INTELLECT IT TERMS AND CONDITIONS OF SUPPLY
In these terms (“Agreement”) “Intellect IT”, “we”, “us” or “our” means Intellect Information Technology Pty Ltd ACN 103 370 789 of 343 Little Collins Street, Melbourne and “Client”, “you” or “your” are the customer of Goods or Services of Intellect IT.
Any supply of Goods or Services by Intellect IT are subject to the terms of this Agreement. Please read the Agreement carefully and if you do not agree with any of the terms do not place an order with us.
a) “Business Hours” refers to the hours between 9.00 and 17.30 Monday to Friday excluding Victorian public holidays.
b) “Delivery Date” means Intellect IT’s estimated delivery date of the Goods as communicated in writing to the Client.
c) “EULA” or “End User Licence Agreement” means the licence agreement governing the use of Third Party Software as agreed directly between the Client and the owner of the Third Party Software.
d) “Fees”, “Charges” or “Fees and Charges” means the fees and charges specified in an agreed Scope of Work or quotation plus any work undertaken incidental to this work or at your request at Intellect IT’s then current hourly rates.
e) “Goods” means either Hardware or Third Party Software procured or supplied pursuant to this Agreement.
f) “Hardware” means any physical product manufactured by a third party, including any associated third party maintenance service contracts, and includes each individual item, unit or component of such product.
g) “Intellectual Property Rights” includes copyright, trade mark, design, patent, semiconductor or circuit layout rights, trade, business or company names, any right to have confidential information kept confidential or other proprietary rights or any rights to registration of those rights whether created before or after the date of this Agreement.
h) “Scope of Work” means a written quote for Goods or Services.
i) “Services” means the services and/or goods supplied by Intellect IT to the Client including subsequent to an accepted Scope of Work or quotation or as provided on an ad hoc basis.
j) “Third Party Software” means software that is manufactured, licensed or owned by a third party and procured by Intellect IT for the Client, the use of which is subject to that third party’s EULA.
a) In consideration of the payment by Client of the Fees and Charges in accordance with clause 3 Intellect IT agrees to provide and Client agrees to accept the Services and Goods (if any) on the terms and conditions of this Agreement.
b) The Services to be supplied by Intellect IT may include remote and onsite technical support, monitoring, consulting, maintenance or other services as requested by Client to Intellect IT.
c) Client may request alterations to the scope of the Services in accordance with the provisions contained in Cancellation or Variation clause of this Agreement.
d) Intellect IT will perform the Services utilising such resources, employees and subcontractors as Intellect IT in its sole discretion deems appropriate.
3. FEES AND CHARGES
a) Client agrees to pay the Fees and Charges whether these are specified in an agreed Scope of Work or quotation by Intellect IT or from additional work requested of Intellect IT’s at its then current hourly rates. The Fees and Charges will be adjusted by Intellect IT each financial year to reflect increases in the cost of providing the Services and Goods; provided however that the increase in Fees shall not exceed five percent (5%) of the prior year’s rate. Increases will become effective upon 1 July and be preceded by at least 30 days prior written notice to Client setting out the new Fees and Charges. Nothing in this clause effects Client’s right to terminate this Agreement in accordance with clause 12(f) on receiving a major modification of terms by Intellect IT, which includes an increase in Fees in excess of five percent (5%) of the prior year’s rate regardless of whether there is good cause for such an increase.
b) These Fees and Charges are valid only for sixty (60) days from the date of this Agreement and thereafter are subject to change on written notice. All amounts due shall be payable in Australian Dollars. Intellect IT reserves the right to make exchange rate adjustments to the price of any Goods quoted in foreign currency to reflect the exchange rate as at the date of payment by Intellect IT.
c) Client shall pay the Fees and Charges within 14 days of the date of Intellect IT’s invoice. Intellect IT reserves the right to charge interest on overdue sums on a day to day basis from the due date to the date of payment at the rate referred to in Section 2 of the Penalty Interest Rate Act 1983 (Vic) (as amended). Intellect IT reserves the right to suspend the delivery of further Goods or Services if the terms of payment are not strictly adhered to by Client.
d) Unless exceptions have been approved in writing by Intellect IT the Client must make full payment prior to dispatch of Goods and/or Services, either by direct deposit or by bank cheque. If Client fails to pay the Fees and Charges within any agreed credit period then the Client’s credit facility may be immediately varied, suspended or terminated.
e) Client agrees to pay any delivery charges for the supply of Goods. Other out-of-pocket expenses will be charged as an additional cost to Client provided Client has approved the expenses in writing in advance.
f) Unless otherwise agreed, the Services will be performed by Intellect IT during Business Hours. If Client requests work to be performed outside Business Hours, Intellect IT will use commercially reasonable endeavours to meet Client’s requirements at Intellect IT’s then current hourly rates and charges..
g) All Fees and Charges specified in this Agreement are exclusive of any value added tax, goods and services tax or taxation of a similar nature (“GST”) unless specified otherwise. If GST is payable in relation to any Goods or Services supplied by Intellect IT to the Client then the fees will be adjusted by adding an amount equal to the amount of the GST in the invoice. Client must pay to Intellect IT any amount under this clause in full, despite any right of set-off that Client may have.
h) Intellect IT reserves the right to pass on fees and charges associated with processing of credit card and direct debit payment methods.
4. INTELLECT IT’S GENERAL OBLIGATIONS
a) Intellect IT will co-operate fully and act reasonably to ensure the timely progress and fulfilment of Intellect IT’s obligations pursuant to this Agreement.
b) If Intellect IT is delayed in the delivery of agreed Services, Intellect IT must promptly notify Client of that delay, and cooperate with the Client to establish and implement a work-around plan to overcome or minimise the effect of the delay.
c) Estimated Delivery Dates are based on information available to Intellect IT from suppliers and are subject to change at any time, without prior notice. Intellect IT is not responsible for an inability to supply Goods or delays in delivery caused by a supplier or for other reasons beyond the reasonable control of Intellect IT. In such circumstances or in the event of stock shortages Intellect IT reserves the right to offer the Client equivalent product and to make adjustments to orders and associated Charges.
d) Intellect IT will maintain for a period of not less than 6 months a record of all Services provided and Client will be given details of that record on request.
e) If Client has lost services such as but not limited to internet connection, printing facilities, workstations, systems, applications or data, Intellect IT will respond on a best efforts basis however can make no assurance as to outcome.
5. CLIENT RESPONSIBILITIES
a) Client will undertake any tasks which Intellect IT reasonably requires in order for Intellect IT to be able to provide the Services, including those identified as ‘client responsible’ in any Scope of Works or quotes. Client will provide Intellect IT with reasonable access to and use of all information and facilities determined necessary for supply of the Services and delivery of Goods and as reasonably requested by Intellect IT. In particular, Client acknowledges that access to its operating systems, data, files and code may be required in order for Intellect IT to provide the Services; and Client provides its consent for Intellect IT to access, use or modify its operating systems, data, files and code as required for Intellect IT to perform the Services.
b) Client warrants that all information pertaining to its hardware, software or service requirements and specifications provided to Intellect IT is complete, accurate and current.
c) Client may permit Intellect IT personnel to perform Services on-site at the Client’s location without Client’s presence at Client’s own risk.
d) Client must notify Intellect IT if the Client’s location is in an environment that poses a potential health hazard to Intellect IT personnel. Upon notification by Client that a potential hazard exists, Intellect IT may introduce modifications to this Agreement solely for the purpose of protecting its personnel.
e) Client acknowledges that provision of the Services (including the process of repair) may result in the loss of some or all of Client generated or stored data. Client should ensure that it routinely saves copies of Client data elsewhere, particularly prior to the provision of Services which involve repair and reconditioning.
6. SERVICES WARRANTY
a) Subject to clause 6(b) Intellect IT warrants that the Services will be provided with due care and skill and supplied within reasonable time frames as described in clause 4.
b) Subject to any responsibilities implied by law which cannot be excluded, such as consumer guarantees imposed by the Australian Consumer Law, no other warranty, condition, undertaking or term (whether express or implied) regarding the Services or Goods is given or assumed by Intellect IT.
c) The benefits under this warranty for “consumers” within the meaning of the Competition and Consumer Act 2010(Cth) are in addition to other rights and remedies under this legislation. In this regard and for such consumers, our Goods and Services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled to cancel your service contract with us; and to a refund for the unused portion, or to compensation for its reduced value. You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
d) To the extent permitted by law, and subject to clause 6 (c) and clause 8, Intellect IT’s liability for breach of the warranty in clause 6 (a) or that applies under the Australian Consumer Law to the Services is hereby be limited to and shall be remedied (at Intellect IT’s option) by: the re-supply of the Services or payment of the cost of having the Services supplied again.
e) Client may require Services or Goods to have connectivity to the Internet. The Internet is an international computer network of both national and international interoperable packet switched data networks. Intellect IT cannot and will not guarantee that the use of the Goods or provision of the Services will provide Internet access that is sufficient to meet Client’s needs. Client agrees that its use of the Goods and the Internet is solely at its own risk and is subject to all applicable local, state, national and international laws and regulations.
7. THIRD PARTY WARRANTIES
a) Intellect IT provides Goods to Client on an ‘AS IS’ basis and passes any manufacturers’ warranties unaltered to Client.
b) Intellect IT acknowledges that Goods come with guarantees that cannot be excluded under the Australian Consumer Law as described in clause 6(c) and does not purport to provide any warranties for Goods additional to those imposed by legislation or provided by the manufacturer.
c) To the extent permitted by law, and subject to clause 6 (c) and clause 8, Intellect IT’s failure to comply with a guarantee that applies under the Australian Consumer Law to the Goods is hereby limited to and shall be remedied by (at Intellect IT’s option) by: the replacement of the Goods or an equivalent product, the repair of the Goods, the payment of the cost of replacing the Goods or the payment of having the Goods repaired.
d) Client’s use, rights and obligations in respect of Third Party Software is governed by its applicable EULA, unless it is varied by agreement between the parties to that EULA.
e) Client agrees to execute and be bound by the terms of the Third Party Software owner’s EULA. On request, Intellect IT is able to provide the Client with a copy of the relevant EULA for its review prior to submitting a purchase order to Intellect IT.
8. REMEDIES AND LIABILITY
a) Intellect IT shall not be responsible for any misinformation provided to it by the Client or any third party and its liability to the Client for any breaches of this Agreement will be reduced proportionately to the extent that the acts or omissions of the Client or the Client’s officers, employees, service providers or agents contribute to the relevant loss or liability.
b) Except for reasonably foreseeable loss and damage to “consumers” specified in clause 6 (c) Intellect IT shall not be liable to the Client or third parties for: any damages or consequential or economic loss arising from breach of this Agreement such as resulting from loss, interception or misdirection of data, files, software, code, operating systems, applications or other intangible property or data being rendered inaccurate; any liquidated damages; loss of profit (howsoever categorised); or personal injury or death; howsoever such damages or loss is caused and whether or not due to negligence.
c) In any event and to the extent permitted by the Competition and Consumer Act 2010 (Cth) or any equivalent state or territory legislation applying to the provision of Goods or Services under this Agreement, Intellect IT ‘s liability, whether in contract, tort, statute or otherwise if not excluded under clause 8(b) is otherwise limited to the fullest extent to the coverage by Intellect IT’s professional indemnity and public liability insurance.
d) The Client shall indemnify Intellect IT and hold Intellect IT harmless from and against any and all loss, damage or claims which may be asserted against or suffered or incurred by Intellect IT whatsoever and howsoever arising from and in connection with: any errors, mistakes or inaccuracies made by Client; Client’s breach of this Agreement or any negligent act or omission of Client unless such claims result from fraudulent acts of Intellect IT.
e) For the purpose of the indemnity above, Intellect IT includes: Intellect Information Technology Pty Ltd; its employees, directors, sub-contractors and agents; its sub-contractors’ and agents’ employees, directors’ sub-contractors and agents; and so on down the line.
f) To the extent permitted by law the remedies contained in this Agreement are Client’s sole and exclusive remedies.
9. CANCELLATION OR VARIATION
a) An order may be cancelled or varied by the Client only if such cancellation or variation is accepted by Intellect IT in writing and any such cancellation or variation shall only occur on terms which provide that Intellect IT will be compensated by the Client against any costs or loss (including but not limited to loss of profit) incurred.
10. RISK AND TITLE
a) Risk of loss or damage to Goods will pass to Client when the Goods are delivered to Client, or to Client’s authorised representative.
b) Notwithstanding the passing of risk, all Goods supplied to Client remain the property of Intellect IT until all monies owing to Intellect IT for the Goods have been paid in full. Prior to full payment of such monies to Intellect IT, Client shall have no right to sell or dispose of any or all of the Goods.
c) Notwithstanding the passing of risk, Client shall hold the Goods as bailee for Intellect IT and shall return the Goods to Intellect IT on demand and until payment has been received in full. Client must properly segregate the Goods and shall keep records of the Goods in such manner as to clearly indicate that they are the property of Intellect IT until paid for. Client shall keep the Goods safe and secure and in a good condition. Intellect IT will be entitled to enter the premises of Client as legal and beneficial owner of the Goods at any reasonable time to inspect all records in relation to all Goods supplied by Intellect IT and to recover possession of those Goods for which payment in full has not been made.
d) Client must ensure the Goods against loss or damage of any kind for their full value until full payment of the purchase price has been made.
11. INTELLECTUAL PROPERTY
a) The parties understand and accept that any Intellectual Property Rights existing prior to entering into this Agreement remain unaffected and nothing in this Agreement shall operate as a transfer of such rights.
b) Subject to Intellect IT’s obligation of confidentiality in clause 12 (h), Intellect IT reserves the right to use any and all skills, expertise, knowledge and know how gained in the provision of the supply of the Services in the provision of similar services to other clients.
a) Service Method: Any notice to or by a party under this Agreement must be in writing and signed by the sender and may be served by: delivery in person or by mail post or transmission by email to the address specified for Client in a Scope of Works or quotation; and for Intellect IT at Level 2. 343 Little Collins Street, Melbourne, Victoria 3000 or firstname.lastname@example.org. The parties consent to the use of electronic means to send and receive communications and accept these as signed writing. An identification code (called a “user ID”) contained in an electronic document is sufficient to verify the sender’s identity and the document’s authenticity.
b) Severability: Any provision of this Agreement which is invalid in any jurisdiction shall be ineffective in that jurisdiction to that extent, without invalidating or affecting the remaining provisions of this Agreement or the validity of that provision in any other jurisdiction.
c) Assignment: A party shall not assign or otherwise transfer any right or liability under this Agreement without the prior written consent of the other party, which shall not be unreasonably withheld or delayed.
d) Governing law and jurisdiction: This Agreement shall be governed by and construed under the laws of the state of Victoria and each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria.
e) Notice: All written notices, consents and other communications under this Agreement shall be deemed to have been received on the date of actual receipt if delivered, if it sent by fax or email at the time and on the day it was successfully transmitted or the third business day after being sent by mail.
f) Termination: Either party may terminate this Agreement at any time by providing not less than sixty days (60) prior written notice. If a material term of this Agreement is breached, either party may issue a notice in writing to the other identifying the breach and requiring that the breach be remedied (‘termination notice’). If the breach is not remedied within thirty (30) days of receipt of the termination notice, the Agreement may be terminated immediately by notice in writing. Apart from rectification of breaches of clause 3(c), if a longer period is reasonably required to cure the identified breach and the cure is promptly begun, then the cure period shall be extended for as long as the cure is being diligently prosecuted to completion. For the avoidance of doubt, Fees will accrue until the expiration of the termination notice period and remain payable in accordance with clause 3(c).
g) Force majeure: Neither party shall be liable for, nor shall either party be considered in breach of this Agreement due to, any failure to perform its obligations under this Agreement as a result of a cause beyond its control, including any natural calamity, act of God or a public enemy, act of any military, civil or regulatory authority, pandemic, lock-down, change in any law or regulation, disruption or outage of communications, power or other utility, failure to perform by any supplier or other third party, or other cause which could not have been prevented with reasonable care. If, due to any such cause, Intellect is unable to provide to Client the Services and this inability continues for a period of more than 30 days (the “Outage Period”), then the term of this Agreement shall be extended by the Outage Period. If this inability continues for Services for more than 60 days after Client has requested the Services, then Client may terminate this Agreement, without penalty, by giving written notice of termination to Intellect IT at any time before the inability ends except in relation to a pre-existing obligation to make any payment for Services already provided under this Agreement.
h) Confidential Information: All information disclosed by one party to the other in connection with this Agreement shall be treated as confidential information unless it is or becomes publicly available through no fault of the other party, is already known to the other party, or is later rightfully obtained by the other party from independent sources. Each party’s confidential information shall be held in strict confidence by the other party, using the same standard of care as it uses to protect its own confidential information, and shall not be used or disclosed by the other party for any purpose except as necessary to implement or perform this Agreement. Without limiting the generality of the foregoing, such confidential information includes:
a. Client’s data (including employee, customer and other data accessible to Intellect IT) and software, and the details of Client’s computer operations and recovery procedures, which include trade secrets of Client,
b. Intellect IT’s physical security systems, access control systems, specialized recovery equipment and techniques, pricing and documentation, which include trade secrets of Intellect IT, and
c. the terms of this Agreement.
The obligation contained in this clause 12 (h) shall continue for a period of 12 months after the expiration or termination of this Agreement.
j) Modification: You agree that Intellect IT may amend these terms at any time by posting the amended terms on the Intellect IT website and take effect immediately upon publication on the website for orders placed from that date. Your ordering Goods or Services from Intellect IT constitutes your acceptance of this Agreement, as amended by Intellect IT from time to time.