Terms and Conditions
General Terms and Conditions of Supply of Products & Services
Revision No: 2.3
- a) “Client” means the person or company to whom Products and/or Services are supplied and includes that company’s successors and permitted assigns.
- b) “Central-Data” means Central Data Systems Pty Ltd, the supplier of Products and/or Services to the Client, and includes Central-Data’s successors or assigns.
- c) “Products” means the products supplied by Central-Data to the Client specified on the Proposal and/or any invoice dispatched by Central-Data to the Client.
- d) “Proposal“ means the proposal or other specification type document these this agreement is attached to.
- e) “Services” means the services scoped and/or specified (including any deliverables) in the Proposal.
- a) Any agreement between the Client and Central-Data shall be upon these terms and conditions (inclusive if the Proposal) and these terms and conditions shall operate to the exclusion of any terms and conditions to the contrary effect expressed in any of the Client order forms or other documentation and shall supersede all prior arrangements, written or oral.
- b) The continued operation of these terms and conditions shall not be affected by any repudiation of any contract or transaction relating to the Products and/or Services between Central-Data and the Client.
3) Terms of Payment
- a) Unless otherwise specified in the Proposal, the fees set forth in the Proposal are based upon personnel time allocated to the specific Services, whether performed at Client’s premises, Central-Data premises or elsewhere. Unless otherwise expressly excluded in the Proposal, the Client will be charged for reasonable expenses incurred by Central-Data in the performance of the Services, including travel and living expenses for Central-Data personnel. Any milestone payment paid to Central-Data is non-refundable.
- b) Central-Data personnel shall only be required to work normal business hours as determined by Central-Data from time to time. If the personnel perform Services in excess of the work normal business, Central-Data reserves the right to charge a premium for overtime hours worked and for Services performed on weekends and holidays.
- c) Central-Data reserves the right to charge for significant travel time outside normal business hours, with prior notice to Client.
- d) Payment must be made prior to dispatch of Products and/or Services, either in cash or by bank cheque, or on approval, by company cheque, direct deposit or accepted credit card. Subject to special arrangements, payment must be made by the Client within agreed terms. Unless otherwise specified in the Proposal, payment for consulting labour and other services is due 14 days from invoice date. Unless otherwise specified in the Proposal, payment for Data Centre and Internet services is due in advance of the service.
- e) Payment in advance of service is encouraged to reduce administration costs. Discounted rates may be available to customers while their account is in credit. If pre-paid hours or funds run low then an further invoice may be raised for the expected works to ensure the discounted rates. Unused pre-paid funds or pre-paid labour credit is non-refundable but remains in place until used or for a maximum of 12 months after which they expire.
- f) Should the Client elect to purchase the Products through lease, the Client is required to notify Central-Data in writing and a copy of the approved finance letter must be sent to Central-Data prior to the dispatch of Products.
- g) All payment shall be made on or before the due date as a condition precedent to future supplies under the contract pursuant to which the payments are due or under any other agreement.
- h) Central-Data reserves the right to charge a late fee calculated at 2% per annum above the rate at the time being charged by the bankers of Central-Data on overdrafts exceeding $100,000 on the balance of the Price due by the Client but unpaid from the due date until payment is received in full by Central-Data.
- i) Central-Data may at any time and from time to time alter the terms of payment and such altered terms of payment shall apply in respect of all transactions taking place after notification of such alterations.
4) Client Responsibilities
- a) Client shall cooperate with Central-Data in performing the Services, including providing Central-Data with safe and timely access to Client’s computer systems, personnel (executive and staff), facilities, utilities and information reasonably necessary to the performance of the Services, whether or not defined in the Proposal, at no charge to Central-Data. Client is responsible for the accuracy and completeness of the information and data Client supplies to Central-Data for use under this agreement.
- b) As a condition of Central-Data’s performance of the Services, Client shall perform certain Client tasks specified in the Proposal or other scoping document attached to these terms and/or agreed by the parties at no charge to Central-Data.
- c) Client shall provide current and complete back-up for any Client data and programs that may be affected by Central-Data’s performance of the services. Except as provided in Clause 13, Central-Data shall not be responsible for the protection or loss of customer data or information.
5) Goods and Services Tax (GST)
- a) Definitions In this clause 5 the expressions “adjustment note”, “consideration”, “GST”, “supply”, “tax invoice”, “recipient” and “taxable supply” have the meanings given to those expressions in the A New Tax System (Goods and Services Tax) Act 1999. For the avoidance of doubt, “GST” includes any penalties or additional tax imposed in relation to the GST.
- b) Sums exclude GST Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under this agreement are exclusive of GST.
- c) Responsibility for GST Despite any other provision in this agreement, if GST is imposed on any supply made under this agreement, the recipient must pay to the supplier an amount equal to the GST payable on the supply. The recipient must pay the amount referred to in this clause 5(c) in addition to and at the same time as payment for the supply is required to be made under this agreement.
- d) Tax Invoice If a supply is made to which GST applies or is varied under this agreement, the supplier must provide the recipient of the supply a valid tax invoice or adjustment note at or before the time of payment or variation.
- e) Adjustment If the amount of GST paid or payable by the supplier on any supply made under this agreement differs from the amount of GST paid by the recipient, because the Commissioner of Taxation lawfully adjusts the value of the taxable supply for the purpose of calculating GST, then the amount of GST paid by the recipient will be adjusted accordingly by a further payment by the recipient to the supplier or the supplier to the recipient, as the case requires.
6) Delivery of Product
- a) In consideration of the payment by the Client, in addition to the price, of Central-Data’s freight, handling and insurance charge calculated according to Central-Data current prices, Central-Data will arrange delivery of Products to the Client’s nominated location within major metropolitan areas of Australian capital cities.
- b) Delivery times quoted by Central-Data are estimates only and Central-Data may extend delivery times.
- c) Central-Data may make part delivery of any Products ordered by the Client and any Products so delivered shall constitute a separate contract upon these terms and conditions. As such, an invoice on any Products part delivered is due in accordance with the agreed terms of payment.
- d) Delivery of Products is deemed to take place: at the time the Client or a carrier, whether engaged by Central-Data or the Client, takes possession of the Products; or within 7 days of notification by Central-Data to the Client that the Products are available, whichever first occurs.
7) Availability of Service
- a) Central-Data reserves the right to:
- determine which personnel will be scheduled to perform the Services;
- replace or reassign such personnel; or
- subcontract qualified third persons to perform part or all of the Services
- b) No person performing Services on behalf of Central-Data shall be restricted or prevented from performing Services for others that are similar to the Services provided under this Agreement
- c) Subject to compliance with security requirements and access restrictions imposed by the Client, Central-Data may provide its services during such hours and on such days as it considers necessary and appropriate to ensure compliance with its obligations under the Agreement.
- d) Central-Data reserves the right at any time or from time to time during the term of this agreement to withdraw any of its personnel that perform services pursuant to this agreement if for reasons beyond the control of Central-Data any such personnel cease to be available. Central-Data shall give fourteen days notice of any such withdrawal to the Client and agrees to replace such person with a suitably qualified person equal to the one replaced.
8) Cancellation or Variation
- a) An order for Product may be cancelled or varied by the Client only if such cancellation or variation is accepted by Central-Data in writing and any such cancellation or variation shall only occur on terms which will provide for Central-Data to be compensated by the Client against any costs or loss (including but not limited to loss of profit) incurred.
- b) Any modification, variation or addition to this agreement, the fees and charges set forth therein and/or the Services to be performed there under shall be effective only with the written consent of each party. Extensions and/or additions to this agreement may be made at CentralData’s then prevailing rates, terms and conditions with the written consent of each party.
9) Intellectual Property
- a) “Work Product” means any written materials, reports, computer software or software documentation, inventions, discoveries, improvements, ideas, techniques or know-how created, developed or delivered by CentralData hereunder whilst providing the Services. CentralData shall own all intellectual property rights (including copyright) in the Work Product (even if such Work Product consists of portions, modifications or additions to existing software or documentation) unless except if third party software and the license conditions of the software expressly exclude third party ownership of modifications or additions.
- b) Central-Data grants to Client, subject to the terms and conditions of this agreement, a non-exclusive, nontransferable right and license to use such Work Product solely for Client’s internal purposes provided, however, that this license does not extend to the use of any third party software which may require the prior written consent of such party and/or payment of royalties or other license fees to such party by Client. This license shall include the right to use, copy, and with respect to documentation, copy and distribute internally only and not to third parties, such Work Product. This license does not expand any license Client has for any of CentralData’s commercial software products. Client agrees to include the Central-Data copyright notice in all copies Client makes. Central-Data or its third party licensor will retain ownership, including copyright, registrations and any other similar protections, in all Work Product.
- c) The Client acknowledges and agrees that all rights in all copyright, designs, patents and trade marks existing in relation to the Products or Services are reserved to the owner of those rights. Furthermore the Client acknowledges Central-Data’s ownership of the intellectual property in methodologies, processes and procedures (“Central-Data IP”) used and developed by Central-Data while undertaking the Services and furthermore acknowledges that they have no interest in the Central-Data IP other than that expressly provided to the Client in writing by Central-Data.
- d) Client shall indemnify, defend and hold Central-Data harmless from any action brought against Central-Data based on a claim that any materials or information provided by Client to Central-Data constitute an infringement of a third party’s patents, copyrights or trademarks, or a misuse of a third party’s confidential, proprietary or trade secret information.
- e) The Client shall ensure that each part and copy of the computer software licensed for the use of the Client is kept under conditions of strict security and confidentiality.
10) Title, Risk and Insurance
- a) Prior to full payment of the Price and all other sums owing by the Client to Central-Data in relation to any Products, the Client shall have no right to sell or dispose of any or all of the Products.
- b) Until payment for the Products has been made by the Client the Products are only entrusted to the Client as a fiduciary, and Central-Data remains the legal and beneficial owner of the Products with full power to resell and regain possession in the event of the Client’s default of payment.
- c) The Client assumes risk of loss or damage upon delivery of the Products to the Client (or to any person or place as agreed or directed by the Client) or collection of the Products by the Client or by any agent acting on their behalf.
- d) Central-Data will insure Products against such risks that Central-Data considers appropriate for the transport of the products from Central-Data’s place of business to that of the Client.
- a) Products may be returned provided the Client obtains from Central-Data a Return Authorisation (RA) Number in advance of returning the Products.
- b) Products must be returned complete with all original packaging unmarked within 14 days of supply. Freight is to be paid by the Client and Central-Data accepts no responsibility in respect of returned Products lost or damaged in transit.
- Central-Data agrees that all warranties as are applicable from time to time will be passed unaltered from the manufacturer of the Products to the Client. Central-Data does not warrant any Products or Services of its own accord and all remedies, repairs or replacement for any Products will be at the ultimate discretion of the manufacturer.
13) Limitation of Liability
- a) The Client acknowledges that in entering into this agreement, it will be relying upon its own experience, skill and judgement to evaluate any conclusion or recommendations made by Central-Data in any report supplied by Central-Data to the Client in the course of providing the Services under this agreement and that it will satisfy itself as to the suitability of any such conclusions or recommendations to meet its requirements.
- b) The Client acknowledges that Central-Data’s liability under any statutory right or any condition or warranty implied by any state Fair Trading Act or the Trade Practices Act 1974 (Cth) is to the extent permitted by law limited at the option of Central-Data to:
- i) in the case of any goods or Products, whatever the manufacturer of those Products or goods provides including, one of the following;
- (A) the replacement of the goods or the supply of the goods again; or
- (B) the repair of the goods; ii) in the case of any Services, at Central-Data’s sole discretion, one of the following;
- (A) the supply of the services again; or
- (B) the payment of the reasonable cost having the services supplied again.
- c) Excluding liability as a result of property damage, personal injury or death the parties agree that CentralData:
- i) limits its liability to the Client for any direct loss, cost or damage suffered (irrespective of how incurred including in tort or contract) as result of providing the Products and/or Services to the value of any fees paid to Central-Data in the last twelve (12) months; and
- ii) is not liable to the Client for any incidental, indirect, special, consequential or economic loss or damage (including loss of profits or opportunities and exemplary and punitive damages) whether arising from negligence or otherwise in relation provision of the Products and/or Services or the failure or omission by Central-Data to comply with its obligations under this agreement.
- d) Furthermore Central-Data shall not be responsible for any incorrect information or misrepresentations made by the Client or any third party used by the Client.
- a) Central-Data, its agents, or subcontractors shall not divulge confidential Client information associated with any Services, without the Client’s consent. Furthermore Central-Data agrees not to use any Client confidential information other than for the purposes of providing the Services and agrees to use best endeavours to maintain the confidential nature of the confidential information However, Central-Data shall bear no responsibility for disclosure where such information or data is publicly available, is already in the possession of Central-Data, known to Central-Data, or is obtained by Central-Data from a third party.
- b) The Client agrees to maintain the confidentiality of Central-Data confidential information (including this document) and agrees not to disclose such information to anyone else without the prior written consent of Central-Data.
- a) The Client shall, where relevant, ensure Central-Data has full and safe access to the Client’s premises and to any necessary equipment, materials and information. The Client shall also ensure that Central-Data is provided with all facilities, services and accessories reasonably required to enable Central-Data to comply with its obligations under this agreement.
- b) The Client shall, where relevant, provide on request a suitably qualified or informed representative, agent or employee to accompany Central-Data and advise Central-Data on project requirements, access, security procedures and any other matter within the Client ’s knowledge or control which will assist the Central-Data in complying with its obligations under this agreement.
- a) The Client shall not solicit for employment, whether as an employee or an independent contractor or whether directly or indirectly through a Related Party, from the Commencement Date until the expiration of 12 months after the termination of this agreement, any employee of Central-Data that performs any services pursuant to this agreement.
- b) The Client shall be liable to pay a recruitment fee for any employee provided by Central-Data pursuant to this agreement that is employed by the Client or a Related Party, whether as an employee or an independent contractor, within 12 months after the termination of this agreement. This fee shall amount to 50% of such employee’s annual salary package as set out in such employee’s contract of employment as at the date such employee’s employment terminated with Central-Data.
- a) Without limiting the generality of any other clause in this agreement, either party may terminate this agreement immediately by notice in writing if:
- i) any payment due from the Client to Central-Data pursuant to this agreement remains unpaid for a period of 30 days;
- ii) the either party breaches any clause of this agreement and such breach is not remedied within 15 days of written notice by other party;
- iii) the Client disposes of equipment or materials or restructures its business, reallocates or reassigns its own personnel or otherwise creates a situation in which Central-Data, in its opinion, is no longer able to comply with its obligations under this agreement or no longer able to provide the Services in an efficient and cost effective manner;
- iv) the either party becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration;
- v) the Client , being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;
- vi) the Client , being a natural person, dies; or
- vii) the Client ceases or threatens to cease conducting its business in the normal manner.
- b) If notice is given to the Client pursuant to Clause 16.1, Central-Data may, in addition to terminating the agreement:
- i) retain any monies paid;
- ii) charge a reasonable sum for work performed in respect of which work no sum has been previously charged;
- iii) be discharged from any further obligations under this agreement; and
- iv) pursue any additional or alternative remedies provided by law.
- c) The Client may terminate this agreement for Services for convenience subject to paying Central-Data the applicable fee for Services performed to the date of termination together with all reasonable costs, expenses and investments incurred by Central-Data in the course of delivering such Services.
18) General Provisions
- a) The laws of the state where the majority of the Products and/or Services are delivered/performed shall govern this agreement.
- b) This agreement (and the proposal/document it is attached to) is the entire agreement between the Client and Central-Data and no representation or statement not expressly contained in this agreement or incorporated herein by reference, shall be binding on either part.
DATA CENTRE AND INTERNET – TERMS AND CONDITIONS
- 1.1. The service is available within the coverage area of CDSs network and where there is sufficient spare infrastructure capacity. The service may be provided to sites outside the existing coverage area and/or where infrastructure expansion is required if technically and commercially viable.
- 1.2. We reserve the right to refuse to connect any cabling at the site to the service unless:
- (a) A registered cabling service provider installed the cabling at the site;
- (b) Cabling at your sites meet minimum technical requirements as determined by ACMA; and
- (c) You have obtained all necessary consents from the owner of the sites. 1.3. Any equipment connected to the service must comply with all applicable ACMA and other standards.
- 1.4. The service is presented at the service delivery point.
- 1.5. The interface bandwidth must be equal to or greater than the bandwidth of the service or services provided via the interface.
- 1.6. You must terminate the service with a Layer 3 device (switch, router or firewall). The device must be available at the time of commissioning the service.
- 1.7. You are responsible for taking all reasonable steps to ensure that any faults reported to us are within the service before reporting the fault.
- 1.8. We will use all reasonable endeavours to support the service in accordance with the service level.
- 1.9. We may vary the service if reasonably required for technical, operational and commercial reasons.
2) Internet Services
- 2.1. The target packet loss for this service will be determined by the service type specified in the product order. The target packet loss is less than 0.1%, 0.3% and 0.5% for Enterprise, Corporate and Business plans.
- 2.2. You acknowledge that the service is not designed for high volumes of consistent profile (incoming or outgoing) or dedicated bandwidth.
- 2.3. Where your traffic profile on the Corporate or Business service frequently exceeds average utilisation specifications, your service may be reduced in speed to the effective minimum throughput speed. This reduction in speed may remain in place until such time as the cause of excessive utilisation has been remedied or an alternative plan purchased.
3) Metered Internet Services
- 3.1. Where the service is a metered internet service, you acknowledge that they are not purchasing dedicated bandwidth and as such there is no throughput guarantee on internet traffic.
4) Additional Features
- 4.1. We may, at our absolute discretion and without obligation to do so, provide the following features:
- (a) domain name server (DNS) and registration functions; or
- (b) Internet Protocol (IP) addresses.
5) Disclaimers And Liability
- 5.1. You acknowledge and agree that:
- (a) you are responsible for providing for any security or privacy that you require for your computer networks and any data stored on those networks or accessed through the service;
- (b) we may access and store certain content accessible through use of the internet (known as caching) for fast and easy access by customers. That content is updated on a regular basis but there may be delays in that updating and therefore content accessed through the service may not be the most up to date version;
- (c) we do not exercise any control over the content accessible through the internet;
- (d) to the extent permitted by law, we do not give any warranties, express or implied, in respect of the service or have any other liability to you or your end users in respect of the service;
- (e) we are not responsible for any damage that you may suffer arising from using:
- (i) the service (including loss of data, delays, nondeliveries, or mis-deliveries);
- (ii) any content accessed through the service (including inaccurate, incomplete or out of date information); or
- (iii) inaccurate, incomplete or out of date information.
6) Use and Indemnity
- 6.1. You must not use or allow others to use the service:
- (a) to distribute material that is defamatory, abusive, menacing, threatening, harassing or illegal under any law at any place where transmissions are sent from, viewed or received;
- (b) to install transmit or distribute any unsolicited mail, advertising material or any other material of an offensive, obscene or indecent nature or otherwise contrary to law or an applicable code of conduct;
- (c) to copy or distribute material where it has no right to do so (for example, someone else’ s copyrighted works or confidential information;
- (d) to commit a crime or in the course of committing a crime or for an unlawful purpose;
- (e) to engage in any activities in such a manner as to expose us or our suppliers to liability;
- (f) to do any act that may damage the network or systems or cause the quality of the service to be impaired;
- (g) to attack or breach the security of or deny service to computers not belonging to you or engaging in any activity that is reasonably likely to result in damage to persons other than yourself or computers other than those belonging to you;
- (h) for the distribution of viruses or other similar programs whether in or outside the service or whether to any computer or equipment whatsoever; or
- (i) to breach the copyright in any software or other material made available to you through the provisions of the service whether with or without appropriate permission;
- 6.2. You must indemnify us against all costs, losses, damages, liabilities and expenses (including all reasonable legal costs, fees and expenses) incurred or suffered by us as a result of use of the service in breach of paragraph 6.1.
7) Domain Name Registration Services
- 7.1. Where we agree to provide domain name and registration services, you acknowledge and agree that:
- (a) we will register the domain name in with our preferred Registrar;
- (b) you have read, understood and agree to be bound by the registration agreement;
- (c) you have read, understood and agree to comply with the AuDA policies and registration documents;
- (d) you will provide full, accurate and up to date information in relation to each registered domain name.
- 8.1. Although we will endeavour to maintain the general accessibility of the service, you acknowledge that the continued target availability of the service cannot be guaranteed and that the service may become temporarily unavailable for use due to technical failures, network congestion, periodic maintenance, disrupted telecommunications services or other causes.
9) Software and Equipment
- 9.1. You acknowledge that any equipment supplied by us is used by you at your own risk. We shall make every effort to provide advice in good faith to you and you acknowledge that should you act on that advice, you do so at your own risk and we are not liable for any losses suffered by you relying upon that advice.
- 9.2. You acknowledge that you is solely responsible for the service and maintenance of your equipment and that the internet contains viruses and other computer programs that may destroy or corrupt data on your equipment and that we cannot protect you against computer viruses or other security problems.
10) Responsible Usage
- 10.1. You must use the service in a responsible manner, taking into account the effects the use of the service may have on other users and the CDS network.
- 10.2. Breach of paragraph 10.1 may be deemed grounds for termination under the MSA.