EMAIL TERMS AND CONDITIONS
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TRADING TERMS AND CONDITIONS
The following are the Terms and Conditions under which Myriad Technologies Pty Ltd A.C.N. 126 200 771 and A.B.N. 50 126 200 771 ("Myriad") sells hardware, packaged software and software licences (collectively referred to as "Products") and supplies services. Third Parties manufacture the Products, and Myriad provides services on a time-and-materials or fixed price basis to suit the requirements of the Client (the Client). Product Descriptions provide additional terms and conditions and form an integral part of the Terms and Conditions under which Products are sold.
1.0 PURPOSE OF GOODS
Except where a purpose has been agreed to in writing between the Client and Myriad, Myriad does not warrant the suitability of Products or Services for any particular purpose not made known to Myriad.
Products are not intended for direct control of nuclear facilities, air traffic, mass transport, or life support applications. For these applications, Myriad requires additional contractual safeguards that will be negotiated on a case-by-case basis.
Unless otherwise stated in writing, prices exclude taxes including goods and services tax (GST).
It is the Client's responsibility to obtain exemption from duties or taxes by notifying Myriad in writing when submitting the Client's Purchase Order.
Prices of Products do not include freight from the Myriad office (or that of their suppliers) and insurance to the delivery address. The risk of loss or damage to Products passes to the Client once the delivery of Products has left our office (or that of our suppliers).
4.0 TERMS AND INVOICING
4.1 Terms of Payment
Terms are net fourteen (14) days from date of invoice provided the Client maintains credit arrangements satisfactory to Myriad. Otherwise, terms are cash on delivery.
4.2 Invoicing Terms
Products will be invoiced on delivery to the Client. Invoicing frequency is dependent on the quoted value of fixed price contracts or upon a prior agreed statement of work containing project milestones. Invoicing will occur on milestones not exceeding FOURTEEN (14) day intervals. In the absence of agreed milestones, Myriad will invoice for its estimate of the value of works performed on a fortnightly basis. Charges for Services provided on a time and materials basis will be invoiced fortnightly in arrears. Milestones in regards to Products shall be: On order – 30% of total cost, on delivery – 70% of total cost unless other credit arrangements are entered into.
4.3 Review of Pricing
Charge rates for services provided on a time and materials basis are firm for the fixed charge term agreed in the relevant contract. If no fixed charge term is agreed upon, then a period of three (3) months from the date of quotation shall apply. At the end of this period, prices may be adjusted by Myriad in accordance with the then prevailing rates as specified in Myriad's "Fee Schedule for Services" which is made available on request.
4.4 Additional Services outside standing contract
If services are provided by Myriad consultants (being Myriad employees or Contractors to Myriad) at the Client's request, but such services are outside the scope of any standing agreement, those Services will be charged at Myriad's then prevailing rates as specified in Myriad's "Fee Schedule for Services" and be subject to these terms and conditions.
4.5 Fixed Cost Consulting
Where Myriad and the client enter into an agreement for a fixed number of consulting hours; Myriad will charge at Myriad's then prevailing rates for consulting services once the time spent exceeds 110% of the proposed allocation of resources, should the increased time spent be due to factors outside the influence of Myriad Consultants (being Myriad employees or Contractors to Myriad).
4.6 Engineering Records
Myriad's staff providing Services are required to record hours worked and activities performed. If required, a copy of the Engineering Record can be periodically supplied to the Client for authorisation.
4.7 Incidental Expenses
Myriad will invoice incidental expenses on Services work, in a summarised form, on invoices at cost. Where the Client requires copies of vouchers or receipts to be appended to invoices the expenses will be invoiced at cost plus a $25 handling fee.
5.0 PAYMENT DELAYS
5.1 Withdrawal of Services
If the Client fails to make a payment properly due under this contract, Myriad will advise the Client in writing of its intention to suspend the services. If payment is then not made within seven (7) days, Myriad will suspend Services until such payment is made to Myriad. Any dates stated in the Project Management Plan or Statement of Work will be extended for a like period.
5.2 Debt Recovery Expenses
Clients shall be liable for interest charges calculated at the prevailing overdraft reference rate of the National Australia Bank (published every Monday) plus two percent for fair debts unpaid to Myriad by their due date. Such charges will be calculated on a daily basis beginning on the due date. The Client shall be liable to Myriad for all costs and disbursements incurred by Myriad for recovery of any debts not paid by the due date including any legal costs on a solicitor/own client basis.
5.3 Title of Goods
Title in Products sold to the Client by Myriad does not pass to the Client until Myriad is fully paid for these Products.
6.0 SITE POLICY AND INSTALLATIONS
The Client shall make available a safe and suitable place for installation of Products in accordance with the applicable Myriad installation and site preparation procedures.
Myriad will only install products if the applicable quotation states that installation is included in the price. Installation and acceptance shall be deemed completed upon successful conclusion of Myriad's (or where Third Party Products are installed, the Third Party's) standard test procedures. Installation of field-installed Products shall be the responsibility of the Client except when the Client agrees to pay Myriad for the installation. Myriad shall be under no obligation to install Products unless:
They have been properly treated after delivery by Myriad to the Client All pre-requisite products are provided by the Client and the installation site is properly prepared by the Client The Products, pre-requisite products and site are made available to Myriad within seven (7) days after delivery.Installation of Products shall be the responsibility of Myriad or the Client as specified in any applicable Product Description or contract of sale. If Myriad performs the installation, then this shall be in accordance with such Product Description or contract of sale.
7.0 WARRANTY & LIABILITY
7.1 Hardware Product Warranty
Hardware Products are warranted against defects in workmanship or material for a period as specified by the third party supplier.
7.2 Services Warranty
Myriad warrants that Services will be performed in a workmanlike manner and in accordance with the Project Management Plan agreed between the parties. If Myriad accepts that a Service was not so performed then Myriad will:
Not charge for the activities performed to an unreasonable standard. At the client's discretion, supply an alternative Myriad Consultant to perform the contracted Services.
The stated warranties are contingent upon proper treatment and use of Products and maintenance of a safe and suitable environment by the Client.
To the maximum extent permitted by law, any conditions or warranties, imposed or implied by statute or otherwise are excluded. You may have the benefit of certain rights or remedies pursuant to the laws of the Commonwealth (including the Trade Practices Act 1974), State or Territories. Nothing in this Agreement excludes, restricts or modifies any condition, warranty or liability, which is implied by the law where to do so is illegal or would render any provision of this Agreement void. You acknowledge that we do not manufacture the Equipment, nor do we represent the manufacturer or the Vendor.
8.0 SOFTWARE PRODUCT LICENCE
All software Products, (including any customised derivations, updated versions and parts thereof) ("Software") are sold subject to the terms of Software licence agreements ("Software Licences") which govern the ownership and use of Software and which may modify or supplement these Terms and Conditions.
In the event of a conflict between these Terms and Conditions and those expressed in the applicable Software Licence, other than in respect to Clause 13 hereof, the Terms and Conditions in the Software Licence shall prevail.
9.0 PROVISION OF ON-SITE SERVICES
With respect to the provision by Myriad of on-site Services (being those services that Myriad provides at the Client's site), the Client:
Will provide at no charge to Myriad a reasonable secure work space with adequate heat and light, suitable lockable storage facilities, access to a local telephone, operating supplies and scratch media as required and a current backup copy of the operating system and other applicable programs and data, as may be reasonably required for the performance of Services and Will have a representative present during the provision of Services, and Will not impose any unreasonable restrictions or impose any liability provisions as to site access and equipment usage requirements. Will ensure that all laws, by-laws and notices that affect the provision of on-site services are complied with.Myriad may terminate or refuse to provide on-site Services without penalty when, in the reasonable opinion of Myriad, conditions at the service site represent a hazard to the safety or health of any Myriad Consultant providing Services.
For Services provided by Myriad to the Client via Remote Diagnostic or Terminal Services facilities, the Client:
Will allow Myriad Consultant full and unrestricted access as may be reasonably required to all communications facilities, at no charge to Myriad, and will provide and bear the costs of Myriad specified terminal ports and/or modems, when required.
10.0 MYRIAD'S PROPERTY
Documentation, schematics, maintenance materials, tools, hardware, Site Management Guides, test equipment, diagnostic hardware and Software and associated media which are to be used by Myriad personnel at the Client's site, and which have not been expressly sold or licensed to the Client shall remain the exclusive property of Myriad and shall be for the sole use of Myriad.
10.1 Training courseware and other materials
Course manuals, lab manuals, training outlines, virtual machines and other training materials which have not been expressly sold or licensed to the client shall remain the exclusive property of Myriad Technologies. Furthermore for any training materials which the Client has licensed or purchased the Client cannot:
Distribute these materials outside the organisation
Promote or advertise the manuals or any materials within them
Make additional copies of the materials
Split the manuals out in anyway
11.0 CANCELLATION CHARGES
In the event the Client fails to meet any obligation hereunder, causing cancellation or rescheduling of any Client order for Products or portion thereof by Myriad, the Client will be charged a cancellation/reschedule charge equal to the sum of any costs incurred by Myriad in relation to the Client's order or 10% of the order value, whichever is the greatest.
In the event the Client fails to meet any obligation hereunder, causing cancellation or rescheduling of any Services order or portion thereof by Myriad, Myriad will charge the Client the following:
If cancellation occurs:
Prior to 31 days before scheduled Time of Provision of Services – Nil Between 8 and 31 days before Scheduled Time of Provision of Services - 5% of the order value or $880 whichever is the greater (4 Hours) Seven days or less before Scheduled Time of Provision of Services - 25% of the order value or $1760 whichever is the greater (8 Hours).
Quotations for Products are valid for a period of ten (10) days from the quotation date, errors and omissions accepted. Extended validity dates apply only if supplied to the Client in writing.
Prices are stated in Australian dollars.
13.0 RECRUITMENT SERVICES
The Client (including any associated entity) will not retain the services of any Myriad Consultant introduced to the Client by Myriad either as an employee or via some sub-contracting arrangement within 6 months of the last date on which the client had contact with the Myriad Consultant where the Myriad Consultant was representing Myriad. Should the Client breach sub clause (a) of this clause, then the Client hereby agrees to pay to Myriad a consultant recruitment fee of $20,000.
This Agreement shall be governed by and construed in all respects in accordance with the law for the time in force in the State of Queensland in Australia. Myriad shall, however, have the right to institute proceedings in any competent jurisdiction for the recovery of unpaid debts.
15.0 SERVICE OF NOTICES
The respective addresses of service of notices under these Terms and Conditions ("the notice address") shall be the registered office of Myriad and the Client provided that either of the parties may by written notice to the other party substitute another address that will then become the notice address.
Notices may be given by being:
- Left at the notice address,
- Sent to the notice address by post, e-mail or facsimile,
- Delivered by hand to either of the parties to the Agreement.
Any notice posted shall be deemed to have been received three (3) business days after the date of posting and any notice given in any other manner shall be deemed to have been received at the time when in the ordinary course it may be expected to have been received.
Myriad shall not be responsible for delays or failures in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, government regulations superimposed after the signing of this Agreement, fire, communication line failures, power failures, earthquakes or other disasters. Myriad shall not be responsible for the delay in delivery of Products from any Third Party supplier.
17.0 GENERAL PROVISIONS
Any contract of sale of Products or Services ("Contract") between Myriad and the Client shall be subject to these Terms and Conditions. These Terms and Conditions shall prevail notwithstanding any other terms and conditions on any order submitted by the Client.
Neither party may assign such Contract unless mutually agreed in writing.
All rights and remedies conferred under a Contract or by any other instrument or law shall be cumulative and may be exercised singularly or concurrently. Failure by either party to enforce any contract term shall not be deemed a waiver of future enforcement of that or any other term. The provisions of the Contract are declared to be severable.
Myriad and the Client agree to keep confidential information obtained about the other which is not in the public domain, and restrict such information to those within each organisation who have a need to know in order to perform their responsibilities under this contract, and to allow such confidential information to be included in any standard data back up procedures run as a matter of course.