General Terms and Conditions of Supply of Products & Services
Revision No: 2.3
1) Interpretation
- 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.
2) Operation
- 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.
11) Returns
- 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.
12) Warranty
- 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.
14) Confidentiality
- 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.
15) Access
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.
16) Solicitation
- 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.
17) Termination
- 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) General
- 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) Availability
- 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.