TERMS AND CONDITIONS
1.1 In these Terms:
“Company” means Tristate Computer Services Pty Ltd trading as Int Tec Solutions
“Customer” means the purchaser of Goods or Services from the Company.
“Goods” means all goods or services sold and/or delivered by the Company to the Customer.
“Terms” means these terms and conditions of sale.
2.1. These Terms apply to all contracts for the sale of Goods by the Company.
2.2. No amendment, alteration, waiver, or cancellation of any of these Terms is binding on the Company unless confirmed by the Company in writing.
2.3. The Customer acknowledges that no employee or agent of the Company has any right to make any representation, warranty or promise in relation to the goods or the sale of the goods other than as contained in these terms.
2.4. Unless otherwise agreed by the Company in writing, these conditions are deemed incorporated in and are applicable to (and to the extent of any inconsistency will prevail over) the terms of every Quote, Order, Plan, Contract, or other Arrangement in connection with the supply of goods and/or services by the Company to the Customer.
Term and effect:
3.1. Quotes will only be valid for 7 days unless otherwise specified in the quote.
3.2. A quote is merely an invitation to the Customer to place an order with the Company and the acceptance of a quote by the Customer will not create a binding contract between the Customer and the Company.
3.3. Quotes will only be valid for 7 days only. Expiry dates on quotes are set to be able to inform the Company when the quote is still active or to be discarded. Once discarded the quote will need to be requested again.
3.4. Once a quote has been confirmed by the Company, then the prices in the quote will be confirmed as the final agreed price. A quote is confirmed as ‘final’ as soon as both parties agree with the final price after any last changes requested by the Customer.
3.5. The price in the final quote may vary from the original request if there is any price or product changes requested by the Customer. The Company reserves the right to alter product and prices in the quote, as long as the quote has not been confirmed with the Customer.
3.6. Quotes and estimates shall be deemed to correctly interpret the original specifications and are based on the cost at the time the quote or estimate is given. If the Customer later require any changes to the quotes, and the Company agree to the changes, these changes will be charged at the Company’s prevailing rate.
3.7. Once the quote has been confirmed and converted to an order, the order will be subjected to our normal Terms and Condition of Sale.
3.8. The general minimum turnaround time for a quote request to be actioned is usually 24 hours. In the event that a quote is required urgently please let us know so that we can respond to it accordingly.
3.9. When a special price or discount offer has been applied to this quote, no other special promotion, discount, or bonus offer will be applicable.
3.10. In the event that products in the quote are subjected to any price and supply fluctuations that is outside of the Company’s control, we reserve the right to update the price and product in the quote accordingly. If a product has undergone a price drop or a price increase, the quote will then be adjusted accordingly. If there is a product that is no longer available, the product will then be replaced or substituted based on the Customers request and is subject to the Customers final approval.
3.11. Prices on non-stocked products are subjected to price and stock fluctuations and can only be confirmed once the quote is turned into an order. While the Company endeavour to honour every price quoted, if there is a price increase that is beyond our control, the Company reserve the right to increase the price, as necessary.
3.12. Once a quote has already passed the expired date, the Company may cancel the quote or estimate without having to notify or receive an approval from the Customer.
3.13. ETA information is based on an estimate given by our vendors and cannot be held as the actual promised date.
3.14. Freight charges will be added to the order unless otherwise stated. Any included delivery charges are estimates only.
3.15. The Company does not keep inventory and as such only order items once we receive a completed order from the Customer. No order may be cancelled, modified, or deferred without the prior written consent of the Company (which is at the Company’s sole discretion). If such consent is given it is, at the Company’s election, subject to the Company being reimbursed all losses, including loss of profits, and paid a cancellation fee (being not less than 20% of the invoice price of the Goods). Licensing purchased on the purchaser’s behalf is not returnable and as such cannot be refunded. Returns for special orders are not returnable and as such cannot be refunded.
3.16. Prices are based upon total quote purchase.
3.17. Unless specified, all items on a quote are covered by the manufacturer’s warranty covering parts and labour for hardware only on a return to depot basis.
Varying or Withdrawing Quotes:
3.18. The Company may vary or withdraw a quote at any time in the Company’s absolute discretion and without prior notice to the Customer. The Company may do so for any reason the Company consider fit, including, e.g., where the goods or services become unavailable, or the cost price of goods or services increases after the date of the quote.
3.19. The Company make every effort to ensure that all prices and descriptions quoted are correct and accurate. In the case of an error or omission, the Company may rescind the affected contract by written notice to the Customer, notwithstanding that the Company have already accepted the Customers order and/or received payment from the Customer. The Company’s liability in that event will be limited to the return of any monies the Customer has paid in respect of the order.
4.1. Payments are to be made to the Company without any deduction or discount other than as stated in these terms or in the relevant invoice or statement.
4.2. A minimum deposit of 35% of the invoice price must be paid when placing an order.
4.3. Where specific or non-stocked goods are ordered by the Customer, the goods must be paid for in full at the time the deposit is paid.
4.4. The balance of the invoice price must be paid in full before delivery.
4.5. Interest is payable on all overdue accounts calculated on a daily basis at the rate of 1.5% per month as from the date due for payment until payment is received by the Company.
4.6. In the event where your overdue account is referred to a collection agency and/or law firm, you will be liable for all costs which would be incurred as if the debt is collected in full, including legal demand costs.
4.7. Companies with outstanding accounts in breach of the aforementioned terms will be placed on credit hold.
5.1. The Customer may place an order for goods and/or services with the Company. Normally, the Company will require that the Customer provide either a completed order form or the Customer approve the quote electronically via either an email or a web-based system with the date and the Customers details, including the Customers full legal name or description and any applicable ABN or ACN number (including the full name or description of any person on whose behalf the order is placed), the Customers address together with any relevant quote number and date.
Approval of Orders:
5.2. The Customer will need to sign the order, or have it duly executed on the Customers behalf, unless the order is sent by email or via the web-based ordering system, in which case the order will be treated or deemed as if signed by or on behalf of the Customer by the person whose name appears as the sender of the email or submitter of the form.
Reliance on Appearance of Validity:
5.3. Absent actual knowledge to the contrary, the Company may rely upon the apparent validity of an order. If any order is signed or sent by email or approved through the web-based ordering system by a named person, that person warrants that the order is, and it is acknowledged the order is deemed in favour of the Company to be:
(a) signed by, and duly authorised by, both the person who signed the order and the person who sent the email; and
(b) duly authorised by the person on whose behalf the order is placed or apparently placed.
Acceptance and Orders:
5.4. An order has no effect unless or until it is accepted by the Customer in writing and, until the Company has received from the Customer payment in clear funds for the order and any related freight, delivery and (where applicable) in-transit insurance costs in clear funds.
No Obligation to Deliver:
5.5. The Company is not obliged to deliver any order until the Company has received payment in clear funds from the Customer for the order, any related freight, delivery and (where applicable) in-transit insurance costs or where the Company are unwilling or unable to complete the order for any reason provided it refunds any payment made by the Customer in respect of the order.
5.6. For the purposes of ascertaining the credit standing or history of a prospective customer to whom the Company are considering extending credit or payment terms, the Customer will hereby consent to the Company undertaking a credit reference check in respect to the Customer.
Cancellation of Orders:
5.7. The Company will not cancel an order unless the Customer agrees to do so in writing and at the Company’s absolute discretion. The Customer acknowledge that, amongst other things, the Company cannot cancel an order once the manufacturer or supplier has despatched the relevant goods and that such despatch often occurs the same day as the order is placed by the Company.
Processes and Procedures:
5.8. The Company have processes and procedures that the Company follow in the course of the provision of our services and the supply of goods. The Customer agrees to co-operate with the Company and to comply with such processes and procedures as advised to the Customer from time to time.
Alterations to Specifications:
5.9. The Company make every effort to supply the goods in accordance with the order, however the Company may supply alternate goods subject to minor variations in actual dimensions and specifications where these are changed by the manufacturer of the goods after the order date and before delivery.
5.10. If the Company cannot supply the goods ordered by the Customer, the Company may supply alternate goods of equal or superior quality provided however that the Customer will not pay a higher price than the price quoted or otherwise agreed for the goods ordered.
6.1. The Customer must, within 5 days of being notified of their availability, collect, or accept delivery of the goods and pay the balance of the invoice price.
6.2. If the Customer fails to collect the goods or accept delivery within 21 days of being notified of their availability, the Company may terminate this contract, keep the deposit, and resell the goods.
6.3. In addition to clause 1.1, the Company reserves the right to charge the Customer storage on goods not collected or delivered within 5 days of notification of their availability at the rate of $35.00 per week or part thereof.
6.4. The Company reserves the right to deliver the goods in whole or in instalments, as well as to deliver prior to the date for delivery and, in such event, the Customer must not refuse to take delivery of the goods.
6.5. Any failure on the part of the Company to deliver instalments within any specified time does not entitle the Customer to repudiate the contract with regard to the balance remaining undelivered.
6.6. The Company will use all reasonable endeavours to despatch goods by the due date, but do not accept any liability for non-delivery or failure to deliver on time where this is caused by circumstances beyond the reasonable control of the Company, including, for example, due to failures in supply to the Company or delays caused by third parties, such as delivery companies or manufacturers.
Limit on Damage from a Failure in Supply:
6.7. The Customer indemnify and hold the Company harmless for any allegation or claim for loss or damage by the Company or a third party where the Company have failed to meet any delivery date or cancels or suspends the supply of goods or services.
Obligation to Insure:
6.8. The Customer will ensure that goods are adequately insured from the time of delivery.
- Pricing and Rates
Rates exclude Tax:
7.1. All rates and amounts charged or quoted for goods and/or services by the Company are exclusive of tax and any other applicable taxes or government charges (unless otherwise stated in writing by the Company).
7.2. The Customer must pay for goods and/or services at the rates set out in any applicable plan and rate schedule as applicable from time to time during the provision of the goods and/or services.
7.3. The Company reserve the right to vary any rate and/or the rate schedule from time to time (subject to any fixed pricing for specific periods in any Plan), in its absolute discretion and without notice to the Customer.
7.4. The Customer acknowledge that call-out fees may be charged in addition to the rates at the Company’s absolute discretion and that the amount of the call-out fee will depend upon where the services are provided.
7.5. Where the Company arrange a return or refund on behalf of the Customer, or where an order is cancelled by the Customer after acceptance by the Company, the Company may charge the Customer a return/cancellation fee to cover the administration costs to the Company in processing the return or refund, or in processing the order, the cancellation, and any refund. The Company may deduct the return/cancellation fee from out of any moneys otherwise due to be refunded to the Customer by the Company.
7.6. The Customer must pay any out-of-pocket expenses incurred by the Company in providing the services to the Customer in addition to the rates, charges, and call-out fees, upon written demand. Such expenses will include travel costs, flights, car hire, petrol, insurance, taxi fares, accommodation and related meal allowance, tolls, and car parking expenses. Where appropriate, the Company will obtain prior written authorisation from the Customer before such expenses are incurred.
Separate charges for Goods and Services:
7.7. The Company may in absolute discretion charge for goods separately from services or may charge for goods and services together.
Calculation of Increments:
7.8. Where a charge is calculated based on increments of time, e.g., 1 hour or 30 minutes, the Company will charge the applicable rate for the whole increment of time even if work is done during part of, but not for the whole of, that increment of time.
Change in Underlying Costs:
7.9. Without prejudice to any other rights of the Company under these conditions, where there is any increase in the underlying costs incurred by the Company in connection with the supply of goods or services to the Customer, the Company may, in our absolute discretion, vary any of the Company rates.
Pre-Paid Blocks of Service:
7.10. Where the Customer agree to buy Pre-Paid blocks of service during a period, payment must be made in advance for the Pre-Paid blocks at the rate pursuant to the rates schedule for all services, each such rate being less any discount agreed in writing between the Company and the Customer in respect of the Pre-Paid blocks of service. Pre-Paid block of service during the period are calculated in accordance with the applicable minimum time periods and increments set out in the rates schedule and are only provided by the Company during the applicable period. Where services are provided for a specified period, the services remaining unused for that period cannot be rolled over into any subsequent period; and the Company are not liable to refund, re-imburse, pay damages or otherwise compensate or indemnify the Customer in respect of those unused services.
8.1. Legal and beneficial ownership of the goods will not pass to the Customer until such time as the goods have been paid in full in cash or cleared funds.
- Risk and Insurance
9.1. The goods are entirely at the risk of the Customer from the moment of delivery to the Customer’s point of delivery or on collection, even though title in the goods has not passed to the Customer at that time.
9.2. The Customer must, at its own expense, maintain the goods and insure them for the benefit of the Company against theft, breakdown, fire, water, and other risks from the moment of delivery to the Customer and until title of the goods has passed to the Customer.
10.1. Unless the Customer has inspected the goods and given written notice to the Company within 2 days after collection or delivery that the goods do not comply with the relevant specifications or descriptions, the goods are deemed to have been accepted in good order and condition.
- Computer Utility, Functionality and Fitness for Purpose
Service limitations given the Science of Computing:
11.1. The Customer acknowledge that a reasonable incident of the services may involve trial and error and that it is a science applied often in novel or unknown circumstances and involving experiment. In particular, the Customer acknowledge that the services may involve tests, troubleshooting, advice, and recommendations that may prove incorrect or inappropriate, particularly in an attempt to cure a problem the Customers are having. While the Company will make what the Company consider (in our absolute discretion) to be all reasonable endeavours to provide appropriate tests, troubleshooting, sound advice and good recommendations in order to assist the Customer, the Customer will always indemnify and hold the Company harmless in the provision of our services to the Customer.
Reasonable Assistance Limits:
11.2. The Company are only obliged to provide what the Company consider, in our absolute discretion, to be reasonable assistance in the circumstances (including with the installation and customisation of new software or hardware for the Customer or any other work) under any plan and the Customer will pay for additional work at the rates unless otherwise agreed. Without limiting the discretion of the Company to determine what reasonable assistance is, normally, reasonable assistance is limited to work done during business hours over a period of time not exceeding any period that the Company have allowed or allows for the work or has estimated or estimates the work will take, whether or not notice of the time allowed or estimated is given by the Company to the Customer.
- Recommendations, Suitability, Functionality, and Fitness for Purpose:
The Parties Acknowledge that:
12.1. The Company may recommend that the Customer purchase goods provided by third parties from time to time.
12.2. Recommendations may be made in situations where the Customer have made known to the Company the purpose for which the goods will be used, or some function sought to be fulfilled.
12.3. The Customer acknowledges that the Company has no control over many factors involved with the suitability, function, or fitness for purpose of goods in an existing or new computer environment, e.g.
(a) the compatibility or ability of the goods to fit into or perform to expectations in the receiving computer/internet environment; or
(b) the behaviour of third-party supplier, e.g., in relation to support.
12.4. The Customer acknowledge that for a whole number of reasons outside of the Company’s control, the goods may fail to meet the Customers expectations, may not turn out to be fit for all or any of the purposes sought, may not be suitable or may not function properly in all or any respects.
12.5. The Customer acknowledge that the services provided by the Company may involve the very task of seeking to customise goods so they may be fit for particular purposes and that customisation may be a very substantial project in itself.
12.6. Accordingly, the Customer will accept the sole responsibility for, and indemnify and hold the Company harmless in respect of:
(a) decisions as to whether or not to follow recommendations by the Company: or
(b) decisions as to whether or not to purchase or customise goods or obtain services for that or any other purpose: or
(c)and any failure or defect in suitability, function, or fitness for purpose of any goods and/or Services, including a responsibility to obtain the Customers own independent advice or second opinion from a suitably qualified person.
12.7. Where the Company provide services with a view to achieving the Customers purposes, suitability, function or fitness for purpose (whether expressed, agreed or otherwise), the Customer must pay for those services on time without any set-off or counter-claim, whether or not the Company are able to achieve any of such purposes, suitability, function or fitness for purpose, provided always that the Company have acted in good faith and have made what the Company consider, in our absolute discretion, to have made all reasonable endeavours to achieve those outcomes.
12.8. The Customer will follow the instructions of the Company with regard to testing or troubleshooting any problems and that if those do not resolve the outstanding problems, the Company will, subject to these Conditions, allocate such resources as the Company consider reasonable in the circumstances towards the Customers resolution.
- Your Responsibilities
13.1. The Customer must comply promptly with the Company’s reasonable directions in relation to the provision of the services to the agreement, provide promptly all information, decisions, facilities, and assistance the Company reasonably require to supply the services.
13.2. The Customer must comply with all laws and guidelines concerning your use of the services and provide the Company safe access to and egress from the premises to which the services are supplied and obtain the consent of the owner (where required) for the Company to install, inspect, repair, maintain or remove equipment connected with the provision of the services.
13.3. At times, the Company may need to contact the Customers third-party providers on the Customers behalf, such as the Customers internet provider. Some of these providers may require the Customers authorisation for the Company to deal on the Customers behalf. It is the Customers responsibility to ensure that the Company can deal freely with these providers.
13.4. The Customer must notify Int Tec Solutions of your inability to comply with the Company’s reasonable requests in line with points 5.1 to 5.3 outlining why you cannot comply and providing alternate options so that Int Tec Solutions may continue to meet its obligations under the contract.
13.5. Unless otherwise permitted under the Agreement, the Customer must not use or permit any other person to use any of the services for any unauthorised purpose.
13.6. All Software licences are the responsibility of the Customer and not that of the Company. It is the duty of the Customer to store all licences for all Software used, so that they can be reproduced if and when required. This includes all Software installed by the Company.
13.7. The Customer indemnify and hold the Company harmless against any claim, allegation, loss, damage, or expense arising directly or indirectly from any unauthorised software use by the Customer, any breach of any software licence in respect of software provided to the Company by the Customer to be installed on one of the Customers computers, otherwise as a result of the Company installing software where the Customer is not authorised to use the Software, and any problem, defect or malfunction associated with any software (or related services) supplied by third parties.
13.8. All copyright in custom software remains the sole property of the Customer unless alternate arrangements are made as part of a separate software agreement.
- Service Request Lodgement Process
When the Customer contact the Company to lodge a service request only the methods below must be used:
Phone: 03 5022 0000
Web Portal: https://connect.inttec.com.au/support
14.1. Include a short description of the problem and any screenshots of errors to assist in the resolution of the issue.
14.2. If the issue is being lodged by either phone or external email you must include your name, company, and return contact details.
14.3. Service requests must not be lodged directly with technicians, as this detracts them from resolving the current issue.
- Limited Liability
15.1. These terms do not affect the rights, entitlements and remedies conferred by the Trade Practices Act 1974.
15.2. The Company is not subject to, and the Customer releases the Company from, any liability (including but not limited to consequential loss or damage) because of any delay in delivery or fault or defect in the goods. The Customer acknowledges that the Company is not:
(a) responsible if the goods do not comply with any applicable safety standard or similar
(b) liable for any claim, damage or demand resulting from such non-compliance.
15.3. If any statutory provisions under the Trade Practices Act 1974 or any other statute apply to the contract between the Company and the Customers (Contract) then, to the extent to which the Company is entitled to do so, the Company’s liability under the statutory provisions is limited at the Company’s option to:
(a) replacement or repair of the goods or the supply of equivalent goods.
(b) payment of the cost of replacing or repairing the goods or of acquiring equivalent goods, and in either case, the Company will not be liability for any consequential loss or damage or other direct or indirect loss or damage.
16.1. All Goods supplied are covered by such warranties as are specified by the manufacturer and supplied subject to the product standards detailed by the manufacturer.
16.2. On discovery of any defect in the goods, the Customer must immediately notify the Company in writing of such defect. The Customer must not carry out any remedial work to alleged defective goods without first obtaining the written consent of the Company to do so.
16.3. The provisions of any act or law (including but not limited to the Trade Practices Act 1974) implying terms, conditions and warranties, or any other terms, conditions and warranties which might otherwise apply to or arise out of the contract are hereby expressly negatived and excluded to the full extent permitted by law.
16.4. The Customer expressly acknowledges and agrees that it has not relied upon, and the Company is not liable for any advice given by the Company, its employees, agents, or representatives in relation to the suitability for any purpose of the goods.
No claim for Manufacturer’s Default:
16.5. The Customer indemnify and hold the Company harmless in respect of the performance or otherwise, by any manufacturer of goods supplied to the Customer by the Company, of any of the obligations of such manufacturer in respect of such goods. This includes any damages or moneys due to the Customer arising under, or in connection with, any breach by the manufacturer of any the manufacturer’s warranties in respect of the goods.
- Warranty – What is not Covered
17.1. Normal maintenance, cleaning, or tune-ups.
17.2. Cosmetic defects or damage (such as cracked cases and broken hinges) or defects that do not inhibit the proper operation and performance of the covered items.
17.3. Repair or replacement covered by any other warranty, service agreement, or insurance policy in effect at the time of the failure.
17.4. Repair or replacement due to failure to properly install, operate, maintain, or clean the covered product in accordance with the local codes and the manufacturer’s printed instructions, or from use in any combinations not approved in the manufacturer’s specifications, or from any authorized modifications or alterations.
17.5. Repair or replacement due to vandalism, riot, or general environmental conditions, including but not limited to rust, corrosion, or mould.
17.6. Any service request which results in Customer education, or no problem found, conditions which existed prior to the Customers purchase and delivery of the product or the service contract.
17.7. Special, indirect, or consequential damages, loss or damage caused by accidental or intentional physical damage, spilled liquids, insect infestation, misuse, abuse or service costs or damage caused by unauthorized repair personnel.
17.8. Personal items left in the product to be repaired.
17.9. Products that are not listed on the service contract.
- Theft and Loss
18.1. Loss or damage to the covered product while during transit, delivery, or redelivery.
18.2. Alteration or removal of the serial number.
18.3. Damaged caused by disassembly of the Product.
18.4. Damage resulting from software virus; improper gas or water connections, or electrical wiring and connections in user environment, user facilitated minor adjustments and settings outlined in the product’s owner’s manual, external antenna or local reception problems, inaccessible products or parts, negligence.
18.5. Failures due to dust, animal, or insect damage, acts of God such as fire, water, windstorm, sand, dirt, hail, or earthquake, civil disorders, or nuclear accident.
18.6. The Company will have no liability for loss or recovery of data or programs or loss of use of system(s) arising out of the failure of hardware subject to a warranty claim.
18.7. The Company disclaims any and all liability for HDDs or other media (and data contained therein) which are lost or damaged while in the possession of a third-party or commercial shipping company.
- Display and Samples
19.1. Any display product or sample inspected by the Customer is solely for the Customer’s convenience and does not constitute a sale by sample.
20.1. The terms of the contract are wholly contained in these terms and any other writing signed by both parties. The contract is deemed to have been made at the Company’s place of business where an order was placed, and any cause of action is deemed to have arisen there.
- Right to Enter Premises
21.1. In any of the circumstances referred to in clause 21, the Customer:
(a) authorises the Company by itself, its agents, or representatives at all reasonable times, without notice, to enter onto (with force if reasonably necessary) and to remain in and on any premises where the goods are located in order to collect the goods, without being guilty of any manner of trespass.
(b) assigns to the Company all the Customer’s rights to enter onto and remain in and on such premises until all the goods have been collected.
- Force Majeure
22.1. The Company will not be liable for any breach of contract due to any matter or thing beyond the Company’s control (including but not limited to transport stoppages, transport breakdown, fire, flood, earthquake, acts of God, strikes, lockouts, work stoppages, wars, riots or civil commotion, intervention or public authority, explosion, or accident.)
- Waiver of Breach
23.1. No failure by the Company to insist on strict performance of any of these terms is a waiver of any right or remedy which the Company may have and is not a waiver of any subsequent breach or default by the Customer.
- No Assignment
24.1. Neither the contract, nor any rights under the contract may be assigned by the Customer without the prior written consent of the Company, which is at the Company’s absolute discretion.
25.1. If any provision contained in these terms is held by a court to be unlawful, invalid, or unenforceable, the validity and enforceability of the remaining provisions are not affected.
- Governing Law
26.1. These terms and the contract shall be governed by the law of Victoria and the parties submit to the courts of Victoria in respect of any dispute arising.
MANAGED SERVICES TERMS AND CONDITIONS
This document sets out the terms and conditions on which Int Tec Solutions provides managed IT support Services to clients. These are known as our Managed Services Standard Terms and Conditions.
These Standard terms and conditions apply to Int Tec Solutions Managed Services Agreements and Fixed Rate Support agreements. A reference herein to “the Agreement‟ is a reference to Int Tec Solutions Managed Services Agreements. Int Tec Solutions advises Clients that its Standard and Managed services terms and conditions are published at https://www.inttec.com.au/terms by stating that in its Managed Services Agreements. Managed Services Agreements identify the type and level of IT Support that Int Tec Solutions agrees to provide our clients.
Int Tec Solutions’s Managed Service Offerings are subject to our Fair Use Policy and are published here https://www.inttec.com.au/FairUse
Int Tec Solutions is in the business of providing Information Technology (IT) service and technical support.
The operations of the Client involve the use of an IT network which requires ongoing service and support.
The Parties have agreed to enter into the Agreement whereby Int Tec Solutions will provide IT service and support to the Client on the terms and conditions hereinafter provided in the agreement.
- Contract Definitions and Interpretation
1.1. In these Terms and Conditions:
“Additional Charge” means a charge levied to your account in relation to the supply of a service or product or goods of and incidental to the Agreement that is not included in the Agreement that is deemed by Int Tec Solutions to be reasonably necessary to give effect to the performance of the Term of the Agreement.
“Agreement” means the Managed Services Agreement or IT Support SLA which may be used interchangeably herein.
“Agreed increase” means the amount expressed as a percentage of the fixed annual fee by which the fee will rise at the anniversary of the commencement date of the Term of the Agreement to any extent applicable.
“Business Day” means a day in the State of Victoria that is not a Saturday, a Sunday, or a gazetted public holiday in that State.
“Client” means the party that has entered into the agreement with Int Tec Solutions.
“Commencement Date” means the date for the commencement of the services as specified in the Agreement.
“Confidential Information” means:
all pricing information, business and financial information, sales and supply details, marketing strategies, customer and supplier listings, staff information, business listings, information concerning the business or customers relating to the Client or the Services.
all information related to people who are currently or have previously wished to find employment with the Client and or any third party introduced by the Client.
all processes, procedures, techniques, concepts, systems, manuals, licence agreements, disclosure documents, documents, agreements, contracts, notes, file and data base structures and software relating to the Services.
any information which, by its nature, places or potentially places the Client at an advantage over its present or future business competitors.
any pricing information which, by its nature, places or potentially places the Client at a disadvantage with its present or future clients.
any information that would otherwise at law be considered secret or confidential information; whether or not marked “Confidential” BUT does not include information which:
at the time of first disclosure by a party is or is reasonably known to be or to have been a part of the public domain.
after disclosure by a party is or becomes part of the public domain otherwise than by disclosure in breach of the terms of the Agreement.
was in the possession, knowledge, custody, power, or control of Int Tec Solutions prior to disclosure.
Any information relating to the Client, its members, customers, contributors, or suppliers.
“Corporations Act 2001” means the Corporations Law and may be used interchangeably in the agreement.
“Contract” means the Agreement and may be used interchangeably herein.
“Due Date” means the date payment is due and payable by the Client to Int Tec Solutions for the supply of the Services or other matters or things of and incidental to the Agreement.
“Emergency” means anything that is considered to be of an extreme or catastrophic nature touching or impinging upon human life, property, goods, anything material or intangible deemed necessary to give effect to the Agreement.
“Fees” means the Time and Materials hourly rate, or those costs prescribed in the schedule of Fees or Price List comprising the Agreement and may be used interchangeably to the extent applicable.
the same as in the GST Law.
any other goods and services tax, or any tax applying to the agreement in a similar way; and any additional tax, penalty tax, fine, interest or other charge under a law of such a tax.
“GST Law” means the same as “GST law‟ in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
“Initial term” means the committed period of engagement by the Client of Int Tec Solutions starting on the Commencement date.
“Insolvency Event” in respect of the Client means:
The client becomes an externally administered body corporate for the purposes of the Corporations Act 2001 (Cth) or an external insolvency administrator is appointed to any such party under the provisions of any companies or securities legislation of another jurisdiction.
a controller (as that term is defined in the Corporations Act 2001 (Cth)) or mortgagee in possession is appointed to the assets of the Client, or any such appointment is reasonably likely.
The Client fails to comply with a statutory demand in the manner specified in section 459F of the Corporations Act 2001 (Cth), and has not made an application to set aside such demand under section 459G of the
Corporations Act 2001 (Cth); The Client is unable to pay its debts as and when they fall due.
“Out of Scope” means services provided that do not form a part of the Support Hours or Fees schedule or base costing of the Agreement to any extent applicable.
“Parties” means the parties to the Agreement, namely the Client and Int Tec Solutions and may be used interchangeably in the Agreement or herein.
“Penalty Rate” means those amounts prescribed in the Agreement to any extent applicable.
“Personal Information” to the extent applicable to this contract has the same meaning as it has in sub-section 6(1) of the Privacy Act 1988 (Cth).
“Related Bodies Corporate” has the meaning given to that term in the Corporations Act 2001.
” Response Time” means the maximum delay prior to Int Tec Solutions responding to a request for Services of and incidental to the Agreement.
“Services” means those services described in the Agreement.
“Service Level Guarantees” means those Service Support Levels set out in the Agreement.
“Subsequent term” means the period of time the Client engages Int Tec Solutions following the conclusion of the Initial Term.
“Tax Invoice” means a tax invoice within the meaning of the GST Law.
“Term” means the Initial Term and any Subsequent Term as set out in the Agreement.
“Int Tec Solutions” means Tristate Computer Services Pty Ltd trading as Int Tec Solutions which may be used interchangeably in the Agreement or herein.
“We” or “Us” or “Our” means Int Tec Solutions and may be used interchangeably in the Agreement or herein.
“You” or “Your” or “It” means the Client and may be used interchangeably in the Agreement or herein.
1.2. In these Terms and Conditions, except where the context otherwise requires:
(a) the singular includes the plural and vice versa, and a gender includes other genders.
(b) a reference to a definition that is capitalised may also be a reference to such definition in lower case.
(c) another grammatical form of a defined word or expression has a corresponding meaning.
(d) a reference to a clause, paragraph, schedule, or annexure is to a clause or paragraph of, or schedule or annexure to, the agreement, and a reference to the agreement includes any schedule or annexure.
(e) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented, or replaced from time to time.
(f) a reference to A$, $A, dollar or $ is to Australian currency.
(g) a reference to time is to the time in Victoria, Australia.
(h) a reference to a party is to a party to the agreement.
(i) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity.
(j) a reference to a statute, ordinance, code, or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments, or replacements of any of them.
(k) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions.
(l) headings are for ease of reference only and do not affect interpretation.
(m) any agreement, representation, warranty, or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally.
(n) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of the agreement or these terms and conditions or any part of them; and if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed, or the event must occur on or by the next Business Day.
2.1. The Agreement continues for its term unless otherwise stipulated or terminated in accordance with the terms and conditions herein.
2.2. Following expiry of the Initial term the Agreement will automatically renew for subsequent periods equal to the length of the Initial term of the Agreement (each a subsequent term) unless you notify Int Tec Solutions in writing at least 60 days prior to the expiry of the Initial term or, where relevant, a subsequent term, of your intention to allow the Agreement to expire.
- Acknowledgements and Notice
3.1 Int Tec Solutions acknowledges:
The client enters into the Agreement and receives the benefit of the services on behalf of itself; that, if not for the client entering into the Agreement, the client would not have allowed Int Tec Solutions to provide the Managed Services to it; the confidentiality obligations hereby created shall not merge or be released upon cessation of any discussions between the parties but will continue thereafter.
3.2. Int Tec Solutions hereby notifies the client:
that these terms and conditions take effect from signing of the Managed Services contract; and if an existing contract is on foot to supply IT services at the time these terms and conditions take effect; the existing contract is enforceable until its expiration; and ii. at the expiration of the existing contract these terms and conditions apply.
- Confidentiality Obligations
4.1. Int Tec Solutions must not use the confidential information other than for the purpose of fulfilling the requirements of and to give effect to the performance of the Agreement.
4.2. Int Tec Solutions must maintain strict confidentiality in relation to the confidential information and must not divulge all or any aspect of the confidential information to any person not in its employ or engagement in relation to fulfilling its obligations under the Agreement.
4.3. If Int Tec Solutions wishes to disclose any of the confidential information to its accountant, business, financial or legal adviser (“Professional Advisors”), it may do so upon advising the client and obtaining the prior written consent of the client that shall not be unreasonably withheld.
4.4. If Int Tec Solutions is uncertain whether any information comprises part of the confidential information, then it may seek direction from the client before divulging the information to any third party.
4.5. Int Tec Solutions must not grant or permit any person to have access to or possession of the Confidential Information.
4.6. The obligations on the parties under this clause 4 shall not be taken to have been breached to the extent that the confidential information:
(a) is disclosed by Int Tec Solutions to its professional advisers, officers, employees, agents, or subcontractors solely and to the extent necessary in order to comply with obligations or to exercise rights under the Agreement:
(b) is disclosed by Int Tec Solutions to its internal management personnel, solely to enable effective management or auditing of related activities of and incidental to fulfilling its obligation to the client under the Agreement:
(c) is authorised or required by law or by order of any regulatory authority, stock exchange, judicial or parliamentary body or governmental agency to be disclosed.
4.7. Where Int Tec Solutions discloses Confidential Information to another person pursuant to sub-paragraphs 4.6(a) and 4.6(b), Int Tec Solutions must: notify the receiving person that the information is Confidential Information; and not provide the information unless the receiving person agrees in writing to keep the information confidential.
4.8. If Int Tec Solutions is required to make a disclosure as described in sub-paragraph 4.6(c) Int Tec Solutions will disclose only the Confidential Information required to comply with the applicable law or order; notwithstanding this clause 4, the client is not entitled to restrict the use by Int Tec Solutions of any intellectual property in material which vests in the client by claiming that the intellectual property is confidential information which would restrict the delivery of the Managed Service or impinge or unduly impact upon the service levels provided.
4.9. The client agrees that it will; treat as confidential information and keep secret during the term of this Agreement and for three full years after the termination of it all information relating to the business practices or clientele of Int Tec Solutions that is disclosed to it in confidence unless Int Tec Solutions gives its prior written consent to such disclosure unless such disclosure is required by law or relevant regulatory body; and not reproduce in whole or in part any report prepared by Int Tec Solutions for use by any other party without Int Tec Solutions’s prior written approval.
4.10. Int Tec Solutions’s obligations of confidentiality shall not merge or be released upon the expiry or termination of the Agreement and will continue thereafter.
- IT Service and Support
5.1. Int Tec Solutions must provide the services to the client; in accordance with any service levels guarantees; and otherwise on the terms and conditions of the Agreement, throughout the Term. The method of delivering the services will be determined at the sole discretion of Int Tec Solutions and can be delivered via telephone, remotely or by onsite attendance. Int Tec Solutions must act reasonably in exercising such discretion.
5.2. Int Tec Solutions must provide and carry out the service in an efficient and professional manner and in accordance with standards generally observed in the IT industry or profession for similar services.
Service and Plan Variations:
5.3. Currently, we offer the services and plans referred to in the rates schedule and any plan schedule. We may withdraw the provision of, or vary the scope or terms of, or add to or change, the services without notice to you, from time to time in our absolute discretion.
Copies on Request:
5.4. We will provide you with a copy of the current rates schedule upon request. Plan schedules are tailored for particular plans and are available to clients participating in the plan.
The Client shall:
5.6. Provide all reasonable assistance requested by the personnel of Int Tec Solutions in the diagnosis of any problem within the IT infrastructure and follow any reasonable direction of Int Tec Solutions in the course of doing so; make available free of charge and within a reasonable time all information, facilities and services reasonably required to enable Int Tec Solutions to provide the services.
5.7. Provide reasonable access to its premises thereby granting a non-exclusive licence to Int Tec Solutions to give effect to the matters described in sub-clauses 5.9(A) and (B) herein.
5.8. Provide such telecommunication facilities as reasonably required by Int Tec Solutions for testing and diagnostic purposes.
5.9. Int Tec Solutions will use best endeavours to supply the services without warranting that supply will be interruption or error free. Despite anything else within the Agreement, the client acknowledges and accepts that the services may not be available in all circumstances.
(a) The client hereby agrees to indemnify and release Int Tec Solutions against any claim for damages arising in contract and or tort (including negligence) for default or failure to perform our obligations under the Agreement (including Service Level Guarantees) resulting from circumstances reasonably beyond its control including, but not limited to, weather conditions, power failure, telecommunications failure, technical failure, maintenance requirements, our inability to access your premises, your acts or omissions or those of any third parties.
(b) Int Tec Solutions shall rely upon this clause 6.5 to the full extent permitted by law and to the extent of any inconsistency between this clause 6.5 and clause 9 herein, clause 9 shall prevail to the extent of such inconsistency.
5.10. Where a serious issue or potential issue or problem matter or thing of any type whatsoever or howsoever arises relating to the age, configuration or implementation of any supported equipment that has been identified and brought to the attention of the client by Int Tec Solutions in writing and in the opinion of Int Tec Solutions that said equipment is requiring additional support or support beyond the scope of the obligations of Int Tec Solutions under the Agreement due to its age, configuration or implementation, Int Tec Solutions reserves the right in its sole discretion to cease support of that item of equipment under the Managed Services Agreement or provide support on the time and material basis within the scope of the Agreement until such times as the said equipment is brought up to a standard in the opinion of Int Tec Solutions is acceptable to agreed IT standards in the Australian IT profession. Int Tec Solutions will work with the client to proactively identify appropriate replacement solution options and to assist the client to procure such solution. The client hereby expressly agrees to indemnify, release, and hold harmless and blameless Int Tec Solutions for any consequential, economic, business or opportunity, direct or indirect loss or damage or harm of any type whatsoever (including negligence and in contract or tort) arising out of or incidental to any interruption to service, support or maintenance of the clients operating network howsoever arising by Int Tec Solutions having ceased support of the said equipment. Int Tec Solutions shall rely upon this clause 5.10 to the full extent permitted by law and to the extent of any inconsistency between this clause 5.10 and clause 9 herein, clause 9 shall prevail to the extent of such inconsistency.
5.11. To any extent necessary, clause 5.10 and 5.11 hereof may be read together to interpret the application or operation of them individually or collectively in part or in whole and in the event, there is found to be any inconsistency between the clauses such inconsistency shall be severed without affecting the remaining provision that shall be enforced and interpreted as if the severed provision had never existed.
5.12. Unless specified in the Agreement all other services and or requirements that the client may require in connection with or of and incidental to its IT infrastructure other than the services listed in the Agreement will be deemed not to be covered by the Agreement and if provided by Int Tec Solutions shall be charged in accordance with the time and materials “Out of Scope” hourly rate included in the Agreement. This includes but is not limited to:
(a) Travel time to and from and support of equipment at remote locations such as staff homes not listed in the “Supported Site Location” list.
(b) Installation of new or additional devices or provision of service which is not specifically mentioned in the Agreement or covered by its scope; and
(c) The relocation of equipment in the event you move location.
- Service Fee
6.1. The fees for the services as detailed in the Agreement will be payable calendar monthly and shall be due and payable within 7 days of the date of a tax invoice supplied (Due Date). Fees which do not appear on a tax invoice for a particular period may appear on future tax invoices.
6.2. You will pay all tax invoices by the due date or, if you elect to pay by credit card or by direct debit, we will debit your credit card or nominated direct debit account for the amount of the tax invoice and any other fees by the due date.
6.3. Unless a credit application has been completed by the client and approved by Int Tec Solutions, we may require the client to pay a negotiated security deposit on Fees before entering into the Agreement with you. The security deposit shall be held in escrow, and you are deemed hereby to have provided your express consent for us to deduct any amounts you owe under the Agreement from the security deposit.
If you do not pay an invoice by the Due Date you agree:
6.4. We may charge you daily interest from the due date until the date on which payment is received; and interest will be capitalised monthly and will be payable at the rate which is 2.5% per annum above the overdraft reference rate quoted by our principal bankers on the first day of the applicable month.
6.5. You will be liable for all reasonable and necessary collection costs (including legal fees charged on a solicitor/client basis and indemnify Int Tec Solutions for such costs) we incur to collect an amount outstanding.
6.6. If you in good faith dispute an amount in an invoice, you must notify us in writing within 7 days of the date of invoice setting out reasons for the dispute and the amount in dispute (Disputed Amount). We will within 7 days of the date of receipt of your notice in writing in good faith review the invoice for the purposes of resolving such dispute. In the event a fee is disputed, you are not entitled to withhold payment of the undisputed amount of the invoice.
6.7. Our records are prima facie evidence of the fees payable by you under the Agreement except to the extent they are proved to be substantially incorrect.
6.8. Subject to due performance by Int Tec Solutions of its obligations under this Agreement and to the terms of this Agreement, except where an interruption, unavailability or impaired quality of the service has been caused or contributed to by us, you remain liable for all fees.
6.9. We may pay a commission to retailers/dealers who introduced you to us (or any other person).
6.10. Block hours purchased on an ad hoc basis must remain in credit at all times.
6.11. Accounts remaining in debit 14 days past due date will be placed on credit hold without notice.
6.12. Fees will each be adjusted on the anniversary of the commencement date and each subsequent anniversary of the commencement date by the agreed increase (measured as a percentage) in the CPI (All Groups – Melbourne) over the preceding 12-month period or by a sum equal to 5% of the fees or whichever amount is the greater.
- Suspension and Termination
7.1. Without limiting our rights under the Agreement, we may suspend the supply of services with notice (which may be written or verbal) to you if:
(a) it is an emergency; directed/required to do under the law; or
(b) you fail to pay an amount due and payable that is 14 days past the due date which is not the subject of a good faith dispute, and for which a valid tax invoice has been issued.
7.2. Without limiting clause 7.1, we may suspend services by providing 14 days written notice if:
(a) a resolution is passed, or an application is made to, or an order is made by, a court of competent jurisdiction for the winding up of the client (except pursuant to internal amalgamation or reconstruction).
(b) an administrator or a receiver or a receiver and manager or an external controller is appointed to any of the assets or undertaking.
(c) you or your guarantors (if applicable) makes an arrangement for the benefit of or enters into an arrangement or composition with its creditors; you have an official manager or inspector appointed pursuant to the provisions of the Corporations Act; or
(d) if you or your guarantors (if applicable) commit an act of insolvent trading and or are likely to be unable to pay debts as and when they fall due and payable within the meaning of the Corporations Act 2001.
(e) a director is convicted of a criminal offence or is subject to regulatory action resulting in a civil penalty declaration or administrative banning order or adverse finding, including enforceable undertaking.
7.3. After the expiration of the Initial Term of the Agreement, Int Tec Solutions may terminate at its sole discretion the supply of a particular service at any time by providing the Client 30 days prior written notice.
Int Tec Solutions may Terminate the Agreement Immediately if:
7.4. The client breaches a material provision of this agreement; and Int Tec Solutions gives the client 30 days written notice:
(a) specifying the nature of the client’s breach or default; ii. telling the client what is required to be done to remedy the breach or default; and iii. advising the client that Int Tec Solutions intends to terminate this agreement if the client fails to remedy the breach or the default within the given notice period; and
(b) the client fails to remedy the breach or default within the given notice period.
7.5. Without limiting clause 2.2, the client may immediately terminate the Agreement, by sending Int Tec Solutions a written notice of that fact if:
(a) Int Tec Solutions repudiates a material or fundamental term of the Agreement.
(b) Int Tec Solutions fails to remedy, to the satisfaction of the parties, a fundamental breach of service delivery incidental to the Agreement on three separate occasions within 30 days after the date on which the client issued Int Tec Solutions a written notice requiring Int Tec Solutions to remedy those breaches.
7.6. Any termination or expiry of the Agreement will not prejudice any equitable or legal right of action or remedy which may have accrued or manifest to either party prior to or after termination of the Agreement.
7.7. Int Tec Solutions may in its absolute discretion release the client from its obligations under the Agreement before expiration of the term and shall be entitled to claim damages in accordance with clause 9 herein.
7.8. Termination of the Services in accordance with the Agreement does not affect the application of the provisions of these terms and conditions relating to limitation of liability or indemnity.
- Your Responsibilities
8.1. Comply promptly with our reasonable directions in relation to the provision of the services to the Agreement.
8.2. Provide promptly all information, decisions, facilities, and assistance we reasonably require to supply the Services.
8.3. Comply with all laws and guidelines concerning your use of the services; and
provide us safe access to and egress from the premises to which the services are supplied and obtain the consent of the owner (where required) for us to install, inspect, repair, maintain or remove equipment connected with the provision of the Services.
8.4. At times we may need to contact your third-party providers on your behalf, such as your internet provider. Some of these providers may require your authorisation for us to deal on your behalf. It is your responsibility to ensure that we are able to deal freely with these providers.
8.5. You shall notify Int Tec Solutions of your inability to comply with our reasonable requests in clause 5 outlining why you cannot comply and providing alternate options so that Int Tec Solutions may continue to meet its obligations under the contract.
8.6. Unless otherwise permitted under the Agreement, you must not use or permit any other person to use any of the services for any unauthorised purpose.
8.7. All Software licences are the responsibility of you and not that of us. It is the duty of yours to store all licences for all software used, so that that they can be reproduced if and when required. This includes all software installed by us.
8.8. You indemnify and hold us harmless against any claim, allegation, loss, damage, or expense arising directly or indirectly from:
(a) any unauthorised software use by you.
(b) any breach of any software licence in respect of software provided to us by you to be installed on one of your computers, otherwise as a result of us installing software at your where you are not authorised to use the software; and
(c) any problem, defect or malfunction associated with any Software (or related services) supplied by third parties.
8.9. All copyright in custom software remains the sole property of ours unless alternate arrangements are made as part of a separate software agreement.
- Limitation and Exclusion of Liability
9.1. Subject to clause 9.4, Int Tec Solutions shall not be liable to the client for any loss or damage whatsoever or howsoever caused arising directly or indirectly in connection with the agreement, except to the extent that such liability may not lawfully be limited or excluded. For the avoidance of doubt this extends to any employees, contractors, agents, representatives, licensees or permitted assigns of Int Tec Solutions.
9.2. Notwithstanding the generality of clause 9.1, Int Tec Solutions expressly excludes liability for consequential loss or damage which may arise in respect of the Services or for loss of loss of data, loss of, or claim for, revenue, profits, actual or potential business opportunities or anticipated savings or profit, whether direct, indirect, economic, consequential howsoever arising by way of act or omission in contract or in tort. You hereby agree to release and indemnify Int Tec Solutions to that extent.
9.3. Where we cannot by law exclude such liability, our liability to you will be limited, at our choice, to, if the breach relates to goods, the replacement or repair the goods or, if the breach relates to services, the supply of those services or the payment of the cost of those services supplied again. This clause applies despite anything else contained herein or incidental to the Agreement and to the fullest extent permitted by law.
9.4. Notwithstanding clause 9.1, the limitation of liability set out in clause 9.1 will not apply to any liability arising as a result of, or in connection with:
(a) fraud or wilful misconduct by Int Tec Solutions.
(b) breach of confidentiality by Int Tec Solutions.
(c) breach of privacy by Int Tec Solutions; or
(d) infringement of a third party’s Intellectual Property Rights by Int Tec Solutions.
9.5. For the purposes of this clause 9.4, the term “Int Tec Solutions” shall mean Int Tec Solutions, its officers, employees, sub-contractors, suppliers, and agents, whether individually or collectively.
9.6. To the fullest extent permitted by law, we exclude all warranties implied by law except as expressly set out in the Agreement.
9.7. Any unreasonable and material interference by the client or its agents, servants, employees, sub-contractors or other third party with the consent of the client with equipment, network or configuration relevant to or of and incidental to the Agreement will void any guaranteed response time or quality of service commitments, remove any liability to the client for the quality of the service the subject of such interference and may also incur fees to cover costs of rectification as the rectification will be considered as an excluded item of the Agreement.
- Ending Contract Prematurely
10.1. Without prejudice to any other rights under the Agreement or at law, if we terminate the Agreement in accordance with clause 7 or the Agreement prematurely ends because you are in breach of your obligations under the Agreement:
(a) our rights in respect of your breaches and unfulfilled obligations under the Agreement at that time continue:
(b) you must pay us all outstanding fees at that time together with an amount equal to the fees which would have been payable if the Agreement had continued for the full term.
10.2. Notwithstanding anything else, the liability of Int Tec Solutions under the Agreement of and incidental to any breach thereof shall be limited to the total cost of the contract per single event or occurrence. This clause 10.2 shall apply to the fullest extent permitted by law despite anything else incidental to the Agreement.
- Notice Provisions
11.1. Any notice, consent or other communications given or made to a party under the Agreement must be in writing and delivered or sent by email, pre-paid ordinary post or facsimile transmission to the address or facsimile number of the party as last or reasonably known to either party or to such other address or facsimile number as the party may from time to time notify for the purpose of this clause.
11.2. Proof of posting by pre-paid or ordinary post shall be deemed receipt within 2 Business Days after posting.
11.3. Proof of dispatch by facsimile is proof of receipt upon production of a facsimile report by the machine from which the facsimile is sent except where the sender machine indicates a malfunction in transmission or the recipient immediately notifies the sender of an incomplete transmission, in which case the transmission shall be deemed not to have been given or served.
11.4. Proof of delivery by email is proof of receipt upon production of a delivery confirmation report appearing on the sender’s computer except where the sender’s computer indicates delivery has not been affected in which case delivery shall be deemed not to have been affected.
- Assignment and Subcontracting
12.1. You must not assign or otherwise transfer your rights or obligations under the Agreement without the prior written consent of Int Tec Solutions, which shall not be unreasonably withheld. For the avoidance of doubt, a change in the control of a party is a deemed assignment.
12.2. We may subcontract our service obligations under the Agreement provided that by subcontracting we are:
(a) not relieved from any of our obligations under the Agreement; and liable for any breach of the Agreement committed, caused, or contributed to by our subcontractors.
13.1. (Waiver) The waiver by either party of any breach of the Agreement shall not licence the other party to repeat or continue any such breach nor operate as a waiver of any subsequent breach whether of the nature or not.
13.2. The failure of either party to exercise any right which it may have in the event of a breach of the Agreement shall not be deemed to be an abandonment or waiver of any right for damages injunction or otherwise.
13.3. (Entire Agreement) The terms and conditions herein and the Agreement set forth the entire Agreement and understanding for provision of Managed Services between the parties and merges all prior discussion between them and none shall be bound by any conditions, warranties or representations with respect to the subject of the Agreement other than as expressly provided therein or any instrument subsequent to the Commencement Date of the Agreement in writing and signed by the party to be bound thereby.
13.4 You acknowledge that no employee or agent of ours has any right to make any representation, warranty or promise in relation to the supply of goods or services other than subject to and as may be contained in the conditions.
13.5. (Force Majeure) The non-performance or delay in performance by a party of any obligation under the Agreement is excused during the time and to the extent that such performance is prevented by a circumstance or event beyond its reasonable control (Force Majeure Event), provided that the party affected by the Force Majeure Event uses its best endeavours to perform as soon as possible its obligations under the Agreement (including by the use of reasonable workarounds and interim measures). If a Force Majeure Event continues for more than 30 days, either party may terminate the Agreement immediately by notice in writing to the other party.
13.6. (Governing Law) The Agreement shall be deemed to have been made in the State of Victoria and construction, validity and performance of the Agreement shall be governed by the laws (as amended) of that State. The parties unconditionally submit to the jurisdiction of the Courts of that State or any superior Court of the Commonwealth having relevant jurisdiction.
13.7. (Reading down and severance) Each clause of the Agreement and each part of each clause must be read as a separate and severable provision. If any provision is found to be void or unenforceable, that provision may be severed, and the remainder of the agreement must be interpreted as if the severed provision had never existed.
13.8. (Non-merger) All obligations of the parties which expressly or by their nature survive the expiration or termination of the Agreement shall continue in full force and effect notwithstanding such expiration or termination.
13.9. (Non-solicitation) You must not solicit or attempt directly or indirectly to solicit any of our employees, either directly as an employee, as a contractor or as a subcontractor for employment or separate engagement as a contractor during the term of the Agreement and for 12 months after the date of expiration of the Agreement. Should you breach this clause you agree to pay Int Tec Solutions a fee equal to the solicited/engaged employee’s last annual Int Tec Solutions gross taxable remuneration package as compensation.
13.10. You agree that employees are one of our most valuable assets, policy and professional ethics require that our employees not seek employment with or be offered employment by you during the course of engagement and for a period of two (2) years thereafter (or the maximum amount permissible by a Court).
13.11. You agree that our damages resulting from breach of this clause would be impracticable and that it would be extremely difficult for us to ascertain the actual amount of damages. Therefore, in the event you violate this provision, you agree to immediately pay us 100% of the employee’s total annual salary, as liquidated damages and we shall have the option to terminate this Agreement without further notice or liability to you. The amount of liquidated damages reflected herein is not intended as a penalty and is reasonably calculated based upon the projected costs we would incur to identify, recruit, hire and train suitable replacements for such personnel.
13.12. (Testing) From time to time we may carry out various security checks on the services, these checks may include, but are not limited to, port scans, simulated Denial of Service (“DOS”) attacks, simulated distributed DOS attacks. Int Tec Solutions will provide the Client with 7 days’ notice of such test however under some circumstances this may not be possible such as when a suspected breach of security has been identified.
13.13. (Variation) Int Tec Solutions. We may at any time vary these Terms and Conditions by publishing the varied Terms and Conditions on our website. You accept that by doing this, we have provided you with sufficient notice of the variation. We are under no other obligation to notify you of any variation to these terms and conditions.
13.14. (Counterparts) This agreement may consist of a number of counterparts and, if so, the counterparts taken together constitute one agreement.
14.1. Any consideration to be paid or provided for a supply made under or in connection with the Agreement, unless specifically described in the Agreement as ‘GST Inclusive’, does not include an amount on account of GST (‘GST Exclusive Consideration’).
14.2. If any supply made or to be made by a party (‘Supplier’) under or in connection with the Agreement is a taxable supply the supplier may, in addition to the GST exclusive consideration, recover from the recipient of that supply (‘Recipient’) an amount on account of GST to be calculated by multiplying the GST exclusive consideration for the supply by the GST rate prevailing at the time that the supply is made.
14.3. Any additional amount on account of GST recoverable from the recipient under clause 13.3, is payable on provision by the supplier of a Tax Invoice.
14.4. In this clause 14 words or expressions that are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the meaning given to them by that Act.
15.1. Permission will be sought in writing and not unreasonably withheld to provide us requested information relevant to our assessment of your credit rating before we enter into the Agreement with you.
15.2. Permission will be sought in writing prior to and not reasonably withheld for us to disclose information or documents about our mutual business particulars and affairs (including credit worthiness, credit history and credit capacity) from or to credit providers and credit reporting agencies and all purposes permitted by the Privacy Act 1988 (Cth); law enforcement agencies; debt collection agencies for purposes connected with supply of the services, billing for the services or collecting amounts invoiced for the Services.
15.3. You permit us to set a limit on the credit we extend to you in relation to your use of the Services (“credit limit”) if applicable. We will advise you of any credit limit we set. We may revise the credit limit from time to time by notice to you if we consider there has been any change in your capacity to pay.