STW General Terms and Conditions

These standard terms and conditions of trade are incorporated into and form part of the IT Support Agreement made between the Client and STW. The Customer has requested and STW has agreed to provide the Services in accordance with the terms and conditions of this Agreement.

a.Definitions and Interpretation

    1.1 In this Agreement (including the recitals), unless the context otherwise requires:
    “Agreement” means this agreement (including the recitals and the schedule), as amended or supplemented by the Parties in writing;
    “Business Day” means any day except a public holiday or a Saturday or Sunday;
    “Confidential Information” means information of a confidential nature which STW gives the Customer or the Customer gives to STW under this Agreement whether given verbally or in writing, personal or otherwise, and including documents, plans, marketing strategies, trade secrets, technical information, know-how and intellectual property or any information advised to be of a confidential nature where such information is not already in the public domain;
    “Delivery Location” means the address for delivery of the Products to the Customer, as advised by the Customer to STW;
    “Intellectual Property” or “Intellectual Property Rights” includes all present and future rights in relation to copyright, trademarks, designs, patents or other proprietary rights, or any rights to registration of such rights whether created before or after the date of this Agreement;
    “Restraint Period” means the period of restraint as set out in the Schedule;
    “Restraint Area” means the area of restraint as set out in the Schedule;
    “Services” means the goods and/or services as set out in the Schedule;
    “Schedule” means a schedule to this Agreement;
    “Price” means the price for the Services as set out in the Schedule; and “Products” means any goods to be supplied by STW to the Customer in accordance with the Services.

    1.2 In this Agreement, unless the context otherwise requires:

    1. headings are for convenience only and do not affect its interpretation or construction;
    2. the singular includes the plural and vice versa;
    3. references to recitals, clauses, subclauses, paragraphs, annexures or schedules are references to recitals, clauses, subclauses, paragraphs, annexures and schedules of or to this Agreement;
    4. words importing a gender include other genders;
    5. the word “person” means a natural person and any association, body or entity whether incorporated or not;
    6. where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;
    7. a reference to any statute, proclamation, rule, code, regulation or ordinance includes any amendment, consolidation, modification, re- enactment or reprint of it or any statute, proclamation, rule, code, regulation or ordinance replacing it;
    8. “includes” is not a word of limitation;
    9. no rule of construction applies to the disadvantage of a Party because this Agreement is prepared by (or on behalf of) that Party;
    10. a reference to any thing is a reference to the whole and each part of it;
    11. a reference to a group of persons is a reference to all of them collectively and to each of them individually; and
    12. a reference to a document includes all amendments or supplements to, or replacements or novations of, that document.
  1. Provision of Services
    2.1. In consideration of the Price, STW agrees to provide the Services to the Customer in accordance with the terms and conditions of this Agreement.
    2.2. Where the Services comprise an undertaking of services by STW:

    1. STW will deploy its suitably qualified, knowledgeable and skilled employees to carry out the Services;
    2. STW will carry out the Services with the quality, efficiency and workmanship in line with industry best practices and in a safe manner;
    3. STW will act in accordance with the Customer’s reasonable instructions including but not limited to using the equipment and hardware provided by the Customer; and
    4. STW will use reasonable endeavours to minimise disruption to the Customer’s business operations.
    2.3. Where the Services comprise a provision of Products by STW:

    1. STW agrees to pack and deliver the Products to the Delivery Location;
    2. STW will to deliver the Products in a reasonable time, or in accordance with any other time frame agreed between the Parties;
    3. the Customer will pay for the costs of freight of the Products to the Delivery Location, including all costs of packing the Products for transportation unless otherwise agreed between STW and the Customer;
    4. risk in the Products will pass to the Customer upon delivery of the Products to the Delivery Location;
    5. if the Customer believes that the Products are defective, the Customer will:
          (i) as soon as reasonably practicable, notify STW of the alleged defect;
          (ii) return the Products to STW after notification of the defect to STW;
          (iii) provide STW with ninety (90) days from STW’s receipt of the Products in which to determine, in STW’s reasonable opinion, whether the Products are defective; and
        (iv) where STW is of the opinion that the Products are defective, STW will, at its absolute discretion, provide a replacement Product or a credit note for the Price of the Product (where the Customer has already paid for the Products);
    6. the Customer acknowledges and agrees that STW makes no warranty as to the fitness of the Products for the Customer’s purpose, whether or not such a purpose was notified to STW by the Customer and the Customer undertakes and agrees to make its own enquiries as to the suitability of the Products for the Customer’s purpose(s) prior to entering into this Agreement.
    2.4. If STW conducts repairs to goods and/or Products, the Customer acknowledges and agrees that data stored on those goods and/or Products may be destroyed. The Customer is responsible for ensuring it has back-up copies of its data prior to STW undertaking any repairs. The Customer further agrees that in undertaking the Services, STW may use refurbished parts to repair the goods and/or Products.
    2.5. The Services may, from time to time, be varied by written agreement between the Parties.
    2.6. All transactions are processed in Australian Dollars (AUD)
  2. Expenses
    If STW, in the provision of Services to the Customer, incurs costs and expenses payable to third parties, STW will invoice the Customer for those costs and expenses and the Customer will be liable to reimburse STW for the same. Where practicable, STW will inform the Customer of the costs and expenses payable prior to STW incurring the costs and expenses.
  3. Payment
    4.1. All accounts will be settled in accordance with the payment terms specified on STW’s invoices or as agreed in writing between the Customer and STW.
    4.2. STW shall be entitled to charge interest at the rate of twelve (12) per cent per annum on any amount outstanding beyond thirty (30) days after the due date specified on STW’s invoice.
    4.3. If any amount remains unpaid after the due date for payment specified on STW’s invoice, STW may elect to suspend provision of the Services. If any amount owing to STW remains outstanding beyond sixty (60) days after the due date specified on the STW’s invoice, STW may elect to terminate this Agreement.
    4.4. If the Customer disputes the whole or any part of the amount claimed in STW’s invoice, the Customer agrees to pay the undisputed portion on or prior to the due date. The dispute regarding the remainder of the invoice may be referred to the dispute resolution procedure in clause 8.
  4. Confidential Information
    5.1. Neither Party may, without the prior written consent of the other, disclose the other Party's Confidential Information unless it is compelled to do so by law.
    5.2. Each Party will take all reasonable steps to ensure that its personnel do not make public or disclose the other Party's Confidential Information.
    5.3. Notwithstanding any other provision of this clause 5, a Party may disclose the terms of this Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.
    5.4. The Parties acknowledge and agree that this clause 5 survives the termination of this Agreement.
  5. Intellectual Property
    6.1 The Customer agrees that it has obtained all relevant Intellectual Property Rights over any images, written text, video, software or other content which it posts, displays, transmits, provides or otherwise makes available to STW (“Content”).
    6.2. By providing Content to STW, the Customer agrees that that Content is the sole responsibility of the Customer and that STW has no responsibility to the Customer or to any third party for any Content which may infringe a trade mark, copyright, patent or any other Intellectual Property Right of a third party.
    6.3. STW claims no ownership or control over any Content and the Customer retains any Intellectual Property Rights already held in the Content.
    6.4. In executing this Agreement, STW grants a non-exclusive licence over all Intellectual Property Rights contained in the Services to the Customer, including rights of any sort in things produced in the course of or in connection with the Services such as text, graphics, logos, button icons, video images, audio clips, source code and instruction manuals. STW and the Customer mutually agree that the consideration for the licence is encompassed within the Price.
    6.5. To the extent permitted by applicable law, STW consents, and will obtain all other necessary written consents, to any act or omission that would otherwise infringe any moral rights in the Services, and further STW waives and will obtain all other necessary written waivers, all moral rights in the Services, for the benefit of the Customer, its licensees, successors in title and anyone authorised by any of them to do acts comprised in the copyright.
  6. Termination
    7.1 Neither Party may terminate this agreement during the Term except under clauses 7.2 to 7.4 below.
    7.2 Either Party may terminate this agreement at any time by giving 30 days written notice to the other Party.
    7.3 Without limiting STW’s rights under this agreement or otherwise, if an invoice rendered under clause 4 of the Principal Document remains overdue (whether in whole or in part) for more than 30 days, STW may at its sole discretion terminate this agreement with immediate effect by giving written notice to the Customer.
    7.4 Either Party may immediately terminate this agreement with immediate effect by giving written notice to the other if:

    7.4.1 The other is in breach of this agreement (“Breach”) and has failed
    to remedy the Breach within 14 days of notice from the other Party
    outlining the Breach and requesting that the Breach be remedied; or
    7.4.2 Goes into liquidation, voluntary administration or external control
    of any kind or commits an act of bankruptcy or becomes insolvent or any
    court judgment or order for payment of money is made against it and
    remains unpaid for 7 days.
    7.5 Upon termination of this Agreement neither Party will be released from any liability or right of action which at the time of expiry or termination has already accrued to either Party or which may accrue in respect of any act or omission prior to such expiry or termination, including but not limited to the recovery of any monies due under this Agreement.
  7. Dispute Resolution
    8.1. If a dispute arises out of this Agreement, neither Party may commence legal proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
    8.2. A Party claiming a dispute has arisen must give written notice to the other Party detailing the nature of the dispute, the desired outcome and the action required to settle the dispute (“Dispute Notice”).
    8.3. On receipt of the Dispute Notice by the other Party, the Parties must:

    1. within seven days of the Dispute Notice endeavour in good faith to resolve the dispute expeditiously by negotiation or such other means upon which they may mutually agree;
    2. if after twenty-one (21) days after the date of the Dispute Notice, the dispute has not been resolved, either Party may request that an appropriate mediator be appointed to assist in the mediation of the dispute;
    3. the Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation.
    8.4. All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the fullest extent possible, must be treated as "without prejudice" negotiations.
    8.5. If thirty (30) days have lapsed following the service of the Dispute Notice and the dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.
    8.6. In the event that the dispute is not resolved at the conclusion of the mediation, either Party may institute legal proceedings concerning the subject matter of the dispute.
  8. Non-Solicitation
    9.1 In this clause 9 "Restraint Period" means the Term plus twelve (12) months after the expiration of the Term or the termination of this agreement.
    9.2. The Customer undertakes and agrees not to, at any time during the Term or following the termination or expiration of this Agreement, during the Restraint Period within the Restraint Area, induce or attempt to induce any of the employees of the Supplier to terminate their agreements or contracts with the Supplier.
    9.3. The Customer acknowledges that the restrictions contained in this clause are:

    1. fair and reasonable in regard to the subject matter, area and duration;
    2. reasonably required by the Supplier to protect its business and financial interests; and
    3. given without any coercion or pressure.
    9.4. If a Party breaches clause 9.2 above, that Party shall pay the other Party liquidated damages fixed in the sum of $20,000.00 or 40% of the annual salary or fee payable to the person poached, whichever is the greatest, immediately upon that breach occurring.
  9. Limitation of Liability
    The Customer acknowledges and agrees that, subject to the Competition and Consumer Act 2010 (Cth) or other applicable legislation, STW’s total liability for any loss, damage or reliance shall be limited to:

    1. in the case of goods, either replacement of goods, repair of goods, or a refund of the price paid for the goods (as determined by STW); or
    2. in the case of services, either supply of the services again or a refund of the price paid for the services (as determined by STW).
  10. Force Majeure
    11.1. If, by reason of any event of Force Majeure which was outside the control of a Party results in the delay of, or prevention from,
    performing any of the provisions of this Agreement:

    1. then such delay of performance shall not be deemed to be a breach of this Agreement;
    2. no loss or damage shall be claimed by the other Party from the other by reason thereof; and
    3. the Parties shall use their best endeavours to minimise and reduce any period of suspension occasioned by any event of Force Majeure.
    11.2. An event of Force Majeure shall mean and include fire, flood, casualty, lock out, strike, labour condition or industrial action of any kind, unavoidable accident, national calamity or riot, disease, act of God, the enactment of any act of Parliament or the act of any legally constituted authority, any cause or event arising out of or attributable to war or any other cause or event (whether of a similar or dissimilar nature), outside the control of the Parties.
  11. Indemnity
    The Customer hereby forever indemnifies STW against any loss, costs, damage, liability or expense including legal costs on a full indemnity basis, which STW may incur or suffer as result of, arising out of or in consequence of:
    12.1 Any breach or default by the Customer of this agreement.
    12.2 STW’s provision of the Services in accordance with the terms of this agreement.
  12. General Provisions
    13.1. The relationship between the Customer and STW is that of a principal and an independent supplier. Nothing in this Agreement shall be construed as creating an employment relationship between the Customer and STW.
    13.2. All notices, demands and other communications between the Parties for the purposes of this Agreement shall be in writing and addressed to the
    Party’s address stipulated in the Schedule. Such notice, if delivered personally or sent by facsimile, shall be deemed received on that day or if delivered by other means, after two (2) Business Days of sending.
    13.3. Any provision of, or the application of any provision of this Agreement which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.
    13.4. Any provision of, or the application of any provision of this Agreement which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
    13.5. If a clause is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in this Agreement.
    13.6. This Agreement may be executed in any number of counterparts and all such counterparts when executed and taken together will constitute this Agreement.
    13.7. This Agreement shall be governed by and construed in accordance with the law for the time being applicable to STW and the Parties agree to submit to the non-exclusive jurisdiction of the Courts of that jurisdiction.
  13. Information regarding this legal contract
    14.1 These “General Terms and Conditions” is a legal contract binding the Customer and STW. The Customer automatically accepts this legal contract by making a purchase, placing an order, or otherwise paying for services. The terms and conditions of this Legal Contract are subject to change without prior notice, except that the terms and conditions provided at time of order / or modification or order by the customer will govern the order in question.
    14.2 This Legal Contract constitutes the entire agreement between the Customer and STW relating to the purchase or sale of goods or services.
    In the event of any conflict between terms and conditions listed on this Legal Contract / any terms and conditions on our invoice and your purchase order terms and conditions, you agree that the provisions of this Legal Contract and our invoice shall overrule.