CORPNET (AUSTRALIA) PTY LTD

 

STANDARD CONDITIONS OF BUSINESS (“CONDITIONS”)

 

Important notice:

 

Effective Date: 1st February 2012

 

This notice forms part of the Conditions.

 

These Conditions apply (as and to the extent relevant) to all contractual commitments entered into by the Company in accordance with their terms and as referred to in the Company’s standard forms of agreement for supply of equipment and/or services. They are available in soft copy on the Company’s web site at  http://www.corpnet.com.au/Content/Pages/Terms.

 

These Conditions also apply to all quotations and other pre-contractual dealings by the Company. All such dealings are invitations to treat only; no such dealings constitute an offer on the part of the Company to enter into any contractual commitment on any particular terms or at all. No contract will in any event come into existence unless and until accepted by the Company through submission of a specific order confirmation, or otherwise in writing, and then only the basis referred to in the previous paragraph.

 

The Company may amend these Conditions from time to time at its discretion (prospectively but not retrospectively) and in any such case will notify customers by e-mail before the new version takes effect.  It will also display the latest version on its web site under the link abov.  Each version is identified by the revision date in the footnote at the bottom of this page and will apply to (and form part of) all contractual arrangements entered into by the Company on or after the date specified.

 

These Conditions may be accepted by:

 

(a)        signing and returning the duplicate of these Conditions; or

 

(b)        by engaging the Company to provide Equipment or Services or continuing to engage the

Company after receiving these Conditions; or

 

(c)        contacting the Company and advising the Company of your acceptance.

 

1.      Definitions

 

In these conditions and this Agreement generally:

 

(a)     ‘Agreement’ means the Commercial Terms and these Conditions;

(b)     ‘Commercial Terms’ means the terms upon which the Company will supply the

Equipment or Services.

 

(c)     ‘Company’ means Corpnet (Australia) Pty Ltd ACN 092 390 951;

 

(d)     ‘Computer Systems’ means the Customer’s servers and operating systems, networks, UPS, backup systems, virus protection systems, e-mail systems, Internet and workstations;

 

(e)     ‘Confidential Information’ means, in relation to a Party, its confidential information (in the sense of information that is specifically designated by it as confidential or, by reason of its nature or the circumstances generally, may reasonably be considered confidential) including information relating to:

 

(i)         its personnel, customers, policies, business strategies, operations and finances;

 

(ii)        trade secrets and know-how;

 

(iii)       the terms upon which services are to be supplied or have been supplied pursuant to this Agrement; and

 

(iv)       the technology and design of the Computer Systems;

 

(f)      ‘Customer’ means the person to whom the Company supplies Equipment and/or

Services;

 

(g)     ‘Delivery Date’ means the date or the period for the delivery of Equipment as

advised to the Customer in writing by the Company;

 

(h)     “Due Date” means the date payment of the Equipment and Services is due as notified by Company to the Customer.

 

(i)      ‘Equipment’ means equipment specified in the  Commercial Terms, which may include software, hardware and other information technology equipment;

 

(j)      “Event of Default” means any of the following events:

 

(i)         the Customer fails to pay for the Equipment and/or Services by the Due

Date;

 

(ii)        the Customer is in breach of this Agreement;

 

(iii)       if the Customer is a company:

 

(A)       an order is made or a resolution is effectively passed for winding up of the Customer; the Customer resolves to appoint a receiver

or provisional liquidator or an administrator, or a receiver or provisional liquidator or an administrator is appointed;

 

(B)       the Customer goes into liquidation or makes an assignment or an arrangement or composition with its creditors; the Customer stops payment or is deemed unable to pay its debts within the meaning of the Corporations Act 2001;

 

(C)       if the Customer is a natural person, an order is made for the Customer’s bankruptcy, or the Customer dies or becomes mentally or physically incapable of managing his or her affairs or an order is applied for or made to place the assets and affairs of the Customer under administration; the Customer ceases or threatens to cease carrying on business;

 

(k)     ‘Force Majeure’ means, in relation to a Party, a circumstance beyond its reasonable control resulting in the unavailability of the Customer’s Computer System or part thereof and including:

 

(i)         acts of God, lightening strikes, earthquakes, floods, storms, explosions, fires and any natural disaster; and

 

(ii)        acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution, and strikes;

 

(l)      ‘Installation Date’ means the date for the installation of the Equipment as

advised to the Customer in writing by the Company;

 

(m)    ‘Intellectual Property Rights’ means copyright, trade marks, design rights and patents including rights to apply for, and pending applications in respect of, any of them;

 

(n)     ‘Party’ means the Company or the Customer or each of them according to the

context;

 

(o)     ‘Services’ means services specified in the Commercial Terms; and

 

(p)     ‘Site’ means the location specified in the Commercial Terms in relation to

Equipment or Services.

 

2.      Interpretation

 

2.1     In this Agreement unless the contrary intention appears:

 

(a)     the clause headings are for ease of reference only and shall not be relevant to interpretation;

(b)     a reference to a clause number is a reference to its subclauses; (c)            words in the singular number include the plural and vice versa; (d) words importing a gender may include any other gender;

(e)     a reference to a person includes bodies corporate and unincorporated  associations and partnerships;

 

(f)      a reference to a clause, sub-clause, schedule or appendix is a reference to a clause or sub-clause of or a schedule or appendix to this Agreement;

 

(g)     where a word or phrase is given a particular meaning, other parts of the speech and grammatical forms of that word or phrase have corresponding meanings;

 

(h)        monetary references are references to Australian currency; and

 

(i)      the words ‘include’ and ‘including’ are to be construed as importing the term

‘without limitation’.

 

2.2     The Commercial Terms are to prevail over these Conditions in the event of any inconsistency.

 

3.      Equipment

 

3.1     The Company will use reasonable endeavours to deliver the Equipment to the Customer on the Delivery Date at the Site during the Customer’s normal business hours but may at its sole discretion make delivery elsewhere if so requested by the Customer upon not

less than seven days’ notice andmay charge the Customer for doing so.

 

3.2     If the Customer requests delivery of the Equipment in advance of the estimated Delivery Date or postponed beyond the estimated Delivery Date, the Company shall use reasonable endeavours to re-schedule delivery accordingly (and may charge the Customer for doing so) but shall otherwise be under no obligation to comply with the Customer’s request.

 

3.3     Packing materials remain the property of the Company and shall be removed or otherwise disposed of at the sole discretion of the Company.

 

3.4     If the Company requests permission to deliver the Equipment prior to the estimated Delivery Date, the Customer shall use reasonable endeavours to prepare the Site and to do all other things necessary to enable it to comply with the request and to accept early delivery.

 

3.5     The Company may substitute any component of the Equipment or part of any component of the Equipment prior to delivery without consultation with the Customer

(but nevertheless subject to advising the Customer on or before delivery) and may in any

other respect modify the Equipment if, in the reasonable opinion of the Company, doing so will not:

 

(a)        adversely affect the performance or capacity of the Equipment;

 

(b)        alter the configuration of the Equipment in any material respect; or

 

(c)        otherwise materially affect the obligations of the Company or prejudice the rights of the Customer under this Agreement.

 

requirements, access, security procedures and any other matter within the Customer's knowledge or control which will assist the Company in complying with its obligations under this Agreement.

 

5.      Site Preparation

 

5.1     The Customer shall at its own expense prepare the Site, and access to theSite, prior to delivery of Equipment (complying with any directions or specifications issued by the Company) and ensure the availability at the Site of:

 

(a)        adequate electric current;

 

(b)        adequate electrical and mechanical fittings; and

 

(c)        appropriate environmental conditions.

 

5.2     The Company shall, upon request from the Customer, supply such information and assistance as the Company considers reasonable and necessary to enable the ustomer to prepare the Site and shall, if requested by the Customer and at the Customer’s expense, inspect the Site prior to delivery to provide an opinion as to whether the Site is suitable for delivery and installation of Equipment.

 

5.3     The Customer shall be liable to the Company for all reasonable costs and expenses incurred by it directly or indirectly as a result of any delay in delivery or installation of the Equipment due to inadequate preparation of or access to the Site.

 

6.      Retention ofTitle

 

6.1     Title in the Equipment will pass to the Customer upon full and final payment to the

Company in cleared funds of all sums payable by the Customer under this Agreement.

 

6.2     Risk of loss or damage to any Equipment passes to the Customer upon delivery of the Equipment to the Site or the Company’s premises, and the Customer shall insure the Equipment with a reputable insurance company in favour of the Customer in an amount equal to the amount payable for it under this Agreement against all risks of loss or damage due to any cause.

 

7.      Event of Default

 

If an Event of Default occurs, then without prejudice to the Company’s other rights, the Company may without notice to the Customer enter any premises occupied by the Customer or any other place where the Equipment may be and recover possession of them.

8.      Charge over Customer’s Property

 

8.1     To secure the payment of all moneys payable by the Customer to the Company, the Customer hereby charges in favour of the Company all right, title, estate and interest which it now has or may later acquire in any freehold or leasehold property.

 

8.2     The Customer further agrees that if demand is made by the Company the Customer will immediately execute an instrument of security, as required by the Company, and if it fails to do so within a reasonable time of being so requested, the Customer irrevocably and

by way of security appoints any secretary, director, manageror attorney engaged by the

Company to be its true and lawful attorney to execute and register such instruments.

 

9.      Proceeds of Sale

 

If the Equipment is resold by the Customer, the Customer holds all of the book debts and proceeds in respect of such sales on trust for the Company and must keep the proceeds of sale in a separate account and not mix such proceeds with any other funds. Such part of the book debts and proceeds are deemed to equal in dollar terms the amount owed by the Customer to the Company at the time of the receipt of such book debts and proceeds.

 

10.     Negative Pledge

 

The Customer shall not withoutthe prior written consent of the Company enter into any security agreement with any other party that permits that party to register a security interest in respect of the Equipment or proceeds of sale of the Equipment.

 

11.     Allocation of Funds

 

The Company may at their discretion and in such manner as they determine allocate payments made by the Customer for the Equipment supplied by the Company or any other amount that may be due to the Company by the Customer.

 

12.     Personal Property Securities Act 2009 (“PPSA”)

 

For the purposes of the PPSA:

 

12.1   Purchase money security interest

 

The Customer acknowledges that the Company holds a purchase money security interest in the following:

 

(a)        Equipment supplied by The Company;

 

(b)        Any new products into which the Equipment supplied have been manufactured, processed, assembled or commingled such that their original identity is lost;

(c)        All proceeds in relation to the Equipment referred to in (a) and (b) including without limitation money, accounts receivable and insurance proceeds; and

 

(d)        Any products for which any of the Equipment referred to in (a) and (b) have been exchanged or traded or that have been acquired in lieu of the Equipment,

 

as security for the price payable by the Customer to the Company at any time for the

Equipment.

 

12.2   Security Interest

 

The Customer acknowledges that the Company also holds a security interest all of the Customer’s present and after-acquired property (including without limitation all freehold and leasehold real estate).

 

12.3   Customer to do all necessary for “perfection”

 

(a)        If requested by the Company, the Customer shall promptly and without undue delay execute any documents (including any new contracts or mortgages over real estate), provide all information required in order to complete a Financing Statement (as defined under the PPSA) and comply with any other reasonable requests by the Company to ensure that the Company’s purchase money security interest(s) and general security interest are pfected.

 

(b)        The Customer shall immediately notify the Company in writing of any change in the Customer’s name and shall also provide all information required in order to complete a financing change statement.

 

12.4   Customer waives right to receive verification statement

 

The Customer waives its right to receive a copy of the verification statement confirming registration of a financing statement or a financing change statement in relation to the Company’s security interests.

 

12.5   Customer to pay all filing fees for financing statement

 

The Customer shall be responsible for all costs, expenses and other charges incurred, expended or payable by the Company in relation to the filing of a financing statement or a financing change statement.

 

12.6   Opt-out of enforcement provisions

 

The Customer waives its rights under sections 95 (notice of removal of accession) , 118 (enforcing security interests in accordance with land law decisions), 121(4) (enforcement of liquid assets), 125 (obligation to dispose of or retain collateral), 128 (secured party may dispose of collateral), 129 (disposal by purchase), 130 (notice of disposal), 132(3)(d) (contents of

statement of account after disposal), 132(4)(statement of account if no disposal), 135 (notice of retention), 142 (redemption of collateral) and 143 (reinstatement of security interest) of the PPSA and the parties agree that those provisions do not apply to this Agreement or any supply

of the Equipment pursuant to this Agreement.

 

13.     Invoicing & Payment

 

13.1   The Company shall render a tax invoice to the Customer for the supply of Services and/or theEquipment.

 

 

 

13.2   The Customer shall pay to the Company all amounts payable by it under this Agreement and if applicable, in accordance with the Customer’s credit terms approved in writing by the Company, subject to the following:

 

(a)        where the Customer is an approved credit account customer, and the Customer is making payment through a lease, rental orhire-purchase facility, the Customer shall provide a certificate of approval addressed to the Company by the relevant finance company before this Agreement  is processed by the Company;

 

(b)        where the Customer is an approved credit account customer, and for the value of Equipment to be acquired by the Customer equal to or exceed $50,000, the Company may require the Customer to provide a deposit of 25% of for the value of the Equipment before this Agreement is processed;

 

(c)        Where the Customer is an approved credit account customer, and the Customer will make payment using a credit card facility, the Company may charge a credit card administration fee equal to 3% of the invoiced amount; and

 

(d)        Where the Customer does not have an approved credit account with the Company, the Customer pay in advance or pay cash on delivery for the invoiced full amount, and, if the Customer pays by credit card, the Company may charge a credit card administration fee equal to 3% of invoiced amount.

 

13.3   The Customer shall pay all reasonable out of pocket expenses (including without limitation telephone, parking, mileage, accommodation, and aifares) incurred by the Company in providing the Services, and the Company shall retain and provide copies of receipts on request.

 

13.4   If the Customer disputes the whole or any portion of the amount claimed in an invoice submitted by the Company, the Customer shall make due payment of the portion of the amount stated in the invoice which is not in dispute and shall notify the Company in writing (within seven days of receipt of invoice) of the reasons for disputing the balance. If it is resolved that some or all of the amount in dispute ought properly to have been paid at the time it was invoiced, then the Customer shall pay the amount forthwith.  In