Definitions
The Company: Ironstone Technology Pty Ltd Trading as NetSense Computers (hereinafter referred to as The Company).
Contract: The agreement between The Company and the customer for supply of goods and services as defined in the Proposal, Quotation, Estimate and/or Invoice, and including these Terms and Conditions.
Third-Party Products: Products not developed by The Company.
Interpretation
The contract will be interpreted according to the laws of New South Wales and Australia. If any portions of it become illegal through any process, they will be deleted without negating the remainder.
Basis and Validity of Price
Prices as shown include GST, unless otherwise specified.
Prices for hardware, third-party software and third-party services are valid if accepted within 7 days of the date shown, and subject to confirmation thereafter.
Prices for services and NetSense Computers-developed Products are valid if accepted within 30 days from the date shown, and subject to confirmation thereafter.
Reasonable Expectations
Prices are based on reasonable expectations of property configuration based on preliminary site inspections, and the assumption of professional maintenance. Should these expectations prove incorrect, NetSense Computers reserves the right to impose additional costs (after consultation). Specifically, adequate power must be provided in all areas where it is proposed to install equipment.
Acceptance of Contract
The contract will be considered to have been accepted on:
- the receipt by the Company of an official Purchase Order or Company Letter
- an oral acceptance, confirmed in writing by the Company.
- an email or verbal instruction to proceed
- payment by the customer of a deposit invoice
Such acceptance will constitute acceptance of all provisions of the contract unless specifically excluded.
Acceptance of a Contract by the Customer does not constitute a commitment by the Company to supply as ordered.
Terms of Payment
Payment is due on presentation of invoice, or as otherwise defined in writing. Invoices are presented as follows:
- 50% Deposit with order.
- Remainder on commencement of installation.
- Invoices for site surveys are presented separately, and due whether or not the project subsequently proceeds.
- Any alternative arrangements must be approved in writing by NetSense Computers Staff prior to commencement of contract.
Verification of Completion
On completion of commissioning, Company personnel will conduct testing to verify completion. The Customer will ensure authorised personnel are available to confirm completion of project.
Should no authorised personnel be present, the verification of completion will be signified by sign-off of Company personnel and will be acceptable to the Customer.
Uncontrollable External Services
Where any part of the Contract relies on provision of external services over which the Company cannot be expected to exercise control (e.g., other suppliers to or contractors of the Customer), the Company will not be held liable for the quality or timeliness of such work, or for its correction. Where the Company is required to incur costs in the correction of such services, additional charges may apply.
Cabling
Quoted cabling costs are dependent on being able to access the site at a satisfactory schedule. Should site access delay work, additional charges may apply.
Should unusual or unforeseeable conditions be found in the execution of cabling work, The Company reserves the right to revise the charges.
Additional Work
Work considered by the Company to be outside the scope of work estimated may incur additional costs. Such additional cost will be agreed as described in Variation of Contract (below).
Variation of Contract
The Contract may be varied by agreement between the Company and the Customer. Consequent changes in the Contract fee will be agreed in writing, or be charged at the Company's normal hourly rate.
Ownership of Goods Supplied
The ownership of all hardware and software supplied under the Contract, and the rights to all materials prepared under the Contract, will remain with the Company until all invoices are paid at its conclusion.
Non-payment of Invoices
A monthly fee of $10 will accrue to any balances greater than 30 days. The Company reserves the right to suspend or terminate work where invoices have not been paid. Such termination may include Technical Support.
Where the Company has supplied goods and services for which it has not been paid, but which are in use by the Customer, the Company reserves the right to disable such goods and services until paid. A re-enabling charge may apply.
If there is total default of payment, the Customer will surrender all hardware and software and all materials developed or made available by the Company to the Customer, whether in written or digital form or otherwise. The Company or its nominee will be permitted to ensure that all copies have been so surrendered. Such surrendering will not preclude the Company from legal action to recover Contract fees.
Termination of Contract
The Company and Customer may mutually terminate the Contract, subject to payment of all outstanding fees and expenses, including payment for partially completed work. The Customer may unilaterally terminate the Contract by written notice and payment of all outstanding fees and expenses, including payment for partially completed work, plus 50% of the fees remaining due within the Term of the Contract.
Personnel
The Company will make any required selection of staff or subcontractors allocated to any or all of the Contract.
Intellectual Property
The Intellectual Property and copyright for all materials provided by the Company remains with the Company unless specifically included in the Contract.
Confidentiality
The Company undertakes to divulge only such Customer information and documentation as is agreed, and only to those persons and organisations agreed. The Customer undertakes to divulge only such Company information and documentation as is agreed, and only to those persons and organisations agreed. All such agreements will be in writing.
Specifically, the Company will not use the Customer as referee without prior agreement.
Liability
Under no circumstances and under no legal theory, tort, contract, or otherwise, will the Company, its Suppliers or Resellers be liable to the Customer or any other person for any indirect, special, incidental, or consequential damages of any character including, without limitation, damages for loss of goodwill, work cessation, computer malfunction, or any and all other commercial damages or losses.
In no event will the Company, its Suppliers or Resellers be liable for any damages in excess of the Company's list price for the Products, even if the Company, its Suppliers or Resellers shall have been informed of the possibility of such damages, or for any claim by any other party. This limitation of liability will not apply to liability for death or personal injury to the extent applicable law prohibits such limitation.
Product Warranty
Any deficiencies in functionality of Company products will be corrected at no charge for 12 months from the date of purchase. Some corrections may be provided without prior notification where other users have reported the deficiency. Correction of deficiencies is by remote access (where port forwarding is provided) or by return to base. On-site correction may incur a cost.
Disclaimer of Warranty
The Software or Firmware included in the Company's products is provided on an "AS IS" basis, without warranty of any kind, including without limitation the warranties of merchantability, fitness for a particular purpose and non-infringement. The entire risk as to the quality and performance of the Software is borne by the Customer. It is the responsibility of the Customer to determine that the Software sufficiently meets its requirements. Should the Software prove defective, the Customer assumes the entire cost of any service and repair. This disclaimer of warranty constitutes an essential part of the agreement.
Disputes
If any unresolved disputes arise as to the interpretation or execution of the contract, the dispute will be referred to an arbitrator acceptable to both parties. The arbitrator will be determined at the time of the dispute, or where such an acceptable arbitrator cannot be found, the arbitrator will be the Local Court.
Non-Waiver
Failure of the Company to enforce any right within this contract will not constitute a waiver of such right or of any other right, and will not prohibit the exercise of the same right at a future date.
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