General Terms & Conditions

GENERAL

1. Definitions and interpretation

In these Conditions, the Rate Schedule and every Quote, Order, Agreement, or other arrangement in connection with the supply of Goods or Services by IT Start, the following words have the following meanings:

“After Hours” means from 17:00 – 09:00 hours Monday to Friday and all day Saturday and Sunday, including Public Holidays, unless otherwise specified in your Managed Service Contract.

“Business Hours” means Monday to Friday from 09:00 to 17:00 hours, excluding Public Holidays.

“Client”, “You” or “Your” means a person who seeks or obtains a quote for, or who orders, Goods or Services from Us, and includes both a person whose name is on the Order or on an email attached to which is an order, a person who places an Order, and a person on whose behalf an Order is placed or on whose behalf it appears an order is placed, and in any case each of their heirs, successors and assigns.

“Conditions” means these terms and conditions.

“Goods” means any goods and/or services sourced by Us or provided by Us in connection with any such goods and/or services, including computer hardware and Software, and any goods or services provided in connection with any of those things.

“GST” has the meaning given to it under A New Tax System (Goods and Services Tax) Act 1999 (Cth).

“Tax” means GST and any other tax, duty, levy, charge or withholding imposed by any government or tax authority, other than tax on Our own income.

“Order” means any order requested by You to Us for Goods or Services in any form.

“Quote” means a quote provided to You by Us.

“Period” means a particular number of half days, days, weeks, fortnights, months, or any other period, as may be agreed between Us and You as the period during which some Services will be provided.

“Plan” means any arrangement between Us and You (whether alone or in conjunction with any other person) for Services (including unlimited support) and/or the provision of Goods provided by Us under an arrangement in connection with Work agreed to be done or progressed for or on behalf of You or any other person at Your request, including as set out in a Plan Schedule.

“Agreement” means these General Terms and Conditions together with any Proposal, Managed Service Contract, Service Schedule and any schedules and appendices (including Schedule B and Schedule C of the Agreement) that apply to the Services We supply to You.

“Proposal” means any written document (including a quote or order form) issued by Us that describes the Services, Fees, any Commitment Term and any other commercial terms, and that You sign, approve or accept.

“Managed Service Contract”, “Managed Service Agreement” means any Agreement for ongoing or recurring Services under a Plan, as set out in a Proposal and any Service Schedule.

“Service Schedule” means any document that forms part of a Managed Service Contract or Proposal and that describes the Services, devices, locations, Service Levels, Fees or other details for a Plan, including any document titled “Service Schedule”, “Plan Schedule” or “Schedule”.

“Plan Schedule” means the key terms applicable to Plans as set, and as may be varied by Us, from time to time in our absolute discretion without notice to You.

“Public Holidays” means any day which is a public holiday throughout Queensland.

“Rates” means the hourly rates and other charges for Services (including any call out fees and any Return/Cancellation Fees) set out in the Rate Schedule, a Plan, Plan Schedule, Quote, contract or arrangement entered into by Us and You or in these Conditions, and includes any monies payable to Us on a quantum meruit basis for any work We have done.

“Rate Schedule” means the schedule of rates, charges and conditions for the services of Ours as set, and as may be varied, by Us from time to time in our absolute discretion without notice to You.

“Reasonable Assistance Limits” has the meaning set out in clause 17.2.

“Return/Cancellation Fee” means a fee charged pursuant to clause 12.5 as set by Us from time to time.

“Service request” means a request for service such as adds, moves, changes and technical assistance.

“Services” means the provision of any services by Us, including Work, advice and recommendations.

“Software” includes software and any installation, update, associated software and any services provided in connection with any of these things.

“Commitment Term” means the minimum period for which You agree to acquire the Services under this Agreement, as set out in Our Quote or Plan, starting from the first day of the month after You sign or approve the Quote, unless We agree in writing to a different start date.

“Term” means the Commitment Term and any extension of it under clause 3.2.

“Us”, “Our” or “We” means IT Start (ABN 40848835757) and its heirs, successors and assigns.

“Work” means anything We may do, provide, customise, produce or acquire, whether or not in connection with, or for, You or Your use or benefit, and includes testing, troubleshooting, installation and configuration of new equipment or software, consulting, scoping, planning, documenting and quoting for complex items.

In these Conditions, the Rate Schedule and every Quote, Order, Plan, contract, or other arrangement in connection with the supply of Goods or Services by Us, unless the contrary intention appears:

Words denoting the singular number only include the plural number and vice versa.

Reference to any gender includes every other gender.

Reference to any Act of Parliament, Statute or Regulation includes any amendment currently in force at the relevant time and any Act of Parliament, Statute or Regulation enacted or passed in substitution of it.

Headings and words put in bold are for convenience of reference only and do not affect the interpretation or construction of these Conditions.

All references to dollars ($) are to Australian Dollars.

A reference to time is to Brisbane, Australia time.

A reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa.

A reference to a recital, clause, schedule, annexure or exhibit is to a recital, clause, schedule, annexure or exhibit of or to these Conditions.

A recital, schedule, annexure or description of the parties forms part of these Conditions.

A reference to any agreement or document is to that agreement or document, as amended, novated, supplemented or replaced from time to time.

Where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning.

A reference to “includes” means includes without limitation.

A reference to “will” imports a condition, not a warranty.

A reference to bankruptcy or winding up includes bankruptcy, winding up, liquidation, dissolution, becoming an insolvent under administration, being subject to administration and the occurrence of anything analogous or having a substantially similar effect to any of those conditions or matters under the law of any applicable jurisdiction and to the procedures, circumstances and events which constitute any of those conditions or matters.

2. Application of these conditions

Unless otherwise agreed by Us in writing, these Conditions are deemed incorporated in and apply to (and to the extent of any inconsistency will prevail over) the terms of every Quote, Order, Plan, contract, or other arrangement in connection with the supply of Goods and/or Services by Us to You.

The invalidity or unenforceability of any one or more of the provisions of this Agreement will not invalidate, or render unenforceable, the remaining provisions of this Agreement.

3. Commitment term

3.1 The Commitment Term for each Plan is set out in the Proposal, Service Schedule or Managed Service Contract for that Plan.

3.2 At the end of the Commitment Term for a Plan, the Term for that Plan will automatically renew for a further period equal to the original Commitment Term, on the same terms (including any adjusted Rates), unless either party gives the other at least 30 days written notice before the end of the then current Commitment Term that it does not wish to renew that Plan.

3.3 If a Plan renews under clause 3.2, the renewed period forms part of the Term for that Plan.

4. Termination

4.1 This Agreement may be terminated by You upon ninety (90) days written notice if We:

4.1.1 fail to fulfil in any material respect Our obligations under this Agreement and do not cure such failure within thirty (30) days of receipt of such written notice.

4.1.2 breach any material term or condition of this Agreement and fail to remedy such breach within thirty (30) days of receipt of such written notice.

4.1.3 terminate or suspend Our business operations, unless succeeded by a permitted assignee under this Agreement.

4.2 This Agreement may be terminated by Us upon ninety (90) days written notice to You.

4.3 If either party terminates this Agreement, We will assist You in the orderly termination of services, including timely transfer of the services to another designated provider. You agree to pay Us for rendering such assistance at Our normal rates as outlined in Our current Rate Schedule.

4.4 Should You wish to terminate this Agreement before the end of the Commitment Term, You agree to pay all of the remaining payments up until the end of the Commitment Term.

4.5 Data retention and deletion: On termination of this Agreement or any Plan, We will keep any data, configurations and system information that We hold for that Plan for a period of 90 days, unless We agree in writing to a different period. During that period, and subject to payment of Our applicable Fees, We may provide You with exports or copies of that data in a reasonable format.

4.5.1 After the end of that 90 day period, We will securely delete or de identify that data from Our systems, except to the extent that We are required to retain it by law, by a regulator or for the purposes of any actual or reasonably anticipated dispute.

5. Representations

5.1 You acknowledge that no employee or agent of Ours has any right to make any representation, warranty or promise in relation to the supply of Goods or Services other than subject to and as may be contained in the Conditions.

6. Notices

6.1 Any notices given under the Conditions must be in writing and sent by email to the last notified email address of Yours.

7. Governing law

7.1 The Conditions are governed by and construed in accordance with the laws of Queensland and the parties submit to the non exclusive jurisdiction of the Courts of Queensland.

8. Assignment

8.1 You may not assign Your rights and obligations under this Agreement without Our prior written consent.

9. Variation of these terms and conditions

9.1 We may at any time vary these Terms and Conditions by publishing the varied Terms and Conditions on Our website. You accept that by doing this, We have provided You with sufficient notice of the variation. We are under no other obligation to notify You of any variation to these Terms and Conditions.

GOODS AND SERVICES

10. Quotes

10.1 Term and effect: Quotes will only be valid for 14 days unless otherwise specified in the Quote. A Quote is merely an invitation to You to place an Order with Us and the acceptance of a Quote by You will not create a binding contract between You and Us.

10.2 A Quote is valid for 14 days only unless otherwise specified in the Quote. Expiry dates on quotes are set to be able to inform Us when the quote is still active or to be discarded. Once discarded, the quote will need to be requested again.

10.3 Once a Quote has been confirmed by Us, then the prices in the Quote will be confirmed as the final agreed price. A Quote is confirmed as final as soon as both parties agree on the final price after any last changes requested by You.

10.4 The price in the final Quote may vary from the original request if there are any price or product changes requested by You. We reserve the right to alter product and prices in the Quote if the Quote has not been confirmed with You.

10.5 Quotes and estimates are deemed to correctly interpret the original specifications and are based on the cost at the time the Quote or estimate is given. If You later require any changes to the Quote, and We agree to the changes, these changes will be charged at Our prevailing rate.

10.6 Once the Quote has been confirmed and converted to an Order, the Order will be subject to Our normal Terms and Conditions of Sale.

10.7 The general minimum turnaround time for a Quote request to be actioned is usually 24 hours. If a Quote is required urgently, please let Us know so that We can respond to it accordingly.

10.8 When a special price or discount offer has been applied to a Quote, no other special promotion, discount or bonus offer will be applicable.

10.9 If products in the Quote are subject to any price and supply fluctuations that are outside of Our control, We reserve the right to update the price and product in the Quote accordingly. If a product has undergone a price drop or a price increase, the Quote will then be adjusted accordingly. If there is a product that is no longer available, the product will then be replaced or substituted based on Your request and is subject to Your final approval.

10.10 Prices on non stocked products are subject to price and stock fluctuations and can only be confirmed once the Quote is turned into an Order. While We endeavour to honour every price quoted, if there is a price increase that is beyond Our control, We reserve the right to increase the price as necessary.

10.11 Once a Quote has passed the expiry date, We may cancel the Quote or estimate without having to notify or receive an approval from You.

10.12 ETA information is based on an estimate given by Our vendors and cannot be held as the actual promised date.

10.13 Freight charges will be added to the Order unless otherwise stated. Any included delivery charges are estimates only.

10.14 We do not keep inventory and only order items once We receive a completed Order from a client. If You would like to return an item or cancel an Order, a restocking fee may apply. We will need to get approval from the distributor that the stock is returnable before being able to issue a refund as not all products can be returned.

10.15 Prices are based upon the total Quote purchase.

10.16 Unless specified, all items on Quote are covered by the manufacturer’s warranty covering parts and labour for hardware only on a return to depot basis.

10.17 Varying or withdrawing Quotes: We may vary or withdraw a Quote at any time in Our absolute discretion and without prior notice to You. We may do so for any reason We consider fit, including where the Goods or Services become unavailable or the cost price of Goods or Services increases after the date of the Quote.

11. Orders

11.1 Approval of Orders: You will need to sign the Order or have it duly executed on Your behalf, unless the Order is sent by email or via the web based ordering system, in which case the Order will be treated or deemed as if signed by or on behalf of You by the person whose name appears as the sender of the email or submitter of the form.

11.2 Reliance on appearance of validity: Absent actual knowledge to the contrary, We may rely upon the apparent validity of an Order. If any Order is signed or sent by email or approved through the web based ordering system by a named person, that person warrants that the Order is, and it is acknowledged the Order is deemed in favour of Us to be:

11.2.1 signed by, and duly authorised by, both the person who signed the Order and the person who sent the email; and

11.2.2 duly authorised by the person on whose behalf the Order is placed or apparently placed.

11.3 Acceptance and Orders: An Order has no effect unless or until it is accepted by Us in writing and, until We have received from You payment in clear funds for the Order and any related freight, delivery and (where applicable) in transit insurance costs.

11.4 No obligation to deliver: We are not obliged to deliver any Order until We have received payment in clear funds from You for the Order and any related freight, delivery and (where applicable) in transit insurance costs, or where We are unwilling or unable to complete the Order for any reason, provided We refund any payment made by You in respect of the Order.

11.5 Credit checks: For the purposes of ascertaining the credit standing or history of a prospective customer to whom We are considering extending credit or payment terms, You consent to Us undertaking a credit reference check in respect to You.

11.6 Cancellation of Orders: You will not cancel an Order unless We agree to do so in writing in Our absolute discretion. You acknowledge that, amongst other things, We cannot cancel an Order once the manufacturer or supplier has dispatched the relevant Goods and that such dispatch often occurs the same day as the Order is placed by Us.

11.7 Processes and procedures: We have processes and procedures that We follow in the course of the provision of Our Services and the supply of Goods. You agree to co operate with Us and to comply with such processes and procedures as advised to You from time to time.

12. Pricing and rates

12.1 Rates include Tax: All rates and amounts charged or quoted for Goods and/or Services by Us are exclusive of Tax, unless otherwise stated in writing by Us. You must pay any Tax on the Goods and Services in addition to the Rates.

12.2 Rate Schedule: You must pay for Goods and Services at the Rates set out in any applicable Plan and the Rate Schedule as applicable from time to time during the provision of the Goods and/or Services.

12.3 Vary Rates: We reserve the right to vary any Rate and/or the Rate Schedule from time to time (subject to any fixed pricing for specific periods in any Plan), in Our absolute discretion and without notice to You.

12.4 Call out fees: You acknowledge that call out fees may be charged in addition to the Rates at Our absolute discretion and that the amount of the call out fee will depend upon where the Services are provided.

12.5 Return/Cancellation Fee: Where We arrange a return or refund on behalf of You, or where an Order is cancelled by You after acceptance by Us, We may charge You a Return/Cancellation Fee to cover the administration costs to Us in processing the return or refund, or in processing the Order, the cancellation and any refund. We may deduct the Return/Cancellation Fee from any monies otherwise due to be refunded to You by Us.

12.6 Expenses: You must pay any out of pocket expenses incurred by Us in providing the Services to You in addition to the Rates, charges and call out fees, upon written demand. Such expenses include travel costs, flights, car hire, petrol, insurance, taxi fares, accommodation and related meal allowance, tolls and car parking expenses. Where appropriate, We will obtain prior written authorisation from You before such expenses are incurred.

12.7 Separate charges for Goods and Services: We may in Our absolute discretion charge for Goods separately from Services or may charge for Goods and Services together.

12.8 Calculation of increments: Where a charge is calculated based on increments of time, for example 1 hour or 30 minutes, We will charge the applicable rate for the whole increment of time even if work is done during part of, but not for the whole of, that increment of time.

12.9 Change in underlying costs: Without prejudice to any other rights of Ours under these Conditions, where there is any increase in the underlying costs incurred by Us in connection with the supply of Goods or Services to You, We may, in Our absolute discretion, vary any of Our Rates.

13. Services and plans

13.1 Service and Plan variations: Currently, We offer the Services and Plans referred to in the Rate Schedule and any Plan Schedule. We may withdraw the provision of, or vary the scope or terms of, or add to or change, the Services without notice to You, from time to time in Our absolute discretion.

13.2 Copies on request: We will provide You with a copy of the current Rate Schedule upon request. Plan Schedules are tailored for Plans and are available to Clients participating in the Plan.

14. Contracting

14.1 We may subcontract any or all the Services to be performed but will retain prime responsibility for the Services under these terms.

15. Delivery, title and risk

15.1 Delivery liability: We will use all reasonable endeavours to despatch Goods by the due date, but do not accept any liability for non delivery or failure to deliver on time where this is caused by circumstances beyond Our reasonable control, including due to failures in supply to Us or delays caused by third parties, such as delivery companies or manufacturers.

15.2 Availability to accept delivery: You must be available to accept the Goods at Your nominated delivery address during Business Hours unless otherwise arranged.

15.3 Passing of risk: Delivery is deemed to take place when the Goods are delivered to Your nominated address, whereupon risks of loss, breakage and all damage and all other risks pass to You. Nothing in this clause 15.3 affects title to the Goods.

15.4 Obligation to insure: You must ensure that Goods are adequately insured from the time of delivery under clause 15.3.

15.5 Retention of title: Until We receive full payment in cleared funds for any monies due to Us by You on any account or for any reason:

15.5.1 title to, and property in, Goods supplied to You remains vested in Us and does not pass to You.

15.5.2 You must hold those Goods as fiduciary bailee and agent for Us and must not sell them.

15.5.3 You must keep those Goods separate from other goods and maintain the Goods and their labelling and packaging intact.

15.5.4 Where You sell the Goods in breach of these Conditions, You must hold the proceeds of any sale of those Goods on trust for Us in a separate account (however any failure to do so will not affect Your obligation to deal with the proceeds as trustee and remit them to Us).

15.5.5 We may, without prior notice, enter into any premises where We suspect those Goods may be, take possession of those Goods and sever and remove those Goods (notwithstanding that they may have been attached to other goods not the property of Ours) and for this purpose, You irrevocably authorise and direct Us (and Our employees and agents) to enter into such premises as Our duly authorised agent and You indemnify and hold harmless Us from and against any costs, claims, allegations, demands, damages or expenses or any other acts or omissions arising from or in connection with such entry, repossession or removal.

15.5.6 You irrevocably appoint Us as Your attorney to do anything We consider necessary in order to enter such premises and repossess the Goods as contemplated by this clause 15.5.

16. Returns and claims for goods and services

16.1 General returns policy: You acknowledge that We supply Goods subject to all applicable conditions, including returns and claims policies, of any relevant manufacturer or supplier. You will accept Goods subject to these Conditions and the terms of such conditions and will indemnify and hold Us harmless in respect of any further or other obligation or any failure or default on the part of that manufacturer or supplier.

16.2 Customised Goods not returnable: Where Goods have some element of customisation for You, are supplied pursuant to an Order for Goods that is in Our opinion special or unusual, the Goods are obtained from overseas, the Goods are obtained from a supplier who is no longer trading, or the Goods are otherwise not readily returnable by Us to the manufacturer or supplier, or any related services may not be cancelled, You may not return the Goods to Us or cancel the related services.

16.3 Duty to inspect: You must inspect all Goods immediately upon their delivery. Within 7 days of such delivery You may give written notice to Us of any matter or thing, by reason of which You might wish to return the Goods, ask for a refund, or make a claim. If no such notice is given on time, You will accept the Goods without any such return, refund or claim.

16.4 Return condition: Where You are entitled to return Goods under these Conditions, You must return the Goods in their original condition and unopened, provided that where, upon opening the packaging it becomes apparent that the Goods are different to what is described on the packaging or that the Goods are faulty, the Goods may be returned.

16.5 Return costs: You must pay all costs and expenses incurred by Us in arranging the return of the Goods to a manufacturer or supplier and/or the cancellation of any related services unless that manufacturer or supplier pays such costs.

16.6 Consequences of use, installation, customisation or sale: You indemnify and hold Us harmless in respect of all allegations and claims in respect of Goods once such Goods have been used, installed, customised or re sold by You (without prejudice to the recourse of such a customer to the manufacturer of the Goods).

17. Computer utility, functionality and fitness for purpose

17.1 Service limitations given the science of computing: You acknowledge that a reasonable incident of the Services may involve trial and error and that it is a science applied often in novel or unknown circumstances and involving experimentation. In particular, You acknowledge that the Services may involve tests, troubleshooting, advice and recommendations that may prove incorrect or inappropriate, particularly to cure a problem You are having. While We will make what We consider (in Our absolute discretion) to be all reasonable endeavours to provide appropriate tests, troubleshooting, sound advice and good recommendations to assist You, You indemnify and hold Us harmless in the provision of Our Services to You.

17.2 Reasonable Assistance Limits: We are only obliged to provide what We consider, in Our absolute discretion, to be reasonable assistance in the circumstances (including with the installation and customisation of new software or hardware for You or any other Work) under any Plan and You must pay for additional work at the Rates unless otherwise agreed. Without limiting Our discretion to determine what reasonable assistance is, normally, reasonable assistance is limited to work done during Business Hours over a period of time not exceeding any period that We have allowed or allow for the Work or have estimated or estimate the Work will take, whether or not notice of the time allowed or estimated is given by Us to You.

17.3 Recommendations, suitability, functionality and fitness for purpose: The parties acknowledge that:

17.3.1 We may recommend that You purchase Goods provided by third parties from time to time.

17.3.2 Recommendations may be made in situations where You have made known to Us the purpose for which the Goods will be used or some function sought to be fulfilled.

17.3.3 You acknowledge that We have no control over many factors involved with the suitability, function or fitness for purpose of Goods in an existing or new computer environment, for example:

17.3.3.1 the compatibility or ability of the Goods to fit into or perform to expectations in the receiving computer/internet environment; or

17.3.3.2 the behaviour of a third party supplier, for example in relation to support.

17.3.4 You acknowledge that for a number of reasons outside of Our control, the Goods may fail to meet Your expectations, may not be fit for all or any of the purposes sought, may not be suitable or may not function properly in all or any respects.

17.3.5 You acknowledge that the Services provided by Us may involve the very task of seeking to customise Goods so they may be fit for particular purposes and that customisation may be a substantial project in itself.

17.3.6 Accordingly, You accept sole responsibility for, and indemnify and hold Us harmless in respect of:

17.3.6.1 decisions as to whether or not to follow recommendations by Us.

17.3.6.2 decisions as to whether or not to purchase or customise Goods or obtain Services for that or any other purpose.

17.3.6.3 any failure or defect in suitability, function or fitness for purpose of any Goods and/or Services, including a responsibility to obtain Your own independent advice or second opinion from a suitably qualified person.

17.3.7 Where We provide Services with a view to achieving Your purposes, suitability, function or fitness for purpose (whether expressed, agreed or otherwise), You must pay for those Services on time without any set off or counter claim, whether or not We are able to achieve any of such purposes, suitability, function or fitness for purpose, provided We have acted in good faith and have made what We consider, in Our absolute discretion, to be all reasonable endeavours to achieve those outcomes.

17.4 Testing procedures: You must follow Our instructions with regard to testing or troubleshooting any problems, and if those do not resolve the outstanding problems, We will, subject to these Conditions, allocate such resources as We consider reasonable in the circumstances towards their resolution.

18. Force majeure

18.1 Force majeure: If We are unable to supply any Goods or Services due to circumstances beyond Our reasonable control, We may cancel the Order (even if the Order has already been accepted) or cease to provide the Services by written notice to You, in which case You will hold Us harmless.

18.2 We are not liable for any breach of contract due to any matter or thing beyond Our control, including failures by third parties to supply goods, services or transport, stoppages, transport breakdown, fire, flood, earthquake, acts of God, strikes, lock outs, work stoppages, wars, riots or civil commotion, intervention or public authority, explosion or accident.

19. Product specifications

19.1 Alterations to specifications: We make every effort to supply the Goods in accordance with the Order, however We may supply alternate Goods subject to minor variations in actual dimensions and specifications where these are changed by the manufacturer of the Goods after the Order date and before delivery.

19.2 Substitute Goods: If We cannot supply the Goods ordered by You, We may supply alternate Goods of equal or superior quality, provided that You will not pay a higher price than the price quoted or otherwise agreed for the Goods ordered.

20. Warranties

20.1 Reliance on manufacturer’s warranty: You agree to work with Us in relation to any warranty claims for Goods supplied by Us. Where the Goods are covered by a manufacturer’s warranty, We will liaise with the manufacturer on Your behalf in connection with those claims.

20.2 No claim for manufacturer’s default: You indemnify and hold Us harmless in respect of the performance or otherwise, by any manufacturer of Goods supplied to You by Us, of any of the obligations of such manufacturer in respect of such Goods. This includes any damages or monies due to You arising under, or in connection with, any breach by the manufacturer of any of the manufacturer’s warranties in respect of the Goods.

20.3 Third party products and services: We may resell, supply, configure or support products and services that are provided by third party vendors, including software, cloud services, internet services and hardware supplied by other manufacturers. You acknowledge that these third party products and services are provided under the vendor’s own terms and conditions and that the vendor is responsible for their performance, availability, security and features. We do not control and cannot guarantee the uptime or performance of any third party product or service.

20.4 Vendor licence terms: Our supply of any third party product or service is subject to the licence terms, policies and usage rules set by the relevant vendor or manufacturer. If a vendor changes its licence terms, policies or technical requirements, We may require You to change Your environment, configuration or use of the product or service so that You remain compliant. We may issue these requirements without prior notice where this is needed to comply with the vendor’s licence terms and will notify You of any material changes as soon as practical.

20.5 No liability for vendor outages or incidents: If any issue, outage or incident is caused or contributed to by a third party product or service, including a vendor outage, defect, security incident or change implemented by the vendor, We are not responsible for that issue or for any resulting loss or downtime. In that case, Our responsibility is limited to providing reasonable assistance to help You work with the vendor or to implement a workaround, if requested and if technically possible. Unless otherwise agreed in a managed services agreement, Our time may be billable at Our then current rates.

21. Liability

21.1 Exclusion: Except as specifically set out in these Conditions and so far as may be permitted by law, any term, condition or warranty in respect of the quality, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Goods or Services, whether implied by statute, common law, trade usage, custom or otherwise, is expressly excluded.

21.2 No liability for program or data loss: You indemnify and hold Us harmless in respect of any allegation, claim, loss or expense of Yours or any third party for any program or data loss or damage suffered by You or that third party arising directly or indirectly from the supply of the Goods or Services by Us to You. You acknowledge You are solely responsible for backing up Your programs and data to mitigate Your own potential loss of programs and data.

21.3 Limit on consequential damage: You indemnify and hold Us harmless in respect of any allegation or claim as to any indirect or consequential losses or expenses suffered by You or any third party, including but not limited to loss of turnover, profits, business or goodwill or any liability to You or any third party.

21.4 Limit on damage from a failure in supply: You indemnify and hold Us harmless for any allegation or claim for loss or damage by You or a third party where We have failed to meet any delivery date or cancel or suspend the supply of Goods or Services.

21.5 General limit on liability: Except as otherwise expressly stated in these terms and conditions, We are not liable for any loss or damage of any kind however caused (including by the negligence of Us) which is suffered or incurred by You in connection with:

21.5.1 Goods or Services provided to You or any Work.

21.5.2 these Terms and Conditions.

21.5.3 Your use of Our website (including the use of a credit card or other debit device) or any linked website.

21.5.4 the non availability of Goods or Our Services for any reason.

21.5.5 any act or omission of Ours or the provision of inaccurate, incomplete or incorrect information by You.

21.5.6 for any other reason whatsoever.

21.6 Limitation options: To the extent that any legislation implies a condition or warranty that cannot be excluded but can be limited, clause 21.5 does not apply to that liability, and Our liability for any breach of that condition or warranty is limited to Our doing any one or more of the following (at its election):

21.6.1 replacing the Goods or supplying equivalent Goods, Services or Work.

21.6.2 repairing the Goods or the Work.

21.6.3 paying the cost of replacing the Goods or the Work or acquiring equivalent Goods, Services or Work.

21.6.4 paying the cost of having the Goods or the Work repaired.

21.7 Laws still apply: Nothing in these Conditions is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the supply of the Goods or Services which cannot be excluded, restricted or modified.

21.8 Severance: If any provision contained in the Conditions is unlawful, invalid or unenforceable, those provisions may be severed without prejudice to the validity and enforceability of the remaining provisions of the Conditions.

22. Errors and omissions

22.1 We make every effort to ensure that all prices and descriptions quoted are correct and accurate. In the case of an error or omission, We may rescind the affected contract by written notice to You, notwithstanding that We have already accepted Your Order and/or received payment from You. Our liability in that event is limited to the return of any money You have paid in respect of the Order.

OUR RESPONSIBILITIES

23. Privacy statements and your rights

23.1 We are collecting Your personal information for the fulfilment of Quotes, Orders and the provision of Goods or Services to You and may retain and use it for any such purposes (“Authorised Purposes”).

23.2 You are required to provide Your personal information to Us for Authorised Purposes.

23.3 We may disclose Your personal information to other persons for the purposes of the fulfilment of Quotes, Orders and Work for You or in order to provide Goods or Services to You, to verify the information You provide, for enquiries about Goods or Services that may be suitable for Your purposes, or to confirm Your requirements, to anyone proposing to supply Goods or Services to You, or to acquire Goods or Services on Your behalf, or in respect of enquiries relating to any of the foregoing.

23.4 Otherwise We will not disclose Your personal information without Your consent unless authorised by law.

23.5 Your personal information will be held by Us at Our principal place of business, and You can contact Us to request access to or correct it.

23.6 We rely on You to submit correct information and details where requested. You accept that You may incur additional expenses if You submit incorrect information.

24. Our website

24.1 We make no representations or warranties in relation to information available on Our website, including:

24.1.1 that the information on Our website is complete or correct.

24.1.2 that Our website will be continuously available or free from any delay in operation or transmission, virus, communications failure, internet access difficulties or malfunction in hardware or software.

24.1.3 that We endorse any internet site linked to Our website or any third party products or services referred to on Our website.

25. Insurance coverage

25.1 We will maintain at Our own expense commercial general liability insurance for personal injury and property damage for a general aggregate of $10,000,000. At Your request We will provide You with certificates, including renewal certificates evidencing such coverage within thirty (30) days of commencing this Agreement, at every renewal and at other times as may be reasonably requested by You.

YOUR RESPONSIBILITIES

26. Lodging of service requests

26.1 In order for Us to provide You with the agreed Service, You agree to follow Our process for lodging of Service Requests as outlined in Appendix A.

27. Access to systems, sites and people

27.1 Supported locations and work from home use: The Supported Locations for onsite Services under this Agreement are set out in Schedule D (Support Device Locations). We will provide Remote Support to Covered Devices used by Your Users while they are working from home or from other locations outside the Supported Locations. However, any issue that We determine is caused by, or related to, the environment at that location (including any home or third party internet service, Wi Fi, modem, router, switch, cabling, power, personal equipment or other non business infrastructure) is not part of the Supported Environment and is treated as Out of Scope Support, billable at the rates set out in Our Rate Schedule.

27.2 In order to provide You with the agreed Service, You agree to give Us access to various items of Yours, including equipment, people and sites as and when required.

27.3 You agree to allow Us to install software on Your equipment that allows Our technicians to access Your systems at any time. This software allows Us to view system statuses, send monitoring information, see users desktops and control Your PCs. This may require that devices be left on overnight or weekends.

28. Third party authorisations

28.1 At times We may need to contact Your third party providers on Your behalf, such as Your internet provider. Some of these providers may require Your authorisation for Us to deal on Your behalf. It is Your responsibility to ensure that We can deal freely with these providers.

29. Payment, late payment and default

29.1 Payment due date: All invoices issued to You are due and payable to Us within the terms stated on the invoice (unless otherwise agreed in writing). You must pay by debited credit card, direct debit or direct deposit in accordance with these Terms and Conditions and in the way set out in the invoice.

29.2 7 days late: Where You fail to pay an invoice within seven (7) days of the due date, We may, in Our absolute discretion and without prior notice, suspend or discontinue the supply of Goods and/or Services to You.

29.3 Recoveries: All legal and other costs and expenses incurred in connection with the recovery of late payments will be added to the amount due by You to Us and will be recoverable from You, in addition to the original invoice cost. If You default in payment of any invoice on time, monies which would have become due by You at a later date become immediately due and payable without any further notice to You. Collectively, all these monies are referred to in these Conditions as a “Sum Due”.

29.4 Interest: If payment of any Sum Due is not made on time, We will charge interest daily on the Sum Due at the maximum rate allowed by law, calculated and charged daily on and from the due date until the Sum Due is paid in full.

29.5 Application of funds: All payments of the Sum Due made by You to Us will be applied as follows:

29.5.1 first in or towards payment of any costs (including legal costs), charges, expenses or outgoings paid by Us in relation to any dishonoured cheque fees, collection costs or any other action taken by Us for the recovery of any amounts owing by You to Us.

29.5.2 secondly, in or towards payment of any interest due or payable.

29.5.3 thirdly, in or towards payment of Your debts to Us in order from the longest standing due to the most recently incurred.

29.6 Security: We may require You to provide security over Your property (including the Goods or any other property of Yours) as collateral to be held as security for any Sum Due or as a condition precedent to the continuation of supply of Goods or Services by Us to You.

29.7 Payment arrangements: If a repayment arrangement is made in relation to any Sum Due and the supply of Goods or Services is resumed, but then a repayment due under that arrangement is not made on time, We may, in Our absolute discretion and without prior notice, again suspend or discontinue the supply of Goods or Services to You.

29.8 Power of attorney: You irrevocably appoint Us as Your attorney to do anything We consider fit for the recovery of the Sum Due or the creation, perfection or enforcement of any collateral held or to be held as security for any Sum Due.

29.9 Other remedies: We may exercise any of Our rights and remedies, including taking legal action against You for the recovery of any monies due to Us, notwithstanding We may have exercised other rights under these Conditions.

29.10 Direct debit and card payments: Where You choose, or are required under this Agreement, to pay by direct debit, You authorise Us and Our payment provider to debit from Your nominated credit card and/or bank account all amounts payable under this Agreement as they fall due.

29.10.1 You must complete and return Our Direct Debit Request form and provide valid credit card and/or bank account details. You must ensure that the nominated account or card has sufficient clear funds available on the due date and that the details remain current.

29.10.2 By providing Your credit card and/or bank account details, You confirm that You are authorised to operate that account or card and to permit direct debits from it.

29.10.3 Where You pay by credit card, You will pay all card processing fees, merchant service fees and any surcharges applied to that transaction. These fees and surcharges will be added to the amount debited and will not exceed Our reasonable cost of accepting that payment method.

29.10.4 If any direct debit is dishonoured or rejected for any reason, We may charge You any fee charged to Us by Our bank or payment provider for the failed transaction and either debit the payment and any such fee again on a later date or require You to make payment by another approved method.

29.10.5 If You wish to change or cancel Your direct debit arrangements, You must notify Us in writing. Any change or cancellation will only take effect after We have had time to process Your request, and You remain liable for all amounts that fall due before that time.

29.10.6 Your direct debit is also subject to the Direct Debit Request and Direct Debit Service Agreement of Our payment provider. If there is any inconsistency between those terms and this Agreement in relation to the direct debit process, the terms of the Direct Debit Request and Direct Debit Service Agreement will apply.

29.11 Direct debit as condition of supply: For a Managed Service Agreement, and for any other Agreement where the Proposal or Service Schedule states that payment is by direct debit, payment by direct debit is a condition of supply. If You cancel Your direct debit or do not maintain a valid direct debit arrangement and do not pay any amount due by the due date using another approved payment method, that amount will be treated as unpaid and the late payment provisions in this clause will apply.

30. Non solicitation of clients and employees

30.1 You agree that employees are one of Our most valuable assets. Our policy and professional ethics require that Our employees not seek employment with, or be offered employment by, You during engagement and for a period of two (2) years thereafter (or the maximum amount permissible by a Court).

30.2 You agree that Our damages resulting from breach of this clause 30.1 would be impracticable and that it would be extremely difficult for Us to ascertain the actual number of damages. Therefore, in the event You violate this provision, You agree to immediately pay Us 100% of the employee’s total annual salary, as liquidated damages, and We have the option to terminate this Agreement without further notice or liability to You. The number of liquidated damages reflected here is not intended as a penalty and is reasonably calculated based upon the projected costs We would incur to identify, recruit, hire and train suitable replacements for such personnel.

31. Software

31.1 All Software licences not purchased by Us are the responsibility of You and it is Your responsibility to hold them so that they can be reproduced when required. This includes all Software installed by Us.

31.2 You indemnify and hold Us harmless against any claim, allegation, loss, damage or expense arising directly or indirectly from:

31.2.1 any unauthorised Software use by You.

31.2.2 any breach of any Software licence in respect of Software provided to Us by You to be installed on one of Your computers.

31.2.3 otherwise as a result of Us installing Software at Your premises where You are not authorised to use the Software.

31.2.4 any problem, defect or malfunction associated with any Software (or related services) supplied by third parties.

31.3 All copyright in custom software remains the sole property of Ours unless alternate arrangements are made as part of a separate software agreement.

32. Backup and data protection

32.1 Backup and data protection: Unless a backup or data protection service is expressly included in Your Plan, You are solely responsible for backing up Your data, systems and configuration and for verifying that those backups are complete and restorable. We are not responsible for any loss of data, loss of configuration or business interruption that arises from Your failure to maintain adequate and restorable backups.

32.2 Where a backup or data protection service is included in Your Plan, Our responsibility is limited to providing that service as described in the applicable Proposal or Service Schedule. Recovery Point Objectives (RPO), Recovery Time Objectives (RTO), retention periods and restore processes apply only as stated in that Proposal or Service Schedule.

33. Security recommendations

33.1 We may from time to time recommend security controls for Your environment, including but not limited to endpoint protection, multi factor authentication, email filtering, conditional access, patching, network segmentation and backup. You are responsible for deciding whether to implement these controls.

33.2 If You choose not to implement a recommended control, or You disable or weaken an implemented control, You accept the increased risk from that decision. To the extent permitted by law, We are not liable for any Security Incident, data loss, business interruption or other loss that would likely have been prevented or reduced if the recommended control had been in place and operating as intended.

34. BYOD (personal devices)

34.1 Personal and BYOD devices: Unless We agree otherwise in writing, Services under this Agreement do not include support for personal or bring your own devices that are not owned or leased by You. We may agree to provide support for such devices on an Out of Scope Support basis at the rates in Our Rate Schedule, and only where the device meets any minimum standards that We notify You (such as supported operating systems, security software and patch levels). We may refuse to provide Services in relation to any device that We consider unsuitable, unsafe or incompatible with the Supported Environment.

35. Copyright and confidentiality

35.1 Warranty and breach: You warrant that any confidential or copyright information or intellectual property (of any kind and in any form) held or provided by You to Us belongs to You. In the event of any breach of this warranty, You must pay all sums due to Us as if such warranty had not been breached (and regardless of any non performance of any obligation by Us on account of or in connection with the breach of such warranty). You indemnify and hold Us harmless in respect of any allegations, claims, loss, costs or expenses in connection with such breach of warranty by You.

35.2 Retention of title: All copyright and other intellectual property rights in any Work created, commissioned or acquired by Us in the course of the supply of Services by Us to You is the exclusive property of Ours unless otherwise agreed in writing by Us and You.

35.3 Confidential information: We acknowledge that in the course of providing Services to You, We may learn from You certain non public personal and otherwise confidential information relating to You, including Your customers, consumers or employees. We will regard any and all information We receive which in any way relates or pertains to You, including Your customers, consumers or employees, as confidential.

35.4 You also acknowledge that all information and services, consulting techniques, proposals, and documents disclosed by Us or which come to Our attention during the course of business and provided under this Agreement constitute valuable assets of, and confidential and/or proprietary information to, Us. As such, both parties must take all commercially reasonable steps not to disclose, reveal, copy, sell, transfer, assign, or distribute any part of such information in any form, to any person or entity, or permit any of their employees, agents, or representatives to do so for any purpose except as permitted in writing by the disclosing party or as required by applicable law.

WORK TYPES

Depending on the type of work You need, the below are the way any charges will be calculated.

Work type	Multiplier	Unit type	Minimum	Base rate (inc Tax)
Remote support	1	Hour	0.25	$40.00
Onsite support	1	Hour	0.50	$80.00
Call out fee (Outside of 12 km)	N/A	Per visit	–	$50.00
Emergency ticket upgrade	1.50	Per ticket	–	$240.00
After Hours support (5 pm – 10 pm) / (6 am – 9 am)	1.50	Hour	1	$240.00
After Hours support (10 pm – 6 am)	2.00	Hour	1	$320.00

APPENDIX A

Service request lodgement process

When You contact Us to lodge a service request, only the methods below must be used:

Phone: (07) 3733 2043

Email: support@itstart.com.au

Include a short description of the problem and any screenshots of errors to assist in the resolution of the issue.

If the issue is being lodged by either phone or external email, You must include Your name, company and return contact details.

Service requests must not be lodged directly with technicians, as this detracts them from resolving the current issue.

Service requests outside of Our Business Hours

Service requests that must be addressed outside of Business Hours must be lodged by phone (charges apply for after hours work). If not, the service request will be viewed on Our next Business Day.