“we” or “us” or “Our Group” means IPT Systems Pty Ltd ABN 87 110 922 328 and/or its Related Bodies Corporate, as the case may be.
“Customer” or “You” means your business, as identified on the Service Order Form.
“Agreement” means these Terms and Conditions, the Service Schedule and the Service Order Form.
“Business Day” means any day excluding Saturday or Sunday or a bank or public holiday in Australia.
“Charge” or “Charges” means the charge or charges (exclusive of any taxes or duties) in respect of a Service as set out in the relevant Service Order Form.
“Confidential Information” means information, whether oral, written or in electronic from, including but not limited to your or our intellectual property, operational information, know-how and trade secrets, financial and commercial affairs, contracts, client information and pricing details.
“GST” means GST within the meaning of A New Tax System (Goods and Services Tax) Act 1999 as amended.
“Intellectual Property” means any intellectual or industrial property anywhere in the world including, but not limited to, any copyright, patent, trademark, design rights, trade secret or Confidential Information relating to the Service or any license or other right to use, or to be the registered proprietor of, any of the above.
“Minimum Period” means the minimum period for provision of a Service as set out in the Service Order Form.
“Our Equipment” means any equipment that we or our suppliers provide to you as part of a Service under this Agreement but excluding the Purchased Equipment.
“Our Network” means the telecommunications network operated or controlled by us.
“Purchased Equipment” means any equipment which you purchase from us under this Agreement.
“Related Body Corporate” has the meaning given in the Corporations Act (Cth) 2001.
“Service” and “Services” means the services and products set out in the relevant Service Order Form.
“Service Levels” means the levels of service (if any) in respect of a Service.
“Service Schedule” means a schedule to these Terms and Conditions which sets out, amongst other things, a description of the Service(s), any Services Levels and any other relevant information.
“Service Order Form” means our standard order for service or application form, completed by us and you.
“Terms and Conditions” means the general terms and conditions set out in this document.
“Works” means any design, installation or commissioning works required to enable provision of the Service.
(a) The Service Order Form sets out the nature of the Service that we will provide to you.
(b) Whenever we provide you with a Service, we will:
(i) provide the Service with care and skill;
(ii) begin providing the Service within a reasonable time and, in any event, by any connection date, installation date or other time set out in the relevant Service Order Form; and
(iii) ensure the Service substantially conforms to any specifications that we provide.
We will provide our Software updates, Network, Technical Support and Services to you if you are current in your payment of fees for these services. We shall provide:
(a) updates to Software, Network & Services, as they are made available to all customers.
(b) Telephone Help Desk Support on +61 3 9090 3055 during our normal service hours of 08.30 to 18.00.
(c) reasonable efforts to correct documented Software, Network or Services errors. “Reasonable efforts” means that we shall:
(i) forward a corrected version of the Software to you, correct the error and update Network / Service or;
(ii) provide an alternative method to circumvent the error, or
(iii) in case of Software errors, correct the error in subsequent Software releases.
(d) make Network / Services available with a minimum of 95% uptime unless the circumstances are beyond our control.
(a) We will arrange for the repair any fault in Our Network which adversely affects the Service.
(b) Charges may apply to cover the cost of us repairing faults in the Service during our normal service hours of 08.30 to 18.00 if such faults are caused, or contributed to, by you or your employees or contractors.
(c) If you want us to investigate or repair any faults or defects not covered by the Charges then we may charge you additional charges for the work carried out. Such additional charges will be agreed with you before being incurred.
You should be aware that the Services may be provided by any member of Our Group and, as such, any reference to, “we” or “us” in this document refers to whichever member or members of Our Group is providing the Services to you. Where this occurs, neither you nor we are relieved of our obligations under this Agreement.
Whenever we provide a Service to you, you will:
(a) comply with this Agreement;
(b) follow our directions about the use of the Service;
(c) be solely liable for all information and data carried over Our Network or a third-party network;
(d) be responsible for any of your employees or other service providers who have access to the Service
(a) We may, at any time and at our cost, modify or replace our Network provided that there is no adverse impact on the Service during your normal business hours.
(a) Where we provide you with any software to use:
(i) we remain the owner or licensee of the software;
(ii) you may use the software only for the purposes for which it is provided;
(iii) your right to use the software may not be assigned or otherwise transferred to anyone else without our prior written consent;
(iv) you will not change or interfere with the software in any way;
(v) you will not use the software to recreate or reverse engineer any source code;
(vi) you will not copy any part of the software except for the purposes of our approved backup or testing procedures; and
(vii) you will comply with any further requirements we impose in relation to the software or where relevant, any requirements of the owner or licensor of the software.
(b) We may at any time install upgrades or new versions of the software.
You will indemnify us against all actions, claims, demands, liabilities, losses, damages, or expenses arising out of your use of the Service(s).
You agree to pay the Charges for all Services we provide to you in accordance with this Agreement.
(a) We will invoice you for all Charges. You must pay each invoice by the due date set out on the invoice, or if no due date is specified, within 30 days of the date of invoice. Charges are normally invoiced monthly in arrears.
(b) If you do not pay an invoice by the due date for payment, you will be in default and we may, after notification by way of a final notice, disconnect the service.
(c) If you consider there is a mistake in any invoice, you must notify us within a reasonable time of receipt of the invoice with full details. We will investigate the matter and report back to you as soon as practicable. If the matter cannot be resolved, the procedure under clause 8 must be followed. If we have made a mistake, we will adjust a later invoice or issue a credit note
(d) Where you receive the Service from more than one member of Our Group, then in some cases, each member may bill you individually for the Service provided and you must make payment to the bill issuer.
(e) A member of Our Group which has agreed to provide you with a Service may delegate the invoicing for that Service to another member of Our Group. If this happens you agree that you will pay the invoices in accordance with the terms of this Agreement as if they had been received from the member of Our Group which is providing you with the Service.
(f) You must pay our Charges by cheque electronic funds transfer, or other means specified on the invoice.
(a) You will be liable to pay cancellation charges if:
(i) you terminate a Service before the end of the Minimum Period other than in accordance with 9.2(a)(i) or 9.2(a)(ii); or
(ii) we terminate prior to the end of the Minimum Period in accordance with 9.2(a) or 9.2(b).
(b) The cancellation charges are:
(i) the amount of Charges which would have been payable by you from the date of termination to the end of the Minimum Period.
Unless otherwise expressly stated, the Charges are exclusive of GST. You must pay to us, in addition to the Charges, an amount equal to any GST payable on the supply of the Service. That additional amount is payable at the same time as any part of the Charges is payable. We will issue a tax invoice to you for the supply of the Service at or before that time.
(a) We do not warrant that Services will be free of blockages, delays or faults of any kind.
(b) We may temporarily suspend or restrict any Service:
(i) during any scheduled or agreed maintenance period;
(ii) if we think it is reasonable or necessary to carry out urgent repairs to Our Network or Our Equipment;
(iii) in order to comply with any applicable law or an order or request of any government or regulatory body; or
(iv) where the Service is affected by events beyond our reasonable control.
(c) Unless otherwise stated in a Service Schedule we will:
(i) give you at least three days’ notice of scheduled maintenance that is likely to affect your Service; and
(ii) not carry out any scheduled maintenance between 08.00 – 18.00 unless we agree this with you first.
(a) We (including our Related Bodies Corporate):
(i) except as expressly set out in this Agreement, exclude all conditions, warranties and representations, whether express or implied, to the extent permitted by law; and
(ii) limit our (including our Related Bodies Corporate) liability for any breach of any conditions, warranties and representations (that cannot be excluded or restricted by law), at our option, to the repair or re-supply of Our Network, Service or software or the payment of the cost of having Our Network, Service or software repaired or re-supplied.
(iii) State that any claims relating to this Agreement be brought within 90 days after the occurrence of the event-giving rise to the cause of action.
(b) Where either you or us (including our Related Bodies Corporate) is liable to pay the other any damages, refunds, rebates or other compensation under this Agreement (“Compensation”) the following applies, to the extent permitted by law:
(i) both you and we will not be liable in any way for any loss of profit, loss of savings or data or for any indirect or consequential loss, including any losses that may reasonably be supposed to have been in the contemplation of the parties (as at the date of the first supply of the Services) as a probable result of any act or omission, arising out of or in connection with the supply of any Services or any equipment under this Agreement or otherwise in connection with the relationship established by this Agreement, including any loss or damage caused by our negligence or any fundamental breach of this Agreement;
(ii) state that we shall not be liable to you, under any theory of recovery, including contract, negligence, strict liability, warranty or product liability, in an amount in excess of the license, network, service fee paid in
Neither of us will be liable for failing to meet our responsibilities under this Agreement (except your obligation to pay the Charges for Services you have received) because of events beyond our reasonable control, including but not limited to acts or omissions of third party network operators or suppliers, acts of war or terrorism, natural disasters, strikes and lockouts.
Acquiring Services from us does not give you any ownership or other property rights in Our Network.
(a) Any Intellectual Property owned by either of us prior to entry into the Agreement, or developed independently of this Agreement by either of us, will continue to be owned by you or us, as the case may be.
(b) We either own the Intellectual Property in the Service provided to you, or where we use any Intellectual Property belonging to anyone else, we have a license to do so.
(c) You acknowledge that none of our Intellectual Property is transferred to you. You further acknowledge that unless specifically authorised by this Agreement, you cannot, and will not, use or reproduce such Intellectual Property for any purpose outside this Agreement.
(d) All Intellectual Property in any improvements or changes to any Service devised or made by anyone during the time we are providing the Service to you, belongs to us.
(a) You and we must always keep each other’s Confidential Information confidential.
(b) We both agree:
(i) to use the Confidential Information of the other only to the extent required for the purpose it was provided;
(ii) not to copy or reproduce any of the Confidential Information of the other in any way; and
(iii) to disclose the other’s Confidential Information only to employees and contractors who need access to the information and who have agreed to keep it confidential.
(c) You or we must promptly return all Confidential Information of the other (including any copies of it) in our possession or control, at the other’s request.
(d) You and we agree that Confidential Information excludes information generally available in the public domain (without unauthorised disclosure under this Agreement) and excludes information received from a third party entitled to disclose it.
(a) During your relationship with us, we may collect information from you.
(b) You agree that we may:
(i) hold the Personal Information and share it with our employees, contractors and other agents but only where this is necessary to enable us to provide you with the Services, bills;
(ii) share with other network operators any information needed to provide certain services to you, or to enable you to send or receive messages of any kind through those networks; and
(iii) use any information about you for statistical purposes, so long as you are not identified.
(a) We will arrange for appropriate electronic addresses, numbers and other codes to be allocated for you to use depending on the kinds of services you require.
(a) Where a dispute arises between us, it will be referred to our account manager and your contract representative for resolution.
(b) If they cannot resolve the dispute within 10 Business Days, either of us may escalate the dispute to our respective group managers.
(c) If the dispute is not resolved within 10 Business Days of escalation to our respective group managers, then either of us may take such action or proceedings as we see fit.
(a) starts the earlier of when you sign the Service Order Form, or when you first access our Services after receipt of these Terms and Conditions; and
(b) remains in effect for the Minimum Period; and
(c) on expiry of the Minimum Period, continues unless and until terminated by either of us by giving to the other not less than 20 Business Days written notice.
(a) Either of us may terminate this Agreement:
(i) on written notice where the other has materially breached this Agreement and has failed to remedy the breach within 20 Business Days of receipt of written notice from you or us, as the case may be; or
(ii) where a liquidator, receiver, manager and receiver or any other administrator is appointed over the assets of the business of the other, or if the other enters into any composition with its creditors.
(b) We may terminate this Agreement if:
(i) After reasonable effect is made to collect outstanding accounts and we are unable to receive payment; or
(ii) we are required to do so by law.
If you are in material breach of this Agreement (including by non-payment of our Charges when due), we have the right to suspend performance of any or all of our obligations under the Agreement.
Clauses 2.5, 3, 5, 6, 7, 9, 10 and 11 survive termination of this Agreement.
(a) All notices and invoices must be in writing and may be sent by letter, fax or e-mail to the address and contact person on the front of Service Order Form, as updated to each other from time to time.
(b) Any notice or invoice sent by post to that contact address will be assumed to have been delivered 2 Business Days after it is posted. Any notice sent by fax to that contact number will be assumed to have been delivered once a correct transmission confirmation slip is received.
(a) You and we will comply with each other’s reasonable requirements for security and health and safety when working at each other’s premises. Where practical, these requirements will be communicated to each other in writing.
(b) You cannot assign your rights and responsibilities under this Agreement without our prior written consent.
(c) This Agreement may only be varied by written agreement between us.
(d) We may have subcontractors or other agents meet any of our responsibilities under the Agreement but we will remain liable to you for meeting all those responsibilities
(e) No legal partnership, employer/employee, principal/agent or joint venture relationship is created or evidenced by this Agreement.
(f) The Agreement is the entire agreement between you and us in relation to its subject matter.
(g) You agree that you enter into this Agreement entirely on the basis of your own enquiries and that you do not rely on any statement, representation or promise by us that is not expressly set out in this Agreement.
(h) No failure, delay or indulgence by either you or us in exercising any power or right conferred by the Agreement on either you or us will operate as a waiver of that power or right.
(i) If a provision of this Agreement is void or voidable or unenforceable or the invalid part severed, the remainder of this Agreement will not be affected.
(j) You authorise us to complete any blank spaces in your Service Order Form.
(k) The Agreement will be governed by the laws of Victoria, and both you and we agree to submit to the non-exclusive jurisdiction of the courts of Victoria and courts entitled to hear appeals from such courts.
(l) Headings are for convenience only and do not affect interpretation.
(m) The singular includes the plural and conversely.
(n) A gender includes all genders.
(o) If a word or phrase is defined, its other grammatical forms have a corresponding meaning.
(p) A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
(q) A reference to a clause or schedule is a reference to a clause of or a schedule to, this Agreement.
(r) A reference to an agreement or document (including a reference to this Agreement) is to the agreement or document as amended, varied, supplemented, novated or replaced, except to the extent prohibited by this Agreement or that other agreement or document.
(s) A reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it.
(t) A reference to dollars and $ is to Australian currency.
(u) The meaning of general words is not limited by specific examples introduced by “including”, “for example” or similar expressions.