IT IS AGREED AS FOLLOWS
1. Portable Systems obligations
PS agrees to provide the Services specified in the Schedule ("the Services").
The agreement will continue for the period specified in the Schedule ("the Initial Term"). At the conclusion of the Initial Term, the agreement will continue on a monthly basis until such time as it is terminated by either party.
PS warrants that it is appropriately qualified, competent, and experienced to provide the Services.
Depending upon the nature, extent, and duration of the Services required by the Client, PS may provide the services using their own employees or through independent contractors.
PS will provide a monthly Tax Invoice detailing the services provided to the Client under this agreement.
PS is in the business of providing Information Technology Services, in this agreement Information Technology Services means:
computer & communication systems installation, maintenance, and repair.
computer & communications consultancy services
system analysis services
the design, development, and maintenance of online internet architecture and the facilitation of online content management
activities which are incidental, ancillary or complementary to the activities set out in this definition
The Scope of Information Technology Services you will receive under this contract are set out in the schedules to this contract.
2. The Client’s obligations
The Client agrees to pay the fees specified in the Schedule within 14 days of receipt of PS's monthly Tax Invoice.
The Client will make available to PS all relevant instructions, information, documentation, or data or any other material as required for the performance of the Services.
The Client will ensure that PS has a proper and safe environment to work in and will provide PS with access to all files, staff, locations, and equipment necessary to provide the Services.
The Client will be responsible for all third party expenses needed to ensure that PS is able to provide its Services. This includes the costs of repair and maintenance of hardware and the costs of updating software.
Where it is not a part of the Services being provided to the Client by PS, it is the Client's responsibility to ensure that they have implemented, maintain and manage a data backup and recovery program/plan/protocol that is adequate for the Client'��s circumstances and takes into account the nature of the data and the applications for which the data is used.
The person named in the Schedule, or any other person that the Client nominates in writing, will act as the Client's representative in connection with this agreement.
In the course of providing its Services, PS may have access to information about the Client that is confidential.
PS agrees that it will safeguard and not disclose any confidential information obtained in the course of carrying out the Services to any person except to the extent that the information is required to be provided as part of the Services, or is already within public knowledge.
PS agrees that at the completion or termination of this agreement it will not retain confidential information obtained while carrying out the Services (or copies of that information) in any form.
PS agrees that these confidentiality obligations will continue after the completion or termination of this agreement.
4. Independent contractor
The parties agree that PS is providing its services as an independent contractor and is not an employee or partner of the Client.
PS will provide the Client with Tax Invoices for the services provided in accordance with the agreed fee.
PS will ensure that it has all the necessary insurance.
5. Conflict of interest
PS warrants that it has no conflict of interest in the performance of the Services at the date of this agreement.
Immediately upon becoming aware of the existence, or possibility of a conflict of interest, PS will advise the Client in writing.
6. Dispute resolution
As both parties desire the agreement to work smoothly to their mutual advantage, the following procedure for settling any disputes and grievances that may arise is agreed upon:
initially, an informal discussion will proceed between the PS and the Client's representatives;
if the matter is unresolved, each party must nominate another representative who is not directly involved in the dispute. Those representatives must then attempt to settle the dispute by negotiation;
should these nominated representatives be unable to resolve the dispute within 14 days (or such other period as they may agree upon) the dispute must be referred to a person mutually agreed upon for mediation.
7. Copyright and intellectual property
In providing the Services, PS may create software or other original work ("the Work").
Ownership of copyright and any other intellectual property in, or in relation to, the Work created by PS under this agreement shall belong to PS upon its creation.
8. Liability of Portable Systems
The liability of PS to the Client in respect of any loss or damage (including consequential loss or damage) suffered or arising from:
the goods or services supplied under this Agreement; or
any failure or omission of PS to comply with its obligations under this Agreement is limited to the total amount payable by the Client under this agreement.
Provisions of the Competition and Consumer Act 2010 (as amended) and other statutes from time to time in force in Australia may imply warranties or conditions or impose obligations upon PS which, cannot be excluded or modified. This Agreement must be read and interpreted subject to such statutory provisions or any other similar provisions. If any such provisions apply, then to the extent permitted by law, PS liability for breach of those statutory provisions will be limited at its option to:
if the breach relates to goods:
the replacement of the goods or the supply of equivalent goods;
the repair of the goods;
the payment of the cost of replacing the goods or of acquiring equivalent goods; or
the payment of the cost of having the goods repaired; and
if the breach relates to services:
the supplying of the services again; or
the payment of the cost of having the services supplied again.
At the conclusion of the Initial Term (or not more than 14 days before) either party may terminate this agreement by providing the other party with at least 14 days written notice.
PS or the Client may immediately terminate this agreement by notice in writing to the other party on the occurrence of any of the following events:
The suspension or cessation of the other party's business.
The liquidation or insolvency of the other party.
The appointment of a receiver or trustee in respect of any of the other party's property.
If the other party fails to rectify or adequately redress any material breach of this agreement within 28 days after being given notice in writing from PS or the Client requiring the breach to be rectified or adequately addressed by the other party.
Termination of this agreement will be without prejudice to any claim either party may have for money due, for damages or any other remedy.
The addresses of the parties for purposes of giving any notice shall be the postal address set out in the Schedule or as may from time to time be specified in writing between the parties.
11. Repair Notice
PS may, in the course of providing the Services to the Client, repair goods which are capable of retaining user-generated data. The repair of such goods may result in the loss of the data.
It is the Client’s responsibility to ensure that any such data stored on goods to be repaired by PS (or via a service provider organised by PS) is adequately backed up in accordance with clause 2 above before PS conducts any repairs.
Goods presented by the Client to PS for repair may be replaced by refurbished goods of the same type rather than being repaired. Refurbished parts may be used to repair the goods.
12. Agreed law
The law in force in New South Wales will apply to this agreement.
13. Price And Payment
1. The Price for the Services will be calculated in accordance with the Schedule or any separate quote which may be issued by Portable Systems.
2. At Portable Systems’ sole discretion a deposit may be required for specific items.
3. Time for payment shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due fourteen (14) days following the date of the invoice.
4. Payment will be made by electronic funds transfer to the Portable Systems' nominated account, or by any other method as agreed.
5. GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price
6. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of ten percent (10%) per annum.
7. If the Client defaults in payment of any invoice when due, the Client shall indemnify Portable Systems from and against all costs and disbursements incurred by Portable Systems in pursuing the debt including legal costs on a solicitor and own client basis and Portable Systems’ collection agency costs.
8. Without prejudice to any other remedies Portable Systems may have, if at any time the Client is in breach of any obligation (including those relating to payment), Portable Systems may suspend or terminate the supply of the Services to the Client and any of its other obligations under the terms and conditions. Portable Systems will not be liable to the Client for any loss or damage the Client suffers because Portable System has exercised its rights under this clause.
9. If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
10. Without prejudice to Portable Systems’ other remedies at law Portable Systems shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Portable Systems shall, whether or not due for payment, become immediately payable in the event that:
10.1 any money payable to Portable Systems becomes overdue, or in Portable Systems’ opinion the Client will be unable to meet its payments as they fall due; or
10.2 the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
10.3 a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.