1.1. These Terms and Conditions shall apply to the provision of IT Services by the Provider to the Customer.
1.2. In the event of conflict between these Terms and Conditions and any other terms and conditions (of the Customer or otherwise), the former shall prevail unless expressly otherwise agreed by the Provider in writing.
Definitions and Interpretation
2.1. In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
“AGREEMENT” means the agreement including without limitation the IT Service Agreement entered into by the Customer and the Provider to which these Terms and Conditions apply;
“BUSINESS DAY” means, any day (other than Saturday and Sunday) on which ordinary banks are open for business in NSW, Australia, during 9.00a.m – 6.00p.m, Australian Eastern Standard Time.;
“COMMENCEMENT DATE” means the commencement date for the Services and these Terms and Conditions as set out in the Agreement;
“CUSTOMER” means the customer as detailed in the Agreement;
“PROVIDER” means Nexgroup (Pty) Ltd trading as NetStripes, a company registered in NSW, Australia under business registration number (ABN) 66 110 820 552, the registered address being 55, Pyrmont Bridge Road, Pyrmont, Australia, 2009;
“SERVICES” means the services to be provided by the Provider to the Customer as set out in the Agreement;
“SOFTWARE” means any and all programs, applications, instructions or similar that may from time to time be installed on the Customer’s Website;
“WEBSITE” means a collection of related network web resources, such as web pages, multimedia content, which are typically identified with a common domain name, and published on at least one web server; and
2.2. Unless the context otherwise requires, each reference in these Terms and Conditions to:
2.2.1. “WRITING”, and any cognate expression, includes a reference to any communication effected by electronic or similar means;
2.2.2. a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
2.2.3. “THESE TERMS AND CONDITIONS” is a reference to these Terms and Conditions and each of the Schedules as amended or supplemented at the relevant time;
2.2.4. a Schedule is a schedule to these Terms and Conditions; and
2.2.5. a Clause or paragraph is a reference to a Clause of these Terms and Conditions (other than the Schedules) or a paragraph of the relevant Schedule.
2.2.6. a "PARTY" or the "PARTIES" refer to the parties to these Terms and Conditions.
2.3. The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
2.4. Words imparting the singular number shall include the plural and vice versa.
2.5. References to any gender shall include the other gender.
3.1. With effect from the Commencement Date the Provider shall, in consideration of the Fees being paid in accordance with the terms of payment, provide the Services expressly identified in the Agreement, or otherwise prior agreed in writing by a director of the Provider and in accordance with these Terms and Conditions.
3.2. The Provider will use reasonable care and skill to perform the Services identified in the Agreement or otherwise prior agreed in writing by a director of the Provider and in accordance with these Terms and Conditions.
3.3. The Provider will, subject to Clause 4, use reasonable endeavours to maintain the functionality of any Software which may be installed or otherwise operative on the Website and undertakes to update and/ or re-install any Software which may have been corrupted or otherwise made unavailable due to server failure and to render such technical assistance as may be necessary to secure the satisfactory operation of the Website and Software.
3.4. Upon receipt of the Customer’s request for support or rectification of a defect, the Provider shall (subject to its then current commitments) normally begin work on such support or defect as per the agreement. Such response times are calculated and apply during Working Hours. The provider may without obligation respond within shorter times than those set out herein in the case of a situation deemed to be an emergency by the Provider. The provision of Services outside of the Working Hours is at the sole discretion of the Provider. All response times apply strictly to existing customers who have entered into an Agreement containing no less than a 90 day term.
3.5. The Provider will not guarantee the performance of any Software which the Provider has undertaken to re-install under sub-Clause 3.3.
3.6. The Provider shall use all reasonable endeavours to complete its obligations under the Agreement. The Parties agree that time will not be of the essence in the performance of these obligations.
4.1. The Customer shall:
4.1.1. allow the Provider access to the Website and all relevant Software for investigation purposes;
4.2. provide adequate working access and facilities for the Provider’s staff; and
4.3. co-operate with them in the diagnosis of any defect or malfunction in the Website or Software.
4.4. The Customer shall allow the Provider the use of any computer systems, server systems or other software necessary to enable it to provide the Services and shall be responsible for procuring, installing and maintaining all communications media not supplied by the Provider.
4.5. The Customer will not allow any changes or modifications to the Software to be made by any party other than those authorised by the Provider. If such changes or modifications are carried out without authorisation or appropriate notification, the Provider reserves the right to review these Terms and Conditions and make adjustments accordingly.
4.6. The Customer will make freely available to the Provider all documentation associated with the Website, working documents, original Software installation media, current data backups and any other relevant information for the efficient maintenance of the Website and the Software.
4.7. The Customer shall create regular data backups in such a manner as to minimise any potential data loss and to ensure that these are made available to the Provider as required.
4.8. The Customer shall notify the Provider within 7 days of delivery if they are requesting a refund, refunds are not guaranteed and will be considered on a case by case basis.
5.1. The Customer agrees to pay the Fees in accordance with Clause 6 and the Agreement.
5.2. The Provider shall be entitled to recover from the Customer his reasonable incidental expenses for materials used and for third party goods and services supplied in connection with the provision of the Services.
5.3. The Customer shall pay the Provider for any additional services provided by the Provider that are not specified in the Agreement in accordance with the Provider's hourly rate in effect at the time of the performance or such other rate as may be agreed. Any such charge for additional services shall be invoiced separately from any Fees due under the Agreement.
5.4. All sums payable pursuant to these Terms and Conditions are exclusive of any Goods and Services Tax (GST) or other tax or other taxes on profit, for which that Party shall be additionally liable.
6.1. All payments for Services provided under the Agreement shall be paid by the Customer monthly in advance without any set-off, withholding or deduction except such amount (if any) of tax as that party is required to deduct or withhold by law.
6.2. Where payments due are not included in the monthly payment in accordance with Clause 6.1 above then such payments shall be made by the Customer within 30 days of the date of the relevant invoice, without any set-off, withholding or deduction except such amount (if any) of tax as that party is required to deduct or withhold by law.
6.3. Payments shall be made by direct debit or as otherwise directed by the Provider in the invoice.
6.4. The time of payment shall be of the essence of these Terms and Conditions and the Agreement. If the Customer fails to make any payment on the due date in respect of any sum due under these Terms and Conditions, then the Provider shall have the right to charge the Customer interest on any sum outstanding at the rate of 4% above the base rate of the current market rate from the due date for payment until the date on which the payment is received.
Variation and Amendments
7.1. If the Customer wishes to vary any details of the services in the Agreement, it must notify the Provider in writing as soon as is reasonably possible. The Provider shall use all reasonable endeavours to make any required changes and any additional costs thereby incurred shall be separately invoiced to the Customer.
7.2. If, due to circumstances beyond the Provider’s control, it has to make any change in the arrangements relating to the provision of the Services it shall notify the Customer forthwith. The Provider shall endeavour to keep such changes to a minimum and shall seek to offer the Customer arrangements as close to the original arrangements as is reasonably possible in the circumstances.
8.1. The Provider may terminate the Agreement forthwith if:
8.1.1. the Customer is in breach of any of its obligations hereunder;
8.1.2. the Customer has entered into liquidation (other than for the purposes of a bona fide amalgamation or reconstruction) whether compulsory or voluntarily or compounds with its creditors generally or has an administrator, administrative receiver or receiver appointed over all or a substantial part of its undertaking or assets;
8.1.3. the Customer has become bankrupt or shall be deemed unable to pay its debts by virtue of Section ??? of the Insolvency Act ????;
8.1.4. the Customer ceases or threatens to cease to carry on business; or
8.1.5. any circumstances whatsoever beyond the reasonable control of the Provider necessitate and justify the Termination of the Services.
8.2. In the event of Termination under clause 8.1 the Provider shall retain any sums already paid to by the Customer without prejudice to any other rights may have whether at law or otherwise.
8.3. The Customer may terminate the Agreement by providing the Provider with 30 days’ notice in writing.
9.1. The Customer shall indemnify the Provider against all damages, costs, claims and expenses suffered by the Provider arising from loss or damage (including that of third parties) caused by the Customer, or its agents or employees.
9.2. Where the Customer consists of two or more persons such expression throughout shall mean and include such two or more persons and each or any of them. All obligations on the part of such a Customer shall be joint and several obligations of such persons.
9.3. The Provider shall not be liable to the Customer or be deemed to be in breach of these Terms and Conditions by reason of any delay in performing, or any failure to perform, any of the Provider's obligations if the delay or failure was due to any cause beyond the Provider's reasonable control.
9.4. The Provider shall not be liable – whether in contract, tort (including negligence), breach of statutory duty or otherwise for any loss suffered by the Customer in the form of lost revenue or profit or failure to achieve any benefit expected to be derived from the Agreement, loss of use of any asset, loss of data recorded on any computer or other equipment, loss which is not the direct and immediate consequence of the breach, business interruption or management time, or any other loss which is otherwise indirect, commercial, economic, special or consequential.
9.5. The Customer acknowledges and accepts that the Provider shall not be liable for:
9.5.1. Any failure by the Provider to restore any back-up systems;
9.5.2. Any virus or other malware suffered by the Customer.
9.6. The Customer acknowledges and accepts that the Provider cannot guarantee 100% monitoring of its servers.
9.7. The total liability of the Provider – whether in contract, tort (including negligence), breach of statutory duty or otherwise – for any and all breaches and/or non-performance of its obligations or liability under this Agreement shall be limited to AUD1000 or the total Fees payable by the Client, whichever is the lesser sum.
9.8. Where the Provider enters into an agreement with a third party to supply services to the Customer or where the Customer engages a third party to provide services to the Customer such third parties warrant that they have all necessary professional indemnity insurance cover with respect to the work undertaken by such third parties. Such third parties shall provide proof of their professional indemnity insurance when so asked to by the Provider and/or Customer.
9.9. Nothing in these Terms and Conditions or the Agreement shall limit or exclude the Provider’s liability for death or personal injury or any other liability which cannot be excluded by law.
10.1. The following obligations shall apply to the Party disclosing Confidential Information ('the Disclosing Party') to the other Party ('the Receiving Party').
10.2. Subject to sub-Clause 10.3, the Receiving Party:
10.2.1. may not use any Confidential Information for any purpose other than the performance of his obligations under these Terms and Conditions;
10.2.2. may not disclose any Confidential Information to any person except with the prior written consent of the Disclosing Party; and
10.2.3. shall make every effort to prevent the use or disclosure of the Confidential Information
10.3. The obligations of confidence referred to in the provisions of this Clause shall not apply to any Confidential Information that:
10.3.1. is in the possession of and is at the free disposal of the Receiving Party or is published or is otherwise in the public domain before its receipt by the Receiving Party;
10.3.2. is or becomes publicly available on a non-confidential basis through no fault of the Receiving Party;
10.3.3. is required to be disclosed by any applicable law or regulation;
10.3.4. is received in good faith by the Receiving Party from a third party who, on reasonable enquiry by the Receiving Party claims to have no obligations of confidence to the other Party to these Terms and Conditions in respect of it and who imposes no obligations of confidence upon the Receiving Party.
10.4. Without prejudice to any other rights or remedies the Disclosing Party may have, the Receiving Party acknowledges and agrees that in the event of breach of this clause the Disclosing Party shall, without proof of special damage, be entitled to an injunction or other equitable remedy for any threatened or actual breach of the provisions of this clause in addition to any damages or other remedies to which he may be entitled.
10.5. The obligations of the Parties under the provisions of this clause shall survive the expiry or the termination of the Agreement for whatever reason.
Sub-Contracting and Assignment
11.1. The Provider may sub-contract to third parties all or any part of the work to be performed hereunder.
11.2. The Customer shall not assign to a third party any or all of its rights or obligations under these Terms and Conditions without the prior written consent of the Provider.
Neither Party to these Terms and Conditions shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
13.1. No waiver by the Provider of any breach of these Terms and Conditions and/or the Agreement by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision. A waiver of any term, provision or condition of these Terms and Conditions and/or clause(s) of et Agreement shall be effective only if given in writing and signed by the waiving party and then only in the instance and for the purpose for which any waiver is given.
13.2. No failure or delay on the part of any Party in exercising any right, power or privilege under these Terms and Conditions shall operate as a waiver of, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise of or the exercise of any other right, power or privilege.
If any provision of these Terms and Conditions and/or clause(s) of eth Agreement is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Terms and Conditions and/or the Agreement and the remainder of the provision and/or clause in question shall not be affected thereby.
15.1. All notices under these Terms and Conditions shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
15.2. Notices shall be deemed to have been duly given:
15.2.1. when sent, if transmitted by e-mail and a successful transmission report or return receipt is generated; or
15.2.2. when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
15.2.3. on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
15.2.4. on the tenth business day following mailing, if mailed by airmail, postage prepaid.
15.3. in each case addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
15.4. Service of any document for the purposes of any legal proceedings concerning or arising out of these Terms and Conditions shall be effected by either Party by causing such document to be delivered to the other Party at its registered or principal office, or to such other address as may be notified to one Party by the other Party in writing from time to time.
16.1. The Customer shall not for the term of the Agreement and for a period of 12 months after its termination or expiry, employ or contract the services of any person who is or was employed or otherwise engaged by the Provider at any time in relation to the Agreement without the express written consent of the Provider
16.2. The Customer shall not for the term of the Agreement and for a period of 12 months after its termination or expiry, solicit or entice away from the Provider any customer or client where any such solicitation or enticement would cause damage to the business of the Provider without the express written consent of the Provider.
Third Party Rights
No part of these Terms and Conditions is intended to confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act XXXX shall not apply to these Terms and Conditions and/or the Agreement.
Law and Jurisdiction
These Terms and Conditions shall be governed by the laws of New South Wales, Australia.
Any dispute between the Parties relating to these Terms and Conditions shall fall within the exclusive jurisdiction of the courts of New South Wales, Australia.
Your NetStripes Team