1 Application
These general terms and conditions govern Network Integration and Support Services’ provision of goods and services to the Client.
2 Client Purchase Orders
(a) Network Integration and Support Services must provide the Client with a written quote for all purchases of goods and services before the Client places a purchase order.
(b) All goods and services purchased must be supplied to the Client at the price on the quote unless otherwise agreed between Network Integration and Support Services and the Client.
(c) Unless otherwise stated all prices quoted for goods and services are exclusive of all taxes, handling, delivery, agents’ fees and any other fee, charge, duty or impost.
(d) Network Integration and Support Services is not bound by any quote it provides to the Client until Network Integration and Support Services accepts the purchase order from the Client.
(e) All purchase orders the Client submits must be accompanied by an official purchase order signed by an authorised representative of the Client and on the Client’s letterhead detailing the goods and services required.
(f) Prices and other charges and discounts offered by Network Integration and Support Services are subject to change without notice. Network Integration and Support Services must advise the Client of any purchase order it receives which quotes non-current pricing, goods or services and request resubmission of the purchase order. The resubmitted purchase order must detail the amended pricing and other details.
(g) Network Integration and Support Services will not be bound by any terms attached to the purchase order by the Client unless the terms are expressly agreed by an authorised representative of Network Integration and Support.
(h) Network Integration and Support Services reserves the right to accept or reject any purchase order submitted by the Client at its absolute discretion.
3 Network Integration and Support Services Personnel
The Client must not without Network Integration and Support Services’ consent (which it may withhold at its discretion):
(a) during the period of this agreement
(b) for 12 months after completion of the Services
directly or indirectly:
(i) employ or engage on any other basis
(ii) offer employment or engagement to any of Network Integration and Support Services’ employees or personnel who have been associated with the provision of the Services.
(a) If the Client employs or engages any person in breach of this clause, the Client must pay Network Integration and Support Services liquidated damages equal to the total payments Network Integration and Support Services made to the person for services (as employee or contractor) in the six months preceding termination.
(b) The liquidated damages specified in paragraph (c) is a genuine pre-estimate of the loss and damage Network Integration and Support Services will incur as a result of a breach of this clause.
4 Fees
(a) The Client must pay Network Integration and Support Services at the times specified in a quote or, if not specified, within:
(i) 7 days of invoice for the provision of goods
(ii) 30 days of invoice for the provision of services.
(b) Network Integration and Support Services may review its fees and rates on 30 June in each year.
(c) If the Client does not pay Network Integration and Support Services at the time required under these general terms and conditions, the Client must pay Network Integration and Support Services interest calculated at the business overdraft indicator lending rate quoted by the Commonwealth Bank of Australia from the date on which payment was due until payment.
5 Delivery
The Client:
(a) acknowledges that delivery times given by Network Integration and Support Services are estimates only
(b) acknowledges that Network Integration and Support Services may deliver its products in any number of instalments
(c) must provide appropriate access for delivery
Network Integration and Support Services is not liable for:
(i) any late or non-delivery of its products
(ii) any loss or damage to any instalment of its products whether or not Network Integration and Support Services is legally responsible for the party who caused or contributed to that loss or damage
(iii) any loss (including consequential loss), damage or delay suffered by the Client or any third party arising from anything referred to in (i) and (ii).
6 Passing of Risk
(a) Risk of loss or damage to the products passes to the Client when the products are delivered to the Delivery Address.
(b) The Client must insure all products that are at the Client’s risk.
7 Retention of Title
(a) Despite clause 6(a), title to the goods will not pass to the Client until all amounts owed by the Client to Network Integration and Support Services are paid in full. Until that time:
(i) Network Integration and Support Services:
(1) retains title to and property in the goods
(2) may at any time enter the Client’s premises or any premises where the products are located without liability to any person for trespass or any resulting damages to repossess the goods
(3) keep or resell any goods repossessed under this clause
(ii) the Client:
(1) must not claim any lien over the goods
(2) is a bailee of the goods and owes Network Integration and Support Services the duties and liabilities of a bailee
(3) must not supply any of the goods to any party outside of its usual or ordinary course of business
(4) must not allow any party to acquire any security interest in the goods
(5) must properly store and insure the goods.
(b) Despite clause 7(a), if the Client sells the goods or anything that incorporates any of the goods before paying Network Integration and Support Services in full, then the Client must:
(i) hold the proceeds of sale representing the price of the goods on trust for Network Integration and Support Services as soon as they are received
(ii) either pay the amount of the proceeds referred to in clause 6(b)(i) to Network Integration and Support Services as soon as they are received or pay those proceeds into a separate identifiable account as trustee for Network Integration and Support Services and pay Network Integration and Support Services on request.
8 Return
(a) The Client must notify Network Integration and Support Services in writing of any goods it wishes to return within 14 days from the delivery date or invoice date, whichever is later.
(b) Any goods returned for credit must be in pristine and unopened condition with all seals intact. All inward freight will be the responsibility of the Client. Network Integration and Support Services is not liable for any cost of freight on returned product and will not accept responsibility for any damage or loss suffered by the Client.
(c) Network Integration and Support Services will not be liable for any damage or defects of the goods that have been caused through the improper storage, warehousing or transport, or by any neglect, abuse or improper use, installation, maintenance or unauthorised repair of the product.
(d) If the Client returns any goods, it must pay any re-stocking and cancellation fees charged by the supplier to Network Integration and Support Services.
9 Conditions
Network Integration and Support Services may discontinue its provision of goods and/or services under these general terms and conditions if the Client fails to pay the fees when due or alters, modifies or changes the goods or accompanying documentation.
10 GST
(a) Expressions in this clause have the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 the Act.
(b) Unless otherwise stated, all amounts, prices, values or other sums payable or to be provided under these general terms and conditions are exclusive of GST.
(c) If GST is payable on any supply made under these general terms and conditions the:
(i) recipient of the taxable supply must pay to the supplier an amount equal to the GST payable on the taxable supply in addition to and at the same time as payment for the taxable supply is required to be made under these general terms and conditions
(ii) supplier must give the recipient a tax invoice for the taxable supply within 7 days of a supply being made under these general terms and conditions.
(d) Despite any other provision of these general terms and conditions, if the whole or part of any consideration under these general terms and conditions is a reimbursement or indemnification by one party of an expense, loss, outgoing or liability incurred or to be incurred by the other party, the consideration must exclude any GST included in any expense, loss, outgoing or liability incurred or to be incurred for which the other party can claim an input tax credit. The other party will be assumed to be entitled to a full input tax credit unless it can establish otherwise.
(e) If an adjustment event occurs in relation to a supply under these general terms and conditions, the supplier will issue to the recipient an adjustment note in relation to the adjustment event within 7 days of the supplier becoming aware of the adjustment event.
(f) If the adjustment note gives effect to an increasing adjustment, the recipient will pay to the supplier the GST component of the increasing adjustment not later than the end of the month following the month in which the adjustment note is issued to the recipient.
(g) If the adjustment note gives effect to a decreasing adjustment, the supplier will pay to the recipient the GST component of the decreasing adjustment not later than the end of the month following the month in which the adjustment note is issued to the recipient.
11 No Warranties
(a) To the maximum extent the law permits, Network Integration and Support Services does not give any warranty as to fitness for purpose or otherwise and the Client acknowledges that it has relied on its own inquiry as to the quality and performance of the goods and/or services. All terms, conditions, warranties, undertakings, inducements or representations whether expressed, implied, statutory or otherwise relating in any way to the goods and/or services, these general terms and conditions or Network Integration and Support Services are excluded, to the maximum extent the law permits.
(b) The obligations in this clause are material and survive termination of these general terms and conditions.
12 Confidentiality
(a) The Client must not directly or indirectly, at any time during or after termination of these general terms and conditions disclose, use copy or reproduce any of Network Integration and Support Services’ confidential information.
(b) The Client must ensure that any person to whom confidential information is or may be disclosed is familiar with the provisions of this clause and is bound by obligations of confidentiality equivalent to the Client’s obligations under this clause.
(c) The obligations in this clause are material and survive termination of these general terms and conditions.
13 Privacy
If a party discloses to the other party personal information as defined in the Privacy Act 1989 (Cth), that party:
(i) receives that information in its capacity as the other party’s agent
(ii) must:
(1) only use the information for the purpose of fulfilling its obligations under these general terms and conditions
(2) not otherwise use or disclose the information without the prior written consent of the other party
(3) comply with the other party’s requirements or directions in relation to the information.
14 Liability
(a) Network Integration and Support Services’ maximum liability arising out of or in connection with these general terms and conditions and whether arising in contract, tort (including negligence) or otherwise, will in no circumstances exceed the aggregate fees paid by the Client to Network Integration and Support Services.
(b) Network Integration and Support Services, its officers, employees and agents are not liable to the Client or any other person for any indirect loss, consequential loss, loss of profits, loss of sales, loss of revenue, loss of any software, hardware or data, loss or waste of management or personnel time, loss of goodwill, loss of opportunity, loss of anticipated savings or loss for personal injury, suffered or incurred by the Client or any other person relating to the performance, non-performance or any breach of these general terms and conditions.
(c) Nothing in these general terms and conditions excludes, restricts or modifies any condition, warranty or liability which may at any time be implied by any trade practices, fair trading, sale of goods or credit legislation or regulation or any other law where to do so is illegal or would render any provision of these general terms and conditions void. In this case and where the law permits, Network Integration and Support Services’ liability in respect of any such provision is limited. Network Integration and Support Services’ option to:
(i) in the case of the supply of goods, the replacement of the goods or the supply of equivalent goods or the payment of the cost of replacing the goods or of acquiring equivalent software
(ii) in the case of services, supplying the services again or the payment of the cost of having the services performed again.
(d) The obligations in this clause are material and survive termination of these general terms and conditions.
15 Termination
(a) Network Integration and Support Services may terminate these general terms and conditions by written notice to the Client on any failure by the Client to make a payment under these general terms and conditions when it is due, within 14 days of Network Integration and Support Services giving the Client notice in writing of the failure.
(b) These general terms and conditions automatically terminate without the need for notice if:
(i) the Client is insolvent, applies for the appointment of, or appoints a receiver, liquidator, provisional liquidator or administrator in respect of it or makes an assignment for the benefit of its creditors
(ii) commits a material breach of these general terms and conditions.
(c) If these general terms and conditions are terminated for any reason, without limiting Network Integration and Support Services’ other rights and remedies, Network Integration and Support Services will be discharged from any further liability to perform its obligations under these general terms and conditions and will not be required to refund any fees paid to it by the Client.
16 General Conditions
(a) The Client must not assign, sub-license or otherwise dispose of any of its rights or obligations under these general terms and conditions without the prior written consent of Network Integration and Support Services which Network Integration and Support Services may withhold at its absolute discretion.
(b) The Client will sign any documents and do anything else that may be necessary or desirable to give full effect to these general terms and conditions.
(c) Provisions of these general terms and conditions which can, and are intended to, operate after termination continue to have full force and effect.
(d) A waiver by Network Integration and Support Services of the Client’s default under these general terms and conditions will not constitute a release of the Client’s obligation to observe and perform all of its obligations in the future.
(e) These general terms and conditions may not be varied, discharged or abandoned unless the parties sign a document to that effect.
(f) These general terms and conditions are governed by the law in force in New South Wales and the parties submit to the non-exclusive jurisdiction of the courts of or exercising jurisdiction in New South Wales.
(g) Network Integration and Support Services will not be liable to the Client if the performance of its obligations is prevented or hindered due to any circumstances outside of its reasonable control.