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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
MicroThin may sub-contract the performance of any of its obligations under the Customer Agreement without notice.
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