This document contains and refers to the terms and conditions on which You buy Goods and/or Services from Us using Our Website. You must read the documents from start to finish. Only if You agree with all of the terms and conditions in all these documents should You continue to purchase the Goods and/or Services using Our Website.
When You click to confirm you agree to the website terms and conditions in the check-out process on Our Website, a contract is made for the supply of the Goods and/or Services that are in Your checkout basket on the terms and conditions of this Agreement (Your Order). This Agreement is made between:
Us (Digistor Pty Limited); and
the person who clicks "I Agree", or if that person is an employee acting in the course of his/her employment, the agreement is made by, and binds, the employer of that person (the employer This will be deemed to be the entity that is named as the "customer" in the Contract Details on the Website), or if that person is acting as agent for another person, the agreement binds the principal named as the "customer" in the Contract Details. The person who clicks "I Agree" and is acting in the course of his/her employment or as agent warrants to Us that he/she has authority to act on behalf of his/her employer (or the "customer", as applicable) to enter into this agreement.
If You require additional Services from Us and those Services are not available from Our Website, or You prefer to acquire those Services off line, then You and Us may agree and sign a Statement of Work (SOW) off line for those additional Services. Any SOW will describe the details of the Services and the price payable for those additional Services. Any SOW will be subject to the terms and conditions in this Agreement, unless stated otherwise on the SOW.
SUPPLY OF GOODS
We will use Our best efforts to ensure that the Goods are available for collection from Us (or Our resellers'/manufacturers'/distributors') designated warehouse or collection point by the end of the Availability to Ship period stated on Our Website.
Where You have selected the option in the checkout process for Us to arrange Delivery of the Goods to Your delivery address We shall arrange for Our courier/shipping company to collect the Goods from Our designated warehouse or collection point on or shortly after the end of the Availability to Ship period and Deliver them to Your delivery address.
All deliveries are subject to the Delivery arrangements set out in the Delivery and Freight Terms and Your Order in respect of the Goods and/or Services in Your Order. We may Deliver the Goods in Your Order in one or more deliveries and during any of the periods that the courier/shipping company is expected to make the Delivery (as set out in the Delivery and Freight Terms).
You must, or must ensure that any of Your clients who receives a drop shipment must, inspect the Goods at the time of Delivery to ensure that they conform to the requirements of Your Order. If You believe that any of the Goods do not meet the requirements of Your Order You must give Us written notice of the alleged defect within 7 days of the inspection. To the extent permitted by law, You may not reject the Delivery of the Goods if the quantity of Goods Delivered varies by +/-10%, but You may claim a pro rate adjustment to the price
Where We are acting as a reseller of a third party's Goods or Services and the third party is unable or unwilling to supply Us the Goods or Services that form part of Your Order for on-supply to You (for example, because the third party has recently declared the Goods at "end of life" or You are on a list of persons to whom it is illegal to export the Goods to) then We reserve the right to cancel Your Order for such Goods or Services and any Goods or Services whose use depends on the cancelled Goods or Services, by giving You written notice of cancellation. In this case We must promptly provide a refund of any amounts paid for such Goods or Services and any Goods or Services whose use depends on the cancelled Goods or Services. To the extent permitted by law, this refund is Our sole liability to You and Your exclusive remedy for such cancellation. We will use Our best efforts to notify You of any such cancellation within 5 business days of the date of Your Order.Risk, Title and Use.
Risk in the Goods passes to You at the time when the Goods are Delivered. Title in any hardware passes to You at the time when the hardware is Delivered.
store, assemble, use and maintain the Goods in accordance with any documentation provided with the Goods, the specifications or any instructions provided by Us;
not use, nor permit the use of, the Goods for the purpose for which they were not designed. No Goods provided under any Order are designed for, or are permitted to be used for, any purpose which has a high risk of death or personal injury or for any unlawful activity.
Where the Goods comprise a software license or subscription and the manufacturer requires that You enter into an agreement directly with the manufacturer then:
You must enter into the agreement with the manufacturer (or authorised manufacturer's distributor) directly;
You must pay the prices and GST that are due for the Goods or Services to Us (and We will make a payment for the Goods or Services to the relevant person under Our reseller agreement for these Goods or Services);
it is agreed and acknowledged that the Goods or Services are "supplied" by the manufacturer (or other distributor) directly to You, and Our role is merely to facilitate the introduction of the Goods or Services to You and to receive payment of the relevant prices and GST.
By purchasing an Auto Renew Subscription, You expressly authorise and request Digistor Pty Ltd (as Your lawful agent) to automatically renew the Goods' license or subscription for successive renewal terms each equal in length to the initial term, at the purchase price for Your initial term, using the payment information You provided for the initial purchase, until You cancel the underlying licence or subscription agreement in accordance with its terms.
We may change the renewal price as of the next renewal date if We provide You with at least 10 business days' notice of the change by email (You can elect to cancel the automatic renewal in accordance with clause 3(d) if You do not agree to the change).
This Agreement and the underlying licence or subscription agreement will apply to each renewal transaction.
You may cancel Your Agreement for an Auto-Renew Subscription at any time at least 10 business days prior to the renewal date by emailing Our subscription team at firstname.lastname@example.org, calling them on +612 9431 6000 or logging into Your account online and cancelling.
We will use Our best efforts to perform the Services as from the date stated in the Contract Details and perform them by the dates stated in the Contract Details, or if no dates are stated in the Contract Details, We will perform them within a reasonable time.
Any Services are provided:
on a time and materials basis only; and
under Your direction and control.
We will charge You for all time spent on the Services (including travelling time to and from Your premises) and You must pay for such time whether it is less than, or more than, any estimate given. We shall use Our best efforts to advise You in advance if We believe that any estimate will be exceeded. If You require fixed price services, then You and Us may agree to such arrangements using Our contract for fixed price services. You must pay all Our expenses incurred in providing the Services in accordance with Our expenses policy, a copy of which is available upon request. Any work that is performed outside of Our normal working hours, including on evenings, weekends and public holidays, will be charged at Our then current overtime rates.
If required by You, We will provide time sheets and any expense claims for Your approval. You must:
provide Us with written notice of any issues with the information on a time sheet or expense claim; or
sign the time sheets and/or expense claim signifying Your approval of them, within 7 days of receipt.
Where You purchase service credits or tokens from Our Website, You must use these service credits in accordance with their terms and by any expiry date. All service credits or tokens that are not used by their expiry date will be forfeit with no recourse to Us.
Where the Services on Your Order are training services then:
We grant You the right to use the training materials provided for training purposes of the attendee;
unless stated otherwise on Your Order, You are not permitted to:
copy, adapt or translate, sub-license or make copies of any part of the training materials, including by adding parts of the training materials into any other materials; or
disclose the training materials to any other person;
You may substitute an alternative attendee onto a training course without any additional charge;
You may terminate an attendee's attendance at a course by giving Us more than 10 business days written notice, prior to the commencement of the training, or the full training price will be payable;
You may terminate an attendee's attendance at a course by giving Us between 5 and 10 business days written notice, prior to the commencement of the training, and 20% of the full training price will be payable;
We may cancel or re-arrange any training course by g
Giving You at least 5 business days' notice. In this case the attendees will be transferred to a rescheduled course, or if that is not acceptable to You, We will promptly refund any amounts paid for the course.
You must, at Your own expense:
provide access and security clearance to Us and Our contractors to Your site at the agreed dates and times (to be no shorter than Our normal business hours on each day);
provide remote access (subject to Your reasonable security requirements) to any Goods or other technology to enable Us to remotely diagnose and effect repairs to Goods or to provide the Services;
provide reasonable assistance to assist Us to diagnose and effect any repairs to Goods, including installing any 'user installable' parts Delivered to You and packing and returning Goods to Us at Our request;
follow the Warranty, Returns and Refunds Policy procedures when dealing with any Goods where You believe there is a defect;
provide Us with the necessary facilities, equipment and resources to enable Us to provide the Goods or perform the Services;
provide Us with complete and accurate information in a timely manner as may be needed to facilitate Us to perform Our obligations under this Agreement;
promptly make any decisions needed by Us to perform Our obligations under this Agreement;
to the extent technically possible, back up all application and data on any Goods prior to giving Us (or the manufacturer) access to the Goods and prior to sending the Goods to Us or (or the manufacturer) for any reason;
backup all Your data that will be disclosed to Us prior to Us performing the Services.
You acknowledge that a failure to meet the obligations in this Agreement, including clause 5(a), may result in delays in the provision of the Goods or Services, Our inability to meet Our obligations under this Agreement and/or additional costs. We will not be responsible for any such consequences. We are entitled to charge You for any time (at Our then current rates) or expense incurred as a result of Your failure to comply with Your obligations under this Agreement.
You warrant that You have the authority to allow Us and Our contractors to use any facilities, equipment, resources and/or intellectual property rights that You provide to Us or Our contractors for use in connection with performing Our obligations under this Agreement.
You must provide a safe environment for any of Our personnel that are visiting or working at any site that You require Us to attend.
You must pay Us the price and any GST that is set out in the Contract Details for the Goods and Services in the checkout basket on Our Website by Approved Payment Mechanism at the time you place Your Order with Us. We will send You a tax invoice/receipt promptly after We have received payment from the Approved Payment Mechanism.
Offline Payment for Subsequent Services
If We agree to provide You Services after Your initial Order, then You and Us may agree a SOW for those Services and You must pay Us the prices, expenses and GST due for any Services, as set out on the SOW:
prior to the date of Delivery; unless
the SOW states that the Services are to be paid on a periodic basis in arrears, when You must pay the amounts due at the end of each period as stated on the SOW; or
the SOW states that the Services must be paid for in a different way; when You must pay the amounts due at the times and in the manner stated on the SOW.
Where an SOW is for Services to be performed over a period of more than 6 months, We may increase Our time and materials rates every 6 months by giving You 14 days' notice of such increased rates.
We may charge You a late charge for any failure to make any payment by the date required under this Agreement calculated daily using a rate that is 4% over the Reserve Bank of Australia's Cash Rate, from the date that the payment first becomes overdue, to the date that the payment is received by Us, both dates inclusive.
Terms Applicable to All Payments
Where the price, expenses and GST are denominated in a currency other than the currency that is used as the default currency of Your Approved Payment Mechanism (i.e. Your Approved Payment Mechanism is not issued in the country which uses the currency of payment), You agree:
to pay any charge from the provider of the Approved Payment Mechanism for an international transaction;
to use the exchange rate used by the provider of the Approved Payment Mechanism for the conversion of the price, GST or other amounts payable under this Agreement into the currency We use;
that the net amount that is to be received by Us must always be the price, GST and other amounts that are dominated in the local currency specified in this Agreement or on Our Website (as applicable).
You irrevocably authorise Us to deduct from any Approved Payment Mechanism that You have used to pay any amount under this Agreement or for which You have provided the details to Us, any:
price and GST that are due under this Agreement;
charge backs or fees, including any related GST, incurred by Us for any failed transaction from the Approved Payment Mechanism, as well as Our then current administration fee for dealing with any failure to receive payment; and
amount payable as damages, losses or expenses, or any amount payable under an indemnity, arising out of or in connection with this Agreement.
If there is any failure to make payment by the Approved Payment Mechanism by the due date for any reason, including that the Approved Payment Mechanism ceases to be valid, ceases to be authorised for debiting any amount stated in this Agreement or there is insufficient funds in the relevant account, then You must within 7 days:
provide an alternative Approved Payment Mechanism and authorise all amounts due to be deducted immediately from that Approved Payment Mechanism; and/or
make payment of all amounts due by another payment method agreed with Us.
Money amounts in this Agreement are stated in Australian currency unless stated otherwise on Your Order. All amounts must be paid in Australian currency unless stated otherwise on Your Order.
You must provide Us upon request any information required by Us to assess the creditworthiness of You. You consent to Us obtaining from, or providing to any credit provider named in a credit report, credit reporting agency, or any person You authorise Us to contact, any of Your personal or corporate information, including information relating to creditworthiness, credit standing, credit history or credit capacity, for the purposes of assessing, or providing information in relation to, Your creditworthiness and/or deciding whether to grant or continue to provide credit approval to You.
WARRANTIES AND STATUTORY GUARANTEES
All Customers and Orders
Clauses 7(a) to 7(h) apply to all customers, including consumers who are not re-selling the Goods and have the benefit of statutory guarantees, resellers of Goods and other customers.
We warrant to You that the Goods that are used and maintained in accordance with Our (or the manufacturer's) documentation and instructions, will meet their specifications in all material respects for a period of 90 days from the date of Delivery (Warranty Period), provided that the defect is not caused by:
fair wear and tear;
misuse, incorrect use of, or damage to, the Good from whatever cause (other than any act or omission by Us);
failure to maintain the necessary environmental conditions for use of the Good;
any failure of any technology that is connected to any of the technology that is the subject of Your Order;
data that is entered into the technology that is the subject of Your Order;
any breach of Your obligations under Your Order;
having the Good maintained by You or a third party; or
any use that is contrary to the instructions provided by the manufacturer or Us.
If You believe that there is a defect in the Goods during the Warranty Period You must promptly notify Us in writing at the address set out in Your Order setting out the details of the defect during the Warranty Period and in this case We may at Our option and cost, either replace or repair the Goods or provide a refund, within a reasonable period. Any replaced Goods or parts become Our property.
When making any claim under this warranty You must comply with any requirements set out in the Warranty, Returns and Refunds Policy relating to the return of the Goods.
We will provide You with the benefit of any manufacturer's warranty that accompanies the Goods.
We will take reasonable action to ensure that there are facilities available for the repair of Goods and that spares are reasonably available for the Goods for a minimum period of 12 months from date of Delivery. You must order and pay separately for all repairs and spares ordered from Us (other than where the repair is covered by a manufacturer's warranty or a statutory guarantee under the Australian Consumer Law).
To the extent permitted by law, We expressly exclude any warranty that:
the Goods can be used, or have particular characteristics when combined with, or attached to, other products, in a particular way, unless it is stated on Your Order;
the Goods comply with any particular law or standard, or have any particular certification, permit or approval, unless it is stated on Your Order.
You acknowledge and agree that:
You have not relied on any oral representation that is not reduced to writing and included on Your Order, or any written representation (including any representation on Our Website or in a brochure) that is not stated on Your Order;
it is not reasonable for You to rely on Our skill and judgment to guarantee that any Goods or Services are fit for a particular purpose or that any particular outcome will be achieved as a result of any Services, or any product that results from any Services, unless that particular purpose or outcome has been stated on the Order;
to the extent permitted by law, all illustrations, drawings, advertisements, catalogues that provide colours, measurements, weights, operational characteristics, tolerances or capabilities are approximations only, and if You need a particular colour, measurement, weight, operational characteristics, tolerance or capability this must be set out on Your Order;
You have used Your own skill and judgment and relied on Your own expertise in making the final selection and purchase of the Goods and Services, and have not made any particular use, requirement or outcome known to Us other than that stated on Your Order;
You will comply with all applicable Federal, State and local laws, ordinances, regulations, rules and orders in performing Your obligations under this Agreement.
Orders from consumers who are not re-selling Goods that are subject to the statutory guarantees under the Australian Consumer Law
Clauses 7(i) to (l) apply to any Order where You are a consumer in respect of that Order and You are not re-selling the Goods and have the benefit of statutory guarantees, as defined by the Australian Consumer Law.
Our Warranty Against Defects Service is set out in the Warranty, Returns and Refunds Policy. The benefits of that service are in addition to any other rights or remedies the consumer may have in respect of these goods or services under the Australian Consumer Law.
If You are entitled to a statutory guarantee under sections 54 to 59 of the Australian Consumer Law then to the extent that We fail to comply with the statutory guarantee, Our liability is limited to one or more of the following, at Our option:
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;
the payment of the cost of having the goods repaired,
unless it is not fair or reasonable for Us to rely on this term of the agreement.
Where You are entitled to a statutory guarantee under sections 60 to 62 of the Australian Consumer Law then to the extent that We fail to comply with such statutory guarantee, Our liability is limited to, at Our option:
supplying the services again; or
payment of the cost of having the services supplied again,
unless it is not fair or reasonable for Us to rely on this term of the agreement.
Clause 7(m) applies to any Order where You are re-selling the Goods to Your clients.
You must not make any representation or provide any warranty that is greater than, or different to, the representations or warranties provided in Our documentation for the Goods;
You must limit Your liability for any defective Goods (and any loss, damage or expense that arise out of, or in connection with, the Goods) in Your contracts with Your clients to:
where the client is a "consumer" under the Australian Consumer Law, to the maximum extent permitted by s64A of the Australian Consumer Law;
any other buyer of the Goods, to an amount that is no greater than the price paid to You by the buyer, or $500, whichever is the lower;
Our liability to You under s274 Australian Consumer Law is limited to a liability to pay You an amount equal to:
the cost of replacing the goods;
the cost of obtaining equivalent goods; or
the cost of having the goods repaired,
whichever is the lowest amount;
Where a consumer makes any claim against You under a statutory guarantee under the Australian Consumer Law in respect of any Goods provided under this Agreement You must promptly provide Us with written notice of such claim, and if requested by Us, must allow Us, at Our cost, sole right to manage, settle or litigate, such claim.
LIMITATION OF LIABILITY AND INDEMNITY
Where clauses 7(a) and 7(b) do not apply:
subject to clause 8(a)(ii), Our liability to You in contract, tort (including negligence), breach of statutory duty or otherwise, under this Agreement for Your Order is limited to direct losses that do not exceed the amount paid for Your Order.
We are not liable for:
any indirect or consequential loss;
loss of profits or revenue, pure economic loss, failure to realise savings, loss of, or corruption to, data;
loss of business opportunity or goodwill; or
any loss, damage or expense that would not be suffered by any other person acquiring the Goods or Services.
You must at all times indemnify and hold harmless Us, Our directors, officers, employees and agents (those indemnified) from and against any loss, damage, expense (including legal expenses on a full indemnity basis expenses) or liability incurred or suffered by any of those indemnified and all actions, proceedings, claims or demands made against those indemnified to the extent that they were caused directly or indirectly by:
a breach by You, Your agents or contractors of Your obligations under this Agreement;
any third party claim arising out of, or in connection with, the Goods or Services, except for a claim under the Australian Consumer Law that cannot be excluded by contract;
any willful, unlawful or negligent act or omission of You, Your agents or contractors
except to the extent that the loss, damage or expenses was caused by Our negligent act or omission, or Our breach of this Agreement.
INTELLECTUAL PROPERTY RIGHTS
You acknowledge and agree that nothing contained or implied in this Agreement gives You ownership of, or gives rise to, any proprietary interest of You in Our name, domain name, trade marks, trade names or any other intellectual property rights of Us and Our related bodies corporate (or the manufacturer or any Goods), including any intellectual property rights in any Goods or item delivered through any Services. You must not seek, or claim, any intellectual property rights, in any Goods or item delivered through any Services. You must not use, copy, adapt, translate, manufacture or otherwise exercise any intellectual property right in any of Our (or the manufacturer's) patents, trade marks, service marks, logos, industrial designs, illustrations, drawings, proposals or copyright materials, without Our express written consent.
You must not deface, remove or cover any:
trade mark, service mark, logo or indicia of branding, or
safety related notice, warning, disclaimer or restricted use notice, on any Goods.
Upon receipt of full and final payment for the Services, We grant You a perpetual, non-transferable, worldwide, royalty free, license to use any materials that were newly created during the performance of the Services and delivered to You as part of the deliverables, for the internal use of You, subject to any terms agreed at the time of the supply of the Services.
PRIVACY - BUSINESS CUSTOMERS ONLY
Where You are a business, clause 10 applies to and is included in this Agreement for Your Order. Where You are not a business, this clause 10 does not apply and is not included in this Agreement for your Order.
Australian Privacy Law
Each party must, when it collects, receives, uses, discloses, transfers or otherwise handles Personal Information in the course of performing its obligations under this Agreement:
comply with the Privacy Act as though it were a bound by the Privacy Act and any subordinate legislative instruments or regulations;
comply with any the other party's policies in relation to any Personal Information or any reasonable directions of the other party of which it has been given written notice.
Each party must:
collect, use and disclose the Personal Information only as authorised or for the purposes of:
the performance of the rights and obligations under this Agreement and any activities that are reasonably necessary or incidental thereto;
the administrative tasks associated with the performance of the Agreement, including invoicing, payment, contract management, risk management, insurance, renewals, delivery, maintenance and support;
where We are the recipient of the Personal Information, marketing and promoting Our other goods and services to You;
not disclose the Personal Information except:
to its personnel to the minimum extent necessary for the purposes of performing its obligations under this Agreement;
subject to clause 10(g)(iii) as required by law; or
with the prior written consent of the other party; and
ensure that any person to whom Personal Information is disclosed under paragraph (ii), uses, discloses, transfers, retains and otherwise manages such Personal Information consistently with that party's obligations under this Agreement.
Neither party may transfer or disclose any Personal Information to any recipient located outside of Australia, or any other country in which the Personal Information was first collected (the Relevant Countries), or allow or permit any person located outside the Relevant Countries to access or receive any Personal Information, without the prior written consent of the other party.
Except as otherwise required by law or as otherwise agreed between the parties, each party must return to the other party all materials in the first party's possession, custody or control containing Personal Information handled in connection with this Agreement in the following circumstances:
when the Personal Information is no longer required by the other party for the purposes of this Agreement;
upon termination or expiry of this Agreement;
upon demand by the first party; or
if required by law.
Where there as an eligible data breach (as defined in the Privacy Act 1988 (Cth) involving the Personal Information (as defined in the Privacy Act 1988 (Cth)) that has been provided by the other party, then the party that has suffered the eligible data breach must:
immediately, and in any event within 24 hours of the discovery of the eligible data breach, notify the other party of the eligible data breach, to the other party with all information that is required to be provided to the Office of the Australian Information Commission and/or the affected individual, as required under the Privacy Act 1988 (Cth);
co-operate with the other party in any investigation or audit (including by providing access to the breaching party's premises, personnel, processes and systems) in respect of the eligible data breach;
not disclose to any third party (including the Information Commissioner as defined in the Australian Information Commissioner Act 2010 (Cth)) the existence or circumstances surrounding any eligible data breach, without the non-breaching party's prior written approval, unless the non-breaching party does not make any notification that it is lawfully required to do and the breaching party is required by law to make the notification.
Obligations Under EU Privacy Law
Where a party is subject to GDPR, that party warrants to the other party that it will comply with GDPR.
GDPR means the General Data Protection Regulation 2016/679. In clauses 10(h) to (x) word or phrases that are defined in GDPR shall be interpreted using the meaning given to them in GDPR.
Where a party is subject to GDPR and is a data controller under GDPR in respect of the personal data that is being transferred to the other party for processing in connection with this Agreement then the parties must comply with clauses 10(h) to (x).
Where the Data Processor processes personal data on behalf of the Data Controller then:
the Data Controller must solely determine the nature, purpose and the manner in which the personal data shall be processed, and the nature and purposes are limited to:
the performance of the rights and obligations under this Agreement and any activities that are reasonably necessary or incidental thereto;
the administrative tasks associated with the performance of the Agreement, including invoicing, payment, contract management, risk management, insurance, renewals, delivery, maintenance and support;
where We are the Data Controller, marketing and promoting Our other goods and services (and the goods and services of those entities that We represent) to the Data Processor;
any other purpose that the Data Controller provides a documented instruction regarding; or
processing that is required by the laws of the European Union or any EU member state to which the Data Controller is subject, in which case the Data Processor shall, to the extent permitted by such law, inform the Data Controller of that legal requirement before the relevant processing of that personal data;
the Data Controller shall ensure that it has all necessary or appropriate consents and notices in place to enable lawful transfer of personal data to the Data Processor for the duration and purposes of the Agreement;
the Data Controller instructs the Data Processor (and authorises its subprocessors, if any) to process personal data and transfer personal data to any country or territory (or international organisation) as reasonably necessary for the performance of its obligations and rights under this Agreement, provided always that any transfer of personal data to which the GDPR applies outside of the EU is:
to country or territory which the European Commission has determined there exists an adequate level of protection in accordance with Article 45 of GDPR; or
subject to appropriate safeguards and on condition that enforceable data subject rights and effective legal remedies for data subjects are available in accordance with Articles 46 or 49 of GDPR; and
is notified to the Data Controller in advance;
the Data Processor must assist the Data Controller by adopting and maintaining appropriate technical and organisational measures, insofar as this is possible, specifically for the fulfilment of the Data Controller's obligation to respond to requests for exercising the data subject's rights laid down in Chapter III of GDPR;
the type of personal data to be processed under this Agreement is:
an individual's contact or personal details, including name, honorific or title, email, Skype, social media identifiers, address of work place, date of birth, gender, place of domestic residence, and other personal identifiers;
individual's business or vocation status, including job role, job description, job title, employment status, and for students, status as a student, student identification, course, educational institute, enrolment status
personal data that is provided by an individual in connection with permitted purposes of processing;
the categories of data subjects to whom the personal data relates are:
agents, contractors and suppliers;
customers and prospects, including students;
personal data may only be processed by the Data Processor and its subprocessors for the period of this Agreement;
The Data Controller must take reasonable steps to ensure the reliability of any employee, agent or contractor who may have access to the personal data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant personal data, as strictly necessary for the permitted purpose of the processing under this Agreement, and to comply with laws in the context of that individual's duties to the Data Controller, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
The Data Controller must, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, in relation to the personal data implement appropriate technical and organisational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32 of the GDPR. In assessing the appropriate level of security, the Data Controller must take account in particular of the risks that are presented by processing, in particular from a personal data breach.
The Data Processor must keep all written records as are required by GDPR, including those set out in Article 30(2), and must make those records available to the Data Controller and any supervisory authority upon request.
The Data Controller permits the Data Processor to use the following subprocessor for the processing personal data to the extent set out in the Table of Sub-processor on Our Website.
If a Data Processor appoints any other subprocessors, wishes to add or delete Subprocessors or to change the use of any Subprocessor, the Data Processor must comply with Article 28(3)(d) of the GDPR and must first:
inform the Data Controller of any intended addition, deletion or change concerning to subprocessors;
make any changes (including refusing to permit the addition, deletion or change) that the Data Controller requests in writing within 14 days of receipt of written notice, but if no changes are requested by the Data Controller, the Data Processor may make the addition, deletion or change notified to the Data Controller;
enter into a written contract incorporating terms which are substantially similar to those set out in clauses 10(h) to (v) and any other terms required by the Data Controller;
provide name and contact details of the subprocessor's data protection officer, representative or other authorised contact.
The Data Processor must ensure that any subprocessor complies with all relevant laws, including the GDPR.
The Data Processor must assist the Data Controller in ensuring compliance with the obligations pursuant to Articles 32 to 36 of GDPR taking into account the nature of processing and the information available to the Data Processor.
At the election of the Data Controller, the Data Processor must delete or return to the Data Controller all the personal data relating to processing, and delete existing copies unless an applicable Union or member state law requires storage of the personal data, on demand and no later than the last day of the period of this Agreement.
The Data Processor must make available to the Data Controller all information necessary to demonstrate compliance with the obligations set out in clauses 10(h) to (x) and allow for and contribute to reasonable audits upon reasonable notice during working hours on normal business days, including inspections, conducted by the Data Controller or another auditor mandated by the Data Controller.
The Data Processor must immediately inform the Data Controller if, in its opinion, any instruction for the Data Controller infringes GDPR or other privacy legislation.
Where the Data Processor or its subprocessors suffer a data breach involving the personal data that has been provided by Data Controller, then the Data Processor must immediately, and in any event within 24 hours of the discovery of the data breach, notify the Data Controller of the data breach, together with all information that is required to be provided to the Supervisory Authority and/or data subjects, as required under GDPR.
Where the Data Controller is liable for any loss, damage, expense or costs or any administrative fine as a result of the processing by the Data Processor or its subprocessors in breach of GDPR then the Data Processor must indemnify and hold harmless the Data Controller for any loss, damage, expense or cost that the Data Controller is liable as a result, except to the extent that the Data Processor proves that the loss, damage, expense or cost was caused by an event for which the Data Processor was not in any way responsible.
Notwithstanding clause 13(m):
the provisions of clauses 10(h) to (x) and any clause in this Agreement that is required for the proper interpretation of those clauses, is subject to the laws of England and Wales and the parties agree to submit to the exclusive jurisdiction of the courts in London, England in respect of any matter that arises out of clauses 10(h) to (x) and any clause in this Agreement that is required for the proper interpretation of those clauses; or
if England and Wales ceases to be an EU Member State, the provisions of clauses 10(h) to (x) and any clause in this Agreement that is required for the proper interpretation of those clauses, is subject to the laws of Ireland, and the parties agree to submit to the exclusive jurisdiction of the courts in Dublin, Ireland in respect of any matter that arises out of clauses 10(h) to (x) and any clause in this Agreement that is required for the proper interpretation of those clauses.
The Recipient must not use any of the Discloser's Confidential Information except in connection with the performance of its obligations specified in this Agreement.
The Recipient must not disclose the Discloser's Confidential Information to any third party without obtaining the Discloser's prior written consent, provided that the Recipient may disclose the Discloser's Confidential Information to:
its employees, agents and contractors, and those of any of its related bodies corporate, who have entered into a written agreement with the Recipient that is no less protective of the Discloser's Confidential Information than this Agreement, provided those persons have a need to know such information for the purposes of this Agreement;
its lawyers, bankers, auditors, accountants and insurers, who have a need to know the information in order to provide professional advice to the Discloser relating to this Agreement.
The Recipient must use, and must ensure that any person to whom it is permitted by this Agreement to disclose the Discloser's Confidential Information to uses, the same measures to protect the Discloser's Confidential Information as it uses to protect its own confidential information, but in no event less than reasonable measures.
The restrictions of this clause 11 shall not apply to information that:
is independently developed by the Recipient without any access to the Confidential Information of the Discloser;
becomes known to the Recipient without restriction, from a third party who, to the Recipient's knowledge, was not bound by a confidentiality agreement with the Discloser, or otherwise prohibited from disclosing the information to the Recipient, or had the right to disclose it;
was available to the Recipient on a non-confidential basis prior to disclosure by the Discloser;
was lawfully in the possession of the Recipient before the information was disclosed to it by the Discloser;
is or becomes in the public domain through no act or omission of the Recipient;
the parties agree in writing is not confidential or may be disclosed; or
is required to be disclosed under an order or requirement of a court, administrative agency, or other governmental body (but only to the minimum extent required to comply), provided however, that Recipient shall provide prompt notice to Discloser of any potential disclosure and shall use its reasonable efforts to prevent disclosure of such information.
We may, by written notice, immediately terminate or suspend performing Our obligations under this Agreement for Your Order if:
You have not paid any amount due by the due date;
You commit any breach of any provision of this Agreement for Your Order and have failed to remedy such breach within 7 days of receipt of written notice requiring it to do so.
You may, by written notice, immediately terminate this Agreement for Your Order if We commit any material breach of any provision of this Agreement for Your Order and have failed to remedy such breach within 30 days of receipt of written notice requiring it to do so.
You may not assign, transfer or novate this Agreement in whole or in part without first obtaining Our written consent.
To the extent permitted by law:
this Agreement records the entire agreement between the parties in relation to its subject matter. This Agreement supersedes all previous negotiations, understandings or agreements in relation to the subject matter and expressly excludes the pre-printed terms and conditions on Your purchase order (if any);
all conditions, warranties, guarantees or rights, including any implied by custom or other circumstance, that are not expressly specified in this Agreement, are excluded.
This Agreement may only be varied by written agreement, which must be signed by one of Our directors.
To the extent of any inconsistency between:
the details on Your Order;
he Terms and Conditions;
the Delivery and Freight Terms; and
the Warranty, Returns and Refunds Policy, then the first mentioned shall prevail.
No waiver by either party of any breach of any of the terms and conditions shall be construed as a waiver of any succeeding breach of the same or any other term or condition. Any waiver must be in writing and signed by the party exercising the waiver.
If any provision of the Agreement offends any law applicable to it and as a consequence is illegal, invalid or unenforceable then:
where the offending provision can be read down so as to give it a valid and enforceable operation of a partial nature it must be read down to the extent necessary to achieve that result;
in any other case, the offending provision must be severed from the Agreement in which event the remaining provisions of the Agreement operate as if the severed provision had not been included.
Nothing in this Agreement may be construed as creating a relationship of partnership, of trustee and beneficiary or employer and employee. Except as expressly stated in this Agreement neither party is authorised to act as lawful agent of the other party.
An SOW may be signed in any number of counterparts, each of which shall be an original, and any one of which shall be deemed to be validly executed if evidenced by a facsimile copy of the executing party's signature with the same effect as if the signatures were on the same document. The parties consent to the use of electronic means to communicate and otherwise deal under this Agreement.
The parties' rights and remedies under this Agreement are cumulative and there is no obligation to exercise a particular remedy. If a party is in breach of this Agreement, the non-breaching party may avail itself of all other rights, remedies and causes of action available at law, in equity or otherwise.
ny notice that is to be given under this Agreement must be dated, in writing and signed by the person giving the notice. Any notice must be hand delivered to the address, sent by prepaid post to the address or sent to the facsimile number of the recipient as set out in the Contract Details or Our Website, as applicable. Each party must promptly notify the other of any change of address or contact details, and such details shall be incorporated into the Agreement from the date following the date of receipt.
Any notice sent in accordance with this Agreement is deemed to have been received:
if hand delivered; on the date of delivery;
if posted within Australia; 3 business days after the date of posting;
if sent by facsimile; at the time set out on a transmission report from the machine from which the facsimile was sent which states that the facsimile was sent in its entirety to the facsimile number of the recipient, provided that that time is before 4.00 pm on a business day in the place of receipt, if the time is later than that the facsimile will be deemed received on the next business day in the place of receipt.
If any dispute arises under this Agreement (other than where You are making a claim under a statutory guarantee under the Australian Consumer Law):
the party raising the dispute must provide the other written notice of the nature of the dispute (Dispute Notice), the issues involved and the remedy sought. The other party must provide a written response to the notice addressing the issues in the Dispute Notice
persons with authority to resolve the dispute from each party must meet and attempt to resolve the dispute through good faith negotiations within 25 days of the issue of the Dispute Notice;
if, for any reason, the parties have not resolved the dispute within 40 days of the issue of the Dispute Notice (or such longer period as is agreed by the parties) then unless the parties agree otherwise in writing, the dispute must be referred to The Resolution Institute (ACN 008 651 232, Level 1, 13-15 Bridge Street Sydney NSW 2000) for mediation by a person who is independent of the parties and who is appointed by agreement by the parties, or in absence of agreement within 7 days of the referral to The Resolution Institute, a person who is appointed by the Chair of The Resolution Institute or his/her representative. Any mediation will be conducted in accordance with The Resolution Institute Mediation Rules;
if, for any reason, the parties have not resolved the dispute within 60 days of the issue of the Dispute Notice (or such longer period as is agreed by the parties) then, either party may commence legal proceedings;
neither party is required to follow the process under sub-clauses (i) to (ii) if it is seeking urgent equitable relief.
This Agreement is governed by the laws of New South Wales, Australia. The parties submit to the exclusive jurisdiction of the courts of New South Wales, Australia and any courts competent to hear appeals from those courts.
Agreement means these Terms and Conditions, the Delivery and Freight Terms, the Warranty, Returns and Refunds Policy, and, in relation to Your Order, the Goods and/or Services on Your Order and the other details of the transaction that are set out in the Contract Details and any document referred to in the Contract Details.
Approved Payment Mechanism means any Visa, MasterCard, debit card, charge card, BPAY or other payment mechanism that We support from time to time as an acceptable payment method.
Australian Consumer Law means The Australian Consumer Law Schedule to the Competition and Consumer Act 2010 (Cth).
Auto Renew Subscription means any item that is subject to a licence or subscription agreement that provides for the automatic renewal of licence or subscription agreement.
Available to Ship means the date when the Goods should be ready for collection at Our (or Our resellers'/manufacturers'/distributors') warehouse or collection point:
by You, or Your courier service; or
if You have selected on Our Website the option that states that We are to arrange Delivery of the Goods to Your delivery address and the checkout price includes a delivery charge, by a courier/shipping company who is contracted by Us to Deliver the Goods to Your delivery address.
Confidential Information means any non-trivial information however recorded, preserved, disclosed or communicated (whether directly, indirectly, orally or by writing), disclosed by either party to the other party in connection with this Agreement that, if disclosed in writing is marked as "Confidential" or "Proprietary," or, if disclosed orally is identified as "Confidential" or "Proprietary" at the time of disclosure and is specifically identified as confidential in a written document provided by Discloser to Recipient within thirty (30) days after the oral disclosure, or which is, or ought to have been, understood by the parties, using reasonable business judgment, to be confidential. For clarity, Our Confidential Information includes any technical drawing and project plan, financial data, sales information, software, price and charges and this Agreement (other than to the extent that We have made it publically available).
Contract Details means the details relating to Your Order that are displayed on Our Website, or are entered into Our Website by You as part of the checkout process, when You enter into this Agreement for your Order, including any description of the Goods or Services, the quantity, specifications (which may be described in an attachment, e.g. manufacturer's brochure), any manufacturer's warranty, the Available to Ship period,, Delivery address, the price of the Goods or Services, the start date or any Services to be provided, any applicable delivery, shipping, insurance or other fees, GST, and any special terms that apply to Your Order.
Deliver (Delivered and Delivery shall be interpreted accordingly) means either:
where You are collecting the Goods from Us (or Our resellers'/manufacturers'/distributors') designated warehouse or collection point, to have the Goods available for collection by You (or Your courier/handling agent) at Our designated warehouse or collection point at a time after the time that We have notified You that the Goods are ready for collection; or
where Goods are to be shipped to You (or Your client, a "drop shipment"), the first occasion when We (or Our courier/shipping provider) attempts to Deliver the Goods to Your suitable (e.g. not a PO Box) delivery address (which may be Your client's address) during the hours of 9 am to 5.30 pm Monday to Friday on any day that is not a public holiday
Discloser means the party that makes a disclosure of Confidential Information.
Good means the product that is provided by Us as described in Your Order.
GST means the Goods and Services Tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
"including" and "includes" are not words of limitation.
Order means the agreement to buy the Goods and/or Services that are included in Your checkout basket on Our Website at the time You enter into this Agreement for those Goods and/or Services, or the agreement to buy additional Services using an SOW that is agreed to by You and Us.
Personal Information has the same meaning given to it in the Privacy Act 1988 (Cth).
Recipient means the party that receives a disclosure of Confidential Information.
Service means any design, consulting, training or maintenance services that are provided by Us as described in Your Order.