The provision of goods and services by TechBrain Pty Ltd as Trustee for the Keegan Family Trust, ABN 84 108 360 350 (Vendor) to the aforementioned company, trust, partnership or individual(s) (Client) is subject to the following Terms and Conditions. By receiving any goods and / or services from TechBrain, the Client agrees to purchase from the Vendor and the Vendor agrees to provide the Goods and Services in accordance with the requirements, terms and conditions specified in this Agreement. These terms and conditions replace all prior terms and conditions entered in to between the Vendor and the Client and are current as at 1st June 2018.
1. Service Offering : Vendor agrees to perform the services defined in the Service Offering Proposal on the IT environment in place commencing as soon as practicable after signing by the Client (Commencement Date) for the Monthly Service Fee (increased by the greater of 3% and CPI from 1 July each year) specified in the Service Offering Proposal or the relevant Fixed Hourly Rate and shall continue from that date until the Agreement is terminated in accordance with the provisions in this Agreement. Exceptions as defined in the Service Offering and in Clause 3.2 below. We reserve the right to not support equipment that is out of warranty and/or not maintained in line with our defined standards. In such instances we will recommend upgrading or replacing equipment but may, in the interim, support the equipment on a time and materials basis.
2. Response : Support of the current IT environment inclusive in the Monthly Service Fee or on a Time and Materials basis at the relevant Fixed Hourly Rate between 08:00 – 17:00. Support outside of these hours is available from 07:00 – 08:00 and 17:00 – 19:00 Monday to Friday and 09:00 – 13:00 on Saturday at 1.5 times the relevant Fixed Hourly Rate plus GST (“On Call Fixed Hourly Rate”) with a minimum charge of 1 hour; and on Sunday’s and Public Holiday’s at 2.0 times the relevant Fixed Hourly Rate plus GST (“Extra On Call Fixed Hourly Rate”) with a minimum charge of 1 hour. On Call and Extra On Call Fixed Hourly Rates do not apply to scheduled maintenance tasks. Travel time charged from the TechBrain offices to the client site.
3. Initial Project and Monthly Services Fees
3.1. Onboarding Fee: Payable by the Client to Vendor’s Nominated Bank Account in advance of the Vendor undertaking the work to onboard the Client.
3.2. Monthly Service Fee : Payable by the Client along with any bank fees incurred to Vendor’s Nominated Bank Account on or before the last day of each month in advance of the following month’s services. The Client shall bear all disbursements incurred by Vendor in the performance of the Services under this Agreement including travelling on behalf of the Client. The Monthly Service Fee is calculated based on the IT environment at the date of the proposal. Changes to the size or nature of the IT environment may result in changes to the Monthly Service Fee.
3.3. Non payment : In the event that any sum due under this Agreement is not paid by the due date without prejudice to Vendor’s other rights and remedies: Vendor reserves the right to terminate the Agreement with immediate effect and charge interest on such sum on a day-to-day basis (as well as before any judgement) from the date the payment was due to the date of actual payment (both dates inclusive) at the rate of 2 % above the base rate of Commonwealth Bank of Australia. Interest shall be paid by the Client upon the Vendor’s demand. The Client shall also be liable for all costs and expenses incurred by Vendor in the recovery of all sums due from the Client under this Agreement; and Vendor shall additionally make a late payment charge of $200 for any late payment due under this Agreement by the Client; Vendor may refuse to provide the Services; and Vendor agrees to reinstate the Services promptly upon payment of all outstanding sums due to it. In the event that the Vendor suspends its Services to the Client under this clause, the Client may not enforce any part of this Agreement that requires the Vendor to provide Services to the Client.
4. Termination and Default
4.1 Early Termination : After Commencement of this Agreement, if the Client wishes to terminate this Agreement before completion of the Services to be provided as part of the Initial Project Fee, then the full Initial Project Fee shall become payable forthwith to Vendor.
4.2 Termination : In the event that the Client serves notice to terminate the agreement the full Monthly Service Fee for the subsequent full three calendar months shall be payable by the Client, and the Service Offering delivered by the Vendor. In the event that the Vendor serves notice to terminate the agreement the Vendor will provide notice (subject to Clause 3.3 right to terminate with immediate effect) at the discretion of the Client, but in any event no longer than 3 months.
4.3 Effect of Termination : Upon termination of this Agreement: (a) Vendor may cease providing the Services and may invoice the Client for the Services pursuant to this Agreement; (b) no fees or other payments previously made by the Client shall be refunded; and (c) where notice to terminate is served or the termination of this agreement is triggered automatically, the Client shall remain liable for the Initial Project Fee and / or the other Monthly Service Fees specified and due for the next full three calendar months. Any termination of this Agreement pursuant to this clause shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
4.4 Force Majeure : Neither party shall be liable to the other by reason of any failure of performance due under this Agreement (except obligations to pay) if such failure arises out of causes beyond that party’s reasonable control despite its reasonable efforts, and without the fault or negligence of such party. Any party experiencing such an event shall give notice as promptly as possible under the circumstances.
4.5 Risk : The Client is responsible for any loss, damage to or destruction of items delivered by Vendor pursuant to the terms of this Agreement upon delivery of such items by the Vendor and any loss or damage to the Client as a result of any services provided by the Vendor. Vendor shall bear no risk for the loss, damage or destruction to such items or to the Client resulting from the provision of services. Replacement of lost or damaged items and recovery from loss or damage due to provision of services shall be the sole responsibility, cost and expense of Client.
5. Nature of Agreement : This Agreement contains the whole agreement between the parties in respect of the subject matter of this Agreement and no other agreements or understandings, verbal or otherwise, exist between the parties except as specifically stated. Any waiver by a party of any one breach or default by the other will not constitute a waiver of any other breach or default. A waiver by either party is only effective if it is in writing. No variation of the terms of this Agreement will be of any force or effect unless it is in writing and signed by the parties. If any provision of this Agreement is found to be void, voidable, illegal or otherwise enforceable, the parties will amend that provision in a manner which reasonably achieves the intention of the parties or, at the discretion of the Client, that provision may be severed from this Agreement and the remaining provisions of the Agreement will remain in full force and effect. This Agreement can be executed by each party executing this document or an identical document. The only relationship between the Client and the Vendor is of independent contractors. The Vendor is not in any way an agent, partner or employee of the Client. Any existing agreements between the Client and the Vendor governing the subject matter of this agreement are cancelled except in respect of any pre-existing debts or benefits accrued under them. The parties agree that this Agreement is for the sole benefit of the parties specified above and is not intended to confer any legal rights or benefits on any third party and that there are no third party beneficiaries to this Agreement or any part or specific provision of this Agreement.
6. Assignment : The Client agrees to an assignment of this Agreement from the Vendor to a third party provided that the proposed assignee agrees to be bound by the obligations on the part of the Vendor set out in this Agreement.
7. Governing Law : The Contract is governed by the laws of Western Australia and the parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of Western Australia.
8. Presumptions & Interpretation : Unless the context otherwise requires: a word which denotes the singular denotes the plural and vice versa; any gender denotes the other genders; and a person includes an individual, a body corporate and a government body. Unless the context otherwise requires: any legislation includes any regulation or instrument made under it and where amended, re-enacted or replaced means that amended, re-enacted or replacement legislation; any other Agreement or instrument, where amended or replaced, means that Agreement or instrument as amended or replaced; a business day means a day other than Saturday on which banks are open for general banking business in the state where the Client has their principal place of business.
9.1 Restriction : The Client undertakes that it will not, either directly or indirectly or through any Related Body Corporate, without the prior written consent of the Vendor: employ, engage or retain; solicit or attempt to employ; or purchase any goods or services from; any staff member of the Vendor who has been involved in providing services to the Client (Staff Member). The restriction in this clause applies for the following periods: during the entire time the Client receives the Services from the Vendor; and the later of: 6 months following the provision of the Services by the Vendor; or 6 months following the cessation of the Staff Member’s employment with the Vendor. The restriction in this clause applies to the Client acting: either alone or in partnership or association with another person or business; as principal, agent, representative, director, officer or employee; as member, shareholder, debenture holder, noteholder or holder of any other security; as trustee of or as a consultant or adviser to any person (other than the Client); or in any other capacity. The Client and Vendor each acknowledge that the restriction in this clause is a fair and reasonable restriction in light of the Vendor’s relationship with its Staff Member(s).
9.2 Breach of Restraint: Liquidated Damages : If the Client breaches the Restriction, the Client shall pay to the Vendor an amount equal to the annual base salary payable to the Staff Member by the Vendor immediately before the Staff Member was employed, engaged, retained, solicited, offered employment by or provided goods or services to the Client. It is expressly acknowledged and agreed that the amount referred to in this clause is a genuine pre-estimate of the loss which would be suffered by the Vendor as a result of the Client’s breach of the Restriction.
9.3 Staff Indemnity : If the Vendor provides the services of a Staff Member to the Client, and the Client subsequently provides the services of that Staff Member to a third party customer of the Client (Customer) as part of a business transaction between the Client and the Customer, the Client must take all reasonable steps to ensure that the Customer does not, directly or indirectly, without the prior written consent of the Vendor employ, engage or retain; solicit or attempt to employ; or purchase any goods or services from; the Staff Member. In the event the Customer does employ, engage, retain, solicit, attempt to employ or purchase goods or services from the Staff Member, the Client will pay to the Vendor an amount equal to the annual base salary payable to the Staff Member by the Vendor immediately before the Staff Member was employed, engaged, retained, solicited, offered employment by or provided goods or services to the Customer.
10. Insurance : During the Term of this Agreement, the Vendor will (at its expense and in its discretion) maintain contracts of professional indemnity, public liability and workers compensation insurance for the benefit of itself and in relation to all Clients.
11. Severance : In the event that any provision of this Agreement is declared by any judicial or other competent authority to be void, voidable or illegal, the remaining provisions shall continue to apply unless Vendor, at its discretion, decides that the effect is to defeat the original intentions of the parties, in which case it shall be entitled to terminate the Agreement by serving notice. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.
12. Limitation of Liability : To the full extent permitted by law, all express and implied terms, conditions and warranties (other than those terms expressly set out in this Agreement) are excluded. The Vendor is not liable for any damage, injury or loss to any person or property arising from the provision of products or services. Whether or not the Trade Practices Act 1974 or any laws to a similar effect apply, the Vendor’s liability for anything in relation to the Service Offering, including damage or economic loss, is limited to the maximum extent permitted by law. In any event the Vendor’s liability is limited in all circumstances, including but not limited to a case of negligence, to reimbursement of the Monthly Service Fee paid by the Client for a maximum of 2 months. In no event shall the Vendor’s total liability to the Client for all damages, losses and causes of action (whether in contract, tort or otherwise) exceed 2 months of Monthly Service Fee.
13. Guarantee : The Directors and/or Authorised Officers of the Client agree to accept liability, solely and severally for all debts incurred and any costs whatsoever incurred in collection of such debt/s should the Client fail to comply with the trading terms.
14. Indemnity : The Client indemnifies the Vendor against (a) liability for any death, injury or damage to any person or property arising directly or indirectly from the provision of products or services; (b) any claim for breach of intellectual property rights arising in connection with the provision of services; (c) any loss arising from any part of this Agreement being void, voidable or unenforceable for any reason; (d) anything done by the Vendor in exercise or purported exercise of its rights under this Agreement; (e) any breach by the Client of its obligations under this Agreement including any failure to insure. Each indemnity in this clause is a separate and independent obligation and continues after termination of this Agreement.
16. Rental : Where the Client is provided Rental equipment whether at no cost or for a charge it agrees it will be bound by the RENTAL AGREEMENT TERMS AND CONDITIONS supplied with the equipment as if it were the Rentee and the Vendor the Rentor.