General Terms and Conditions
- In the Contract, unless the contrary intention is expressed, defined terms have the meanings set out below and in Schedule 1.
- EXCITE IT means ExciteIT Pty Ltd (ABN 35 126 260 660).
- Claim means any claim or cause of action in contract, tort, under statute or otherwise.
- Client means the client referred to in Schedule 1.
- Commencement Date means the commencement date set out in Schedule 1.
- Conditions means these General Terms and Conditions between EXCITE IT
and the Client.
- Confidential Information means the Contract, any information (regardless of
form) disclosed or otherwise made available by a disclosing party to the party receiving the information, for, or in connection with the Contract, including
(a) is marked as being proprietary or confidential to the disclosing party; or
(b) in the circumstances surrounding disclosure, or because of the nature of the information, ought in good faith be treated as confidential; whether the information was:
(c) disclosed or created before, or after the date of the Contract; or
(d) disclosed as a result of discussions between the parties concerning or arising out of the Contract.
- Consequential Loss means loss or damage arising from a breach of, contract,
tort (including negligence), under statute or any other basis in law or in equity
including, but without limitation, the following:
(a) loss of profits;
(b) loss of revenue;
(c) loss or denial of opportunity;
(d) loss of access to markets;
(e) loss of goodwill;
(f) loss of business reputation, future reputation or publicity;
(g) damage to credit rating;
(h) loss of use;
(i) indirect, remote, abnormal or unforeseeable loss,
(j) or any similar loss whether or not in the reasonable contemplation of the parties at the time of execution of the Contract.
- Contract means these Conditions, the Proposal, the conditions contained in any credit application made by the Client to EXCITE IT and any conditions imposed by EXCITE IT as conditions on which credit is granted.
- Corporations Act means the Corporations Act 2001 (Cth).
- Credit Limit means the amount notified to the Client by EXCITE IT as being the maximum amount of credit available to the Client (if applicable).
- Documents means all material stored by any means and produced or used by EXCITE IT which is relevant to the performance by EXCITE IT of the Services and delivery of the Goods and for use by the Client during the Term and any
direction or agreement recorded in writing modifying or clarifying any matter
relating to this Agreement.
- Expiry Date means the expiry date set out in in Schedule 1.
- Goods means the goods to be delivered by EXCITE IT to the Client in accordance with the Contract.
- Goods Fee means the fees payable by the Client under the Contract in consideration for EXCITE IT providing the Goods to the Client.
- Governing State has the meaning given in Schedule 1.
- GST has the meaning given in the GST Act.
- GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth) and the related imposition Acts of the Commonwealth. Expressions defined in the GST Act have the same meaning when used in the Contract.
- Insolvency Event means the happening of any of the following events in
relation to a party:
(a) a party commits an act which is defined as “an act of bankruptcy” under the Bankruptcy Act 1966 (Cth), regardless of whether or not the party is an individual;
(b) an application is made to a court for a provisional or final order declaring a party provisionally or finally bankrupt or insolvent;
(c) the party is unable to pay all the party’s debts as and when they become due and payable or the party has failed to comply with a statutory demand as provided in section 459F of the Corporations Act or the party is deemed to be unable to pay
the party’s debts under section 585 of the Corporations Act;
(d) a mortgagee, charge or other holder of security, by itself or by or through an agent, enters into possession of all or any part of the assets of the party; or
(e) the party becomes an insolvent under administration, as defined in the Corporations Act.
- Intellectual Property Rights includes rights in relation to present and future copyright, confidential information, patents, inventions, registered and unregistered trademarks and registered or unregistered designs and includes any right to licence and sub-licence any of the above.
- Legislative Requirements means Acts, laws, ordinances, regulations, by-laws, orders, awards and proclamations whether Commonwealth, State or local, including stock exchange listing rules applying to either Party.
- Loss includes any damage, loss, cost, Claim, liability or expense.
- Proposal means the proposal document prepared by EXCITE IT for the Client, which may be in the form of an online request submitted via the EXCITE IT
- Services means the services specified in the Proposal and includes any variation to the Services in accordance with clause 7.
- Services Fee means the fees payable by the Client under the Contract in consideration for EXCITE IT providing the Services to the Client, as set out in
- Schedule means the schedules to these Conditions.
- Site has the meaning given in clause 8.1 (Access to Site).
- Term has the meaning given in clause 2 (Term).
The Contract commences on the Commencement Date and, subject to clause 13 (Termination), continues until the Expiry Date.
3. PROVISION OF GOODS AND SERVICES
3.1 Goods and Services
During the Term and pursuant to these Conditions:
(a) EXCITE IT agrees to provide the Services to the Client in accordance with the Proposal;
(b) EXCITE IT agrees to provide the Goods to the Client in accordance with the Proposal; and
(c) the Client agrees to pay the Goods Fee and the Services Fee in accordance with the Contract.
3.2 Risk in Goods
(a) Title in the Goods will pass to the Client once the Goods Fee is paid in accordance with the Contract.
(b) Risk of loss of or damage to the Goods will pass to the Client once the Goods are delivered to the Client and EXCITE IT will not be liable to the Client for any loss, cost, damage, expense or claim in relation to the Goods upon delivery of the Goods to the Client.
4. FEES AND PAYMENT
4.1 Payment of fees
The Client must pay to EXCITE IT the Services Fee, and the Goods Fee, as well as any applicable GST, in accordance with the Manner for Payment of Services Fee and Goods Fee set out in Schedule 1 and in accordance with this clause 4.
4.2 Tax invoice
EXCITE IT will provide the Client with a tax invoice for the Services Fee and the Goods Fee, which must:
(a) be a valid tax invoice for the purposes of the GST Act;
(b) set out the amount being charged in that invoice;
(c) include details of the Goods and Services provided by EXCITE IT; and
(d) include EXCITE IT ABN.
4.3 No set off
(a) The Client may not, by reason of any set-off, counterclaim, abatement, Claim, or analogous deduction, withhold payment of any amount due and owing to EXCITE IT for the Goods and the Services.
(b) EXCITE IT may at any time and without prior notice to the Client deduct from or set off against any amounts which are due to or which are held for or on behalf of the Client the amount of any indebtedness or liability in respect of the Goods and Services provided by EXCITE IT.
4.4 Failure to pay
(a) If the Client fails to pay the Services Fee or the Goods Fee in accordance with this clause 4, without having given notice of dispute pursuant to clauses 14 and 17, EXCITE IT will be entitled, (without prejudice to any other right or remedy it may have) to do one or more of the following:
(i) suspend carrying out all or any part of the Services and/or credit until payment is made;
(ii) enter the place where the Goods are stored to retrieve the Goods; and
(iii) appoint a mercantile agent or collection agency and/or solicitor to collect overdue payments.
(b) If EXCITE IT appoints a mercantile agent or collection agency and/or a solicitor under clause 4.4(a), EXCITE IT has the right to collect from the Client:
(i) reasonable collection costs; and/or
(ii) reasonable legal costs incurred by EXCITE IT on an indemnity basis.
4.5 Application of payments
The Client agrees that any time that it makes a payment to EXCITE IT, irrespective of whether the payment is made under or in connection with the Contract, that EXCITE IT may apply that payment in any manner that EXCITE IT sees fit.
5. CREDIT LIMIT
(a) The Client must not exceed the Credit Limit at any time.
(b) Any excess is immediately payable to EXCITE IT as a debt due and owing on demand.
(c) EXCITE IT may, in its absolute discretion, at any time:
(i) refuse to carry out all or any part of the Services;
(ii) refuse to deliver all or part of the Goods; or
(iii) suspend the Client’s credit account, without notice, if the Client’s credit account balance exceeds the Credit Limit, until such time as any excess is paid and the Client’s credit account is within the Credit Limit.
6. REPRESENTATIONS AND WARRANTIES
The Client represents and warrants to EXCITE IT (and EXCITE IT relies on this to enter into the Contract) that:
(a) (incorporation) if the Client is a corporation, it is duly incorporated and validly existing under the laws of its place of incorporation;
(b) (power) it has the power to enter into, deliver and perform its obligations under the Contract;
(c) (authorisation) the entry into, delivery and performance of the Contract has been duly authorised by all necessary action on its part and will not violate any law (including any Legislative Requirements) or other agreement binding the Client;
(d) (enforceable) the Contract constitutes legal, valid and binding obligations of the Client, enforceable against the Client in accordance with its terms; and
(e) (Insolvency Event) no Insolvency Event has occurred or is still subsisting in relation to the Client.
7. VARIATION TO CONTRACT
(a) EXCITE IT and the Client may vary any provision of the Contract providing both parties are in agreeance and must document the Variation to Contract in writing.
(b) Both parties acknowledge that any Variation to the Contract may impact delivery and completion times.
8. ACCESS TO SITE BY EXCITE IT
8.1 Access to Site
The Client will provide to EXCITE IT access to any site owned, leased or otherwise controlled by the Client (Site) as is reasonably necessary for EXCITE IT to carry out the Services or deliver the Goods.
8.2 Workplace health and safety
EXCITE IT acknowledges and agrees that during the Term (whether or not the performance of the Services or delivery of the Goods requires EXCITE IT to enter the Site), EXCITE IT will comply with all applicable Legislative Requirements and all reasonable directions from the Client in relation to workplace health and safety at all times while on the Site or performing the Services or delivering the Goods.
9. INTELLECTUAL PROPERTY
Ownership of, and all Intellectual Property Rights in, any material produced by or on behalf of EXCITE IT in the course of performing the Services and delivering the Goods (Contract Material) will vest in EXCITE IT immediately on its creation.
EXCITE IT grants to the Client a perpetual, non-exclusive, royalty-free licence to use the Contract Material only for purposes directly related to the Goods and the Services.
10. INSURANCE AND RISK
EXCITE IT must hold an insurance policy with a reputable insurer covering its professional indemnity risk for an amount not less than $10,000,000 per occurrence. EXCITE IT will provide the Client with a certificate of currency to evidence that it holds that insurance on request.
(a) The parties agree that they are liable for and indemnify each other against all Loss (including legal costs and expenses on a solicitor/own client basis), liability (including for any loss or damage to property, or damage, injury or death to any person) and Claims by any person, arising directly or indirectly from or in connection with any one or more of the following:
(i) the breach of any provision of the Contract by either party or any of its employees, officers, subcontractors or agents;
(ii) the breach of any Legislative Requirements by either party or any of its employees, officers, subcontractors or agents; and
(iii) the negligence of either party or any of its employees, officers, subcontractors or agents.
(b) The indemnities in this clause 11 are continuing obligations which are separate and independent of any other obligations and survive termination or expiry of the Contract, and exclude Consequential Loss as at 12(b).
12. LIMITATION OF LIABILITY
(a) Despite any other provision of the Contract, nothing in the Contract is to be read as excluding, restricting or modifying the application of any Legislative Requirements which by law cannot be excluded, restricted or modified.
(b) To the extent permitted by law, the liability of EXCITE IT, if any, for anything arising out of or in connection with the Contract or at law or under any Legislative Requirement or otherwise, does not include Consequential Loss and is limited, in each case and in the aggregate, to a multiplier of two times cost of supplying the Goods and Services again.
(c) EXCITE IT’s liability will not be limited by this clause in any case of fraud, deliberate or reckless misconduct or negligence by EXCITE IT or its employees, officers, subcontractors or agents.
13.1 Termination for Default
(a) Either party (the Non-Defaulting Party) may terminate the Contract by giving the other party (the Defaulting Party) notice if:
(i) the Defaulting Party repudiates its obligations under the Contract;
(ii) the Defaulting Party does not comply with an obligation under the Contract and, in the Non-Defaulting Party’s reasonable opinion, either the non-compliance can be remedied, but the Defaulting Party does not remedy it within 14 days after the Non-Defaulting Party gives the Defaulting Party notice to remedy it or the non-compliance cannot be remedied; or
(iii) an Insolvency Event occurs in respect of the Defaulting Party.
(b) Where the Contract is terminated:
(i) the Defaulting Party indemnifies the Non-Defaulting Party against any liability or loss arising and any cost incurred (whether before or after termination of the Contract) in connection with the Defaulting Party’s breach of the Contract
and the termination of the Contract;
(ii) the Non-Defaulting party must take reasonable steps to mitigate its loss;
(iii) the parties are relieved from future performance of the Contract without prejudice to any right of action that has accrued prior to the date of termination; and
(iv) rights to recover damages are not affected by the termination.
13.2 Termination with costs
(a) The Contract may be terminated if both parties agree. The termination will be effective from the date stated in the notice but will be no less than 30 days
(b) If the Contract is terminated under this clause 13.2 the Client will only be liable for payment for any Services completed or Goods delivered by EXCITE IT in accordance with the Contract up to date of termination.
13.3 Obligations after termination
Upon termination of the Contract for any reason both parties:
(a) Must return documents without any further demand, Documents in the either party’s possession or control relating in any way to any Confidential Information; and
(b) will return all Contract Material and all documents and other material received in relation to the Contract.
(a) If a party has a dispute or complaint against the other, that party (Notifying Party) must notify the other party in one of the ways described in clause 17. The Notifying Party must ensure that the notice contains specific detail identifying the nature of the dispute or complaint.
(b) Both parties within 21 days of the delivery of a dispute notice will meet and use their best endeavours to resolve the dispute or complaint to the mutual satisfaction of both parties as soon as possible.
(c) If the parties are not able to reach a resolution of the dispute or complaint within a reasonable period of time (in any event being no more than 21 days after the date of receipt of the notice of the dispute or complaint), then the dispute or complaint must be
submitted for arbitration in accordance with, and subject to, The Institute of Arbitrators & Mediators Australia Fast Track Arbitration Rules (Referral of Dispute).
(d) The parties must consult with a view to selecting a single arbitrator but in the event they are unable to agree on the appointment of a single arbitrator within 10 days of the Referral of Dispute, the matter will be referred to an arbitrator to be appointed by the President (or their nominee) for the time being of the Law Society of the Governing
(e) The decision of the arbitrator must be final and conclusive and binding on the parties and the parties must sign all documents and do all things necessary to give effect to the decision of the arbitrator.
(f) Each party must bear its own costs of and incidental to the arbitration, except where stipulated to the contrary by the arbitrator.
(g) For disputes or complaints which involve a claim for less than $50,000, arbitration will take place by way of written submissions supported by relevant documents alone unless both parties agree otherwise.
(h) Nothing in this clause 14 prevents:
(i) either party from seeking urgent interlocutory relief; or
(ii) EXCITE IT from seeking recovery for any claim that EXCITE IT reasonably considers to be a monetary claim, from a Court of competent jurisdiction; or
(iii) either party from taking action pursuant to clause 13 (Termination).
(i) The parties agree to perform their obligations under this Agreement, notwithstanding the existence of a dispute.
(a) Unless otherwise stated in the Contract, all amounts payable by one party to another party under the Contract are GST exclusive.
(b) If GST is imposed or payable on any supply made by a party under the Contract, the recipient of the supply must pay to the supplier, in addition to the GST exclusive consideration for that supply, an additional amount equal to the GST exclusive consideration multiplied by the prevailing GST rate. The additional amount is payable at the same time and in the same manner as the consideration for the supply.
Both parties agree, in respect of any Confidential Information:
(a) subject to clause 16.2, not to disclose such information to any person, without the prior written consent of the disclosing party, unless and until:
(i) such information becomes generally available to the public in printed publications in general circulation in Australia, through no action, default or other breach by the recipient party; or
(ii) the recipient party is required by law to make disclosure, and then only to such extent; and
(b) to keep such documents and any other material containing or incorporating any Confidential Information, in safe custody.
Each party may, notwithstanding clause 16.1, disclose Confidential Information to such of its representatives who may need such information and only to the extent so needed and permitted by any applicable Legislative Requirements, to enable such party to fulfil its obligations under the Contract.
(a) A notice or other communication to be given or made under the Contract must be in writing and addressed to the Representative of each of the parties at the address or fax number (as the case may require) outlined in Schedule 1.
(b) However, if the intended recipient has notified a changed postal address, or fax number, then the communication must be to that postal address or fax number.
(a) A party which is a trustee of a trust is bound in its personal capacity and in its capacity as trustee.
(b) An amendment or variation to the Contract is not effective unless it is in writing and signed by the parties.
(c) Each party must at its own cost do all things reasonably necessary to give effect to the Contract.
(d) The failure of a party at any time to require full or partial performance of any provision of the Contract does not affect in any way the full right of that party to require that performance subsequently.
(e) If any provision or part of any provision of the Contract is void, invalid or unenforceable for any reason, that provision or part of that provision may be severed from the Contract and does not affect the validity, operation or enforceability of any other provision of the Contract, unless the severance would change the underlying principal commercial purpose or effect of the Contract.
(f) The covenants, warranties, agreements and provisions contained in the Contract comprise the entire agreement between the parties about its subject matter.
(g) The parties acknowledge and agree that the Contract and the performance of the Contract does not represent or imply a partnership, agency, fiduciary relationship, employment relationship, joint venture, distribution or any other category of commercial or personal relationship between the parties recognised at law or in
equity as giving rise to forms of specific rights and obligations.
(h) The Contract is governed by the law of the Governing State, and the parties submit to the jurisdiction of the courts of the Governing State.
(i) If there is any inconsistency between the documents comprising the Contract, the order of precedence is the following:
(i) the Proposal,
(ii) the General Terms and Conditions; then
(iii) the Credit Application Conditions
19. DISCLOSURE REQUIREMENT
(a) If either party (the Discloser) receives or becomes subject to a Disclosure Requirement:
(i) it must, where permitted to do so by the relevant Disclosure Requirement, notify the other party promptly in writing of the existence and nature of the Disclosure Requirement together with reasonable details of the Confidential Information required to be disclosed by the Disclosure Requirement; and
(ii) it must, where permitted to do so by the relevant Disclosure Requirement, seek the consent of the other party prior to making any disclosure of Confidential Information required by the Disclosure Requirement.