1. Definitions and Interpretation

1.1 Definitions

In these Terms and Conditions, the Rate Schedule, and each Quote, Order, Plan, contract or other arrangement relating to the supply of Goods or Services by Auspicate Pty Ltd, the following definitions apply:

After Hours means 6:00 pm to 8:00 am Monday to Friday, and all day on Saturdays, Sundays and Public Holidays.

Business Hours means 8:00 am to 6:00 pm Monday to Friday, excluding Public Holidays.

Client, You or Your means any person or entity that requests or receives a Quote, places an Order, or acquires Goods or Services from Us, including the person named in the Order, any person submitting the Order by email or other means, and any person on whose behalf the Order is placed, together with their successors and permitted assigns.

Conditions means these Terms and Conditions.

Goods means any goods and any related services sourced, supplied or arranged by Us, including hardware, software and associated items or services.

GST has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Order means any request or order placed by You for Goods or Services, in any format.

Quote means any quotation provided by Us to You.

Period means any agreed period of time, including a half-day, day, week, fortnight, month or other duration during which Services are to be supplied.

Plan means any service arrangement between You and Us for the supply of Goods and/or Services, including unlimited support arrangements or any agreed scope of work performed for You or at Your request, including as set out in a Plan Schedule.

Plan Schedule means the specific terms that apply to a Plan, as determined and amended by Us from time to time at Our discretion.

Public Holidays means public holidays observed throughout Victoria.

Rates means the hourly rates, fees and charges payable for Services, including call-out fees and any Return/Cancellation Fee, as set out in the Rate Schedule, Plan, Plan Schedule, Quote, contract, arrangement or these Conditions, and includes reasonable remuneration for work performed on a quantum meruit basis.

Rate Schedule means Our current schedule of service rates, charges and related conditions, as amended by Us from time to time at Our discretion.

Reasonable Assistance Limits has the meaning given in clause 17.2.

Return/Cancellation Fee means the fee referred to in clause 12.5, as determined by Us from time to time.

Service Request means a request for support or technical assistance, including additions, moves and changes.

Services means all services supplied by Us, including Work, advice and recommendations.

Software includes software, updates, upgrades, installations, associated programs and any services relating to them.

Us, Our or We means Auspicate Pty Ltd ABN 80 651 289 173, including its successors and assigns.

Work means anything We do, create, provide, customise, source or acquire for You or for Your benefit, including testing, troubleshooting, installation, configuration, consulting, scoping, planning, documentation and quotation preparation.

1.2 Interpretation

Unless the context otherwise requires:

a. words importing the singular include the plural and vice versa;
b. words importing one gender include all genders;
c. a reference to legislation includes any amendment, consolidation, replacement or re-enactment of that legislation;
d. headings and bold text are for convenience only and do not affect interpretation;
e. all monetary references are in Australian Dollars (AUD);
f. a reference to time means Melbourne, Victoria time (AEST/AEDT as applicable);
g. a reference to a person includes an individual, company, partnership, trust, association, authority, government body or other legal entity;
h. a reference to a clause, schedule, annexure or exhibit is a reference to a clause, schedule, annexure or exhibit to these Conditions;
i. schedules, annexures and recitals form part of these Conditions;
j. a reference to a document includes that document as amended, novated, supplemented or replaced from time to time;
k. if a word or expression is defined, other grammatical forms of it have a corresponding meaning;
l. the word includes means includes without limitation;
m. a reference to will imposes an obligation and not merely a warranty; and
n. a reference to insolvency or winding up includes liquidation, bankruptcy, administration, dissolution, insolvency events and anything analogous under applicable law.

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2. Application of These Conditions

2.1

Unless We agree otherwise in writing, these Conditions apply to and form part of every Quote, Order, Plan, contract or other arrangement for the supply of Goods or Services by Us to You, and prevail to the extent of any inconsistency.

2.2

If any provision of these Conditions is found to be invalid or unenforceable, the remainder will continue in full force and effect.

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3. Commitment Term

3.1

The minimum service term will be set out in Our Quote. The term will commence on the first day of the month following the date You sign or approve the Quote.

3.2

At the end of the initial committed term, the agreement will automatically renew for successive periods equal to the original committed term unless terminated earlier in accordance with clause 4.

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4. Termination

4.1

You may terminate this Agreement by giving ninety (90) days’ written notice if We:

4.1.1

materially fail to perform Our obligations under this Agreement and do not remedy that failure within thirty (30) days after receiving written notice from You;

4.1.2

breach a material provision of this Agreement and fail to remedy that breach within thirty (30) days after receiving written notice from You; or

4.1.3

cease or suspend business operations, unless the Agreement is lawfully assigned to a permitted successor.

4.2

We may terminate this Agreement by giving You ninety (90) days’ written notice.

4.3

If this Agreement ends for any reason, We will provide reasonable assistance to transition the Services to You or another provider nominated by You. Any such assistance will be charged at Our then-current Rates.

4.4

If You terminate this Agreement before the end of the commitment term for convenience, You must pay all fees that would have been payable for the balance of that commitment term.

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5. Representations

5.1

You acknowledge that no employee, contractor or agent of Ours is authorised to make any representation, promise or warranty regarding the Goods or Services except as expressly stated in these Conditions.

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6. Notices

6.1

Any notice given under these Conditions must be in writing and may be sent by email to the latest email address notified by the receiving party.

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7. Governing Law

7.1

These Conditions are governed by the laws of Victoria, Australia. The parties submit to the non-exclusive jurisdiction of the courts of Victoria.

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8. Assignment

8.1

You must not assign, transfer or otherwise deal with Your rights or obligations under this Agreement without Our prior written consent.

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9. Variation of Terms

9.1

We may amend these Terms and Conditions at any time by publishing the updated version on Our website. Publication on Our website constitutes sufficient notice of the change. We are not required to provide any other notice of amendments.

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GOODS AND SERVICES

10. Quotes

10.1

Unless otherwise stated, a Quote remains valid for seven (7) days from the date it is issued.

10.2

A Quote is an invitation to treat only and does not create a binding agreement until accepted by Us.

10.3

If a Quote expires, it may be withdrawn and a new Quote may need to be requested.

10.4

Once a Quote is finalised and confirmed by both parties, the pricing in that final Quote becomes the agreed price.

10.5

If You request changes to products, quantities, scope or specifications before confirmation, the Quote and pricing may be revised accordingly.

10.6

Quotes and estimates are based on the information and specifications available at the time they are prepared. If You later request changes and We agree to them, those changes will be charged at Our then-current Rates.

10.7

Once a confirmed Quote is converted into an Order, that Order is governed by these Terms and Conditions.

10.8

Our standard turnaround time for most Quote requests is approximately 24 hours, although urgent requests should be identified by You at the time of request.

10.9

If a special price, discount or promotional offer applies to a Quote, no other discount, promotion or bonus will apply unless We agree otherwise in writing.

10.10

Where pricing or supply availability changes due to matters beyond Our control, We may update the Quote accordingly. If an item is no longer available, We may propose a substitute item subject to Your approval.

10.11

Pricing for non-stocked items remains subject to supplier pricing and stock availability until the Quote is converted into an Order.

10.12

We will try to honour quoted prices, but if a supplier price increase occurs outside Our control before the Order is placed, We reserve the right to adjust the price.

10.13

We may cancel an expired Quote without notice.

10.14

Any ETA provided is an estimate only, based on information from suppliers or distributors, and is not guaranteed.

10.15

Freight and delivery charges are additional unless expressly stated otherwise. Any quoted delivery charges are estimates only.

10.16

We do not generally hold stock and usually order products only after receiving a completed Order. If You request a cancellation or return, a restocking fee may apply and any refund is subject to supplier approval.

10.17

Quoted prices are based on the full quantity and total purchase reflected in the Quote.

10.18

Unless expressly stated otherwise, hardware items are covered only by the applicable manufacturer’s warranty on a return-to-base basis.

10.19

We may vary or withdraw a Quote at any time before final acceptance, at Our absolute discretion, including where Goods or Services become unavailable or Our input costs increase.

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11. Orders

11.1

You may place an Order by completing an Order form, approving a Quote electronically, or otherwise confirming acceptance by email or via a web-based system. The Order should include Your legal name, business details, relevant ABN or ACN, address, and any applicable Quote reference.

11.2

An Order submitted by email or through an online ordering system will be treated as though it was duly signed and authorised by the sender or submitter.

11.3

Unless We have actual knowledge to the contrary, We may rely on the apparent validity of any Order and treat it as properly authorised by the relevant person and by the person or entity on whose behalf it is submitted.

11.4

An Order is not binding on Us until accepted by Us in writing and, where applicable, until We receive payment in cleared funds for the Order and all associated delivery, freight and insurance charges.

11.5

We are not obliged to supply Goods or perform Services until We receive all required cleared funds, or where We are otherwise unable or unwilling to fulfil the Order, provided We refund any payment received for unfulfilled items.

11.6

You consent to Us conducting credit checks or credit reference enquiries where We are considering offering You credit or payment terms.

11.7

You may not cancel an Order after it has been placed unless We agree in writing. You acknowledge that supplier dispatch may occur immediately after We place the order, which may prevent cancellation.

11.8

You agree to comply with Our reasonable operational processes and procedures in connection with the supply of Goods and Services.

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12. Pricing and Rates

12.1

Unless otherwise stated, all Rates and charges are exclusive of GST and any other applicable taxes or government charges.

12.2

You must pay for Goods and Services at the Rates specified in the applicable Plan, Quote, agreement or current Rate Schedule.

12.3

Subject to any agreed fixed pricing period, We may amend Our Rates or Rate Schedule from time to time at Our discretion.

12.4

We may charge call-out fees in addition to standard Rates, depending on the nature and location of the work.

12.5

If We process a return, refund or cancellation for You, or if You cancel an accepted Order, We may charge a Return/Cancellation Fee to cover administrative and processing costs. We may deduct that fee from any refund payable to You.

12.6

You must reimburse any reasonable out-of-pocket expenses We incur in supplying Services, including travel, flights, car hire, fuel, taxis, accommodation, meals, tolls and parking. Where appropriate, We will seek prior written approval before incurring such costs.

12.7

We may invoice Goods and Services separately or together.

12.8

Where charges are billed in time increments, such as 30 minutes or 1 hour, the full increment will be charged even if only part of that increment is used.

12.9

If Our underlying costs increase in connection with the supply of Goods or Services, We may adjust Our Rates accordingly.

12.10 Pre-Paid Blocks of Service

Where You purchase pre-paid service blocks for a defined Period:

12.10.1

payment must be made in advance;

12.10.2

usage is calculated in accordance with the minimum time increments in the Rate Schedule;

12.10.3

services must be used within the applicable Period;

12.10.4

unused time does not roll over to any later Period; and

12.10.5

unused time is non-refundable and does not give rise to compensation or damages.

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13. Services and Plans

13.1

We may modify, expand, reduce or discontinue any Service or Plan at any time, at Our discretion and without prior notice.

13.2

We will provide a copy of the current Rate Schedule on request. Plan Schedules are only available to clients participating in the relevant Plan.

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14. Contracting

14.1

We may subcontract any part of the Services, but We remain responsible for the overall delivery of the Services under this Agreement.

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15. Delivery, Title and Risk

15.1

We will use reasonable efforts to dispatch Goods by any estimated delivery date, but We are not liable for delays or non-delivery caused by circumstances beyond Our reasonable control, including supplier shortages or courier delays.

15.2

You must ensure someone is available to accept delivery at the nominated address during Business Hours unless otherwise agreed.

15.3

Risk in the Goods passes to You once the Goods are delivered to Your nominated address.

15.4

From the time risk passes, You are responsible for insuring the Goods adequately.

15.5 Retention of Title

Until all amounts owing to Us are paid in full in cleared funds:

15.5.1

legal and beneficial title in the Goods remains with Us;

15.5.2

You hold the Goods as fiduciary bailee and agent for Us;

15.5.3

You must keep the Goods separately stored, clearly identifiable, and in their original condition and packaging where possible;

15.5.4

if You sell the Goods contrary to these Conditions, You hold the sale proceeds on trust for Us in a separate account;

15.5.5

We may enter any premises where the Goods are reasonably believed to be located, repossess them and remove them; and

15.5.6

You irrevocably appoint Us as Your attorney to do anything reasonably necessary to give effect to this clause.

You indemnify Us against any loss, cost or claim arising from repossession or attempted repossession of the Goods.

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16. Returns and Claims

16.1

All Goods are supplied subject to the terms, conditions and return policies of the relevant manufacturer or supplier. You acknowledge those policies may limit return or refund rights.

16.2

Goods that are customised, specially sourced, imported, obtained from discontinued suppliers, or otherwise not readily returnable cannot be returned or cancelled unless We agree otherwise in writing.

16.3

You must inspect all Goods immediately upon delivery and notify Us in writing within seven (7) days of any issue that may give rise to a return, refund or claim. If no notice is given within that period, the Goods will be deemed accepted.

16.4

Where Goods may be returned, they must be returned unopened and in original condition unless the packaging reveals the Goods are faulty or not as described.

16.5

You are responsible for all costs associated with returns, cancellations or supplier processing unless the supplier agrees to cover those costs.

16.6

Once Goods have been used, installed, customised or resold, You indemnify Us against all claims arising from those Goods, without limiting any rights You may have directly against the manufacturer.

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17. Computer Utility, Functionality and Fitness for Purpose

17.1

You acknowledge that IT services involve diagnosis, testing, investigation and trial-and-error, often in complex or unfamiliar environments. Advice, troubleshooting and recommendations may not always resolve the issue or produce the intended outcome. We will use reasonable endeavours to assist, but You acknowledge and accept the inherent uncertainty involved.

17.2 Reasonable Assistance Limits

Under any Plan, We are only required to provide what We consider to be reasonable assistance in the circumstances. Any work beyond that level will be charged at applicable Rates unless otherwise agreed. Reasonable assistance will usually be limited to work performed during Business Hours and within any estimated time allowance, whether or not that estimate was formally communicated to You.

17.3

You acknowledge that:

17.3.1

We may recommend third-party Goods or Services;

17.3.2

such recommendations may be based on the purpose or function You have described to Us;

17.3.3

We do not control all compatibility, support, performance or environmental factors affecting third-party Goods or Services;

17.3.4

Goods or Services may not meet all expectations or perform as intended in every environment;

17.3.5

customisation work may itself be substantial and complex; and

17.3.6

You are solely responsible for deciding whether to accept Our recommendations, purchase or customise Goods, or seek independent advice.

17.4

Where We provide Services intended to help achieve a particular outcome, You must still pay for those Services if We acted in good faith and used reasonable endeavours, even if the desired outcome is not fully achieved.

17.5

You agree to follow Our reasonable instructions for testing and troubleshooting. If those steps do not resolve the issue, We will allocate such further resources as We consider reasonable in the circumstances.

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18. Force Majeure

18.1

If We are unable to supply Goods or Services because of circumstances beyond Our reasonable control, We may cancel the relevant Order or cease supplying the affected Services by written notice to You.

18.2

We are not liable for any delay, suspension, failure or breach caused by events beyond Our reasonable control, including supplier failures, transport issues, natural disasters, fire, flood, earthquake, industrial action, war, riot, governmental action, explosions or accidents.

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19. Product Specifications

19.1

We will use reasonable efforts to supply Goods in accordance with the Order, but minor variations in dimensions, specifications or design may occur where changed by the manufacturer after the Order date.

19.2

If the ordered Goods are unavailable, We may supply substitute Goods of equal or better quality, provided You are not charged more than the agreed price for the original Goods.

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20. Warranties

20.1

Where applicable, You agree to rely on the manufacturer’s warranty for Goods supplied by Us and to pursue warranty claims directly with the manufacturer unless otherwise required by law.

20.2

You indemnify Us against any loss, claim or liability arising from a manufacturer’s failure to honour its warranty obligations.

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21. Liability

21.1

To the maximum extent permitted by law, all implied terms, conditions and warranties regarding quality, fitness for purpose, description, assembly, design, manufacture or performance of Goods or Services are excluded unless expressly stated in these Conditions.

21.2

You are responsible for backing up all software, systems and data. We are not liable for any loss of programs, data or files arising directly or indirectly from the supply of Goods or Services.

21.3

We are not liable for any indirect, incidental, special or consequential loss, including loss of profit, revenue, turnover, business opportunity, goodwill or third-party liability.

21.4

We are not liable for any loss arising from delay, suspension or cancellation of supply.

21.5

Except as expressly provided in these Conditions, We are not liable for any loss or damage suffered by You in connection with:

21.5.1

any Goods, Services or Work supplied by Us;

21.5.2

these Terms and Conditions;

21.5.3

Your use of Our website or any linked website;

21.5.4

the unavailability of Goods or Services;

21.5.5

any act or omission by Us, or any inaccurate, incomplete or incorrect information supplied by You; or

21.5.6

any other cause whatsoever, including negligence.

21.6

Where legislation implies a non-excludable guarantee, Our liability is limited, at Our option, to one or more of the following:

21.6.1

replacing the Goods or supplying equivalent Goods, Services or Work;

21.6.2

repairing the Goods or Work;

21.6.3

paying the cost of replacement or equivalent supply; or

21.6.4

paying the cost of repair.

21.7

Nothing in these Conditions excludes, restricts or modifies any right or remedy that cannot lawfully be excluded under applicable law.

21.8

If any part of this clause is unlawful or unenforceable, that part will be severed and the remainder will continue in effect.

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22. Errors and Omissions

22.1

We take reasonable care to ensure prices and descriptions are accurate. If a clerical, pricing or descriptive error or omission occurs, We may cancel the affected contract by written notice, even if the Order has been accepted and/or paid for. In that case, Our liability is limited to refunding any amount You have paid for the affected Order.

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OUR RESPONSIBILITIES

23. Privacy

23.1

We collect and use Your personal information for the purpose of preparing Quotes, processing Orders, supplying Goods and Services, and related business purposes.

23.2

You must provide the personal information reasonably required for those purposes.

23.3

We may disclose Your personal information to third parties where reasonably necessary to fulfil Quotes, Orders, Work, verification processes, supplier enquiries or procurement on Your behalf.

23.4

We will not otherwise disclose Your personal information without Your consent unless required or authorised by law.

23.5

Your personal information will be held by Us at Our principal place of business. You may contact Us to request access to or correction of that information.

23.6

We rely on the accuracy of information provided by You. You acknowledge that incorrect information may lead to additional costs, which You must pay.

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24. Website

24.1

We do not warrant that information on Our website is complete, accurate or current, or that the website will be continuously available, uninterrupted, secure or free of viruses or faults.

24.2

We do not endorse, and are not responsible for, any linked third-party websites or third-party products or services referred to on Our website.

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25. Insurance

25.1

We will maintain commercial general liability insurance with a minimum aggregate cover of $2,000,000 for personal injury and property damage.

25.2

Upon reasonable request, We will provide certificates of currency within thirty (30) days after commencement of this Agreement, at each renewal, and at other reasonable times requested by You.

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YOUR RESPONSIBILITIES

26. Lodging Service Requests

26.1

To receive the agreed Services, You must follow Our service request process, including any process described in Appendix A.

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27. Access to Systems, Sites and Personnel

27.1

You must provide Us with timely access to equipment, systems, sites, personnel and other resources reasonably required for Us to deliver the Services.

27.2

You agree that We may install remote monitoring or management software on Your equipment where required to enable support, maintenance, monitoring and troubleshooting. This may require certain devices to remain powered on outside Business Hours.

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28. Third-Party Authorisations

28.1

Where We need to communicate with third-party providers on Your behalf, such as internet or telecommunications providers, You must ensure that all necessary consents and authorisations are in place.

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29. Payment, Late Payment and Default

29.1

Invoices must be paid by the due date stated on the invoice, using the payment method specified by Us, unless otherwise agreed in writing.

29.2

If an invoice remains unpaid for more than seven (7) days after the due date, We may suspend or discontinue the supply of Goods and/or Services without prior notice.

29.3

You must reimburse all reasonable legal and recovery costs incurred by Us in recovering overdue amounts. If You default in payment, all amounts owing to Us, whether then due or not, become immediately payable.

29.4

We may charge default interest on overdue amounts at the maximum rate permitted by law, calculated daily from the due date until payment is made in full.

29.5

Payments received from You will be applied in the following order:

29.5.1

first, to recovery costs, dishonour fees, collection charges and related expenses;

29.5.2

second, to accrued interest; and

29.5.3

third, to principal amounts owing, from the oldest debt to the newest.

29.6

We may require security from You, including security over property or Goods, as collateral for amounts owing or as a condition of continued supply.

29.7

If We agree to a payment arrangement and You fail to comply with it, We may again suspend or discontinue supply without notice.

29.8

You irrevocably appoint Us as Your attorney to do anything We reasonably consider necessary to recover overdue amounts or enforce any security.

29.9

We may exercise any of Our rights and remedies, including court proceedings, regardless of whether We have exercised any other right under these Conditions.

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30. Non-Solicitation of Employees

30.1

You acknowledge that Our employees are a valuable business asset. During the term of this Agreement, and for two (2) years after it ends, You must not directly or indirectly employ, solicit, engage or offer employment to any of Our employees, except with Our prior written consent.

30.2

You agree that damages for breach of this clause would be difficult to quantify. If You breach this clause, You must pay liquidated damages equal to 100% of the employee’s total annual remuneration. The parties agree this amount is a genuine pre-estimate of loss and not a penalty.

30.3

We may also terminate this Agreement immediately if You breach this clause.

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31. Software

31.1

You are solely responsible for obtaining, maintaining and storing all software licences required for software used by You, including software installed by Us on Your behalf.

31.2

You indemnify Us against any claim, loss, expense or liability arising directly or indirectly from:

31.2.1

any unauthorised or unlicensed use of software by You;

31.2.2

any breach of a software licence relating to software provided by You to Us for installation;

31.2.3

Our installation of software at Your request where You are not authorised to use that software; and

31.2.4

any defect, malfunction or issue relating to third-party software or related services.

31.3

Unless otherwise agreed in a separate written software agreement, all intellectual property rights in any custom software developed by Us remain vested in Us.

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32. Copyright and Confidentiality

32.1

You warrant that any material, information, intellectual property, confidential information or copyright content You provide to Us belongs to You or that You are authorised to provide it. You indemnify Us against any claim, loss, damage or expense arising from any breach of that warranty.

32.2

Unless otherwise agreed in writing, all copyright and intellectual property rights in any Work created, commissioned, developed or acquired by Us in the course of supplying Services remain the exclusive property of Us.

32.3

We acknowledge that in providing Services to You, We may receive confidential and non-public information relating to You, Your customers, Your employees or Your business, and We will treat that information as confidential.

32.4

You acknowledge that Our methods, materials, service information, consulting techniques, proposals and documents are valuable proprietary assets and confidential information belonging to Us.

32.5

Each party must take all commercially reasonable steps to protect the other party’s confidential information and must not disclose, copy, distribute, sell, assign or otherwise use that information except:

a. with the prior written consent of the disclosing party; or
b. where required by law.