Legal

1. Introduction

These terms and conditions of business, as amended from time to time and made available at neweratech.com/au/legal/ (Terms and Conditions) apply to any supply of goods and/or services by New Era Technology Holdings Pty Ltd ABN 56 643 947 684 and its operating subsidiaries* (New Era) to you (Client).

The application of these Terms and Conditions will commence on the date on which the Client first request provision of goods and/or services from New Era and shall continue until terminated in accordance with these Terms and Conditions.

2. Orders and Payment

New Era shall provide the specified goods and/or services to the Client.

Where a written quotation or statement of work (Quotation) has been given by New Era, the selling price is the price specified in the Quotation. In any other case, New Era’s selling price is the price specified in the price list as at the date of dispatch. New Era may at any time change its price list to reflect, among other things, changes in exchange rates or the imposition of any duties, levies or other taxes and the Client is bound by those changes. New Era may charge a reasonable handling fee for all orders delivered to the Client.

The price for any variations to the work set out in Quotation must be agreed in writing, If agreement cannot be reached, the price for the variation shall be calculated on the same basis as that set out in the Quotation.

Once an order has been accepted by New Era, it cannot be cancelled by the Client. The supply of goods and/or services is subject to availability. New Era reserves the right to suspend or discontinue the supply of goods and/or services to the Client. If New Era is unable to supply all of the Client’s order, these Terms and Conditions continue to apply to any part of the order supplied.

Payment terms are 14 days from date of invoice, unless otherwise agreed in the Quotation.  Where the Quotation specifies that the Client must be approved for credit, payment shall be made by the Client to New Era before the delivery of goods and/or the performance of the services, unless and until the Client has executed a credit application that has been accepted by New Era in writing. In that case, once a credit application has been approved, the Client agrees to pay New Era the goods and services fees within 14 days from the date of invoice or such other period as stated in the terms of New Era’s acceptance of the credit application, without deduction.

If any part of an invoice is in dispute, the balance will remain payable and must be paid when due.  If the Client disputes any amount specified in an invoice, it must notify New Era (with reasonable details why it considers the invoiced amount is incorrect) within 10 Business Days after the date of the invoice.  The Client has no right to set-off any claim against New Era from moneys owing to New Era.

3. Default

If the Client does not make payment by the due date, exceeds its credit limit at any time (where the Quotation specifies that the Client must be approved for credit), commits a material breach of these Terms and Conditions or an insolvency event in respect of the Client arises or is reasonably suspected by New Era, New Era may (without limiting any other right or claim it may have against the Client) do any or all of the following:

• Charge the Client interest calculated on a daily basis on any portion of the Client’s account that is overdue at the rate of 12% per annum, compounding monthly, calculated from the date the payment was due until any payment is made in full (both dates inclusive);
• engage debt collection agencies to recover the overdue amount;
• Vary or withdraw any approved credit limit and/or terms of trade;
• Cancel or suspend any unfilled orders or cease providing any services;
• Terminate any contracts between New Era and the Client and demand immediate payment of any moneys due and outstanding under those contracts;
• Cancel any rebate, discount or allowance due or payable by New Era as at the date of the event;
• Enter (at any time) any premises in which New Era’s goods are stored, to enable New Era to inspect the goods and reclaim possession of the goods without liability for the tort of trespass, negligence or payment of any compensation to the Client whatsoever provided New Era has given the Client at least 48 hours written notice of its intention to enter the premises except in cases where New Era reasonably believes the goods are at risk of being damaged, concealed or removed; or
• Institute any recovery process as New Era in its discretion decided at the Client’s cost and expense.

4. Return of Goods to New Era

To the extent permitted by law, no claim for return of goods will be recognised by New Era unless received by New Era within 5 days of Client receipt of goods and unless expressly allowed otherwise by New Era. Goods procured to Client instructions or specifications are non-returnable and opened goods are non-returnable.

5. Expenses

The Client shall reimburse to New Era all expenses incurred by New Era in providing goods and/or services including, but not limited to travel expenses, accommodation expenses, parts and other consumables. New Era shall first obtain the written consent of the Client to incur the cost.

6. Taxes

Unless stated otherwise, if a Taxable Supply is made under these Terms and Conditions the party which made the supply (the ‘Supplying Party’) may in addition to the amount payable under these Terms and Conditions recover from the other party (the ‘Receiving Party’) an additional amount on account of GST, calculated by multiplying the amount payable by the GST Rate.

Where a Taxable Supply is made under these Terms and Conditions the Supplying Party shall issue to the Receiving Party a Tax Invoice or an Adjustment Note, as applicable, in accordance with the GST Law.

In these Terms and Conditions, “GST”, “GST Law”, “GST Rate”, “Taxable Supply”, “Tax Invoice” and “Adjustment Note” have the meanings given in section 195-1 of A New Tax System (Goods and Services Tax) Act 1999 (Cth).

7. Right of Entry

The Client agrees to provide New Era and its personnel access to the Client’s premises and such information and equipment as is reasonably necessary to enable New Era to provide the goods and/or perform the services.

8. Confidentiality and Intellectual Property

The Client and its employees and agents shall not disclose or permit to be disclosed to any third party any confidential information of New Era, except as permitted by New Era in writing or as required by law.

The intellectual property rights in all intellectual property owned by New Era at the commencement of the application of these Terms and Conditions remains the property of New Era. The intellectual property rights in all intellectual property developed by New Era, in providing the goods and/or performing the services to the Client shall become and remain the property of New Era unless expressly agreed otherwise in writing. All intellectual property rights in data, information, materials utilized by New Era in providing the goods and/or services, including, without limitation, all software, tools, know-how, methodologies, equipment or processes, shall remain New Era’s sole and exclusive property.

The Client shall not, without the written approval of New Era, disclose to any third party (other than their legal advisers, or otherwise as required by law) these Terms and Conditions.

9. Indemnity

Without limiting New Era’s remedies under these Terms and Conditions, the Client will indemnify New Era for any debt collection or recover fees, including legal fees, incurred in recovering those unpaid Fees.

10. Limitation of Liability

Where any legislation implies into or applies to these Terms and Conditions, any term, condition, warranty or guarantee (a Relevant Term), and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under the Relevant Term, the Relevant Term is deemed to be included in these Terms and Conditions.  However, to the maximum extent permitted by law, the liability of New Era for any breach of the Relevant Term is limited at the option of New Era to providing again or paying the cost of providing again the goods or services in respect of which the breach occurred.

Except in relation to Relevant Terms and the liability referred to in this clause 10, to the maximum extent permitted by law, the liability of a party under or in connection with this Terms and Conditions (including in contract, tort or for any other common law or statutory cause of action) is limited in the aggregate to the Fees paid or payable by the Customer under this Agreement in the 12 months immediately preceding the claim.

11. Consequential Loss

To the extent permitted by law, New Era excludes all liability for any Consequential Loss incurred by or awarded against the Client arising in any way out of or in relation to the supply of goods and/or services (even if due to the negligence of New Era).  For these purposes, “Consequential Loss” means any loss of profits, loss of revenue, loss of anticipated savings, loss of production or use, loss of or damage to data, loss of or damage to goodwill or reputation, or any special, direct, indirect, punitive, consequential or incidental damages.

12. Termination

Without limiting its other rights to terminate under this clause, New Era may by written notice to the Client, terminate these Terms and Conditions immediately if the Client:

• Commits a breach of a provisions of these Terms and Conditions which is not capable of remedy;
• Commits a breach of a provision of these Terms and Conditions which is capable of remedy, but which is not remedied by the Client within 10 Business Days of receiving notice from New Era requesting that it be remedied; or
• Becomes subject to any form of insolvency administration or winding up.

If the Client fails to pay Fees due under these Terms and Conditions (which are undisputed) within 10 Business Days after the applicable invoice date, then New Era may:

• issue a demand to the Client clearly stating the amount that is overdue and requesting payment; and
• if the overdue amount has not been paid within 5 Business Days of service of New Era’s request above, suspend any further performance of the services and terminate the Terms and Conditions on 30 days’ written notice to the Customer.

On termination of these Terms and Conditions the Client agrees to make payment to New Era for all services performed and goods provided up to the date of termination.

13. Restraint

During the application of these Terms and Conditions and for a period of six (6) months following termination of these Terms and Conditions the Client will not attempt to induce or solicit any employee, contractor or agent to leave the employment of New Era.  If the Client solicits, recruits or employs an employee of New Era in breach of this clause 13, the Client must pay to New Era on demand an amount equal to 30% of the relevant employee’s gross annual salary (including superannuation) as at the last day of their employment by New Era.

14. Retention of Title and Personal Property

All goods provided to the Client from New Era remain the property of New Era, notwithstanding delivery to the Client, until payment in full for those goods is received by New Era.

All risk in goods provided to the Client shall pass to the Client on delivery.

The Client acknowledges and agrees that by assenting to these Terms and Conditions, the Client grants a security interest (by virtue of this clause) to New Era in all goods supplied by New Era to the Client (if any) and all other goods that will be supplied in the future by New Era to the Client (or to its account) during the continuance of the relationship between New Era and the Client.

The Client will do such acts and provide such information (which information the Client warrants to be complete, accurate and up to date in all respects) as in the opinion of New Era (acting in its absolute discretion) may be necessary or desirable to enable New Era to perfect under the Personal Property Securities Act (PPSA) the security interest created.

To the extent permitted by law, the Client waives any right under the following provisions of the PPSA:

• receive a copy of a verification statement under section 157 of the PPSA;
• to receive notice of the removal of an accession under section 95 of the PPSA;
• to retain the accession under section 96 of the PPSA;
• to receive notice of any subsection 120(2) action in relation to a security interest in collateral under section 121(4) of the PPSA;
• to dispose of or retain collateral under s 125 of the PPSA;
• to receive notice of a disposal of collateral under section 130 of the PPSA;
• to receive a statement of account under section 132(4) of the PPSA;
• to redeem collateral under section 142 of the PPSA; and
• to reinstate the security agreement under section 143 of the PPSA;

and agrees, to the extent permitted by law, that as between New Era and the Client contract out of section 115 of the PPSA, except section 115(g) in relation New Era’s right to seize collateral.

The Client agrees not to exercise its rights to make any request of New Era under section 275 of the PPSA.  This does not limit the Client’s rights to request information other than under section 275 of the PPSA.  Neither the Client nor New Era will disclose any information of the kind mentioned in section 275(1) of the PPSA unless section 275(7) of the PPSA applies.

The Client must pay the costs, charges and expenses of and incidental to the need for, or desirability of registration of, a financing statement or financing change statement or any action taken by New Era to comply with the PPSA or to protect its position under the PPSA. The Client must pay any costs incurred by New Era, including legal costs on a solicitor-own client basis, arising from any disputes or negotiations with third parties claiming an interest in any goods supplied by New Era.

15. Force Majeure

A party will not be liable for any failure or delay in the performance of its obligations under these Terms and Conditions if that failure or delay is due to force majeure, however, this clause does not apply to any Client obligation to pay money for goods provisioned or services performed by New Era prior to such force majeure event.

16. Event of Inconsistency

Unless expressly stated otherwise in New Era supplied documentation or as provided below (if any) should there be any inconsistency between the provisions of these Terms and Conditions and the provisions of the New Era supplied documentation, these Terms and Conditions shall prevail to the extent of that inconsistency.

Notwithstanding the above:

• In the event of an executed and current contract between the Client and New Era should there be any inconsistency between the provisions of these Terms and Conditions and the provisions of said executed and current contract, the executed and current contract shall prevail to the extent of that inconsistency.
• If indicated on the Quotation, the provisions of the Quotation shall prevail to the extent of any inconsistency between the Quotation and these Terms and Conditions.
• In the event the Client provides a purchase order, for purchase of goods and/or services from New Era, any terms on such purchase order that are in addition to or in contradiction of these Terms and Conditions shall be inapplicable and unenforceable, unless expressly agreed otherwise in writing by New Era.

17. Assignment

The Client will not, without the prior written consent of New Era, assign or attempt to assign its rights or obligations under these Terms and Conditions.

18. Governing Law

These Terms and Conditions shall be interpreted in accordance with the laws of the State or Territory in the Commonwealth of Australia in which the goods and/or services are provided by New Era, and the parties agree to submit to the exclusive jurisdiction of the courts of that State or Territory in the Commonwealth of Australia.

19. Waiver

The failure of New Era at any time to insist on performance by the Client of any obligation under these Terms and Conditions is not a waiver of New Era’s right to insist on the providing of, or to claim damages for breach of, that obligation unless New Era acknowledges in writing that the failure is a waiver; and any delay in exercising New Era’s right is not a waiver of that right or any other right including the right to insist on performance of that or any other obligation at any other time.

20. Severability

Any provision of these Terms and Conditions which is illegal, void or unenforceable will be ineffective to the extent only of such illegality, voidness or unenforceability without invalidating the remaining provisions of these Terms and Conditions.

For further information contact us on contactus.au@neweratech.com

* New Era Technology Holdings Pty Ltd ABN 56 643 947 684 subsidiaries including including, but not limited to, New Era Technology Pty Ltd ABN 24 068 136 274, Intellidata Systems Pty Ltd ABN 23 623 337 815, Intervolve Pty Ltd ABN 85 126 029 203, New Era Technology – SE Pty Ltd ABN 88 088 825 209, Security Shift Cloud Pty Ltd ABN 65 616 303 505, New Era Technology – NE Pty Ltd ABN 84 128 939 631, New Era Technology – NN Pty Ltd ABN 69 002 476 655, Avante IT Pty Ltd ABN 77 105 254 724, Dancrai Pty Ltd 57 167 977 956, New Era Technology AU-05 Pty Ltd ABN 78 114 647 942, New Era Technology AU-05-01 Pty Ltd ABN 34 076 491 917, New Era Technology AU-06 Pty Ltd ABN 41 150 528 724.