IT WIFI Trading Terms and Conditions

IT WIFI PTY LTD Trading Terms and Conditions.

1.  Definitions

• In these Trading Terms and Conditions: (“Trading Terms”)

“Agreement” means the contract made between the Company and the Customer in relation to the purchase by the Customer of Goods, and services from the Company  and includes:

1. Any credit application form signed by a representative of the Customer;
2. These Trading Terms;
3. Any quotation provided to the Customer by the Company (if any) and
4. Any other agreement or arrangement provided to or made with the Customer by the Company, whether signed or

‘Australian Consumer Law’ means Schedule 2 of the Competition and Consumer Act 2010 (Cth);

“CCA” means the Competition and Consumer Act 2010 (Cth);

   “Company”, “We” and “Us” means IT WIFI PTY LTD (ACN 605 167 280)

“Consumer” means a person, company, firm, or other entity acquiring Goods:

1. of a kind ordinarily acquired for personal, domestic or household use or consumption; or
2. at a price not exceeding $40,000; or
3. of a kind ordinarily acquired for personal, domestic or household use or consumption; or
4. that consist of a vehicle or trailer acquired for use principally in the transport of goods on public roads, but excludes a person acquiring the Goods, or holding himself or herself out as acquiring the Goods for the purpose of:
5. re-supply; or
6. using them up or transforming them, in trade or commerce, in the course of a process of production or manufacture or in the course of repairing or treating other goods or fixtures on

“Consumer Goods” means ‘goods of a kind ordinarily acquired for personal, household or domestic use or consumption’, as that expression is used in section 3 of the Australian Consumer Law.

“Consumer Guarantee” means a consumer guarantee applicable to this contract under the Australian Consumer Law, including any Express Warranty.

“Consumer Services” means ‘services of a kind ordinarily acquired for personal, household or domestic use or consumption’, as that expression is used in section 3 of the Australian Consumer Law.

“Customer”, “You” and “Your” means:

1. the person/entity described in an application for a 30 day account as the person in whose name an account is maintained by the Company and/or
2. the person/entity that agrees to purchase Goods and /or services from the Company and/or
3. the person or entity that is identified as “the Customer” in a IT WIFI Managed IT Services Proposal document provided to the Customer and/or
4. the person/entity identified as the “Customer” in the Schedule to these Trading Terms (if any).

“Engagement Letter” shall mean the letter/document that is signed by the Customer referred to in paragraphs 3 & 4 below

Express Warranty’ has the same meaning as in section 2(1) of the Australian Consumer Law.

“Fair or Reasonable” means ‘fair or reasonable’ for the purposes of section 64A of the Australian Consumer Law.

“Force Majeure Event” is defined in paragraph 18.

“Goods” means any goods, products, hardware, software and equipment whatsoever supplied by the Company to the Customer under these Trading Terms including, without limitation, all computer equipment,  screens  and accessories that it supplies to the Customer from time to time.

“GST” means “GST” within the meaning of the GST Act.

“GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (as amended) (Cth) (in Australia) and the following expressions bear the same meaning as in the GST Act: “tax invoice”, “taxable supply” and “value”.

“Insolvency Event” means, in relation to a party, that one of the events specified in paragraph 17 has occurred in relation to that party.

“Intellectual Property” means any intellectual property including without limitation patents, trademarks, copyright, designs, layouts, circuit boards, knowhow, software, object codes, source codes, and confidential information.

“IT WIFI Managed IT Services Proposal document” is the proposal document that the Company provides to its’ Customers before entering into an Agreement with the Customer and before commencing work for them, which document contains (inter alia) details of the Goods and services, quantities and pricing that the Company proposes to provide to the Customer.

“Terms and expression defined in or for the purposes of the CCA or the PPSA have the same meaning when used in these Trading Terms.

2.      General

     (a) These Trading Terms apply to:

1. the establishment, operation and use of an account of the Customer with the Company;
2. all transactions and arrangements effected by the Customer with the Company for the supply of Goods and/ or services on its account or on a cash basis unless otherwise expressly agreed in relation to any particular supply of Goods and services; and
3. the exclusion of all others including any terms and conditions of the Customer.

    (b) These Trading Terms shall apply as if incorporated into each order placed by the Customer with the

    (c) These Trading Terms may be varied only with the written agreement of the Company.

3.      Acceptance and Commencement of the Agreement

(a) The Customer may place and the Company may accept orders for the supply of Goods and services, details of which shall be specified in a IT WIFI Managed IT Services Proposal document (or in such other document as the Company may nominate from time to time) and

(b) Any Goods and services, ordered by the Customer and supplied to it by the Company shall be provided to it on the basis that the Customer accepts and agrees to be bound by:

1. the arrangements specified in the Engagement Letter being the IT WIFI Managed IT Services Proposal document (or in such other document as the parties may agree upon from time to time) and
2. these Trading Terms

-such agreement may communicated in writing (including by e-mail); or by any other means that the parties agree including by telephone

4. Commencement of work

We will only commence work for You after:

(a) You have signed an Engagement Letter or other document indicating Your acceptance of the of the terms set out in paragraphs 3 (b) (i) and (ii) above and

(b) Where requested by US, an initial deposit has been paid by You.

5. Responsibilities

(a) We will ensure that all Goods and services provided by us are provided in accordance with agreed timeframe and to a professional standard and as efficiently as possible.

(b) You as our Customer are required to arrange for reasonable access by us to all reasonably necessary individuals and documents and shall be responsible for both the completeness and accuracy of the information supplied to us.

(c) You are required to provide accurate access to the relevant Company assets for our team to complete the work.

(d) Due to the complexity of our services, there are times when services may not be carried out and completed in the allotted time due to external, uncontrollable influences. This can happen whenever more than one software is involved. Where possible this circumstance will be communicated prior to You engaging our Company for any services or before we commence work on Your behalf.

6. Period of Agreement

Our engagement will commence on the date of the execution of an Engagement Letter by You and shall continue until terminated in accordance with the provisions contained in these Trading Terms.

7.Termination

(a)  Either party may terminate the Agreement in accordance with the termination arrangements set out in the IT WIFI Managed IT Services Proposal document or in such other document as the Company may reasonably specify from time to time or immediately by notice to the other party if the other party is subject to an Insolvency Event.

(b) Upon termination all amounts actually or contingently owing by the Customer to the Company are immediately due and payable and the Customer shall immediately on demand deliver up to the Company all Goods purchased from the Company for which it has not paid.

(c) Notwithstanding the above provisions, as software subscriptions have a minimum term of 12 months, even if the billing cycle is monthly, any termination will require payment of the full 12 month period balance that remain owing in respect to any software subscription made by the Company on Your behalf. (Also see paragraph 20 below).

8. Payment

(a) The Customer must pay the Company for the Goods or services supplied to it by the Company in accordance with the payment arrangements specified in the IT WIFI Managed IT Services Proposal document provided to the Customer prior to the commencement of the Agreement or in such other document as the Company may reasonably specify from time to time.

(b) If the Customer does not make payment as required by paragraph 8 (a), the Customer must pay by way of liquidated damages for breach of contract, a default charge in relation to the unpaid amount calculated by applying an interest rate of 5% per month until all sums owed to the Company under these Trading Terms have been paid in full. If the Customer fails to pay for any Goods or services supplied by the Company when due, then by notice to the Customer the Company may declare any amounts actually or contingently owing by the Customer to the Company to be immediately due and payable.

(c) Where payment is to be made by cash the amount owing is due and payable immediately.

9. Credit Card Payments

(a) If a Customer pays its outstanding account by a credit card, at the time the transaction is processed the Customer must pay to the Company an amount that the Company determines (acting reasonably) to be equal to the merchant service fee or any similar fee equivalent to the current banking fees payable by the Company to its transaction acquirer in connection with the transaction.

(b) The Company may add any amount payable by the Customer under paragraph 9 (a) to the sale price of the relevant Goods or services supplied or to be supplied by the Company to the Customer.

10. GST

(a) To the extent that a party makes a taxable supply in connection with these Trading Terms, the consideration payable by a party under these Trading Terms represents the value of the taxable supply for which payment is to be made, unless otherwise expressly agreed.

(b) Subject to clause 10(c), if a party makes a taxable supply pursuant to these Trading Terms for a consideration which, under clause 10(a), represents its value, then the party liable to pay for the taxable supply must also pay, at the same time and in the same manner as the value is otherwise payable, the amount of any GST payable in respect of the taxable

(c)A party’s obligation to make payment under clause 10(b) is subject to a valid tax invoice being delivered to the party liable to pay for the taxable supply.

11.   Enforcement Expenses

If the Customer fails to pay any amounts when due, then in addition to any other amount payable under these Trading Terms, the Customer must pay to

the Company upon demand any costs incurred in connection with enforcement of any of the Company’s rights in connection with the supply of Goods and services on these Trading Terms including without limitation:

(a) any legal costs (on a solicitor and own client basis) incurred by the Company;

(b) any authorised agent’s fees incurred by the Company in recovering or attempting to recover any amount payable by the Customer under these Trading Terms; and

(c) any dishonour or bank fees incurred by the Company in connection with payments or remittances that are made or which should have been made by the

12.  Exclusions of Warranties and Limitations of Liability

(a) The Company acknowledges that the Australian Consumer Law and similar legislation provides:

1. certain rights for Consumers that cannot be excluded; and
2. in relation to the supply of Goods, that in some circumstances the Customer may be a Consumer.

(b) Subject to paragraph 12(c), the Company excludes any and all conditions, warranties, terms and consumer guarantees implied by statute, general law or custom (including without limitation the Australian Consumer Law) applicable to any supply of

(c) The Consumer Guarantees apply to any supply of Goods where the Customer is a Consumer, and the liability of the Company in connection with the Consumer Guarantees is not limited except as stated in paragraph 12(d).

(d) If the Customer is a Consumer in relation to the supply of Goods, and those goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the liability of the Company in connection with the Consumer Guarantees is limited to one of the following (as selected by the Company):

In the case of Goods:

1. the replacement of the goods or the supply of equivalent Goods;
2. the repair of the Goods;
3. the payment of the cost of replacing the Goods or of acquiring goods equivalent to the Goods; or
4. the payment of the cost of having the Goods repaired, except where it is not Fair and Reasonable to limit liability in this way.

        In the case of services:

1. the supply of the services again: or
2. the payment of the cost of having the services supplied

(e) The Company:

1. excludes any liability in contract, tort (including negligence) or otherwise, in connection with any supply of Goods and services, for any indirect damages or losses, or for any special, punitive or exemplary damages;
2. limits its liability in contract, tort (including negligence) or otherwise, in connection with any supply of Goods and services, to the price payable by the Customer for the Goods and services; and
3. excludes any liability for or in connection a claim that the Goods and services are not fit for a particular purpose, except where the Company has a liability as contemplated by paragraph 12 (a) or 12(d).

(f) The Customer is liable for and shall indemnify the Company against all liability, claims, damage, loss, costs and expenses (including, without limitation, legal fees, costs and disbursements on a full indemnity basis), whether incurred or awarded against the Company and any environmental loss, cost, damage or expense) in respect of:

1. Personal injury;
2. Damages to intangible property; or
3. A claim by a third party in respect of the Customer’s use of the Goods and services.

The Customer’s liability under this indemnity is diminished to the extent that the Company’s breach of the Trading Terms (if any) or negligence causes the liability, claims, damage, loss, costs or expenses.

(g) The indemnity set out in clause 12(f) is a continuing obligation, separate and independent from the other obligations of the parties and survives termination, completion and expiration of the Agreement made with the Customer. It is not necessary for a party to incur an expense or make any payment before enforcing a right of indemnity conferred under these Trading Terms.

(h) The Company will not be liable to the Customer for any acts or omissions of any person supplied by the Company where that person is acting under the Customer’s  direction or control relating to the Goods and the services provided under these Trading Terms and the Customer shall indemnify the Company against all liability, claims, damages, loss, costs and expenses (including, without limitation, legal fees, costs and disbursements on a full indemnity basis) arising from or incurred in connection with such acts or

(i) Subject to the provisions contained in clause 12(a) and 12(d), the Company will not be responsible for failure or delay in delivery, pickup, installation or removal and will have no liability to the Customer or any other person for any loss (including any consequential loss) arising out of such failure or delay.

(j) The Customer is liable for all costs, expenses, damages or loss (including consequential loss) whether caused by the Customer or any third party arising directly or indirectly out of use of the Goods sold by the Company to the Customer and/or the provision of services. The Customer cannot recover from the Company compensation for any costs, expenses, damages or loss (including for consequential loss) arising in respect of the use of the Goods and or the provision of services.

(k) The Customer agrees to notify the Company in writing of any change in ownership or shareholding of the Customer within seven (7) days from the date such change or immediately if an Insolvency Event as specified in clause 17 hereof occurs and the Customer shall indemnify the Company against any loss or damage incurred by it as a result of its failure to notify the Company of such change or Insolvency Event

13.  Cancellations of Orders

The Customer may not cancel any order that it places for supply of Goods and services after that order is accepted by the Company unless the Company gives it consent in writing. The Company may give or withhold its consent in its absolute discretion. The Company may give its consent subject to conditions that may include payment of money to the Company.

14.    Suspension of Credit

The Company may at any time refuse to extend credit or further credit to the Customer (and without the Company having or giving any reason for doing so).

15.   Claims and Returns

(a) A Customer will be taken to have accepted the Goods and services received by it as being in accordance with its order unless it notifies the Company in writing of its claim within 7 days from the date of receipt of the Goods and services.

(b) No return of Goods that are allegedly defective or faulty will be accepted by the Company unless either:

1. the Customer is a Consumer in relation to those Goods and is entitled to return them because a Consumer Guarantee applies; or
2. the Company has given prior written authorization for the return of the Goods.

(c) If the Company consents under paragraph 15(b) (ii) for the return of any Goods, the Customer must:

1. 1. provide to the Company a written statement setting out the reasons for return of the Goods;
   2. give the Company details of the original invoice number and the date of delivery of the Goods;
   3. provide to the Company a copy of the receipt or delivery docket relating to the Goods;
   4. return the Goods in their original condition as at the time of their sale;
   5. return the Goods themselves, or pay for any transport and other costs associated with returning the goods and
   6. pay to the Company an administrative handling charge of $55 for the Company’s processing costs associated with the return of the Goods.

16.  Retention of Title Arrangements

(a) Property in and title to any Goods supplied to the Customer by the Company shall remain with the Company until the Customer has paid in full (and in cleared funds) all amounts owing by the Customer to the Company in connection with the Goods. Until such time as title to the Goods passes to the Company, the Customer will hold them on trust and as bailee for the Company.

(b) Despite paragraph 16(a), risk in the Goods passes to the Customer upon delivery.

(c) Unless otherwise agreed by the Company and until payment has been received for the Goods, the Customer must identify and store the Goods in a manner that clearly shows that they are the property of the Company.

17.  Insolvency Events

If the Customer:

(a) becomes insolvent or bankrupt;

(b) is the subject of an application to wind up, or if a Liquidator, Provisional Liquidator, Receiver, a Receiver and Manager, or an Administrator is

appointed with respect to the Customer or any of the Customer’s assets;

(c) makes an arrangement or composition with the creditors of the Customer or attempts to make such an arrangement or composition;

(d) is unable to pay their debts as they fall due;

(e) fails to comply with a statutory demand made under the Corporations Act 2001 (Cth) for payment of a debt;

(f) ceases business;

(g) has execution levied against any of their assets; or

(h) has a mortgagee Liquidator, Provisional Liquidator, Receiver, Receiver and manager or Administrator enter or seek to enter into possession of any of its assets,

 then any monies actually or contingently owing to the Company at that time under any contract formed on these Trading Terms (including any amounts which would not otherwise be payable until a later date or dates) are immediately due and payable (without the need for any demand by the Company).

18.  Force Majeure

(a) The Company may suspend any or all of its obligations to the Customer that are affected by any act of God, fire, flood, storm, earthquake, strike, lockout, trade dispute, breakdown, theft, crime, delays in shipping, or the inability of the Company to procure necessary materials or articles

preventing or retarding performance of the contract or any other cause not reasonably within the control of the Company (each a Force Majeure Event)

and the Company is not responsible for any delay, default, loss or damage due to any Force Majeure Event.

(b) When a Force Majeure Event ceases to affect the performance of any of the Company’s obligations, the Company must lift any suspension of those obligations that it makes under paragraph 18(a).

19.  Insurance and Intellectual Property

(a) Unless otherwise agreed in writing by the Company, the Company accepts no responsibility for the insurance of the Goods or any of the Customer’s property or materials.

(b) Any Intellectual Property that is presently existing or which is developed in the future by or for the Company in connection with the supply of its goods and services (including the Goods) vests in and is owned by the Company, and the Customer must do all things and sign all documents reasonably required by the Company to give effect to this clause.

20. Subscription

(a) Monthly subscriptions and agreements entered into by the Company for the Customer shall be billed one month in advance of the date when they become due and shall be paid within 14 days of the date of billing.

(b) In the event that the Customer fails after a demand to do so to pay for the subscription or any other account paid for by the Company on the Customer’s behalf on the due date for payment, the Company reserves the right to suspend or cancel the subscription or the account without notice to the Customer.

(c) In the event that the Company exercises its rights under clause 20 (b) above,

(i) The Customer shall be required to pay the balance of any software subscription obligation that remains owing as at the date of the said suspension or cancelation in respect to any software subscription made by the Company on behalf of the Customer.

(ii) the Company shall not be liable to the Customer for any loss of business, loss of profits or any other damages (whether direct or indirect) that the Customer or any client of the Customer may thereby suffer.

21.  Confidentiality

(a) In conducting any engagement undertaken under these Trading Terms, information acquired by us during the engagement is subject to strict confidentiality requirements. That information will not be disclosed by us to other parties except as required or allowed for by law, or with your express consent.

(b) All of our employees are required to sign confidentiality agreements in regards to client information and this information is stored in a secure system by the Company.

(c) Any proposal and/or financial information provided to the Customer by the Company shall be considered and remain confidential to either party. This includes sharing information with other businesses or the general public.

d) A Non-disclosure Agreement (NDA) is available upon request.

22.  Certificate

A certificate of the Customer’s liability under any contract or contracts formed on these Trading Terms, signed by an officer of the Company, is prima facie evidence of the Customer’s liability to the Company under these Trading Terms as at the date of the certificate.

23.  Time

Time is of the essence for payment of any monies owed by the Customer to the Company pursuant to the provisions specified in these Trading Terms.

24.  Jurisdiction

(a) These Trading Terms are governed by the laws of the place where the registered office of the Company is located at the time that these Trading Terms are adopted by the parties.

(b) The parties submit to the non-exclusive jurisdiction of the Courts of the State referred to in clause 24 (a) in relation to any dispute or claim arising under or in connection with the supply of Goods or otherwise concerning these Trading

25.  Notices

(a) Any notice required by or contemplated by these Trading Terms must be in writing in the English

(b) Any notice by one party to the other shall be sufficiently served if served:

1. 1. personally;’
   2. by facsimile transmission to the number specified in the application made to the Company by the Customer to establish the arrangements under these Trading Terms or as otherwise notified to the other party, with a transmission confirmation receipt marked “OK”;
   3. by e-mail to the address specified in the application made to the Company by the Customer to establish the arrangements under these Trading Terms or as otherwise notified to the other party, if the e-mail is acknowledged by the recipient; or
   4. by pre-paid post to the party to be served at the registered office of the party or to the address specified in the application made to the Company by the Customer to establish the arrangements under these Trading Terms or as otherwise notified to the other party, (in which case it is taken to be received 3 days after the date of posting).

26.  Miscellaneous

a). The invalidity or unenforceability of any provisions of these Trading Terms shall not affect the validity or enforceability of the remaining provisions.

b) No delay or failure to act is a waiver of any of the provisions herein contained.  No waiver is effective unless in writing.  A waiver of a breach is not a waiver of any other breach. No waiver by the Company of any one or more of the defaults of the Customer of any provision of these terms and conditions shall operate or be construed as a waiver of any future default whether of a like or a different kind.

c) These Trading Terms shall bind the Company and the Customer and their respective successors and permitted assigns.

d) The Customer may not assign any of its rights or obligations under these Trading Terms without the prior written consent of the Company, such consent shall not be unreasonably withheld.

e) The Company may sub- contract the supply or delivery of Goods and services