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STANDARD TERMS AND CONDITIONS

THIS AGREEMENT is made between Parties (ITMS GROUP PTY LTD) & (The Customer). 


Recitals

The ITMS GROUP PTY LTD is an information technology service business

  1. Customer wishes to obtain the services and goods from the ITMS GROUP PTY LTD indicated in Schedule 1. 
  2. Customer agrees to pay the ITMS GROUP PTY LTD for those services for the amount indicated in Schedule 1. 
  3. The ITMS GROUP PTY LTD and the Customer agree that those services will be provided according to the terms and conditions set out below. 

Terms and Conditions of Agreement 

Definitions 

1. For the purposes of this Agreement the following definitions are assumed: 

“Acceptance date" means the date at which the ITMS GROUP PTY LTD has discharged its obligations to the Customer pursuant to this Agreement. The precise acceptance date is determined by the relevant sections of this Agreement which apply to the relevant services rendered by the ITMS GROUP PTY LTD. 

"Additional Work" means any work which is not maintenance work as prescribed in Schedule 1 and which is requested of the ITMS GROUP PTY LTD by the Customer in writing. 

"Agreement" means those terms and conditions together with the schedules completed by the ITMS GROUP PTY LTD and the Customer. 

"Contract Period" means the duration of this Agreement between the Date of this Agreement and the Acceptance Date pursuant to the relevant sections of this Agreement. 

"Contract Start Date" means the date this Agreement is made on, specified above. 

"Installation" means the client's electrical, software installation, equipment and/or works as specified in the Schedules by the Customer. 

"Normal Business Hours" means 8:00 a.m. to 5:00 p.m. Monday to Friday excluding Public Holidays or amended to such hours as agreed to between the parties in writing. 

"Payment Due Date" means the date upon which expires the time period for payment specified in the Terms and Conditions of this Agreement. 

"Premises" means the client's premises as specified in the Schedules. 

"Timetable" means the dates specified in Schedule 2 for the completion of various development stages. 

2. In this Agreement unless the context otherwise requires: 

a. Any reference to the ITMS GROUP PTY LTD is a reference to ITMS GROUP PTY LTD, it’s authorised agents or representatives; 

b. Any reference to the Customer is a reference to the person(s) contracting with the ITMS GROUP PTY LTD under this Agreement, their authorised agents or representatives; 

c. a reference to a person includes any other entity recognised by law and vice versa; 

d. words importing the singular number include the plural number and vice versa; 

e. words importing one gender include every gender; 

f. every agreement or undertaking by which more persons than one agree or undertake any obligation and/or derive benefit in terms of this document shall bind and/or endure for the benefit of such persons jointly and each of them severally; 

g. clause headings are for reference purposes only; 

h. where any word or phrase is given a defined meaning in this Agreement, any part of speech or other grammatical form in respect of such word or phrase shall have a corresponding meaning. 


Duration and Termination 

3. This Agreement which must be signed by both parties, will come into force on the date of this Agreement and will operate for the duration of the Contract Period subject to the following: 

a. Either party may terminate this Agreement upon 1 months written notice given to the other party; 

b. Either party may terminate this Agreement in the event of either party becoming bankrupt or making a composition arrangement with creditors or having a winding-up order validly made (except for the purpose of amalgamation or reconstruction) or a resolution for voluntary winding-up passed or having a provisional Liquidator, Receiver or Manager of its business duly appointed or if any judgement against either party remains unsatisfied for more than fourteen (14) days; 

c. Should any payment be outstanding by the Customer for more than one (1) month after the Due Date as specified in paragraph 34, the ITMS GROUP PTY LTD may terminate the Agreement by giving fourteen (14) days written notice to the Customer, providing payment is not made within that fourteen (14) day period and that no pending grievances regarding payment are being sought by the Customer. 

d. Save as provided in paragraph (above), either party may terminate this Agreement forthwith by written notice to the other party if that other party commits any breach of this Agreement and such breach is not rectified by the other party within thirty (30) days after written notice from the other party requiring it to do so. 

e. Termination of this Agreement will not affect the rights or liabilities of either party accrued prior to the termination. 

Severability 

4. Should any part of this Agreement be or become invalid, that part will be severed from this Agreement. Such invalidity will not affect the validity of the remaining provisions of this agreement. 

Interest 

5. In the event of any amount remaining unpaid after a period of thirty (30) days, the ITMS GROUP PTY LTD has the full and unfettered right to charge interest on the amount outstanding at the rate of 1% per month beginning on the 31st day after the “Company’s” invoice is forwarded to the Customer. 

Quotation 

6. All prices quoted are valid for a period of seven (7) days from the date shown in Schedule 1 of the Agreement. The prices shown in Schedule 2 of the Scope of Work are based on the cost of goods, availability of the specified equipment models, government sales tax, margins, billable hours and services costs and are subject to alteration by The ITMS GROUP PTY LTD before or after the acceptance of the Agreement to meet cost variations or general price changes when the cost of goods or the availability of the specified equipment models have changed. These price changes will be discussed with the Customer prior to any action being taken. 

7. Unless a fixed cost for services is agreed to in writing between the Customer and the ITMS GROUP PTY LTD, hours of work shown in Schedule 2 of The Agreement are an estimate only. The Customer will be invoiced for actual hours worked, whether greater than or less than that shown in Schedule 2. 

Commencement 

8. A project will only be commenced upon the receipt by The ITMS GROUP PTY LTD of a copy of this Agreement document signed by both The Customer and The Company, and the goods will be ordered on receipt of an official purchase order from The Customer. 

9. Project commencement is subject to lead times on product delivery. 

Working Hours 

10. Unless agreed in writing, if the Customer requires work to be completed outside the stated Working hours, the hourly rate will be 1.5 times the various rates shown in this Agreement. 

11. The Customer will not be invoiced for lunch breaks or work breaks of a personal nature. 

Travel and Accommodation 

12. Unless otherwise stated, this Agreement covers travel within a 50 kilometre radius of The Company’s’ premises. Travel outside of the 50 kilometre radius will be charged at the rate of $50 per hour. 

13. If the delivery of the project requires travel outside of the Brisbane metropolitan area, The Customer will be responsible for all travel and accommodation costs, including, airfares, car hire, transfers, lodging and meals. 

Place of Payment 

14. All monies payable by the Customer to the ITMS GROUP PTY LTD under this Agreement shall be paid by the Customer at the address of the ITMS GROUP PTY LTD free of exchange, or at such other place or places as the ITMS GROUP PTY LTD may in writing require. 

Title to the Goods 

15. Title to the goods supplied by the ITMS GROUP PTY LTD will not pass to the Customer until: 

a. payment in full of the purchase price of the goods has been received by the ITMS GROUP PTY LTD from the Customer; and 

b. all monies owing to the ITMS GROUP PTY LTD by the Customer on any account whatsoever have been paid in full to the ITMS GROUP PTY LTD by the Customer. 

16. Risk to the goods shall pass to the Customer upon the delivery of the goods or collection of the goods by the Customer or their agents or couriers as the case may be.


17. Until payment is received by the ITMS GROUP PTY LTD the Customer will: 

a. store the goods separately and in such a way as to be clearly identifiable as the property of the ITMS GROUP PTY LTD ; and 

b. maintain separate accounting records for the sale of any goods, bank the proceeds of the sale into a separate account and immediately remit those funds to the ITMS GROUP PTY LTD of that portion of those funds which is sufficient to complete payment. 

18. If, before the payment is received, any of the goods are incorporated in any construction, used in a manufacturing process or in any way become a constituent of a new product, the Customer and the ITMS GROUP PTY LTD agree that the ITMS GROUP PTY LTD will receive title to the new product as security for full payment and the Customer will bank the proceeds of any sale of that new product into a separate bank account and immediately remit those funds to the ITMS GROUP PTY LTD or that portion of those funds which is sufficient to complete payment. 

19. If the payment is not received by the ITMS GROUP PTY LTD by the date specified in paragraph 34, the ITMS GROUP PTY LTD is hereby irrevocably authorised by the Customer to enter the “Client’s” premises (or any premises under the control of the Customer or as agent of the Customer if the goods are stored on such premises) and use reasonable force to take possession of the goods without liability for tort, trespass, negligence or payment of any compensation to the Customer whatsoever. 

Defects 

20. The Customer must: 

a. advise the ITMS GROUP PTY LTD of any defects in the goods immediately upon the defect becoming known; and 

b. give notice of the defect in writing to the ITMS GROUP PTY LTD before the goods are incorporated in any construction, used in any manufacturing process or in any way becomes a constituent of a new product. 

21. If the Customer fails to notify the ITMS GROUP PTY LTD pursuant to paragraph 30 any monies for which the ITMS GROUP PTY LTD would become liable to pay for rectification work will be reduced by the additional cost incurred by reason of the goods being incorporated into any construction, used in any manufacturing process or in any way becoming a constituent of a new product. 

22. The Customer must give notice in writing to the ITMS GROUP PTY LTD of any defect in the delivery of the goods within seven (7) days of that delivery. If the Customer fails to notify the ITMS GROUP PTY LTD, the Customer must pay the ITMS GROUP PTY LTD for the goods as per paragraph 34. 

Customer's Obligations 

23. The Customer will provide the ITMS GROUP PTY LTD with all reasonable assistance and access to facilities to enable the ITMS GROUP PTY LTD to comply with its obligations under this Agreement. 

24. The Customer will notify the ITMS GROUP PTY LTD in writing of any proposed change of use of the said premises or any proposed alteration to the installation and/or premises during the contract period. 

25. The Customer will ensure that the ITMS GROUP PTY LTD in carrying out their obligations under this Agreement will not be exposed to any risk to health or safety. The Customer will indemnify the ITMS GROUP PTY LTD in the event that the ITMS GROUP PTY LTD sustains injury in consequence of a breach of this provision. 

26. The Customer will notify the contractor in writing in the event that the Customer proposes to assign, sub-let or otherwise transfer the premises during the duration of this agreement and to specify the date of the proposed or actual assignment, sub-letting or transference. 

27. The Customer will retain liability for all usual risks for the premises, its contents and shall take out and maintain adequate insurance against such risk and upon request provide evidence of such insurance to the ITMS GROUP PTY LTD. 

Confidentiality 

28. Each party undertakes to treat as confidential and keep secret all information relating to, the business practices, the ITMS GROUP PTY LTD and “Clients” data and intellectual property, and the clientele of the other party. Any such disclosure may be made with the prior written consent of the other party. 

Data Security & Privacy

29. ITMS Group Pty Ltd will take reasonable measures to protect the confidentiality and security of the Customer's data in accordance with industry best practices and applicable Australian data protection laws, including the Privacy Act 1988 (Cth) and the Australian Privacy Principles (APPs). ITMS Group Pty Ltd will notify the Customer promptly of any data breach or security incident affecting their data and will cooperate fully with the Customer in investigating and remediating the incident.

Limitation of Liability:

30. To the maximum extent permitted by law, ITMS Group Pty Ltd shall not be liable for any indirect, incidental, special, consequential, or punitive damages, or any loss of profits or revenues, whether incurred directly or indirectly, or any loss of data, use, goodwill, or other intangible losses, resulting from 

a. your use or inability to use the services; 

b. any unauthorised access to or use of our servers and/or any personal information stored therein; 

c. any interruption or cessation of transmission to or from our services; 

d. any bugs, viruses, trojan horses, or the like that may be transmitted to or through our services by any third party; 

e. any errors or omissions in any content or for any loss or damage of any kind incurred as a result of your use of any content posted, emailed, transmitted, or otherwise made available via the services; and/or 

f. any other matter relating to the services. In no event shall ITMS Group Pty Ltd's aggregate liability for all claims relating to the services exceed the amount of fees paid by you to ITMS Group Pty Ltd during the six (6) month period immediately preceding the event giving rise to the liability.

Force Majeure:

31. Neither party shall be liable for any failure to perform its obligations under this Agreement if such failure is caused by any event beyond its reasonable control, including, without limitation, acts of God, war, terrorism, civil unrest, strikes, lockouts, industrial disputes, fire, flood, earthquake, epidemic, pandemic, shortages of supply, compliance with any law or governmental order, rule, regulation or direction, or any action taken by a governmental or public authority, including but not limited to imposing an embargo, export or import restriction, quota or other restriction or prohibition. If such an event occurs, the affected party shall promptly notify the other party and shall use reasonable efforts to mitigate the impact of the event on its performance. The time for performance shall be extended by a period equal to the duration of the event. If the event continues for more than thirty (30) days, either party may terminate this Agreement upon written notice to the other party.

Data Backup and Recovery:

32. ITMS Group Pty Ltd will perform regular backups of the Customer's Odoo database and related files. Backups will be performed daily and retained for a period of 30 days In the event of data loss or corruption, ITMS Group Pty Ltd will use commercially reasonable efforts to restore the data from the most recent available backup. However, ITMS Group Pty Ltd does not guarantee the complete recovery of all data and shall not be liable for any loss or corruption of data, however caused. The Customer is responsible for verifying the integrity of the restored data. Additional data recovery services may be subject to additional charges.

Delivery and Payment 

33. Unless otherwise stated by The Company, in writing no discount shall be allowed and payment shall be made within seven (7) days from the Acceptance Date. 

34. Unless otherwise stated in this Agreement, invoicing for project related work will be made at the end of each phase and upon receipt of a phase sign off document, completed and signed by the Customer. The Customer must complete and sign a phase sign-off document on the day a phase is completed. The completion of a phase includes testing to ensure the Customer is satisfied that the phase is complete. A project will be deemed to be complete upon receipt of a project sign off document, completed and signed by the Customer. 

Warranties 

35. Warranties for all hardware and software delivered to the Customer shall be supplied by the manufacturer or distributor of the hardware or software. The ITMS GROUP PTY LTD offers no additional warranty on hardware or software products. 

a. Unless otherwise stated, all projects includes a fourteen (14) day warranty on all services performed. The warranty period will begin from the date The ITMS GROUP PTY LTD receives a completed project sign off document. During the warranty period, any problem directly related to the project defined in the Scope of Work, will be corrected by The Company, free of charge during the stated Working Hours. 

b. The client specifically acknowledges that they have not relied on any representation or warranty, whether oral or written, made by the company outside of this agreement. 


Copyright 

36. ITMS Group Pty Ltd retains ownership of all pre-existing intellectual property used in the provision of services under this Agreement. All customisations, modules, or code specifically developed for Customer under this Agreement, and paid for in full by Customer, shall become the exclusive intellectual property of Customer. ITMS Group Pty Ltd retains the right to use its expertise and experience gained from providing services to Customer in the provision of services to other clients, provided that it does not disclose any confidential information belonging to Customer.

Acceptance 

37. The signed acceptance of this contract, shall be an acceptance of these terms and conditions notwithstanding any inconsistencies which may be introduced by terms and conditions submitted by the Customer unless expressly agreed by The ITMS GROUP PTY LTD in writing. 

Governing Law

38. This Agreement shall be governed by and construed in accordance with the laws of Queensland, Australia.

Legislation 

39. The terms and conditions shown in this agreement are subject to the mandatory provisions of legislation of The Commonwealth of Australia including consumer protection provisions of the Trade Practices Act 1974 or of one or more of the States or Territories, which afford statutory rights to consumers.