Mokse Pty Ltd (ACN 104 679 487) ATF Keith Bloomfield Family Trust trading as Excellence IT (ABN 27 592 779 109) (Excellence IT)
These are the Excellence IT (we, our or us) Standard Terms and Conditions (Terms) which will apply to every agreement when you as the customer (you or customer) engage us to supply Services or product/s to you. These Terms will apply in addition to any other Excellence IT terms and conditions applicable to the supply of Services and products to you. In the event of any conflict between these Terms and any other Excellence IT terms and conditions, these Terms will prevail.
1. ACCEPTANCE OF THESE TERMS
- Any act by you or those legally acting on your behalf which requests us to begin supplying any services or any product/s will be deemed as acceptance of these Terms.
- Once these Terms are accepted they are irrevocable and cannot be amended without our written consent.
- If there is more than one party as a customer to these Terms, all customers will be jointly liable for these Terms.
2. TERM OF AGREEMENT AND RENEWAL
- Our engagement to supply the Services and any product/s to you will be for an initial term of 2 years from the date of the Work Order. We will give you at least 60 days prior notice as to when the initial term will end.
- Our engagement will automatically renew at the end of the initial term for an additional period of 2 years unless you provide notice in writing to our office at least days 30 days before the end of the initial term indicating that you wish to cancel our engagement.
3. EARLY TERMINATION BY YOU
- If you cancel our engagement to supply the Services after you have accepted the Work Order but before the end of the term of the engagement, you agree that we may recover from you, at our discretion:
- any costs incurred by us in relation to the supply of the Services and/or products to you up to the date of cancellation; and
- the Fees payable to us for the remaining term of our engagement, calculated on the basis of the remaining months multiplied by the monthly service fee stated in the Work Order. You expressly agree that this a genuine pre-estimate of the loss that will be suffered by us in the event of cancellation before the end of the engagement term.
- Clause 1 applies equally to each renewal period of our engagement.
- We will supply the Services set out in each Work Order accepted by you.
- We hold all necessary licences and permits required to supply the Services. Where there are any applicable industry standards and codes, they will at all times be complied with by us and our employees and sub-contractors.
- If an event occurs that is beyond our reasonable control which prevents us from supplying the Services on or by any date agreed, we will immediately notify you and give an estimate of the time for completion of the Services.
- If you require a variation to the Services, we will provide a quotation for supplying the Service as varied which additional sum will be added to the price if accepted by you. If you do not accept the quotation, we are not obliged to carry out the variation. Nothing in these Terms means we are required to provide a quote or enter into any additional services beyond any written scope.
- Upon the commencement of this Agreement and in consideration of you agreeing to pay the Fees, we:
- grant to you a non-exclusive, non-transferable, revocable licence for authorised users to use the Software on the hardware at the location(s) specified in the relevant Work Order (if applicable), or access the Software for such use; and
- make available the Third Party Products (if applicable) in accordance with the Work Order and these Terms.
- The Software may be used only:
- at the location(s);
- by not more than the number of authorised users;
- on the hardware;
- to process your Customer Data for your internal operations,
specified in the relevant Work Order.
- We will deliver the Software electronically via the Internet if we consider it appropriate, or provide access to the Software via our Cloud Services (if applicable), as described in the applicable Work Order. Any delivery/access dates requested by you or estimated by us are approximate only, and time of delivery will not be of the essence.
- You must not:
- enhance, alter or modify any Software delivered to you by us or merge all or any part of that Software with any other software;
- reverse assemble or reverse compile the whole or any part of any Software delivered to you by us; or
- directly or indirectly allow or cause a third party to do any of those things,
without our prior written consent.
6. THIRD PARTY PRODUCTS
- Where Third Party Products are required by you to use and enjoy the Software and/or the Services, then should we be required to procure the use of Third Party Products for you, as set out in the Work Order, we will do so on the basis set out in this clause 6.
- We make no representations and give no warranty in relation to defects, adequacy, appropriateness or quality of Third Party Products or support of Third Party Products.
7. INTELLECTUAL PROPERTY RIGHTS
- Nothing in this Agreement transfers or assigns the intellectual property rights in any Software, Services or Third Party Products to you, and all such intellectual property rights remain vested in us or the relevant third party provider of the Third Party Products.
- The intellectual property rights in any code used or developed by us to configure equipment supplied to you under this Agreement will be owned by us.
- All copies of the Software and the media embodying copies of the Software, will be our property.
- We warrant that we have the right to grant the licence for the Software and perform all of our obligations in connection with the Software as set out in this Agreement.
- You retain ownership of Customer Data.
8. DATA SECURITY
- We warrant that we will use appropriate technical, security and organisational measures to prevent unauthorised or unlawful processing of Customer Data and against accidental loss, destruction, damage, theft, use or disclosure of that Customer Data.
- You acknowledge and agree that Customer Data may be transferred or stored outside Australia in order to provide the Services to you.
- In the event of any loss of, or corruption or damage to Customer Data, your sole remedy will be for us to use our reasonable endeavors to restore the lost or damaged Customer Data from the latest back-up of such Customer Data as maintained by us in accordance with our Work Order/s. We will not be responsible for any loss, destruction, alteration, corruption or disclosure of Customer Data caused by any third party, except those third parties engaged by us in connection with the provision of the Services.
9. REMOTE ACCESS
- Unless specifically mentioned in a Work Order, the Services will be supplied remotely by using communication software such as Team Viewer, EMM (Excellence Monitor and Manage) and GO-TO Assist.
- Despite clause 1, we may choose at our discretion to attend at your premises for purposes connected with the supply of the Services, with your prior agreement. You must ensure that, if we attend at your premises:
- you are authorised to occupy those premises and obtain the Services;
- at all times the property is safe and that all facilities provided by you for the purposes of enabling the Services to be supplied are also safe; and
- our technicians will have unencumbered and unobstructed access to the area/s of the premises requiring the Services.
- On-site time is chargeable on a time and materials basis from when our technician leaves their normal place of employment to when they return.
- We may use sub-contractors to provide the Services. In such circumstances, we will ensure that:
- the sub-contractors so engaged are suitably qualified, hold all necessary licences and are able to supply the Services in a proper and workman-like manner;
- the sub-contractors so engaged do not by act or omission do or not do anything that would if done or not done by us be a breach any of these Terms; and
- the sub-contractors so engaged have current or necessary insurances.
- We are solely responsible for all fees payable to our sub-contractors.
11. WORK ORDERS, INVOICES AND PAYMENT
- A Work Order provided by us will remain valid for 30 days. On expiry of that period, if you wish to proceed a Work Order will need to be provided prior to us supplying the Services.
- You must pay our Fees as detailed on the approved final Work Order. The Fees will detail any applicable taxes and is the full amount which you will pay for the Services.
- We will issue a tax invoice for the Services setting out the Services supplied, including any variation and the date the Services were supplied. The tax invoice will also separately identify all expenses and any GST payable. This tax invoice will include the final amount for the Services supplied and any goods provided. This final amount may vary from the Fees in the Work Order at our discretion.
- Payment of our tax invoice is to be made to us via direct deposit into our bank account or by a credit or charge card. If you pay by way of a Visa Credit Card or Master Card Credit Card or American Express, then we may pass on to you the costs that we are charged for accepting payment of that payment type. We will not pass on costs that are higher than what it costed us to process the payment.
- Where you fail to pay any tax invoice on or before the due date, you agree that we will add interest to the total outstanding amount at the rate of 3% interest per calendar month and that you will be liable to pay accrued interest in addition to the outstanding amount.
- If you default in payment of an invoice, you indemnify us from any costs incurred by us in recovering the outstanding amount, including but not limited to legal fees.
- If you do not respond to our requests for information in a timely manner, or you request changes which create unforeseen delays to the supply of the Services, we will be entitled to charge you at our standard hourly rates for additional time reasonably incurred for such customer created delays.
- You are not entitled to deduct any invoiced amount from any amounts owing to you by us.
- If you do not pay our account, we may retain any goods held on your behalf until our account is paid. If after a prolonged period of time and notice to you that our account remains unpaid, then we are authorised to sell those goods to retrieve payment on our account. We are authorised to charge you for any sale expenses, and if there is a surplus, then we will repay any surplus to you.
- You agree that we may upon each anniversary of the commencement of our supply of the Services:
- increase our annual Fees by an amount which reflects the percentage increase (if any) between the Consumer Price Index (All groups CPI, Weighted average of eight capital cities) (Index) last published by the Australian Bureau of Statistics before the date of such anniversary and that published at the same time the previous year plus 4% subject to a maximum increase of 10% in any 12 month period; and
- pass onto you any increases notified to us by the owners of any Third Party Products(s), if supplied.
We will give you reasonable prior notice of any increases to our Fees under this clause.
- If any supply made under or in connection with this Agreement is a taxable supply, the consideration that the recipient of that taxable supply must otherwise pay or provide for that taxable supply is increased by the amount of any GST payable in respect of that taxable supply, subject to a valid tax invoice being delivered to the recipient.
- Words or expressions used in this clause and Agreement which have a particular meaning in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning, unless the context otherwise requires.
13. PERSONAL GUARANTEES
If you conduct your business through a company, we may require the directors of the company to give personal guarantees to us with respect to the obligations of the Customer under these Terms. You must comply with any request from us to provide such personal guarantees.
14. OUR CONFIDENTIAL INFORMATION
- Our skill and know how is important to us. Our skill and know how means our ideas, concepts, trade secrets, work and manufacturing and supply processes all of which we call “confidential information”. You will be given access to our confidential information but only for the purposes of our engagement. You are not permitted and you must ensure that your employees, agents and contractors do not disclose our confidential information to any other person. You indemnify us if we suffer loss or damage by your unauthorised use of our confidential information.
- You must not copy or duplicate any of our confidential information, or hardware or software which is provided to you except as may be necessary solely for archival purposes, software error notification, or to replace defective items, provided you keep the original and the copies. You must not alter, de-compile or disassemble any software. You must not make copies of any user documentation or manuals which we supply to you.
15. NO TRANSFER OF YOUR RIGHTS
You must not sub-licence lease, rent or lend any of our software, hardware or confidential information, or otherwise transfer or assign any of your rights under any of our agreements with you.
16. WARRANTY AND DISCLAIMER
- Each party warrants to the other party that they have the requisite power and authority to enter into this Agreement and to carry out their obligations under this Agreement and that the execution and performance of this Agreement has been duly authorised by that party.
- We warrant that any hardware or Software delivered to you and user documentation will be free from defective materials or workmanship under normal use for a period of 90 days from the date of your original purchase. Except for the limited warranty described above, the software is sold “as is…” and you are assuming the entire risk as to its quality and performance. It is your responsibility to verify the results obtained from the use of any Software and hardware.
- Except where a specific warranty applies, if during the 90-day limited warranty period, you discover physical defects in the user documentation or the materials or the hardware or Software, then we will replace it at no charge to you, provided you return the item to be replaced with proof of purchase to us. This is your sole remedy, subject to clause 5.
- In no event will we be liable to any person for any indirect, special, incidental, consequential or similar damages, even if we have been advised of the possibility of such damages.
- Nothing in this Agreement excludes, restricts or modifies any condition, warranty, right or remedy conferred on you by the Competition and Consumer Act 2010 (Cth) or any other applicable law that cannot be excluded, restricted or modified by agreement. To the fullest extent permitted by law, our liability for a breach of a non-excludable condition or warranty is limited, at our option, to:
- in the case of goods, any one or more of the replacement of the goods or the supply of equivalent goods; the repair of the goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired; or
- in the case of services: the supplying of the services again; or the payment of the cost of having the services supplied again.
17. LIMITATION OF LIABILITY
Our total aggregate liability to you (whether in contract, tort (including negligence) or breach of statutory duty or otherwise) under or in connection with this Agreement for any direct loss or damage howsoever caused will be limited to an amount equal to 100% of the Fees paid or payable by you to us for the Services (excluding any amounts paid or payable for Third Party Products or any other equipment purchased by you and for which we arrange the purchase of on behalf of you.
- Either party may terminate this Agreement immediately by written notice if the other party commits a material breach of this Agreement and that breach is not remedied within 30 days of receiving a notice from the party not in breach.
- A material breach occurs if:
- we breach a warranty provided by us in this Agreement;
- you fail to pay any sums owing to us under this Agreement on the due date; or
- you use or permit any use of hardware or Software delivered to you that is not compliant with this Agreement.
- On termination:
- any licence we have granted to you to use Software provided by us is immediately revoked, and you must stop using that Software from the date of termination; and
- you must pay us all moneys owing to us.
- If you continue using our Services or Software after the date of termination, we will be entitled to impose Fees for such use, and you agree to pay those Fees.
- The parties may terminate this Agreement by mutual consent in writing.
This Agreement does not make either party an agent or legal representative of the other party, and does not create a partnership or joint venture, or a relationship of trustee and beneficiary. Both parties are independent contractors and principals for their own accounts.
20. FORCE MAJEURE
Neither Excellence IT nor the customer will be held liable for any breach of this Agreement where the breach arises from an act of God, war, natural disaster, terrorism or any other event beyond the reasonable control of either party.
Any provision of this Agreement which would otherwise cause this Agreement to be of no effect, or which would cause the provision itself to be of no effect, must be read down or treated as varied to the extent necessary to avoid that result.
It is agreed by the parties that these Terms will be construed in accordance with the law of Victoria and each party covenants that it submits to the jurisdiction of the Courts of Victoria for the resolution of any dispute under these Terms.
||means collectively, these Terms, all relevant Work Orders and any other Excellence IT terms and conditions applicable to the supply of the Services and products to the customer.
|means all data provided to us by you in connection with the supply of our services set out in any Work Order, including Personal Information provided by you.
||means the fees payable in connection with this Agreement a set out in the relevant Work Order/s.
||has the meaning given in the Privacy Act 1988 (Cth).
||means the services to be provided to the customer by us in accordance with this Agreement (which may include the supply of Software or Cloud Services), as detailed in the relevant Work Order/s.
||means any proprietary software to be provided by Excellence IT for use by the customer in accordance with this Agreement as set out in a Work Order.
|Third Party Products
|means any material (including, but not limited to source code and software):
(a) in which the intellectual property rights are owned by a third party; and
(b) which is identified in a Work Order as being owned by a third party and as requiring a licence from that third party to either us or to you.
||means a quotation, work order or similar document setting out the services we will provide to you, the price and any other conditions agreed by us.