These standard terms and conditions of trade are incorporated into and form part of the IT Support Service Agreement made between the Customer and Future Logic (to which this document is annexed) and a reference in these terms and conditions to the “Principal Document” means that IT Support Service Agreement.
In this agreement the following definitions apply:
2.1The singular includes the plural and vice versa. A word denoting an individual or person includes a corporation, firm, partnership, joint venture, association, authority, trust, state or government and vice versa.
2.2A word denoting any gender includes all genders.
2.3A reference to a recital, clause, schedule or annexure is to a recital, clause, schedule or annexure of or to this agreement.
2.4A recital, schedule or annexure forms part of this agreement.
2.5A reference to any Party to this agreement or any other document or arrangement includes that Party’s executors, administrators, substitutes, successors and permitted assigns.
2.6Where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning.
2.7A covenant entered into or acknowledgment given by or for the benefit of more than one person is deemed to be entered into or given by or for the benefit of those persons jointly and each of them severally and may be enforced against or by any one or any two or more of them.
In this agreement, headings are for convenience of reference only and do not affect interpretation.
4.1The Generated Materials, including any copyright subsisting in any Generated Materials, shall be the absolute property of the Customer, unless otherwise agreed in writing by the Parties.
4.2Future Logic must provide the Customer with all the Generated Materials (including all copies):
4.2.1Immediately, upon the written request of the Customer.
4.2.2Immediately, upon the expiration of the Term or the termination of this agreement.
5.1Subject to clause 4 of the Principal Document, if any dispute or difference arises between the Parties under this agreement:
5.1.1A Party may not commence any court or arbitration proceedings relating to the dispute or difference unless it has complied with the terms of this clause 5, except where the Party seeks urgent interlocutory relief.
(a)Future Logic may at any time; or
(b)The Customer may within 7 days of the date on which the Customer alleges the subject matter of the dispute or difference arose,
by notice in writing to the other Party, specify the nature of the dispute or difference and call for its submission to an independent expert (“the Expert”) for determination.
5.2The Expert shall be as agreed by the Parties or, failing agreement within 7 days after receipt of the notice referred to in clause 5.1.2 above, determined by the President for the time being of the Western Australian branch of the Institute of Chartered Accountants in Australia.
5.3The Expert shall be required to have a reasonable commercial, technical and practical experience in the area of dispute or difference and shall be required to undertake to keep confidential matters coming to his knowledge by reason of his appointment and carrying out of his determination.
5.4The Expert shall have the following powers:
5.4.1To inform himself independently as to facts and if necessary technical matters to which the dispute relates.
5.4.2To receive written submissions, sworn and unsworn written statements and photocopy documents and to act upon the same.
5.4.3To take such measures as he thinks fit to expedite the completion of the dispute resolution including finding adversely to any Party who fails to comply with a timetable reasonably set by him.
5.5The Expert shall act as an expert and not an arbitrator. The determination of the Expert shall be final and binding on the Parties except where the determination requires the expenditure or payment by a Party of a sum exceeding $250,000.00.
5.6Unless the Parties otherwise agree, the Expert will accept submissions from the Parties as to the subject matter of the dispute within 14 days of his appointment and will state his determination in writing within 14 days thereafter.
5.7All costs of the Expert shall be born by the Parties in equal shares.
5.8Regardless of clauses 5.1 to 5.7 above, if the Customer does not within 14 days of receipt of any Future Logic invoice, pay the invoice in full or dispute the invoice in writing, then the Customer may not invoke clauses 5.1 to 5.7 above and the provisions of clauses 4.5 and 4.6 of the Principal Document will apply to the invoice.
6.Conflicts of Interest
6.1Future Logic must not provide any of the Services and will be released from its obligations under this agreement to provide the Services, if by doing so Future Logic may either compromise or give rise to a conflict with:
6.1.1Its duties and responsibilities under this agreement; or
6.1.2The business interests of the Customer, unless Future Logic has obtained the prior written consent of the Customer, which shall be at the Customer’s sole discretion.
6.2The obligations contained in this clause 6 shall not limit Future Logic’s obligations under the general law to act in good faith and with fidelity towards the Customer.
7.1Neither Party may terminate this agreement during the Term except under clauses 7.2 to 7.4 below.
7.2Either Party may terminate this agreement at any time by giving 30 days written notice to the other Party.
7.3Without limiting Future Logic’s rights under this agreement or otherwise, if an invoice rendered under clause 4 of the Principal Document remains overdue (whether in whole or in part) for more than 30 days, Future Logic may at its sole discretion terminate this agreement with immediate effect by giving written notice to the Customer.
7.4Either Party may immediately terminate this agreement with immediate effect by giving written notice to the other if:
7.4.1The other is in breach of this agreement (“Breach”) and has failed to remedy the Breach within 14 days of notice from the other Party outlining the Breach and requesting that the Breach be remedied; or
7.4.2Goes into liquidation, voluntary administration or external control of any kind or commits an act of bankruptcy or becomes insolvent or any court judgment or order for payment of money is made against it and remains unpaid for 7 days.
8.Customer’s Warranties and Obligations
8.1The Customer covenants and agrees that:
8.1.1Future Logic shall be entitled to carry out the Services using such persons and in such manner which, in its absolute discretion, it deems fit provided that it maintains normal industry standards in relation to the provision of the Services.
8.1.2Nothing contained in this agreement shall prevent Future Logic from accepting work from other persons (in this clause 8 “Other Work”) during the Term provided that accepting and carrying out the Other Work does not interfere with Future Logic providing the Services to the Customer.
8.1.3It shall provide a safe working environment for Future Logic, Future Logic’s employees and other persons engaged by Future Logic to provide the Services, whilst on the Customer’s Premises.
8.1.4It shall, at its cost and prior to the Services being provided, properly brief Future Logic, Future Logic’s employees and other persons engaged by Future Logic to provide the Services, on its office procedures and all health, safety and environmental matters relevant to the provision of the Services and the premises in which the Services are to be provided.
8.1.5Future Logic may provide the Services in any one or more of the following manners:
(b)Remote dial-in support.
(d)By other means as agreed by the Parties.
8.2The Customer warrants to Future Logic that:
8.2.1By engaging Future Logic to provide the Services under this agreement; and
8.2.2By Future Logic providing the Services to the Customer under this agreement,
neither Party will be breaching any law or obligation owed to a third party.
The Customer hereby forever indemnifies Future Logic against any loss, costs, damage, liability or expense including legal costs on a full indemnity basis, which Future Logic may incur or suffer as result of, arising out of or in consequence of:
9.1Any breach or default by the Customer of this agreement.
9.2FUTURE LOGIC’s provision of the Services in accordance with the terms of this agreement.
10.Independent Contractual Relationship
The legal relationship between Future Logic (including its employees and other persons engaged by it to provide the Services) and the Customer is not that of employer and employee, partnership or joint venture but is the relationship of principal and independent contractor.
11.1In this clause 11 “Restraint Period” means the Term plus twelve (12) months after the expiration of the Term or the termination of this agreement.
11.2During the Restraint Period a Party shall not without the prior written consent of the other Party, employ or otherwise engage, or procure a third party to employ or otherwise engage, an employee or contractor of that other Party.
11.3If a Party breaches clause 11.2 above, that Party shall pay the other Party liquidated damages fixed in the sum of $20,000.00 or 40% of the annual salary or fee payable to the person poached, whichever is the greatest, immediately upon that breach occurring.
11.4The liquidated damages described in clause 11.3 above are a fair and reasonable estimate by the Parties of the loss and damage which the Party not in breach of clause 11.2 above will suffer in sourcing and training a replacement employee or contractor.
12.Goods and Services Tax
12.1For the purpose of this clause 12:
12.1.1“GST” means goods and services tax within the meaning of the GST Act.
12.1.2“GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (as amended).
12.1.3The terms “acquisition”, “consideration”, “input tax credit”, “taxable supply”, “tax invoice” and “value” have the meanings given those terms by the GST Act.
12.2Except where express provision is made to the contrary and subject to this clause, the consideration payable by any Party under this agreement represents the value of any taxable supply for which payment is to be made.
12.3Subject to clause 12.5, if a Party makes a taxable supply in connection with this agreement for a consideration which under clause 12.2 or clause 12.4 represents its value, then the Party liable to pay for the taxable supply must also pay, at the same time and in the same manner as the value is otherwise payable, the amount of any GST payable in respect of the taxable supply.
12.4If this agreement requires a Party (“the First Party”) to pay, reimburse or contribute to an amount paid or payable by another Party (“the Other Party”) in respect of an acquisition from a third party for which the Other Party is entitled to claim an input tax credit, the amount required to be paid, reimbursed or contributed by the First Party will be the value of the acquisition by the Other Party plus, if the Other Party’s recovery from the First Party is a taxable supply, any GST payable under clause 12.3.
12.5A Party’s right to payment under clause 12.3 is subject to a valid tax invoice being delivered to the Party liable to pay for the taxable supply.
13.1Future Logic will at its sole cost arrange and maintain the following insurances:
13.1.1Workers compensation insurance and employer’s liability insurance in relation to its servants and agents engaged to provide the Services to the Customer.
13.1.2Professional indemnity insurance covering Future Logic, its servants and its agents including cover against liability under the Trade Practices Act 1974 and similar State or Territorial legislation.
13.2The Customer will at its sole cost arrange and maintain public liability insurance in respect of personal injury, death or property damage including such cover for Future Logic, its servants and its agents whilst they are on premises controlled by the Customer.
13.3A Party may request the other Party to produce such insurance policies and receipts of premium notices to ensure the currency and adequacy of the insurance cover provided in clauses 13.1 and 13.2 above.
13.4The Parties must not do or fail to do anything, or allow anything to be done or not done which may:
13.4.1Increase the cost of any of the insurance cover provided in clauses 13.1 and 13.2 above.
13.4.2Compromise the other Party’s ability to successfully claim under any of the insurance cover provided in clauses 13.1 and 13.2 above.
14.1This agreement shall be governed by and construed in accordance with the laws of Western Australia, each of the Parties submit to the exclusive jurisdiction of its courts and any disputes will be litigated in the Perth courts.
14.2This agreement may be altered only in writing signed by Future Logic and the Customer.
14.3A notice to be given by a Party to the other Party under this agreement shall:
14.3.1Be in writing;
14.3.2Give the address of the recipient as set out in this agreement or as varied by written notice from time to time;
14.3.3Be left at or sent by pre-paid ordinary post to that address or by fax to the Party’s fax number provided in this agreement or such other fax number as may be advised in writing from time to time; and
14.3.4Be deemed to be served on the day of delivery, receipt by fax or three (3) days after the date of posting by pre-paid ordinary post, as the case may be.
14.4The Parties may not assign their rights or obligations under this agreement.
14.5Clauses 3.2, 4, 5, 6 and 8 of the Principal Document and clauses 4, 5, 8.2, 9, 11, 12 and 14.1 of these standard terms and conditions of trade survive termination of this agreement. Any other clause which by its nature is intended to survive termination of this agreement, survives termination of this agreement.
14.6This agreement may be executed in any number of counterparts each of which is an original (including a facsimile copy) and all of which constitutes one and the same instrument.
14.7This agreement constitutes the entire agreement between the Parties in connection with its subject matter and supersedes all previous agreements or understandings between the Parties in connection with its subject matter.
14.8Each Party must do, at its own expense, everything reasonably necessary (including executing documents) to give full effect to this agreement and any transaction contemplated by it.
14.9A clause or part of a clause of this agreement that is illegal or unenforceable may be severed from this agreement and the remaining clauses or parts of the clause of this agreement continue in force.
14.10A Party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the Party giving the waiver.
14.11A public announcement in connection with this agreement or any transaction contemplated by it must be agreed by the Parties before it is made, except if required by law or a regulatory body (including a relevant stock exchange), in which case the Party required to make an announcement must, to the extent practicable, first consult with and take into account the reasonable requirements of each other Party.
14.12References in this agreement to $ or money shall be deemed to be references to denominations of Australian currency.
14.13The Customer and the Guarantors acknowledge and agree that:
14.13.1This agreement has been prepared by Future Logic at their request.
14.13.2They have been invited to obtain independent legal advice on this agreement.
14.13.3They will be bound by the terms and conditions of this agreement whether or not they have obtained such legal advice.
14.13.4They have executed this agreement freely and voluntarily and without any threats or coercion.
15.Information regarding this legal contract
15.1This “Future Logic Services Terms and Conditions” is a legal contract binding the Customer and Future Logic. The Customer automatically accepts this legal contract by making a purchase, placing an order, or otherwise paying for services. The terms and conditions of this Legal Contract are subject to change without prior notice, except that the terms and conditions provided at time of order / or modification or order by the customer will govern the order in question.
15.2This Legal Sale Contract constitutes the entire agreement between the Customer and Future Logic relating to the purchase or sale of goods or services. In the event of any conflict between terms and conditions listed on this Legal Contract / any terms and conditions on our invoice and your purchase order terms and conditions, you agree that the provisions of this Legal Contract and our invoice shall overrule.
"Future Logic have been a valued and trusted partner with us for 10 years. Future Logic’s services directly compliment the products and services that we provide and have a wealth of experience in the IT sector - from consulting, project management, training and install and migration services. They are a flexible company and I highly recommend Future Logic and their services."
Large distribution and service centre, Perth
"Future Logic have been supporting our business for over 5 years. As consultants, any issues where we are unable to connect to our clients infrastructure means loss of revenue for us. The team at Future Logic provide us with a professional level of service and support that not only gives us the confidence that we have a robust network, but more importantly the ‘peace of mind’ that if an issue does occur, they are onto the problem immediately.
The monthly Proactive Support arrangement we have with Future Logic is not only cost effective for an organisation of our size, but also gives us the understanding of where we need to focus attention to ensure no day goes by without our network."
Far Data Solutions, Perth
"Being a small business, it’s important for us to be able to rely on our business partner’s. Future logic have always provided us with excellent service and no fuss solutions to help our business focus on what we’re good at.
Our regular Proactive and on-call support has proved a perfect, cost effective solution to our business needs. I highly recommend Future Logic and their services."
Leading supplier of architectural products, Perth
"We decided to get Future Logic involved in assisting us to get the IT side of the Perth office up and running towards the end of 2010.
Future Logic did an outstanding job for us in helping us determine our needs and also where best to purchase equipment needed. They were always quick to respond and gave clear and understandable answers to questions.
Future Logic provides our local IT support and we know we can always reply on them for quick response times and solutions that work for us. They have not disappointed us once so far. They are proactive in setting up schedules and being there for us. I definitely recommend Future logic as an IT support and development team."
world renowned engineering firm, Perth
"We have been using Future Logic for approximately two years now. When Future Logic came on board, due to the inefficiency of our previous IT support, our network was in quite a state! Future logic assessed our entire situation and gave us a rundown of what we needed to do to get things running properly. They also provided us with a plan of action as to how the issues should be resolved (in order of importance) over the next few months.
Over the months our system has become so much more reliable and we believe we have definitely made a good move in getting Future Logic on the job! Their technicians are very knowledgeable and helpful and the support team always respond quickly to our requests, especially when we have an urgent situation. Management is also on hand and happy and willing to sort out any matters that require their attention.
We highly recommend Future Logic as a reliable one stop shop for all your IT needs.
Settlement Agent/Office Manager
Leading law firm, Perth