Terms and Conditions2018-05-10T05:57:23+10:00

General Term And Conditions

  1. Duration

This Agreement shall take effect on the date of signature above and shall continue in force for the contract term specified in the Schedules, Statement of Works or Quote and any subsequent renewal periods until terminated.

  1. Statements of Services

During the term, mcr will provide the Services (“Services”) and (“Deliverables”), as set forth in the Schedules, Statement of Work or Quote. The Parties agree that this Agreement and the relevant Statement of Work will govern and supersede any terms and conditions stated on any purchase order or other ordering document submitted by Client, the terms of which, except for terms describing price and quantity, are null and void with respect to this Agreement, regardless of mutual execution of any purchase order at any time.

  1. Definitions
    • In this Agreement, unless inconsistent with the context:
      1. Act means an Australian Act of Parliament unless specifically stated for any Act of Parliament outside the Australian jurisdiction
      2. ‘Agreement’ means this Agreement, its recitals, provisions, appendices and any Schedule, Statement of Works or Quote of this Agreement.
      3. ‘Affiliates’ means any present of future entity that, directly or indirectly Controls, or is Controlled by, or is under common Control with either Party.
      4. ‘Clause’ means a Clause of this Agreement.
      5. ‘Confidential Information’ includes information which relates to:
        1. the trade secrets and research and development activities of mcr;
        2. mcr business relationships with its customers and potential customers including contracts, customer lists, product and pricing plans, marketing plans and proposals, financial statements and information;
  • mcr personnel;
  1. materials marked as confidential; and
  2. the terms of this Agreement.
  1. ‘Control’ means power to direct or cause the direction of the management and policies of an entity whether through the ownership of voting securities, by contract or otherwise.
  2. ‘Equipment’ means the item(s) listed under the attached Schedule of Equipment, Statement of works or Quote.
  3. Hours of Coverage means for the purposes of Maintenance Services, the agreed period(s) specified in the Schedules, Statement of Works or Quote.
  4. ‘Force Majeure’ means an act, omission or circumstance over which mcr could not have reasonably exercised control including telecommunication failures.
  5. ‘GST’ means any goods and Services tax, value add tax or sales tax imposed on the sale or supply of goods Services and rights including but not limited to a tax imposed by the A New Tax System (Goods and Services Tax) Act 1999 (C’th) and the related imposition acts of the Commonwealth.
  6. ‘Intellectual Property Right’ includes any right arising from or capable of arising from the: Circuits Layout Act 1989 (Cth); Copyright Act 1968 (Cth); Designs Act 2003 (Cth); Patents Act 1990 (Cth); Plant Breeder’s Rights Act 1994 (Cth); Trade Marks Act 1995 (Cth); any similar legislation outside the Commonwealth of Australia; any similar unregistered right and Confidential Information.
  7. ‘Moral Rights’ has the same meaning as “Moral Rights” under Section 189 of the Copyright Act 1968 (Cth).
  8. ‘Party’ and ‘Parties’ means a Party to this Agreement and their respective successors, trustees and permitted assigns.
  9. ‘Quote’ means a Quote accompanying or referring to this Agreement
  10. ‘Related Entity’ has the same meaning as “Related Entity” under Section 9 of the Corporations Act 2001 (Cth).
  11. ‘Restraint Period’ is the period commencing on the signature date of this Agreement, and expiring 6 months after the termination of this Agreement.
  • ‘Schedule’ means a Schedule accompanying or referring to this Agreement.
  1. ‘Services’ and ‘Professional Services’ means Services supplied by mcr to the Client pursuant to this Agreement.
  • ‘Statement of Works’ means a Statement of Work accompanying or referring to this Agreement
  1. ‘Sub-Clause’ means a Sub-Clause of this Agreement.
  2. Taxes include taxes, duties and government charges, fees and levies.
  3. The term of this Agreement will begin on the Effective Date and continue until termination (“Term”).

 

  1. Interpretation
    • In this Agreement, unless inconsistent with the context:
      1. Words denoting a person shall include corporations, statutory corporations, partnerships, joint ventures, associations, boards, governments or semi-government agencies or authorities.
      2. Words denoting the singular number shall include the plural number and vice versa.
      3. Words denoting any gender shall include all other genders.
      4. A reference to a statute or a regulation also refers to any statute or regulation amending, or consolidating or re-enacting same.
      5. Money references are references to Australian currency.
      6. A reference to includes, including and inclusive are to be construed as being references to “includes, without limitation”, “including, without limitation”, and “inclusive, without limitation” respectively.
      7. Headings used in this Agreement are for convenience and ease of reference only, and are not part of this Agreement and shall not be relevant or affect the meaning or interpretation of this Agreement.
      8. Every obligation, covenant, agreement, condition express or implied in this Agreement and entered into by more than one Party shall bind them jointly and each of them severally.
      9. If any provision or part provision of this Agreement is held invalid, unenforceable or illegal for any reason, this Agreement shall remain otherwise in full force apart from such provision or part provision which shall be deemed deleted.
      10. The recitals, provisions and any Schedule, Statement of Works or Quote to this Agreement form part of this Agreement and shall be read in the following order of precedence: the recitals and Clauses of this Agreement; and thereafter in the order specified (if any) in Schedules.
      11. No remedy, expressly granted to mcr excludes or shall be deemed to exclude or modify any other right or remedy which would otherwise be available to mcr.

 

  1. Limited Warranty
    • mcr warrants that it shall supply Services with all due care and skill in accordance with the response times outlined in the Schedule, Statement of Works or Quote.

 

  1. Limitation of Liability
    • To the extent permitted by law and except as expressly provided to the contrary in this Agreement, all warranties whether express, implied, statutory or otherwise, relating in any way to the subject matter of this Agreement or to this Agreement generally, are excluded. Where legislation implies in this Agreement any condition or warranty and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or the exercise of or liability under such term, such term shall be deemed to be included in this Agreement. However, the liability of mcr for any breach of such term shall be limited, at the option of mcr, to any one or more of the following:
      1. if the breach related to goods: the replacement of the goods or the supply of equivalent goods; the repair of such goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired; and
      2. if the breach relates to Services the supplying of the Services again; or the payment of the cost of having the Services supplied again.
    • To the extent permitted by law and except as expressly provided to the contrary in this Agreement, mcr shall not be under any liability (contractual, tortious or otherwise) to the Client in respect of any loss or damage (including, without limitation, consequential loss or damage) howsoever caused, which may be suffered or incurred or which may arise directly or indirectly in respect to the supply of goods or Services pursuant to this Agreement or an act, failure or omission of mcr Unless the loss or damage suffered by the Client in respect to the supply of goods and services by mcr results from delays, non-deliveries or service interruptions, negligence, act or omission of mcr, its agents, employees or servants.
    • Without detracting from the other provisions the discharge of the Client’s obligations pursuant to this Agreement.
    • Total liability to the Client for any claim or demand under this Agreement shall not in any circumstances including breach of contract, warranty or statute (including strict liability and negligence) exceed $250 000 in the aggregate.

 

  1. Indemnity
    • To the extent permitted by law, the Client shall release, fully indemnify and keep indemnified mcr, its officers, employees and agents, against any injury, death, damage, loss, costs, expenses, interest, taxes or liability whether direct or indirect and whether sustained by mcr, mcr’s officers, employees and agents, the Client, the Client’s officers, employees and agents or a third Party arising out of:
      1. a breach of this Agreement by the Client;
      2. any wilful, unlawful or negligent act or omission of the Client; or
      3. Except through any wilful, unlawful or negligent act or omission by mcr, its officers, agents, employees or servants.
    • This indemnity applies regardless of whether or not legal proceedings are instituted.
    • This indemnity applies to any payment, settlement, compromise or determination regardless of whether same is authorised or not by the Client.

 

  1. Intellectual Property Rights
    • The Client warrants that any materials supplied to mcr by the Client do not infringe the Intellectual Property Right of any person.

 

  1. Confidential Client Data Information by mcr
    • To the extent that Confidential Client Data Information is not in the public domain (other than by way of breach of this Agreement and is not known by mcr at the time of disclosure, mcr:
      1. shall keep such information confidential;
      2. shall not directly or indirectly divulge or communicate or otherwise disclose Confidential Client Data Information, in whole or part to any third Party;
      3. except where a third Party has a need to know for the purpose of delivering these Services, and is required to maintain the confidentiality of such information as required by this Agreement.
      4. shall not use Confidential Client Data Information for its own purposes;
    • This Clause shall survive the termination of this Agreement.

 

  1. Confidential Information by the Client
    • To the extent that Confidential Information is not in the public domain (other than by way of breach of this Agreement) and is not known by the Client at the time of disclosure, the Client:
      1. shall keep such information confidential;
      2. shall not directly or indirectly divulge or communicate or otherwise disclose any Confidential Information, in whole or part to any third Party;
      3. shall not use Confidential Information for its own purposes;
      4. shall not use any Confidential Information without the express written consent of mcr;
      5. shall take all necessary precautions to prevent any disclosure of Confidential Information to unauthorised third Parties and inform mcr of any suspected or actual disclosure of Confidential Information; and
      6. shall not remove or cause to be removed from mcr’s premises any Confidential Information without prior written consent from mcr.
    • This Clause shall survive the termination of this Agreement.

 

  1. Protection of personal information
    • Application of the clause

This clause applies only where mcr deals with personal information when, and for the purpose of, providing Services under this Contract, but does not derogate from any obligation mcr may have under the Law or under this Contract in relation to the protection of security.

  • Interpretation of this clause

In this clause

  1. ‘APP’ means the Australian Privacy Principles;
  2. ‘Australian Privacy Principles’ has the meaning given to it in the Privacy Act;
  3. ‘contracted service provider’ has the meaning given to it in the Privacy Act;
  4. ‘Personal Information’ has the meaning given to it in the Privacy Act;
  5. ‘Privacy Act’ means the Privacy Act 1988 (Cwlth); and
  6. ‘Registered APP Code’ has the meaning given to it in the Privacy Act.
    • Obligations of Contractor in relation to Personal Information

mcr under and in relation to this Contract, agrees:

  1. to collect, use or disclose Personal Information obtained during the course of providing Services under this Contract, only for the purposes of this Contract;
  2. not to commit any act, omission or engage in any practice which is contrary to the Privacy Act;
  3. not to do any act or engage in any practice which if done or engaged in by an Agency, would be a breach of an APP;
  4. not to engage in an act or practice that would breach an APP or a Registered APP Code (where applied to mcr), unless that act or practice is explicitly required under this Contract;
  5. to comply with any request under section 95C of the Privacy Act (relating to disclosure of any provisions of this Contract that are inconsistent with an APP or a Registered APP Code binding on a party to this Contract);
  6. to notify the Client immediately if mcr becomes aware of a breach or possible breach of any of the obligations contained in, or referred to in this clause whether by mcr or its Personnel;
  7. to comply with any directions, guidelines, determinations or recommendations notified to mcr by the Client; and
  8. to ensure that all Personnel required to deal with Personal Information for the purposes of this Contract are made aware of the obligations of mcr set out in this clause, to ensure that all Personnel required to deal with Personal Information for the purposes of this Contract are made aware of the obligations of mcr set out in this clause.
  9. If mcr uses a subcontractor in relation to this Contract, it must ensure that the subcontract imposes obligations on the subcontractor equivalent to the obligations under this clause.
    • Handling of Complaints

A complaint alleging an interference with the privacy of an individual in respect of any Services performed under this Contract will be handled by the parties in accordance with the following procedures:

  1. where the Client receives a complaint alleging an interference with the privacy of an individual by mcr or any subcontractor, it must immediately notify mcr of only those details of the complaint necessary to minimise any breach or prevent further breaches of the privacy provisions of this Contract;
  2. where mcr receives a complaint alleging an interference with the privacy of an individual by mcr or any subcontractor, it must immediately notify the Client of the nature of the complaint but must only release to the Client confidential information concerning the complainant with that person’s consent;
  3. after the Client has given or been given notice in accordance with 11.4(a) or 11.4(b), it must keep mcr informed of all progress with the complaint as relates to the actions of mcr in connection with the allegation of an interference with the privacy of an individual; and
  4. the Client will give mcr 14 days written notice of an intention to assume a liability, loss or expense in accordance with this clause, including in that notice an explanation of how that liability, loss or expense was assessed and mcr’s proposed share of that liability.
  5. The Contractor agrees to indemnify the Client in respect of any Loss suffered or incurred by the Client which arises directly or indirectly from a breach of any of the obligations of mcr under this clause, or a subcontractor under the subcontract provisions referred to in 11.3(b).

 

  1. Access
    • The Client shall, at its expense, supply mcr with:
      1. access to the relevant Client’s staff, equipment and telecommunication Services as and when required; and
      2. access to relevant information, facilities, assistance and accessories reasonably required by mcr.

 

  1. Exclusions
    • mcr may elect not to provide Services under this Agreement in the following circumstances:
      1. where modifications, alterations or repairs have been made to the Equipment or any item thereof by persons other than authorised mcr and the Client personnel if the Equipment is damaged, neglected or misused by the Client or if the Equipment has been subject to unsuitable installation environment or electrical stress.
      2. failure of the Equipment attributable to:
        1. causes external to the Equipment including, but not limited to, failure of air conditioning, electrical power, or attached third party equipment;
        2. disaster including but not limited to, fire, flood, water, wind and lightning;
  • damage to the equipment occurring during transportation unless the sole responsibility of mcr
  1. improper use by operation or attachment of third party software and services unavailable or not specified at the time of the Equipment purchase, unless otherwise agreed in writing by mcr.
  • Should mcr determine that remedial maintenance would remedy the results of the circumstances set out in sub-clause 12.1 and reinstate the Equipment to a serviceable condition then the maintenance shall be provided by mcr at its then current customer labour rates plus charges for materials consumed. Provided the Client has been advised in writing and has agreed to the charges and that the circumstances set out in sub-clause 12.1 are applicable.

 

  1. Fees and Expenses
    • The Client shall pay mcr the fees as specified in the Pricing Schedule, Statement of Qorks or Quote in the Agreement without withholding, deduction or offset of any amounts for any purpose.
    • In addition to the fees specified in Pricing Schedule, Statement of Works or Quote, the Client agrees to pay to mcr any and all reasonable travel, accommodation and communication (including internet access) expenses incurred by mcr staff while fulfilling this Agreement.
    • Travel, accommodation and communication expenses shall be charged to the Client at mcr’s cost with a 10% management fee attached.
    • The Client agrees that the minimum reasonable standard of accommodation for each mcr staff member who is required to stay overnight away from their usual place of residence consists of a double bed in a private room with ensuite in an establishment providing 24 hour attended reception area, communication, and restaurant facilities.
    • The Client agrees that the minimum reasonable standard for travel arrangements for each sector of a trip is:
      1. A taxi, if the sector is within the same city or town;
      2. A mid-sized rental car, if the sector is within 2 hours driving distance;
      3. Economy-class travel on a premium airline, for interstate or overseas sectors.
      4. Business-class travel on a premium airline, for overseas sectors where total travel time from origin will exceed 6 hours.
    • Where a reasonable standard for travel or accommodation is not available, the best available standard shall be substituted.
    • mcr staff may, at their discretion, substitute alternative travel or accommodation in place of that offered by the Client, in which case mcr shall charge the Client the lesser of the offered cost and the actual cost.
    • mcr shall charge the Client in arrears for any other out-of-pocket expenses incurred during travelling or use of accommodation, including but not limited to tolls, user fees, airport fees, transit fees, transfer fees (including transfer from home to airport and from airport to destination) baggage storage fees and any other fees, but excluding personal charges such as food, beverages and entertainment.
    • mcr staff each requires broadband communication outside of business hours, and the Client agrees to pay for same.
    • If the Client or mcr arranges travel, accommodation or communications then same shall be provided pursuant to this Clause.
    • The Client agrees to pay mcr for the re-supply of travel and accommodation expenses if, on arrival, mcr staff determine that the arrangements have not been made in accordance with this Clause.
    • All reasonable costs incurred by mcr including labour and expenditure on travel as a result of any breach in this Agreement by the Client, or which fall outside mcr’s obligations hereunder shall be reimbursed to mcr by the Client. Labour used will be charged at mcr’s then current standard charges and expenses will be charged at cost plus 10% handling fee. Payment must be made by the Client within 30 days of the invoice for such charges.
    • Tax: Unless expressly stated to the contrary and to the extent permitted by law:
      1. the fees are exclusive of all Taxes which may arise in relation to the subject matter of this Agreement;
      2. the Client shall immediately pay any applicable Taxes to mcr; and
      3. the Client shall indemnify and keep indemnified mcr from payment of the Taxes and any penalties arising from non-payment of same.

 

  1. Interest
    • The Client shall pay mcr interest at the Penalty Interest Rate on all overdue amounts from the due date until payment is made.

 

  1. Restraint Period
    • During the Restraint Period, the Client shall:
  1. not solicit for employment, whether directly or indirectly through a Related Entity, any person who is or was an officer, or employee of mcr during the term of this Agreement;
  2. promptly advise mcr if a person who is or was employed or contracted by mcr seeks to be employed or contracted by the Client or a Related Entity of the Client; and
  3. Ensure that no Related Entity of the Client engages in the conduct referred to in Sub-Clause 16.1(a).

 

  1. Termination
    • This Agreement may be terminated at any time by either Party after the initial 12 month period and with 90 days prior written notice without cause.
    • Upon termination, mcr will be entitled to be paid for all work performed, including fees and expenses, to the end of the notice period.
    • mcr may terminate or suspend this Agreement by one month notice in writing if:
      1. any payment due from the Client to mcr pursuant to this Agreement remains unpaid for a period of 30 days;
      2. the Client breaches any Clause or Sub-Clause or part thereof and such breach is not remedied within 30 days of written notice by mcr;
      3. the Client becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration;
      4. the Client, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;
      5. the Client, being a natural person, dies; or
      6. the Client ceases or threatens to cease conducting its business in the normal manner.
  • The Client may terminate this Agreement by notice in writing pursuant to Sub-Clause 17.1 .

mcr may, without limitation:

  1. retain any moneys paid;
  2. charge a reasonable sum for work performed in respect of which work has not been previously charged;
  3. be regarded as discharged from any further obligations under this Agreement from the date of termination; and
  4. pursue any additional or alternative remedies provided by law.
  • Upon termination of this Agreement:
    1. The Client shall within 30 days of such termination surrender and assign (to the extent that such rights have not already been surrendered or assigned) to mcr any Intellectual Property Rights to which mcr may be entitled pursuant to this Agreement and;
    2. All rights of the Client granted pursuant to this Agreement shall immediately lapse

 

  1. Withdrawal of Maintenance
    • The Client may withdraw items of Equipment from the Services Agreement upon three months written notice to mcr after the first anniversary of the Commencement Date.
    • Should the Client withdraw any Equipment from the Services Agreement, mcr does not provide any pro-rata refund or credit. All Maintenance Service charges will be adjusted at the end of the required period of notice.
    • The withdrawal of Equipment from the Services Agreement is not permitted for contracts with a term of 12 months or less.
    • The Client may replace or upgrade Equipment with one months’ notice. The Client will be credited with any maintenance charges paid in advance for the original equipment, so far as these are credited to mcr by the manufacturer. The replacement equipment will be charged at the appropriate rate for that equipment.
    • The Client may add new Equipment or Services to the Services Agreement at any time.
    • mcr may withdraw items of equipment or Services after the first anniversary of the Commencement Date upon 3 months written notice to the Client.

 

  1. Survival
    • The provisions of this Agreement which are capable of having effect after the expiration of this Agreement shall remain in full force and effect following the expiration of this Agreement.

 

  1. Force Majeure
    • mcr shall not be liable for any delay or failure to perform its obligations if such a failure or delay is due to Force Majeure.

 

  1. Assignment, Novation and Sub-Contracts
    • The Client shall not sub-contract, sub-licence, assign or novate, in whole or part, any entitlement or obligation under this Agreement without the prior written consent of mcr.
    • mcr may:
      1. sub-contract for the performance or part performance of this Agreement by notifying the Client; and
      2. assign this Agreement to a third Party with notice and in such circumstances, mcr’s rights and obligations under this Agreement shall be immediately terminated upon assignment.

 

  1. Vendor Support Services
    • Where mcr is providing services that include vendor warranty or maintenance, mcr may, at its own discretion, engage the vendor for some or all of the service.
    • Provision of Services by Vendors is made fully transparent to customer although mcr remains directly responsible for provision of service to the customer.
    • Where vendors are imposing special terms and conditions for provision of their services those obligations flow down to both mcr and the customer.

 

  1. Waiver
    • No right of mcr under this Agreement shall be deemed to be waived except by notice in writing signed by mcr. Such a waiver by mcr shall not prejudice its rights in respect of any subsequent breach of this Agreement by the Client.
    • Any failure by mcr to enforce any provision of this Agreement, or any forbearance, delay or indulgence granted by mcr shall not be construed as a waiver of mcr’s rights.

 

  1. Governing Law
    • This Agreement shall be governed by and construed according to the law of the State of New South Wales, Australia.
    • The Parties irrevocably submit to the exclusive jurisdiction of the courts of New South Wales and the Commonwealth of Australia and any courts hearing appeals from such courts. Any proceedings in a Commonwealth court shall be commenced in New South Wales.

 

  1. Notices
    • Notices under this Agreement may be delivered by mail to the addresses specified in Client Details Schedule. Notices shall be deemed given 3 days after dispatch.

 

  1. Entire Agreement
    • Unless stated expressly to the contrary in this Agreement:
      1. This Agreement constitutes the entire Agreement between the Parties for the subject matter referred to in this Agreement. Any prior arrangements, Agreements, representations or undertakings are superseded;
      2. This Agreement is not to be construed as creating a joint venture, partnership or agency situation between the Parties. No Party may represent that there exists such a relationship between the Parties;
      3. no Party may bind the other Party to any Agreements, arrangements, contracts or understanding or represent that they have such authority; and
      4. no modification or alteration of any provision of this Agreement shall be valid except in writing signed by each Party.

 

  1. Dispute Resolution
    • Any dispute in relation to this Agreement shall be subject to mediation prior to any legal proceedings being commenced.
    • Nothing in this Clause shall prevent a Party seeking urgent interlocutory relief.

 

  1. Project Plan Timetable
    • mcr shall use reasonable endeavours to comply with the Project Plan Timetable (if any).
    • If mcr does not comply with the Project Plan Timetable, the Client’s sole remedy shall be to withhold payment. The Client shall only be entitled to withhold payment if such delay exceeds 3 months and is not due in any way to the fault of the Client.

END

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