Terms Of Trade

The terms of trade below is an important document that is required reading before accepting a quote from Creydall Systems Pty Ltd. It protects you as much as Creydall Systems Pty Ltd by outlining the conditions under which we choose to operate as a business. A copy of the terms of trade is also available as a downloadable PDF.

INTRODUCTION This form is designed in plain English so that it is easy to understand. If you are unsure of any area, we encourage you to either speak with a solicitor or contact us prior to requesting any work be completed for clarification. While being in plain English, it is relating to a commercial relationship where money changes hands. This means this document is intended to be a legal document. All disputes regarding this Agreement shall be governed by the laws of the state of South Australia. The parties agree that the Courts of South Australia shall have jurisdiction over any legal disputes arising from this Agreement. This document is designed to help you understand some of the common misunderstandings that can happen when engaging an I.T. company to work for you and attempting to avoid problems relating around invoicing, payment and both your responisbilities to Creydall Systems and our responsibilities to you, the client. One of the common issues we face is the amount of hours that are to be authorised for the job or project to be complete. We require an authorised amount of time that a client is willing to spend on any particular task. We often find that clients may have an initial amount of time they think a particular job is going to take in their mind, this may or may not be based on the reality of the situation and Creydall Systems needs to flag any unrealistic expectations prior to the task going ahead. During periods of great stress such as when a server is unavailable, we often hear “we don’t care how long it takes, just get it fixed” This lasts until the invoice arrives and then questions are raised over why things took so long. For urgent troubleshooting especially where servers are concerned, we must obtain a signed form from someone authorised within your organisation detailing the number of hours you are prepared to have the task worked on. The Minimum hours authorised for an urgent server repair must be a minimum of 20 hours. There also needs to be a resolution plan so that if we reach the upper limit of time you are prepared to spend on the task, we have been given sufficient instructions on what to do once that time has been exhausted. CREDIT TERMS - LABOUR 1 Labour - All invoices have “Net 30 Days” unless prior arrangements have been made & will be printed clearly on the top of both invoices & quotes. All invoices are sent via e-mail. 1.1 “Net 30 days” begins from the day that the invoice leaves our our office. If an invoice becomes lost or misplaced, nothing changes and the original “net 30 days” applies from the date the invoice was originally sent. 1.2 “Net 30 Days” means that the funds are cleared and in our nominated business account on or before the last day of the month, after the month of supply and invoicing. If you are sending a cheque or depositing via direct credit then it is your responsibility to allow enough time so that the funds clear before the limit has expired. 1.3 Phone Call - A phone call is placed to your office within 7 days of your account being overdue. You should expect this phone call anywhere between 1 & 7 days from when your account becomes overdue. 1.4 First Reminder - A first reminder is sent 10 days after your account becomes overdue and a 6% administrative charge based on the total invoice amount is added to the account and then 6% on the original amount for each month it is overdue. This covers a small part of the administrative overhead and lost interest we incur due to late payments. 1.5 Final Reminder - At 45 days a final reminder process is triggered. We send an email and follow up with a phone call explaining that future service will not be possible until the account is paid in full. This will include any ongoing services such as antispam, antivirus and backup services. There will also be a reconnection fee of $150 for services that have been disabled that must be prepaid. You may also find that other services such as incoming and outgoing email could be effected when our services are disabled. 1.6 Pre-Lodge Final Notice - At 55 days we send a Pre-lodge final notice from the court with the intention of obtaining the outstanding amount, this is the precursor to formalised proceedings to obtain the amount outstanding. You may be accountable for the cost of this procedure. 1.7 More than two instances of invoices extending over the 45 day mark in a 12 month period will lead to Creydall Systems Pty Ltd initiating the following procedures to minimise our risk: 1.8 Prepaid work only being carried out. We will require a minimum 10 hour block of time to be purchased prior to work being carried out. Due to the increased risk, Creydall Systems will bill out at the higher rate of $165 per hour. 1.9 Goods Supplied - Payment is due at the time the quote has been accepted. Funds must be cleared in our account prior to goods being ordered unless prior arrangements have been made. 1.12 Projects - A 60% down payment on the total estimated quote is required prior to commencement of the project. 40% is due on completion. A signed set of measurable objectives is required prior to any project going ahead. INVOICE DISPUTES 2 Invoice Disputes - Invoices in dispute must still be paid in full by the due date. Disputes with invoices must be reported no later than 7 days after after the invoice has been received. The reason that disputes must be raised as soon as possible is because of the complex nature of computer faultfinding. There are normally hundreds of steps and multiple reasons for attempting a particular course of action on a modern computer system. While we pride ourselves on detailed documentation, it is not fair or reasonable to expect representatives of Creydall Systems Pty Ltd to give detailed accounts of complex tasks undertaken in the distant past. To give a dispute the best possible chance of being resolved & in a time effective manner, it needs to be raised within a short time frame of the work being undertaken. 2.1 Our services are based on time taken to complete and not on a resolution. Unless negligence is proven, we will not entertain any invoice reduction based on a job “taking too long” 2.2 All Invoice disputes must be raised within 25 days of the Invoice being sent. Invoice disputes must be written (email is acceptable) and have the following details: a) - Invoice number & date of issue b) - Disputed amount c) - Undisputed amount d) - Details of Dispute e) - Category of Dispute (incorrect charges, no authorisation etc) 2.3 At our discretion we may direct you to submit any billing disputes using a prescribed Billing Dispute Notice which may change from time to time and be in electronic format. 2.4 We do not accept verbal disputes. 2.5 For the avoidance of doubt the parties acknowledge and agree that: i) An Undisputed Amount cannot be withheld for any reason (including without limitation when that amount is on an invoice with a Disputed Amount) (defined below). ii) Only invoicing Disputes can trigger the invoicing Disputes Procedure (and the potential right to withhold payment of Disputed Amounts from us) iii) invoicing Enquiries and Complaints are not invoicing Disputes and do not trigger the invoicing Disputes Procedure. INVOICE DISPUTE PROCEDURE 3 Notice of Dispute - In the event that you reasonably believe that you are not liable to pay a Charge in an Invoice, you may lodge a Invoicing Dispute Notice up to 25 days from the date the relevant Invoice was first sent to you. 3.1 For the avoidance of doubt and in accordance with the Agreement, you cannot dispute a Charge on the basis that you did not authorise the particular use of the Services by another person. 3.2 Witholding Payment - If you deliver the Invoicing Dispute Notice at least 5 Business Days prior to the Due Date of the Invoice you may withhold payment of the Disputed Amount otherwise you must pay the Disputed Amount and the Undisputed Amount (as defined below) by the Due Date in accordance with the terms of the Invoicing Disputes Procedure. 3.3 Continuing Obligations - Subject to clause 3.1 above, the rights and obligations of each party under the Agreement continue pending resolution of a Invoicing Dispute invoked under this Invoicing Disputes Procedure. For the avoidance of doubt we continue to have the right to terminate or suspend the Service in accordance with our rights under the Agreement. 3.4 Rejecting Invoice Dispute Notice - We have the right to reject a Invoicing Dispute Notice and will have no further obligations in relation to that Invoicing Dispute Notice if: a) The Invoicing Dispute Notice is not received by us within 25 days from the date of the relevant Invoice. b) The Invoicing dispute Notice does not contain all of the information set out in section 4 a to e. c) You have not made payment in accordance with section 2.2 of this Procedure and do not have a right to withhold payment under South Australian law. d) We have confirmation from you that the dispute has been successfully resolved. e) You are disputing the Charges on the basis that you did not authorise the particular use of the Services by another person f) We reasonably believe that you do not have a bona fide dispute in relation to the Charges. 3.5 Responding to Invoicing Dispute Notice - We will within 10 days of us receiving the invoicing dispute notice respond or notify you of a date upon where we will respond. 3.6 Right to Dispute - If you fail to pay any part of an invoice by the date it becomes due and have not already submitted an invoice dispute then you forfeit the right to dispute the invoice until such time as the invoice has been paid in full. 3.7 Collection Costs - The Client will be liable for all reasonable collection costs (including any legal fees) Creydall Systems Pty Ltd may incur to collect the amount outstanding. CREDIT TERMS 4 Engineer Rates - Our engineers are hired out onsite at the following rate multiples charged in 6 min increments: a) 8:30am-5:30pm M-F x1 STD hourly rate b) 5:31pm-9:00pm M-F x1.5 STD hourly rate +$150 callout c) 9:01pm-8:29am M-F x2 STD hourly rate +$150 callout d) Weekends & Public Holidays x2.5 STD hourly rate + $250 callout + 8 Hour minimum 4.1 Urgent Works - Our profession will often see us being called out at short notice. If we have no ongoing service agreement with your company then our response will be best effort only. Our consultant or support staff will take you through our “Urgent works” request form which asks you to give us an upper limit of time you are prepared to spend on the job and what your plan is once that time has been reached. This will need to be signed by an authorised staff member within your business prior to work on the task commencing. 4.2 Onsite Billable Time - Consultants are billed workshop to workshop. This means from the time our consultant leaves the office to the time they arrive back at the office is billable at the full rate. If the consultant leaves your office to attend another client then we will bill up to the time the consultant leaves your office. 4.3 Remote/Phone/Email support - Are subject to a minimum 15 min charge. Services are then charged in 6 min increments. 4.4 Minimum Time Onsite - There is a minimum 1 hour charge for an onsite visit during the working week. 4.5 Call out Fee - We do not charge callout fees during normal business hours (4a) 4.6 Time Onsite - Clients will be invoiced for the entire time a consultant is onsite, even if for either part or all of the time onsite there are circumstances outside our representitives control that prevents them undertaking the task for which they were called out to perform. 4.7 - If a circumstance has developed which prevents the Creydall Systems Pty Ltd representative from completing either some or all of their work. It is the clients responsibility to determine if the task needs to be completed at another time and to ensure that it is made clear that the representitive is no longer required. 4.8 Monthly service fee - If you are on a monthly service fee, we can only bill in monthly increments. If you intend to terminate a particular service with us then please ensure you let us know in writing prior to the 1st of the month. This will ensure you are not invoiced for another month of service. 4.9 Our monthly service cycle starts on the first day of the month and ends on the last day of the month. CLIENT GUARANTEE 5 Client Guarantee - If the client is a partnership or a company, then the person authorising the work for the client personally guarantees either verbally or in writing to Creydall Systems Pty Ltd that the debt will be met by the client when it falls due, and indemnifies Creydall Systems Pty Ltd against any loss it may suffer as a result of the clients failure to pay. 5.1 The client guarantees to Creydall Systems Pty Ltd that the person authorising the work has authority or has sought the permission to authorise the work and to bind the client to the terms and trade stated within this document. If the client has any payments that are overdue then services delivered by the service provider under this agreement will be suspended until outstanding monies are paid in full. 5.2 Limitation of Liability - In no event shall Creydall Systems Pty Ltd be held liable for indirect, special, incidental or consequential damages arising out of service provided hereunder, including but not limited to loss of profits or revenue, loss of use of equipment, lost data, costs of substitute equipment, or other costs. RESERVATION OF TITLE 6 Reservation Of Title - All deliveries are subject to reservation of title. Until payment is received for a product, this product remains property of Creydall Systems Pty Ltd. The reservation of title is our security of payment for orders per invoice. In case of cheque payment, the goods are property of Creydall Systems Pty Ltd until the cheque is cleared. 6.1 The purchaser is entitled to further sale of the object, as long as the business dealings have been absolved correctly & all outstanding debts to Creydall Systems Pty Ltd relating to the object are paid in full. 6.2 The payment demands of the purchaser arising through the further sale of the products will be due to Creydall Systems Pty Ltd, regardless of the status of the product. In the case that the reserved articles are sold, whether altered or not, together with products not belonging to Creydall Systems Pty Ltd, the payment demands of Creydall Systems Pty Ltd shall be made according to value relation of the Creydall Systems Pty Ltd products. 6.3 Reservation of title is applicable until the products are paid for in full, after which the reservation of title shall be passed on to the purchaser, and all demands made by Creydall Systems Pty Ltd are no longer applicable. 6.4 Reservation of title extends to both physical objects as well as activities involving Intelectual property. Examples although not restricted to the following are web sites, database design & software development. PROPERTY & RISK 7 Property and Risk - Risk in the goods passes to the Client on delivery. Ownership of goods does not pass from Creydall Systems Pty Ltd until: 7.1 The invoice relating to the goods has been paid in full 14c) No other amounts whatsoever are due by the client to Creydall Systems Pty Ltd 7.2 Until property in the goods passes to the client, the client shall hold the goods as bailee for Creydall Systems Pty Ltd. 7.3 The client must at Creydall Systems Pty Ltd request, return the goods to Creydall Systems Pty Ltd. 7.4 Creydall Systems Pty Ltd may enter the premises owned, occupied or otherwise controlled by the Client where the goods are situated (without liability for trespass or resulting damage) and retake possession of the goods if the Client fails to deliver the goods to Creydall Systems Pty Ltd. SOFTWARE 8 Software provided or installed is subject to the terms and conditions of the license agreement that relates to that software. The Client acknowledges its obligations to abide by such license agreements. 8.1 The Client acknowledges that Creydall Systems Pty Ltd does not warrant any entitlements to any software license under these Terms and Conditions. 8.2 The Client agrees that it bears the onus to ensure that all software provided for installation is properly licensed and bears all liability for any act, omission, penalty or damage arising from its failure to obtain or adhere to any such license including indemnifying Creydall Systems Pty Ltd for any such penalty or charge. 8.3 All rights, title or interest in respect of the intellectual property rights in the software remain with Creydall Systems Pty Ltd or the licensor of the software at all times unless otherwise granted to the Client by Creydall Systems Pty Ltd or the licensor (as applicable). WARRANTY & QUALITY 9 Except where prohibited by law, this warranty overrides all relevant Federal, State and Territory legislation. All liability is excluded where such liability is consequential or arises out of (or in respect of) the supply, re-supply, or use of the Goods or Services. 9.1 Creydall Systems Pty Ltd warrants that the Goods supplied will be of a merchantable quality. Any liability howsoever arising out of or in respect of the supply, re-supply or use of the Goods or Services is expressly excluded, including but not limited to loss of profits or consequential loss. 9.2 To the extent permitted by law, Creydall Systems Pty Ltd and Client agree that Creydall Systems Pty Ltd will not be liable for Goods or Services or the Client’s email or computer system generally not being available for use, or interruption to its business or inability to access data or for data or software which is lost, corrupted, deleted or altered. Creydall Systems Pty Ltd shall not be liable to the Client for any incidental, indirect, special or consequential damages arising out of or in connection with the purchase, use or performance of Goods or Services. 9.3 Any service response times stated by Creydall Systems Pty Ltd in the service contracts are approximate only and Creydall Systems Pty Ltd shall not be liable for any direct or indirect loss or damage arising from its failure to meet such response times, howsoever occasioned. 10 This Warranty and any liability on the part of Creydall Systems Pty Ltd does not cover damage, fault, failure or malfunction due to external causes, including accident, abuse, misuse, problems with electrical power, servicing not undertaken by Creydall Systems Pty Ltd, usage and/or storage and/or installation not in accordance with instructions, failure to perform required preventive maintenance, normal wear and tear, act of God, fire, flood, war, act of violence or any similar occurrence or any unauthorized access to the Client’s computer system or data. 10.1 Any attempt by any person other than Creydall Systems Pty Ltd personnel to adjust, repair or support the Goods or Services performed by Creydall Systems Pty Ltd will render any warranty void including in respect of problems caused by use of parts and components not supplied by Creydall Systems Pty Ltd or Services rendered by such personnel or its effect upon the Goods or Services performed by Creydall Systems Pty Ltd or the Client’s computer system generally. 10.2 If the Client complains that the Goods are not of merchantable quality or otherwise in respect of the Services performed by Creydall Systems Pty Ltd then provided the Client makes a detailed written complaint to Creydall Systems Pty Ltd within 7 days of receipt of the Goods or performance of the Services the subject of the complaint, Creydall Systems Pty Ltd may, at its option, as full compensation for such loss (including any loss of profits and consequential loss caused by an act or omission - including negligent acts or omissions of Creydall Systems Pty Ltd or agents) but without admission of liability, either: (a) replace the whole or part of such Goods (but not the materials or containers that contains such Goods), (b) confer a credit note, or (c) provide additional services performed by Creydall Systems Pty Ltd at no additional charge. (d) refund the amount paid by to the extent not exceeding the invoice price of the Goods or Services, or (e) pay to the Client some part of the invoice price. 10.3 The Client acknowledges as a paramount term that Creydall Systems Pty Ltd is not, on any basis, required to pay or compensate the Client in an amount exceeding the invoice price of the Goods or Services. ADVICE PROVIDED 11 Any advice, recommendations, information or technical assistance in relation to the Goods and Services (“Advices”) provided by Creydall Systems Pty Ltd(or its agents) in relation to the Goods and Services is given in good faith and is believed by Creydall Systems Pty Ltd to be appropriate, accurate and reliable. The Client acknowledges that it has not relied upon such Advices and that the Client has had adequate time to take and rely either on its own advices or alternative advice. 11.1 Should Creydall Systems Pty Ltd receive material and/or goods supplied by the Client into which the Goods supplied by Creydall Systems Pty Ltd are to be contained or for any purpose relating to the use of the Goods, all such materials and/or goods are provided at the risk of the Client. 11.2 Creydall Systems Pty Ltd costs structure is based upon the assumption that clean, quality components are supplied by the Client. If during the course of works a quality problem arises due to components supplied by the Client, Creydall Systems Pty Ltd reserves its rights to charge a surcharge to cure the quality problem and/or refuse to provide ongoing Services. 11.3 Creydall Systems Pty Ltd will take all reasonable care with all components or materials (including software and data) supplied to it by the Client, however such items are not insured by Creydall Systems Pty Ltd and remain at the Client’s risk at all times. 11.4 Notwithstanding any Advice provided to the Client by Creydall Systems Pty Ltd, the Client must independently of Creydall Systems Pty Ltd take all reasonable steps and other enquiries to satisfy itself that the Advice provided by Creydall Systems Pty Ltd is, for all purposes and under all conditions, suitable for the Client’s requirement. 11.5 If the Client fails to pay any invoice on the basis that; (a) the Goods were not fit or of merchantable quality purpose, (b) the Services were not completed adequately or at all; or (c) the Goods or Services were not compatible with the computers or requirements of the Client; then the Client agrees that it will have no entitlement to make any claim against Creydall Systems Pty Ltd its servants or agents under these terms or conditions or otherwise unless and until full payment of all outstanding invoices and any costs has been paid on full. CONFIDENTIAL INFORMATION 12 If the Customer breaches any of these terms and conditions, including any misuse of Creydall Systems Pty Ltd proprietary or confidential information, Creydall Systems Pty Ltd reserves its rights to commence immediate legal proceedings without further notice to the Customer including urgent injunctive relief where appropriate. 12.1 All of the obligations concerning confidentiality created by these Terms and Conditions are continuing obligations of the Customer and are ongoing notwithstanding completion of services or termination of any relationship between the parties. CREDIT CHECKS & PRIVACY 13 Any Individual or Company requiring credit terms may be subject to a credit assessment, verification of personal details and employment check. 13.1 You authorise us to disclose to a credit reporting agency information such as your name, address and other details which identify you; the fact that you have applied for a service requiring credit; payments that are more than 55 days overdue and for which debt collection action has started; cheques drawn by you or credit card payments that have been dishonored; information that in our opinion you have committed a serious credit infringement (that is, acted fraudulently or shown an intention not to comply with your credit obligations) and advice that payments are no longer overdue. 13.2 You agree that for the purpose of assessing your application we may obtain from a credit reporting agency a credit report containing information about your personal creditworthiness. You also agree to us conducting a credit check in relation to your business or commercial activities (if any) or your commercial creditworthiness for the purpose of your application. We can also conduct these credit checks for the purpose of collecting any overdue payments. 13.3 We will use your information to create and maintain your account and provide you with services. We may share in accordance with the Privacy Act 1988 (Cth) your information with others including our agents, franchisees, contractors and successors of our business, other providers of Information technology services, or to any other party where required by law. MISCELLANEOUS TERMS 14 The rights and obligations of the parties in respect of agreements, indemnities, covenants and warranties contained in this document: (a) are continuing agreements, covenants, indemnities and warranties and accordingly, (b) are not merged or extinguished by the partial performance by a party of their obligations under this document, and will remain in full force and effect until the obligations of all parties under this document are discharged in full. 14.1 Each of the parties agree that they will execute and deliver such further documents at their own expense as they may reasonably be requested by any other party to properly and fully effect the purpose of this document. 14.2 If the Customer wishes to commence proceedings against Creydall Systems Pty Ltd (or file any cross claim in proceedings commenced by Creydall Systems Pty Ltd) in respect of the Terms and Conditions, the Goods or Services or any matter directly or indirectly arising out of the Terms and Conditions or the Goods and Services, then prior to the commencement of such proceedings or the filing of such cross claim, the Customer must as (a) security for the legal costs of Creydall Systems Pty Ltd, and/or (b) security for any award or judgment that may be awarded in favor of Creydall Systems Pty Ltd against the client First pay into the relevant Court in South Australia as security on a non admission basis that sum which is the higher of $20,000 (twenty thousand dollars), or 75% of the whole of any then unpaid invoices owing to Creydall Systems Pty Ltd (notwithstanding that such invoices may be disputed, or the subject of a set off or other claim by the client). 14.3 No waiver by any party of any default in the strict and literal performance of or compliance with any provision, condition or requirement herein shall be deemed to be: (a) a waiver of strict and literal performance of and compliance with any other provisions, conditions, or requirement herein; (b) a waiver of or in any other manner release any party from strict compliance with any provision, condition or requirement in the future. 14.4 This document: (a) is governed by the law of the State of South Australia and each of the parties irrevocably submits to the nonexclusive jurisdiction of the State of South Australia; (b) shall endure for the benefit of and be binding upon the parties hereto and their respective successors and assigns; (c) constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes and extinguishes all prior agreements or deeds and understandings between the parties. AD-HOC & PROJECT WORK 15 Performing work on a Time and Materials basis allows work to progress when there is a large amount of uncertainty on how long the specific goal will take. 15.1 This is typically the case during urgent fault finding jobs where time to rectify is a high priority for the client. 15.2 Creydall Systems Pty Ltd may agree to undertake work on a Time and Materials basis and may provide an estimated amount of effort to complete this work. 15.3 These estimates are not binding and are a best guess only. All hours actually spent will be charged. 15.4 If, during the course of Time and Materials work, Creydall Systems Pty Ltd determines that the work will require substantially more effort than estimated, Creydall Systems Pty Ltd will advise the Client who may then choose not to complete the work. 15.5 In this case, all effort spent on the work up to this point will be charged to the Client.