TERMS AND CONDITIONS FOR IT SERVICES
“Agreed Performance Criteria” means performance criteria for each Service specified overleaf.
“Business Day” means any day other than a Saturday, Sunday bank or public holiday in Sydney.
“Customer” means the Customer named overleaf.
“Customer’s Computer Equipment” means the computer equipment owned or leased by the Customer on which Zeno IT provides the Services.
“Confidential Information” means any proprietary information or material belonging to the Customer or Zeno IT including, without limitation, all data and information relating to the Customer and Zeno IT and their respective corporations, facilities, personnel, assets, products, sales and transactions whether or not such information is provided to a party to this the Terms before or after the date of this the Terms.
“Fees” means the fees specified overleaf.
“GST” means a goods and services tax, consumption tax, value added tax, retail turnover tax or tax of a similar nature.
“Input Tax” means an amount equal to the amount of GST paid or payable for the supply of anything acquired.
“Intellectual Property Rights” means all rights, whether registerable, registered or unregistered in any patent, trademark, trade name, business name, company name, copyright, registered design or other design right or circuit layout right or any applications for or rights to obtain or require, any such rights.
“Primary Payment” means any payment made by the Customer to Zeno IT of any fees or other amount payable by the Customer to Zeno IT in accordance with these Terms.
“Services” means services provided by Zeno IT to the Customer specified overleaf pursuant to these Terms.
“Tax Invoice” means an invoice in the format required by the law and which also shows the amount of the GST payable by Zeno IT in respect of the relevant Primary Payment.
Zeno IT Pty Ltd (ACN 094 897 211) (“Zeno IT”) agrees to supply the Services to the Customer (named overleaf) in accordance with these standard terms and conditions (“the Terms”).
Zeno IT’s payment terms are strictly 14 days from the date of the Zeno IT invoice issued to the Customer.
Zeno IT will invoice the Customer for Services when the Services are delivered to the Customer by Zeno IT.
If Zeno IT is liable by law for any GST on any Primary Payment, the Customer must pay to Zeno IT the amount of any GST.
The Customer must pay to Zeno IT the amount of any GST that the Customer is required to pay under these Terms:
a) at the same time; and
b) in the same manner
as the Customer is required to pay for the Primary Payment to which the amount in respect of GST relates.
Zeno IT must issue to the Customer a tax invoice in accordance with the requirements of the law relating to GST.
If Zeno IT refunds to the Customer any amount under this the Terms, Zeno IT must also refund to the Customer any amount in respect of any GST that the Customer paid in respect of that amount.
3.7 Any amount not paid on the due date will carry interest from that date until payment is made in full. Interest will be calculated at the rate being 2% above the overdraft rate charged on overdraft accounts over $100 000 by the Commonwealth Bank of Australia.
4.1 Zeno IT warrants that:
a) It shall perform the Services in an efficient and professional manner and that it will observe standards generally observed in the industry for similar services;
b) The Customer acknowledges that Zeno IT does not warrant that the Customer’s Computer Equipment can be rendered error free.
4.2 Zeno IT warrants that except where the Customer has modified the Customer ‘s Computer Equipment:
a) Within twenty-one (21) Business Days after Zeno IT provides any Services under the Terms to the Customer, if the Customer notifies Zeno IT in writing of the fact that the Customer ‘s Computer Equipment is not performing substantially in accordance with the Agreed Performance Criteria for the Services;
b) Zeno IT shall, at its own expense, commence to examine the Customer ‘s Computer Equipment within three (3) Business Days and as soon as possible thereafter rectify the defect in accordance with the Agreed Performance Criteria.
4.3 Zeno IT shall not be responsible for:
a) Any problems caused by virus or software in-compatibility.
b) Any consequential or indirect loss and damage.
c) Causes arising from or out of accidental damage to or misuse of the Customer’s Computer Equipment, fire, lightning, explosion, malicious damage, storm, water damage, aircraft, impact, burglary and/or theft.
d) Loss or damage relating to or arising out of any defect in the Customer’s Computer Equipment which was known to the Customer at the date of the Terms.
e) Loss or damage arising out of or relating to reformatting of the disk in any Customer’s Computer Equipment.
f) Any defect caused by abuse, improper installation or operation of an authorized modification, loss of parts, tampering or attempted repair by a person other than Zeno IT of the Customer’s Computer Equipment.
g) Loss or damage arising from failure due to fair wear and tear to the Customer’s Computer Equipment.
h) Loss or damage arising from or relating to any loss of data from the Customer’s Computer Equipment directly or indirectly caused by software, humidity, or other items used by the Customer with the Customer’s Computer Equipment.
i) Loss or damage relating to or arising from any damage to the Customer’s Computer Equipment resulting from lightning, voltage spikes or fluctuation in the power supply.
5.1 Each of the parties acknowledge that the other party will disclose Confidential Information relating to its Business, and the Services or such other information which may otherwise become to the other party to these Terms and Conditions, which is and will always remain the exclusive property of the Owner of that Confidential Information.
5.2 Each party will regard its own and the other party’s Confidential Information as secret and will not, without the prior written consent of the Owner of the Confidential Information (“the Owner”) or unless required to by law, disclose or allow the disclosure of any Confidential Information to any person except its authorised representatives and employees who have need of the Confidential Information for the purposes of assisting in the performance of its obligations or exercising any of its rights pursuant to the Terms.
5.3 To ensure the obligations of confidentiality set out in this clause are complied with each party agrees as follows:
a) Neither to use nor circulate the Confidential Information within its organisation or among its affiliates or authorised representatives except to the extent necessary to perform its obligations or exercise its rights pursuant to the Terms.
b) Not to copy the Confidential Information or in part except as permitted pursuant to the Terms.
c) Not to alter or remove any proprietary rights or copyright notice or other identification which indicates an Ownership interest in any part of the Confidential Information.
d) To notify the Owner promptly in writing of the existence in writing of any circumstances surrounding any authorised knowledge, possession or use of the Confidential Information or any part thereof by any person.
e) To take any actions deemed necessary or desirable to ensure continued confidentiality and protection of the Confidential Information and to prevent access thereto or use thereof by any unauthorised person.
f) To establish specific procedures designed to meet its obligations pursuant to this clause, including but not limited to the execution of such non disclosure agreements by its the Termsors or other authorised representatives who must have access to the Confidential Information as the Owner may reasonably require.
g) To return the Confidential Information promptly to the Owner or to provide to the Owner satisfactory evidence as to the destruction of all documents, media and other property containing any of the Confidential Information belonging to the Owner upon the request of the Owner.
6 Intellectual Property
6.1 Zeno IT warrants that the Services do not infringe the Intellectual Property Rights of any person.
6.2 The Customer acknowledges that unless otherwise agreed in writing all Intellectual Property Rights arising from the Services provided by Zeno IT (including any Intellectual Product prior to new software written by and on behalf of Zeno IT, any documents, discoveries, inventions, patents or designs) are and will remain the property of Zeno IT.
6.3 Zeno IT will license any software it develops for the Customer to the Customer under a separate Licence Agreement on terms and conditions agreed between Zeno IT and the Customer in writing.
7.1 If a party (“the Defaulting Party”) breaches any of the provisions of the Terms (“an event of default”), the other party (“the Innocent Party”) will be entitled to immediately:
a) Suspend the performance of its obligations under this the Terms until the breach is remedied by the Defaulting Party to the reasonable satisfaction of Innocent Party; and
b) Terminate this the Terms in the event that the Defaulting Party remains in breach of any such provision after receiving not less than 21 days notice in writing from the Innocent Party identifying the breach and requesting its remedy.
7.2 A party may terminate this the Terms immediately
a) the other Party enters into any arrangement between itself and its or any class of its creditors;
b) the other Party ceases to be able to pay its debts as they become due;
c) the other Party ceases to carry on business;
d) a mortgagee enters into possession or disposes of the whole or any part of the other Party’s assets or business;
e) the other Party enters into liquidation (whether provisional or final, or voluntary or pursuant to a court order) or any form of insolvency administration; or
f) a receiver, a receiver and manager, a trustee in bankruptcy, an administrator, a liquidator, a provisional liquidator or other like person is appointed to the whole or any part of the other Party’s assets or business.
7.3 Termination of the Terms (for whatever cause) will not affect any right or cause of action which has accrued to a party at or prior to the date of termination.
8 Limitation of Liability
8.1 Zeno IT will not be liable to the Customer for any indirect or consequential losses or damages for loss of profits, revenue, data or use arising out of or in relation to the supply of Products and/or Services, even if Zeno IT knew or should have known of the possibility of such loss or damage and whether damages are claimed in the Terms, tort (including negligence) or statute.
8.2 Zeno IT’s aggregate liability for any breach of the Terms (other than for personal injury, death or damage to tangible property) will be limited to the value of the goods or services which are the subject of the breach.
Any variation to the Terms agreed by the parties must be in writing and signed by both parties.
10.1 All notices must be in writing and sent by mail, hand delivery or transmitted by facsimile to the address or facsimile number of the receiving party.
10.2 No leniency, indulgence or extension of time granted by Zeno IT to the Customer will prejudice any of Zeno IT’s rights in any way or constitute a waiver of any of Zeno IT’s rights.
10.3 If any of the Terms are for any reason declared to be or become unenforceable, invalid or illegal, the remaining Terms will remain in full force and effect.
10.4 The Terms are governed by the laws of New South Wales and the parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales.