General Terms &
Conditions
General Terms &
Conditions
1. General
Definitions & Interpretation.
Agreement means the Customer Agreement, including
any Amendment(s) annexed hereto.
Amendment means an alteration to the Customer
Agreement incorporated into the Customer Agreement.
AUP means Acceptable Use Policy(s) as amended from
time to time and/or posted on the MicroThin website.
Charge(s) means the Monthly Charges and all other
charges and fees set out in the Customer Agreement and/or Amendment(s).
Confidential Information means contents of the
Customer Agreement &/or Amendment(s), the General Terms & Conditions
and the pricing contained within the above mentioned documents constitute
MicroThin’s confidential Information.
Contract Amount means the sum of money specified in
the Customer Agreement Quotation - Annexure A.
Invoice means any account rendered by MicroThin for
the charges payable by the subscriber under the Customer Agreement and/or
Amendment(s).
Installation Charge means the installation charge
set out in the Customer Agreement and/or Amendment(s), payable by the
subscriber 7 calendar days prior to or on the installation date
Installation Date means in respect of an item of
MicroThin’s and/or Software, the date on which that item and/or Software of
MicroThin’s which is installed for usage by the subscriber.
Internet Connection means any connection between the
Internet and products and/or services offered by MicroThin for the purpose of
allowing direct usage of products and/or services offered by MicroThin.
ISP means any third party computer network which
connects you to access MicroThin’s products and/or services via the Internet.
MicroThin means MicroThin Industries Pty Ltd A.C.N.
090 164 864 and related Body Corporate of MicroThin as defined in Section 50
the Corporations Law.
One off Charge means the One off Charge set out in the
Customer Agreement &/or Amendment(s), payable by the subscriber 14 calendar
days prior to or on the installation date.
Specified Products and/or Services means Product(s)
& Service(s) specified in the Customer Agreement set out and attached
preceding these General Terms & Conditions, & any Amendments thereto.
Subscriber, You and Your means the person or company
or entity nominated as the customer in the Agreement and/or Amendment(s) and
that party’s successor’s, assigns, subsidiaries and related bodies corporate
within the meaning of section 50 of the Corporation Law.
Term means the period of which the Customer
Agreement and/or Amendment(s) is legally effective from/to the specified dates
and continues for the period indicated in the Customer Agreement and/or
Amendment(s), and thereafter for a further term of the same term unless either
party gives to the other party written notice of termination, such notice to be
provided at least three months prior to the term or unless terminated in
accordance with the Customer Agreement and/or Amendment(s). The original term of the Customer agreement
is 12 Months.
1.1 Interpretation
Headings and underlinings are for convenience only
and do not affect the interpretation.
Words importing the singular include the plural and
vice versa.
Words importing a gender include all genders.
Any reference to a person includes a corporation.
2. MicroThin’s
commitment to Subscriber.
MicroThin will keep all
MicroThin agrees to:-
Supply and/or service products and/or provide
services set out in the Customer Agreement.
Ensure correct and proper procedures to enable
MicroThin to fulfill its obligations under the Customer Agreement.
3. Subscriber
commitment to MicroThin.
You will ensure full term commitment to MicroThin as
set out in the Customer Agreement and on time payments for products and/or
services set out in the Customer Agreement unless terminated in accordance with
these terms; and
You will be responsible for the security and
confidentiality of any
and You may not without prior written consent of
MicroThin:-
(1) Copy of reproduce, in whole or part, any
software and/or publications supplied by MicroThin.
(2) Modify, alter, compile, decompile, disassemble
or reverse engineer any of the MicroThin software and/or MicroThin engineering
or attempt any of the foregoing; and
You accept to indemnify MicroThin and hold MicroThin
harmless (including its directors, employees and agents) against any and all
liabilities, claims and/or proceedings arising out of/or connected with any
breach of the following:-
(a) Usage of the products and/or services which
violates of infringes the rights of any person, or is contrary to any laws or
regulations.
(b) Usage of the products and/or services which
breach the AUP. (Copies of MicroThin’s
product AUPs are found on the MicroThin website or
relevant product AUPs are annexed to the Customer
Agreement).
(c) For any purpose other then that for which the
products and/or services are provided; and
Where the subscriber orders specified products
and/or services or any other work which may properly form the matter of
copyright or internet protection the subscriber warrants that all legal rights
in the works which are required to be performed have been obtained and
undertakes to indemnify MicroThin in respect of any liability for copyright or
internet infringement in consequence upon such work.
4. Term.
Subject to clause 9, the Customer Agreement
commences on the signing of the Customer s Agreement and continues for the
original term and thereafter for a further term of the same length as the
original term unless either party gives the other party written notice of
termination, such notice is to be provided at least Three (3) months prior to
the end of the original term or any subsequent term or unless terminated in
accordance with clause 8.
5. Charges and Payments.
5.1 The monthly charges for products and/or services
supplied by MicroThin within the Customer Agreement are payable within 21
calendar days of the issue date specified on MicroThin’s invoice and represent
the contract amount less the deposit (if applicable), amortized over the
original term of this agreement.
5.2 The amount payable shall be in regards to specified
products and/or services indicated in the Customer Agreement and/or
Amendment(s). These charges may not be
limited to monthly access fees, (if applicable) installation fees and/or any
miscellaneous charges and will be in addition to the contract amount. All invoices will reflect any Goods and
Services Taxes applicable under Australia Federal Taxation Laws or similar
Taxes implemented by State or Federal laws.
5.3 Any change to the monthly charges will be
indicated on an invoice. However no price change, either increasing or
decreasing will be effected until you are notified by MicroThin in writing at
least 21 calendar days prior to the immediate Billing Period. Price change(s) will be implemented from the
start of the Billing Period immediately after the expiry of the 21 day notice
period.
5.4 Payments for the products and/or services
provided by MicroThin will be accepted by cash, cheque,
credit card or direct bank deposit into MicroThin’s nominated bank
account. Where any payment is via cheque, your account will be in debit until the submitted cheque has been fully cleared by the issuing bank.
5.5 An interest rate of 10% per annum will be
charged on all outstanding accounts over 60 days, unless a prior arrangement
has been made.
5.6 Rush provision of specified products and
services by MicroThin at the Subscribers request, may carry an additional
charge.
5.7 Installation Charge is a separate charge from
the contract amount, the deposit and charges referred to in clause 5.2. The
installation charge set out in the Customer Agreement and/or Amendment(s),
payable by the subscriber 7 calendar days prior to
or on the installation date
6. Suspension of
Services and Breach of Contract.
6.1 MicroThin may at any time suspend the access to
any services supplied by MicroThin.
However reasonable and practicable notice will be given prior to any
suspension of services. This may be
carried out without any liability to MicroThin.
6.2 The suspension of services may be enforced by:-
MicroThin and no responsibility shall be attached to
MicroThin for any delay, default, loss or damage due to any of the foregoing:-
(a) Account is more then 32 days outstanding from
the date of original issue of immediate billing period invoice.
(b) It is
necessary for urgent repairs to our network.
(c) MicroThin is obliged to comply with an order,
instruction or request of a Government, an emergency services organization or
other authorised Authority.
(d) MicroThin is entitled to suspend the
Subscriber’s access because of a breach of this agreement.
(e) In the event of any tempest, riot, civil
disturbance, war, strike, fire, accident, theft, crime or cause which could not
have been prevented by MicroThin and which reasonably prevents or retards the
provision of the specified products and/or services.
6.3 MicroThin shall be entitled to terminate the
Specified Products and/or Services in the event of any breach of the Subscriber
or his agent of any term contained herein or otherwise forming part of this
contract or the Subscriber or his agent being unable to pay his debts, or
committing an act of bankruptcy, entering into administration or liquidation or
entering into a scheme of arrangement with its creditors or, if being a
company, being placed under Official Management of a Receiver being appointed
under any Debenture or Charge issued or granted by it, or an Inspector being
appointed by the other party under the provisions of the Corporations Law. Compensation for costs incurred and loss of
profit up to the termination of the Specified Products and/or Services shall be
the responsibility of the Subscriber or his agent.
7. Suitability.
Where specified goods and/or services are provided
or work is done in accordance with the Subscribers order. No warranty, except
those provided by statute and which cannot be excluded is given or shall be
given that the specified goods and/or services are suitable in nature, size,
shape, capacity, quality, or otherwise for the purpose for which the goods
and/or services are bought.
8. Termination
and Default.
8.1 A Party may terminate the Customer Agreement
immediately by written notice if the other party breaches the Customer
agreement in any way and/or if the breach fails to be rectified within 14 days
after written notice to do so, (as long as the breach is within the control of
the offending party).
8.2 A breach of the Customer Agreement is deemed as:-
(a) A subscriber suspends payment of their debts by
more then 60 calendar days.
(b) Either party is insolvent or a receiver, an
administrator or manager is appointed for the whole or part of the subscriber’s
undertakings or assets.
(c) Either party ceases to carry on business.
(d) Either party breaches any license, permit,
authorization or law relating to the use of the products and/or service
provided in the Customer Agreement.
(e) If MicroThin’s ability to supply the products
and/or services set out in the agreement is frustrated, restricted or otherwise
limited in a way which, in the opinion of a Third Party Arbitrator, has an
impact on the way the agreement may be fulfilled. The appointment of any third part Arbitrator
will be at MicroThin’s discretion. Any
payment(s) to the Arbitrator will be fully compensated by the Subscriber.
8.3 Termination requirements either early or on
conclusion of the Customer Agreement are as follows:-
(a) All charges accrued but unpaid are to be fully
paid. (Including those set out in Clause
8.2(e).
(b) Any de-installation charges if applicable. De-installation charges are in addition to
all other charges payable under this agreement.
(c) Any Hardware belonging to MicroThin must be
returned in good working order and repair or access to same made available for
collection by an appointed agent of MicroThin or an employee of MicroThin.
Any software, confidential
8.4 Subject to all compliances set out in clause
8.3, as soon as reasonably practicable after termination MicroThin will provide
to Subscriber or as directed by Subscriber to a third party, any reasonable documentation
required from MicroThin to transfer Subscriber system data to another supplier.
9. Warranty
& Limitation of Liability.
9.1 MicroThin
warrants that it has the right and authority to permit the Subscriber to use
the products and/or services on the terms and conditions of the Customer
Agreement and/or Amendment(s). If under
any law any terms, conditions or warranties which apply to the supply of
products and/or services pursuant to the Customer Agreement and/or Amendment(s)
cannot legally be excluded, restricted or modified then those terms, conditions
and warranties apply to the extent permitted by law.
9.2 Where
any Act of Parliament overrides the Customer Agreement and/or Amendment(s), any
term, condition or warranty of that Act voids or prohibits provisions in this
contract excluding or modifying its application, such term, condition or
warranty of the said Act will be deemed to be included in the Customer
Agreement and/or Amendment(s).
9.3 The
liability of MicroThin for any breach of any term, condition or warranty where
the Subscriber suffers any loss or damage of any kind as a result of the act or
default of MicroThin is limited, at the opinion of MicroThin, to any one or
more of the following:-
(a) In the
case of specified products and/or services supplied:-
The replacement of the specified products and/or
services and the supply of equivalent specified products and/or services.
(b) The repair of such specified products and/or
services as the case may be.
(c) The payment of the cost of replacing the
specified products and/or services repaired.
(d) The payment of having the specified goods and/or
services repaired.
(c) The supply of the specified goods and/or
services again as the case may be.
9.4 The
Subscriber warrants that it has not relied upon any descriptions or
illustrations or specifications contained in any document including any
catalogues or publicity material produced by MicroThin nor upon any
representation or warranty made by MicroThin other than expressly set out in
the Customer Agreement and/or Amendment(s).
9.5 Limitations
on Liability.
Except to the extent that the Subscriber has the
benefit of any non-excludable statutory rights, whether as a Subscriber or
otherwise. MicroThin shall not be liable
for any loss whatsoever caused to the Subscriber by any act or default of
MicroThin, its servants or agents whether or not such act or default is
negligent or willful or otherwise actionable in tort and whether or not such
act or default constitutes a breach or any contractual duty owed to the
Subscriber by MicroThin. Without
limiting the generality of the foregoing, MicroThin shall not be liable (except
to the extent of any liability imposed by statute and which liability cannot as
a matter of law be excluded by agreement between the parties) whatsoever for
any loss or damage. Any such failure,
alteration or supply shall not (except to the extent that by statute a defence is given which cannot as a matter of law be
excluded by agreement between the parties) constitute any defence
to any claim made by the MicroThin for payment in respect of any work carried
out by MicroThin.
9.6 MicroThin
and its directors, employees, contractors and agents are not liable for any
damage, economic loss or loss of profits whether direct, indirect, general,
specific or consequential if the claims are in breach of any implied or express
term, condition or warranty set out in the Customer Agreement and/or
Amendment(s).
10. Title and
Ownership.
10.1 MicroThin
retains title and ownership and/or where applicable its agents, leasers or
licensors owns any MicroThin supplied Hardware, MicroThin supplied software, or
any software developed by MicroThin for the Subscriber, any documentation,
enhancements and/or modifications
to such to the exclusion of the subscriber. This includes but is not limited to any
copyright and/or intellectual property rights.
10.2 The
Subscriber must not remove or obscure any
Identification on any MicroThin supplied hardware or
software or copy any documentation, (without prior written consent from
MicroThin).
10.3 The
Subscriber acknowledges that MicroThin owns any replacement parts of hardware
and/or versions of software supplied by MicroThin.
10.4 In
the event of clause 8.2(B) &/or 8.2(C) only, becoming effective, the party
which is not in breach of clause 8.2(B) &/or 8.2(C) only, will have the
First Right to purchase any hardware &/or software which has been in direct
use for the purpose of the deliverance of any product(s) &/or service(s)
previously obtained or delivered before the event stipulated in clause 8.2(B)
&/or 8.2(C) only.
The purchase price of any hardware &/or software
effected by this clause, shall be guided by the current market value of the
hardware &/or software at the time of purchase this clause came into
effect. The final purchase will be at the discretion of a Third Party
Arbitrator. The assignment of any Third Party Arbitrator will be at MicroThin’s
discretion.
11. Confidentiality.
11.1 The
Subscriber acknowledges that the contents of this Agreement and/or
Amendment(s), the terms & conditions and the contract amount contained
herein constitute MicroThin’s confidential
11.2 The
Subscriber agrees not to disclose the confidential
11.3 Both
Parties of this Agreement agree not to disclose any confidential information of
the other party without prior written consent.
Exception to this are:-
(a) Disclosure is required by law.
(b) The information is within the public domain.
12. Force
Majeure.
Except for any payment obligations, neither party
will be liable for any delay, suspension or failure to perform any of the
obligations under this Agreement which may be caused by any act of God, act of
terrorism, act of Government, labour dispute or any event deemed beyond that
party’s reasonable control. Those events
include but not limited to delays caused by electrical failure, equipment or
telephone suppliers, ISP’s or other common telecommunication carrier’s
failures.
13. Notices.
All notices, consents and other communications
required to be given under this agreement must be in legible written English,
it may be delivered by hand, registered or non registered mail or by a
facsimile to the address of the receiving party given in this Agreement or to
an alternative address notified to the party giving the notice, consent or
communication. E-mail notifications
which may affect the Customer Agreement and/or Amendment(s) will not be
accepted by either party.
14. General.
14.1 Assignment
The subscriber must not assign, mortgage, charge or
sub-licence any of its rights or sub-contract or
otherwise delegate any of its obligations under this Agreement without the prior
written consent of MicroThin.
14.2 Consents.
Where any part of the Customer Agreement and/or
Amendment(s) require either Party’s consent or approval, that consent or
approval may be given conditionally or withheld by either party as the affected
party decides, and written direction is given concluding the matter, unless the
Customer Agreement specifically provides otherwise direction.
14.3 Entire
Agreement.
The Customer Agreement constitutes the entire
agreement and understanding between both parties in relation to the subject
matter specified products and/or services provided by MICROTHIN and obligations
of both parties.
14.4 Indemnity.
The Subscriber irrevocably and unconditionally
agrees to indemnify MICROTHIN and at all times to keep MICROTHIN indemnified
against any loss or damage suffered by MICROTHIN arising out of:-
any failure of the Subscriber to pay the charges
duly and punctually.
any failure of the Subscriber to observe or perform
any of its obligations under this agreement.
14.5 Logo’s.
Neither party shall use the other parties registered
company logos and/or associated company logos for advertising, branding of
products and/or for the benefit of either party unless prior written approval
is received from the consenting party.
14.6 Severability.
If any part or section of the Customer Agreement is
found to be unlawful, unenforceable and invalid for any reason, the Customer
Agreement will remain in force apart from those provisions which are unlawful,
unenforceable or invalid.
14.7 Sub-Contracting.
MicroThin may sub-contract the performance of any of
its obligations under the Customer Agreement without notice.
14.8 Support
MicroThin agrees to provide a telephone Support
Centre staffed by employees, agents and/or subcontractors capable of providing
technical and functional assistance.
MicroThin will also provide on site support where
MicroThin or the Subscriber finds it necessary to rectify any MicroThin
specified product and/or service(s) malfunction or usage guidance.
14.9 On
site support is an additional charge which will be subject of quotation. Upon acceptance of the quotation the said
quotation will form part of this agreement.
The Support Centre personnel are contactable via
MicroThin’s
1300 781 333 phone number, E-Mail support@MicroThin.com.au
or through our website interaction www.microthin.com.au.
15 Additional
and/or Variation of Products and/or Services.
15.1 If
the Subscriber wishes to apply for additional products and/or services during
the term of the Customer Agreement an Amendment will be attached to the
Customer Agreement noting the changes and/or additional products and/or
services.
15.2 Any
Amendment will reflect the accepted additional products and/or services. The
amendment will override the Customer Agreement to the extent of any
inconsistency in the areas specified in the Amendment.
15.3 During
the Term of the Customer Agreement, if an Amendment is requested, the date of
installation of` the requested product and/or commencement of the new or
additional services will recommence a term of commitment equivalent to the
original term of commitment stated in the Customer Agreement, unless specified
otherwise on the amendment.
16. Governing Law
and Jurisdiction.
The Customer Agreement is governed by the laws in
force in the State of
The Subscriber and MICROTHIN submit to the
non-exclusive jurisdiction of the