TERMS AND CONDITIONS
Of Supply Contract Between
Country Consulting Pty Ltd
ABN 39 095 735 989
(“Provider”)
And
(“Clients”)
Last updated: 10/06/2010
1.0 Agreement Summary
1.1 This Agreement
(a) Describes the obligations of the Client and Country Consulting in relation to the provision of the Country Consulting Services by Country Consulting to the Client.
(b) Describes the miscellaneous terms and conditions in relation to the provision of the Country Consulting Services by Country Consulting to the Client.
(c) Defines the conditions of use regarding any software the Client may access using the Country Consulting Services.
1.2 Additional obligations and terms and conditions (“Additional Terms”) may apply for specific Country Consulting Services, schedules of which will be listed at the end of this Agreement.
1.3 Agreement between the Client and Country Consulting
1.3.1 The Country Consulting Services are offered to the Client conditioned on the Client’s acceptance without modification of the terms, conditions, and notices contained herein. The Client’s use of the Country Consulting Services constitutes the Client’s agreement to all such terms, conditions, and notices.
1.4 Modification of these Terms of Use
1.4.1 Country Consulting reserves the right to change the terms, conditions, and notices under which the Country Consulting Services are offered, including but not limited to the charges associated with the use of the Country Consulting Services. The Client will be notified via email of any alterations to these terms and conditions. The Client’s continued use of the Country Consulting Services constitutes The Client’s agreement to all such terms, conditions, and notices.
2.0 Definitions
2.1 “Country Consulting” means Country Consulting Pty Ltd ACN 39 095 735 989
2.2 “Country Consulting Services” means the services provided by Country Consulting Pty Ltd ACN 39 095 735 989
2.3 “Authorisation Form” means a form authorising acceptance of a quotation for the Country Consulting Services.
2.4 “the Client” means an organization or person purchasing the Country Consulting Services and any additional Country Consulting Services as outlined in the Additional Terms.
2.5 “Client Contact” is the person designated by the Client and named in the Supply Contract as the primary contact person for that Client.
2.6 “Client’s Facility” means the physical location of any Country Consulting Services on the Client’s premises.
2.7 “Confidential Information” has its ordinary meaning, including but not limited to:
(a) Information which by its very nature might reasonably be understood to be confidential or to have been disclosed in confidence;
(b) Information which Country Consulting or its directors and/or officers, or the Client or its directors and/or officers. Indicates is confidential;
(c) information which relates to any of the Client’s customers (including customer details, customer lists, details of customer requirements, their identity and their financial affairs) or to any arrangements or transactions between the Client and its customers;
(d) Information which would be of commercial value to a competitor of the Client;
(e) Information which relates to the Client’s financial affairs (including performance or profitability reports, the purchase price of supplies and the price charged to clients);
(f) Information which relates to the marketing and selling techniques used by the Client;
(g) information which relates to the Client’s business requirements;
(h) Any manuals or handbooks produced by the Client or Country Consulting;
(i) information which relates to trade secrets, technical specifications, know-how, plans, design concepts, ideas, design specifications, manufacturing or development processes, research, formulas, processes, applications, unique features or techniques in respect of any of Country Consulting or the Client’s products or services, whether existing or in development;
(j) information which relates to any software or software concept, researched, developed or in development, of or by the Client, including any source code market(s) or potential market(s) for the software and the existing or proposed content, features, benefits or market appeal of the software; and
(k) all records based on or incorporating information referred to in paragraphs (a) to (k) of this definition, except for information that is, or after the day this Deed is executed becomes, available in the public domain (other than as a result of a breach of this Agreement);
2.8 “Data Centre” means the internet data facility in which some or all of the Country Consulting Services are located.
2.9 “GST” means GST within the meaning of the ‘A New Tax System (Goods and Services Tax) Act 1999 (as amended)’.
2.10 “Intellectual Property Rights” means any and all beneficial and legal ownership and intellectual and industrial protection rights throughout the world, both present and future, including rights in respect of or in connection with any confidential information, copyright (including future copyright and rights in the nature of or analogous to copyright), moral rights, inventions (including patents), trademarks, service marks, designs, and performance protection (whether or not now existing and whether or not registered or registrable) and includes any right to apply for the registration of such right and includes all renewals and extensions;
2.11 “Monthly Services” mean those ongoing Country Consulting Services which are billed on a monthly basis.
2.12 “Non-Standard Applications” means any applications not offered under the current pricing schedule.
2.13 “Order Form” means an order form for Country Consulting Services.
2.14 “User” means any person who accesses the Country Consulting Services.
3.0 Provider Obligations
3.1 Service Availability
3.1.1 Country Consulting will use its best efforts to provide Clients system availability, excluding scheduled outages for upgrades and maintenance purposes.
3.1.2 Country Consulting reserves the right to plan a scheduled outage with no less than twenty-four (24) hours advance notice. Country Consulting will use its best efforts to schedule these outages at non-peak hours and limit their occurrence to strictly necessary upgrades and required maintenance.
3.1.3 Scheduled outages will be notified by email to the designated Client Contact.
3.1.4 Additional unscheduled maintenance may occur due to wide scale anti-virus updates or critical software vendor updates. Clients will be notified of these incidents as soon as is practicable via phone, SMS or emai!.
3.2 Data Security
3.2.1 Country Consulting will store any and all Client data in secure directories that require authenticated access.
3.3 Software Versions
3.3.1 Country Consulting will update and maintain the latest versions of all software associated with the Country Consulting Services to the Client. For non-standard software and services an hourly rate may apply – see Item 4 of Schedule 1.
4.0 Client Obligations
4.1 Minimum Technical Requirements
4.1.1 The Client acknowledges that Country Consulting provides products that have manufacturer warranties and if the Clients breaches an of those warranties they also breach any warranties or guarantees offered by Country Consulting. It is the Client’s responsibility to ensure that their staff are adequately aware of the same.
4.1.2 It is the Clent’s responsibility to ensure that all desktop computers or devices which were not provided by Country Consulting and which are used to access the Country Consulting Services are capable of accessing the Country Consulting Services. This includes ensuring that all relevant service packs are up to date and functioning.
4.1.3 Should these minimum requirements not be met, the Client must either use its own resources or instruct a third party to implement the updates. Alternatively, the Client may direct Country Consulting to implement the updates on its behalf at a negotiated rate. Country Consulting reserves the right to use the services of third party providers if required.
4.1.4 The Client must ensure that all desktop and network hardware which is not provided by Country Consulting is of adequate size, power and capacity to support the Country Consulting Services. Minimum requirements vary according to the requirements of the organization and any specific software requirements.
4.1.5 Furthermore, it is the Client’s responsibility to ensure that all hardware is functioning properly. Unless otherwise agreed in writing Country Consulting does not support Client hardware malfunctions, nor can it be held responsible for any degradation in the Country Consulting Services which are due to hardware malfunctions or performance issues at the Client’s Facility.
4.2 Connection to Country Consulting Services
4.2.1 It is the Client’s responsibility to ensure that all connections to the Country Consulting Services are adequate and functioning. Country Consulting does not take responsibility for loss of connection to the Country Consulting Services where the connection is provided by third party Communications Providers.
4.3 Remote Access
4.3.1 It is the Client’s responsibility to ensure that access to the Client’s Facility is allowed. This may include, but is not limited to, enabling firewall ports to allow secure remote access by Country Consulting.
4.4 Authorised Client Contact
4.4.1 The Client must nominate an individual within its organization to act as the Authorized Country Consulting Client Contact. The Authorised Client Contact will be first point of contact for all notifications and communications to the Client.
4.5 Notification of Scheduled Outages
4.5.1 It is the responsibility of the authorised Client Contact to notify all persons within their organisations of scheduled outages.
4.6 User Account Registration
4.6.1 It is the Client’s responsibility to ensure that all account registration information associated with the Country Consulting Services is current, complete and accurate.
4.7 Passwords and Security
4.7.1 Users are required to at all times to maintain the confidentiality of their passwords and accounts. Users are entirely responsible for any and all activities that occur under their accounts.
4.7.2 Users must not share their login identifier or password.
4.7.3 Country Consulting will not be liable for any loss that the Client may incur as a result of unauthorised access or other Users accessing a User’s accounts or passwords. However, the Client may be held liable for losses incurred by Country Consulting or another party as a result of someone else using a User’s account or password.
4.7.4 The Client agrees to notify Country Consulting immediately of any unauthorized use of a User’s account or any other breach of security.
4.7.5 Users must select passwords that are six (6) characters in length, or longer. We recommend that passwords include mixed alpha and numeric text, and contain at least one uppercase and one lower case character.
4.8 Personal and Commercial Use Limitation
4.8.1 Unless otherwise specified, Country Consulting Services are for the Client’s commercial use. The Client and its Users may not modify copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information, software, products or services obtained from Country Consulting.
4.9 No Unlawful or Prohibited Use
4.9.1 As a condition of your use of the Country Consulting Services, you will not use the Country Consulting Services for any purpose that is unlawful or prohibited by these terms, conditions, and notices.
4.9.2 Users must not use the Country Consulting Services in any manner which could damage, disable, overburden, or impair Country Consulting Services or interfere with any other party’s use of the Country Consulting Services.
4.9.3 Users must not attempt to gain unauthorized access to Country Consulting Services, other accounts, computer systems or networks connected to the Country Consulting Services, through hacking, password mining or any other means.
4.9.4 Users may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Country Consulting Services.
4.10 Back-up
4.10.1 It is the Clients sole responsibility to ensure that any system or hardware or software package is back-up sufficiently to meet their business needs prior to and after any works undertaken by Country Consulting and therefore Country Consulting takes no responsibility for any loss or change in data or systems as a result of any works they complete.
5.0 Contract Terms & Conditions
5.1 General Payment Terms
5.1.1 Clients will be charged for the Services in accordance with Schedule 2, as amended from time to time.
5.1.2 Clients will receive twenty eight (28) days prior notice of fee increases which exceed the official Australian CPI.
5.1.3 Upon termination of all Country Consulting Services, the relevant outstanding charges are immediately due and payable.
5.1.4 All Country Consulting invoices issued to the client will be inclusive of GST charges. GST will be itemised as a separate amount on Tax Invoices to assist in claiming Input Tax Credit
5.1.5 Country Consulting reserves the right to charge a late payment fee of 2% interest per month on invoices that are outstanding more than 45 days from the date of issue. Interest will be calculated daily and will be capitalised monthly until full payment is made. Country Consulting may also charge the administrative and recovery fees. Late payment of any invoice may, at Country Consulting’s sole discretion, result in forfeiture of any agreed discounts and the suspension of services.
5.2 Payment Terms – Monthly Services
5.2.1 Monthly Services are invoiced in arrears after completion and payable within Seven (7) days of date of invoice.
5.3 Payment Terms – General Terms
5.3.1 All other works invoiced in arrears after completion or in terms of the contract and payable within Seven (7) days of date of invoice.
5.4 Contract Terms
5.4.1 There are no fixed contract terms attached to the Country Consulting Services (unless stated in the Additional Terms or otherwise agreed in writing). This Agreement shall commence on the date specified in the contract, and shall continue until terminated in writing. Any ongoing on-costs that accrue to third party providers that continue to accrue past the termination date shall be payable by the Client if it breaches the existing third party agreement. All costs of terminating such agreements shall be met by the Client.
5.4.2 The Client may terminate the Services at any time by providing no less than ninety (90) days written notice to Country Consulting.
5.5 Indemnity The client indemnifies Country Consulting in respect of any breach by the Client of this Agreement, including in respect of losses suffered by any third party.
5.6 Force Majeure
5.6.1 Neither party shall be liable for any delay or failure to perform its obligations under this Agreement to the extent that such failure is caused by anything beyond its control.
5.7 Subcontracting and Assigning
5.7.1 Country Consulting may sub-contract or assign its rights under the Agreement. However, the Client is not under any circumstances entitled to do same without the prior written consent of Country Consulting.
5.7.2 Termination! Access Restriction
5.7.3 Country Consulting reserves the right, in its sole and unfettered discretion, to terminate the Client’s access to any or all Country Consulting Services or any portion thereof at any time, without notice.
5.8 General
5.8.1 This agreement is governed by the laws of the State of Queensland, Australia. The Client hereby irrevocably consents to the exclusive jurisdiction and venue of courts in Brisbane, Queensland, Australia in all disputes arising out of or relating to the use of the Country Consulting Services.
5.8.2 Use of the Country Consulting Services is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this paragraph.
5.8.3 The Client agrees that no joint venture, partnership, employment, or agency relationship exists between the Client and Country Consulting as a result of this agreement or use of the Country Consulting Services.
5.8.4 The Client agrees to indemnify and hold Country Consulting, its parents, subsidiaries, affiliates, officers and employees, harmless from any claim, demand, or damage, including reasonable legal fees, asserted by any third party due to or arising out of the Client’s use of the Country Consulting Services.
5.8.5 Country Consulting reserves the right to disclose any personal information about the Client’s Users or their use of the Country Consulting Services, including its contents, without the Client’s prior permission if Country Consulting has a good faith belief that such action is necessary to:
(1) conform to legal requirements or comply with legal process;
(2) protect and defend the rights or property of Country Consulting or its affiliated companies;
(3) enforce the terms of use; or
(4) act to protect the interests of its members.5.8.6 Country Consulting’s performance of this agreement is subject to existing laws and legal process, and nothing contained in this agreement is in derogation of Country Consulting rights and obligations to comply with governmental, court and law enforcement requests or requirements relating to the Client’s use of the Country Consulting Service or information provided to or gathered by Country Consulting with respect to such use. If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations here-in, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect.
5.8.7 Unless otherwise specified herein, this agreement including any written variations agreed from time to time together with the Authorisation Forms provided by the Client from time to time constitutes the entire agreement between the Client and Country Consulting with respect to the Country Consulting Services and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the Client and Country Consulting with respect to the Country Consulting Services. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
5.8.8 Any rights not expressly granted herein are reserved.
6.0 Privacy & Confidentiality
6.1 Privacy
6.1.1 The Privacy Act (Cth) 1988 (as amended) (“Privacy Act”) regulates the way in which personal information is handled. Country Consulting is committed to the principals of the Privacy Act.
6.1.2 Collection and Use – Country Consulting only collects personal information about Clients for the purpose of providing its I. T. support services to the Client. If the requested information is not provided, Country Consulting will not be able to provide its services to the Client as relates to that individual (for example their user account). Country Consulting usually collects personal information directly from the Client. Country Consulting may use the personal information collected to market other relevant products and services to the individual only in their capacity as a Client contact, not as an individual.
6.1.3 Disclosure of Personal Information – Country Consulting only discloses personal information held either to the Client, or to the service providers of Country Consulting (such as our accountants, auditors, lawyers, communications providers or insurers) as an incidental part of their provision of their services to us.
6.1.4 Access and Correction – The Client or the individual should let Country Consulting know if they consider any information Country Consulting holds about them is inaccurate so that Country Consulting may correct their records. To find out more about Country Consulting personal information handling practices, or for an individual to request access to their personal information, please write to: Privacy Officer Country Consulting Pty Ltd PO Box 533 Virginia QLD 4014 Email: marcel@Country Consulting.com.au
6.2 Confidentiality
6.2.1 All parties to this Agreement shall keep confidential all Confidential Information and shall not disclose such items to any third party except as may be necessary by law or for the proper execution of the Services. 6.3 Intellectual Property
6.3.1 There is no transfer of Intellectual Property Rights pursuant to the Agreement or in connection with the Country Consulting Services from Country Consulting (or its Licensor) to the Client and the Client acknowledges that any rights it has to use software owned or licensed to Country Consulting will immediately terminate upon termination of this Agreement.
6.3.2 All parties to this Agreement acknowledge and agree that all existing Intellectual Property Rights in any Confidential Information under the control of the party vests in and belongs to that party.
6.3.3 The Client grants to Country Consulting the right to use or access such Intellectual Property to the extent necessary to perform the Services for the term of this Agreement.
7.0 Disclaimer
7.1 From time to time Country Consulting will make changes to the Country Consulting Services to implement necessary maintenance, and to implement enhancements to the Country Consulting Services. Whilst Country Consulting endeavours to make such changes outside of business hours, Country Consulting and its suppliers may be required to implement these changes at any time.
7.2 Country Consulting and its suppliers make no representations about the timeliness, suitability, reliability, or availability of the Country Consulting services for any purpose. Any and all software, information, products and services are provided on an “as is” basis without any warranty of any kind.
7.3 Country Consulting and its suppliers hereby disclaim all warranties and conditions, including all implied warranties and conditions, with regard to all software, information, products and services and their fitness for any particular purpose, title and non-infringement.
7.4 Despite their best endeavours, Country Consulting and its suppliers make no representations about the lack of viruses, spy-ware or other harmful components of the Country Consulting Services for any purpose.
7.5 In no event shall Country Consulting and its suppliers be liable for any direct, indirect, punitive, incidental, special, or consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the use or performance of the Country Consulting services, with the delay or inability to use the Country Consulting services or related services, the provision of or failure to provide services, or for any information, software, products, and services obtained through the Country Consulting services, or otherwise arising out of the use of the Country Consulting services, whether based on contract, tort, negligence, strict liability or otherwise, even if Country Consulting or any of its suppliers has been advised of the possibility of damages. Some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, and accordingly the above limitation may not apply to you. If you are dissatisfied with any portion of Country Consulting services, or with any of these terms of use, your sole and exclusive remedy is to discontinue using Country Consulting services.
7.6 Country Consulting’s liability to the Client is limited to a refund of the fees paid by the Client to Country Consulting.
8.0 Additional Terms
8.1 All quotes and prices are valid for 30 days only and subject to change without notice as outlined in clause 8.2
8.2 All prices quoted are accurate at the time the quote is prepared. Country Consulting reserves the right to amend the quote and contract amount to reflect the amount that is payable at the date of installation of the service.