South East IT Trading Terms and Conditions

The following trading terms and conditions (“Trading Terms”) shall apply to all arrangements that are made between our Company and the above-named Customer and shall form part of and be read with the accompanying New Customer Engagement Letter (“Engagement Letter”):

We will only commence work for you after:

1. Commencement of work

We will only commence work for you after:

•  you have signed the accompanying Engagement Letter and you have received a notification email from our team confirming that it has been received by us and
• Where requested, an initial deposit has been paid by you.

2. Responsibilities

We will ensure that all products/services provided by us are provided in accordance with agreed timeframe and to a professional standard and as efficiently as possible.

You as our client are required to arrange for reasonable access by us to all reasonably necessary individuals and documents and shall be responsible for both the completeness and accuracy of the information supplied to us.

You are required to provide accurate access to the relevant IT assets for our team to complete the work.

Due to the complexity of our services, there are times when services may not be carried out and completed in the allotted time due to external, uncontrollable influences. This can happen whenever more than one software is involved. Where possible this circumstance will be communicated prior to you engaging our Company for any services or before we commence work on your behalf.

3. Period of Agreement

Our engagement will commence on the date of the execution of this Engagement Letter and shall continue until terminated in accordance with the provisions contained in these Trading Terms.

4. Termination

a)  Either party may terminate the arrangements set out under these Trading Terms by not less than 30 days’ notice to the other or immediately by notice to the other party if the other party is subject to an Insolvency Event.

b)  Upon termination all amounts actually or contingently owing by the Customer to the Company are immediately due and payable and the Customer shall immediately on demand deliver up to the Company all Goods purchased from the Company for which it has not paid.

c) Notwithstanding the above provisions, as software subscriptions have a minimum term of 12 months, even if the billing cycle is monthly, any termination will require payment of the full 12 month period balance that remain owing in respect to any software subscription made by our Company on your behalf.

5. Insolvency Event

If the Customer:

a)  becomes insolvent or bankrupt;

b)  is the subject of an application to wind up, or if a Liquidator, Provisional Liquidator, Receiver, a Receiver and Manager, or an Administrator is appointed with respect to 
the Customer or any of the Customer’s assets;

c)  makes an arrangement or composition with the creditors of the Customer or attempts to make such an arrangement or composition;

d)  is unable to pay their debts as they fall due;

e)  fails to comply with a statutory demand made under the Corporations Act 2001 (Cth) for payment of a debt;

f)  ceases business;

g)  has execution levied against any of their assets; or

h)  has a mortgagee Liquidator, Provisional Liquidator, Receiver, Receiver and manager or Administrator enter or seek to enter into possession of any of its assets,

 then any monies actually or contingently owing to the Company at that time under any contract formed on these Trading Terms (including any amounts which would not otherwise be payable until a later date or dates) are immediately due and payable (without the need for any demand by the Company).

6. Force Majeure

a) The Company may suspend any or all of its obligations to the Customer that are affected by any act of God, fire, flood, storm, earthquake, strike, lockout, trade dispute, breakdown, theft, crime, delays in shipping, or the inability of the Company to procure necessary materials or articles preventing or retarding performance of the contract or any other cause not reasonably within the control of the Company (each a Force Majeure Event) and the Company is not responsible for any delay, default, loss or damage due to any Force Majeure Event.

b) When a Force Majeure Event ceases to affect the performance of any of the Company’s obligations, the Company must lift any suspension of those obligations that it makes under paragraph a).

7.  Ownership

All goods, products, hardware and equipment whatsoever (“the Goods”) supplied by the Company to the Customer shall remain the property of the Company until paid for in full. Until such time as title to the Goods passes to the Company, the Customer will hold them on trust and as bailee for the Company.

8. PPSA Arrangements

The Customer acknowledges and agrees that:

• These Trading Terms are a security agreement for the purposes of the Personal Property Securities Act 2009 (“PPSA”);
• The Company has a security interest in any Goods it supplies to the Customer and in any present or after acquired property that represents Proceeds of the Goods and/or in which the Goods have been attached or incorporated, including co-mingled goods; and
• The security interest secures all amounts owing by the Customer to the Company in connection with the relevant Goods and/or services supplied under these Trading Terms.
• The Company may at any time register a financing statement (or, if relevant, a financing change statement) on the Register in relation to its security interest in the Goods.
• If the Customer fails to pay an amount owing when due or if it fails to perform any of its obligations in connection with the supply of Goods, the Customer agrees that the Company shall be entitled to exercise its enforcement rights and remedies as a secured party in accordance with the provisions of the PPSA including (without limitation) the rights contained in section 123 of the PPSA to seize the Goods by any method permitted by law. For these purposes, and without limiting any other rights of the Company under the PPSA as a secured party, the Customer further agrees:

i)  upon demand made by the Company, to immediately deliver up the Goods to the Company;

ii) to irrevocably authorise the Company to enter any premises occupied by the Customer in order to search for, retrieve and remove those Goods to which the Company has title, and which are the subject of a security interest as provided for by these Trading Terms;

iii) to do all things necessary to immediately facilitate the Company’s access to the Customer’s premises and to assist the Company to locate and identify the Goods;

iv) to authorize the Company to resell the Goods seized and apply the proceeds of sale in payment of any monies that the Customer owes it;

9. Confidentiality

(a) In conducting this engagement, information acquired by us during the engagement is subject to strict confidentiality requirements. That information will not be disclosed by us to other parties except as required or allowed for by law, or with your express consent.

(b) All of our employees are required to sign confidentiality agreements in regards to client information and this information is stored in a secure system by the Company.

(c) Any proposal and/or financial information provided to the Customer by the Company shall be considered and remain confidential to either party. This includes sharing information with other businesses or the general public.

(d) A Non-disclosure Agreement (NDA) is available upon request.

10. Estimated Pricing, Quotes and Charges

(a) Unless otherwise stated in writing, any estimates which the Company provides to you of its anticipated fees, disbursements and charges for any of its products or services are only indicative of the amounts you can expect to be charged. Estimates are not quotes and are not binding on the Company.

(b) Any quotes provided to you by the Company are valid for 14 days only.

(c) Any images provided to you in a quote or proposal from the Company are indicative only.

(d) The following table sets out the Company’s standard charges for the items herein specified:

(e)    Any work provided to the Customer by the Company at the Customer’s request shall be billable at the rate prescribed under these Trading Terms or as otherwise agreed by the parties prior to the work being undertaken.

• The Company shall bill all work undertaken for the Customer in 15-minute blocks at the rate specified in these Trading Terms or at such other rate as may be advised to the Customer from time to time.
• The Company reserves the right to recover from the Customer the cost of labour for which it becomes liable that are outside its standard IT Partner Program (Unlimited Support) agreements that cover specified number of users, sites and networks provided always that the Company has given the Customer prior notice of such costs.

11. Terms of Payment

(a) The Company’s terms of payment are strictly within 14 days from the invoice date.

(b) An itemised account of all charges, third party costs, hardware costs, and travel costs will be provided on the invoice.

(c) Accounts overdue beyond the 14^th day after the date of the invoice will result in an increase in the invoiced amount of $50. This charge shall also apply to any invoice that has not been paid in full.

12. Credit Card Payments

a) If the Customer pays its outstanding account by a credit card, at the time the transaction is processed the Company reserves the right to charge the Customer a surcharge of 1.75% of the invoice price of the Goods.

b) The Company may add any amount payable by the Customer under paragraph 11(a) to the sale price of the Goods or services supplied or to be supplied by the Company to the Customer.

13. Subscriptions

(a) Monthly subscriptions and agreements entered into by the Company for the Customer shall be billed within the month they occur and shall be paid within 14 days of the date of billing.

(b) in the event that the Customer fails after a demand to do so to pay for the subscription or any other account paid for by the Company on the Customer’s behalf on the due date for payment, the Company reserves the right to suspend or cancel the subscription or the account without notice to the Customer.

(c) In the event that the Company exercises its rights under clause 12 (b) above, the Company shall not be liable to the Customer for any loss of business, loss of profits or any other damages (whether direct or indirect) that the Customer or any client of the Customer may thereby suffer.

14. Default Arrangements & Enforcement Expenses:

If the Customer fails to pay any amounts when due, then in addition to any other amount payable under these Trading Terms, the Customer must pay to the Company upon demand any costs incurred in connection with enforcement of any of the Company’s rights in connection with the supply of goods on these Trading Terms including without limitation:

a) Any legal costs (on a solicitor and own client basis) incurred by the Company.

b) Any mercantile agents’ fees incurred by the Company in recovering or attempting to recover any amount payable by the Customer under these Trading Terms; and

c) Any dishonour or bank fees incurred by the Company in connection with payments or remittances that are made, or which should have been made by the Customer.

15. Exclusions of Warranties and Limitations of Liability:

a) The Company acknowledges that the Australian Consumer Law and similar legislation provides:

i) Certain rights for Consumers that cannot be excluded; and

ii)  in relation to the supply of Goods and services, that in some circumstances the Customer may be a Consumer.

b) Subject to paragraph 14 (c), the Company excludes any and all conditions, warranties, terms and consumer guarantees implied by statute, general law or custom (including without limitation the Australian Consumer Law) applicable to any supply of Goods and services.

c) The Consumer Guarantees apply to any supply of Goods and services where the Customer is a Consumer, and the liability of the Company in connection with the Consumer Guarantees is not limited except as stated in paragraph (d).

d) If the Customer is a Consumer in relation to the supply of Goods and services, and those Goods and services         are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the liability of the Company in connection with the Consumer Guarantees is limited to one of the following (as selected by the Company):

i) The replacement of the Goods or the supply of equivalent Goods and services.

ii) The repair of the Goods;

iii) The payment of the cost of replacing the Goods or of acquiring Goods equivalent to the Goods; or

iv) The payment of the cost of having the Goods repaired, except where it is not Fair and Reasonable to limit liability in this way.

e) The Company:

i) Excludes any liability in contract, tort (including negligence) or otherwise, in connection with any supply of Goods and services, for any indirect damages or losses, or for any special, punitive or exemplary damages;

ii) Limits its liability in contract, tort (including negligence) or otherwise, in connection with any supply of Goods and services, to the price payable by the Customer for the Goods and services; and

iii) Excludes any liability for or in connection a claim that the Goods are not fit for a particular purpose or function, except where the Company has a liability as contemplated by paragraph (a) or (d).

f) In so far as permissible by law and except as provided under this paragraph , the Customer will indemnify the Company from or against any physical, direct, indirect and consequential damage, loss or costs (including legal costs on a solicitor- client basis) sustained by the Company or any other person arising from the supply of the Goods or services under these Trading Terms and will indemnify and save harmless the Company from any claim or proceeding against it to the extent caused or contributed to by the Customer in respect to any Goods supplied under these Trading Terms after risk or title has passed to the Customer.

g) The Customer agrees to notify the Company in writing of any change in ownership or shareholding of the Customer within seven (7) days from the date such change or immediately if an Insolvency Event as specified in clause 5 hereof occurs and the Customer shall indemnify the Company against any loss or damage incurred by it as a result of its failure to notify the Company of such change or Insolvency Event.

16. Certificate

A certificate of the Customer’s liability under any contract or contracts formed on these Trading Terms, signed by an officer of the Company, is prima facie evidence of the Customer’s liability to the Company under these Trading Terms as at the date of the certificate.

17. Time

Time is of the essence for payment of any monies owed by the Customer to the Company pursuant to the provisions specified in these Trading Terms.

18. Jurisdiction

a)  These Trading Terms are governed by the laws of the State of Victoria.

b)  The parties submit to the non-exclusive jurisdiction of the Courts of Victoria in relation to any dispute or claim arising under or in connection with the supply of Goods 
or otherwise concerning these Trading Terms.

19. Notices

a)  Any notice required by or contemplated by these Trading Terms must be in writing in the English language.

b)  Any notice by one party to the other shall be sufficiently served if served:

i)  personally;

ii)  by e-mail to the address previously notified to the other party, if the e-mail is acknowledged by the recipient; or

iii)  by pre-paid post to the party to be served at the registered office of the party or to the address previously notified to the other party, (in which case it is taken to be received 3 days after the date of posting).

20. Miscellaneous

a). The invalidity or unenforceability of any provisions of these Trading Terms shall not affect the validity or enforceability of the remaining provisions.

b) No delay or failure to act is a waiver of any of the provisions herein contained.  No waiver is effective unless in writing.  A waiver of a breach is not a waiver of any other breach. No waiver by the Company of any one or more of the defaults of the Customer of any provision of these terms and conditions shall operate or be construed as a waiver of any future default whether of a like or a different kind.

 c) These Trading Terms shall bind the Company and the Customer and their respective successors and permitted assigns.

d) The Customer may not assign any of its rights or obligations under these Trading Terms without the prior written consent of the Company, such consent shall not be unreasonably withheld.

e) The Company may sub- contract the supply or delivery of Goods and services.