Terms & Conditions
Terms & Conditions
1. DEFINITIONS 1.1 In this agreement unless the context indicates otherwise: A$, $A, or $ is to Australian Currency confidential information means all spoken, written or electronically stored information belonging to or relating to the customer or its clients but excludes information in the public domain (other that by default under this agreement) or information independently known to the other party; CPI means the Consumer Price Index All Groups for Melbourne, Victoria, as published by the Australian Bureau of Statistics or its successor, and includes any published index replacing the Consumer Price Index; Customer means the legal name and/or individual or employee representative accepting service from OzCom IT Services. delivery address means the delivery address noted in the schedule; or subsequently notified by the customer (and agreed to by OzCom IT Services). fixed period means for any contract with a fixed contract period, such period specified in the schedule. fixed price means the fee payable for the fixed price services, as specified in the schedule or document. fixed price services means the scope of services specified as such in the schedule or document. force majeure event means any event, act or cause which OzCom IT Services is unable to control and which affects its ability to discharge its obligations under this agreement, including any act of God, flood, fire, damage caused by lighting, storm or any other adverse weather conditions, road blockage, labor disputes, strikes, acts of war or terrorism, breakdown of plant or machinery, delay or failure to deliver caused by its suppliers or enactment of any government agency or authority; goods means the equipment, hardware, and software as set out in the schedule; GST has the meanings given to those expressions in the Goods and Services Tax Act 1999. managed services means the scope of services to be provided on an ongoing basis, specified as such in the schedule or document. ozcom it services or “us” means OZCOM TECHNOLOGY GROUP Pty Ltd T/A OZCOM IT SERVICES ABN: 83 609 952 089. price means the total price for the goods or services, as set out in the schedule; document means a document, agreement or quote provided to the customer setting out details for the supply of OzCom IT Services goods and/or services to the customer, to which these terms are attached. retainer means the fee for defined premium services specified in the schedule or document. schedule means the schedule or statement of work provided with or referring to these terms and conditions, setting out details for the supply of OzCom IT Services goods and/or services to the customer and where relevant, includes any schedule contained in the form of a document; service reduction penalty means the penalty amount for reducing managed services, specified in the schedule or document. service termination penalty means the penalty amount for terminating managed services specified in the schedule or document. services means any professional services, including managed, fixed price, on-demand(PAYG) and out of scope services that form part of the goods and services as set out in the schedule, or otherwise agreed to between the parties. T&C’s means Terms and Conditions warranty period means the period of 12 months from the date of dispatch from its premises (or the date on which OzCom IT Services notifies the customer that the goods are ready for dispatch, whichever is the earlier). 2. ACCEPTANCE 2.1 These terms are binding on the parties once the customer signs and returns this document to OzCom IT Services, or after having received a copy of these terms, accepts the goods or services as set out in this agreement. 2.2 By signing the document and returning it to OzCom IT Services, the customer makes an irrevocable offer to OzCom IT Services for the goods or services set out in the document, on these terms. Where the document is not returned within the valid period of the document then OzCom IT Services may change the terms and/or pricing within the document. 3. INVOICING AND PAYMENT 3.1 OzCom IT Services may agree in writing to credit terms with the customer to modify the timing of the customer’s obligations under this clause (3.) In the absence of such credit terms, these payment terms will apply. 3.2 The customer must pay: (a) Immediately upon receiving a invoice, OzCom IT Services may at its discretion delay ordering goods from its suppliers, or shipment or delivery to the customer, until payment is received; (b) Prior to OzCom IT Services providing the services, for any services on a fixed price (including material basis); (c) Monthly in advance, for any managed or hosting services; (d) Within 5 days of invoice for any On-Demand(PAYG) services; (d) Within 15 days of invoice, for any other amounts payable under this agreement, 3.3 All payments will be made by credit card or electronic funds transfer from the customer’s nominated bank account in cleared funds. 3.4 OzCom IT Services will charge a credit card processing fee of up to 3.5% + GST for any payments made by credit card. 3.5 All prices are automatically indexed at the beginning of each financial year for the duration of this agreement by CPI. 4. NON-PAYMENT AND CANCELLATIONS 4.1 If the customer reasonably believes that an invoice contains an error, the customer must notify OzCom IT Services within 3 days of the date of the invoice, pay all undisputed fees on the invoice; and provide detailed information about any disputed fees. 4.2 Provided the customer has complied with clause 4.1, OzCom IT Services will not suspend or terminate any services for non-payment, or charge interest on disputed fees while the dispute is being investigated. 4.3 If the customer fails to make any payment when due, OzCom IT Services may refer the outstanding debt to a third-party collection agency, and add debt collection, enforcement and legal fees to the outstanding amount. OzCom IT Services reserves the right to charge the customer interest on any payments outstanding above and beyond the Customer’s approved trading terms, or in absence of approved trading terms, 14 days after the date of an invoice, accrued daily at the Standard Default Interest Rate as published by the Law Institute of Victoria. 4.4 OzCom IT Services retains a lien over any goods, work in progress or customer data until payment has been received in full. 4.5 Any cancellation of products or Good/s must be within 24 hours of order placement, otherwise a 25% cancellation and re-stocking charge shall be payable subject to our acceptance. Notice of cancellation must be submitted in writing. 5. SERVICE AGREEMENTS – GENERAL 5.1 This clause (Clause 5.) applies to all services. 5.2 Provided all payments have been duly received or condition(s) of agreed credit terms met, OzCom IT Services will provide the services at their discretion, at a date after the later of: (a) the date on which all goods, components or other materials necessary to carry out the services have been delivered and requisite third party services have been completed; or (b) any start date for services set out in the schedule; or (c) a mutually agreed date. 5.3 If the customer requests any technical or support work that OzCom IT Services reasonably considers outside the scope of the services specified in the schedule, OzCom IT Services may provide such services at its then current hourly rates. Any ambiguity in the scope will be resolved at the discretion of OzCom IT Services unless the parties agree to a revised scope. 5.4 Hours of Operation: (a) Unless otherwise set out in the schedule, OzCom IT Services personnel are available from 9:00am to 5.00pm Monday to Friday Melbourne time (excluding public holidays applicable in Melbourne, Victoria). Services requiring personnel involvement will be carried out during these hours where possible. (b) In circumstances where OzCom IT Services are required to provide services outside ordinary working hours, the following overtime rates apply: (i) 1.5 times the normal hourly rates for any time worked between 6:00am to 9:00am or between 5:00pm and 7:00pm Monday to Friday (excluding public holidays); and (ii) 2 times normal hourly normal hourly rates to any time worked on Saturday, Sunday, public holidays, or Monday to Friday after 7.00pm or before 6.00am. (c) Call out fee of $95 ex GST may apply if the customer location is greater than 25km radius of OzCom IT Office. (d) Hourly rates apply for actual travel time between the offices of OzCom IT Services and the customer. 6. SERVICE LIMITATIONS 6.1 When providing the services OzCom IT Services will use its best efforts to resolve any issues the customer may have. 6.2 OzCom IT Services is not responsible for any delay, action or inaction of any third parties such as internet service providers, telecommunications companies or service providers. 6.3 Any data stored on the customer’s network or hardware will remain strictly confidential, but may be accessible by OzCom IT Services staff in the course of providing the services. 6.4 OzCom IT Services follows industry standard back-up and data protection standards, however repair of goods may result in loss of data stored on the goods 6.5 the customer is responsible for keeping records of software licences, expiry dates, licence keys and original media required for installing software unless specified in the schedule. 6.6 it is the customer’s responsibility to implement and enforce suitable user policies to govern the use and security of the customer’s network unless specified in the schedule. 7. HARDWARE SUPPORT SERVICES 7.1 OzCom IT Services may refer the customer’s IT support query to the manufacturer or wholesale supplier of the goods, where appropriate. 7.2 IT hardware support services relate only to the goods provided by OzCom IT Services and does not extend to the customer’s other equipment, software or network. 7.3 OzCom IT Services does not provide direct software support, and gives no guarantee of hardware compatibility with third party software where OzCom IT Services has not designed the solution and/or made recommendations. 8. MANAGED SERVICES 8.1 This clause 8 applies only to managed services agreements entered into with OzCom IT Services. 8.2 Managed services will be deemed to be accepted as performed on a continuing basis, unless the customer notifies OzCom IT Services of its non-acceptance and reasons within 2 days of providing the particular services. 8.3 The customer may request to increase the managed services at any time. OzCom IT Services may accept or reject such requests at their absolute discretion. Such changes will take effect from the next billing month, and do not affect services provided in the current month. 8.4 If OzCom IT Services agrees to reduce the managed services and corresponding fee(s), within a fixed period, OzCom IT Services may charge the customer any service reduction penalty. 8.5 Either party may end a managed services contract by 30 days written notice, but if the customer elects to end the agreement within a fixed period agreement, customer will pay OzCom IT Services for the full remaining monthly instalments of the fixed period in a lump-sum payment due 14 days after date of termination. 8.6 Either party may terminate managed services at any time for material breach, however the terminating party must give the other party at least 14 business days prior written notice with sufficiently detailed information about the material breach so that the nature of the alleged material breach is clear, and a reasonable opportunity to cure the breach. 9. FIXED PRICE SERVICES 9.1 This clause 9 applies only to agreements to provide fixed price services by OzCom IT Services. 9.2 OzCom IT Services will provide services upon payment of any upfront fixed price or alternatively having met the condition of agreed credit terms. 9.3 OzCom IT Services will provide services subject to any preconditions specified in the schedule. 9.4 OzCom IT Services will issue completion job Sheets upon the completion of each milestone or deliverable and on completion of the project. If the customer signs the completion sheet, then the customer is deemed to have accepted that: (a) OzCom IT Services completed the work to the customer’s satisfaction; (b) OzCom IT Services delivered the deliverables and materials (if any) in good condition; and (c) The customer is liable to pay the relevant fees. 9.5 The scope of services for fixed price services may only be changed by written agreement. The customer acknowledges that changes will not always be possible, and will impact on the timeframe and fees of this and subsequent milestones or deliverables. OzCom IT Services is not liable for any impact of any change on subsequent milestones or deliverables unless defined in the revised scope. 10. ON-DEMAND (PAYG) SERVICES 10.1 This clause 10 applies only to any PAYG arrangements for services, or out of scope provision of services. 10.2 OzCom IT Services will charge for On-Demand(PAYG) and out of scope services at their current hourly rates specified in the schedule or otherwise notified to the customer. 10.3 OzCom IT Services will on-charge for any hardware, equipment, and materials. Clauses 7 and 11 apply to the provision of any such hardware, equipment, and materials. 10.4 The customer will be deemed to have accepted the on-demand(PAYG) and out of scope services as provided unless the customer notifies OzCom IT Services of their non-acceptance and reasons within 2 business days of providing the particular services. 10.5 Once service is deemed complete by OzCom IT Services, Payment of the costs incurred and the total balance owing is due via PayPal or Electronic funds transfer within 5 days. Payment method will be determined at the full discretion of OzCom IT Services. 10.6 Sometimes successful resolutions are not possible due to factors beyond OzCom IT Services’ control, if this occurs we may be unable to complete the desired IT service objectives. In these situations, OzCom IT Services is not liable for incomplete services and the applicable call out, service and diagnostic fees will remain payable to OzCom IT Services. 10.7 On-Demand (PAYG) Payments not received by due date on issuing invoices will incur a late payment penalty fee of 10% on total balance due. OzCom IT Services at its sole discretion or without waiving other rights may suspend support services until late payment has been received. 10.8 OzCom IT Services warrants that the Services will be provided in a workmanlike manner, and in compliance with generally prevailing industry standards. All services are warranted for a period of 3 days at the full discretion of OzCom IT Services. 10.9 OzCom IT Services will attempt to resolve issues via remote access first. If an issue is unable to be resolved, OzCom IT Services will schedule a Technician for an on-site visit. OzCom IT Services reserves the right to dispatch a technician for any support request if deemed to be more efficient to address the issue onsite. 10.10 OzCom IT Services may make suggestions as to the software and/or hardware it believes may be necessary to the effective operation of Customers network however, customer is under no obligation to purchase such software and/or hardware, nor to purchase from OzCom IT Services. 11. HOSTING SERVICES 11.1 It is the customer's responsibility to ensure the appropriateness and compatibility of hosting services that the customer is purchasing. 11.2 It is the customer's responsibility to ensure that hosting services provided by OzCom IT Services is utilised to its full potential. 11.3 OzCom IT Services does not provide refunds for any hosting service that is functional, or of acceptable quality for the purpose which it is provided by OzCom IT Services. 11.4 A Refund is only applied in circumstances where a cancellation request has been filed within 72 hours of hosting services going live. 11.5 The customer may be liable to pay any labour costs incurred by us as a result of refunding any Service within the 72-hour rejection period. 11.6 OzCom IT Services takes no responsibility for any mistakes using hosted services. 11.7 The customer expressly and irrevocably agrees that OzCom IT Services reserves the right to suspend/cancel any/all hosting services if the customer has any outstanding invoices or accounts or, OzCom IT Services deem any other reason as satisfactory to protect itself, its staff and/or its suppliers. 11.8 The customer expressly and irrevocably agrees OzCom IT Services has the right to suspend/cancel any/all hosting services if there is evidence of fraudulent, illegal, defamatory, offensive activities, or any activity in breach of a third party's rights. 11.9 The customer expressly and irrevocably agree that OzCom IT Services has the right to suspend/cancel any/all hosting services if the customer fails to comply with any provision in this agreement or those referenced in this agreement. 12. WARRANTY AND RETURNS POLICY 12.1 The warranty of all goods supplied by OzCom IT Services shall be deemed by the manufacturer. Where a good is found to be defective and under warranty as defined by the manufacture, OzCom IT Services will assist customer with the replacement of the good. 12.2 OzCom IT Services will at its option replace or repair goods which are dead on arrival, lost or damaged in transit (unless the loss or damage is caused during the unloading of the goods at the delivery address). 12.3 OzCom IT Services will accept returns of non-faulty goods provided our supplier accepts such returns for that item. OzCom IT Services will on-charge any cancellation, restocking, or delivery fees incurred prior to refunding the price of the goods returned. 12.4 OzCom IT Services does not guarantee the goods where: (a) the defect arises from materials or a design the customer supplied; (b) the defect arises from ordinary wear and tear, neglect or misuse by the customer, accident, lack of care, insufficient maintenance of improper use of the goods; (c) the customer has in any way modified or repaired the goods without OzCom IT Services prior written consent; (d) the customer has not complied with any written or oral instructions concerning the operation and maintenance of the goods. 12.5 Returns Procedure: (a) All claims under this clause 12, must be in writing (b) all returns are subject to OzCom IT Services supplier issuing a valid return authorisation for the goods being returned; (c) the customer must comply with the returns procedure imposed by OzCom IT Services supplier for the goods being returned, as advised by OzCom IT Services; (d) return at the customer’s shipping cost, all components, accessories, manuals and original packaging along with the goods being returned (e) If the customer does not comply with the supplier’s returns procedure, or a returned item does not match the goods supplied under this agreement, or is found not to be faulty as claimed, the customer’s return may be rejected, and the item shipped back to the customer at the customer’s cost. 12.6 All goods supplied by OzCom IT Services shall remain the sole property of OzCom IT Services until the associated invoice for the Good/s has been paid in full. 12.7 In the event of insolvency of the customer, any goods not paid for will be repossessed and any partial fees or deposits will be used by OzCom IT Services as a restocking or return fee. 13. DELIVERY OF GOODS 13.1 This clause 13 applies only to agreements to provide goods to the customer as specified in the schedule or an accepted quote. 13.2 OzCom IT Services will arrange for the goods to be delivered to the delivery address. OzCom IT Services may deliver the goods in instalments and these conditions apply to the delivery of each instalment. 13.3 The customer is responsible for ensuring that the delivery address is correct. If the delivery address is unattended or if OzCom IT Services cannot complete delivery due to circumstances beyond its control then OzCom IT Services may at its sole discretion store the goods at the customer’s expense or take such other steps as OzCom IT Services considers appropriate including without limitation delivering the goods to other premises occupied by the customer. 13.4 OzCom IT Services is not liable in any way for any loss of trade or profit occurring to the customer if delivery of the goods is delayed. 13.5 OzCom IT Services is not responsible for unloading the goods at the delivery address. 13.6 Upon delivery of the goods to the delivery address all risk in the goods passes to the customer and the customer must insure the goods against all risks of loss or damage. 13.7 The customer will be deemed to have accepted the goods upon delivery unless they otherwise notify OzCom IT Services within 1 business days. 13.8 OzCom IT Services will put goods on back order if they are not available at the time of invoicing but are expected to be available at a future date. 13.9 OzCom IT Services may revise the price of goods placed on back order by reasonable notice to the customer, as necessary to cater for: (a) price increases imposed by OzCom IT Services suppliers; (b) exchange rate fluctuations where goods are sourced from outside Australia. 14. THE CUSTOMER’S OBLIGATIONS 14.1 The customer agrees to grant OzCom IT Services, its employees, contractors and couriers a licence to enter any site under its possession or control, as necessary to deliver the goods and carry out the services. 14.2 The customer agrees to provide OzCom IT Services employees or contractors with adequate workspace, light, ventilation, electric current and outlets, internet and telephone access as necessary when at such site. 14.3 The customer agrees to respond in a timely manner if OzCom IT Services brings an issue to the customer’s attention in relation to the customer’s hardware, software or network. 14.4 The customer agrees to keep OzCom IT Services informed of any information relevant to the goods or services including any changes to the customer’s details, key personnel, access codes, equipment or any other information likely to affect this agreement. 14.5 The customer agrees to provide OzCom IT Services with all relevant administrator level login details and passwords, and remote access to the customer’s network where necessary to carry out any services. 14.6 The customer is solely responsible for implementing and monitoring appropriate operational and security procedures to prevent physical access. 15. CONFIDENTIAL INFORMATION 15.1 All information relating to the customer that is known to be confidential or proprietary will be held in confidence by OzCom IT Services and will not be disclosed or used by OzCom IT Services except such disclosure necessary to the performance of providing the service. 15.2 All information relating to OzCom IT Services that is known to be confidential or proprietary, or which is clearly marked as such, will be held in confidence by the Customer and will not be disclosed or used by the Customer except to the extent that such disclosure is reasonably necessary to the performance of The Customers duties and obligations under this Agreement. 15.3 The parties may only disclose confidential information to its employees, contractors, and legal representation on a need-to-know basis. 16. LIMITATION OF LIABILITY 16.1 In no event will OzCom IT Services be liable for any loss of profit or revenue by the customer, or for any other consequential, incidental, indirect or economic damages incurred or suffered by the customer arising as a result of or related to the services offered by OzCom IT Services. 16.2 In no event will OzCom IT Services be liable for any loss of data that may occur, unless the cause of such loss of data is OzCom IT Services negligent and/or intentional misconduct. 16.3 The total liability for all claims of any kind arising as a result of or related to OzCom IT Services performance under this Agreement, whether in contract or otherwise, will not exceed the total amount paid by the customer to OzCom IT Services for the Services under this agreement. 16.4 The Customer will hold OzCom IT Services harmless against any claims by third parties, including all costs, expenses and legal fees incurred by OzCom IT Services arising out of or in conjunction under this Agreement or a breach of this Agreement, including any claims of infringement of intellectual property rights. 16.5 This clause 16 will survive termination of this agreement for any reason. 17. INDEMNIFICATION 17.1 The customer agrees that the customer has exercised the customer’s independent judgement in purchasing the goods and/or services. 17.2 The customer releases OzCom IT Services, its directors, managers, employees and contractors against any action, proceeding, claim, demand or prosecution arising from or in connection with: (a) the customer’s breach of any law or infringement of any third party rights including intellectual property; (b) any loss or damage to persons or property belonging to OzCom IT Services or anyone else, caused by the usage of the goods, by the customer or anyone whom the customer allows to access the goods; (c) interruption to services or loss of data whether directly or indirectly arising in connection with any goods. 17.3 This clause 17 will survive termination of this agreement for any reason. 18. INSURANCE COVERAGE 18.1 OzCom IT Services shall maintain at its sole expense commercial public liability insurance for personal injury and property damage for a general aggregate of $10,000,000. 18.2 OzCom IT Services shall maintain at its sole expense worker’s compensation insurance as required by law 18.3 OzCom IT Services shall maintain at its sole expense professional Indemnity insurance for the combined single limit of $1,000,000. 18.4 At the Customer's request OzCom IT Services agrees to supply the customer with certificates, including renewal certificates, evidencing such coverage within thirty (30) days of commencing services under this Agreement, at every renewal and at other times as may be reasonably requested by the customer. 19. RELATION OF PARTIES 19.1 The performance by OzCom IT Services conducting its duties and obligations under this Agreement will be that of an independent contractor, and nothing will create or imply an agency relationship between OzCom IT Services and the customer, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties. 20. NON-SOLICITATION 20.1 This agreement is not a ‘contract-for-hire’ agreement, and the employees and contractors of OzCom IT Services remain subject to the terms of their employment or engagement at all times. 20.2 During the period of this Agreement and for 12 months thereafter, the customer must not solicit, entice, hire or interfere with any of OzCom IT Services employees or contractors, either directly or through an intermediary entity or entities. 21. SEVERABILITY 21.1 If any terms and conditions of this Agreement is found to be unenforceable or violation to Victorian law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this Agreement will remain in full force and effect. 21.2 All service and sales shall be deemed to be made in the state of Victoria of Australia regardless of the location of the customer, these terms and conditions and any dispute arising from them are governed by Victorian law. 22. FORCE MAJEURE 22.1 Neither party is liable for any delay or failure to perform its obligations under this agreement to the extent that such failure is caused by anything beyond its control. However, nothing in this clause excuses payment of any money due. 23. TERMINATION 23.1 OzCom IT Services may suspend its services, stop delivery of goods or end this agreement at any time without prior notice if: (a) the customer does not make any payment when due, or any payment is dishonoured or subject to chargeback; (b) the customer is in default of any agreed credit terms; (c) the customer fails to accept OzCom IT Services reasonable recommendations in relation to the customer’s network or staff training; (d) OzCom IT Services has reason to suspect illegal activity is taking place on the customer’s network; (e) the customer fails to remedy a material breach despite receiving 14 days written notice of default. 23.2 The customer may end this agreement if OzCom IT Services fails to remedy a material breach despite receiving 14 days written notice of default. 23.3 Either party may immediately end this agreement by written notice if the other party is wound up or placed under official management, or stops trading or commits an act of bankruptcy, or judgement is entered against the other party for more than $10,000.00 which remains unsatisfied or un-appealed for more than 21 days. 23.4 If this agreement is terminated for any reason, in addition to any other rights OzCom IT Services may have, OzCom IT Services will: (a) invoice the customer for any services provided prior to termination but not previously invoiced; (b) invoice the customer for any goods for which OzCom IT Services has placed an order with its suppliers prior to termination but not previously invoiced; (c) retain a lien over and may retain all equipment, data, materials and work in progress belonging to the customer until all outstanding invoices are paid (including any invoices issued under clause 22.4 (a) or (b). 23.5 the customer grants OzCom IT Services an irrevocable licence to enter any site occupied or controlled by the customer, to take possession of any goods for which the customer has not paid in full, or any other goods belonging to OzCom IT Services. 23.6 This Clause 23. will survive termination of this agreement for any reason. 24. LEGAL FEES 24.1 If any legal proceedings are necessary to enforce the terms of this Agreement, the prevailing party will be entitled to recover reasonable legal fees and costs from the other party. 25. GENERAL 25.1 Headings in this document are for convenience only and do not affect the interpretation or meaning of specific section or term or Condition 25.2 OzCom IT Services is not responsible for employees of the customer exceeding their authority with regarding to placement of ordering goods or service. 25.3 The customer will indemnify OzCom IT Services and hold harmless against any loss for breach of software licenses. 25.4 If a booking for an onsite service is cancelled after OzCom IT Services arrival on-site for an appointment, a charge of the onsite fee together with any associated travel costs will apply. 25.5 If a booking for an on-site service is cancelled more than 120 minutes before the booked appointment no penalty fee will be charged. 25.6 These terms and conditions may be varied at any time. any variations become effective on the day immediately after their publication on our website (public space).
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