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TERMS AND CONDITIONS FOR SUPPLY OF SERVICES
1 Parties
(a) The Service Provider will, subject to these terms and
conditions, supply the Services (as described in the schedule)
to the Customer during the term of this agreement, and in
accordance with these terms and conditions as amended from
time to time by the Service Provider.
2 Quotations and orders
(a) Any quotation given by the Service Provider to the Customer is
not an offer or obligation to provide service but an invitation to
treat only. The Service Provider reserves the right to accept or
reject any order it receives.
(b) A quotation is open for acceptance within the period stated in
the quotation or within 30 days if no period is stated.
(c) Until the Service Provider accepts in writing an order submitted
by the Customer, the Service Provider is not obliged to supply
the Services so ordered to the Customer. The Service Provider
reserves the right to refuse any order based on a quotation
within 7 days after receiving the order.
(d) If the Customer defaults under these terms and conditions, the
Service Provider may, without prejudice to the Service
Provider’s rights under Clause 9, cancel, suspend or vary the
terms and conditions of any incomplete order that has been
accepted by the Service Provider without notice to the
Customer and without being liable to the Customer.
3 Term of agreement
(a) This agreement commences on the date specified in the
schedule, and subject to earlier termination in accordance with
Clause 8 or 9, remains in force:
(i) where a fixed term is specified in the schedule, until the
termination date specified in the schedule;
(ii) where a minimum term is specified in the schedule, for the
duration of such minimum term and after such time until it is
terminated in accordance with Clause 3(a)(iii);
(iii) where neither a fixed term nor a minimum term is specified
in the schedule, until it is terminated by either the Service
Provider or the Customer giving to the other one month’s
written notice.
4 Charges
(a) The charges (“Charges”) for the Services are set out in the
schedule.
(b) The Service Provider may revise the Charges from time to time
by giving written notice of the revised Charges to the Customer.
Such revised Charges will be payable by the Customer for the
Services provided after the period commencing on the
expiration of 30 days following the date of the written notice to
the Customer.
(c) All charges include the Goods and Services Tax (GST).
5 Payment
(a) All invoices are payable 7 days from the date of invoice.
(b) Time is of the essence for all the Customer’s obligations.
(c) The Service Provider reserves the right to charge interest to
the Customer on overdue accounts at the interest rate
specified in the schedule.
(d) The customer agrees to pay the Service Provider any expenses
(including legal costs) incurred in collecting outstanding debts
due by the Customer to the Service Provider.
6 Limitation of liability
(a) To the maximum extent permitted by law, neither the Service
Provider, nor its employees and agents, nor anyone else
involved in supplying the Services is liable for any direct,
indirect, incidental, special or consequential loss or damage
arising out of the supply or use of the Services, failure to
supply, inability to use the Services, or out of any breach of
contract or warranty including breach of an essential term.
(b) Any condition or warranty implied in this agreement by
legislation which avoids or prohibits the terms of an agreement
from excluding or modifying the application or exercise of, or
liability under such condition or warranty is deemed to be
included in this agreement subject to Clause 6 (c).
(c) The Service Provider’s liability for any breach of a condition or
warranty implied in this agreement pursuant to Clause 6 (b) is
limited, in the absolute discretion of the Service Provider, to
one or other of the following:
(i) supplying the Services again; or
(ii) paying the cost of having the Services supplied again;
(d) and does not extend to consequential loss or damage.
7 Warranties
(a) The Service Provider gives the warranties (if any) set out in the
schedule regarding the supply of the Services.
(b) For the purpose of making any claim for breach of warranty
under this clause, the Customer must:
(i) immediately upon becoming aware of circumstances giving
rise to a claim under this clause, notify the Service Provider
in writing setting out full particulars of the claim;
(ii) allow the Service Provider, its employees and agents full and
free access to the place where the Services which are the
subject of the claim have been supplied for the purpose of
conducting such inspection and tests as the Service
Provider may in its absolute discretion consider necessary
to determine whether the claim is justified or not.
8 Force Majeure
(a) Neither party is liable for any delay or failure to perform its
obligations other than the Customer’s obligation to pay the
Charges pursuant to the terms of this agreement, if such delay
or failure is due to Force Majeure.
(b) If a delay or failure by a party to perform its obligations due to
Force Majeure exceeds 30 days, either party may immediately
terminate this agreement by written notice to the other.
(c) If this agreement is terminated pursuant to Clause 8 (b), the
Service Provider will refund any fees previously paid by the
Customer pursuant to this agreement for a Service or
Services which were not supplied by the Service Provider to
the Customer.
(d) For the purpose of this clause “Force Majeure” means a
circumstance beyond the reasonable control of the parties
which results in a party being unable to observe or perform on
time an obligation under this agreement. Such circumstances
include, without limitation, acts of God, acts of government,
war or other hostility, national or international disaster, fire,
explosion, power failure, equipment failure, strike or lockout,
inability to obtain necessary supplies and any other Force
Majeure occurrences.
9 Termination
(a) This agreement may be terminated at the option of either the
Service Provider or the Customer without prior notice if:
(i) either party commits a material breach of its obligations
under this agreement and fails or is unable to remedy such
breach within 14 days after receiving written notice from
the other party requiring the breach to be remedied; or
(ii) a receiver, receiver and manager, manager, official
manager, administrator, provisional liquidator, liquidator or
trustee in bankruptcy is appointed to all or any substantial
part of the assets and undertakings of the Service Provider
or the Customer.
(b) The Service Provider will cease to provide the Services to the
Customer upon termination of the agreement by either party.
(c) Termination of the agreement in accordance with this clause
will be without prejudice to any accrued rights of either the
Service Provider or the Customer under this agreement.
10 Waiver
(a) No waiver by the Service Provider of any breach of these
terms and conditions operates as a waiver of any other breach,
and the doing and/or omission of any act, matter or thing
whatsoever by the Service Provider, its employees or agents
(which but for this clause ought or might amount to a waiver
of the Service Provider’s rights in respect of any such breach
or default) does not operate as a waiver in any way of the
Service Provider’s rights and powers in respect of such
breach or default.
11 Notices
(a) Any notice required under this agreement must be in writing
and given by post, facsimile or hand to the Service Provider or
the Customer at the address set out in the schedule or at such
other address or facsimile number as is notified in writing by
one party to the other.
12 Governing law
(a) This contract is governed by the laws of the State specified in
the schedule notwithstanding the place in which the Service
is supplied. The Customer and the Service Provider irrevocably
submit to the exclusive jurisdiction of the Courts of that
State.
13 Whole agreement
(a) These terms and conditions and any warranties implied by law
which are not capable of being excluded or modified embody
the whole agreement between the parties and, subject to
the express terms contained in any written order and written
acceptance thereof (which will only apply to that particular
order), all previous negotiations, representations, warranties,
arrangements and statements (if any), weather expressed or
implied, including any collateral agreement or warranty,
regarding the subject matter or the intentions of either of the
parties are merged in these terms and conditions and
otherwise are hereby excluded and cancelled. The customer
acknowledges that It has not been induced to enter into this
agreement by any representation, advice or information given
or made by or on behalf of the Service Provider.
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