H2 Technology Pty Ltd (ABN – 47 134 445 391)
Conditions and Terms
(effective 1 August 2011)
The contract governs the supply of any goods (“Goods”) and services including onsite, remote, phone and email support (“Services”) by H2 Technology Pty Ltd or any of its related bodies corporate as defined in the Corporations Act (“H2 Tech”) to you, or in the case of a corporation, the corporation and all of its directors, or in the case of a partnership, all of the partners (“the Customer”). Unless otherwise specifically agreed in writing by H2 Tech, all requests by the Customer with H2 Tech for supply of Goods or performance of Services will be on the following terms and conditions:
- Invoice price of Goods & Services
1.1 All prices are in Australian dollars.
1.2 For all non-yearly Support contracted Customers, Support Services for Customers between the hours of Monday to Friday 8:30am and 5:30pm will be charged as follows:
(a) Onsite Support – All onsite support Services for Customers located in the Sydney CBD are subject to a minimum 1 hour charge. Services are thereafter charged in 15 minute increments. All onsite support Services for Customers located outside the Sydney CBD are subject to a minimum 2 hour charge plus travel time (if applicable). Services are thereafter charged in 15 minute increments.
(b) Remote Support – All remote support Services are subject to a minimum 15 minute charge. Services are thereafter is charged in 15 minute increments.
(c) Phone Support – All phone support Services are subject to a minimum 15 minute charge. Services are thereafter charged in 15 minute increments.
(d) Email Support – All email support Services are charged at a minimum 15 minute charge. Services are thereafter charged in 15 minute increments.
1.3 For all fixed term Yearly Support Customers, Support Service charges, are contained in the Customers Yearly Support Contract.
1.4 H2 Tech reserves the right to charge travel time to any Customer that requires onsite support Services.
1.5 H2 Tech reserves the right to charge penalty rates of time and a half plus travel time for Services conducted outside of normal business hours, on weekends and public holidays.
1.6 Other than in respect to fixed term contract, H2 Tech reserves its rights to amend, alter or vary its rates or terms for payment in its sole discretion at any stage without notice to the Customer.
1.7 The invoice price for the Goods or Services is as per quotation. All prices quoted by H2 Tech include an additional amount on account of GST (as that term is used in a New Tax System (Goods and Services Tax) Act 1999 as may be amended from time to time).
18 H2 Tech will provide a tax invoice and its ABN on all invoice documentation. H2 Tech will do all things reasonably available to it to assist the Customer to claim, on a timely basis, any input tax credits (if any) the Customer may be entitled to claim for theacquisition of the Goods from or the provision of Services by H2 Tech.
1.9 The Customer acknowledges and agrees that it will be charged and pay a service fee equivalent to 2% of the invoice price or such lesser payment sum as applicable, for all payments made using a credit card.
1.10 The Customer will agree to pay all costs for any interstate or overseas travel that is required. This includes all airflights, taxis and tolls incurred getting to and from the Customer’s premises.
1.11 The Customer will agree to pay for accommodation if overnight accommodation is required.
- Reservation of Title
2.1 Ownership or title in the Goods remains with H2 Tech until full payment of the Invoice Price is made by the Customer.
2.2 Prior to payment of the full invoice price:
(a) the Customer takes custody of the Goods and retains them as fiduciary agent and bailee for H2 Tech;
(b) the Customer must allow an authorised representative of H2 Tech to enter upon the Customer’s premises to inspect the Goods at such reasonable time(s) as H2 Tech sees fit.
- Payment Terms
3.1 All annual contract Customers will pay a monthly fee in advance. Each casual Customer will be billed on a monthly basis. H2 Tech reserves the right to request payment in advance from any casual Customer. Each service pack Customer will be billed for a pre determined amount of hours. These hours will be paid for in advance.
3.2 H2 Tech’s usual term of payment requires payment net fourteen (14) days from the invoice date. Any additional time for payment will be at the sole discretion of H2 Tech.
3.3 If the Customer fails to pay any invoice within the terms for payment contained in such invoice then
(a) the date for payment of all other monies owing and outstanding to H2 Tech (irrespective of whether the due date for payment as per the invoice has passed) will accelerate and become immediately due and payable, and
(b) H2 Tech may immediately suspend further supply of Goods and Services, require payment in advance for all such Goods and Services, or terminate any contract.
3.4 If during the course of the Services performed by H2 Tech for the Customer, H2 Tech is reasonably required to perform additional work outside that required by the scope of works or quotation, H2 Tech reserves its rights to charge additional fees for such Services.
3.5 The Customer will pay immediately on demand
(a) interest on all overdue payments at the rate of 2% per month (or such other rate as H2 Tech may in its sole discretion specify in writing from time to time) from the due date for payment until the date that payment is actually made, and
(b) any and all costs of recovery incurred by H2 Tech (on a dollar for dollar full indemnity basis),
3.6 If the Customer becomes subject to a sequestration order, or in the case of a corporation has an insolvency practitioner appointed, all outstanding amounts owed by the Customer to H2 Tech become immediately due and payable.
- Software and backups
4.1 All software provided or installed is subject to the terms and conditions of any license agreement relating to that software. The Customer acknowledges its obligations to abide by such license agreements. The Customer acknowledges that H2 Tech does not warrant any entitlements to any software license under these Terms and Conditions. The Customer agrees that it bears the onus to ensure that all software provided for installation is properly licensed and bears all liability for any act, omission, penalty or damage arising from its failure to obtain or adhere to any such licence including indemnifying H2 Tech for any such penalty or charge.
4.2 All rights, title or interest in respect of the intellectual property rights in the software remain with H2 Tech or the licensor of the software at all times unless otherwise granted to the Customer by H2 Tech or the licensor (as applicable).
4.3 The Customer acknowledges that whilst H2 Technology provides Backup Monitoring services, H2 Technology does not guarantee that the data held on any backup tape and / or other device, contains data that can be restored from.
4.4 The Customer acknowledges that it is their responsibility to ensure that backup tapes and / or other devices are inserted daily and that these backup tapes and / or other devices are stored off site.
4.5 the Customer will indemnify H2 Tech from any and all claims, proceedings, judgements, prosecution, damages, losses, costs, expenses and liabilities made or recovered against H2 Tech as a result of loss of data or data unable to be recovered from the Customers backup tapes and / or other devices.
- Warranty as to quality and Limitation of Liability
5.1 Except where prohibited by law, this warranty over-rides all relevant Federal, State and Territory legislation. All liability is excluded where such liability is consequential or arises out of (or in respect of) the supply, re-supply, or use of the Goods or Services.
5.2 H2 Tech warrants that the Goods supplied will be of a merchantable quality. Any liability howsoever arising out of or in respect of the supply, re-supply or use of the Goods or Services is expressly excluded, including but not limited to loss of profits or consequential loss.
5.3 To the extent permitted by law, H2 Tech and Customer agree that H2 Tech will not be liable for Goods or Services or the Customer’s email or computer system generally not being available for use, or interruption to its business or inability to access data or for data or software which is lost, corrupted, deleted or altered. H2 Tech shall not be liable to the Customer for any incidental, indirect, special or consequential damages arising out of or in connection with the purchase, use or performance of Goods or Services.
5.4 Any service response times stated by H2 Tech in the service contracts are approximate only and H2 Tech shall not be liable for any direct or indirect loss or damage arising from its failure to meet such response times, howsoever occasioned.
5.5 This Warranty and any liability on the part of H2 Tech does not cover damage, fault, failure or malfunction due to external causes, including accident, abuse, misuse, problems with electrical power, servicing not undertaken by H2 Tech, usage and/or storage and/or installation not in accordance with instructions, failure to perform required preventive maintenance, normal wear and tear, act of God, fire, flood, war, act of violence or any similar occurrence or any unauthorised access to the Customer’s computer system or data.
5.6 Any attempt by any person other than H2 Tech personnel to adjust, repair or support the Goods or Services performed by H2 Tech will render any warranty void including in respect of problems caused by use of parts and components not supplied by H2 Tech or Services rendered by such personnel or its effect upon the Goods or Services performed by H2 Tech or the Customer’s computer system generally.
5.7 If the Customer complains that the Goods are not of merchantable quality or otherwise in respect of the Services performed by H2 Tech then provided the Customer makes a detailed written complaint to H2 Tech within 7 days of receipt of the Goods or performance of the Services the subject of the complaint, H2 Tech may, at its option, as full compensation for such loss (including any loss of profits and consequential loss caused by an act or omission – including negligent acts or omissions of H2 Tech or H2 Tech’s agents) but without admission of liability, either
(a) replace the whole or part of such Goods (but not the materials or containers that contains such Goods),
(b) confer a credit note, or
(c) provide additional services performed by H2 Tech at no additional charge.
(d) refund the amount paid by to the extent not exceeding the invoice price of the Goods or Services, or
(e) pay to the Customer some part of the invoice price.
5.8 The Customer acknowledges as a paramount term that H2 Tech is not, on any basis, required to pay or compensate the Customer in an amount exceeding the invoice price of the Goods or Services.
- Advice provided
6.1 Any advice, recommendations, information or technical assistance in relation to the Goods and Services (“Advices”) provided by H2 Tech (or its agents) in relation to the Goods and Services is given in good faith and is believed by H2 Tech to be appropriate, accurate and reliable. The Customer acknowledges that it has not relied upon such Advices and that the Customer has had adequate time to take and rely either on its own advices or alternative advice.
6.2 Should H2 Tech receive material and/or goods supplied by the Customer into which the Goods supplied by H2 Tech are to be contained or for any purpose relating to the use of the Goods, all such materials and/or goods are provided at the risk of the Customer.
6.3 H2 Tech’s costs structure is based upon the assumption that clean, quality components are supplied by the Customer. If during the course of works a quality problem arises due to components supplied by the Customer, H2 Tech reserves its rights to charge a surcharge to cure the quality problem and/or refuse to provide ongoing Services.
6.4 H2 Tech will take all reasonable care with all components or materials (including software and data) supplied to it by the Customer, however such items are not insured by H2 Tech and remain at the Customer’s risk at all times.
6.5 Notwithstanding any Advice provided to the Customer by H2 Tech, the Customer must independently of H2 Tech take all reasonable steps and other enquiries to satisfy itself that the Advice provided by H2 Tech is, for all purposes and under all conditions, suitable for the Customer’s requirement.
6.6 If the Customer fails to pay any invoice on the basis that;
(a) the Goods were not fit or of merchantable quality purpose,
(b) the Services were not completed adequately or at all; or
(c) the Goods or Services were not compatible with the computers or requirements of the customer;
then the Customer agrees that it will have no entitlement to make any claim against H2 Tech its servants or agents under these terms or conditions or otherwise unless and until full payment of all outstanding invoices and any costs has been paid on full.
- Default by Customer
Right to sell Goods if default
7.1 If the Customer defaults in any payment due to H2 Tech, or if the Customer or any Related Corporation (as defined in the Corporations Law) commits an insolvency event, H2 Tech may without notice and without prejudice to any of its rights and remedies under the terms, demand the immediate return of the Goods and enter upon the Customer’s premises to recover possession of and/or resell the Goods or any part of them or remove or delete any program installed by H2 Tech.
7.2 An insolvency event occurs upon the Customer committing any act of bankruptcy (if a natural person) or (being a Company) appointing an Administrator, or committing an act which entitles a third party to wind up, or appoint a Receiver, or Receiver and Manager to the Company
Repossession of Goods by H2 Tech
7.3 If the Goods are not returned to H2 Tech on demand, H2 Tech may retake possession of the Goods, any containers and other apparatus containing such Goods (notwithstanding that H2 Tech is not the owner of such apparatus) (the “Ancillaries”), any and all material bearing or embodying any patent, trademark, design, copyright, instructions, warnings and packaging (the “Intellectual Property”) relating to the Goods and/or the Ancillaries, and for the purpose of facilitating and authorising such possession and sale, the Customer
(a) confers on H2 Tech an irrevocable right to take possession of such Ancillaries and to sell such Ancillaries together with the Goods subject to any license or copyright;
(b) confers on H2 Tech an irrevocable licence in respect of all Intellectual Property to the extent permissible by law,
(c) irrevocably authorises H2 Tech, its employees and agents as the authorised agent of the Customer for the purpose of taking possession of and selling the Ancillaries containing the Goods and/or any Intellectual Property or packaging associated with such Ancillaries or the Goods without notice and without liability or legal process, to specifically enter upon or into such location under the control of the Customer or agent of the Customer and to break open any gate, door or fastening and remove the Goods and Ancillaries and any and all packaging bearing or containing the Intellectual Property from any location in which the Goods are located.
Sale or other disposal of goods upon expiry or termination
7.4 Unless the Goods and Services are paid for, H2 Tech may, after the expiration of 14 days from taking possession of such Goods reuse or offer the Goods, the Ancillaries and any packaging material bearing the Intellectual Property for resale on such terms and conditions or through persons dealing in Goods of similar description or in any other manner and upon such terms and conditions as H2 Tech and the Customer may agree or, failing agreement, then as H2 Tech in its sole discretion decides.
8.1 If H2 Tech has followed an instruction by the Customer relating to technology or installation of software of the Goods, the Customer will indemnify H2 Tech from any and all claims, proceedings, judgements, prosecution, damages, losses, costs, expenses and liabilities made or recovered against H2 Tech as a result of whether direct or indirect, any activity or undertaking by H2 Tech in accordance with those instructions involving an infringement of a patent, trade mark, registered or unregistered design, copyright, loss of data, virus transference or as a result of the Customer’s instructions.
8.2 The Customer will keep H2 Tech fully indemnified against all losses and expenses (including solicitor/client legal expenses) which H2 Tech may suffer or incur due to the failure by the Customer to observe its obligations under the contract, including losses and expenses arising from H2 Tech entering the Customer’s premises and repossessing the Goods as provided for in the terms and conditions.
- Confidential Information
9.1 If the Customer breaches any of these terms and conditions, including any misuse of H2 Tech’s proprietary or confidential information, H2 Tech reserves its rights to commence immediate legal proceedings without further notice to the Customer including urgent injunctive relief where appropriate.
9.2 All of the obligations concerning confidentiality created by these Terms and Conditions are continuing obligations of the Customer and are ongoing notwithstanding completion of services or termination of any relationship between the parties.
- Miscellaneous Provisions
10.1 The rights and obligations of the parties in respect of agreements, indemnities, covenants and warranties contained in this document
(a) are continuing agreements, covenants, indemnities and warranties and accordingly,
(b) are not merged or extinguished by the partial performance by a party of their obligations under this document, and will remain in full force and effect until the obligations of all parties under this document are discharged in full.
10.2 Each of the parties agree that they will execute and deliver such further documents at their own expense as they may reasonably be requested by any other party to properly and fully effect the purpose of this document.
10.3 If the Customer wishes to commence proceedings against H2 Tech (or file any cross claim in proceedings commenced by H2 Tech) in respect of the Terms and Conditions, the Goods or Services or any matter directly or indirectly arising out of the Terms and Conditions or the Goods and Services, then prior to the commencement of such proceedings or the filing of such cross claim, the Customer must as
(a) security for the legal costs of H2 Tech, and/or
(b) security for any award or judgment that may be awarded in favour of H2 Tech against the Customer
first pay into the relevant Court in New South Wales as security on a non admission basis that sum which is the higher of
(c) $20,000 (twenty thousand dollars), or
75% of the whole of any then unpaid invoices owing to H2 Tech (notwithstanding that such invoices may be disputed, or the subject of a set off or other claim by the Customer).
10.4 No waiver by any party of any default in the strict and literal performance of or compliance with any provision, condition or requirement herein shall be deemed to be:
(a) a waiver of strict and literal performance of and compliance with any other provisions, conditions, or requirement herein;
(b) a waiver of or in any other manner release any party from strict compliance with any provision, condition or requirement in the future.
10.5 This document
(a) is governed by the law of the State of New South Wales and each of the parties irrevocably submits to the nonexclusive jurisdiction of the State of New South Wales;
(b) may not be modified, amended, added to or otherwise varied except by a document in writing executed by all of the parties;’
(c) shall endure for the benefit of and be binding upon the parties hereto and their respective successors and assigns;
(d) may not be assigned by any party without the prior written consent of all of the parties; and
(e) constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes and extinguishes all prior agreements or deeds and understandings between the parties.
11.1 The Customer shall not be assign or otherwise transfer any Contracts of any of its rights and obligations hereunder whole or in part without the prior written consent of H2 Tech. Any such unauthorised assignment shall be deemed null and void.
11.2 If any provision of these Terms and Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and Conditions and the remainder of the provisions in question shall not be affected thereby.
11.3 H2 Tech reserves the right to terminate any contract with the Customer including ongoing services agreement without liability or penalty in the event it determines, at its sole discretion that it is appropriate in all the circumstances.