These terms and conditions (Terms and Conditions) apply to any supply of goods and services by Subnet to the Customer.
Unless Subnet vary these Terms and Conditions in writing to the Customer, these Terms and Conditions apply in every contract for the supply of goods and services made between Subnet as supplier and the Customer as buyer, including without limitation, pre-configuration, installation, technical or professional services, maintenance tasks on existing infrastructure, structured services delivery unrelated to product supply and any terms and conditions contained in any order, offer, acceptance or other document and all representations, statements, terms, conditions, guarantees and warranties (whether implied by statute or otherwise) not embodied in these Terms and Conditions are expressly excluded to the fullest extent permitted by law.
In these Terms and Conditions:
“Subnet” means Wigtown Bear Pty Ltd ACN: 083 911 246 trading as “Subnet”;
“Customer” means the party named as such in the Quotation;
“Quotation” means the quotation or proposal provided to the Customer which specifies specific requirements for goods and/or services to be supplied by Subnet to the Customer, including any specific inclusions or exclusions, and which must be accepted by the Customer prior to the commencement of the supply of the Services;
“Rates” means the rates specified in the Quotation in relation to the supply of the Services;
“Services” means any goods and/or services supplied by Subnet to the Customer as set out in the Quotation; and
“Equipment” means any product offered to, or purchased by the Customer, from Subnet, as set out in the Quotation.
Subject to these Terms and Conditions, Subnet will supply to the Customer the Services, at the rates specified in the Quotation, in respect of the Equipment (if any) specified in the Quotation. Subnet will use reasonable endeavours to provide the Services within the agreed timeframes, but time will not be of the essence, and Subnet will not be liable for any loss or damages suffered by the Customer arising out of, or in relation to, a delay in delivery by Subnet.
3. PRICE EXCEPTIONS
Regular Working Hours
The Rates, unless otherwise specified, are based upon the provision of the Services during regular working hours (8:30am to 5:00pm) on regular working days (Monday to Friday). Subnet reserves the right to charge additional fees in respect of provision of Services outside of these times.
The Rates, unless otherwise specified, are based upon the Customer’s premises being located within a 40-kilometre radius, by standard carriage, of the GPO of a capital city of a state or territory of Australia. Subnet reserves the right to charge the Customer for any additional travelling time and expenses incurred in providing Services outside of this area.
Subnet reserves the right to charge the Customer for any extra costs incurred by Subnet caused by the Customer’s instructions, lack of instructions, interruptions, mistakes, work for which Subnet was/is not responsible (variations) or a change to/in the Customer’s environment.
Equipment ready for service
The Customer is obliged to carry out all tasks necessary to ensure that its equipment and environment is ready for Subnet personnel to commence work upon arrival at the Customer’s premises, including any unwrapping, unpacking or system shut downs that may need to be done. Subnet reserves the right to charge the Customer for additional expenses incurred or additional time spent as a result of the Customer failing to attend to these tasks.
Subnet will use reasonable endeavours to ensure that the integrity of systems being accessed modified or interacted with as part of any installation or integration task is maintained. To mitigate any risk of instability prior to the commencement of work by Subnet the Customer will ensure that they have on hand:
(a) Current backup data for the system; and
(b) Current system configuration information.
In the event of any unforeseen failure the will be used to recover systems or equipment. Without such preparation reasonable endeavours will be employed to remedy any failure. Recovery tasks will be conducted as “time and materials” at Subnet standard rates.
4. USE OF SUB-CONTRACTORS
Subnet may assign and/or subcontract its rights and obligations under these Terms and Conditions without notice at any time. The Customer may not assign or otherwise dispose of its rights and obligations under these Terms and Conditions without prior written consent from Subnet.
5. EACH PARTY’S OBLIGATIONS
The Customer will:
(a) allow Subnet and its representatives access to its premises and its equipment for the purposes of providing the Services in accordance with these Terms and Conditions;
(b) maintain its equipment in accordance with environmental conditions and proper accommodation specified by the manufacturer – OR – supplier of the equipment; and
(c) provide adequate facilities to enable Subnet to carry out the Services, including all necessary space, heat, light, ventilation, electrical power outlets and storage space.
Subnet will:a) exercise best practise when accessing the Customer’s premises and in providing the Services in accordance with these Terms and Conditions;
(b) ensure that work methods comply with standards necessary to fulfil obligations under, applicable work, health and safety legislation, any relevant Occupational Health, Safety & Environment guidelines and Work Cover requirements; and
(c) identify facilities that may be required to enable Subnet to carry out the Services, including necessary space, access, light, ventilation, electrical power outlets and storage space.
Subnet will invoice the Customer in respect of all Services provided in accordance with these Terms and Conditions. The Customer will pay such invoices within 14 days of the invoice date. Any amounts due by the Customer to Subnet which have been outstanding for a period in excess of 30 days, may, at Subnet’s option, be subject to additional interest charges at the prevailing Commonwealth Bank commercial overdraft rate.
No refunds or credits are given for unused prepaid Services.
Unless stated otherwise, if a Taxable Supply is made under these Terms and Conditions the party which made the supply (the “Supplying Party”) may in addition to the amount payable under these Terms and Conditions recover from the other party (the “Receiving Party”) an additional amount on account of GST, calculated by multiplying the amount payable by the GST Rate.
Where a Taxable Supply is made under these Terms and Conditions the Supplying Party shall issue to the Receiving Party a Tax Invoice or an Adjustment Note, as applicable, in accordance with the GST Law.
In these Terms and Conditions, “GST”, “GST Law”, “GST Rate”, “Taxable Supply”, “Tax Invoice” and “Adjustment Note” have the meanings given in section 195-1 of A New Tax System (Goods and Services Tax) Act 1999 (Cth).
8. CHARGEABLE SERVICE
Where service or maintenance is provided to an existing Customer’s Equipment and in addition to any other terms set out and detailed herein if upon inspection of the relevant Equipment, Subnet determines (at its sole discretion) that no Services are in fact required, the Customer agrees to cover the costs incurred by Subnet in attending the Customer’s premises and inspecting the Customer’s system or Equipment.
9. LIMITATION OF LIABILITY OF SUBNET
To the fullest extent permitted by law, Subnet excludes all warranties, guarantees and conditions, whether arising in contract, negligence or otherwise arising out of or in connection with the supply of the Services.
To the extent that any warranty, guarantee or condition cannot be excluded, the liability of Subnet for breach of any such guarantee, condition or warranty shall be limited, at the option of Subnet, to any one or more of the following:
(a) in the case of provision of goods;
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of such goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; and
(b) in the case of the provision of services;
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
Except as expressly provided to the contrary in these Terms and Conditions, Subnet excludes all liability for any indirect or consequential expenses, losses, damages or costs incurred by the Customer arising in any way out of or in relation to the supply of the Services (even if due to the negligence of Subnet). Any Subnet liability which may arise under these Terms and Conditions is limited to the maximum extent permitted by law.
Neither party will bring an action against the other relating to the Services more than 2 years after the supply of the Services, excluding an action seeking payment for the Services.
The Customer hereby indemnifies and holds Subnet harmless against any and all damages, losses, claims, liabilities, demands, charges, suits, penalties, costs and expenses (including legal costs) incurred or suffered by Subnet arising directly or indirectly as a result of, any breach of any provision of these Terms and Conditions, any injury or death to any person negligent act or omission, or wilful misconduct of the Customer.
11. INTELLECTUAL PROPERTY
The intellectual property rights in all intellectual property owned by Subnet at the commencement of the application of these Terms and Conditions remain the property of Subnet. The intellectual property rights in all intellectual property developed by Subnet, in providing the Services to the Customer shall become and remain the property of Subnet, of which Subnet will (at its sole discretion) licence to the Customer.
All intellectual property rights in data, information, materials utilised by Subnet in providing the Services, including, without limitation, all software, tools, know-how, methodologies, equipment or processes, shall remain Subnet’s sole and exclusive property.
The Customer warrants to Subnet that it has all intellectual property rights necessary to enable Subnet to carry out the Services. The Customer will indemnify Subnet from and against any and all damages, losses, claims, liabilities, demands, charges, suits, penalties, costs and expenses (including legal costs) which Subnet may sustain, or to which any of Subnet may be subjected, arising out of or relating to any breach of this warranty.
12. CONFIDENTIAL INFORMATION
Both parties acknowledge that they may obtain access to confidential and proprietary information belonging to the other in the course of the provision of the Services. The parties agree not to disclose such confidential information to any person except where:
(a) the information is in, or comes into, the public domain;
(b) the information is required to be disclosed by law; or
(c) the owner of the information consents to its disclosure, or disclosure is required for the provision of the Services.
13. RETENTION OF TITLE AND PPSA
Property and ownership in goods and/or Equipment will remain with Subnet until the Customer has made payment in full in cleared funds of the purchase price of those goods and/or Equipment and all other amounts owing to Subnet under these Terms and Conditions.
The Customer acknowledges and agrees that by assenting to these Terms and Conditions, the Customer grants a security interest (by virtue of the provisions of this clause 13) to Subnet in all goods and/or Equipment previously supplied by Subnet to the Customer (if any) and all other goods and/or Equipment that will be supplied in the future by Subnet to the Customer (or to your account) during the continuance of the relationship between Subnet and the Customer.
The Customer will do such acts and provide such information (which information the Customer warrants to be complete, accurate and up to date in all respects) as in the opinion of Subnet (acting in its absolute discretion) may be necessary or desirable to enable Subnet to perfect under the Personal Property Securities Act (PPSA) the security interest created.
The Customer waives any right to receive a copy of a verification statement under the PPSA and agrees, to the extent permitted by law, that as to any contract (including without limitation, these Terms and Conditions) between Subnet and the Customer to contract out of section 115(1) of the PPSA, except section 115(1)(g) to the intent that Subnet will preserve its right to seize collateral, and the Customer agrees to waive its rights referred to in section 115(1).
The Customer must pay the costs, charges and expenses of and incidental to the need for, or desirability of registration of, a financing statement or financing change statement or any action taken by Subnet to comply with the PPSA or to protect its position under the PPSA. The Customer must pay any costs incurred by Subnet, including legal costs on a solicitor-own client basis, arising from any disputes or negotiations with third parties claiming an interest in any goods and/or Equipment supplied by Subnet.
Neither Subnet nor the Customer will disclose any information of the kind referred to in section 275(1) of the PPSA.
The Customer will not authorise the disclosure of any information of the kind referred to in section 275(1) of the PPSA at any time.
14. DELAY AND FORCE MAJEURE
Neither party is responsible for failure to fulfil any obligations due to causes beyond its control.
15. GENERAL PROVISIONS
These Terms and Conditions and the Quotation that they support may not be changed or modified in any way except in writing signed by or on behalf of all the parties.
By signing in the space provided on the Subnet Quotation, the Customer acknowledges that it has read and agrees to be bound by these Terms and Conditions.
These Terms and Conditions and the Quotation constitute the entire agreement between the parties with respect to the provision of the Services and supersedes all previous agreements or understandings, representations, warranties and conditions not expressly stated herein.
If any term of these Terms and Conditions or any part thereof is or becomes or is declared illegal, invalid or unenforceable for any reason whatsoever in any jurisdiction and such term or part is severable, it is deemed deleted from these Terms and Conditions in the relevant jurisdiction.
If Subnet elects not to exercise any of its rights arising as a result of a breach of these Terms and Conditions, that will not constitute a waiver of any rights of Subnet relating to any subsequent or other breach.
The Terms and Conditions shall be governed by and interpreted in accordance with the laws in force in the State of South Australia. The parties submit to the exclusive jurisdiction of the Courts of the State of South Australia.
Unless otherwise specified, each party will, at its own expense and when requested by the other party, promptly do, sign and deliver everything reasonably required to give full effect to these Terms and Conditions and the transactions contemplated by these Terms and Conditions.