Loftus IT - Terms and Conditions

These Terms and Conditions will govern all services which we agree to provide to you or on your behalf.

1          Definitions and Interpretation

Unless the context otherwise requires the following words have the following meaning:-

1.1          “Adhoc Services” means services that you request from us in the absence of any applicable Services Proposal agreed between you and us;

1.2          “Fees” means the fees set out in a Services Proposal for Structure Services or our fees for Adhoc Services based on the time spent and our standard hourly rates;

1.3          “Normal Business Hours” means the period between 8:30am and 5:30pm, South Australian time, on every Monday, Tuesday, Wednesday, Thursday and Friday other than on South Australian public holidays;

1.4          “Payment Terms” means the terms for payment of Fees set out in the Services Proposal, if applicable, or as specified herein;

1.5          “Products” means computer hardware and related equipment, software and related materials, consumables and any other item that you request us to supply in conjunction with the Services;

1.6          “Services” means all services provided by us to you;

1.7          “Services Program” means the program set out in the Services Proposal (if any) for delivery of the Services;

1.8          “Services Proposal” means a proposal or quotation provided by us to you (including all attachments) and includes any documented variations to that proposal agreed to by you and us;

1.9          “Structured Services” means the services set out in the Services Proposal and includes the supply of any Products we have agreed to procure or provide; and

1.10        “Your Responsibilities” means your responsibilities as specified in the Services Proposal and these Terms and Conditions.

2             Provision of Services

2.1          We will provide Adhoc Services to you in response to the receipt of requests from you.

2.2          Each time you make a request to us for Adhoc Services:

2.2.1       You agree to pay our fees based on the time and materials utilised;

2.2.2       You authorise us to spend up to two hours in providing the requested services, unless you authorise a specific time limit when making the request; and

2.2.3       You agree that we will provide the services during Normal Business Hours at our standard hourly rate for the services requested, or If you require the services to be provided outside Normal Business Hours, you agree to pay a one and one half times the standard hourly rate for the requested Services.

2.3          We will provide Structured Services in accordance with the applicable Service Program.

2.4          The Services may be provided by us or by a suitable contractor appointed by us.

2.5          We warrant that the Services will be provided:

2.5.1       in a diligent and professional manner;

2.5.2       utilising suitably skilled employees or contractors;

2.5.3       utilising sufficient resources; and

2.5.4      in accordance with sound and accepted professional practice existing at the date of your acceptance of the Services Proposal.

2.6         Where Services are provided on a time and materials basis, we will create and maintain proper records of the time worked by each of our employees and we will provide copies of those records or a summary of those records to you on request. Unless otherwise agreed by us, in calculating our time and materials based Fees, the time spent will include all time allocated to providing that Service including any Calculated Travel Time. Calculated Travel Time applies at one quarter of the total travel time (to and from a site) where the total travel time exceeds 30 minutes. Travel time totalling less than 30 minutes will not be charged.

2.7          We will measure time in units of six (6) minutes other than Structured Services relating to an agreed project, which will be measured in units of 15 minutes.

2.8          If we have specified that any particular employees or contractors will be involved in the provision of the Services, we will endeavour to ensure that the relevant Services are provided by the nominated employees. If any named employee or contractor is not available or able to perform any of the Services, we will identify a suitably skilled alternative employee or contractor to perform those Services.

2.9          We will endeavour to provide the Services without unreasonable delay but we will not be liable for any failure or delay in the provision of the Services which is caused or contributed to by you or your contractors or an event outside our direct reasonable control (a “Delay Event”). If our performance of the Services is delayed by a Delay Event, then we will be entitled to an extension of the time for our performance of the Services. If we suffer any costs or loss as a result of a Delay Event, then the Fees will be adjusted to compensate us for that cost or loss.

2.10        Our provision of the Services is subject to you:

2.10.1    complying with Your Responsibilities as and when required by us; and

2.10.2    paying our Fees to us in accordance with the Payment Terms.

3             Payment

3.1          We will invoice you for Services and Products in accordance with the Payment Terms.

3.2          Invoices will be deemed to be accepted by you unless you notify us in writing that you dispute the amount of the invoice within 14 days of the invoice being issued.

3.3          You must pay us the Fees in accordance with the provisions of the Payment Terms.

3.4          Subject to clause 3.3, payment of Fees must not be refused or delayed, notwithstanding any dispute between you and us.

3.5          If a genuine dispute arises regarding the amount of a Fee, you may suspend payment of the disputed amount pending resolution of the dispute but you must pay all other amounts in accordance with the Payment Terms.

3.6          If you fail to pay any amount to us by the due date, you must also pay simple interest on the unpaid amount at the Australian Tax Office ‘General Interest Charge’ (GIC) rate calculated daily from the next day after the due date up to and including the date of payment. ‘General Interest Charge Rate' has the meaning given by section 8AAD of the Taxation Administration Act 1953.

3.7          If any new or varied tax is introduced (other than on our income) which increases our costs or reduces our profit in providing Services, we may make an appropriate adjustment to our Fees.

4             Variation of Services to be provided

4.1          If we suggest or if you request a variation of the Services to be provided pursuant to the Services Proposal including (without limitation) the provision by us of additional services, we will provide you with a written proposal specifying the cost and other terms upon which we would be prepared to agree to that variation.

4.2          If we consider that the preparation of a variation proposal will require significant effort, we may require you to agree to pay us for preparing the variation proposal

4.3          Neither you nor we are obliged to agree to any variation, but you and we agree to review and discuss any variation proposal in good faith.

5             Intellectual Property Rights & Confidentiality

5.1          We retain all copyright and other intellectual property rights in our expertise and the materials we apply or produce in delivering the Services, including any deliverables, and we retain or obtain all intellectual property rights with respect to any copies, reproductions, adaptations, additions to, enhancements, alterations, modifications or translations made to those materials. Where an enhancement to software that we have developed is created by you or your employees, you agree that we will own all intellectual property rights in that enhancement from the moment of its creation.

5.2          We grant you a permanent non-exclusive licence to make internal use of any of the deliverables we create through the provision of Services.

5.3          The licence granted in clause 5.2 will not apply with respect to any deliverable if we specify that the intellectual property rights relating to that deliverable are owned by a third party. In such circumstances, you will require a licence from the third party in order to use the deliverable.

5.4          We warrant that our provision of Services will not infringe the intellectual property rights of any third party and we agree to indemnify you against any liability you may reasonably sustain if our provision of Services infringes the intellectual property rights of any third party. If any aspect of the deliverables infringes a third party’s intellectual property rights, we may arrange a non-infringing work-around or obtain a licence at our cost permitting you to use the affected deliverables.

5.5          If you have provided us with any material for use in connection with the provision of Services, you warrant that our use of that material will not infringe the intellectual property rights of any third party and you agree to indemnify us against any liability we may reasonably sustain if our use of the material infringes the intellectual property rights of any third party.

5.6          You will give us notice of any infringement of our copyright or any other right of ours that comes to your attention.

5.7          We must treat as confidential all information (other than information in the public domain) which you provide to us including (without limitation) information relating to your business operations. We agree not to disclose such information to any other party without your prior written permission unless required to do so by law. We may only use such information and may only disclose this information to the extent necessary to enable us to provide the Services.

5.8          You must treat as confidential all information (other than information in the public domain) which we provide to you including (without limitation) information relating to our software and systems, our pricing and our business operations. You agree not to disclose such information to any other party without our prior written permission unless required to do so by law. You may only use such information and may only disclose this information to your employees to the extent necessary to give effect to the objectives identified in the Services Proposal.

5.9          Upon termination, a disclosing party may require the receiving party to return all copies of confidential information received from the disclosing party.

5.10        The provisions of this clause 5 shall survive and continue to be binding upon you and us, notwithstanding termination.

6             Supply of Products

6.1          If agreed between you and us, we may supply our own Products or purchase Products from third parties and supply them to you.

6.2          If requested by you, we will provide a written quote for Products and obtain your authority to proceed before placing an order.

6.3          You must pay for any Products you request us to purchase, whether you have exercised the option to obtain a prior written quote or not.

6.4          We retain title in any Products we purchase on your behalf until you have paid for the Products in full.  We may enter your premises in order to seize Products that were supplied to you in accordance with these Terms and Conditions and that have not been paid for in accordance with the Payment Terms stated in the Services Proposal.

6.5          No Products can be returned once delivered to and accepted by you.

6.6          If all or any part of the Products supplied is software, you must only use that Software in accordance with the terms and conditions of the licence agreement governing use and copying of that software.

7             Warranties & Liability

7.1          If any warranty or condition is implied by the Trade Practices Act or other relevant legislation which may not be excluded or restricted (a “non-excludable term”) our liability for any breach of a non-excludable term is limited solely to the resupply of the relevant Service or payment to you of the cost of having the Service provided again at our option.

7.2          If we supply a Product, the written warranty provided by the Product vendor, if any, are available to you. At our discretion, we will assist you to assess whether a Product fault exists for which the warranty applies and to obtain the appropriate warranty services. You must pay us all third party costs (if any) that we incur in assisting you with your warranty claims.

7.3          Apart from any written warranty provided by a third party with respect to its Products, any express warranties contained in the Services Proposal and subject to any non-excludable terms, all warranties with respect to the Services and Products are hereby expressly excluded. We accept no liability for the provision of the Services, whether arising by reference to the provisions of the Services Proposal, implied terms, tort or otherwise howsoever.

7.4          We accept no liability for damage caused to Products during transport, unless the transport is being provided by a person employed by us.

7.5          We accept no liability for merchantability or fitness of purpose of Products that we purchase from third parties and supply to you.

7.6          If circumstances arise where you are entitled to claim damages from us notwithstanding the provisions of these Terms and Conditions, our liability to you for the aggregate of all such claims (regardless of the basis on which you are entitled to claim from us including, without limitation, negligence) is limited to the lesser of:

7.6.1       the amount of any actual loss or damage which you sustain;

7.6.2       an amount equal to the Fees received by us from you during the preceding 3 months.

7.7          The limitation in clause 7.5 does not apply to our liability for death, personal injury or infringement of third party intellectual property rights.

7.8          You acknowledge that you have relied upon your own skill and judgement in determining the appropriateness of the Services for your own particular purposes and you have not relied on any statement or representation made by us or on our behalf.

7.9          In no event will we be liable for any consequential damages (including without limitation loss of or damage to data, loss of profits, loss of savings and loss of revenue) even if we have been advised of the possibility of such damages.

7.10        Any proceedings against us relating directly or indirectly to our provision of any Services must be commenced within 12 months after the date of the delivery of the relevant Services.

8             Default

8.1          If a party (the “Defaulting Party”) commits any default with respect to the due observance or performance of any of its obligations under these Terms and Conditions, then the other party (the “Innocent Party”) may, without prejudice to any other rights the Innocent Party may have, give written “Default Notice” to the Defaulting Party identifying the default and requiring that the default be remedied.

8.2          If the Defaulting Party fails to remedy a default within 14 days after receipt of a Default Notice or, where the default is not capable of being remedied within 14 days and the Defaulting Party fails within that period to commence to remedy the default or fails to diligently proceed to remedy the default, then the Innocent Party may terminate the arrangements between you and us by written notice to the Defaulting Party.

8.3          A party may terminate the arrangements governed by these Terms and Conditions by written notice if it reasonably considers that the other party is or is likely to become insolvent.

8.4          If termination occurs, without limiting any of our other remedies, you must pay us for all Services provided up until the date that the termination takes effect. If you have made any pre-payment of Fees, you will only be entitled to a refund of that pre-payment if the arrangements are validly terminated as a result of our breach.

9             Additional terms

9.1          A party may not assign or transfer or otherwise deal in any way with any rights or obligations without the written permission of the other party, which must not be unreasonably withheld.

9.2          Neither party shall, without the prior written consent of the other party, employ or enter into contractual arrangements with, offer employment or contractual arrangements to, or solicit requests for employment or contracts from, any current or former employee or contractor of the other party for a period commencing when you first engage us to provide services to you, and ending 12 months after the termination of all contractual arrangements between you and us.

9.3          No right will be waived by a party except by express written notice signed by that party.

9.4          If any provision of these Terms and Conditions is found to be invalid, unenforceable or illegal, then that provision will be deemed to be deleted to the extent necessary to remove the invalid, unenforceable or illegal portion and the balance of these Terms and Conditions will remain binding.

9.5          If any dispute arises between you and us which can not be resolved by negotiation, you and we will confer and seek to agree the most appropriate mechanism for resolution of the dispute before commencing any proceedings, provided that this provision will not apply where you or we reasonably conclude that injunctive or other urgent proceedings are necessary to protect its position.

9.6          Notices or other formal communications may be given by hand delivery, by mail or by email or facsimile transmission and will be deemed to be received:

9.6.1       in the case of hand delivery, upon delivery;

9.6.2       in the case of mail, three (3) business days after the date of posting the article; or

9.6.3       in the case of email or facsimile, upon completion of transmission (except where transmission is completed after 5:00 pm at the receiving location on a business day, in which case receipt is deemed to occur at 9:00 am at the receiving location on the next business day).

9.7          When accepted, the final version of a Services Proposal is the complete and exclusive statement of the agreement between you and us and it supersedes all prior proposals or agreements, oral or written, and all other communications relating to the subject matter of the Services Proposal.

9.8          The parties are independent contractors and are not in a partnership or joint venture relationship. Neither you nor we may purport to act on behalf of the other party unless expressly authorised to do so in writing.

9.9          The arrangements between you and us are made in accordance with, and are subject to, the laws of South Australia. You and we irrevocably agree that all legal proceedings arising in connection with these arrangements must be prosecuted in the Courts of South Australia.

9.10        Any person requesting Ad Hoc services or accepting a Services Proposal on your behalf warrants that they are duly authorised to do so.