IT Service Terms
1. Who we are and how to contact us
Invictus X Pty Ltd ABN 66 624 883 558 of Suite 5, Level 1, Harrington Plaza, 23 Fairwater Drive, Harrington Park, NSW, Australia 2567 (we, us and our).
To contact us, please email [email protected] or telephone our customer service line on 1300 80 30 10.
2. Our contract with you
2.1 In this clause:
Services Agreement means any IT Support Agreement, Telephone and Internet Connection Agreement, or other such agreement in writing between you and us outlining the scope of any supply of Goods or Services by us to you.
2.2 These terms and conditions (Terms) apply to any supply of Goods or Services (Services) by us to you. To the extent permitted by law, no other terms are implied by trade, custom, practice or course of dealing.
2.3 Other than any Services Agreement between you and us relating to the Services, these Terms are the entire agreement between you and us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in these Terms or such Services Agreement.
3. Our services
3.1 We will supply the Services to you in accordance with these Terms and any Services Agreement between you and us.
3.2 We will use all reasonable endeavours to meet any performance dates specified in the Services Agreement, but any such dates are estimates only and failure to perform the Services by such dates will not give you the right to terminate these Terms.
3.3 We warrant to you that the Services will be provided using reasonable care and skill.
4. Your obligations
4.1 It is your responsibility to ensure that:
(a) you cooperate with us in all matters relating to the Services;
(b) you provide us, our employees, agents, consultants and subcontractors, with access to your premises, office accommodation and other facilities as we may reasonably require;
(c) you provide us with such information and materials we may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(d) you prepare your premises for the supply of the Services;
(e) you obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and
(f) you comply with all applicable laws, including health and safety laws.
4.2 If our ability to perform the Services is prevented or delayed by any failure by you to fulfil any obligation listed in clause 4.1 (Your Default):
(a) we will be entitled to suspend performance of the Services until you remedy Your Default, and to rely on Your Default to relieve us from the performance of the Services, in each case to the extent Your Default prevents or delays performance of the Services. In certain circumstances Your Default may entitle us to terminate these Terms under clause 8 (Termination);
(b) we will not be responsible for any costs or losses you sustain or incur arising directly or indirectly from our failure or delay to perform the Services; and
(c) it will be your responsibility to reimburse us on written demand for any costs or losses we sustain or incur arising directly or indirectly from Your Default.
5. Price and Payment
5.1 In this clause:
GST has the meaning given to it in the GST Law.
GST Law has the meaning given to it in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
5.2 In consideration of us providing the Services, you must pay our charges (Charges) in accordance with this clause 5 and our Services Agreement.
5.3 The Charges are the prices quoted in our Services Agreement.
5.4 If you wish to change the scope of the Services and we agree to such change, we will modify the Charges accordingly.
5.5 Our Charges are exclusive of GST. Where GST is payable in respect of some or all of the Services, you must pay us such additional amounts in respect of GST, at the applicable rate, at the same time as you pay the Charges.
5.6 The schedule for, and method of, payment of the Charges will be in accordance with our Services Agreement.
6.1 In this clause:
Personal Information has the meaning as defined in any applicable Privacy Law.
Privacy Law means any legislation or administrative requirement (as amended from time to time) imposing an obligation in relation to the collection, use, disclosure, storage and transmission of personal information which is applicable to a party in the performance of its obligations under this Agreement, including without limitation any codes, principles or guidelines contained in or arising out of such legislation.
6.2 We will ensure that the collection, use, disclosure, storage and transmission of Personal Information acquired from you in connection with the Services:
(a) conforms with our obligations under the Privacy Laws; and
(b) to the extent that different Privacy Laws apply to each party, and without limiting paragraph (a), conforms with the statutory obligations applicable to you as if they were binding upon us.
6.3 You must ensure that the collection, use, disclosure, storage and transmission of Personal Information acquired from us in connection with the Services:
(a) conforms with your obligations under the Privacy Laws; and
(b) to the extent that different Privacy Laws apply to each party, and without limiting paragraph (a), conforms with the statutory obligations applicable to us as if they were binding upon you.
6.4 You are responsible for obtaining all consents from and providing all notices to individuals whose Personal Information is collected, used, stored or disclosed by us in connection with the Services to enable us to meet our obligations under any Privacy Laws.
6.5 You must indemnify us against, and must pay us on demand the amount of, all Losses, liabilities, costs and expenses incurred in connection with a breach of any Privacy Laws by the collection, use, storage or disclosure of Personal Information of an individual which could have been avoided by obtaining consent from or providing notice to the individual.
6.6 The provisions dealing with the collection, use, disclosure, storage and handling of Personal Information under these Terms survive the termination or expiry of these Terms.
7.1 We each undertake that we will not at any time disclose to any person any confidential information concerning one another's business, affairs, customers, clients or suppliers, except as permitted by clause 7.2.
7.2 We each may disclose the other's confidential information:
(a) where the information is in the public domain as at the date of these Terms (or subsequently becomes in the public domain other than by breach of any obligation of confidentiality binding on either of us);
(b) if either of us is required to disclose the information by applicable law or the rules of any recognised stock exchange or other document with statutory content requirements, provided that the recipient has to the extent practicable having regard to those obligations and the required timing of the disclosure consulted with the provider of the information as to the form and content of the disclosure;
(c) where the disclosure is expressly permitted under these Terms;
(d) if disclosure is made to our respective officers, employees and professional advisers to the extent necessary to enable either of us to properly perform our obligations under these Terms or to conduct our business generally, in which case the we each must ensure that such persons keep the information secret and confidential and do not disclose the information to any other person;
(e) where the disclosure is required for use in legal proceedings regarding these Terms; or
(f) if the party to whom the information relates has consented in writing before the disclosure.
7.3 Each of us may only use the other's confidential information for the purpose of fulfilling our respective obligations under these Terms.
8. Limitation of liability
8.1 Nothing in these Terms limits or excludes our liability:
(a) for death or personal injury caused by its negligence or wilful misconduct or that of its employees, as applicable;
(b) for fraud or fraudulent misrepresentation by it or its employees, as applicable; or
(c) where liability cannot be limited or excluded by applicable law.
8.2 Subject to clause 8.1 we will not be liable to you, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with these Terms, including any:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of production;
(d) loss of agreements or contracts;
(e) loss of business opportunity;
(f) loss of anticipated savings;
(g) loss of or damage to goodwill;
(h) loss of reputation; or
(i) loss of use or corruption of software, data or information.
8.3 Nothing in these Terms is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (ACL), or the exercise of a right conferred by such a provision, or any liability of ours in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of services.
8.4 If we are liable to you in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, our total liability to you for that failure is limited to, at our option, the resupply of the services or the payment of the cost of resupply.
8.5 This clause 12 will survive termination of these Terms.
9.1 Without affecting any of our other rights, we may suspend the performance of Services, or terminate these Terms with immediate effect by giving written notice to you if:
(a) you fail to pay any undisputed amount due under these Terms on the due date for payment and you remain in default not less than 30 days after being notified in writing to make such payment;
(b) you commit a material breach of any other term of these Terms and that breach is irremediable or (if that breach is remediable) you fail to remedy that breach within a period of 14 days after being notified in writing to do so;
(c) an insolvency event occurs in relation to you; or
(d) there is a change of control of the your company, without our consent, such consent not to be unreasonably withheld or delayed.
9.2 Termination of these Terms does not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages for any breach of these Terms that existed at or before the date of termination.
9.3 Any provision of these Terms that expressly or by implication is intended to come into or continue in force on or after termination will remain in full force and effect.
10. Force majeure
10.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these Terms that is caused by any act or event beyond our reasonable control (Event Outside Our Control).
10.2 If an Event Outside Our Control takes place that affects the performance of our obligations under these Terms:
(a) we will contact you as soon as reasonably possible to notify you; and
(b) our obligations under these Terms will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. We will arrange a new date for performance of the Services with you after the Event Outside Our Control is over.
10.3 You may cancel these Terms, where affected by an Event Outside Our Control, which has continued for more than 90 days. To cancel please contact us. If you opt to cancel, we will refund the price you have paid, less the charges reasonably and actually incurred us by in performing the Services up to the date of the occurrence of the Event Outside Our Control.
11.1 When we refer to "in writing" in these Terms, this includes email.
11.2 Any notice or other communication given by one of us to the other under or regarding these Terms must be in writing and be delivered personally, sent by pre-paid post or email.
11.3 A notice or other communication is deemed to have been received:
(a) if delivered by hand to the nominated address, when delivered to the nominated address;
(b) if sent by pre-paid post, at 9.00 am (addressee's time) on the second Business Day after the date of posting; or
(c) if sent by email, at the time the email is sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered.
11.4 In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
11.5 The provisions of this clause will not apply to the service of any proceedings or other documents in any legal action.
12.1 We may vary these terms at our sole discretion by 14 days’ written notice to you, such notice signed by us or an authorised representative.
12.2 Any variation of these Terms only has effect if it is in writing and signed by you and us (or our respective authorised representatives).
13. No waiver
13.1 Neither of us may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with these Terms unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.
13.2 Words or conduct referred to in clause 13.1 include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel.
14. Assignment and novation
14.1 We may assign or transfer our rights and obligations under these Terms to another entity, but will always notify you in writing if this happens.
14.2 You may only assign or transfer your rights or your obligations under these Terms to another person if we agree in writing.
14.3 A breach of clause 14.2 by you entitles us to terminate these Terms.
15.1 If the whole or any part of a provision of these Terms is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.
15.2 Clause 15.1 does not apply if the severance of a provision of these Terms in accordance with that clause would materially affect or alter the nature or effect of the parties' obligations under these Terms.
16. Relationship of the parties
These Terms are between you and us. No other person has any rights to enforce any of the Terms.
No party will post a social media or internet review of the other party of less than the maximum possible rating without the prior written consent of the other party.
18. Governing law and jurisdiction
18.1 These terms, their subject matter and formation are governed by the law in force in New South Wales.
18.2 Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in New South Wales and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement.
18.3 Each party irrevocably waives any right it has to object to the venue of any legal process in the courts described in clause 18.1 on the basis that:
(a) any proceeding arising out of or in connection with this agreement has been brought in an inconvenient forum; or
(b) the courts described in clause 18.1 do not have jurisdiction.