Terms and Conditions

DEFINITIONS

In these Terms and Conditions of Supply the following words and phrases shall have the following meanings;

"Account" means the Customer's account with the Networx Australia for provision of the Services;

"Business Day" means any day from Monday to Friday other than a public holiday in the place where an act or thing is to be done or a notice is to be received under this Agreement;

"Business User" means a Customer who uses the Services and/or Equipment in the course of any trade or business;

"Charges" means the charges payable by the Customer in return for the Services and/or Equipment in accordance with Clause 7;

"Claim" means any allegation, action, demand, cause of action, suit or proceeding, however arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, or otherwise.

"Company" means Networx Australia Pty Ltd ABN 90 091 675 160;

"Company's Web site" means the Web site at http://www.networxenterprise.com, and references to "our Web site" shall be construed accordingly;

"Confidential Information" means:

  • (a) the terms and existence of this Agreement, which is Confidential Information of both parties; and
  • (b) all information (whether in written, electronic or other form) concerning or in any way connected with each party’s respective businesses, services, products (including without limitation the Services), customers, property or affairs and which is disclosed to either party (or their respective Related Bodies Corporate) by the other party, or by any person on behalf of such party, or which otherwise comes to the knowledge of either party (as applicable);
  • (c) in the case of you, any and all content provided by you to us, including words, images, logos, information, documents, materials, any information stored by you on the System Infrastructure using the Services,but does not include information which is generally publicly available (other than as a result of a breach of this Agreement).

"Contract Representative" has the meaning given to it in clause 21.1.

"Corporations Act" means the Corporations Act 2001 (Cth).

"Customer" means the person, group of persons or other entity whose name and address is or are set out in the Application Proposal;

"Application Proposal" means the application form for the supply by the Company of the Equipment and/or Services, completed by, or in accordance with an order from, the Customer;

"Equipment" means the equipment specified on the Application Proposal;

"Force Majeure Event" means any act, event or cause which:

  • (a) directly or indirectly results in a party being prevented from or delayed in performing any of its obligations under this Agreement; and
  • (b) is beyond the reasonable control of a party,which may include any lightning, storm, fire, flood, or other acts of God, terrorist acts, war, industrial strikes or disputes, other than your ability to pay any Charges under this Agreement.

"GST" means goods and services tax;

"GST Act" means A New Tax System (Goods and Services Tax) Act 1999 (Cth);

"Incident" is any event which is not part of the standard operation of the Service and which causes, or may cause, an interruption to, or a reduction, in the quality of that Service.

"Insolvency" means, in respect of a party, being insolvent under administration or insolvent, or having a controller appointed, or being in receivership or receivership and management, in liquidation, in provisional liquidation, under administration, would up, subject to any arrangement, assignment, or composition, protected from creditors under any statute, dissolved, or otherwise unable to pay its debts when they fall due (with each of the expressions used in this paragraph having the meaning given under the Corporations Act);

"Intellectual Property Rights" means all statutory and other proprietary rights in respect of all intellectual or industrial property including all trademarks, patents, copyright and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registered, registrable or patentable.

"Law" means all applicable laws, rules, regulations, self-regulatory standards, orders, conventions that are applicable to the relevant party in performing its obligations under this Agreement;

"Loss" means any losses, claims, damages, costs, demands, expenses, charges, interest, penalties, fees, fines, forfeitures, assessments and other liabilities, whether present, unascertained, immediate, future or contingent, and whether based in contract, tort, statute or otherwise;

"Minimum Cancellation Notice Period" means the minimum period of notice that a Customer must give the Company to terminate a specific Service or this Agreement, as set out in the Terms and Conditions of Supply and/or Specific Terms and Conditions;

"Minimum Service Period" means the minimum Service Period as set out in Clauses 2.2 and 2.3 or the Specific Terms and Conditions;

"Name" means any name specifically requested by or allocated to the Customer for the provision of the Services and includes any User Name, Internet domain name or electronic mailbox name;

"Network Connection" means an Internet access service for use by multiple machines;

"Password" means a password issued to the Customer for the Customer's access to the Services;

"Personal Information" has the meaning given in section 6 of the Privacy Act;

"Price List" means the Company's price list relating to the Equipment and/or Services set out on its Web site, as amended from time to time;

"Privacy Act" means the Privacy Act 1988 (Cth).

"Privacy Laws" means the Privacy Act, the Telecommunications Act 1997 (Cth), and any other applicable legislation, principles, industry codes and policies relating to the collection, use, disclosure, storage or granting of access rights to Personal Information.

"Privacy Policy" means the Company's policy regarding privacy, set out on our Web site, as amended from time to time, or as provided by us to you from time to time;

"Related Body Corporate" has the meaning given to it in the Corporations Act.

"Representatives" means in relation to a party, an officer, director, employee, consultant, agent, contractor or sub-contractor of that party.

"Security Management" means the process of managing a defined level of security on information and services, in accordance with industry best practice (including but not limited to):

  • (a) complying with the restrictions in this Agreement in relation to access to Confidential Information;
  • (b) maintaining up to date anti-virus protection;
  • (c) maintaining an up to date firewall; and
  • (d) maintaining physical security arrangements for the System Infrastructure.

"Service Period" means the period of an individual Service provided in accordance with this Agreement;

"Service" means a service specified on the Application Proposal, and described in the Company's literature at the date of completion of the Application Proposal together with all services and/or facilities referred to in any Specific Terms and Conditions; all references to "Services" shall be construed accordingly;

"Specific Terms and Conditions" means the specific terms and conditions (if any) applicable to any part of the Services referred to on the Application Proposal;

"System Infrastructure" means the physical infrastructure, including equipment, cabling and systems together with related computer software used to provide the Services.

"Term" has the meaning given to it in clause 2.4.

"Threat" means an indication of an unwanted incident that could impinge on the Services in some way including deliberate acts (e.g. wilful damage) and accidental damage (e.g. operator error).

"us" or "we" means the Company, and references to "our" shall be construed accordingly;

"User Name" means any user name allocated to the Customer for access to the Services;

"you" means the Customer, and references to "your" shall be construed accordingly.

1. THE SERVICES

1.1 We shall provide you with the Services and/or the Equipment subject to the terms of this Agreement.

1.2 We shall not be obliged to provide the Services and/or Equipment to you unless and until;
1.2.1 We have sent written notice to you (either by post, personally delivered or by e-mail) of our acceptance of the Application Proposal; and 1.2.2 We have received any initial charges due from you in respect of the Services and/or Equipment.Acceptance of the Services and/or Equipment by you constitutes your automatic acceptance of the terms and conditions of this Agreement.

1.3 We will ensure that the Services conform to industry best practice and standards. In order to maintain the quality and safety of the Services, and any other services which we provide to our customers, we may from time to time:
1.3.1 Suspend, close down or restrict the whole or any part of the Services in order to carry out emergency or other repairs, maintenance and/or improvements or to prevent overload of the network or to preserve the safety, security or integrity of the Services and any Internet traffic conveyed (although we will give you as much notice as is reasonably practicable before doing so and will endeavour to carry out such works during the relevant scheduled maintenance periods as published by us); and/or 1.3.2 Give you instructions on how to use the Services. You agree to comply with any instructions we may give you in accordance with this Clause. If the Services are suspended, closed down or restricted for more than seven days, then you may terminate the supply of the affected Services without liability immediately by notice to us.

1.4 We will notify you as soon as possible if either we or our agents, employees, representatives or anyone else involved in providing the Services and/or the Equipment, require access to your premises, to install the Services and/or the Equipment or to carry out repairs, maintenance or upgrades. You agree to grant us and/or such other persons referred to, access to your premises to install the Services and/or the Equipment at an agreed time. We will meet your reasonable requirements in respect of such access, including compliance with your security and occupational health and safety policies, and you agree to meet ours, concerning the safety of people on your premises.

1.5 We may make software available to you that enable you to use the Services. This software must not be copied or modified by you or anyone else unless allowed by Law. You undertake and agree that you will access the Services only via use of this software, or in an alternative way permitted by us, and you will not attempt to circumvent any security measures inherent in the Services. Where such software is owned by or licensed to us, we will, where possible, grant you a revocable, non-transferable, non-assignable, non-exclusive license to use it for the duration of the Agreement (or, if shorter the duration of any licence of the software to us). Where the use of such software by you requires you to enter a separate licence, then subject to your acceptance of the licence terms and conditions, which we will provide to you, you agree to do so.

2. SERVICE PERIOD

2.1 We will activate the Services, as soon as possible following completion of the matters referred to in Clause 1 above.

2.2 Subject to Clause 2.3 or where otherwise specified in the Specific Terms and Conditions or otherwise agreed between the parties (for example, as set out in the agreed Application Proposal), and except where terminated or suspended in accordance with this Agreement, the Services will be provided for a Minimum Service Period of 36 months from the date of activation.

2.3 Unless otherwise terminated or suspended in accordance with this Agreement or otherwise specified in the Specific Terms and Conditions or otherwise agreed between the parties (for example, as set out in the agreed Application Proposal), the following Services shall be provided for a Minimum Service Period of 36 months from the date of activation:
2.3.1 SSL certificates 2.3.2 Domain name registration/transfer and hosting 2.3.3 Firewalls 2.3.4 Internet access technologies 2.3.5 Web site Optimisation and Search Engine Promotion products 2.3.6 Managed Hosting Services

2.4 On expiry of the periods referred to at Clauses 2.2 or 2.3 above (as appropriate) the Services will, unless terminated with 90-days’ notice before the end of the initial term, automatically renew on a month to month basis until terminated by either party on 30 days’ written notice or otherwise in accordance with this Agreement.

3. CHANGES

3.1 We will provide the Services for the relevant Service Period. However, we may have to modify, suspend, vary or discontinue the whole or any part of the Services (including, without limitation, any codes or access details or technical specifications associated with the Services) and will endeavour to give you as much notice as is reasonably practicable, being not less than 90 days’ notice (Notice Period), if we need to do so. You may terminate the affected Services without liability on no less than 30 days’ notice given at any time during such Notice Period.

3.2 We may have to change the terms and conditions of the Agreement. Where this is necessary, we will publish details of all changes on the Company’s Web site before they take effect.

3.3 We will notify you about any change referred to in Clause 3.2 at least one month before it happens, unless we need to make changes, as soon as possible, for regulatory or legal reasons. In those circumstances, we will give you as much notice as is reasonably practicable of such changes.

3.4 If any change referred to in clause 3.2 has a material adverse effect on you, then you may terminate this Agreement immediately, without liability, upon written on no less than 90 days’ notice to us.

4. CONDITIONS OF USE

4.1 You agree that you will promptly provide us with all information that we may reasonably require in order to provide the Services and perform all of our other obligations under this Agreement.

4.2 You agree that you will be responsible for all use of the Services and (unless, we have agreed to supply it as part of the Equipment) for providing a computer, modem, and all additional equipment and/or services (including, without limitation, a telephone line, if required), and for obtaining any permits and/or licences which are necessary for connecting to, and accessing, the Services. You agree that you are responsible for complying with all terms and conditions (including, without limitation, terms of payment) relating to any telecommunications service which is required by you to access the Services.

4.3 You are responsible for ensuring that the Services and/or Equipment are used in accordance with the Agreement.

4.4 If, while using the Services, you discover that another person is using the Services, and failing to do so in accordance with the Agreement, you must inform us immediately.

4.5 You agree that you will, at all times and for whatever purpose, use the Services and/or the Equipment in compliance with all Laws.

4.6 In addition to Clause 4.5, you agree that you will not knowingly use, and will take all commercially reasonable endeavours to ensure that nobody else uses, the Services and/or the Equipment:
4.6.1 fraudulently or in connection with any criminal offence; 4.6.2 to send, knowingly receive, upload, download, or use any material which is offensive,abusive, indecent, defamatory, obscene or menacing, or in breach of copyright, confidence, privacy or any other rights; 4.6.3 to "spam" or to send or provide unsolicited advertising or promotional material or, knowingly to receive responses to any spam, unsolicited advertising or promotional material sent or provided by any third party; 4.6.4 in any way, which is or is likely to be materially detrimental to the provision of services to you or any of our customers, or to our business and/or reputation; 4.6.5 in contravention of any licences or third-party rights, or in contravention of Acceptable Use Policies; or 4.6.6 in a way that does not comply with any reasonable instructions provided to you;

4.7 You may use the Services to link to other networks world-wide, provided that you comply, at all times, with any policies and/or terms and conditions imposed by the operators of such other networks.

4.8 Except where otherwise provided in any Specific Terms and Conditions:
4.8.1 your Account may only be used to gain access to the Internet by either: 4.8.1.1 a single person, from up to two Locations at different times; or 4.8.1.2 more than one person from a single computer

4.9 You agree that you will not perform or allow anyone else to perform any unauthorised IP or Port multicasting, spoofing, broadcasting, vectoring, filtering translation or routing using the Services.

4.10 You agree to keep your User Name(s) and/or Password(s) private and confidential and ensure, at all times, that it (or they) do not become known to anyone else.

4.11 You agree that you will notify us immediately if you become aware of any change in circumstances which may lead you to believe that your User Name(s) and/or Password(s) have become known to anyone else.

4.12 You agree that we may, from time to time, where necessary for security purposes, on giving you reasonable notice, change your User Name(s) and/or Password(s). You also agree that you will not change or attempt to change your User Name at any time.

4.13 Any managed hardware, and/or routers, which you purchase from us, will be tested by us and configured to meet your basic network and Internet specifications. We cannot support any alterations to the configuration of such Equipment and any such alterations will invalidate our support obligation (if any) relating to such Equipment.

4.14 You may conduct acceptance tests on the Equipment once installed, and you must notify us in accordance with clause 4.16 if you believe that there is any fault with the Equipment or its installation. You will be deemed to have accepted the Equipment if you give us notice that you have accepted the Equipment, or if you do not notify us of any fault with the Equipment within seven days of the Equipment being installed. If you do not accept the Equipment, then you may immediately by notice to us, without liability, terminate this Agreement so far as it relates to that Equipment and any Services to be provided in association with that Equipment. On termination, pursuant to this clause, we will remove the Equipment from your premises within seven days at our cost.

4.15 Risk in the Equipment will pass to you on acceptance pursuant to clause 4.14. Title to any Equipment, which we have agreed to sell to you, will remain with us unless and until you have paid all sums due to us in respect of such Equipment.

4.16 Any fault with the Services and/or the Equipment, which you detect must be reported to us as soon as reasonably practicable either: -
4.16.1 by telephone on 02 9330 3955; 4.16.2 by e-mail sent to us at: This email address is being protected from spambots. You need JavaScript enabled to view it.; 4.16.3 online at hd.na.net.au; or 4.16.4 to such other telephone number or email address or at such other Web site as we may notify to you from time to time for this purpose.

4.17 You agree that we may, at any time, scan any IP addresses allocated to you for anything which may affect the security of the Services (including open relays and/or open proxies or equivalent). If, as part of the Services, you are provided with Web space to enable you to upload your own Web sites:
4.17.1 You are responsible for (and will indemnify us against) any and all Loss arising directly in connection with any material that either you or anyone else authorised by you puts on your Web site(s); and 4.17.2 Your contact details must be clearly visible on your Web site(s) and updated as soon as possible after any change. 4.18 You agree that the configuration of your internal network remains your responsibility. Any interruption to the Services resulting from such configuration shall not be regarded as an interruption in or suspension of the provision by us of the Services.

5. NAMES

5.1 In the event that we provide you with domain name services, the following provisions will apply:
5.1.1 You confirm that you are the owner of, and/or that you have full rights to use, any trade (or other) name or mark, or any Name, requested by or allocated to you. 5.1.2 We cannot guarantee that any Name requested by you will be available or approved for use. 5.1.3 If we have reasonable grounds to believe that the use by you of any Name is or would be in breach of Clause 5.1 above, we may refuse to allocate or cease to provide you with the Name and ask you to choose a replacement. 5.1.4 Internet domain names are registered and/or provided to you in accordance with all terms and conditions issued by the regulatory body responsible for the maintenance of such domain names including, but not limited to, Melbourne IT, copies of whose terms and conditions are available at:
5.1.4.1 http://www.melbourneit.com.au/policies/gtldtermcond.php3

5.2 You agree that all static IP addresses are allocated to you on a rental only basis and will remain our property at all times.

6. INTELLECTUAL PROPERTY RIGHTS

6.1 If, in our reasonable opinion, the display of any material or information, provided by you, is or would be in breach of any third-party rights (including Intellectual Property Rights) in that material or information, we may refuse or terminate such display.

6.2 You agree that, all copying, redistribution or publication of any material or information subject to any rights (including Intellectual Property Rights) of a third party will be carried out by you (or on your behalf) in accordance with all relevant Laws.

6.3 We own all right, title and interest to all Equipment and material used by us to perform our obligations under this Agreement, and we grant you, for the duration of the Term:
6.3.1 a revocable, non-exclusive, and non-transferable licence to use all such Equipment, material and any Intellectual Property Rights necessary for you to acquire the Services; and 6.3.2 the right to sub-license the subject matter of clause 6.3.1 to your customers solely for and to the extent necessary for the purpose of re-supplying the Services to those customers.

6.4 We indemnify you from and against any and all Loss which you suffer or incur as a result of the Equipment or the supply of the Services infringing any third-party rights (including Intellectual Property Rights).

6.5 We shall have full authority to defend, compromise or settle such claims relating to the Loss referred to in Clause 6.4 above, and you will, at our expense, provide us with all reasonable assistance necessary to defend such claims.

7. CHARGES

7.1 Except as otherwise provided in the Agreement, all Charges and other sums due from you in respect of the Services and/or Equipment shall be set out in the Price List and/or the Application Proposal and/or the invoice relating to such Equipment and/or Services.

7.2 You shall pay the Charges (without any set off or deduction of any kind) on either a monthly, quarterly or annual basis, in arrears, as stated in the Application Proposal and/or the Price List and/or the invoice referred to in Clause 7.1 above.

7.3 You agree that you will notify us as soon as possible of any change in your credit/debit card or bank account details. Should you terminate the Services in accordance with this Agreement, it is your responsibility to terminate any standing order with your bank.

7.4 Any change in the amount payable by you for Services and/or Equipment must be agreed by both parties in writing.

8. TAXES

8.1 Save for the defined terms in this Agreement, capitalised expressions set out in this clause 8 have the meanings given to those expressions in the GST Act.

8.2 Unless otherwise expressly stated, all Charges or other sums payable or consideration to be provided under or in accordance with this Agreement are exclusive of GST.

8.3 If GST is imposed on any supply made under or in accordance with this Agreement, the recipient of the taxable supply must pay to the supplier an additional amount equal to the GST payable on or for the taxable supply subject to the recipient receiving a valid tax invoice in respect of the supply at or before the time of payment. Payment of the additional amount will be made at the same time as payment for the taxable supply is required to be made in accordance with this Agreement.

8.4 Reimbursement: If this Agreement requires a party to pay for, reimburse or contribute to any expense, loss or outgoing (“reimbursable expense”) suffered or incurred by another party, the amount required to be paid, reimbursed or contributed by the first party will be the sum of:
8.4.1 the amount of the reimbursable expense net of input tax credits (if any) to which the other party is entitled in respect of the reimbursable expense (“net amount”); and 8.4.2 if the other party’s recovery from the first party is a taxable supply, any GST payable in respect of that supply, such that after the other party meets the GST liability, it retains the net amount.

8.5 Adjustment Note: A party shall issue an Adjustment Note for or in respect of any Adjustment Event to the other party 5 Business Days prior to the due date for payment (if any) or otherwise, within 10 Business Days of when the party became aware or should have become aware of the Adjustment Event, if there is no payment to be made by the other party.

8.6 Identification of GST: Each party shall identify the amount of GST relevant to all pricing and payments.

8.7 Taxes Generally: You shall pay all Australian duties, taxes (other than income taxes), levies, charges withholding taxes or imposts (including stamp duty) levied on or in connection with this Agreement and any document contemplated by this Agreement, or any Service or other thing provided or to be provided under this Agreement and any invoices issued under this clause 8.7 may be grossed up accordingly.

9. LIABILITY

9.1 Subject to any express warranties in this Agreement but otherwise to the fullest extent permitted by law, neither we nor any of our agents, contractors, licensees, employees or information providers involved in providing the Services, give any guarantee that the Services will be uninterrupted or free from error.

9.2 You acknowledge that the Internet is separate from the Services and that use of the Internet is at your own risk and subject to any applicable Laws. We have no responsibility for any goods, services, information, software, or other materials which you may obtain from a third party when using the Internet.

9.3 You agree and acknowledge that we may exercise editorial control over the content of our servers, but that we do not have the resources to ensure, nor are we capable of checking, the full content of our servers at all times. Neither we, nor any of our agents, contractors, licensees, employees and information providers, involved in providing the Services, are able to control the content of the Internet. You, therefore, agree that we shall not be held responsible for the publication, transmission or reception of any defamatory material or information of any kind, other than information which is inserted by us. You specifically acknowledge that we have given no warranties as to the quality, content or accuracy of information received through, or as a result of the use of, the Services.

9.4 You agree and acknowledge that the sums payable by you under the Agreement have been calculated on the basis that we shall exclude liability in accordance with the Agreement.

9.5 Subject to clause 9.6, in no circumstances whatsoever will either party be liable to the other party (whether in contract, or for breach of duty, or negligence or otherwise) for any indirect, incidental or special loss or damage or any loss of business or of contracts, profit, opportunity, goodwill, reputation, or anticipated savings, or for any loss or corruption of data which arises out of or in connection with the Services and/or the Equipment.

9.6 Subject to clause 9.6, the aggregate liability of either party in each calendar year of the Service Period for Loss suffered or incurred by the other party as a result of any act, default, omission or breach of either party in that calendar year is limited to the amount of the Charges payable to us by you in that calendar year, plus GST, if applicable.

9.7 The limitation of liability in clauses 9.5 and 9.6 do not extend to any liability of a party:
9.7.1 which by law it cannot contract out of; or 9.7.2 which is the subject of an indemnity provided under clause 10.1.

10. INDEMNITY

10.1 Each party (Indemnifying Party) will be responsible for and indemnify the other party and its Related Bodies Corporate and its and their Representatives (together, Indemnified Persons) against any Losses incurred or suffered by an Indemnified Person, or Claims brought against an Indemnified Person, arising directly from:
10.1.1 the Indemnifying Party’s or its Related Body Corporate’s or any of its and their Representatives’ failure to comply with any relevant data protection or Privacy Laws; 10.1.2 any injury to or death of any person caused by the negligence or wilful misconduct of the Indemnifying Party or its Related Body Corporate or any of its and their Representatives; 10.1.3 any damage to or loss of any real or personal property caused by the negligence or wilful misconduct of the Indemnifying Party or its Related Body Corporate or any of its and their Representatives; or 10.1.4 an infringement or an alleged infringement by the Indemnifying Party or its Related Body Corporate or any of its and their Representatives of Intellectual Property Rights of another person (including the other part or a third party) or an Indemnified Person’s Confidential Information, except to the extent that they were caused or contributed by the Indemnified Persons.

10.2 The Indemnifying Party shall have full authority to defend, compromise or settle such claims referred to in Clause 9.1 above, and the Indemnified Person(s) will, at the Indemnifying Party’s expense, provide the Indemnifying Party with all reasonable assistance necessary to defend such claims.

11. INSURANCE

11.1 We must affect and maintain, at our cost, for the duration of the Term (including any renewed term under clause 2.4), any insurance required by any applicable laws and any insurance required by you (acting reasonably), including, without limitation, the following:
11.1.1 public and products liability insurance; 11.1.2 professional indemnity insurance; 11.1.3 industrial special risks insurance; and 11.1.4 workers’ compensation insurance or equivalent insurance in accordance with the applicable legislation, (Required Insurances). The Required Insurances must be placed with a reputable and substantial insurer.

11.2 Upon reasonable request from time to time by you, we must provide certificates of currency for the Required Insurances.

11.3 We must not do or allow anything which would prejudice any of the Required Insurances or cause them to be terminated.

12. OUR OBLIGATIONS

12.1 We warrant that the Services will be fit for purpose and carried out in accordance with industry best practice.

12.2 We must:

  • (a) Comply with all relevant applicable laws in the provision of Services (including, without limitation, the Privacy Laws).
  • (b) Ensure and maintain administrative, physical and technical safeguards for protection of security, confidentiality and integrity of Confidential Information. These safeguards must include (but will not be limited to) measures for preventing access, use, modification or disclosure of Confidential Information by us or our Representatives except:
    • (i) to provide the Services and prevent or address service or technical problems;
    • (ii) as required by law; or
    • (iii) as expressly permitted in writing by you.
  • (c) implement and maintain Security Management practices and procedures to a level not less than industry standard including detailed security incident escalation procedures, and promptly notify you in the event we become aware of any breach of those Security Management practices or procedures; and
  • (d) Use best efforts to immediately remediate any breach of Security Management practices or procedures, and upon your reasonable request, provide you with a written summary of any such breach, including information regarding a root cause analysis and remediation efforts. If your Confidential Information is materially corrupted or is unrecoverable (in whole or in part) as a result of our negligent or intentional act or omission (or that of our Representatives) or our breach of this Agreement, then you may, in addition to any other remedies that may be available to you under the Agreement or otherwise:
    • (i) Require us, at our own expense, to restore or procure the restoration of your Confidential Information; or
    • (ii) Restore or procure restoration of your Confidential Information yourself, in which case we must reimburse you for any reasonable expenses so incurred.

12.3 If we become aware of a Threat to the Services or your Confidential Information we will:

  • (a) undertake an investigation into the Threat;
  • (b) take any reasonable steps that we consider likely to reduce the Threat;
  • (c) recommend to you any steps that we consider you should take in order to reduce Threat;
  • (d) subject to the nature of the Threat and any adverse consequences of providing the relevant information, advise you regarding the outcome of our investigation, including the origin of the Threat and data accessed, lost or damaged as a result and any further steps that you can take to reduce vulnerabilities in future.

13. SUSPENSION

13.1 If you use the Services in breach of clauses 4.5, 4.6 or 4.9, we may suspend the relevant Service (or a relevant part of a Service) if you do not remedy the breach within 14 days or receipt of notice from us to do so.

13.2 If you do not comply with Clause 4.6, to either our or any of our other customers' detriment we may, without prejudice to our other rights under clauses 4.3 and 14.1, suspend your access to the Services until you have given a suitable undertaking as to use.

13.3 If we suspend the Service (or a part of a Service), we must:
13.3.1 take any reasonable action to prevent or correct the suspension event; and 13.3.2 promptly restore access once the reason for the suspension has ceased or been rectified. If we incur an expense in performing our obligation under clause 13.3.1, we may require you to reimburse our reasonable cost, which may be as set out in the Price List or as otherwise agreed between us.

13.4 Any suspension of the Services by us in accordance with this clause 13 will not constitute a termination of the Agreement and we may require you to pay a reconnection fee to recommence the Services (as set out in the Price List).

13.5 You agree that we will not be held liable for any Loss which you may incur because of a suspension of the Services in accordance with clause 13.1.

14. TERMINATION

14.1 You agree that we may terminate the relevant Services and/or your Account and/or terminate the Agreement (as applicable in the circumstances) at any time, without prior notice to you, and without affecting any of our accrued rights or claims, either:
14.1.1 for non-payment (when due) of the Charges or any other sum due from you under the Agreement, and you do not remedy that non-payment within 14 days of receiving notice from us to do so; 14.1.2 for any other material breach of the Agreement by you and, where that breach is remediable, you do not remedy that breach within 14 days of receiving notice from us to do so; or 14.1.3 an Insolvency Event occurs to you.

14.2 You agree that where this Agreement or your Account is terminated pursuant to clause 14.1 that the Services will automatically terminate, and you are liable for payment of any Charges payable up to the date of termination.

14.3 You may terminate this Agreement immediately, without liability, under any of the following conditions:
14.3.1.1 for any material breach of the Agreement by us and, where that breach is remediable, we do not remedy that breach within 14 days of receiving notice from you to do so; or 14.3.1.2 an Insolvency Event occurs to us.

14.4 You may terminate all or any of the Services, without liability, by giving not less than 90 days’ written notice prior to the end of the initial term, or 30 days’ written notice prior to the end of any subsequent renewal term. Should you wish to terminate a Service in accordance with this clause 14.4, you must do so by email to This email address is being protected from spambots. You need JavaScript enabled to view it. or, where Internet access is unobtainable, give written notice to us in accordance with clause 21.

14.5 We may terminate all or any of the Services by notice equal to the Minimum Cancellation Notice Period (to expire at any time on or after the Minimum Service Period) without our incurring any liability.

15. ASSIGNMENT

15.1 Subject to clause 15.2, neither party shall assign or otherwise transfer any of its rights, interests nor obligations under this Agreement to a third party without the prior written consent of the other party, which shall not be unreasonably withheld or delayed.

15.2 Either party may assign or novate this Agreement to a Related Body Corporate with the financial and technical means to fulfil the assigning party’s obligations under this Agreement without the other party’s consent, provided that the assigning party notifies the other party of such assignment within seven days of the assignment having taken place.

16. CONFIDENTIALITY

Confidential obligations

16.1 Each party must:

  • (a) keep each other’s Confidential Information secret and confidential;
  • (b) not access, use or reproduce each other’s Confidential Information for any purpose other than for the purposes of exercising rights or performing obligations under the Agreement;
  • (c) not disclose each other’s Confidential Information except as permitted under the Agreement;
  • (d) take reasonable steps to ensure that any person who has access to Confidential Information of the other party (as permitted under the Agreement) does not make any unauthorised use, reproduction or disclosure of that information, and for the avoidance of doubt, in our case, this includes (without limitation) our third-party suppliers; and
  • (e) take all steps reasonably necessary to safeguard each other’s Confidential Information from unauthorised access, use or disclosure.

Permitted disclosure

16.2 A party must not disclose the other party’s Confidential Information to any person except:

  • (a) to its Related Bodies Corporate and its and their Representatives on a ‘need to know’ basis;
  • (b) to any of it or its Related Bodies Corporate’s legal, accounting or financial advisers and bankers for the purpose of giving effect to this Agreement or obtaining advice in relation to this Agreement;
  • (c) if disclosure is required by law, order of a court or other judicial tribunal or the rules of any stock exchange, provided that it first notifies the other party of the required disclosure (where reasonably practicable); or
  • (d) with the prior written consent of the other party. A party is liable for any unauthorised access, use or disclosure by its Related Bodies Corporate or its and their Representatives of the other party’s Confidential Information.

Remedy for breach

16.3 Each party acknowledges that monetary compensation may not be a sufficient remedy for any breach of this clause 16 and that the other party may seek and obtain specific performance or injunctive relief as a remedy for any breach or threatened breach of this clause 12, in addition to any other remedies available at law.

Continuance of confidentiality obligations

16.4 The obligations of confidentiality imposed by this clause 16 begin on the date this Agreement commences and continue in force until:

  • (a) all the Confidential Information is readily available in the public domain; or 16.1 the parties agree in writing to terminate those obligations.

17. DATA AND PRIVACY

17.1 Subject to our obligations under clause 17.4, you agree that both Networx Australia and Networx Australia’s employees may hold all names and other information in the Application Proposal, in a computerised database. You agree that such data may be processed and may, in certain circumstances, be supplied to and processed by our suppliers, solely to enable the provision and maintenance of the Equipment and/or Services.

17.2 You acknowledge that we may, from time to time, be required under regulations and/or legislation to co-operate with and/or disclose data to, government or other bodies and/or authorities in accordance with a Law.

17.3 We must comply, and must ensure that any of our suppliers who receive Personal Information pursuant to clause 17.1 comply, with the Privacy Laws and your directions with respect to the handling of such Personal Information.

17.4 We must store your data (including data belonging to your customers) on servers located in Australia and must not transfer or allow disclosure of data (including Personal Information) outside Australia without obtaining your prior written consent.

18. FORCE MAJEURE

18.1 Subject to clause 18.2, if a party is unable, wholly or in part, by reason of a Force Majeure Event, to perform an obligation under this Agreement, the affected party will not be liable to the other party for a failure to perform that obligation and that obligation will be suspended to the extent and for the duration of the Force Majeure Event provided that the affected party gives the other party prompt notice with sufficient details of the relevant Force Majeure Event.

18.2 The affected party must use reasonable endeavours to mitigate the effects of any Force Majeure Event and in the case of us, we must resume normal functioning of the Equipment and/or normal provision of the Services as soon as is reasonably practicable.

18.3 If a Force Majeure Event continues for more than 30 days, you may terminate this Agreement or any affected Services (as the case may be) immediately by notice to us.

19. DISPUTE RESOLUTION

19.1 Notice of dispute: If a dispute arises between the parties under or in connection with this Agreement, either party may deliver to the other party a notice of dispute, which notice shall identify and provide reasonable details of the dispute (Notice of Dispute).

19.2 Negotiation: Within 10 Business Days of the delivery of the Notice of Dispute, each party’s Contract Representative must meet or hold discussions and use their reasonable endeavours, acting in good faith, to resolve the dispute, or else to agree a process for the resolution of the dispute, which may include mediation or expert determination (Dispute Meeting).

19.3 Escalation: If the dispute is not resolved within 10 Business Days of the date of the Dispute Meeting, either party must refer the dispute to their respective senior management (Escalation of Dispute Notice).

19.4 Final resolution: If the dispute is not resolved, or a process for the resolution of the dispute has not been agreed within 5 Business Days of the delivery of the Escalation of Dispute Notice, either party may refer the dispute to be finally resolved by arbitration in a binding fashion.

19.5 Arbitration: The arbitration must be conducted in Sydney, Australia by a single arbitrator to be appointed by the Chair of the NSW Chapter of the Institute of Arbitrators and Mediators Australia (IAMA). The arbitration must be conducted in accordance with the IAMA Rules for Conduct of Commercial Arbitrators, except that:
19.5.1 the arbitrator must only accept evidence which would be accepted in a court of law; 19.5.2 a party may be represented by a qualified legal practitioner or another representative; 19.5.3 the arbitrator must include in the arbitration award the findings on material questions of law and of fact, including references to the evidence on which the findings of fact were based; and 19.5.4 the parties consent to an appeal to the Supreme Court of New South Wales on any question of law arising in the course of the arbitration or out of an arbitrator award.

19.6 Continuity: Subject to clauses 13 and 14, the parties must continue to perform their obligations under this Agreement.

19.7 Injunctive or urgent relief: Nothing in this clause 19 prejudices our right to institute proceedings to enforce any payment due under this Agreement or either party’s right to seek injunctive or urgent declaratory relief in respect of a dispute under this clause 19 or any other matter arising under this Agreement.

20. WAIVER

20.1 Neither failure nor delay by either you or us in exercising any of your or our rights under the Agreement shall amount to a waiver of any such right or operate so as to bar the exercise or enforcement of such right at any time in the future.

20.2 To be effective, a waiver must be express and in writing by the party granting the waiver.

21. NOTICES

21.1 Each party agrees to keep the contact details which that party has provided to the other party up to date (Contract Representative). Any notice or other information to be served on a party pursuant to this Agreement must be in writing and sent by either e-mail or pre-paid mail to the recipient’s email or postal address as set out in this Agreement. Any notice sent by pre-paid mail will be deemed served two Business Days after posting. Any notice sent by e-mail will be deemed served when it is received by the recipient’s mail server, unless it is sent outside the hours of 9am to 5pm on a Business Day, in which case it will be deemed to be received at 9am on the next Business Day.

22. GENERAL

22.1 This Agreement represents the entire agreement and understanding between you and us with regard to the supply of the Equipment and/or Services, to the exclusion of all prior agreements, arrangements and understandings. The Agreement contains express promises and obligations on our part. You agree that any other term which might be implied or incorporated into the Agreement, by statute, at common law or otherwise, is excluded, to the fullest extent permitted by law.

22.2 You acknowledge and agree that in entering into the Agreement you have not relied upon any oral or written representation, statement or understanding (whether negligently or innocently made) by any of our employees, agents, subcontractors or representatives other than as expressly set out in the Agreement.

22.3 Nothing in the Agreement shall exclude or limit our liability for fraudulent misrepresentation.

22.4 The Agreement shall be governed by and construed in accordance with Australian laws and you agree to submit to the non-exclusive jurisdiction of the Courts of New South Wales. In the event that the Agreement is translated into any other language, the English language version shall prevail.

22.5 If any provision, clause or sub-clause of the Agreement is held by any competent authority to be void, void-able, illegal, invalid or otherwise unenforceable, but would be valid and/or enforceable if any part of such provision, clause or sub-clause were deleted or modified, then that provision, clause or subclause shall apply with such deletion or modification as may be necessary to make it valid and/or enforceable.

22.6 If any part of the Agreement or the application of it to any person shall, for any reason, be adjudged by a competent authority to be invalid, void, void-able, illegal or unenforceable such judgement shall not affect the remainder of the Agreement which shall continue in full force and effect.

22.7 References to the singular include the plural and vice versa. References to one gender include all other genders and vice versa.

23. CREDIT AND RETURNS

23.1 Hardware and software will not be accepted after 30 days from the date of delivery and installation.

23.2 All hardware and software must be of current stock if returned.

23.3 Hardware and software must be accompanied by an invoice and delivery docket.

23.4 Hardware must not be marked or damaged and must be returned in full unopened original packaging.

23.5 A handling fee of 30% will be charged to the total value of all returned items.

23.6 No credit will be allowed on hardware and software if sold at discounted prices.

 

Our Clients

Hunter WaterSydney Convention and Entertainment CentreMoriah CollegeDynapacKemenysLJHookerSt Marys CollegeCFMEUValvoline

Our Partnerships

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