These terms and conditions will apply to all Goods and Consulting Services resold, supplied or performed by Data#3 Limited ABN 31010545267 to you and your use of such Goods and Consulting Services, where Data#3 accepts an offer from you to supply such Goods and Consulting Services based on a written CED, except where:
- Data#3 and you have entered into an Individual Contract formed pursuant to an agreed Data#3 Head Agreement; or
- Data#3 has expressly agreed in writing to provide such Goods and Consulting Services to you pursuant to a separate written agreement.
You acknowledge that, unless expressly agreed to by Data#3 in writing, the terms and conditions included on a document issued by you (such as a purchase order, confirmation, receipt (including the terms on any pre-printed purchase order form, or your standard retainer document)) will not apply to the sale or supply of Goods and Consulting Services by Data#3 to you or otherwise vary these terms and conditions.
You agree to perform your own specific obligations and responsibilities in accordance with this Individual Contract. Without derogating from this, you agree to cooperate fully and act reasonably and in good faith to assist in the timely progress and fulfilment of our obligations under this Individual Contract including, but not limited to, not unreasonably withholding or delaying the provision of any agreement, acceptance, information, assistance or other resource required by us and providing us with all necessary access to your premises and equipment. You agree to be responsible for all your site preparation as required to enable efficient delivery and implementation of the Goods and Consulting Services. You agree to ensure that all our personnel, agents or sub-contractors are sufficiently trained in and aware of your policies and procedures, including workplace safety.
We agree to cooperate fully and act reasonably and in good faith to ensure the timely progress and fulfilment of our obligations under this Individual Contract.
Your Requirements and Specification Information
You warrant that all information pertaining to your hardware, software or service requirements and specifications is complete, accurate and has been provided to us prior to formal agreement on an Individual Contract. You are agree to promptly update Us if you uncover any errors or incompleteness in the information you have supplied to Us.
Procurement of Goods
We agree to procure for and supply to you the Goods in accordance with the terms of this Individual Contract.
Good estimated delivery dates are based on information available to us from third party suppliers and vendors and are subject to change at any time, by providing notice, including via electronic mail. Whilst we will employ commercially reasonable efforts to meeting estimated delivery dates, we are not responsible for delays in delivery caused by us, a supplier of ours or for other reasons beyond our reasonable control. Where we provide a fixed Delivery Date, we commit to meeting that deadline, unless a reason outside of our reasonable control prevents us from doing so.
Risk and Title
Risk of loss or damage to Goods (and to the extent applicable Third Party Contracts) will pass to you upon delivery of the Goods to you or your authorised representative.
Notwithstanding the passing of risk:
- All Goods (and to the extent applicable Third Party Contracts) delivered remain our property (or the property of their respective owners) until all monies owing have been paid in full. You acknowledge that the sale of Goods constitutes a registered security interest under the Personal Property Securities Act (2009) (Cth) (“PPSA”). We reserve the right to register our interest in the Goods under the PPSA. We may not provide notification of registration of its interest in the Goods.
- Prior to any on-sale by you, you shall hold the Goods as bailee for us and shall return the Goods to us on demand.
- Until payment has been received in full, we will be entitled to enter your premises at any reasonable time to inspect all records in relation to all Goods supplied by us and all records in respect of the sale of those Goods by you.
- We will be entitled to enter your premises at any reasonable time to recover possession of those Goods for which payment in full has not been made.
- It is agreed that where we enter your premises to take possession of the Goods and it is not possible to otherwise identify the ownership of the Goods in your possession, the Goods will be treated as though they were sold by you in the same sequence as you had taken delivery.
Performance of Consulting Services
Unless otherwise agreed, the Consulting Services will be performed by Us during Business Hours of each Business Day. We agree to perform the Consulting Services in accordance with the terms of an Individual Contract. We will perform the Consulting Services utilising such resources, employees and subcontractors as we deem appropriate.
Prices and Payment
The Price payable for the Goods and Consulting Services is set out in an Individual Contract and unless set out to the contrary does not include any Incidental Costs (including any GST).
Unless otherwise expressly agreed in writing between the parties in an Individual Contract, Goods and Consulting Services may be invoiced by us on the earlier of delivery, the date such Goods or Consulting Services are made available to you or upon provisioning, as the case may be. Under no circumstances is the obligation to make payment of invoices contingent on your use of the Goods or use or consumption of the Third Party Contracts or Consulting Services. If expressly set out in an Individual Contract, certain Third Party Contracts may be invoiced during their term based on your consumption or usage.
The default agreed payment terms are fourteen (14) days from the date of our tax invoice. Interest may become payable at the rate of 2% per annum above the prime lending rate of our principal banker on any overdue amounts.
We both agree to maintain in confidence and respect the Confidential Information of the other and to abide by the restrictions on use and disclosure of another’s Confidential Information.
Materials Ownership and Licence
We retain all right, title and interest in all Materials created before and during the Consulting Service performance period. We grant to you a non-exclusive, licence to use, copy and distribute, within your group of companies only, copies of these Materials. Each party agrees to reproduce the copyright notice on any copies made under the licence granted above. Any idea, concept, know-how or technique which relates to the subject matter of a Consulting Service and is developed or provided by a party, or jointly by both, in the performance of a Consulting Service may (subject to applicable patents and copyrights) be freely used by either party.
Hardware, Third Party Software and Third Party Contract Warranty
You accept the Hardware manufacturer’s warranty in relation to the Hardware. We cannot provide any additional warranty in relation to the Hardware. On request, We will pass on to you any warranty provided to us by the relevant manufacturer of the Hardware. On request, we will provide information to You relating to the applicable Hardware manufacturer’s warranty. Defects in Hardware will be rectified in accordance with the relevant manufacturer’s warranty.
You acknowledge that your use, rights and obligations in respect of deliverables or ‘service’ supplied pursuant to a Third Party Contract is governed exclusively by such contract between You and the relevant Third Party Contract vendor, unless it is varied by agreement between the parties. You agree to be bound by the terms and conditions of the Third Party Contract and otherwise acknowledge that you have reviewed and inspected all aspects of the Third Party Contract prior to entering into an Individual Contract. Upon request in writing, we are able to provide you with a copy of the relevant Third Party Contract for your review prior to entering into an Individual Contract. We cannot provide any additional warranty in relation to the deliverables or ‘service’ supplied pursuant to the Third Party Contract. Defects in Third Party Contracts will be rectified in accordance with the relevant third party provider’s warranty.
You acknowledge that your use, rights and obligations in respect of Third Party Software is governed by its applicable End User License Agreement (“EULA”), unless it is varied by agreement between the parties to that EULA. You agree to be bound by the terms of the Third Party Software owner’s EULA. Upon request in writing, we are able to provide you with a copy of the relevant EULA for your review prior to entering into an Individual Contract. You accept the Third Party Software owner’s warranty in relation to the Third Party Software. We cannot provide any additional warranty in relation to the Third Party Software. Defects in Third Party Software will be rectified in accordance with the relevant software owner’s warranty.
Consulting Services Warranty
We warrant that we will use commercially reasonable efforts to perform the Consulting Services (including the provision of any associated Materials) in accordance with an Individual Contract and any milestones set out therein and that all Consulting Services will be provided with due care and skill. If you reasonably believe that we have not met this warranty commitment, you must notify us in writing as soon as practically possible, but in any event, within the applicable Consulting Services warranty period to obtain the benefit of this warranty. The Consulting Services warranty is valid for a period of 30 days following delivery of the Consulting Services.
You accept the relevant Hardware manufacturers, Third Party Software and Third Party Contract owner’s warranties in relation to the integration, compatibility or interoperability of those ‘products’ or ‘services’ with other hardware, software or services.
Data#3 Assistance with Hardware, Third Party Contracts and Third Party Software Functionality Issues
Any issues relating to Hardware, Third Party Contracts or Third Party Software functionality including, but not limited to, warranty claims, are to be resolved between you and the relevant vendor, owner or manufacturer directly, subject to the terms of the Hardware manufacturer’s warranty, Third Party Contract or Third Party Software manufacturer’s warranty and its EULA, as the case may be. We will, where possible, provide customer relationship support to you during this process. An Individual Contract may otherwise contemplate us assuming a first-line warranty claims assistance support role for the Price set out therein.
Australian Consumer Law
Notwithstanding anything in these Terms of Trade, consumers may have the benefit of certain rights or remedies pursuant to Australian Consumer Law in respect of which liability may not be excluded. Our goods come with guarantees that cannot be excluded under Australian Consumer Law. Consumers are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. Consumers are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. To claim this warranty, the consumer must inform Data#3 (by providing notice to the address set out in these terms of trade) of a warranty issue within the warranty time period specified by the relevant goods manufacturer. Data#3 will assist the consumer with claiming the warranty from the relevant goods manufacturer. The relevant goods manufacturer will provide details as to who will bear the expense of claiming the warranty and (if applicable) how the consumer can claim expenses incurred in making the claim. The benefits to the consumer given by the consumer warranty are in addition to other rights and remedies of the consumer under a law in relation to the goods to which the warranty relates.
Exclusion of all other warranties
To the extent permitted by law, and except as set out in these Terms of Trade, we:
(a) provide the Goods and Consulting Services to you on an “AS IS” basis;
(b) exclude all warranties and conditions, express, implied or statutory (including all implied warranties of merchantability, fitness for a particular purpose, lack of viruses, uninterrupted or error free operation, accuracy or completeness of responses or results, lack of workmanlike effort or non-infringement) regarding the Goods and Consulting Services provided to you; and
(c) limit the remedies available for a breach of any warranty given to you to the lesser of and to the extent that such breach of warranty is capable of remedy by employing commercially reasonable efforts (as determined by us acting reasonably and in good faith), the cost of repairing or replacing those Goods and Consulting Services; or paying the cost of having those Goods and Consulting Services repaired or replaced (as the context admits).
We accept no liability whatsoever for any resultant loss or damage arising directly or indirectly from any connectivity or integration with any existing Customer process, product, materials, environment that is not adequately accounted for in an Individual Contract, or inaccurate or incomplete Customer information.
Limitation of Liability
EXCEPT IN RESPECT OF PERSONAL INJURY OR DEATH CAUSED BY A PARTY’S NEGLIGENCE, IN NO OTHER EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL LOSS OR DAMAGES WHETHER SUCH LOSSES OR DAMAGES ARE ALLEGED AS A RESULT OF TORTIOUS CONDUCT (INCLUDING NEGLIGENCE) OR BREACH OF CONTRACT OR OTHERWISE. Except in respect of personal injury or death caused by our negligence, our maximum liability to you in aggregate for all claims made against us in contract, tort (including negligence) or for any other common law or statutory cause of action or otherwise in connection with the subject matter of this Contract shall be limited to:
- In respect of Goods, the component of the Price paid by you for such Goods under this Contract;
- In respect of Consulting Services, the component of the Price paid by you for such Consulting Services under this Contract;
Where a claim(s) relates to both Goods and Consulting Services, the limits on our liability to you shall operate separately and independently of each other in respect of such Goods and Consulting Services. A party’s liability for a claim of another party will be reduced proportionately to the extent that any act or omission of the first mentioned party or any of its officers, agents, employees or contractors causes or contributed to those liabilities, losses, damages, cost or expenses.
Term and Termination
This Contract will continue in force for the term set out in an Individual Contract or until we have fulfilled our obligations under this Contract. Either of us may terminate this Individual Contract, on 30 days prior written notice, where the other is in material default. We may terminate this Individual Contract with immediate effect if you become unable to pay your debts as and when they become due and payable.
We are excused from performing our obligations to the extent we are prevented by circumstances beyond our reasonable control including, but not limited to, acts of God, natural disasters, acts of war, riots and strikes.
Assignment: Data#3 may at any time transfer or assign any or all of its rights, obligations, benefit or interest under this Individual Contract. You may transfer or assign any or all of its rights, obligations, benefit or interest under this Individual Contract only with the prior written consent of Data#3, which shall not be unreasonably withheld.
Severability: The provisions is this Individual Contract are enforceable independently of each of the others and if a provision of this Individual Contract is, or becomes, illegal, invalid, void or deemed unenforceable by any court of competent jurisdiction, it shall not affect the legality, validity or enforceability of any other provisions of this Contract. If any of these provisions is so held to be illegal, void, invalid or unenforceable but would be legal, valid or enforceable if some part of the provision were deleted, the provision in question will apply with such modification as may be necessary to make it legal, valid or enforceable.
Variations: This Individual Contract may be varied from time to time providing that both parties agree to the variations in writing.
Waiver: Failure or delay by either party to enforce any provision of this Individual Contract shall not be deemed a waiver of future enforcement of that or any other provision, unless agreed in writing by the relevant party.
Entire Contract: Where this Individual Contract applies, it constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces any prior condition, warranty, representation, statement, agreement, undertaking, indemnity (whether negligently or innocently) imposed, given or made by a party, whether written, oral or implied and may only be amended in writing and signed by both parties.
Governing Law and Jurisdiction This Individual Contract shall be governed by the laws of Queensland and each party submits to the non-exclusive jurisdiction of the courts of Queensland.
- ‘Business Day’ means a day that is not a Saturday, Sunday or any other day that is a gazetted public holiday or a bank holiday in the place where an act is to be performed or a payment is to be made, as the context admits.
- ‘Business Hours’ means 8:30 am to 5:00 pm of each Business Day.
- ‘CED’ or ‘Commercial Engagement Document’ means a Data#3 quotation document or Data#3 proposal document that may reference other specifications applicable to the sale or supply of certain Goods and Consulting Services by Data #3.
- “Consulting Services” means the services supplied by Data#3 personnel to you pursuant to an Individual Contract, including any pre-contractual advice provided relating to your choice to purchase certain Goods. Consulting Services expressly excludes the resale or on-selling of Goods or resale of services supplied pursuant to a Third Party Contract.
- ‘Individual Contract’ means a legally binding contract between Data#3 and you consisting of the relevant CED and these Data#3 Terms of Trade.
- ‘Confidential Information’ means any trade secrets embodied in any information relating to, but not limited to, the commercial activities, product pricing, technologies, business processes, client relationships, strategic information and any other information related to the conduct of each parties businesses.
- ‘Data#3’, ‘us’, ‘our’ or ‘we’ means either the entity Data#3 Limited ABN 31 010 545 267 or any of its wholly owned Related Bodies Corporate as specified in a CED as the seller or supplier, of Level1, 555 Coronation Drive, Toowong, QLD 4066.
- ‘Goods’ means either Hardware, Third Part Contract or Third Party Software procured or supplied pursuant to these terms and conditions, as the context admits.
- ‘EULA’ means the licence agreement governing the use of Third Party Software directly between you and the owner of that software.
- ‘Hardware’ means any physical product manufactured by a third party, as specified in an Individual Contract.
- ‘Head Agreement’ means Data#3’s umbrella agreement for the supply of Goods and Consulting Services to its customers.
- ‘Incidental Costs’ means delivery costs, tax, installation, support or maintenance costs, preparation of the site, audit of your physical environments, overtime rates, and any miscellaneous expenses, like travel & accommodation.
- ‘Material’ means literary works or other works of authorship that Data#3 may deliver to the Customer as part of a Consulting Service. The term “Material” does not include licensed software products which are provided in accordance with their EULA.
- ‘Price’ in relation to Goods and Consulting Services means the price payable for those Goods and Services as detailed in an Individual Contract.
- ‘Third Party Software’ means any licensed, packaged software that is manufactured, licensed or owned by a third party (other than Data#3 or you) (“Third Party”) and procured on behalf of Data#3 for you, the use of which is subject to that Third Party’s EULA, and where applicable, includes its associated third party support and maintenance contract.
- ‘Third Party Contract’ means a separate contract including terms and conditions pursuant to which a service is supplied by a third party vendor directly to You, which is typically resold or transacted as a line item in an Individual Contract by Data#3 and which requires You to pay Data#3 for such service upon delivery or provisioning (and for which Data#3 remits a component of your payment to the third party vendor). The service supplied by the third party vendor may be for the support or maintenance service for Goods, or described as an “as a service” or “cloud” offering.
- ‘You’ means the customer entity specified in an Individual Contract.
Version 2018 Copyright Data#3 Limited