Capitalised terms have the following meaning in these Terms:
- “Us”, “Our” or “We” means Interconnekt Pty Ltd or any of our related bodies corporate
- “Customer” or “You”: means the person who acquires Products from Us;
- “Products” means all goods and services (including software) supplied to Customer by Us;
In these Terms:
- the singular includes the plural and vice versa;
- a gender includes all genders;
- a document (including these Terms) is a reference to that document as amended, consolidated, supplemented, novated or replaced;
- a person (including a party) includes:
- an individual, company, other body corporate, association, partnership, firm, joint venture, trust or government agency; and
- the person’s successors, permitted assigns, substitutes, executors and administrators;
- a law includes any legislation, judgment, rule of common law or equity or rule of any applicable stock exchange, and is a reference to that law as amended, consolidated, supplemented or replaced and includes a reference to any regulation, by-law or other subordinate legislation;
- the words “including” or “includes” means “including, but not limited to” or “includes, without limitation” respectively;
- where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
- headings are for convenience only and do not affect interpretation of this agreement; and
- these Terms may not be construed adversely to a party only because that party was responsible for preparing them.
Formation of agreement
- These Terms and all other documents expressly referred to in these Terms, or signed by the parties, set out the entire agreement of the parties and supersede all other representations, negotiations, arrangements, understandings or agreements and all other communications.
- The parties agree that a separate contract is formed each time Customer acquires goods and services from Us on the then current version of Our Terms of Sale.
- If We have approved an application made by You to Us for credit, then We in Our sole discretion will assign You a maximum credit line and will have the right to increase, decrease, or terminate Your credit privileges or to change the terms and conditions on which those privileges are provided (“Credit Terms”) at any time without prior notice to You, except as otherwise provided by law. We may, at any time or from time to time, without assigning any reason therefore, refuse to extend any further credit.
- To the extent You are a Credit Customer, You agree to immediately notify Us of any changes to any of the details contained in Your credit application or as otherwise provided by You to Us, and any other material changes to Your ownership, shareholding, structure and/or business, trading or financial activities.
- The price payable by You to Us for the Products will be Our quoted price, or in the absence of a quoted price as otherwise advised by Us.
- You must pay Us for the Products and for all other notified charges (including any handling, delivery, agents’ charges and other charges duties or imposts) prior to delivery, or to the extent You are a Credit Customer in accordance with the applicable Credit Terms, unless agreed otherwise in writing by Us.
- To the extent You are a Credit Customer, We may, suspend the provision of credit to You at any time until all amounts owing are paid for in full.
- If You do not pay any amount due under this agreement by its due date for payment, You are liable to pay interest on any overdue amount from the due date until the date of payment, to be calculated on a daily basis at the rate of 2% above the prevailing base lending rate quoted by the Westpac Banking Corporation.
- Unless stated otherwise in these Terms (or in writing by Our authorised representative), all prices quoted for Products are exclusive of all GST and other taxes.
- If GST is payable as a consequence of any supply made (or deemed to be made) by one party to the other party in connection with this agreement, the party receiving the supply must pay to the party making the supply an amount equal to the GST payable in respect of the supply (“GST Amount”) in addition to the amounts otherwise payable.
- Notwithstanding any other provision of this agreement, if either party is required to reimburse or indemnify the other party for any cost, expenses or other amounts, the amount to be reimbursed or indemnified must be reduced by any part which is recoverable as an input tax credit by the party which incurred it (or representative member of that party’s GST group).
- Terms used in subclauses (e) to (g) above have the meaning as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
- You are responsible for all taxes (other than income tax) payable under these Terms, any matter or thing done under these Terms or any payment, receipt or other transaction contemplated by these Terms, including the granting of any Security Interest, together with any fine, penalty or interest payable because of a default by Customer in paying such taxes.
- You must only make orders for Products in accordance with Our Order Policy; and acknowledges that all orders are subject to acceptance by Us.
- We may reject any order placed by You if:
- it has an insufficient quantity of Products available to fulfill such order; or
- You are not a Credit Customer and have not otherwise paid for the order in advance.
- Delivery times advised to You are estimates only and to the fullest extent permitted by law, We will not be liable for any loss, damage or delay suffered or incurred by You or Your customers arising from late delivery of the Products.
- We may make part deliveries of any order, and each part delivery will constitute a separate supply of the Products for the purposes of these Terms.
Order inspection and acceptance of delivery
- in the case of all Products ordered (other than software Products), inspect such Products upon delivery to Your premises to ensure they are free from damage and defects. Acceptance of delivery by You will be taken as acceptance of products as free from damage or defects; or,
- in the case of software Products, test or inspect such software products upon those products being authorized by Us for delivery to You, either electronic or physical, and must, within 7 days of delivery or downloading (as the case may be) give written notice to Us of any matter or thing which You allege that the Products do not accord with Your order. Failing such notice and to the extent permitted by law, the Products will be deemed to have been accepted by You.
You consent to Us providing Our Suppliers with Your business name, address and other relevant information required by Our Suppliers to enable the provision or Products and Services to You.
- Disclosure of Information for Purposes of Credit Check
- A party (the Discloser) may make a disclosure of the other party’s Confidential Information (including the terms of this Agreement) if the Discloser reasonably believes it necessary, to:
- Its suppliers of professional services (including, without limitation, legal and financial advisers, financiers and insurance carriers) if those persons undertake to keep such disclosed information confidential;
- For credit purposes where the persons to which such information is disclosed undertake to keep the disclosed information confidential;
- Any of its employees to whom it is necessary to disclose such information if that employee undertakes to keep the disclosed information confidential; or
- Comply with any applicable law or requirement of a governmental agency.
- To assess Your application for services and to establish, and provide ongoing credit management to Your account, You consent to Us disclosing to a credit reporting agency, personal information relating to You in Our possession, including, but not limited to Confidential Information. Subject to Our obligations under thePrivacy Act 1988 (Cth) and the Telecommunications Act 1997 (Cth), We may also give this information to a credit reporting agency to obtain a credit report about You. We may disclose the following information relating to You in accordance with this clause
- A party (the Discloser) may make a disclosure of the other party’s Confidential Information (including the terms of this Agreement) if the Discloser reasonably believes it necessary, to:
even where this information may fall within the definition of Confidential Information:
- Your name, ABN/ACN (if applicable) and address
- details of Your application for services and/or other services supplied to You;
- credit limits of Your accounts;
- the amount of any payments which are due;
- where an overdue payment has been previously reported, advice that the payment is no longer overdue;
- cheques or credit card payments which have been dishonoured;
- information that, in Our opinion, You have committed a serious credit infringement; and
- information that We have ceased to provide services to You.
You agree that We may obtain information about You from any business or credit reporting agency which provides information about the commercial creditworthiness of persons for the purposes of assessing Your application for services and collecting any overdue amounts. In addition, You agree to provide Us or any independent person nominated by Us any information reasonably required by Us to confirm Your creditworthiness within 10 Business Days of Our request.
You must pay to Us on demand the amount of any and all Loss suffered or incurred by Us arising out of or in connection with:
- any destruction of or damage to any of Our property or Our Supplier’s property caused by You, including by connection of unauthorised devices to Our Network or Our Supplier’s Network or otherwise;
- any injury to or death of Our employees or Our Supplier’s employees caused or contributed to by any act or omission by You;
- any Claim by You or any other third party against Us relating to:
- Your execution and performance of this agreement;
- the supply or cessation of supply of the Services; or
- any Customer Services;
- any fraud, gross negligence, willful misconduct, recklessness or dishonesty in connection with the Services or this agreement by You or any third party associated with such persons who use or purport to use the Services supplied by Us under this agreement; and
- any Claims by third parties against Us in respect of breach of Intellectual Property Rights (including any Claims that You have used the Services to reproduce, broadcast, use, transmit, communicate or otherwise make available material in breach of a third party’s Intellectual Property Rights), loss of or damage to property or injury to or death of persons caused or contributed to by any act or omission by You.
You acknowledge that all title and intellectual property in the Products and Services are owned by the Vendor/s of the products and services or their licensors. You acknowledge that the supply of the Products and Services by Us to You does not transfer any ownership of the Products or services or any intellectual property to You.
You must not:
- remove, modify or obscure any copyright, trademark or other proprietary rights notices that are contained in or on the Products;
- reverse engineer, decompile, or disassemble the Products, except to the extent that such activity is expressly permitted by applicable law;
- You must not engage in the manufacture, use, distribution or transfer of counterfeit, pirated or illegal software. You may not distribute or transfer Products to any party that You know is engaged in these activities.
- You must report to Us any suspected counterfeiting, piracy or other intellectual property infringement in computer programs, manuals, marketing materials or other materials owned by Us or Our Suppliers as soon as You become aware of it.
- You will cooperate with Us in the investigation of any party suspected of these activities.
We may subcontract the performance of any Our obligations under this agreement provided that We:
- notify each of Our subcontractors of Our obligations under this Agreement;
- are not relieved of any obligation or liability arising under this Agreement by entering into any subcontract;
- remain responsible for ensuring the suitability, and for the performance, of any subcontractors; and
- are liable to You for the acts, defaults and negligence of each subcontractor, as they were the acts, defaults or negligence by Us.
The Customer grants Us a lien over the Customer’s Equipment (stored in our Data centre) for any amount payable under the
Customer Contract. If any amount payable under the Customer Contract is not paid within 60 days of its due date, You authorize Us to sell any or all of the Customer’s Equipment to recover any such amount, the costs of storing and selling the Customer’s Equipment and other expenses incurred by the Customer’s failure to pay such amount
Third Party Supplier Fee Increase
You agree and acknowledge that We may pass on any Non-Recurring Cost or increases to Monthly Recurring Costs incurred by Us without notice where such charges impact the cost of supply of the Services to you.
Changing Fixed Term Agreements
Subject to this clause, we cannot change fees during the Initial Period of an Agreement unless, either:
- The change is the result of a change in the price from a Supplier for an input which is required for your service;
- The change is required by law;
- The change is in relation to a fee or charge that accounts for a tax imposed by law;
- The change is in relation to a type of fee or type of charge which is expressly identified as variable in the fixed term agreement; or
- You agree to the change.
Term of Individual Services
- In respect of any Service Order which specifies the relevant Initial Period, the Individual Service ordered under that Service Order will remain in effect for the Initial Period and will be automatically renewed for successive periods of one month each (or as otherwise provided in the Service Order) unless and until terminated by either party:
- By giving notice as required under that particular Service Order; or if not specified then,
- By giving to the other party 30 days prior written notice.
Term (Service Order)
- Where an Initial Period is specified in the Service Order, the Initial Period commences, whichever is earlier, when:
- You are advised by Us that your Service has been provisioned and is now available for use; or
- When you are first able to use the Service
Suspension of Service
In addition to the various rights of suspension or termination contained in the Master Services Agreement, We may also suspend or terminate the Service if:
- We determine that Your use of the Service, features, or a device is, or at any time was, inconsistent with the normal inbound or outbound usage patterns for the type of service on Your order form.
- We determine that you have tampered with Our Equipment, Supplier Equipment or Customer Premises Equipment. In this instance, We may charge You a fee equal to the full purchase price of the device provided to You for use with the Product.
Termination or suspension by Us
We can terminate this agreement if:
- We are unable to supply, or continue to supply, You with the Products due to the cancellation, suspension or termination of any agreement with Our Suppliers, for whatever reason
If We suspend or terminate this agreement in accordance with this clause, We will use Our best endeavours to resupply the Product to You using a different supplier.
You consent to Us and Our Suppliers (and our respective Personnel) entering any premises owned, controlled or occupied by You, at which the Service will be provided, and doing anything that is necessary at that premises in connection with:
- The installation and supply of the Service;
- The delivery, installation, connection, inspection, modification, replacement, maintenance, repair, servicing, disconnection or removal of any of Our Equipment or Supplier Equipment,
And you agree to give Us and Our suppliers safe and timely access to such premises for so long as You, own, control or occupy that premises.
We may conduct maintenance on Our Network and maintenance may be conducted on a Supplier’s Network used to supply the service.
We will endeavor to schedule our Network maintenance outside normal business hours but may not be able to do so.
- Maintenance and Repair Work
- We may suspend or restrict Your Service without notice in the event that We or Our Suppliers believe it is necessary or desirable to conduct maintenance and repair work on any part of the network, facilities or equipment which are relevant, whether directly or indirectly, to supplying Your Service.
- We will endeavor to give You as much notice as is reasonably possible when suspensions will occur due to maintenance and repairs, however this may not always be possible. We will endeavor to schedule maintenance when it is least inconvenient to You.
- We are not responsible for scheduling maintenance and repairs conducted by Our Suppliers. We will endeavor to give you as much notice as is reasonably possible where suspensions are caused by Our Suppliers’ maintenance, however this may not always be possible
You must pay all fees and charges which are incurred for the Service even if You did not authorise the use which gave rise to the fees and charges.
- We may provisionally suspend or restrict the service
- If You breach a material term of the agreement, until such time as the breach is remedied or the service is cancelled;
- If You fail to pay any invoice in full by the relevant due date; until such time as You have paid the invoice amounts in full;
- If We reasonably consider You to be a credit risk and require a security deposit until such times as we receive the security deposit;
- In some circumstance We may provisionally suspend or restrict Your service by giving You as much notice as reasonably possible (including notice reasonably soon after we have suspended or restricted you service). Suspension or restriction in these circumstances will remain in place until the circumstance(s) giving rise to the suspension or restriction have satisfactorily passed and We believe they are unlikely to return. We may suspend or restrict your services under this clause where;
- We believe it is reasonably required to prevent fraud, illegality, propagation of spam or malicious software, or interference with any other network, howsoever caused;
- Problems are experienced interconnecting Our Network with any other network;
- We cannot enter Our or Your premises to do something in connection with the Service that We need to do in order to supply the Service or make the Service or related equipment safe, including enabling any authorized persons to attend to an emergency;
- You vacate the premises to which the Service is connected;
- We believe it is reasonably required to prevent or mitigate interference, howsoever caused, with Our Network or Our ability to provide other Services;
- Providing the Service becomes illegal or We believe on reasonable grounds that it will become illegal;
- We are required to comply with an order, instruction, request or notice of a regulator, emergency services organization or other competent authority; or
- An emergency, adverse or force majeure event affects Our ability whether directly or indirectly to provide the Service.
Customer Premises Equipment
- Customer Premises Equipment remains Our property, or the property of Our Supplier, although it is provided to you in accordance with the Agreement for the sole purpose of receiving the Service(s). All right, title and interest in any Customer Premises Equipment provided or operated by Us or Our Suppliers remain exclusively with Us or Our Suppliers, as the case may be, and You will not obtain any right, title or interest (including any lien) in or over Customer Premises Equipment
- You are responsible for any Customer Premises Equipment from the time when you receive it until it is returned to a location nominated by us, including the provision of clean power (eg You have a UPS, etc.)
- You must not:
- Grant any charge, lien or encumbrance over;
- Sell, attempt to sell or transfer;
- Modify, service, repair, replace or reverse engineer;
- Destroy, disassemble or dispose of;
Any Customer Premises Equipment
- Unless You and We agree otherwise, you must exclusively allow Us or Our Suppliers to service, modify, repair or replace any Customer Premises Equipment
- We may reasonably charge you for any lost, stolen or damaged Customer Premises Equipment that is beyond fair wear and tear and that is not caused by Us.
- We may register Our ownership interest in the Customer Premises Equipment with the Personal Property Securities Register. We may require information from You in order to perfect the registration. If we register our interest in the Personal Property Securities Register, we may pass any charges and fees associated with the registration on to you.
Customer Provided Equipment
- Customer Provided Equipment is Your property and can be used to receive some services.
- You may purchase equipment from us for use in connection with the service(s). This transaction may be invoiced separately or as part of your service(s), at our discretion.
- If you connect Customer Provided Equipment to the service(s), it must comply with the relevant technical standards and other relevant requirements, standards and legislation.
- We may require you to disconnect Customer Provided Equipment from the Service(s) if the Customer Provided Equipment does not meet these standards or is having an adverse effect on Our Network.
Our liability for interruptions and delays
- If Your Service is interrupted or delayed We accept liability to You but Our liability is limited as specified in any applicable Service Level Agreement. If no Service Level Agreement applies to Your Service, liability in respect of interruptions or delays is limited to an amount equal to the charges billed in respect of the interrupted Service pro- rated for the period of the interruption or delay.
- In no event will Our liability exceed the total amount of charges You incur for the interrupted Service during the billing period in which the interruption or delay occurred.
How to claim a Service Rebate:
Unless specified otherwise in Your Service Order, if You believe that We have breached a relevant Service Level Agreement, You must notify Us in writing that You intend to claim a Service Rebate.
Your notification should include;
- A description of the event that You believe breached the Service Level Agreement;
- The date and time where that event occurred;
- Any other information such as helpdesk ticket numbers which helps Us confirm that a breach of the Service Level Agreement occurred.
- Unless specified otherwise in Your Service Order, if You do not notify Us that You wish to claim a service rebate within 30 days of the event which allegedly breaches the Service Level Agreement then You have waived your right to receive a Service Rebate.
Neither party shall assign, whether in whole or part, the benefit of this agreement or any rights or obligations hereunder, without the prior written consent of the other party which may be withheld in that party’s absolute discretion. If consent is granted to the assignment then it shall be on the same terms and conditions as set out in this agreement unless otherwise agreed by the parties in writing.
Should any part of this agreement be or become invalid, that part shall be severed from this agreement. Such invalidity shall not affect the validity of the remaining provisions of the agreement.
Governing Law and Jurisdiction
- The parties agree that this agreement shall be subject to and interpreted in accordance with the laws of the State of Victoria and the parties agree to submit to the non- exclusive jurisdiction of the Courts of Victoria.
- This agreement shall be governed by and construed in accordance with the laws for the time being in force in the State of Victoria and the parties agree to submit to the jurisdiction of the Courts and Tribunals of that State.