Terms & Conditions - Aureole Systems

Technology Platform

Computer Minimum Requirements

Desktops/Notebooks less than 5 Years old
Tablets & Mobile phones less than 4 Years old
Servers less than 7 years old

Network Minimum Requirement

Hardware Firewall
Business grade switch & Wireless Access Points

General Terms & Conditions

GENERAL

APPLICATION
1. These are the General Terms and Conditions of Aureole Systems Pty Ltd (ABN 33 132339 701) (“Us”, “Our” and “We”) that apply to all Orders, Goods or Services We supply to any person, customer and/or user (“Client”, “You” or “Your”).
2. When You receive an Order, Good or Service from Us, You accept that You have been notified of these Conditions and that We supply the Order, Good or Service to You on these Conditions.
FORMATION OF CONTRACT AND ORDERS
1. When You request Us to supply You with Our Goods and/or Services We will issue you with an Order.
2. Unless expressly stated otherwise by Us in the Order, each Order We issue:
  1. is subject to these Conditions and is an offer to supply you with Our Goods and/or Services on these Conditions;
  2. is valid for 14 days from the date of the Order (unless it is withdrawn by Us before acceptance); and
  3. may be changed or withdrawn by Us at any time before you accept the Order.
3. The Goods, Services and/or Rates in an Order are based on the information You have provided to Us and which is currently available to Us at the date of the Order.
4. Once accepted by You, an Order will form a Contract under and subject to these Conditions made up of the following parts:
  1. each agreed Order (which also may include Third Party Terms, attachments and/or special conditions based on the relevant Good or Service in the Order); and
  2. these Conditions, as varied in accordance with these Conditions.
5. If parts of the Contract conflict, unless expressly specified otherwise, the part listed earlier in clause 4, applies to the extent of the inconsistency.
6. When You request or accept an Order on behalf of any entity or person, You represent and warrant You are authorised by that entity or person to enter and accept the Order, these Conditions and form the Contract with Us on the entity or person’s behalf.
7. You acknowledge and agree that Your Order may contain Vendor Goods and/or Services which we re-sell or re-supply. As a result, we may request a change to the Goods, Services and/or Rates in an accepted Order if required due to Vendor availability, pricing changes, product changes or product discontinuation (Vendor Change). We will make any such request to You as soon as possible based on the Vendor notifying us of the Vendor Change. If you accept a proposed Vendor Change, you agree the Vendor Change is a variation to the Contract and your Order. If you reject the Vendor Change, we will discuss the impact to your Order with you and you may cancel or terminate the Order and the Contract in accordance with clause 7. All other changes to Goods, Services and/or Rates will be in accordance with clause 3.5 or clause 8.
PRICING AND RATES
Tax and GST
1. Unless expressly stated otherwise, our Rates and any amounts under our Contract with you are exclusive of GST and any other applicable taxes or government charges. If applicable, taxes including GST will be charged in addition to any Rates or other amounts payable by You under an Order or the Contract at the rate applicable at the time of invoicing or charging.
2. Both parties agree to comply with applicable GST Law and other tax laws and regulations which apply to any supplies and payment under an Order or the Contract
  Rates and Invoices
3. You must pay us the Rates for Goods and/or Services we supply. Your Order will specify if such Rates will be charged and payable on either:
  1. a time and materials basis using the charges in the Rate Schedule current at the time of Your Order; or
  2. a fixed or monthly fee basis using the charges specified in an Order or otherwise notified by us in accordance with these Conditions.
4. We will send you an invoice for the Rates and other amounts You owe Us under an Order or this Contract.
5. Subject to clause 7, we may vary the Rates in Your Order on 30 days’ notices to You. If you do not cancel or terminate our supply in accordance with these Conditions, the new Rates will be effective 30 days after the notice (or such other date specified in Our notice).
6. Unless expressed otherwise in Your Order or in writing by Us, Our Rates do not include delivery or other out of pocket expenses incurred by Us in supplying the Goods and/or Services to You. You will be charged and must pay all such delivery costs and reasonable out of pocket expenses incurred by Us in addition to the Rates.
7. If Your Rates are calculated on a time and materials basis, We will charge you the applicable Rate from the then current Rate Schedule for the whole increment of time even if work is done during part of, but not for the whole of, that increment of time.
PAYMENT TERMS
1. You must pay us the Rates and all other amounts you owe Us under this Contract via the payment methods specified in Our invoices and by the relevant invoice due date.
2. We will not place an order with a Vendor for any Goods or supply You with any Goods specified in an Order until we have received payment in full of all Rates in connection with the Goods. This includes payment for any related Services being supplied in connection with the Goods, delivery costs or out-of-pocket expenses.
3. If You do not pay Us any undisputed amounts owing under an Order and Our Contract with You by their due date We may:
  1. Charge interest on the overdue amount. This interest will be calculated daily at a rate which is 2% above the rate set by the Penalty Interest Rate Act 1983 (Vic) and will accrue from the payment due date until the date You pay the overdue amount in full.
  2. Suspend our Good and/or Service supply to You until the overdue amounts are paid in full. We will not be responsible for any obligations or liabilities to You or any third parties during the suspension period.
  3. Take debt recovery action and require You to pay for all debt recovery costs We incur. This may include the costs of debt collection agencies, court proceedings and legal fees.
  4. Require upfront payments for all or part of the remaining Goods and/or Services as a condition of us continuing to supply our Goods and/or Services to You.
INVOICE QUERIES AND DISPUTES
1. You must review all invoices promptly on receipt. If You dispute or have a query in relation to Our Rates or invoices (Fee Query) You must notify and give Us details of Your Fee Query in writing as soon as possible and within 7 days of the invoice date.
2. Within 7 days of the date of Us receiving a Fee Query from You, both parties must meet and use their best efforts to resolve the Fee Query by negotiation in good faith.
3. If the Fee Query remains unresolved for 14 days, either party may initiate (as applicable) debt recovery activities, court proceedings or a mediation process. Any mediation process will need to be agreed between the parties. The costs of the mediator and mediation must also be shared equally between the parties.
4. Your failure to raise a Fee Query within 7 days of the invoice date will be acceptance of the Rates, Goods and/or Services contained in that invoice.
5. If We accept a partial payment, this does not waive Our right to be paid in full for Our Goods and/or Services. You must not set-off any amounts actually or potentially owing by Us against amounts You owe Us without Our written consent.
CONTRACT AND SERVICE TERM
1. Our Contract for the supply of Our Goods and/or Services to You starts on the date You accept an Order. Unless it is terminated earlier in accordance with the terms in the Contract, the Contract will continue for as long as we supply You with any of Our Goods and/or Services under an Order.
2. Your Order may also specify a minimum Initial Term for a Service. Subject to any Third Party Terms, the Initial Term will start on the first of the next month after the date You accept Your Order. If also specified in the Order or the Third Party Terms (as applicable), on expiry a Service’s Initial Term and each Renewal Period, will automatically renew for the Renewal Period until the Service is terminated in accordance with the conditions in Our Contract with You.
CANCELLATION & TERMINATION
1. Either party may cancel:
  1. A Service which is not a Vendor re-sale or re-supplied Service by providing 30 days’ notice to the other party; or
  2. A Vendor Service either:
    1. with the notice and in accordance with the requirements in the Third Party Terms; or
    2. otherwise if no notice is specified in the Third Party Terms, on 30 days written notice to the other party.
2. We do not promise that You can cancel an Order for Goods after you accept that Order. You must contact Us immediately if you want to cancel or change an Order for Goods that you have accepted or paid. However, as Our Goods are a re-sale or re-supply from Vendors, you acknowledge and agree that in most cases cancellation of Goods will not be possible.
3. A party may terminate the Contract or an Order immediately by written notice to the other party if the party:
  1. commits a material breach of the Contract or an Order, that is not capable of being remedied;
  2. commits any material breach of the Contract or an Order and fails to remedy the breach within 30 days of being notified by the other party to do so; or
  3. is or threatens to be subject to any act of insolvency or bankruptcy, administration, liquidation, has a receiver, manager or similar person appointed or is unable to pay its debts as and when they fall due.
4. We may cancel an Order or terminate a Contract (in part or in full) immediately by written notice to You if You fail to pay Us any amount due to Us by the payment due date and seven (7) days or more after being notified by Us to pay the outstanding amount.
5. If either party terminates this Contract or cancels a Service, or they otherwise expire, We will on Your request and at Your cost assist You with transition-out activities, including transfer of the Services to another designated supplier (Transition-Out Services). You agree that if We are required, or if you request Us, to perform any Transition-Out Services, these will be performed by Us for additional charge calculated using the then current Rate Schedule or otherwise notified in writing to you at the time of Your request.
6. If either party terminates this Contract or cancels a Service before the end of an Initial Term or Renewal Period You may be required to pay Us the Rates for any portion of the Initial Term or Renewal Period You have not paid or been charged for at the date of termination.
7. If this Contract or Our Good or Service supply expires, terminates or is cancelled for any reason:
  1. We may charge You the reasonable costs We have incurred up to the termination or cancellation date, including if such termination or cancellation is before we start our Service supply or order the Goods from Our Vendor;
  2. You may not be entitled to a refund for all or part of the Rates You have paid for Goods and/or Services in advance;
  3. You must pay all amounts owing to Us under an Order and the Contract including any outstanding invoices or amounts which are owed by You due to the termination or cancellation; and
  4. Subject to law and record keeping requirements, a party will return, delete or destroy (as applicable) the Confidential Information and property (including any intellectual property) of the other party if requested in writing and the requested treatment is possible given the nature of the Confidential Information and the relevant property.
8. Termination, expiry or cancellation will not affect the operation of clauses 5, 7.6, 7.7, 7.8, 11.9, 11.11, 11.12, 11.13, 11.15, 12, 13, 14, 15, 16, 17, 18, 19, 20, 23 or any other clause which, by its nature, is intended to survive termination or expiry of the Contract or an Order.
VARIATION OF ORDERS AND THE CONTRACT
1. Subject to clause 7, We may at any time vary Your Goods, Services, an Order or these Conditions:
  1. On 30 days written notice to You if the change is not due to a Vendor Change or required by applicable Third Party Terms; and
  2. If required in connection with Third Party Terms, in which case we will try Our best to give You reasonable notice of the change based on the notice the Vendor has provided to Us and subject to any relevant the Third Party Terms.
SERVICES
1. We will supply You with the Services agreed in the Order (as varied in accordance with these Conditions).
2. Our processes and procedures that We and You must follow when supplying You with Our Services and/or Goods will be notified to You once You accept Your Order. You agree to co-operate with Us and to comply with such processes and procedures We notify to You from time to time.
3. We will try to supply Your Services within a reasonable time. However, unless the Order states otherwise, any timing provided in connection with our supply of our Services by any of Our Representatives are estimates only.
4. We will use Our reasonable care and skill in supplying Our Goods and/or Services to You and use Our reasonable efforts to achieve any Service targets we notify are applicable. However, subject to clause 15 or if your Order specifies otherwise, We do not promise Our Services or any Goods supplied by Us (as applicable) will:
  1. be error or fault free or continuous without interruption (including for planned or emergency maintenance);
  2. achieve any particular service, availability levels or targets; or
  3. are suitable, of any particular quality or fit for any particular purpose or use.
THIRD PARTY TERMS
1. If specified in Your Order, the Goods and/or Services We supply to You may include or be a re-sale of Vendor goods and/or services. Supply of Vendor Goods and/or Services may require you to enter Third Party Terms.
2. Third Party Terms may take the form of an end-user licence agreement, may be provided to You in Your Order or separately notified by Us (or the third-party) or may be included as click-through terms of use.
3. You agree that:
  1. any supply of Vendor Goods and/or Services by us is conditional on You accepting and complying with any applicable Third Party Terms;
  2. any applicable Third Party Terms are incorporated into these Conditions and Our Contract with You when you accept an Order or when You continue to use or access the Vendor Goods and/or Services after being notified of the Third Party Terms.
GOODS
1. We will supply You with the Goods detailed in Your Order (as varied in accordance with these Conditions).
2. If specified in your Order or agreed in writing by us, our Goods re-sale or re-supply may include related Services such as installation, configuration or any other related professional Services to be performed by Us (Goods Professional Services). The Rates for Goods Professional Services will be specified in your Order and are in addition to the Rate for the relevant Good/s.
3. If the Goods include any software licences from the Vendor as part of the Goods supply, this will be re-supplied to you from the Vendor ‘as is’ and subject to any applicable Third Party Terms. You agree to accept any applicable Third Party Terms as a condition of our delivery of the Goods.
  
  Delivery
4. If and when available, Your Goods will be delivered by Us, the Vendor or third-party carriers to the delivery site or location specified in Your Order or otherwise agreed in consultation with You (Delivery Point).
5. You agree that Our ability to deliver and supply Your Goods will be impacted by the delivery and availability of the Good from the relevant Vendor. We will keep you reasonably informed about the availability and estimated delivery of Your Order.
6. Delivery of Your Goods will be within the ordinary delivery hours of the relevant third-party carrier or delivery service.
7. You must ensure that Your or Your Representatives Delivery Point is accessible and safe for unhindered delivery of the Goods.
8. You acknowledge and agree that:
  1. any Good we supply to You is a re-sale or re-supply of Goods from a Vendor; and
  2. the Goods may be delivered by the Vendor or a third-party carrier or delivery service.
9. To the extent permitted by the law and without excluding any of Your rights prescribed by law (including the Australian Consumer Law), We are not liable for any Loss suffered by You, Your Representatives or any third-party or in connection with any claim for:
  1. delays in delivery or non-delivery of the Goods; and
  2. being unable to supply You with Goods in your Order due to that Good not being available.
    
    Acceptance
10. Delivery of the Goods will be accepted and complete when the Goods are received by You or otherwise delivered to the Delivery Point. Acceptance of delivery and payment for the Goods will not be subject to or contingent on the supply of any Services (including Goods Professional Services) unless expressly set out in the Order.
  
  Risk
11. Risk in the Goods including in respect of damage, loss or theft passes to You when the Good is delivered and/or located at the Delivery Point or is otherwise in Your or Your Representatives control. Once risk passes to You, any damage, loss or theft in relation to the Good is Your responsibility and at Your cost (unless the damage, loss or theft was caused or contributed by Us or our Representatives).
12. You must have adequate insurance to cover any damage, loss or theft of the Goods which is delivered or located at the Delivery Point or which is otherwise in Your or Your Representatives control.
  
  Retention of Title
13. Despite delivery, title to and ownership of Goods will only pass to You when We receive payment in full of all Rates and other amounts included in Our invoices owing for the Goods.
14. Until title passes, you hold the Goods as bailee for Us. Unless We consent in writing otherwise, You must:
  1. keep the Goods stored separately and marked as Our property;
  2. keep the Goods secure to prevent damage or theft and in good and marketable condition;
  3. not acquire, create or allow any interest, including any security interest in, the Goods;
  4. not dispose of, sell, lease or otherwise encumber the Goods; and
  5. if You sell the Goods or anything that incorporates the Goods, You must hold the proceeds on trust for Us in a separate account and pay to Us the amounts of the proceeds of the sale when received up to the amount owed to Us for Goods.
15. If You are overdue with paying Us the full Rates for Goods by seven (7) days, in addition to any rights for late payment in the Contract or an Order and any other legal rights, We may do any or all of the following:
  1. Under this clause and the PPSA (as applicable) enter Your location or any site where Our Goods are located (whether under Your control or as Your agent storing the Goods) with or without notice and without liability, to recover and take back the Goods;
  2. recover from You the fair market value of the Goods as a debt due to Us; and/or
  3. Subject to applicable laws, keep, resell or otherwise deal with Goods which is in Our possession or which We have recovered under this clause and has not been paid for in full.
16. You indemnify and promise to pay Us for any claims and for all Loss We incur or suffer that is caused or connected with Us exercising Our rights, or You breaching Your obligations, related to risk and title in the Goods. However, the amount You need to pay Us under this clause will be reduced proportionately to the extent the claim or Loss is caused by Our or Our Representatives breach of this Contract, breach of the law or negligence.
PPSA
1. Unless the context indicates otherwise, words and phrases used in this clause 12 that have defined meanings in the Personal Properties Securities Act 2009 (Cth) (PPSA) have the same meaning as in the PPSA.
2. Our Contract with You to supply the Goods is a security agreement for the purposes of the PPSA. You acknowledge and agree that You have granted Us a security interest in the Goods and its proceeds which is a purchase money security interest to the extent that it secures payment of all or part of the purchase price for particular goods.
3. You consent to Us perfecting any security interest arising in connection with this Contract by registering a financing statement on the PPSR and any other applicable security registers in any manner We consider appropriate.
4. You agree to do anything We reasonably ask to ensure that the security interest:
  1. is enforceable, perfected and otherwise effective; and
  2. has priority over all other security interests.
5. You agree to pay or reimburse Us for any fees or charges for the PPSR or other registrations contemplated by this clause 12.
6. To the maximum extent permitted by law:
  1. You waive Your right to receive any PPSA notice (including notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded;
  2. the parties contract out of and You waive your rights under sections 95, 96, 121(4), 125, 130, 132(3)(d), 132(4), 135, 142 and 143 of the PPSA;
  3. You agree not to exercise Your rights to make any request of Us under section 275 of the PPSA and neither party will disclose any information of the kind mentioned in section 275(1) of the PPSA unless section 275(7) of the PPSA applies.
VENDOR WARRANTIES
1. To the extent they are included with the relevant Good or Service being supplied and as permitted by law, We will pass on and You will be entitled to any express warranties given by a Vendor for the relevant Good or Service. Such Vendor warranties will be on the relevant Vendor warranty terms and conditions and Third Party Terms. To the maximum extent permitted by law and not excluding any warranties or guarantees prescribed by law, (including the Australian Consumer Law), the express warranties given by a Vendor are the only express warranties or guarantees given to You in respect of the Goods or Service.
2. You agree and acknowledge that We resell and re-supply Goods and Services which are the Vendor’s products. As a result, to the extent permitted by law and without limiting Your rights against Us:
  1. if You have a warranty or other claim in respect of the Good or Service under the applicable Vendor warranty or otherwise as available at law (including the Australian Consumer Law) You or We (on Your behalf) will make that claim against, and seek any Loss suffered from, the relevant Goods or Services Vendor; and
  2. We have no direct control over the features or performance of the Goods or Services we re-sell or resupply from Vendors and provide such Goods or Services “as is” from the Vendor
RETURNS AND REFUNDS OF GOODS
1. General Returns Policy: You acknowledge and agree that We re-supply and re-sell Vendor Goods. As a result, our supply of Vendor Goods to You is subject to all applicable conditions, including repair, return and refund policies, of any relevant Vendor. Subject to clause 15 and any other rights prescribed by law, You agree that you accept the Vendor conditions of repair, return and refund as a condition of our delivery of Vendor Goods.
2. Duty to inspect:You will inspect all Goods immediately upon their delivery. You must immediately notify Us in writing, and no later than within 7 days of delivery, of any issue with the Goods that you claim entitles You to a repair, return or refund for the Goods (Return Claim). Subject to clause 15 and any other rights prescribed by law, You will not be eligible for a repair, return or refund for a Good if You do make a Return Claim on time and in accordance with this clause 2.
3. Return Condition:Subject to clause 15 and any other rights prescribed by law, You will be entitled to return Goods for repair, return, or refund (at Our or the Vendor’s election) if You are entitled under the Vendor’s policy and conditions and the Goods:
  1. are in their original condition and as far as reasonable unopened;
  2. if on opening the packaging, the Goods are different to what is described in Your Order, faulty or damaged or have all or part of Goods ordered missing.
AUSTRALIAN CONSUMER LAW
1. If you are a consumer as defined by the Australian Consumer Law, the Goods and Services come with guarantees that cannot be excluded.
2. For major failures with Our Services, consumers are entitled to cancel the Service. Consumers are also entitled to a refund for the unused portion, or to compensation for the service’s reduced value. Consumers are entitled to choose a refund or replacement for major failures with a Good. If a failure with the Service or Good does not amount to a major failure, consumers are entitled to have the failure rectified in a reasonable time. If this is not done, consumers are entitled to a refund for the Good and to cancel the Service and obtain a refund of any unused portion. Consumers are also entitled to be compensated.
LIMITATION OF LIABILITY
1. Nothing in these Conditions, the Contract or an Order operates to limit or exclude:
  1. either party’s liability for death or personal injury or for fraud or fraudulent misrepresentation by it or its employees;
  2. Your liability in respect of any of Your payment obligations to Us; or
  3. any express indemnities or warranties provided by either party in these Conditions, the Contract or an Order.
2. Subject to clause 1, neither party is liable for any Consequential Loss arising out of or in connection with these Conditions, the Contract or an Order.
3. Subject to clause 1, we accept liability to You for Our (or our Representatives) breach of these Conditions or Contract, negligence or breach of any laws. However, as far as permitted by law, Our total liability to you for all claims related to these Conditions, the Contract or Our supplies to You is capped in aggregate to the total Rates paid by You for the relevant Goods or Services which are subject to the claim in the 12 months prior to the occurrence of the claimed Loss.
4. Apart from any warranties, guarantees or liability that cannot be excluded by law (including the Australian Consumer Law) or that We provide in these Conditions, the Contract or an Order, We do not accept any other liability or provide any other warranties or guarantees, express or implied and arising by law or otherwise, in relation to our Goods or Services or these Conditions, the Contract or an Order. For any liability which cannot lawfully be excluded under this clause 4, but can be limited, Our liability is limited to resupplying, repairing or replacing the affected Good or Service or payment of the cost of doing so.
5. A party’s liability in relation to any proceeding, claim or Loss in connection with these Conditions, the Contract or an Order will be reduced proportionally to the extent it was caused by any act or omission of the other party or the other party’s Representatives.
INTELLECTUAL PROPERTY
Client Existing Material
1. You own and retain all Intellectual Property Rights in the Client Existing Material.
2. You grant Us and our Representatives a non-exclusive, royalty free licence to use, access, collect, host, store, process and transfer the Client Existing Material as necessary for us to perform our obligations in connection with an Order and the Contract and to supply you with Our Goods, Services and/or the Support Portal.
3. You warrant and represent that Our use of or access to any Client Existing Material in connection with this Contract and when supplying Our Goods and Services will not infringe the Intellectual Property Rights of any person.
  
  Aureole Systems Materials
4. We (Our licensors or Vendors) own and retain all Intellectual Property Rights in the Support Portal and any Aureole Systems Materials.
5. Intellectual Property Rights and ownership in any Aureole Systems Material will vest in and is assigned to Us (Our licensors or Vendors) immediately on creation. You must sign any document required to give effect to such assignment.
6. Subject to clause 7, We grant You a non-exclusive, royalty-free licence to use the Aureole Systems Materials and Support Portal solely for the purpose and benefit of Our supply and Your use of the Goods and/or Services supplied to you under an Order or the Contract.
7. Any right to use third-party Intellectual Property under an Order or the Contract is subject to and provided on the relevant Third Party Terms.
8. We warrant and represent that Your use of any Aureole Systems Materials, which are not Vendor Materials, as permitted under these Conditions will not infringe the Intellectual Property Rights of any person.
CONFIDENTIALITY
1. Each party must (and must ensure its Representatives):
  1. keep and treat Confidential Information of the other party confidential;
  2. not disclose or use the Confidential Information of a party unless:
    1. with the other party’s prior written consent or as permitted under these Conditions or the Contract;
    2. the disclosure or use is to its Representatives or professional advisors on a “need to know” basis and subject to the same confidentiality requirements in this clause 18; or
    3. the disclosure or use is required by law or any regulatory authority.
2. You must not make any public statements about Us or use Our name, brand, trademarks or information in publicity releases, advertising or promotions unless We have given Our prior written consent.
3. Neither party will damage the reputation of a party. Each party will not bring into disrepute or ridicule the names, brand, business or goods and services of the other party.
PRIVACY AND DATA PROTECTION
1. You agree, and will ensure Your Representatives are aware, that:
  1. We may collect, use, store, handle, process or disclose information about You and each of them as permitted under these Conditions and detailed in our Privacy Policy;
  2. We may use or disclose information about You and each of the Representatives to third parties (such as Our suppliers) for the purpose of supplying the Goods and/or Services;
  3. use of Vendor Goods and/or Services may be subject to the Vendor’s privacy policies or requirements; and
  4. Supply of the Goods and/or Services and related services by Us or Our Vendors may be from locations outside of Australia and/or result in information being transmitted to or processed in locations outside of Australia.
2. Each party must comply with requirements in the Privacy Act 1988 (Cth) in respect of the Personal Information they collect, use, access, store, handle, process or disclose and in connection with an Order, the Contract or these Conditions.
3. You must make all necessary disclosures and obtain all rights and consents required for Us (or Our Representatives or Vendors) to be able to lawfully use, handle, disclose, process or store any of Your (or your Representatives) information and/or the Client Existing Material as part of Our supply and in connection with an Order or this Contract.
4. Each party must notify the other if there is:
  1. an actual or suspected Data Incident or a breach of the privacy or confidentiality obligations under the Contract or in connection with the Goods and/or Service supply; or
  2. unauthorised disclosure or use of Confidential Information or Personal Information.
5. While We will take all reasonable measures to preserve your Client Existing Materials which We may have access to in connection to our supply of our Goods, Services and the Support Portal, due to the nature of our supplies to You We do not accept any responsibility if any Client Existing Material is deleted, damaged or destroyed. To avoid any Loss arising from such deletion, damage or destruction, You accept that You are responsible for:
  1. backing up (unless We are responsible for back-up of the relevant Client Existing Materials as part of Our Service supply to You) and having duplicate copies of Your Client Existing Materials; and
  2. maintaining an adequate data recovery system to restore Your Client Existing Materials should it be deleted, damaged or destroyed.
6. You release Us and Our Representatives from all claims for any Loss arising from a failure to restore the Client Existing Materials.
DISPUTE RESOLUTION
1. This clause 20 applies to any dispute between the parties which is not a Fee Query.
2. As soon as possible after a dispute between Us and You arises in connection with the Contract, either party must notify a Representative of the other party in writing and providing details of the claimed dispute (Dispute Notice).
3. Excluding urgent interlocutory proceedings, after a Dispute Notice is issued, both parties must appoint Representatives for the dispute. Before initiating legal proceedings, these Representatives will use their reasonable efforts to meet and resolve the dispute:
  1. by negotiation in good faith; and
  2. in accordance with this clause 20.
4. If the dispute remains unresolved for 30 days following issue of a Dispute Notice, either party may initiate (as applicable) debt recovery activities, court proceedings or a mediation process. Any mediation process will need to be agreed between the parties. The costs of the mediator and mediation must also be shared equally between the parties.
5. The existence of a dispute does not suspend or exclude Your requirement to pay Us any amounts you owe us under an Order or the Contract by their due date.
MODERN SLAVERY AND CORRUPTION
1. In performing obligations under these Conditions, an Order or the Contract, both parties must:
  1. act in line with anti-slavery, anti-bribery and anti-corruption laws that apply to them and where the Goods and/or Services are supplied, including the Modern Slavery Act 2018 (Cth);
  2. maintain and comply with their own anti-slavery, anti-bribery, anti-corruption or modern slavery policies and procedures;
  3. provide all documents reasonably required for the other party to comply with its reporting obligations, if any, under so called “modern slavery” law in any jurisdiction; and
  4. notify the other party if there is any breach of this 21.
FORCE MAJEURE
1. Excluding any of Your obligations to pay Us, a party is not in breach of this Contract or liable for any failure or delay in performance of their obligations under the Contract or an Order, if directly caused by circumstances or events outside their reasonable control (Delay Event).
2. The relief in clause 1 only extends as far and for so long as a party is affected by the Delay Event and provided the party takes reasonable steps to overcome the effect of the Delay Event.
3. In addition to any requirements in the Third Party Terms, a party must promptly give the other party notice of any Delay Event and estimate the length of non-performance or delay.
MISCELLANOUS
1. Health and Safety: Both parties agree to comply with all applicable occupational health and safety laws and other applicable laws and mandatory codes or standards in performance of their obligations under an Order, the Contract or these Conditions.
2. Representation: You acknowledge that no employee or agent of Ours has any right to make any representation, warranty or promise in relation to the supply of Goods and/or Services other than subject to and as may be contained in an Order, the Contract or these Conditions.
3. Notice: Any notice given in connection with an Order, the Contract or these Conditions must be in writing and sent by:
  1. e-mail to the usual or last notified e-mail address of a party. This notice will be considered received on the date the message is sent if the sender’s system does not receive a delivery failure notification; or
  2. if a notice cannot be sent via email, by mail to a party’s postal address in the Order or the Support Portal. This notice will be considered received 4 Business Days after it was sent.
4. Governing Law: An Order, the Contract and these Conditions is governed by and interpreted in accordance with the laws of Victoria, Australia. The parties submit to the non-exclusive jurisdiction of the courts of Victoria, Australia.
5. Assignment: You may not assign, transfer, subcontract, mortgage, charge or otherwise deal with any or all of Your rights and obligations under an Order, the Contract or these Conditions without Our prior written consent.
6. Subcontracting: We may subcontract any or all performance of Our obligations under an Order, the Contract and these Conditions. We will not be relieved and will continue to be responsible to You for any subcontracted obligations.
7. Severance: If any condition or clause of these Conditions, the Contract or an Order is unlawful, void or unenforceable, the condition or clause or part of thereof, is to the extent required, to be regarded as deleted. These Conditions, the Contract and an Order will otherwise, as far as possible, remain in full force and effect.
8. Relationships: Subject to clause 6, no party has the power to obligate or bind any other party. There is no partnership, joint venture or employee, employer or representative relationship between the parties.
9. Set off: We may set off any amount owed to Us against any amount We owe to You under an Order, the Contract or these Conditions. You must not set-off any amounts We actually or potentially owe You against amounts owed to Us under an Order, the Contract or these Conditions without Our written consent.
10. Entire Agreement: Our Contract with You and these Conditions replaces any previous agreements or representations in relation to its subject matter. Our Contract with You and these Conditions and each of its parts, as applicable, contain the entire agreement between the parties in relation to its subject matter.
11. Waiver: A right can only be waived in writing and signed by the party giving the waiver. The failure to exercise or any delay in exercising a right or remedy does not waive the right or remedy. A single or partial exercise or waiver of a right does not waive any other right or breach.
12. Rights Cumulative: The rights and remedies provided in these Conditions and the Contract are cumulative and not exclusive of any rights and remedies provided by law.
13. Counterparts and e-signature: If any part of these Conditions or the Contract, such as an Order, requires signature, then that part may be executed in any number of counterparts and via electronic signatures. The parties agree that electronic signatures have same effect as handwritten signatures.
14. Trustees: If You are the trustee of a trust (whether disclosed to us or not), You warrant to Us that:
  1. You enter into the Contract or an Order in both Your capacity as trustee and in Your personal capacity;
  2. You have the right to be reasonably indemnified out of trust assets;
  3. You have the power under the trust deed to enter into this Contract or an Order and comply with Your obligations;
  4. You will not retire as trustee of the trust nor appoint any new or additional trustee without first notifying Us in writing and having the new or additional trustee sign or accept an agreement on terms substantially the same terms as this Contract; and
  5. You will give us a true and complete copy of the trust deed upon request.
DEFINITIONS & INTERPRETATIONS
1. Unless the context otherwise requires, capitalised terms in these Conditions, Our Orders, and Our Contract with you (and any other document incorporated by reference by these documents) have the following meanings:
  
  “Aureole Systems Materials” means any of Our (or Our licensor’s) material, including Vendor Material, software, software applications, firmware, tools, documentation, reports, data, information, diagrams, procedures, specifications and plans which is:
  1. developed by or for Us independently of or prior to this Contract or an Order; or
  2. enhanced, modified, created or developed by or for Us (or Our licensors) in connection with Our Goods, Services, the Support Portal or this Contract.
    “Business Day” means any day other than a Saturday, Sunday or recognised public holiday in the state of Victoria.
    
    “Client Existing Material” means any of Your or Your Representatives content, information, data or materials which You can establish was developed by You or on Your behalf independently from an Order, the Contract or Our Goods and/or Service supply which You provide or communicate to Us, process, create, generate, upload, use or share via the Goods and/or Services, the Support Portal or in connection with an Order or the Contract.
    
    “Conditions” means these general terms and conditions for Our supply of Goods and Services.
    
    “Confidential Information”

1. 1. 1. includes:
      1. any Orders, this Contract and any information shared by a party in connection with those documents or in connection with the Goods or Services; or
      2. any information shared by a party about the party’s business, products, services, pricing, billing, operations, technical details or any other commercial information of party; and
    2. excludes information which is in or enters the public domain without breach of these Conditions or the Contract.
      
      “Consequential Loss” means any special, indirect, consequential loss or loss which is not a direct result or not flowing naturally from a claim for Loss, including loss of profits, revenue, goodwill, opportunity, anticipated saving or business reputation, loss of use or corruption of software, data or information.
      “Contract” means Our contract with You formed in accordance with and containing the parts specified in clause 2.4.
      
      “Data Incident” is an Eligible Data Breach that has, or is reasonably suspected of having, occurred in respect of any Personal Information collected, held, used or disclosed in the course of or relating to this Contract or the Goods and/or Service supply.
      
      “Eligible Data Breach” has the meaning given to that term in the Privacy Act 1998 (Cth).
      
      “Fee Query” has meaning given in clause 5.1.
      
      “Goods” means any goods supplied, re-sold re-supplied by Us including computer hardware, equipment and any other goods specified in an Order.
      
      “GST” has the meaning given to it under Tax System (Goods and Services Tax) Act 1999 (Cth).
      
      “Initial Term” means the minimum initial period for a Service We supply to You specified in the Order for the relevant Service.
      
      “Intellectual Property Rights” means all registered or unregistered intellectual property rights in Australia and world-wide, including any rights in copyright, patent, trademark, design, circuit layouts, trade secrets, know-how, business or company name, domain names, database rights and Confidential Information.
      
      “Loss” means any and all losses, liabilities, damages, costs and expenses (whether direct, indirect, Consequential Loss or otherwise), including any and all legal fees on a solicitor and client basis and costs of investigation, litigation, settlement, judgement, appeal and interest.
      
      “Order” means any order, quote, proposal or offer in writing issued by Us for the supply of Our Goods or Services.
      
      “Personal Information” has the meaning given in the Privacy Act 1988 (Cth).
      
      “PPSA” means the Personal Properties Securities Act 2009 (Cth).
      
      “PPSR” means the Personal Property Securities Register established under the PPSA.
      
      “Privacy Policy” means Our privacy policy available on our website, currently at: https://aureolesystems.com/privacy-policy/ (which we may update from time to time).
      
      “Rate Schedule” means Our current schedule of hourly Rates used at the time of your Order to calculate supply of Our Services on a time and material basis;
      
      “Rates” means fees, rates and other charges for our Goods and/or Services set out in the Rate Schedule or an Order or otherwise notified by us.
      
      “Renewal Period” means the auto-renewal period for a Service specified in an Order for the relevant Service.
      
      “Representative” means any officer, employee, agent, contractor, subcontractor, consultant or representative of a party.
      
      “Services” means any service supplied by Us to You as detailed in an Order or otherwise confirmed in writing, which may include the supply, re-supply or re-sale of managed services, support, software, phone plans or internet plans.
      
      “Support Portal” means Our customer support portal which We make available to You after You enter a Contract with us if required and included as part of the supply of Our Goods and/or Service.
      
      “Third Party Terms” means a separate licence, agreement, conditions and/or policy of a Vendor for the use of the Vendor’s goods and/or services.
      
      “Transition-Out Services” has the meaning given in clause 7.5.
      
      “Vendor” means a third-party supplier, licensor or manufacturer of goods and/or services that we re-sell or re-supply to our Clients.
      
      “Vendor Change” has the meaning given in clause 2.7.
      
      “Vendor Materials” means any materials provided by a Vendor or made available to You in connection with an Order or this Contract, including any materials subject to Third Party Terms and any software, software applications, firmware, tools, documentation, reports, data, information, diagrams, procedures, specifications and plans of a Vendor.
2. In these Conditions, an Order and the Contract unless the contrary intention appears:
  1. a reference to the singular includes the plural and vice versa;
  2. Reference to any gender shall include every other gender;
  3. Reference to any law, includes regulations and other instruments under it any consolidations, re-enactments or replacements of any of them;
  4. Headings are for convenience only and do not affect the interpretation or construction;
  5. All references to dollars or “$” is a reference to Australian Dollars;
  6. A reference to time is to the time in Victoria, Australia;
  7. A reference to a party includes the successors and permitted assigns of that person;
  8. A reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, estates, state or government. Associations or other legal and commercial entities, and includes the successors and permitted assigns of that person;
  9. A reference a clause, is a reference to a clause in these Conditions or the Contract (or relevant part of the Contract);
  10. A reference to any document is to that document (and, where applicable, any of its provisions), as amended or replaced from time to time;
  11. Where an expression is defined, another grammatical form of that expression has a corresponding meaning;
  12. where the expression including or includes is used it means “including but not limited to” or “including without limitation; and
  13. We will not be disadvantaged in the interpretation of these Condition, the Contract or any of the terms and conditions in any of the parts because We were responsible for drafting these documents or any part of them.