1. Definitions
In this agreement:
(a) Confidential information means all spoken, written or electronically stored information belonging to or relating to a party, or its clients but excludes information in the public domain (other than by default under this
Agreement) or information independently known to a party).
(b) “Goods” means all or any of the products set out in the invoices/quotation/order form;
(c) “Guarantor” means a person who agrees to be liable for your debts;
(d) “Intellectual Property” means all intellectual property rights including copyright, trade mark, design, patent, semi-conductor and current layout rights.
(e) “Managed services” means a recurring monthly service provided by us that may include data hosting, internet connectivity and/or anti-spam services as selected by you;
(f) “Services” means the services that we are to performed for you as described in the invoices/quotation/order form and anything created or produced as a result of those services, but does not include the managed services;
(g) “Us, We” means New Age Solutions Pty Ltd and/or its employees, authorised agents and permitted assigns;
(h) “You” means the Client set out in the invoice/purchase order, and its agents or assigns;
2. Acceptance of Terms and Conditions
(a) You accept that any order that you place will incorporate these terms and conditions, regardless of any inconsistencies in your order. You also
accept that you may not cancel any order except with our consent in writing.
(b) You acknowledge and agree that our agents, representatives or employees are NOT authorised to make, and we are not bound by any representations,
statements, assertions or agreements made by them, which not expressed by our manager in writing.
3. Price
(a) All prices shown are quoted exclusive of GST unless otherwise stated.
(b) Goods and services will be charged at our quotation price. Unless previously withdrawn, our quotation is open for acceptance within the period stated in it, or where no period is stated, within 14 days only after its date
(c) You agree that we may alter our prices by fourteen (14) days notice to you, or at the start of the next calendar month, whichever is sooner.
4. Payment Terms
(a) We will provide you with a tax invoice, and unless otherwise stated:
(i) payment for goods is due immediately upon delivery; and
(ii) payment for services is due within 14 days of the tax invoice.
(b) You must make all payments in full (without any set off, deduction or counter-claim). We reserve the right to charge interest on overdue payments from the date when payment becomes due, calculated at the
current overdraft rate of our financial institute plus 2% per whole or part calendar month, and plus an administration fee of fifty dollars ($50).
(c) We also reserve the right to charge an additional fee for credit card transactions.
(d) We may, at our sole discretion refuse to supply you with goods and/or services if you are in default of any of your payment obligations under any one or more agreements with us.
5. Delivery of Goods
5.1 General Delivery
(a) We will make all reasonable efforts to deliver the goods to your nominated address, and you must make all necessary arrangements to take delivery of the goods.
(b) You agree that our delivery of goods to a carrier or to your nominee is deemed to be delivery of the goods to you for the purposes of this agreement.
5.2 Liability for Delivery
(a) You agree that we will not be liable for any failure to deliver, any delay in delivery or any damage or loss to goods in transit or due to unloading or packaging, for any reason or caused by any person (whether or not we are legally responsible for the person who caused or contributed to that loss or damage).
5.3 Notification of Defects
(a) Within two (2) business days of the date of delivery, you must notify us in writing of any alleged deficiencies in the goods, or of any non-delivery, short delivery or delivery of the wrong goods. You must also allow us to
inspect the goods within four (4) business days of the date of delivery. Failure to comply with this clause will result in you waiving any claim, and the goods will be deemed free from any defect or damage.
(b) Goods are under warranty from the supplier or manufacturer and we do not provide a separate product warranty. You may only reject delivery of goods where the wrong goods have been delivered, or the supplier or
manufacturer of the goods accepts the return of defective goods. After inspecting the goods, we will notify you in writing whether you are entitled to reject the goods as delivered. If You are entitled to reject the goods, our
liability will be limited as set out in Clause 14 provided that:
(i) The goods are returned in the condition in which they were delivered to you, including unopened packaging and instruction material.
(ii) The goods are returned to us, at your cost, within 2 business days of us giving you notice that you are entitled to reject the goods; and
6. Risk and Title in Goods
(a) Risk in each order passes to you upon actual or constructive delivery of the goods to you or your collection of that order;
(b) Until we have received cleared payment in full of all monies that you owe:
(i) Ownership and property in the goods remains with us; and
(ii) You hold the goods as our bailee, and the proceeds of their sale in trust for us; and
(iii) You agree that we have an irrevocable licence to enter any site owned, possessed or controlled by you to recover possession of the goods and to keep or resell any goods repossessed.
(c) Nothing in this clause prevents us from maintaining an action against you for the purchase price of the goods and any costs of repossession.
(d) In the event that the goods are damaged or destroyed prior to delivery to you, you acknowledge that we are entitled to receive all insurance proceeds payable for the goods. This applies even if the price has become payable by you.
7. Managed Services
7.1 General
(a) This clause 7 applies if you have engaged us to provide the managed services.
(b) The managed services will commence on the date that we create your account on our servers. It will automatically renew twelve (12) months after
the commencement of the service, unless you notify us in writing of your intention to cancel the managed services at least 30 days before the end of the twelve month period.
7.2 Payment
(a) You agree that:
(i) your credit card or nominated bank account will be automatically credited monthly in advance for the managed services fees until the termination of this agreement under clause 15.
(ii) the managed services fees do not include the resurrection of equipment or servers, and our normal hourly rates will apply to carrying out these extra services.
(b) We may increase the managed services fees at any time, provided we give you at least thirty (30) days notice of the increase.
7.3 Your Obligations
(a) You must:
(i) Keep your user names and passwords secure at all times;
(ii) provide and maintain all telephone, internet, computer, hardware and software equipment, and services necessary to access the managed
services. We are not responsible for incompatibility of our equipment and network with yours.
(iii) Provide us with access both remotely and to any premises when required in order install the managed services software;
(iv) provide us with material and data in a condition that is capable of being hosted by us without any specialized effort on our part.
(b) You must not:
(i) Uninstall, modify or interfere with any software provided as part of the
managed services;
(ii) reverse engineer, decompile or disassemble the managed services or any other component provided as part of the managed services,
or otherwise attempt to derive the source code of any software which may be related to the managed services;
(iii) access any data or server you are not authorized to access or otherwise breach our security in any way.
(iv) resell to third-parties any of the managed services provided by us.
7.4 Data Backup
You acknowledge and agree that:
(a) the managed services does not include our monitoring that backups are completed or checking integrity of data.
(b) We will only store your data for the maximum period set out in the Schedule, after which your data will be overwritten.
(c) It is your responsibility to maintain, complete and confirm successful and reliable data, file and directory structure backups.
(d) We recommend that you do not rely solely on the managed services for backup or disaster recovery purposes.
7.5 License to Use Software
(a) We grant to you a non-exclusive, non-transferable licence to use the managed services software solely to access and use the managed services. Except for the license rights set out in this clause, this license does not grant any additional rights to you. All right, title and interest in our managed services software will remain with us or our licensors.
(b) This license terminates on the expiration or termination of this Agreement.
7.6 Additional Warranties
In addition to any warranties contained in this agreement, you warrant that any data or material uploaded by you to our servers:
(a) does not infringe the intellectual property rights of any person; and
(b) does not contain any computer virus and will not in any way, corrupt the data or systems of any person; and
(c) does not contain any material which is illegal.
8. Credit
8.1 We may grant you credit on the basis of a commercial credit application, and such other documents and information as we may require, and you and the guarantor authorise us to:
(a) obtain all information we consider relevant in assessing your application for commercial credit pursuant to this agreement;
(b) obtain, from a credit reporting agency, a credit report containing all personal credit information about you and/or the guarantor;
(c) exchange information about you and/or the guarantor with credit providers in order to assess your application, notify other credit providers of your default, or assess yours or the guarantors credit worthiness.
8.2 Until we grant you credit by notice in writing, we will only supply goods, services or managed services to you on the basis of cash in advance. The granting of credit does not oblige us to extend any particular amount of credit to you.
9. Intellectual Property Rights
(a) You warrant that any material, documents or artwork that you provide to us will not infringe any of yours or a third party’s intellectual property rights;
(b) You agree that:
(i) We retain all intellectual property in any service software, managed services software, drawings, designs or other artwork produced for you, or provided to you by us (including any updates or alterations).
(ii) Your purchase of any goods or services does not confer on you any licence or intellectual property which are our property, or which we have a licence to use.
10. Confidential Information
(a) The parties agree to keep all confidential information confidential. A party must not use or disclose confidential information without the disclosing party’s written authority, either during or after the term of this
agreement.
(b) Notwithstanding this clause, you authorise us, to the extent permitted by law, to collect, retain and use any information about you for the purposes of carrying out our obligations under this agreement.
11. Non- Solicitation
(a) During the term of and for 12 months following termination of this agreement, you must not solicit, entice or interfere with our employees,
contractors, suppliers or agents, or cause them to decrease their dealings with us.
(b) If the restrictions set out in clause 11(a) above are judged by a court of law or other relevant tribunal to be unreasonable, then the parties agree that the restrictions in clause 11(a) will remain operative for six months only.
12. Our Warranties
Except as provided in this agreement, and other than any non-excludable warranty implied by law, we disclaim to the fullest extent permitted by law all
express and implied warranties, representations, guarantees and conditions under
statute or general law including, without limitation any warranties:
(a) as to merchantability, description, quality, suitability or fitness of the goods for any purpose; or ;
(b) as to design, assembly, installation, materials or workmanship; or
(c) that our server is free of viruses; or
(d) that the services or managed services will operate uninterrupted or are error-free or be compatible with all equipment, browser and operating systems.
13. Indemnities
You release and indemnify us against all liability for:
(a) any action, proceeding, claim, demand or prosecution arising from or in connection with:
(i) any hardware or software failure, interruption to services, loss of data or any other loss or damage of any kind including special or consequential damages, suffered by you or any third party, whether directly or indirectly arising as a result of your use of the goods, services or managed services;
(ii) intellectual property infringement or misuse of confidential information by a third party in respect of any materials that you provide to us, or any duplication or installation of third party software by you;
(iii) Any delays to, interruptions of or cessation of the managed services;
or
(iv) Your access to or inability to access any part of the managed services;
(v) any failure of your backup system, whether or not the backup system was supplied by us, or due to a previous intervention by a third party;
(b) any loss, damage, claims, costs and expenses suffered by us (directly or indirectly) in respect of:
(i) Any action that we take or costs that we incur due to your default including your failure to make any payments owing; and
(ii) Any costs that we incur due to your failure to accept the goods at the time of delivery;
(iii) Our termination of this agreement pursuant to clause 16; and
(iv) Your use or misuse of the services or the managed services;
(v) indirect or consequential damage including loss of profits and legal costs on a full solicitor and own client basis.
14. Limitation of Liability
(a) To the fullest extent permitted by law, we shall not be liable to you for the following:
(i) any direct or indirect loss, damage or personal injury whatsoever, resulting from or caused by in any way by the goods, the services or the managed services (including special, indirect or consequential damages, which damages will be deemed to include loss or revenue, loss or profit and opportunity loss), even if we have been advised of the possibility of such damages or injury and whether caused by our
negligence or through any other cause;
(ii) Any loss or damage caused by our inability to complete a service or the managed services within the required time due to the possible existence of conflicts arising between our services and any products or services supplied to you by a third party;
(iii) Any defects in the goods, the services or the managed services arising from incorrect or negligent handling, disregard of operating and/or maintenance instructions, overloading or unsuitable operating conditions, defective civil or building work, faulty erection or installation (unless carried out by us), unauthorized repairs or alterations; or
(iv) Any acts of God, act of war, strike, industrial action, fire, flood, drought, storm, outages or other act beyond our reasonable control that affect our performance of obligations under this agreement.
(b) We shall also be under no liability whatsoever in respect of:
(i) Goods that are not manufactured by us, and the warranty of the manufacturer of those goods is accepted by you as the only warranty given to you in respect of the goods.
(ii) Second Hand Goods. You acknowledge that you have had the full opportunity to conduct a thorough examination of the second hand goods prior to their delivery and we give no warranty, condition, description or representation in relation to the second hand goods, either expressly or impliedly by this agreement.
14.2 To the fullest extent allowable at law, our liability under this agreement for any defect in goods manufactured by us, the services provided by us or the managed services under this agreement, is limited to (at our election):
(a) for goods, the replacement of the goods or the repayment of the price you paid us for those goods; or
(b) for services or the managed services, provision of further services or provision managed services at no charge to rectify any defect, payment of the cost of rectifying any defect, or a refund of the amount you paid us for those services.
15. Security
You agree that, on your default under this agreement, if requested by us, you will:
(a) charge in our favour all beneficial interests (freehold and leasehold) in real estate held now or in the future by you as security for payment of all and any moneys payable by you to us; and
(b) execute a mortgage or other instrument of security over any property referred to in 22.3(a) in the form that we request; and
(c) permit us to lodge a caveat or other security over any property referred to in 22.3(a).
16. Termination
(a) Except for the managed services service:
(i) we may terminate this agreement by giving you seven (7) days written notice.
(ii) you may terminate this agreement by giving us thirty (30) days written notice.
(b) You may cancel your managed services at any time on giving thirty (30) days written notice to us. We may also cancel your managed services at any time on giving thirty (30) days written notice to you.
(c) On the occurrence of any of the following, we may, at our discretion immediately terminate this agreement:
(i) you are in breach of any of your obligations under this agreement, including any item relating to payment;
(ii) we are unable to charge any owed fees to your credit card due to inaccurate or outdated credit card information;
(iii) in our opinion, you will be unable to make payments when they fall due;
(iv) you do anything which might materially prejudice interests in intellectual property subsisting in subject matter delivered pursuant to these terms and conditions;
(v) b become insolvent, you propose to or enter into an arrangement with your creditors or make an assignment for the benefit of your creditors, or a receiver, manager, liquidator or other is appointed in
your respect.
17. Consequences of Termination:
On termination of this agreement for any reason, then in addition to any other rights we may have:
(a) We will cancel any of your orders or part orders remaining unperformed; and
(b) all amounts owing by you will immediately become due and payable; and
(c) We may issue an invoice for any goods, services or managed services not previously invoiced; and
(d) Other than provided by this agreement, or unless we agree otherwise in writing, we will not refund any fees paid by you; and
(e) We retain a lien over and may retain all data belonging to you, and deny you both physical and remote access to your data until all outstanding invoices are paid (including any invoice issued under this clause); and
(f) You must provide us with physical and remote access to uninstall any software installed in your equipment under this agreement.
(g) The provisions in clause 6, 7.3, 7.5, 7.6, 9, 10, 11, 12, 13, 14 and 15 continue after the termination of this agreement.
18. Miscellaneous
(a) If any provision of this Agreement is ruled by a court to be invalid or unenforceable, it shall not affect the validity or enforceability of any other provision of this Agreement.
(b) The laws of Queensland apply to this Agreement and the parties submit to the courts of that jurisdiction.
(c) Our delay or failure to enforce any rights in relation to a breach by you will not be construed as a waiver of those rights.
(d) We may alter the terms and conditions contained in this agreement at any time by giving thirty (30) days) notice to you of the change;