Introduction

Subject to any further contractual terms agreed between ManageMyNetwork and Customer, Customer agrees to accept supply of Goods and Services by ManageMyNetwork under the following ManageMyNetwork Terms of Trade.

General Terms

1. Definitions

1.1. Definitions - Unless the context otherwise requires:

1.2. "Business Day" means a day that is not a Saturday, Sunday or any other day which is a public holiday.

1.3. "Contract Specifications" means the Customer's functional specifications, scope of work and any other specifications or requirements provided by the Customer (or in conjunction with ManageMyNetwork) in writing and agreed to between the Parties on which ManageMyNetwork  is to base supply of the relevant Deliverable.

1.4. “Customer” means the person or entity named in any order form or other document confirming the order of Goods or Services pursuant to these Terms of Trade.

1.5. “ManageMyNetwork” means ManageMy Pty Ltd ABN 33 059 095 537.

1.6. “Deliverable” means the specific element of Hardware, Software or Services to be delivered pursuant to these Terms of Trade.

1.7. “Goods” means Hardware and/or Software supplied pursuant to these Terms of Trade.

1.8. "Hardware" means any computer equipment including component parts to be supplied pursuant to these Terms of Trade.

1.9. “Parties” means ManageMyNetwork and the Customer.

1.10. “Services” means the information technology services detailed in the Contract Specifications and to be supplied pursuant to these Terms of Trade.

1.11. "Software" means Developed Software, Licensed Software or Third Party Software as the context dictates to be supplied pursuant to these Terms of Trade.

1.12. "Price" in relation to a Deliverable means the price payable for that Deliverable as agreed between the Parties.

2. Customer’s Obligations

2.1. The Customer will cooperate fully and act reasonably and in good faith to assist in the timely progress and fulfillment of ManageMyNetwork’s obligations entered into pursuant to these Terms of Trade.

2.2. The Customer will be responsible for all site preparation to enable efficient delivery and implementation of a particular Deliverable.

2.3. The Customer will provide ManageMyNetwork with all necessary access to the Customer's premises and systems to enable ManageMyNetwork to fulfill its obligations under the Contract.

2.4. The Customer agrees to ensure that all ManageMyNetwork personnel, agents or sub-contractors are sufficiently trained in and aware of all Customer’s company policies and procedures (including workplace health and safety requirements) to the extent necessary during the term of the engagement.

3. ManageMyNetwork’s Obligations

3.1. ManageMyNetwork will ensure that the Deliverables comply with the Contract Specifications.3.2. ManageMyNetwork will ensure that the Deliverables are supplied in a professional manner and with due care and skill.

4. Contract Specifications

4.1. Customer warrants that all necessary Contract Specifications for the supply or integration of any Hardware, Software or Services under this Agreement have been provided to ManageMyNetwork in writing and in sufficient detail to satisfy ManageMyNetwork’s requirements of interpretation and understanding to enable supply of the Deliverables to Customer as requested.

4.2. ManageMyNetwork shall not accept any liability whatsoever for supply of such Deliverables contrary to Customer's intention due to insufficient or inadequate provision of Contract Specifications or detail by Customer.

5. Delays

5.1. Any delay by ManageMyNetwork in complying with the timeframes specified in the Contract Specifications will not relieve the Customer of the obligation to pay the charges invoiced to the Customer under this Agreement.

6. Prices

6.1. Prices do not include:

6.1.1. delivery costs, unless agreed by ManageMyNetwork;

6.1.2. taxes, unless otherwise stated;

6.1.3. installation, support or maintenance of Deliverables (after the expiry of any applicable manufacturers or licensor’s warranty period) unless expressly stated otherwise;

6.1.4. any preparation of the site, or any audit of or work on the physical environments unless expressly stated. If not stated, the Customer must provide a suitable environment meeting ManageMyNetwork’s or the manufacturer’s reasonable requirements;

6.1.5. any overtime rates unless expressly stated otherwise;

6.1.6. any miscellaneous costs or expenses including associated travel or accommodation.

6.2. All quotations and prices are subject to change without notice.

7. Payment

7.1. Payment terms are net 14 days from date of invoice in accordance with the terms of ManageMyNetwork’s Credit Application form.

7.2 If the customer defaults on payment by the due date of any amount payable to ManageMyNetwork, or if any cheque drawn by the Customer is dishonoured, then all money that would become payable by the Customer to ManageMyNetwork at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and ManageMyNetwork may, without prejudice of any other remedy available to it: -
(a) charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty interest Rates Act 1983 plus 4 per cent for the period from the due date until the date of payment in full;
(b) charge the Customer for all expenses and costs (including legal costs on a solicitor/own client basis and dishonoured cheque fees) incurred by it resulting in the default and in taking what ever action it deems appropriate to recover any sum due;
(c)cease or suspend for such period as ManageMyNetwork thinks fit, supply of any further goods or services to the Customer;
(d) by notice in writing to the customer, terminate any contract with the customer so far as unperformed by ManageMyNetwork; without effect on the accrued rights of ManageMyNetwork under any contract.

7.3 Clauses 7.2(c) and 4.1(d) may also be relied upon, at the option of ManageMyNetwork:
(a) where the Customer is an individual and becomes bankrupt or enters into any scheme of arrangement or any assignment of composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or
(b) where the Customer is a corporation and, it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, provisional liquidator, administrator, receiver or receiver and manager appointed, or any action is taken, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Customer.

8. Cash Sales

8.1. Should ManageMyNetwork supply Customer with any Deliverables on a cash sales basis Customer agrees to the following terms:8.2. No order shall be processed until full payment for the deliverable has been received by ManageMyNetwork.8.3. Should delivery of the Deliverable be ineffective due to the unavailability of Customer to accept delivery, ManageMyNetwork reserves the right to charge customer for freight and restocking charges.8.4. Once an order for a Deliverable is placed it cannot be cancelled or changed unless agreed to by ManageMyNetwork.

9. Confidentiality

9.1. The Parties shall not without the prior written approval of the other make public or disclose to any other entity any confidential information of the other.

10. Delivery

10.1. Estimated delivery dates are based on information available to ManageMyNetwork from suppliers. ManageMyNetwork is not responsible for delays in delivery caused by a supplier or for other reasons beyond the control of ManageMyNetwork.

11. Risk and Title

11.1. Risk of loss or damage to Goods will pass to the Customer when the Goods are delivered to the Customer or to the Customer’s authorised representative11.2. Notwithstanding the passing of risk:

11.2.1. all Goods delivered by ManageMyNetwork to the Customer remain the property of ManageMyNetwork until all monies owing to ManageMyNetwork have been paid in full. Until that time and in the case of Software, subject to the manufacturers consent and license conditions, Customer may sell the Goods in the ordinary course of business as agent for ManageMyNetwork, and the proceeds shall be held in trust for and as the property of ManageMyNetwork.

11.2.2. Prior to any sale by the Customer, the Customer shall hold the Goods as bailee for ManageMyNetwork and shall return the Goods to ManageMyNetwork on demand.

11.2.3. Until payment has been received in full, ManageMyNetwork will be entitled to enter the premises of the Customer at any time to inspect all records in relation to all Goods supplied by ManageMyNetwork and all records in respect of the sale of those Goods by the Customer.

11.2.4. ManageMyNetwork will be entitled to enter the premises of the Customer at any time to recover possession of those Goods for which payment in full has not been made.

11.2.5. It is agreed between ManageMyNetwork and the Customer that where ManageMyNetwork enters the premises of the Customer to take possession of the Goods and it is not possible to otherwise identify the ownership of the Goods in the possession of the Customer, the Goods will be treated as though they were sold by the Customer in the same sequence as the Customer has taken delivery of the Goods. If the quantity of Goods exceeds the amount owing, ManageMyNetwork will be entitled to determine which of the Goods it claims ownership of the Goods in.

11.2.6. The Customer must insure the Goods against loss or damage of any kind for their full value until full payment of the purchase price.

12. Hardware Warranty

12.1. The Customer accepts the Hardware manufacturer’s warranty in relation to the Hardware. No other warranty is provided in relation to the Hardware.

13. Software Warranty

13.1. The Customer accepts the Software manufacturer’s warranty in relation to the Software. No other warranty is provided in relation to the Software.

13.2. Any issues or problems with any third party Software functionality are to be resolved between the Customer and the third party directly.

14. Software Manufacturers License Agreement

14.1. The Customer agrees to execute and be bound by the terms of the Software manufacturer’s end user license agreement.

15. Returns/Cancellation

15.1. The Customer agrees to return any Goods to be returned to ManageMyNetwork within 7 days of receipt of the Goods by the Customer. Each claim by the Customer for return of Goods shall be dealt with under ManageMyNetwork’s Goods returns procedure.

15.2. If the Goods can be returned to the supplier or are accepted by ManageMyNetwork the Customer will be issued with a Goods Return Authorisation Number (GRAN) as part of the returns process. The Customers agrees to label the Goods being returned with the GRAN and comply with the returns process as per the instructions of the ManageMyNetwork account manager.

15.3. The Customer agrees to pay all transportation costs and related charges for returning Goods to ManageMyNetwork and from ManageMyNetwork to Supplier if Goods orders are cancelled by Customer.

15.4. Both the Customer and ManageMyNetwork may cancel support orders upon 30 days written notice to the other party, unless otherwise agreed in writing between ManageMyNetwork and the Customer.

16. Limitation of Liability

16.1. Subject to the warranties expressly provided by the manufacturers of the Goods supplied under these ManageMyNetwork’s Terms of Trade all statutory or implied conditions and warranties are excluded to the extent permitted by law.

16.2. ManageMyNetwork accepts no liability whatsoever for any resulting loss or damage arising directly or indirectly from any connectivity or integration with any existing Customer process, product, materials, environment or system not adequately accounted for in the Contract Specifications.

16.3. Without limiting the general nature of clause 16.1 and to the extent permitted by law:

16.3.1. ManageMyNetwork will not be liable to the Customer for any claims of indirect or consequential damages or loss (including but not limited to claims for loss of profits, loss of data, goodwill, claims by any third person, negligence, use of products or interruption in the availability or use of data or products) arising directly or indirectly in respect of the supply of the Deliverable including a failure to meet any of the performance warranties in this Agreement and;

16.3.2. Liability in relation to the supply of the Deliverables under any condition or warranty, which cannot legally be excluded, is limited to the lesser of:

16.3.2.1. The cost of repair of the specific part of the Deliverable that is defective or the direct cause of the loss or damage allowed under 16.3(1);

16.3.2.2. Re-supplying that specific part of the Deliverable that is defective or the direct cause of the loss or damage allowed under 16.3(1); or

16.3.2.3. Paying the cost of re-supplying the specific part of the Deliverable that is defective or the direct cause of the loss or damage allowed under 16.3(1).

16.4. If any part of the Deliverable provided by ManageMyNetwork under this Agreement fails, during the warranty period, to conform in a material respect with the Contract Specifications, then:

16.4.1. ManageMyNetwork is not liable unless the Customer notifies ManageMyNetwork of the failure within 14 days of the date of the failure becoming apparent to the Customer; and16.4.2. The liability of ManageMyNetwork is in any case limited as set out in clause 16.3.

17. Indemnity

17.1. Subject to clause 16, the Parties agree to indemnify each other against any loss, damage or liability whatsoever arising from any breach, act, omission or default by the Party, Party’s employees, sub-contractors or agents.

18. Unforeseen Events

18.1. ManageMyNetwork is excused from performing its obligations to the extent it is prevented by circumstances beyond its reasonable control (other than lack of funds for any reason), including but not limited to acts of God, natural disasters, acts of war, riots and strikes outside that Party's organisation.

19. Waiver

19.1. No delay or omission to exercise any right, power or remedy will operate as a waiver of the rights accruing to any party under these Terms of Trade.

20. Severability

20.1. If anything in these ManageMyNetwork Terms of Trade are unenforceable, illegal or void then it is severed and the rest of these ManageMyNetwork Terms of Trade remain in force.

21. Governing Law and Jurisdiction

21.1. The law of New South Wales governs this Agreement.