Terms and Conditions
We agree to supply services to you, and you agree to purchase goods, products and/or services from us according to the terms and conditions set out in this Agreement, being these Trading Terms and the associated Quote(s) and Service Schedule(s).
These Trading Terms apply in respect of any goods, products and/or services we agree to provide to you in relation to which we notify you these Trading Terms apply.
1. Definitions and interpretations
In this Agreement:
ACMA means the Australian Communications and Media Authority.
ACCC means the Australian Competition and Consumer Commission.
Agency means any or all of the following: the Australian Security Intelligence Organisation (ASIO), the Australian Federal Police, the police service of each state and territory of Australia and all other enforcement, crime, anti-corruption, counter terrorism and national security commissions, authorities, bodies, agencies or organisations established under federal, state or territory law.
Agreement means the agreement referred to in clause 2.1(a) of these Trading Terms, being the agreement between us and you constituted by these Trading Terms, the Quote(s) and associated Service Schedule(s) and Service Fee Schedule(s) (if any) in respect of the Relevant Service(s).
Associate has the meaning given in section 15 of the Corporations Act.
Business Day means a day which is not a Saturday, Sunday, public holiday or bank holiday in NSW or QLD appropriate to which state is closest to where the service is located.
Carriage Service has the same meaning as in the Telecommunications Act.
CCA means the Competition and Consumer Act 2010 (Cth).
Change of Control means the occurrence of any the following in relation to you:
a. Control or influence:
c. Hold or have a beneficial interest of 20% or more in any category of the profits, distributors or net liquidation proceeds of yours;
(b) A competitor acquires a direct or indirect interest of 20% or more of your issued capital (or any entity that controls you); or
(c) A third party acquires a direct or indirect interest of 20% or more of your issued capital and that third party: is an entity in which a Competitor holds a direct or indirect interest of 20% or more of its issued capital; or holds a direct or indirect interest of 20% or more of the issued capital of a Competitor.
(b) a service provider that resells services for any such operator or a Related Body Corporate of such a service provider; or
(c) a third party that has an indirect or direct interest in 50% or more of the issues share capital, of any entity described in paragraph (a) or (b).
(a) the terms of this Agreement; and
(b) communications, information, data, documents, reports, plans, records, invoices, quotes, proposals, terms and/or conditions of trade and other materials belonging to or being disclosed by a Party (‘Disclosing Party’) (in any form) which:
i. that Party regards, marks, indicates or identifies as confidential; or
ii. by its nature is reasonably understood to be, or ought to be understood to be, confidential in nature; or
iii. is, or comes into the knowledge or possession of, the other Party by reason of this Agreement or the disclosure by the Disclosing Party; and
(c) information, including personal information, pertaining to, concerning, or relating to, a Party or its clients, customers, agents, contractors, suppliers or employees; and
(d) communications, information, data, documents, reports, plans, records, invoices, quotes, proposals, terms and/or conditions of trade and other materials pertaining to, concerning, relating to, or in connection with, a Party’s business, this Agreement or the Services; and
(e) the corporate structures and business systems and procedures of a Party, except to the extent that in relation to any particular communications, information, data, documents, reports, plans, records, invoices, quotes, proposals, terms and/or conditions of trade or other materials, that particular material: was obtained by a Party from a third party bona fide and without any breach of confidence; or is in the public domain, or subsequently becomes publicly available, other than by reason of a breach of this Agreement by the other Party and through no fault of that other Party.
Contract Date means the date of this Agreement.
Corporations Act means the Corporations Act 2001 (Cth).
Commencement Date for a Service means the earlier of: the date for commencement of the Service set out in the relevant Quote and/or the Service Schedule; and the date on which we make the Service available to you or deliver the Service to you (as applicable).
Delivery Date means the delivery date for Equipment as specified in the Quote(s) and/or Service Schedule(s).
Discloser means the discloser of Confidential Information.
Early Termination Fee means, in respect of a Service, an amount calculated by multiplying the Fees in respect of that Service by the remaining months (or part thereof) of the Initial Term for that Service, or subsequent terms of the Service (as applicable) and any outstanding charges including Establishment Fee or part thereof. If the Service is not of a recurring nature (such as one off payment for goods), the Early Termination Fee in respect of that Service shall be an amount notified to you by us calculated based on the margin or profit that we would have otherwise received but for the termination of the Service and the amount we have paid to obtain that Service from a Supplier.
End User of any entity means a person to whom that entity supplies services or products and includes an employee, agent or contractor of that person.
Equipment mean any approved equipment, system, hardware, software or firmware provided by us to you in connection with the Services.
Establishment Fee means the fee payable for installation of Equipment and any other fees associated with establishing a Service, as set out in the Quote and/or Service Schedule.
Fault means any fault, error or failure relating to a Service.
Fees means in relation to a Service, all the charges payable by you for that Service (including the charges for usage of the Service and, where applicable, Equipment charges, installation charges, connection charges and access changes) as set out or referred to in the Quote(s) and/or Service Schedule(s), as amended from time to time by us in accordance with this Agreement.
Force Majeure Event means an event, the cause of which not reasonably within the affected Party's control or the control of any Related Bodies Corporate, including but not limited to fire, storm, flood, earthquake, act of God, war (whether declared or undeclared), acts of terrorism, industrial dispute, blockade, lightning, explosion or meteor, governmental restraint, expropriation or prohibition.
Government Agency means any government or governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity.
Head Licence means any agreement or arrangement between us or any Supplier and the owner or licensor of any third-party software which is sub-licensed by us under this Agreement.
Initial Term means, in respect of a Service, the minimum commitment period under which you have agreed to receive and pay for the Service as specified in the Quote and/or relevant Service Schedule.
Insolvency Event mean, in relation to a Party, any one or more of the following events or circumstances;
(a) Being in liquidation or provisional liquidation or under administration;
(b) Having a controller (within the meaning of the Corporations Act) or analogous person appointed to it or any of its property;
(c) Being unable to pay its debts or being otherwise insolvent;
(d) Becoming an insolvent under administration, as defined in section 9 of the Corporations Act•
(e) Entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors;
(f) Any analogous event or circumstance under the laws of any jurisdiction; or
(g) Taking any step or being the subject of any action that is reasonably likely to result in any of the above occurring,
Unless such an even or circumstance occurs as part of a solvent reconstruction, amalgamation, compromise, arrangement, merger or consolidation approved by the other Party.
Intellectual Property Rights includes both in Australia and throughout the world, any copyright, trad or service mark, design, patent, semiconductor or circuit layout right, trade, business or company name, indication of source or designation of original or other proprietary right, or any right to registration of such rights and Intellectual Property has a corresponding meaning.
Interception Act means the Telecommunications (Interception and Access) Act 1979 (Cth) as amended.
Intervening Event mean an event beyond our reasonable control which interferes with an prevents us from providing the Services to you but not a Force Majeure Event. Such events include any act or omission of the Supplier, any disruption to our or our Supplier's networks, infrastructure and equipment, failure of any electrical power supply, changes to any Laws or regulations.
(a) principles of law or equity established by decisions of courts;
(b) statutes, regulations or by-laws of the Commonwealth, a State, a Territory or a Government Agency; and
(c) requirements and approvals (including conditions) of the Commonwealth, a State, a Territory or a Government Agency that have the force of law.
Network has the same meaning as "Telecommunications Network" in the Telecommunications Act.
Party means a party to this Agreement and “Parties” shall have the corresponding meaning.
Our Account means our bank account notified to you from time to time.
Our Network means any telecommunications network, equipment, facilities or cabling controlled or utilised by us.
Our Property means any items of property owned by us or under our control and includes any materials, goods, software and Services for which full payment has not been received by us.
Procedures means the procedures governing the manner and process by which you receive accreditation for the Services or undertake duties and functions under this Agreement as notified or provided to you by us and as amended by us from time to time.
Quote means a quote or proposal for the provision of a Service or Services prepared by, which details the Service(s) to be provided by us to you, and may include any or all of the following: a Service Schedule; Service Fee Schedule; the term for which each Service is to be provided or the Delivery Date for the delivery of that Service (as applicable); and details of the Fees payable for that Service (if not in a Service Fee Schedule), Service Materials, and any other terms or conditions on which the Service(s) will be provided under this Agreement.
Recipient means the recipient of Confidential Information. Regulatory Event means:
(a) the enactment, amendment, replacement or repeal of the Telecommunications Act, the CCA or other telecommunications related legislation or regulations; or
(b) the making of a determination or finding by the ACCC, the ACMA or a court of law that all or any part of this Agreement contravenes any provision of any law; or
(c) the determination, addition, variation or removal of a service provider rule (as defined in section 98 of the Telecommunications Act) applicable to a Party; or
(d) the issue, registration, making, promulgation, amendment or replacement of any code or standard by the ACCC or the ACMA or a court of law; or
(e) The issue of a competition notice to a Party under Part XIB of the CCA; or
(f) The grant of an injunction against a Party in relation to a breach or alleged breach of the CCA; or
(g) The giving of a lawful direction to a Party by the ACCC, the ACMA, the Australia Broadcasting Authority or any relevant Minister or other governmental agency or authority; or
(h) The enactment of any legislation, regulation or other statutory instrument or code that effects the lawfulness or otherwise of the Customer Services; or
(i) Any arbitration by the ACCC under Part XIC of the CCA; or
(j) The declaration by the ACCC under Part XIC of the CCA of any service not declared as at the date of this Agreement or a material variation to any service declared as at the date of this Agreement.
Related Body Corporate has the meaning given in section 9 of the Corporations Act.
(b) Where the context permits, also includes the Service Materials associated with the good, product or services described in paragraph (a) above.
(b) Where the context permits, also includes the Service Materials associated with the services described in paragraph (a) above.
Service Fee Schedule means a schedule setting out Fees payable by you to us for the Services supplied by us, as varied by us from time to time, which may be provided with a Quote.
Service Levels means the service levels for the relevant Service as set out in the applicable Service Schedule.
Service Materials means any Equipment, goods or products sold to or provided to you by us as part of providing a Service to you.
Service Schedule means the Service specific terms and conditions for a Service made available by us to you which may be provided with a Quote (which may include the term for which that Service will be provided), as may be varied by us from time to time in accordance with this Agreement.
Site means the site for the delivery of the Equipment as specified in the Service Order and any other location at which we provide Service to you (excluding our premises or the premises of our Suppliers) or from which you use the Services, including places owned, controlled or possessed by you.
Supplier means a Carrier, Carriage Service Provider, telecommunications service provider, a wholesale supplier of IT equipment; software; or telecommunications services, supplier of IT services, goods, or other supplier who we use from time to time, in order to supply the Service(s) or any part of them.
Telecommunications Act means the Telecommunications Act 1997 (Cth).
Territory means Australia and any other place in which we provide products or services.
Third Party Equipment means any equipment that is used by you or End Users to access the Services which is not approved or provided by us.
Trading Terms means the terms and conditions constituted by this document.
Warrant means a valid warrant issued under the Telecommunications Act or the
In this Agreement, unless the context otherwise requires:
(a) Words importing the singular include the plural and vice versa;
(b) Other parts of speech and grammatical firms of a word or phrase defined in the deed have a corresponding meaning;
(c) An expression importing a natural person includes a company, partnership, joint venture, association, corporation or other body corporate and a Government Agency;
(d) A reference to a law includes a constitutional provision, treaty, decree, convention, statue, regulation, ordinance, by law judgement, rule of common law or equity or a rule of an applicable stock exchange and is a reference to that law as amended, consolidated or replaced;
(e) A reference to a document includes all amendments or supplements to that document, or replacements or notations of it;
(f) A reference to a party in a document includes that party's employees, officers, members, agents, contractors, successors and permitted assigns;
(g) A reference to an agreement, other than the Agreement, includes an undertaking, deed, agreement or legally enforceable arrangement or understanding, whether or not in writing;
(h) Wherever "include" or any form of that word or similar expression is used, it must be construed as if it were by "(without being limited to)";
(i) Where the day on or by which something must be done is not a Business Day, that thing must be done on or by the following Business Day;
(j) If you comprise more than one party, each of those parties will be jointly and severally liable for the performance of your obligations under this Agreement;
(k) Headings are for convenience only and do not affect the interpretation of the Agreement; and
(l) This Agreement must not be construed adversely to a party just because that party prepared it.
2.1 Terms of Agreement
(a) The Parties acknowledge and agree that these Trading Terms, together with the Quote(s), and Service Schedule(s) and Service Fee Schedule(s) (if any), provided to you with and at the same time as these Trading Terms constitutes an agreement between us and you for us to provide you with, and you to purchase from us, the Services.
(b) The Parties acknowledge and agree that this Agreement is the entire agreement between the Parties in relation to the Service(s) and supersedes any prior agreements or communications between the Parties in respect of those Services.
(c) The provision of a Service by us under this Agreement to you is subject to and so provided the terms of the applicable or relevant Service Schedule, in addition to these Trading Terms.
(d) If there is an inconsistency between these Trading Terms and a Quote and/or Service Schedule, the provisions of these Trading Terms prevail to the extent of any such inconsistency, except where stated otherwise in these Trading Terms.
(e) These Trading Terms are to be read together with the associated Quote(s) and Service Schedule(s).
(f) These Trading Terms shall also apply in respect of any Service, good(s), product(s) or service(s) we provide to you in respect of which we notify you that these Trading Terms apply.
(g) In the event you agree to or procure, acquire or obtain goods, products or services from us that are not the Service at any time other than the time at which you agree to obtain the Services from us under this Agreement, or any renewal of any agreement between us and you to provide the Services, any such agreement(s) between you and us in relation to those other goods, products or services is a separate agreement to this Agreement and does not in any way affect, alter or vary this Agreement.
(h) We may at any time change or vary the any of the terms and conditions of this Agreement (acting reasonably) (“Updated Terms”), in which case we must take reasonable steps to give you reasonable notice of the Updated Terms. You agree, including for the purposes of this clause 2.1(h), that: it is reasonable for us change or vary any term or condition of this Agreement to reflect a change or variation in the terms or conditions on which Supplier(s) provide the Service(s); and notification on our website of the Updated Terms is a reasonable to notify you of the Updated Terms.
The Parties acknowledge that:
(b) We may promote and sell ourselves, or appoint other agents, dealer or service providers to promote or sell, the Services in the Territory from time to time. Therefore, we and these entities may compete with you.
2.3 You must not resell the Services
(b) Your ability to resell any of our services remains prohibited and otherwise at our sole discretion with our express prior written consent.
2.4 Provision of Services
(a) We may change, discontinue, or deprecate any of the Service(s) (including the Service(s) as a whole) or change or remove features, functionality or Service Level(s) of the Service(s) from time to time as we deem reasonably necessary. We will use reasonable endeavours to notify you of any material change to or discontinuation of the Service(s) and wherever possible do this before the change is made or the discontinuation occurs. Your ability to resell any of our services remains prohibited and otherwise at our sole discretion with our express prior written consent.
(b) You acknowledge and agree that we may, from time to time, engage Suppliers to deliver or provide any part of, or all of the Service(s), including by sub-contracting the Service(s) to the Supplier(s). In such circumstances and notwithstanding any other provision of this Agreement or a Service Schedule, you acknowledge and agree that the availability and performance of such Service(s) is limited by the availability and performance of the such Service(s) provided by the relevant Supplier, and to the extent permitted by Law we are not liable for, and you release us from any liability (whether arising under this Agreement or otherwise), arising from or in connection with a Fault, reduction or failure in the performance or availability of such Services.
(c) To the extent permitted by Law, we are not liable for, and you release us from all liability howsoever arising in connection with, a failure or degradation in availability or performance of any hardware, software or firmware or other equipment in relation to a Service that is the product or service of a Supplier or third party(ies), including in relation to Service(s) which are in the form of subscriptions for the products or services of a Supplier(s) or third party(ies) that we provide or manage.
3.1 Term of this Agreement
This Agreement commences on the Contract Date and continues, unless terminated earlier by a Party in accordance with clause 14, until the expiry of all Service(s).
3.2 Term of a Service
Unless a Service is terminated pursuant to this Agreement, the term of each Service shall commence on the Commencement Date of the Service and continue:
(b) Unless either Party provides at least 60 days but no greater than 90 days written notice of termination before the expiry of the Initial Term, on a monthly basis which either party may terminate on 30 days' notice ending on any day, or until terminated in accordance with clause 14.
4. Our Obligations
Other than to the extent required by Law, we will use reasonable endeavours to provide you with the Service(s) as described in the applicable Quote(s) and Service Schedule(s).
4.2 Service availability
You acknowledge that the Service(s) may not be available, and the performance of Services may be diminished, from time to time as a result of the number of factors, including:
(a) Capacity constraints;
(b) Electromagnetic interference;
(c) Adverse weather conditions;
(d) Excessive network use;
(e) Equipment failure;
(f) Software failure or viruses;
(g) Improper use of the Service(s);
(h) Force Majeure Event;
(i) Unavailability or failure of performance of Service(s) provided by Supplier(s);
(j) Intervening Event; or
(k) During maintenance activities, and that in such circumstances, we are not obliged to supply the affected Service(s), and you release us from any and all liability (whether under this Agreement or otherwise) arising in connection with unavailability of such affected Service(s).
4.3 Service Levels
We will use reasonable endeavours to provide the Service(s) in accordance with the relevant Service Levels and otherwise within a reasonable time.
5. Your Obligations
(a) Must comply with the requirements set out in any Service Schedule (if any). Each of these requirements is a condition of this Agreement.
(b) Must comply with any directions issued by us to you from time to time relating to the use of the Services or our, or our Supplier's obligations under any applicable Law;
(c) Must not do, or permit to be done, or omit to do any act or thing that would or could cause a Party to be in breach of any condition or other provision of any requirements under any applicable Laws.
(d) Must determine whether the Service(s) requested by you and supplied by us are suitable and fit for the purposes and objectives intended by you. We are not capable of determining all your objectives and requirements in relation to the Service(s) and you represent and warrant to us that you have relied solely on your own skill, inquiries and judgement as to the suitability and fitness of the Service(s) for your purposes and objectives and, to the extent permitted by Law, you release us from any and all liability (howsoever arising) in connection with any failure of the Service(s) to meet your purposes of objectives not explicitly disclosed to us in writing or set out in the Quote(s).
(e) Must as soon as practicable after a request by us, must make available all information, documents and other particulars that we requested, to enable us to provide the Service(s).
(f) hereby grant us a right of access to any relevant Site as required to deliver or provide the Service(s). Where the consent of any third party is required for us to access any relevant Site, you are responsible for arranging such consent.
(g) must advise us in writing within a reasonable time after you become aware of any matter which may change the scope or timing of the Service(s) required by you.
(h) acknowledge that any software which is provided by us will be subject to typical software licensing arrangements which will apply to your use of the software. You agree that you must comply with the terms of such software licensing arrangements and that we are not responsible for monitoring your compliance with software licensing arrangements (unless such monitoring is a specific Service offered by us, in which case relevant Service Schedule may vary this).
(i) acknowledge that we do not audit or independently verify the records or information that you provide to us and it is your responsibility to provide us with complete, accurate and correct information in relation to the Services and this Agreement.
6. Security to be provided
a. If the infrastructure and installation costs required to be incurred by us in connection with preparation for the provision of any Service or Services in respect of any Quote exceeds $5,000;
b. If the monthly service fees in respect of the Services under this Agreement exceeds $5,000; and
c. Any other circumstance which we determine in our absolute discretion.
(b) You must comply with our request under clause 6(a) within 7 days of receiving the request unless otherwise agreed by us.
7. Fees, invoicing and payments
7.1 You remain liable
(a) You are liable for any and all Fees incurred in respect of each Service until each Service is cancelled, or expires in accordance with this Agreement, or is delivered or completed (as applicable). You must pay all charges for each Service pursuant to the Quote(s) and relevant Service Schedule(s) in advance of the provision or delivery of that Service, on and from the Commencement Date of that Service.
(b) All payments that you are required to make to us under this Agreement, including payment of Fees for each Service, must be made without deduction, set-off or counterclaim.
(c) You must pay GST to us on any taxable supply within the meaning of the GST Law made to under this Agreement. Payment of GST must be made at the same time as the amounts to which the GST relates are due.
(d) If there is a change in the scope, timing or order of the Service(s) (including cancellation of Service(s)) and we accept such change(s), then we will be entitled to payment of an additional amount which is reasonable in the circumstances.
(e) In addition to any amount stated in the Quote(s) and/or Service Schedule(s), we are entitled to recover from the you any costs and expenses payable to third parties which we incur in the course of supplying the Service(s) to you which is not included in the Quote(s) or Service Schedule(s) (“Reimbursable Expenses”).
7.2 Changes to Fees
(a) We may review the Fees payable by you under this Agreement on a periodic basis, no more than monthly.
(b) Fees for Services within the Initial Term will not be reviewed or changed until the expiry of the Initial Term unless set out in the Quote(s) or Service Schedule(s).
(c) We may only change the Fees by giving you at least 1 month prior notice of the increase (“Effective Date”). The revised Fees will apply to all Service(s) on or after the Effective Date.
(d) For the avoidance of doubt, fees incurred due to Excess Usage or products or services requested by you and provided or delivered by us which are outside the scope of the Service(s) are payable by you without notice and will be invoiced as an additional fee when applicable.
(e) We may, at our discretion but acting reasonably, increase the fee payable for Service(s) because of any act or omission by you that in any way, directly or indirectly, affects the provision, supply or delivery of the Service(s) including delay in the supply of information, documents, other particulars and access to any relevant Site.
(f) If after the Contract Date there is any change to relevant laws, by-laws, regulations or ordinances of any Australian Government or statutory authority, and that change directly or indirectly affects the costs or Reimbursable Expenses incurred by us in performing the Service(s), then we may elect to vary the prices, amounts and/or Reimbursable Expenses payable to us accordingly.
(a) We will issue an invoice to you (Invoice) in advance, each month for Fees relating to the Services to be provided by us to you for the following calendar month.
(b) We will issue an invoice to you (Invoice) for any Excess Usage or out-of-scope products or services provided by us to you in the previous month and earlier than the previous month (but generally not more than 7 months before the date of invoice) if we have not previously charged you for those services.
(c) We will endeavour to issue Invoices on or around the 15th of each calendar month in respect of Service(s) for the next calendar month and, unless stated otherwise in the Quote(s) or Service Schedule(s), such Invoice(s) must be paid in full within 7 days of the date of the respective Invoice.
7.4 Records conclusive
You acknowledge and agree that our records of Service being supplied or delivered is conclusive evidence that Service was supplied or delivered as recorded.
7.5 You are to pay Fees
(a) You will pay the Fees via electronic funds transfer (EFT) or credit card within 7 days after the date of the Invoice (or such other time set out in the Invoice or Quote(s) or Service Schedule(s)) or by any other means of payment that we notify you is acceptable to us.
(b) Payment of any Fees will only be deemed to have received by us when the amount is shown as having been deposited in Our Account.
(c) If you pay by credit card in an automated and recurring fashions, you must give us at least 14 days prior written notice if you no longer wish to pay by credit card.
7.6 Failure to pay
Subject to clause 7.7, if you do not pay us any amount set out in an Invoice by the due date set out in clause 7.5 or if you pay by credit card and there are insufficient funds in the account, we may, at our sole discretion, do any one or more of the following without prejudice to any other right or rmeedy we may have under this Agreement, at law or in equity:
(a) Charge interest on the outstanding amount at a rate of 10% per annum;
(b) Cease supplying, suspend or restrict the Service(s) and any associated Service Materials on 2 Business Days’ notice to you;
(c) Cease supplying, suspend or restrict the provision of any other products or services not the subject of this Agreement that we may supply to you from time to time;
(d) recover from you any and all costs reasonably incurred in taking any of the abovementioned actions, recovering any and all monies due and payable (including, without limitation, the fee of any mercantile agencies or solicitors appointed by us on a full indemnity basis)
7.7 Fee disputes
a. Identify the relevant Invoice disputed by you and attach a copy of the invoice;
b. Identify which of the particular Fees in the Invoice are disputed by you; and
c. Set out detailed reasons why those Fees are disputed.
7.8 No set-off
You may not set off any payment or amount owed by you to us against any monies that may be, or which you claim or demand are, owed by us to you, unless agreed in writing by us.
8.1 We may review
We (and our agent, nominee and/or insurer) may, from time to time, review your creditworthiness. In doing so, we may seek information or advice from you or an independent person such as a credit reporting agency or credit provider to assist us in a creditworthiness review.
8.2 You are to cooperate
You agree to promptly cooperate with a review of your creditworthiness by providing to us (and our agent, nominee and/or insurer) any information, authorisation or consent reasonably required to conduct any such review including credit checks. Unless otherwise specified by us, the information must be provided within 7 days of our request.
8.3 We are authorised by you
You irrevocably authorise us (and our agent, nominee and/or insurer) to obtain information regarding your creditworthiness from a credit agency or the bank used by you.
9. Representations and warranties
9.1 Application of representations and warranties
Each of the representations and warranties in clauses 9.2 and 9.4 below:
(b) Are separate and independent and are not limited by reference to any other such representation or warranty or any other provision of this Agreement.
9.2 The warranties given by each Party
Each Party represents and warranty to the other Party that:
(a) It is duly incorporated under the jurisdiction of this incorporation, with all requisite corporate power and authority to own, lease and operate its asset and carry on its business as now being operated and conducted;
(b) It has full power and all necessary rights to enter into this Agreement and to perform its obligations according to the terms of this Agreement;
(c) It holds all necessary licenses, consents, authorisations, permits and approvals required by Laws to perform its obligations according to the terms of this Agreement;
(d) It has not, prior to the date of this Agreement, entered into any other agreement which conflicts with its performance of this Agreement or obligations under this Agreement;
(e) This Agreement does not conflict with or result in the breach of or default under any provision of this constitution or any provision of any Law to which it is subject;
(f) This Agreement contains legal, valid and binding obligations and, subject to any necessary stamping and registration, is enforceable in accordance with its terms; and
(g) To its knowledge there are no actions, claims, proceeding or investigations pending or threatened against it, or by it, which may have a material effect on the subject matter of this Agreement.
9.3 No warranty by us
To the extent permitted by Law, we exclude all representations and warranties concerning the Service(s), our performance under this Agreement and otherwise, and you agree that we are not liable for, and you release us from, any and all indirect or consequential loss or damage (or loss or damage not of a direct nature) howsoever arising. Without limiting the foregoing, we do not warrant that the:
(b) Services will be available at all time, or suitable or fit for any purposes, or suitable or fit any purpose that is not expressly notified to us by you in writing prior to the provision of the respective Service by us to you; or
(c) You will make any particular level of return or profit under this Agreement
9.4 Your warranties
You warrant and represent to us, and it is a condition of this Agreement, that:
b. Are not aware of any facts, matter or circumstance which now or in the future could cause you to have a conflict of interest and you undertake not to place yourself in a position where it has a conflict of interest.
c. you do not enter into this Agreement in capacity as trustee of any trust;
b. Must use the Our Property in accordance with agreement procedures and any other directions of ours notified to you from time to time;
c. Must notify us promptly on becoming aware of any damage to or malfunction of the Our Property or that any Our Property requires maintenance of any kind;
d. Acknowledge that we may, subject to giving reasonable notice, and at our cost, change modify, replace or remove Our Property in our absolute discretion;
e. Irrevocably authorize us to, at any time and for any reason including termination of this Agreement,, enter upon any Site at which Our Property is located and take possession of, recover and or remove Our Property (including any ancillary actions necessary in order for us to do those things), and we shall not be liable to you or any other person claiming through you in relation to or connection with us exercising our rights under this clause 10(a)e.
(b) To the extent that we wish to locate Our Property at facilities owned or controlled by you, including a Site, we will request such access and such access must be provided by you provided always that:
a. Access is not required to be given where it is not technical feasible or where the rights of a third party preclude access; and
b. You use reasonable endeavours to obtain the consent of any third part to such access.
(c) You must protect our title to Our Property by:
b. Complying with all reasonable instructions we give you to protect our title; and
c. Not doing anything or authorising anything to be done which might affect our title.
11. Intellectual Property
(b) We retain ownership in all Intellectual Property created by us in providing the Service(s).
(c) Nothing in this Agreement confers on you any right or interest in, or license to use (or permit to cause to be used) any of our, or any third party's (including Suppliers’), Intellectual Property or any of our product, trade or service names.
(d) You represent and warrant to us that the use of or reliance upon any data, design, plan or other information provided to us by you will not infringe any patent, trademark, design, copyright or confidentiality agreement in Australia or elsewhere, and you indemnify us against any liability, loss, claim, damage, cost, expense we suffer or incur as a result of a breach of this warranty.
(e) Any data, design, plan, report or other information developed as a result of the Service(s) is provided to you are for your purposes only and we will bear no responsibility to any other person in respect of such things.
12. Exclusions and limitations of liability
a. Contravene that statute; or
b. Cause any part of this clause to be void.
b. Liability for:
ii. Economic loss, loss of or interruption to business, loss of revenue, loss or profits, loss of data, loss of software, loss of goodwill and loss of opportunity claimed by you whether direct, consequential or indirect and any associated expenses or costs, howsoever arising including arising out of or in connection with this Agreement, negligence or any termination or breach of this Agreement; and it. Representations, condition and warranties implied by custom, the general law or statute.
(d) In relation to the Service(s) supplied by us to you under this Agreement, our liability for the breach of any condition or warranty implied by statute in this Agreement which may be limited but not excluded, is limited, at our election, to:
a. In the case the relevant Service(s) are goods:
ii. Supply of equivalent goods;
iii. Repair of the goods;
iv. Payment of the cost of replacing the goods;
v. Payment of the cost of acquiring equivalent goods; Or
vi. Payment of the cost of having the goods repaired; and
b. In the case the relevant Service(s) are services:
ii. Payment of the cost of resupply of the services.
(e) Nothing in this clause 12 limits the liability of:
b. You under any representation, warranty or indemnity given or made by you.
To the extent permitted by Law, you indemnify us against all losses, actions, claims, costs, expenses and damages (including legal costs on a full indemnity basis) incurred by or awarded against us arising out of, in connection with, or in respect of:
(b) Personal injury or death to any person arising from your act or omission;
(c) Any claim made by any third person that your or an End User's use of the Services(s) infringes the Intellectual Property Rights of a third person;
(d) Any wrongful disclosure of Confidential Information or breach of privacy obligations;
(e) the Service(s), directly or indirectly;
(f) directly and indirectly, this Agreement or the relationship between the Parties and or any third party; and
(g) Any claim made by any third person arising out of or by means of or by reason of anything done or omitted to be done, whether intentionally or not, negligently or otherwise, by you in relation to this Agreement.
14. Termination and suspension
14.1 Early termination of a Service Order by you
Subject to clause 15 and the terms of the Quote(s) and Service Schedule(s), you may terminate a Service:
(b) after the Commencement Date in respect of that Service Order before the expiry of its Initial Term by giving us 60 days written notice and paying the applicable Early Termination Fee
14.2 Termination of a Service and this Agreement by you
You may terminate a Service Order and this Agreement without liability to pay the fees set out in clause 15.2 by giving to us written notice:
(a) if we breach a term of this Agreement and: the breach is material and we are unable to remedy that breach; or
(b) the breach can be remedied, but we do not remedy that breach within 30 days of receipt of a written notice from you requiring that breach to be remedied; or
(c) if an Intervening Event occurs in relation to that Service and you are unable to use the Service for more than 30 days; or if we are the subject of an Insolvency Event.
14.3 Termination of a Service and/or this Agreement by us
We may terminate this Agreement and/or any or all Services supplied under it at any time, without liability, without prejudice to any other rights we may have under this Agreement, at law or in equity, and immediately by notice to you, if:
(b) you breach a material term of this Agreement, including terms relating to the your use of a Service and:
b. that breach can be remedied, but you do not remedy that breach within 30 days of receipt of a notice from us requiring the breach to be remedied;
(d) we reasonably suspect that you, an End User or any person in connection with a Service is fraudulent or illegal conduct in relation to a Service;
(e) we reasonably believe that you may be a credit risk in relation to a Service;
(f) you assign or otherwise deal with your rights under this Agreement without our prior written consent;
(g) there is an emergency
(h) we are required to do so to comply with any law or direction of any regulator including without limitation, the ACMA, ACCC, the Telecommunications Industry Ombudsman, or any other relevant Minister or governmental agency or authority
(i) an Intervening Event occurs and is not rectified within 30 days;
(j) Service is suspended by us in accordance with the terms of this Agreement for a period of more than 30 days;
(k) any of your director, secretary or officer is convicted of a serious Criminal offence which, in our reasonable opinion, is likely to bring us or the Services into disrepute;
(l) a Change of Control occurs in relation to you;
(m) if, in our reasonable opinion, the association with you by virtue of this Agreement, is causing damage to our Brand and we give 30 days' notice to you;
(n) the circumstances surrounding or in relation to the provision of a Service change and we are unable or unwilling to continue to provide the Service;
(o) after the Contract Date, we become aware of information, facts or circumstances that affect the provision of a Service, which facts or circumstances were not disclosed in writing by you to us before the Contract Date and are not set out in the Quote; or
(p) we are otherwise entitled to do so under this Agreement.
15. Consequences of termination
15.1 General consequences of termination
If a Service is terminated for any reason:
(b) You are liable for any Fees incurred up to and including the date of termination, including any applicable Early Termination Fee subject to clause 24.2;
(c) subject to clause 24.1(d), we will refund to you any over payment on your account or any pro-rata payments made in advance for use of that Service the subject of the termination;
(d) you authorise us to recover any undisputed outstanding Fees and Early Termination Fees from any over payment you may have made; and
(e) we will continue to provide to you with the Service(s) which have not been terminated, unless that termination makes it technically unviable to do so or this Agreement is terminated.
15.2 Termination of a Service prior to expiry of Its Initial Term
If a Service is terminated prior to the expiry of its Initial Term for reasons which are reasonably attributable to you (including termination by you) we will charge you the applicable Early Termination Fee which is in addition to any other outstanding Fees which have been incurred by you up to the date of termination.
15.3 Consequences of termination of Agreement
(b) Termination of this Agreement will automatically terminates any Services, including unexpired Services.
(c) All clauses which are either expressly or by implication intended to survive termination will continue to apply after termination including, clauses 15, 16, 18, 19, 20, 22, 23, 24.3, 27, 28 and 32 of this Agreement.
(d) On termination of this Agreement:
a. each Party must return to the other Party all Confidential Information received from the other Party and still held by it or, if the other Party elects, destroy that Confidential Information;
b. each Party must pay the other Party any amount due and owing to the other Party under this Agreement; and
c. you must return to us:
i. all Our Property; and
ii. the original and all copies of the Procedures.
16. Force Majeure
(b) The Party unable to perform its obligations (Affected Party) must:
a. notify the other Party immediately of the Force Majeure Event, including describing the impact or anticipated impact of the Force Majeure Event on the Affected Party's performance;
b. use its reasonable endeavours to continue or resume its performance in accordance with this Agreement as soon as possible, including
ii. making alternative arrangements with a third party or parties to enable it to fulfil its obligations, provided those alternative arrangements are satisfactory to the other Party and do not involve any additional cost to the other Party (unless the other Party agrees otherwise); an
b. arrangements with a third party or parties have been made to enable the Affected Party to fulfil its obligations but the other Party is not prepared to continue this Agreement on that basis.
17. Regulatory Events
(b) The provisions of this Agreement will remain in full force and effect during any negotiations conducted under clause 26(a) above until commencement of any agreement replacing or amending this Agreement.
(c) If the Parties are unable to reach a mutually acceptable solution within 90 days of the commencement of negotiations under clause 26(a) above, either Party may terminate this Agreement on 30 days' notice.
18. Dispute resolution process
18.1 Notice of Dispute
If a Party has any dispute in relation to this Agreement (Dispute) that Party must, before resorting to external dispute resolution mechanisms (except for urgent interlocutory relief), notify the other Party in writing setting out the reasons for the Dispute.
18.2 Escalation of Dispute
Where a notice has been given under clause 18.1 above, the Parties will attempt to resolve the Dispute by referring the matter to their respective Chief Executive Officers (or nominees) who must meet within 5 Business Days of the date of the receipt of the Dispute notice to negotiate a resolution.
18.3 Dispute not resolved – mediation
If, the Dispute has not been resolved to the satisfaction of both Parties within 10 Business Days of the Parties meeting under clause 18.2 above, the Parties will refer the Dispute to a mediator appointed by agreement of the Parties or, where the Parties cannot agree on a mediator, nominated by the Chairperson of the Australian Commercial Disputes Centre or the Chairperson's nominee, for resolution by mediation, for a period of 20 Business Days commencing on the date of referral to the mediator (or such longer period agreed to by the Parties). Each Party will bear its own costs in respect of the mediation. The costs of the mediator will be borne equally by the Parties.
18.4 Dispute not resolved
If the Dispute has not been resolved between the Parties within 10 Business Days of the conclusion of the mediation process, the Parties are free to pursue other dispute resolution avenues.
18.5 Continued performance
Each Party will continue to perform this Agreement despite the existence of a Dispute.
19.1 Obligations of confidentiality
b. disclose or communicate, cause to be disclosed or communicated or otherwise make available such Confidential Information to any third party, unless authorised by this Agreement.
19.2 Permitted disclosures
Despite the Recipient's obligations under clause 19.1 above, it
may disclose the Confidential Information of the Provider:
(b) to the Recipient's professional advisers, financial advisers, bankers. financiers or auditors where that person is obliged to keep the information confidential;
(c) in connection with any listing on any recognised stock exchange by a Party or any of its Related Bodies Corporate or Associates;
(d) for the purpose of obtaining and receiving professional advice;
(e) in connection with legal proceedings or the dispute resolution processes set out in clause 17 above;
(f) as required by law or regulation or any requirement of any regulatory body (including any relevant stock exchange, the ACMA or the ACCC) provided that, where practicable, the Recipient has first notified the Discloser that it is required to disclose the Confidential Information so that the Discloser has an opportunity to protect the confidentiality of the Confidential Information;
(g) with the consent of Discloser; and
(h) where the Confidential Information has come into the public domain through no fault of the Recipient.
20. Costs and stamp duty
(b) You must:
a. pay all stamp duties and any related fines and penalties in respect of this Agreement, the performance of this Agreement and each transaction effected by or made under or pursuant to this Agreement as they fall; and
b. indemnify us against any liability arising from failure to comply with clause 20 (b)(a).
This Agreement may only be varied by a document signed by or on behalf of each of the Parties accept that any Quotes, Service Schedules, and Service Fee Schedules may be amended on notice by us.
(b) We may assign, novate or otherwise transfer our rights and obligations under this Agreement with your consent or approval which must not be unreasonably withheld or delayed, provided that no such consent or approval will be required in the case of any assignment, novation or transfer of rights to our Related Body Corporate.
23. Relationship of Parties
(a) Nothing in this Agreement (or any of the arrangements contemplated by it) is or may be deemed to constitute a partnership or joint venture or a relationship of employer and employee between the Parties nor, except as may be expressly set out in this Agreement, does it make either Party the agent of the other for any purpose.
(b) Unless the Parties otherwise agree in writing, neither of them may enter into contracts or commitments with third parties as agent for the other Party, or describe itself as such an agent or in any way hold itself out as being such an agent.
24. Solicitation of Employment
(b) If you do hire or engage our employees or Suppliers referred to in clause 24(a) you must pay to us an amount equal to double the total annual salary of such employee or the value of our contract with the Supplier (as applicable).
(c) Each party agrees that this amount accurately reflects the reasonable value of time and costs associated with attracting and retaining employees and Suppliers.
(b) Any waiver or consent given by any Party under this Agreement will only be effective and binding on that Party if it is given or confirmed in writing by that Party.
(c) No waiver of a breach of any term of this Agreement will operate as a waiver of another breach of that term or of a breach of any other term of this Agreement.
If any provision of this Agreement is invalid and not enforceable in accordance with its terms, all other provisions which are self-sustaining and capable of separate enforcement without regard to the invalid provision will be and continue to be valid and forceful in accordance with their terms.
27. No representation or reliance
(b) Each Party acknowledges and confirms that it does not enter into this Agreement in reliance on any representation or other inducement by or on behalf of any other Party, except for any representation or inducement expressly set out in this Agreement.
Any communication under or in connection with this Agreement:
(b) Must be address as shown below:
For the attention of:
(d) will be deemed to be received by the addressee:
b. (in the case of facsimile) at the local time (in the place of receipt of that facsimile) which then equates to the time at which that facsimile is sent as shown on the transmission report which is produced by the machine from which that facsimile is sent and which confirms transmission of that facsimile in its entirety; and
c. (in the case of delivery by hand) on delivery at the address of the addressee as provided in clause 28 (b) above.
29. Governing Law
(b) Subject to clause 18 above, each Party submits to the nonexclusive jurisdiction of the courts of New South Wales and the Commonwealth of Australia.
30. Entire Agreement
To the extent permitted by law and except as expressly provided in this Agreement, in relation to the subject matter of this Agreement, this Agreement:
(a) embodies the entire understanding of the Parties, and constitutes the entire terms agreed on between the Parties; and
(b) supersedes any prior written or other agreement between the Parties.
This Agreement may be executed in any number of counterparts.
32. Further acts
(b) If any matter or issue arises which has not been expressly provided for in this Agreement, the Parties will negotiate in good faith to resolve such a matter or issue and to reach agreement in relation to any additional arrangements that may be required to deal with the matter or issue to the satisfaction of both Parties
You acknowledge that, and in entering into this Agreement we rely on your acknowledgement that:
(a) Harvey Norman Holdings Limited ACN 003 237 545 (“Holdings”) and subsidiaries of Holdings own valuable intellectual property rights, including but not limited to the Harvey Norman trade marks;
(b) Subsidiaries of Holdings (each as a franchisor) grant franchises to independent franchisees (each a ‘Franchisee’) to use certain intellectual property, including the Harvey Norman trade marks, and to conduct the retail business of the Franchisee (‘Franchisee Business’), pursuant to the terms of a franchise agreement;
(c) We are Franchisee and carry on a Franchisee Business that includes the provision and sale of information technology products and services;
(d) Each Franchisee that operates its Franchisee Business under any name or style of any of the Harvey Norman trade marks is a Franchisee, and unrelated to our Franchisee Business (“Other Harvey Norman Franchisees” and each a “Other Harvey Norman Franchisee”;
(e) Harvey Norman Technology for Business is not related to any Other Harvey Norman Franchisees and you must not represent otherwise;
(f) Any and all offers and representations made by us are connected solely to us and our Franchisee Business only; and
(g) We do not make, or authorise any offer or representation that is specified or otherwise is made by any Other Harvey Norman Franchisee and do not represent that any goods or services in this Agreement will be offered by or available from any Other Harvey Norman Franchisee at the specified price, or at all and you must not represent otherwise.