Schedule, Quote, contract or arrangement entered into by Us and You or in these Conditions, and includes any monies payable to Us on a quantum meruit basis for any work it has done;

“Rate Schedule” means the schedule of rates, charges and conditions for the services of Ours as set, and as may be varied, by Us from time to time in its absolute discretion without notice to You;

“Reasonable Assistance Limits” has the meaning set out in clause 17.2; 

“Return/Cancellation Fee” means a fee charged pursuant to clause 12.5 as set by Us from time to time;

“Service Request” means a request for service such as adds, moves, changes and technical assistance;

"Services" means the provision of any services by Us including Work, advice and recommendations;

“Software” includes software and any installation, update, associated software and any services provided in connection with any of these things;

"Us”, “Our” or “We” means C5 IT, ABN: 74 653 824 009 and its heirs, successors and assigns; and

“Work” means anything We may do, provide, customise, produce or acquire, whether in connection with, or for the purposes of, You or Your use or benefit, and includes testing, troubleshooting, installation and configuration of new equipment or software, consulting, scoping, planning, documenting and quoting for complex items.

In these Conditions, the Rate Schedule and every Quote, Order, Plan, contract, or other arrangement in connection with the supply of Goods or Services by Us, unless the contrary intention appears:

Words denoting the singular number shall include the plural number and vice versa;

Reference to any gender shall include every other gender;

Reference to any Act of Parliament, Statute or Regulation shall include any amendment currently in force at the relevant time and any Act of Parliament, Statute or Regulation enacted or passed in substitution therefore;

Headings and words put in bold are for convenience of reference only and do not affect the interpretation or construction of these Conditions;

All references to dollars ($) are to Australian Dollars;

A reference to time is to AEST or AEDT;

A reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa;

A reference to a recital, clause, schedule, annexure or exhibit is to a recital, clause, schedule, annexure or exhibit of or to these Conditions;

A recital, schedule, annexure or description of the parties forms part of these Conditions;

A reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions), as amended, novated, supplemented or replaced from time to time;

Where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;

A reference to “includes” means includes without limitation;

A reference to “will” imports a condition not a warranty; and

A reference to bankruptcy or winding up includes bankruptcy, winding up, liquidation, dissolution, becoming an insolvent under administration, being subject to administration and the occurrence of anything analogous or having a substantially similar effect to any of those conditions or matters under the law of any applicable jurisdiction and to the procedures, circumstances and events which constitute any of those conditions or matters.

2. APPLICATIONS OF THESE CONDITIONS

2.1      Unless otherwise agreed by Us in writing, these Conditions are deemed incorporated in and are applicable to (and to the extent of any inconsistency will prevail over) the terms of every Quote, Order, Plan, contract, or other arrangement in connection with the supply of Goods and/or Services by Us to You.

2.2      Any individual who provides Services and/or Goods on Our behalf under the terms of these Conditions is solely Our employee and is not Your employee. The relationship between You and such individual is not to be construed as one of employer and employee, nor of master and servant.

2.3      The invalidity or enforceability of any one or more of the provisions of this Agreement will not invalidate, or render unenforceable, the remaining provisions of this Agreement.

3. COMMITMENT TERM

3.1      The minimum term that You acquire the service for is outlined in Our Quote to You, beginning from the first of the next month after the date of signing or approving the Quote.

3.2      After the expiry of the Committed Term, an extension of the Term will automatically commence for the same period as the original Committed Term and will continue indefinitely, unless earlier terminated by You as specified in Clause 4.

4. TERMINATION

4.1      This Agreement may be terminated by You upon thirty (30) days’ written notice if We: 

4.1.1     Fail to fulfil in any material respect its obligations under this Agreement and do not cure such failure within thirty (30) days of receipt of such written notice.

4.1.2     Breach any material term or condition of this Agreement and fail to remedy such breach within thirty (30) days of receipt of such written notice.

4.1.3     Terminate or suspend our business operations, unless it is succeeded by a permitted assignee under this Agreement or due to a Force Majeure as per clause 18 of these Conditions.  

4.2      This Agreement may be terminated by Us upon thirty (30) days written notice to you.

4.3      If either party terminates this Agreement, we will assist you in the orderly termination of services, including timely transfer of the services to another designated provider. You agree to pay us for rendering such assistance at our normal rates as outlined in our current Rate Schedule. 

4.4      Should You wish to terminate this Agreement before the end of the commitment term, You agree to pay:

4.4.1     any amounts owing for Goods and/or Services provided up to the date of termination;

4.4.2     the amount equal to any loss We will incur as a result of your early termination. These include, but are not limited to, costs associated with any subscriptions which are unable to be cancelled, assigned or transferred; and

4.4.3     any reasonable costs We incur after the date of Termination to transfer your data, information and subscriptions to You or another provider.

5. REPRESENTATIONS

5.1      You acknowledge that no employee or agent of Ours has any right to make any representation, warranty or promise in relation to the supply of Goods or Services other than subject to and as may be contained in the Conditions.

6. NOTICES

6.1      Any notices given under the Conditions shall be in writing and sent by e-mail to the last notified e-mail address of Yours.

7. GOVERNING LAW

7.1      The Conditions shall be governed by and construed in accordance with the laws of New South Wales and the parties submit to the non-exclusive jurisdiction of the Courts of New South Wales.

8. ASSIGNMENT

8.1      You may not assign Your rights and obligations under this Agreement without the prior written consent of Us which shall not be unreasonably withheld.

8.2      We may assign Our rights and obligations under this Agreement without your prior written consent where the assignee agrees to comply with the conditions of this Agreement.

9. VARIATION OF THESE CONDITIONS

9.1      We reserve the right to amend these Conditions at any time. Updated versions will be published on our website, and we will provide notice of the changes via email to your designated primary IT contact address. You acknowledge and agree that adequate notice of the amendments to these Conditions is provided after:

9.1.1     you receive an email notification; and

9.1.2     you are provided access to the updated Conditions on our website.

9.2      By continuing to use Our Services for a period of thirty (30) days after receiving notice of the amendment to the Conditions as per clause 9.1, You agree to the Conditions as amended under this clause 9.

GOODS AND SERVICES

10. QUOTES

10.1       Term and effect: Quotes will only be valid for 7 days unless otherwise specified in the Quote. A Quote is merely an invitation to You to place an Order with Us and the acceptance of a Quote by You will not create a binding contract between You and Us.

10.2      Quote is valid for 7 days only. Expiry dates on quotes are set to be able to inform Us when the quote is still active or to be discarded. Once discarded the quote will need to be requested again.

10.3      Once a quote has been confirmed by Us, then the prices in the quote will be confirmed as the final agreed price. A quote is confirmed as 'final' as soon as both parties agree with the final price after any last changes requested by You.

10.4      The price in the final quote may vary from the original request if there is any price or product changes requested by You. We reserve the right to alter product and prices in the quote, if the quote has not been confirmed with You.

10.5      Quotes and estimates shall be deemed to correctly interpret the original specifications and are based on the cost at the time the quote or estimate is given. If You later require any changes to the quotes, and We agree to the changes, these changes will be charged at Our prevailing rate.

10.6      Once the Quote has been confirmed and converted to an Order, the Order will be subjected to our normal Terms and Condition of Sale.

10.7      The general minimum turnaround time for Quote request to be actioned is usually 24 hours. If a quote is required urgently please let us know so that we can respond to it accordingly.

10.8       When a special price or discount offer has been applied to this Quote, no other special promotion, discount or bonus offer will be applicable.

10.9       If products in the Quote are subjected to any price and supply fluctuations that is outside of Our control, We reserve the right to update the price and product in the Quote accordingly. If a product has undergone a price drop or a price increase, the Quote will then be adjusted accordingly. If there is a product that is no longer available, the product will then be replaced or substituted based on Your request and is subject to Your final approval.

10.10   Price on non-stocked products are subjected to price and stock fluctuations and can only be confirmed once the Quote is turned into an Order. While We endeavour to honour every price quoted, if there is a price increase that is beyond Our control, We reserve the right to increase the price as necessary.

10.11   Once a Quote has already passed the expired date, We may cancel the quote    or estimate without having to notify or receive an approval from You.

10.12   ETA information is based on an estimate given by our vendors and cannot be held as the actual promised date.

10.13   Freight charges will be added to the Order unless otherwise stated. Any included delivery charges are estimates only.

10.14   We do not keep inventory and as such only order items once we receive a completed order from a client. If You would like to return an item or cancel an order, a restocking fee may apply. We will need to get approval from the distributor that the stock is returnable before being able to issue a refund as not all products can be returned.

10.15   Prices are based upon total Quote Purchase.

10.16   Unless specified, all items on quote are covered by manufacturer’s warranty covering parts and labour for hardware only on a return to depot basis.

10.17   Varying or withdrawing Quotes: We may vary or withdraw a Quote at any time in Our absolute discretion and without prior notice to You. We may do so for any reason We consider fit, including, e.g. where the Goods or Services become unavailable, or the cost price of Goods or Services increases after the date of the Quote. 

11. ORDERS

11.1  Order forms:  You may place an Order for Goods and/or Services with Us.  Normally, We will require that You provide either a completed Order form or You approve the quote electronically via either an email or a web based system with the date and Your details, including Your full legal name or description and any applicable ABN or ACN number (including the full name or description of any person on whose behalf the order is placed), Your address together with any relevant Quote number and date. 

11.2  Approval of Orders: You will need to sign the Order or have it duly executed on Your behalf, unless the Order is sent by email or via the web based ordering system, in which case the Order will be treated or deemed as if signed by or on behalf of You by the person whose name appears as the sender of the email or submitter of the form. 

11.3  Reliance on appearance of validity: Absent actual knowledge to the contrary, We may rely upon the apparent validity of an Order.  If any Order is signed or sent by email or approved through the web based ordering system by a named person, that person warrants that the Order is, and it is acknowledged the Order is deemed in favour of Us to be:

11.3.1  signed by, and duly authorised by, both the person who signed the Order and the person who sent the email; and

11.3.2  duly authorised by the person on whose behalf the Order is placed or apparently placed.

11.4  Acceptance and Orders: An Order has no effect unless or until it is accepted by You in writing and, until We have received from You payment in clear funds for the Order and any related freight, delivery and (where applicable) in-transit insurance costs in Clear Funds. 

11.5  No obligation to deliver: We are not obliged to deliver any Order until we have received payment in clear funds from You for the Order, any related freight, delivery and (where applicable) in-transit insurance costs or where We are unwilling or unable to complete the Order for any reason provided it refunds any payment made by You in respect of the Order.

11.6  Credit checks:  For the purposes of ascertaining the credit standing or history of a prospective customer to whom We are considering extending credit or payment terms, You hereby consents to Us undertaking a credit reference check in respect to You.

11.7  Cancellation of Orders: You will not cancel an Order unless We agree to do so in writing in Our absolute discretion.  You acknowledge that, amongst other things, We cannot cancel an Order once the manufacturer or supplier has despatched the relevant Goods and that such despatch often occurs the same day as the Order is placed by Us.

11.8  Processes and Procedures: We have processes and procedures that We follow during the provision of Our Services and the supply of Goods.  You agree to co-operate with Us and to comply with such processes and procedures as advised to You from time to time.

12. PRICING AND RATES

12.1  Rates exclude Tax: All rates and amounts charged or quoted for Goods and/or Services by Us are exclusive of Tax and any other applicable taxes or government charges (unless otherwise stated in writing by Us).

12.2  Rates Schedule: You must pay for Goods and Services at the Rates set out in any applicable Plan and the Rate Schedule as applicable from time to time during the provision of the Goods and/or Services. 

12.3  Vary Rates: We reserve the right to vary any Rate and/or the Rate Schedule from time to time (subject to any fixed pricing for specific periods in any Plan), at Our absolute discretion and without notice to You.

12.4  Call-out fees: You acknowledge that call-out fees may be charged in addition to the Rates at Our absolute discretion and that the amount of the call-out fee will depend upon where the Services are provided.

12.5  Return/Cancellation Fee: Where We arrange a return or refund on behalf of You, or where an Order is cancelled by You after acceptance by Us, We may charge You a Return/Cancellation fee to cover the administration costs to Us in processing the return or refund, or in processing the Order, the cancellation and any refund. We may deduct the Return/Cancellation fee from out of any moneys otherwise due to be refunded to You by Us.

12.6  Expenses: You must pay any out of pocket expenses incurred by Us in providing the Services to You in addition to the Rates, charges and call-out fees, upon written demand. Such expenses will include travel costs, flights, car hire, petrol, insurance, taxi fares, accommodation and related meal allowance, tolls and car parking expenses. Where appropriate, We will obtain prior written authorisation from You before such expenses are incurred.

12.7  Separate charges for Goods and Services: We may in Our absolute discretion charge for Goods separately from Services or may charge for Goods and Services together.

12.8  Calculation of increments:  Where a charge is calculated based on increments of time, e.g. 1 hour or 30 minutes, We will charge the applicable rate for the whole increment of time even if work is done during part of, but not for the whole of, that increment of time. 

12.9  Change in underlying costs: Without prejudice to any other rights of Ours under these Conditions, where there is any increase in the underlying costs incurred by Us in connection with the supply of Goods or Services to You, We may, in our absolute discretion, vary any of Our Rates. 

12.10    Pre-Paid Blocks of Service:  Where You agree to buy Pre Paid Blocks of Service during a Period, payment must be made in advance for the Pre-Paid Blocks of Service at the rate applicable pursuant to the Rates Schedule for all Services. Each such rate being less any discount agreed in writing between Us and You in respect of the Pre-Paid Blocks of Service. Services included in a Pre-Paid Block of Service rate during the Period:

12.10.1      are calculated in accordance with the applicable minimum time periods and increments set out in the Rates Schedule; and

12.10.2      are only provided by Us during the applicable Period.  Where Services are provided for a specified Period:

12.10.2.1   the Services remaining unused for that Period cannot be rolled over into any subsequent Period; and

12.10.2.2   We are not liable to refund, re-imburse, pay damages or otherwise compensate or indemnify You in respect of those unused Services. 

13. SERVICES AND PLANS

13.1  Service and Plan Variations: Currently, We offer the Services and Plans referred to in the Rates Schedule and any Plan Schedule.  We may withdraw the provision of, or vary the scope or terms of, or add to or change, the Services without notice to You, from time to time in Our absolute discretion.

13.2  Copies on Request: We will provide You with a copy of the current Rates Schedule upon request. Plan Schedules are tailored for Plans and are available to Clients participating in the Plan.

14. CONTRACTING

14.1  We may subcontract any or all of the Services to be performed by sub-contractors (“Third-Party Suppliers”) but shall retain prime responsibility for the Services under these Conditions.

14.2  We are responsible for any payments due to the Third-Party Supplier unless You agree to pay the Third-Party Supplier directly.

14.3  If We use any Third-Party Supplier to provide the Services, You agree that:

14.3.1  the use of the service provided by the Third-Party Supplier may be subject to any service level agreement as provided by the Third-Party Supplier;

14.3.2  in the event of any failure of the Third-Party Supplier that may prevent Us from providing any of the Services, We will make reasonable efforts to rectify the failure in a timely manner but do not guarantee that the failure can be rectified;

14.3.3  the Third-Party Supplier is responsible for maintaining the service it provides to a level as set out in the service level agreement of the Third-Party Supplier; and

14.3.4  We are not responsible for any act, omission, or failure of the Third-Party Supplier, and you expressly indemnify us for any loss or damage You incur as a result of the same.

14.4  Where You agree to pay a Third-Party Supplier directly or where the Third-Party Supplier maintains a separate agreement with You, then You acknowledge that You are responsible for the payment of the Third-Party Supplier’s fees.

14.5  Where You are party to an agreement with a Third-Party Supplier and that agreement relates to the provision of Goods and/or Services under this Agreement, You acknowledge and agree that the terms of this Agreement shall prevail over any inconsistency with Your agreement with the Third-Party Supplier.

14.6  Where We are required to interact with any Third-Party Suppliers or manage any Third-Party Suppliers on Your behalf and this interaction or management falls outside the scope outlined in the Quote, Order or Plan, then You agree that We will pass on any costs incurred and charge for the work outside of the Quote, Order or Plan.

15. DELIVERY, TITLE AND RISK

15.1  Delivery liability: We will use all reasonable endeavours to despatch Goods by the due date, but do not accept any liability for non-delivery or failure to deliver on time where this is caused by circumstances beyond the reasonable control of Ours, including, for example, due to failures in supply to Us or delays caused by third parties, such as delivery companies or manufacturers.

15.2  Availability to accept delivery: You must be available to accept the Goods at Your nominated delivery address during Business Hours unless otherwise arranged.

15.3  Passing of Risk: Delivery is deemed to take place when the Goods are delivered to Your nominated address, whereupon risks of loss, breakage and all damage and all other risks pass to You. Nothing in this clause 15.3 will affect title to the Goods.

15.4  Obligation to insure: You will ensure that Goods are adequately insured from the time of delivery under clause 15.3. 

15.5  Retention of Title: Until We receive full payment in cleared funds for any moneys due to Us by You on any account or for any reason:

15.5.1  Title to, and property in, Goods supplied to You remain vested in Us and does not pass to You;

15.5.2  You must hold those Goods as fiduciary bailee and agent for Us and must not sell them;

15.5.3  You must keep those Goods separate from other goods and maintain the Goods and their labelling and packaging intact;

15.5.4  Where You sell the Goods in breach of these Conditions, You are required to hold the proceeds of any sale of those Goods on trust for Us in a separate account (however any failure to do so will not affect Your obligation to deal with the proceeds as trustee and remit them to Us);

15.5.5  We may, without prior notice, access any business premises where We suspect the Goods are located, take possession of the Goods, and remove them (even if they are attached to other items not owned by Us). For this purpose, You irrevocably authorise and direct Us, along with Our employees and agents, to enter such business premises as Our duly authorized representatives. You also agree to indemnify and hold Us harmless against any costs, claims, allegations, demands, damages, expenses, or any other liabilities arising from or connected to such entry, repossession, or removal.

15.5.6  You irrevocably appoint Us as Your attorney to do anything We consider necessary to enter such premises and repossess the Goods as contemplated by this clause 15.5 and agree to indemnify Us against any claims, losses or damages sustained by a third party as a result of us reasonably exercising our rights under this clause 15.5.6.

15.6  Our Equipment: Where required for the provision of the Services, We may supply you with equipment (“Our Equipment”). You acknowledge and agree that Our Equipment will belong to Us and remain Our absolute property. You are responsible for Our Equipment and are required to notify Us where You become aware of any loss of, damage to or malfunction of Our Equipment. You agree to compensate Us for any loss or damage to Our Equipment, save for fair wear and tear, unless We directly cause the damage.

15.7  Permitted Actions: In relation to Our Equipment, You must:

15.7.1  only permit Our Equipment to be installed, repaired, serviced, moved or disconnected by Us, unless otherwise permitted by Us in writing; and

15.7.2  comply with Our reasonable instructions in relation to Our Equipment.

15.8  Our Equipment on Termination: Upon termination of this Agreement for whatever reason, You agree to return Our Equipment to Us or to make Our Equipment available to Us for collection as reasonable required by Us in writing. Where You fail to comply with this clause 15.8, We may, without prior notice, access any business premises where We suspect Our Equipment is located, take possession of Our Equipment, and remove them (even if they are attached to other items not owned by Us). For this purpose, You irrevocably authorise and direct Us, along with Our employees and agents, to enter such business premises as Our duly authorized representatives. You also agree to indemnify and hold Us harmless against any costs, claims, allegations, demands, damages, expenses, or any other liabilities arising from or connected to such entry, repossession, or removal.

16. RETURNS AND CLAIMS FOR GOODS AND SERVICES

16.1  General Returns Policy:  Notwithstanding anything in these Conditions, You acknowledge that We supply Goods subject to all applicable conditions, including returns and claims policies, of any relevant manufacturer or supplier. You will accept Goods subject always to these Conditions and the terms of such conditions and will indemnify and hold Us harmless in respect of any further or other obligation or any failure or default on the part of that manufacturer or supplier.

16.2  Customised Goods not returnable: Where Goods have some element of customisation for You, are supplied pursuant to an Order for Goods that is in the opinion of Ours special or unusual, the Goods are obtained from overseas, the Goods are obtained from a supplier who is no longer trading, or the Goods are otherwise not readily returnable by Us to the manufacturer or supplier or any related services may not be cancelled, You may not return the Goods to Us or cancel the related services.

16.3  Duty to inspect: You will inspect all Goods immediately upon their delivery. Within 7 days of such delivery You may give written notice to Us of any matter or thing, by reason of which You might wish to return the Goods, ask for a refund, or make a claim.  If no such notice is given on time, You will accept the Goods without any such return, refund or claim.

16.4  Return Condition: Where You are entitled to return Goods under these Conditions, You must return the Goods in their original condition and unopened, provided always that where, upon opening the packaging it becomes apparent that the Goods are different to what is described on the packaging or that the Goods are faulty, the Goods may be returned.

16.5  Return costs: You will pay all costs and expenses incurred by Us in arranging the return of the Goods to a manufacturer or supplier and/or the cancellation of any related services unless that manufacturer or supplier pays such costs. 

16.6  Consequences of use, installation, customisation or sale:  You will indemnify and hold Us harmless in respect of all allegations and claims in respect of Goods once such Goods have been used, installed, customised or re-sold by You (without prejudice to the recourse of such a customer to the manufacturer of the Goods).

17. COMPUTER UTILITY, FUNCTIONALITY AND FITNESS FOR PURPOSE

17.1  Service limitations given the science of computing: You acknowledge that a reasonable incident of the Services may involve trial and error and that it is a science applied often in novel or unknown circumstances and involving experiment. In particular, You acknowledge that the Services may involve tests, troubleshooting, advice and recommendations that may prove incorrect or inappropriate, particularly in an attempt to cure a problem You are having. While We will make what We consider (in Our absolute discretion) to be all reasonable endeavours to provide appropriate tests, troubleshooting, sound advice and good recommendations in order to assist You, You will always indemnify and hold Us harmless in the provision of Our Services to You.

17.2  Reasonable Assistance Limits: We are only obliged to provide what We consider, in Our absolute discretion, to be reasonable assistance in the circumstances (including with the installation and customisation of new Software or Hardware for You or any other Work) under any Plan and You will pay for additional work at the Rates unless otherwise agreed. Without limiting the discretion of Us to determine what reasonable assistance is, normally, reasonable assistance is limited to work done during Business Hours over a period of time not exceeding any period that We have allowed or allows for the Work or has estimated or estimates the Work will take, whether or not notice of the time allowed or estimated is given by Us to You.

17.3  Recommendations, suitability, functionality and fitness for purpose: The parties acknowledge that:

17.3.1     We may recommend that You purchase Goods provided by third parties from time to time;

17.3.2     Recommendations may be made in situations where You have made known to Us the purpose for which the Goods will be used or some function sought to be fulfilled;

17.3.3     You acknowledge that We have no control over many factors involved with the suitability, function or fitness for purpose of Goods in an existing or new computer environment, e.g.

17.3.3.1  The compatibility or ability of the Goods to fit into or perform to expectations in the receiving computer/internet environment; or

17.3.3.2  The behaviour of third-party suppliers, e.g. in relation to support;

17.3.4     You acknowledge that for a whole number of reasons outside of Our control, the Goods may fail to meet Your expectations, may not turn out to be fit for all or any of the purposes sought, may not be suitable or may not function properly in all or any respects;

17.3.5     You acknowledge that the Services provided by Us may involve the very task of seeking to customise Goods so they may be fit for particular purposes and that customisation may be a very substantial project in itself; 

17.3.6     Accordingly, You will accept the sole responsibility for, and indemnify and hold Us harmless in respect of:

17.3.6.1  decisions as to whether or not to follow recommendations by Us;

17.3.6.2  decisions as to whether or not to purchase or customise Goods or obtain Services for that or any other purpose; and

17.3.6.3  any failure or defect in suitability, function or fitness for purpose of any Goods and/or Services, including a responsibility to obtain Your own independent advice or second opinion from a suitably qualified person;

17.3.7     Where We provide Services with a view to achieving Your purposes, suitability, function or fitness for purpose (whether expressed, agreed or otherwise), You must pay for those Services on time without any set-off or counter-claim, whether or not We are able to achieve any of such purposes, suitability, function or fitness for purpose, provided always that We have acted in good faith and have made what We consider, in Our absolute discretion, to have made all reasonable endeavours to achieve those outcomes.

17.4  Testing Procedures: You will follow the instructions of Ours with regard to testing or troubleshooting any problems and that if those do not resolve the outstanding problems, We will, subject to these Conditions, allocate such resources as We consider reasonable in the circumstances towards their resolution.

18. FORCE MAJEURE

18.1  Force Majeure: If We are unable to supply any Goods or Services due to a Force Majeure Event, We may cancel the Order (even if the Order has already been accepted) or cease to provide the Services by written notice to You, in which case You will hold Us harmless.

18.2  We will not be liable for any breach of contract due to a Force Majeure Event, including failures by third parties to supply Goods and/or Services.

19. PRODUCT SPECIFICATIONS

19.1  Alterations to Specifications: We make every effort to supply the Goods in accordance with the Order however We may supply alternate Goods subject to minor variations in actual dimensions and specifications where these are changed by the manufacturer of the Goods after the Order date and before delivery.

19.2  Substitute Goods: If We cannot supply the Goods ordered by You, We may supply alternate Goods of equal or superior quality provided however that You will not pay a higher price than the price Quoted or otherwise agreed for the Goods ordered.

20. WARRANTIES

20.1  Reliance on Manufacturer’s Warranty: You will rely on the warranties provided by the manufacturer of Goods supplied by Us (where applicable) and will deal directly with such manufacturer rather than Us for all claims covered by such warranties.

20.2  No claim for manufacturer’s default: You indemnify and hold Us harmless in respect of the performance or otherwise, by any manufacturer of Goods supplied to You by Us, of any of the obligations of such manufacturer in respect of such Goods. This includes any damages or moneys due to You arising under, or in connection with, any breach by the manufacturer of any the manufacturer’s warranties in respect of the Goods.

20.3  You expressly warrant that You:

20.3.1     are not Insolvent as at the date of entering into this Agreement;

20.3.2     have the power to enter into this Agreement and have obtained all necessary authorisations to allow You to do so;

20.3.3     have relied on its own skill, knowledge, experience and judgement to verify that the Goods and/or Services meet Your requirements and that You are not relying on any implied warranty of fitness for Your needs;

20.3.4     are responsible for providing clear and concise instructions in a timely manner to Us where requested by Us or as otherwise indicated in a Quote, Order or Plan;

20.3.5     are responsible for ensuring that Your employees, directors, contractors, agents and representatives comply with our reasonable directions;

20.3.6     are responsible for obtaining all applicable regulatory permits, permissions, approvals and licences required for the operation of Your business in relation to the Goods and/or Services;

20.3.7     are responsible for any fees, taxes and other payments due to any party which You directly or indirectly incur due to Your use of the Goods and/or Services. This includes the reporting of income to relevant taxation bodies and other government authorities; and

20.3.8     are responsible for ensuring that Your systems meet the minimum standards which we provide to You in writing.

20.4  You acknowledge that You are responsible for ensuring that You and Your staff do not use our Goods and/or Services:

20.4.1     for any purpose that is unlawful or prohibited by this Agreement;

20.4.2     in any manner that could damage, disable, overburden, or impair Our server, or the network(s) connected to Our server, or interfere with any other party's use and enjoyment of Our Services;

20.4.3     to attempt to gain unauthorised access to any service, other accounts, computer systems or networks connected to Our server through hacking, password mining or any other means;

20.4.4     to attempt to obtain any materials or information through any means not intentionally made available through Our Goods and/or Services;

20.4.5     to transmit or otherwise make available any content or media that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libellous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;

20.4.6     to impersonate, stalk or otherwise harass any person or entity;

20.4.7     to transmit or otherwise make available any content that You do not have a right to make available under any law or which infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;

20.4.8     to transmit or otherwise make available any unsolicited or unauthorised advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation unless expressly authorised to do so; or

20.4.9     to collect or store personal data about other users.

21. LIABILITY AND INDEMNITY

21.1  Exclusion: Except as specifically set out herein and so far as may be permitted by law, any term, condition or warranty in respect of the quality, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Goods or Services, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded.

21.2  No liability for program or data loss: You indemnify and hold Us harmless in respect of any allegation, claim, loss or expense of Yours or any third party for any program or data loss or damage suffered by You or that third party arising directly or indirectly from the supply of the Goods or Services by Us to You.  You acknowledge You are solely responsible for backing up Your programs and data in order to mitigate Your own potential loss of programs and data.

21.3  Limit on consequential damage: You indemnify and hold Us harmless in respect of any allegation or claim as to any indirect or consequential losses or expenses suffered by You or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to You or any third party.

21.4  Limit on damage from a failure in supply: You indemnify and hold Us harmless for any allegation or claim for loss or damage by You or a third party where We have failed to meet any delivery date or cancels or suspends the supply of Goods or Services.

21.5  General limit on liability: Except as otherwise expressly stated in these terms and conditions, We are not liable for any loss or damage of any kind however caused (including, but not limited to, by the negligence of Us) which is suffered or incurred by You in connection with:

21.5.1    Goods or Services provided to You or any Work;

21.5.2    these Conditions;

21.5.3    Your use of Our website (including the use of a credit card or other debit device) or any linked website;

21.5.4    the non-availability of Goods or Our Services for any reason;

21.5.5    Your breach of this Agreement;

21.5.6    any act or omission of Ours or the provision of inaccurate, incomplete or incorrect information by You; or

21.5.7    for any other reason whatsoever.

21.6     Limitation options: To the extent that any legislation implies a condition or warranty that cannot be excluded but can be limited, clause 21.5 does not apply to that liability and Our liability for any breach of that condition or warranty is limited to Our doing any one or more of the following (at its election):

21.6.1    replacing the Goods or supplying equivalent Goods, Services or Work;

21.6.2    repairing the Goods or the Work;

21.6.3    paying the cost of replacing the Goods or the Work or acquiring equivalent Goods, Services or Work; or

21.6.4   paying the cost of having the Goods or the Work repaired.

21.7     Indemnity: You agree to indemnify Us and to keep Us, Our officers, employees, agents and personnel indemnified against all costs, expenses, charges, losses and damages (including consequential loss and damage) suffered or incurred by You, Your officers, employees, agents or personnel, or any other third party, which arises from or is in connection with:

21.7.1    any breach of this Agreement by You or any express or implied warranty, or any third party terms and conditions;

21.7.2    any unauthorised use of the Goods and/or Services;

21.7.3    any breach of any licences provided as part of the Goods and/or Services;

21.7.4    any breach of a term and condition related to the provision of a good and/or Service, including the terms and conditions of third party vendors;

21.7.5    any cybersecurity breach which may arise as a result of the provision of the Goods and/or Services;

21.7.6    any issue, defect or malfunction associated with any Goods and/or Services that have been supplied by a third-party; or

21.7.7    any action or failure to act, breach of duty or breach of law, negligence, fraud or wilful misconduct by You, and any claim made by a third party as a result.

This indemnity will continue to apply after the expiration or termination of this Agreement.

21.8  Cybersecurity: You acknowledges that it is impossible to guarantee the safety and security of Your Environment against cybersecurity breaches. On that basis, You agree to waive your right to any and all actions, suits, proceedings, claims, demands, and damages of whatsoever nature and howsoever occurring, whether in contract, tort (including negligence), breach of statutory duty or otherwise, which may be brought against or made upon Us by You arising directly, indirectly or in any other way connected with Our engagement where:

21.8.1    You are subject to one or more cybersecurity breaches; or

21.8.2    We have provided advice or recommendations to You and You elect not to act in accordance with Our advice or recommendations.

21.9     Laws still apply: Nothing in these Conditions is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the supply of the Goods or Services which cannot be excluded, restricted or modified.

21.10  Severance: If any provision contained in the Conditions is unlawful, invalid or unenforceable, those provisions may be severed without prejudice to the validity and enforceability of the remaining provisions of the Conditions.

22. ERRORS AND OMISSIONS

22.1     We make every effort to ensure that all prices and descriptions quoted are correct and accurate. In the case of an error or omission, We may rescind the affected contract by written notice to You, notwithstanding that We have already accepted Your Order and/or received payment from You. Our liability in that event will be limited to the return of any money You have paid in respect of the Order.

OUR RESPONSIBILITIES

23. PRIVACY STATEMENTS AND YOUR RIGHTS

23.1     We are collecting Your personal information for the fulfilment of Quotes, Orders and the provision of Goods or Services to You and We may retain and use it for any such purposes (“Authorised Purposes”).

23.2     You are required to provide your personal information to Us for Authorised Purposes.

23.3     We may disclose Your personal information to other persons for the purposes of the fulfilment of Quotes, Orders and Work for You or in order to provide Goods or Services to You, to verify the information You provide, for enquiries about Goods or Services that may be suitable for your purposes, or to confirm Your requirements, to anyone proposing to supply Goods or Services to You, or to acquire Goods or Services on Your behalf, or in respect of enquiries relating to any of the foregoing.

23.4     Otherwise We will not disclose Your personal information without Your consent unless authorised by law.

23.5     Your personal information will be held by Us at Our Principal Place of Business and You can contact Us to request to access or correct it.

23.6     We rely on You to submit correct information and details where requested. You accept that You may incur additional expenses if You submit incorrect information.

23.7     The parties agree:

23.7.1    to comply with those provisions of the Privacy Act which concern the security, use and disclosure of personal information (as defined in the Privacy Act) as if it were an APP entity, credit provider or a tax file number recipient as defined in the Privacy Act; and

23.7.2    to immediately notify the other party of any breach of this clause 23 (including where the party should reasonably suspect such a breach has occurred), and co-operate with the other party in the investigation, or resolution, of any such breach, or any complaint alleging a privacy breach.

24. OUR WEBSITE AND THIRD PARTY WEBSITES

24.1     We make no representations or warranties in relation to information available on Our website, including without limitation:

24.1.1  that the information on Our website is complete or correct;

24.1.2  that Our website will be continuously available or free from any delay in operation or transmission, virus, communications failure, internet access difficulties or malfunction in hardware or software; and that We endorse any internet site linked to Our website or any third party products or services referred to on Our website.

24.2     Our Website, the Goods and/or Services may contain links to other goods and services of third-parties. We do not endorse or otherwise approve the owners or operators of any third-party’s business, website, or the information, graphics and material on those websites or the goods or services (including software) offered on those websites.

24.3     To the extent permitted by law, We are not responsible or liable for, and gives no warranty in respect of, any third-party website, application of the goods and services (including software or hardware) offered by a third-party or any information appearing in any good or service We may offer.

24.4     We may receive payments from third-parties in relation to Goods or Services supplied or received as a result of users and third-parties accessing third-party services or any links to third-party applications or websites contained on Our website.

24.5     Third-party applications and websites are not subject to Our privacy standards, so You are responsible for reviewing the privacy policy and any other relevant notice that appears on a third-party application or website.

25. INSURANCE COVERAGE

25.1     We will maintain at Our own expense, commercial general liability insurance for personal injury and property damage for a general aggregate of $2,000,000. At Your request We will provide You with certificates, including renewal certificates evidencing such coverage within thirty (30) days of commencing this Agreement, at every renewal and at other times as may be reasonably requested by You.

YOUR RESPONSIBILITIES

26. LODGING OF SERVICE REQUESTS

26.1     In order for Us to provide You with the agreed Service, You agree to follow Our process for lodging of Service Requests as outlined in Appendix A.

27. ACCESS TO SYSTEMS, SITES AND PEOPLE

27.1     In order to provide You with the agreed Service, You agree to give Us access to various items of Yours including but not limited to, equipment, people and sites as and when required.

27.2     You agree to allow Us to install software on Your Equipment that allows Our technicians to access Your systems at any time. This software allows Us to view system statuses, send monitoring information, see users’ desktops and control Your PC’s. This may require that devices are left on overnight or weekends.

27.3     Where We are required to conduct a site visit, You are responsible for ensuring that your site is clean, accessible and free from any occupational health and safety risks for the duration of Our Onsite Visit. You agree that You are liable for, and indemnify us against any claims or damages which arise due to any injuries or damage sustained by Our representative or a third party while at your site during an onsite visit, except to the extent that the injuries or damage arose due to Our negligence, fraud or wilful misconduct or that of Our representative.

28. THIRD PARTY AUTHORISATIONS

28.1     At times We may need to contact Your third party providers on Your behalf, such as Your internet provider. Some of these providers may require Your authorisation for Us to deal on Your behalf. It is Your responsibility to ensure that We are able to deal freely with these providers.

29. PAYMENT, LATE PAYMENT AND DEFAULT

29.1     Payment due date: All invoices issued to You are due and payable to Us within the terms stated on the invoice (unless otherwise agreed in writing) by cash, cheque, credit card or direct deposit in accordance with these Conditions and in the way set out in the Invoice.

29.2     Overdue Invoices: Where You fail to pay an invoice within seven (7) days of the due date, We may, in Our absolute discretion and without prior notice, suspend or discontinue the supply of Goods and/or Services to You.

29.3     Recoveries:  All legal and other costs and expenses incurred in connection with the recovery of late payments will be added to the amount due by You to Us and will be recoverable from You, in addition to the original invoice cost. If You default in payment of any invoice on time, moneys which would have become due by You at a later date shall be immediately due and payable without any further notice to You. Collectively, all of these moneys are referred to in these Conditions as a “Sum Due”.

29.4     Interest: If payment of any Sum Due is not made on time, We will charge interest daily on the Sum Due at the maximum rate allowed by law, calculated and charged daily on and from the due date until the Sum Due is paid in full.

29.5     Application of Funds: All payments of the Sum Due made by You to Us will be applied as follows:

29.5.1  First in or towards payment of any costs (including legal costs), charges, expenses or outgoings paid by Us in relation to any dishonoured cheque fees, collection costs or any other action taken by Us for the recovery of any amounts owing by You to Us;

29.5.2  Secondly, in or towards payment of any interest due or payable hereunder, and;

29.5.3  Thirdly, in or towards payment of Your debts to Us in order from the longest standing due to the most recently incurred.

29.6     Security: We may require You to provide security over Your property (including the Goods or any other property of Yours) as collateral to be held as security for any Sum Due or as a condition precedent to the continuation of supply of Goods or Services by Us to You.

29.7     Payment Arrangements: In the event that a repayment arrangement is made in relation to any Sum Due and the supply of Goods or Services is resumed, but then a repayment due under that arrangement is not made on time, We may, in Our absolute discretion and without prior notice, again suspend or discontinue the supply of Goods or Services to You. 

29.8     Power of Attorney:  You hereby irrevocably appoint Us as Your attorney to do anything We consider fit for the recovery of the Sum Due or the creation, perfection or enforcement of any collateral held or to be held as security for any Sum Due.

29.9     Other Remedies: We may exercise any of Our rights and remedies including taking legal action against You for the recovery of any moneys due to Us, notwithstanding it may have exercised other rights under these Conditions.

30. NON-SOLICITATION OF CLIENTS AND EMPLOYEES

30.1     To reasonably protect Our goodwill and legitimate business interests, during the term of this Agreement and for the Restraint Period and within the Restraint Area, You shall not directly or indirectly:

30.1.1  canvass, solicit, induce or encourage any person who was Our employee or contractor to leave Us; or

30.1.2  interfere in any way with the relationship between Us and Our employees, clients, customers, contractors, or suppliers.

30.2     The covenants given by You in this clause 30 will apply and may be enforced against You, regardless of the reason(s) for the termination of this Agreement.

30.3     You acknowledge that any breach of clause 30.1.1 by the You will cause Us to incur a loss given the substantial investment of time and money We spend training Our employees and building Our business network. Where You breach clause 30.1.1, You acknowledge and agree to compensate Us for any reasonable costs we incurred for the training of the relevant employee, as well as the reasonable costs we incur to advertise, recruit and train a replacement employee.

31. SOFTWARE

31.1     All Software licences are the responsibility of You and not that of Us. It is the duty of Yours to store all licences for all Software used, so that that they can be reproduced if and when required. This includes all Software installed by Us.

31.2     You indemnify and hold Us harmless against any claim, allegation, loss, damage or expense arising directly or indirectly from:

31.2.1  any unauthorised Software use by You;

31.2.2  any breach of any Software licence in respect of Software provided to Us by You to be installed on one of Your computers;

31.2.3  otherwise as a result of Us installing Software at Your request where You are not authorised to use the Software; and

31.2.4  any problem, defect or malfunction associated with any Software (or related services) supplied by third parties.

31.3     All copyright in custom software remains the sole property of Ours unless alternate arrangements are made as part of a separate software agreement.

32. Intellectual property

32.1     The ownership of both parties’ Intellectual Property rights in existence prior to the commencement of this Agreement are unaffected by any term of this Agreement.

32.2     You acknowledge that We may, or another party may, copyright the Goods and/or Services and You agree not to remove, alter, or destroy any form of copyright notice, proprietary markings or confidential legends placed upon or contained in the Goods and/or Services.

32.3     You warrant that all designs or instructions given to Us will not cause Us to infringe any Intellectual Property rights. You agree to indemnify Us against any action taken by a third party against Us in respect of any such infringement.

32.4     You grant Us a non-exclusive licence to use Your Intellectual Property as required to provide the Goods and/or Services to You.

32.5     You authorise Us to use images of any Goods designed, supplied or installed by Us for Our reasonable business purposes, including but not limited to marketing and advertising materials and display on Our website.

32.6     Any discovery, design, invention or secret process or improvement in procedure made or discovered by Us either alone or in conjunction with another person, whilst providing the Services, will belong to Us and be Our absolute property. We would own all rights in respect of the materials or deliverables arising under the Copyright Act 1968 (Cth).

33. Confidentiality

33.1     Both parties agree to take all reasonable measures to ensure the Confidential Information of the other party is protected against loss and against unauthorised access, use, modification, disclosure or other misuse and that only authorised representatives, employees and officers have access to such information.

33.2     You shall not use our Confidential Information except as required to perform Your obligations under this Agreement.

33.3     We shall not use Your Confidential Information except as required to perform Our obligations under this Agreement or as otherwise provided for under this Agreement.

33.4     All Confidential Information supplied between the parties shall, at all times, be and remain the exclusive property of the disclosing party and securely stored by the other party until returned to the disclosing party, and shall not be used other than in accordance with the disclosing party’s written instruction and authorisation.

33.5     We may make a disclosure of Your Confidential Information (taken to include the terms of this Agreement), if We reasonably believe it is necessary to:

33.5.1  third party suppliers of professional services, including but not limited to legal advisers and insurance providers;

33.5.2  credit reporting agencies or credit providers for the purpose of obtaining a consumer credit report about You and to assess Your creditworthiness; or

33.5.3  any of Our officers, employees, or other agents where it is necessary to disclose such information.

34. Exclusivity

34.1     We are the exclusive provider of the Services and/or Goods to You for the duration of this Agreement. You agree to acknowledge and endorse Us as Your sole provider of the Goods and/or Services and will establish policies to encourage Your employees to utilise Our Goods and/or Services.