Terms & Conditions
These Supply Terms and Mobilise IT’s Supply Proposal (once signed in accordance with clause 4) will form a binding contract (Supply Contract) between Mobilise IT Pty Ltd (ABN 80 120 220 206) (Mobilise IT) and you the customer in relation to Mobilise IT’s supply of products and/or services to you (as set out in the relevant Supply Proposal). If you the customer wish to appoint and Mobilise IT accepts such an appointment of an agent to provide the billing, collection and payment services under this agreement, this does not in any way negate any of your responsibilities set out herein.
In these Supply Terms:
- Australian Consumer Law means the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth).
- Business Day means a day that is not a Saturday, Sunday, bank holiday or public holiday in Victoria, Australia.
- GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
- Intellectual Property Rights means all intellectual property rights, including the following rights:
- patents, copyright, rights in circuit layouts, registered and unregistered designs, registered and unregistered trade marks, service marks, trade names and any right to have confidential information kept confidential; and
- any application or right to apply for registration of any of the rights referred to in paragraph (a).
- Personal Information means information or an opinion about an identified individual or an individual who is reasonably identifiable (and whether or not the information or opinion is true or recorded in material form).
- Privacy Act means the Privacy Act 1988 (Cth).
- PPSA means the Personal Property Securities Act 1999 (Cth).
- Supply Proposal is defined in clause 4.
- Third Party Product means any software or other product owned by a third party.
ESTABLISHMENT OF TRADING ACCOUNTS
- To order any products or services from Mobilise IT, you must establish a trading account with Mobilise IT. You can apply for a trading account by completing a ‘Trading Account Application Form’.
- Mobilise IT may reject applications for trading accounts in its discretion, including where you do not provide all relevant information requested in the ‘Trading Account Application Form’, or where Mobilise IT is not satisfied with the accuracy or completeness of any of the information provided by you in the Trading Account Application Form.
- By establishing a trading account with Mobilise IT, you agree to be bound by and abide by these Supply Terms and any additional terms, conditions and/or policies specified in any Supply Proposal forming the basis of any Supply Contract.
APPLICATIONS FOR CREDIT LINE
- Once you have established a trading account with Mobilise IT, you may apply for a line of credit for your trading account by completing a ‘Credit Application Form’. The ‘Credit Application Form’ will request certain information and/or guarantees that will be used by Mobilise IT to evaluate your creditworthiness and/or your ability to repay the credit limit requested.
- For the purpose of evaluating your credit application and verifying the information provided by you in relation to your credit application, Mobilise IT may need to:
- disclose some or all of the information provided by you in your ‘Credit Application Form’ to Mobilise IT’s credit reporting agencies; and/or
- request Mobilise IT’s credit reporting agencies to provide, or to collect on Mobilise IT’s behalf, certain other information about you that is relevant to your credit application.
You consent to Mobilise IT doing the things referred to in this paragraph (b).
- Mobilise IT may reject credit applications in its discretion, including where you do not provide all relevant information requested in the ‘Credit Application Form’, where Mobilise IT is not satisfied with the accuracy or completeness of any Mobilise IT – Terms and Conditions of Supply 2 of the information provided by you in your ‘Credit Application Form’, or where Mobilise IT is not satisfied with your creditworthiness and/or ability to repay the credit limit requested based on:
- the information provided in your ‘Credit Application Form’; and/or
- any other information obtained about you from Mobilise IT’s credit reporting agencies.
- Mobilise IT reserves the right to cancel your credit line in the event that you exceed your credit limit and fail to pay any balances due on your credit account immediately on request, or if you fail to pay any of Mobilise IT’s invoices in accordance with clause 8.
- Mobilise IT may from time to time submit written proposals to you in relation to the supply of products and/or services (each a Supply Proposal). A Supply Proposal may also incorporate a Statement of Work for the provision of services.
- A Supply Proposal constitutes an offer by Mobilise IT to supply the relevant products and/or services on the terms of the Supply Proposal and these Supply Terms, and will, subject to clause 6 below, be valid for 14 days from the date of the Supply Proposal (or such longer period as Mobilise IT may agree in writing).
- If you wish to accept a Supply Proposal, you must sign and return to Mobilise IT the ‘Agreement to Proceed’ page of the Supply Proposal, and this will, subject to clause 6 below, constitute a binding Supply Contract between Mobilise IT and you in relation to the supply of the relevant products and/or services in accordance with the terms of the Supply Proposal and these Supply Terms.
- You are responsible for ensuring that any person who signs the ‘Agreement To Proceed’ page of any Supply Proposal has your authority to do so.
- Mobilise IT will not be responsible for any loss incurred by you as a result of any Supply Contracts entered into in the absence of such authority.
- Cancellation fees under clause 12.5 will apply to any Supply Contract for products and/or services entered into or purported to be entered into on your behalf by any representative who does not in fact have the requisite authority to do so.
- To the extent that any currency variations occurring after the date of a Supply Proposal but before the date of any corresponding Supply Contract (Pending Contract Period) result in an increase to Mobilise IT’s costs in relation to the supply of the relevant products and/or services, Mobilise IT reserves the right to withdraw its offer to supply those products and/or services for the prices and/or fees set out in the Supply Proposal, and to revise those prices and/or fees to reflect any increase in its costs resulting from the currency variations.
- To the extent that any currency variations occurring after the Pending Contract Period result in an increase in Mobilise IT’s costs in relation to the supply of the relevant products and/or services, then unless the parties can agree in writing on any applicable resulting increase to the applicable prices and/or fees, Mobilise IT may terminate the Supply Contract:
- in the case of Supply Contracts for the supply of products, at any time prior to the dispatch of the relevant products for delivery to you; and
- in the case of Supply Contracts for the supply of services, at any time prior to the commencement of the relevant services.
- All prices, fees and rates applicable to products and/or services will be as set out in the relevant Supply Contract.
- Unless otherwise specified in a Supply Contract, all prices, fees and rates are expressed in Australian dollars and are exclusive of GST and all other applicable taxes.
For each Supply Contract, Mobilise IT may invoice you for the relevant products and/or services in accordance with any invoicing terms set out in the Supply Contract. If no invoicing terms are specified in the Supply Contract, then:
- for products, Mobilise IT may invoice you (at its option):
- on receipt of the ‘Agreement to Proceed’ page of the relevant Supply Proposal;
- on the dispatch of the products for delivery to you; or
- monthly in arrears, if you have a credit line for your trading account; and
- for services, Mobilise IT may invoice you monthly in arrears.
- You must pay each invoice issued by Mobilise IT within 14 days of the date of the invoice (unless otherwise agreed in the Supply Contract).
- All payments must be made:
- by cheque, payable to Mobilise IT Pty Ltd; or
- by electronic funds transfer, payable to the following bank account:
Bank: Australia and New Zealand Banking Group Limited (ANZ)
Account Name: Mobilise IT Pty Ltd
Account BSB: 013345
Account no: 904892953
(or such other bank account nominated by Mobilise IT in writing).
- Mobilise IT may, at its discretion, and without limiting its other rights and remedies under a Supply Contract:
- charge interest on any overdue amount at the rate of 2% above the prevailing base lending rate quoted by the ANZ Bank, calculated on a daily basis from the date payment became due until Mobilise IT receives payment of the overdue amount and the associated interest charged; and/or
- charge a service fee of $25.00 for every invoice that is re-issued because you have either lost or misplaced the original invoice issued.
If you dispute the validity of all or part of any invoice:
- you must promptly give Mobilise IT notice of the details and nature of the dispute;
- at your request (which must be made at the same time or promptly after notification of a dispute), Mobilise IT will reissue the invoice for the undisputed amount;
- you must pay the undisputed amount within 14 days of the date of the re-issued invoice;
- the parties must continue to perform their other obligations under the Supply Contract; and
- either party may invoke the dispute resolution procedure set out in clause 18 to attempt to resolve the dispute.
GOODS AND SERVICES TAX
If you dispute the validity of all or part of any invoice:
- Words or expressions that are defined in the GST Act have the same meaning when used in this clause 11.
- Any consideration or amount to be paid or provided for a supply made under or in connection with a Supply Contract, unless specifically described as GST inclusive, does not include GST payable on that supply.
- If a party (Supplier) makes a supply under or in connection with a Supply Contract on which GST is imposed (not being a supply the consideration for which is specified as GST inclusive):
- the consideration payable or to be provided for that supply but for this clause (GST exclusive consideration) is increased by, and the recipient of the supply (Recipient) must also pay to the Supplier, an amount equal to the GST payable by the Supplier on that supply; and
- the amount by which the GST exclusive consideration is increased must be paid to the Supplier by the Recipient without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.
- If a payment to a party under a Supply Contract is a reimbursement or indemnification calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party is entitled for that loss, cost of expense.
GOODS AND SERVICES TAX
The provisions of this clause 12 apply to the supply of products.
Delivery and acceptance
- Mobilise IT will use its reasonable commercial efforts to deliver the products to you by the estimated delivery dates. Despite the previous sentence, you acknowledge and agree that the delivery dates are (non-binding) estimates only, and that:
- subject to clause 14.b), Mobilise IT is not liable for any loss, damage or delay occasioned to you arising from the late or non-delivery of the products; and
- you will have no right to reject products due to the products not being delivered by the estimated delivery dates.
- Mobilise IT may, at its option, deliver the products to you in any number of instalments (unless specified otherwise in a Supply Contract).
- It is your obligation to inspect all products on delivery. You will be deemed to have accepted the products unless you notify Mobilise IT in writing of any alleged defects or delivery shortage within 10 Business Days of delivery of the products.
Title and risk
- Title in all products will pass from Mobilise IT (or any relevant third party supplier) to you on the payment by you of the agreed price(s) in full and, where applicable, any and all associated late fees.
- The risk of any loss or damage to the products from any cause passes to you with the passing of title, except to the extent that payment for any products is received after delivery of the products, in which case risk passes from Mobilise IT to you in respect of those products on the dispatch of the products for delivery to you.
- It is your sole responsibility to maintain insurance cover with a reputable insurer over all products supplied to you by Mobilise IT (including the transportation of products to you by any courier). Subject to clause 14.b), Mobilise IT is not responsible to you (including in negligence) for any loss or damage to the products once those products have left the premises of Mobilise IT (however caused, and whether or not Mobilise IT is legally responsible for any person who caused or contributed to that loss or damage).
- Mobilise IT and its third party licensors retain all Intellectual Property Rights in products supplied to you under a Supply Contract.
- To the extent that products incorporate any software (Product Software), you are granted a licence to use that Product Software on and subject to any licence terms (including any third party licence terms) set out or referenced in the Supply Contract.
- If no licence terms are specified or referenced in the Supply Contract, then Product Software is licensed to you:
- for use in Australia only;
- on a non-transferable, non-sublicensable and non-exclusive basis;
- solely for the purpose of operating the products and for your internal business purposes;
- subject to your compliance with all reasonable directions issued by Mobilise IT regarding the use of the Product Software; and
- subject to the payment of all applicable licence fees,
and provided that you do not:
- modify, add to, adapt, delete or amend any part of the Product Software without Mobilise IT’s prior written consent;
- sell, translate, network, publish, commercialise, rent, lease, assign, transfer, loan or otherwise distribute all or part of the Product Software, or any adaption, modification or derivative of all or part of the Product Software;
- reverse engineer, disassemble or decompile the Product Software, unless permitted to do so by law, and then only strictly in accordance with the provisions or terms under which that right is given by such law; or
- use the Product Software (or the products incorporating the Product Software):
- for any High Risk Activities (as defined in clause 16);
- for any unlawful purpose; or
- in a manner that contravenes any applicable laws.
- Mobilise IT reserves the following rights in relation to the products until you have paid for them in full:
- to enter your place of business or the place of business of any associated person or company anywhere the products are located without liability for trespass or any resulting damage and retake possession of such products ;
- to suspend indefinitely any and all managed application, managed service and hosting services supplied to you by Mobilise IT required for such products to operate (if applicable); and
- to keep or resell any products repossessed pursuant to paragraph (i) above.
- Until title in the products passes from Mobilise IT (or any relevant third party supplier) to you, you are the bailee of the products.
- If you on-sell the products before you pay Mobilise IT for them in full, you agree:
- to receive the proceeds of the on-sale on trust for and as agent for Mobilise IT; and
- to immediately apply the proceeds of the on-sale in payment of any amount outstanding to Mobilise IT for the supply of the products.
- You acknowledge that, until you pay Mobilise IT the agreed price(s) for the products in full and, where applicable, any and all associated late fees, each Supply Contract constitutes a security agreement for the purposes of section 20 of the PPSA.
- You grant a security interest to Mobilise IT over all products (and any associated proceeds from their sale) previously supplied by Mobilise IT (if any) and in all in future products that may be supplied by Mobilise IT.
- You acknowledge that you have received value as at the date of first delivery of the products and you have not agreed to postpone the time for attachment of the security interest (as defined in the PPSA) granted to Mobilise IT under each Supply Contract.
- You will execute documents and do such further acts as may be required by Mobilise IT to register the security interest granted to Mobilise IT pursuant to each Supply Contract under the PPSA.
- You must not give to Mobilise IT a written demand, or allow any other person to give Mobilise IT a written demand, requiring Mobilise IT to register a financing change statement under the PPSA in respect of Mobilise IT’s interest in the products.
- You agree not to sell, lease, mortgage, deal with, dispose of or create or attempt to create any other security interest in or affecting the products unless and until all your outstanding debts to Mobilise IT have been satisfied.
- You agree to waive your rights under the following provisions of Chapter 4 of the PPSA:
- to receive a notice on enforcement action against liquid assets (section 121(4));
- to receive a notice to seize collateral (section 123);
- to receive a notice of disposal of products by Mobilise IT purchasing the products (section 129);
- to receive a notice to dispose of products (section 130);
- to receive a statement of account following disposal of products (section 132(2));
- to receive a statement of account if no disposal of products for each 6 month period (section 132(4));
- to receive notice of any proposal of Mobilise IT to retain products (section 135(2));
- to object to any proposal of Mobilise IT to either retain or dispose of products;
- to redeem the products (section 142);
- to reinstate the security agreement (section 143); and
- to receive a notice of any verification statement (section 157(1) and section 157(3)).
- The rights Mobilise IT may have under the PPSA are supplementary and in addition to those set out any Supply Contract and do not derogate from the rights and remedies of Mobilise IT under the Supply Contract or under any other statute or under general law.
- You must give 10 Business Days prior written notice of any proposed change in your name or other identifying characteristics (such as your ACN, ABN or ARBN) and details.
You may cancel a Supply Contract for products at any time prior to the date on which those products are dispatched for delivery to you by giving notice in writing to Mobilise IT, subject to payment by you of the following cancellation fees (which you acknowledge and agree reflect a genuine pre-estimate of the losses likely to be incurred by Mobilise IT as a result of the cancellation and do not constitute a penalty):
- where the cancellation notification is received by Mobilise IT on or before the expiry of 3 Business Days from the date on which Mobilise IT receives the signed ‘Agreement to Proceed’ page of the Supply Proposal from you, the cancellation fee is 10% of the total price(s) for the products as specified in the Supply Contract;
- where the cancellation notification is received by Mobilise IT later than 3 Business Days but on or before the expiry of 5 Business Days from the date on which Mobilise IT receives the signed ‘Agreement to Proceed’ page of the Supply Proposal from you, the cancellation fee will be 25% of the total price(s) for the products as specified in the Supply Contract; and
- where the cancellation notification is received by Mobilise IT later than 5 Business Days from the date on which Mobilise IT receives the signed ‘Agreement to Proceed’ page of the Supply Proposal from you, the cancellation fee will be 100% of the total price(s) for the products as specified in the Supply Contract.
SPECIAL TERMS APPLICABLE TO SERVICES
The provisions of this clause 13 apply to the supply of services.
- Mobilise IT will supply to you the services (including deliverables, if any) set out in the Supply Proposal forming the basis of any Supply Contract.
- Where a Supply Contract specifies a fixed commitment to timeframes, Mobilise IT will use its reasonable commercial efforts to meet those timeframes. Without limiting the previous sentence, you acknowledge that timeframes may not be met to the extent that you or your staff or third party contractors cause delays, or any assumptions in the Supply Contract prove to be incorrect.
Mobilise IT’s understanding of any relevant assumptions in relation to the services are as set out in the relevant Supply Proposal. If you are aware (or become aware) of any matters which render those assumptions incorrect or inapplicable, you must inform Mobilise IT as soon as reasonably practicable, and in any event, before those matters materially affect Mobilise IT’s ability to supply the services.
Required inputs and delays
- You agree that, to supply the services adequately, Mobilise IT will require certain inputs and assistance from you (including as set out in this clause 13.3).
- You agree:
- to provide Mobilise IT with all office and other accommodation and facilities (such as telephone and internet access, printing and security access) that Mobilise IT may reasonably require to supply the services. You agree to provide Mobilise IT with copies of all relevant safety and security procedures with which you wish Mobilise IT to comply;
- to provide all information and materials required to enable Mobilise IT to supply the services. Subject to clause 14.b), Mobilise IT will not be liable for any loss or damage arising from:
- your reliance on;
- your failure to provide or your delay in providing; or
- any inaccuracy, omission or other defect in,
- to provide all information and materials required to enable Mobilise IT to supply the services. Subject to clause 14.b), Mobilise IT will not be liable for any loss or damage arising from:
any such information or materials. In particular, you acknowledge that Mobilise IT will rely on such information and materials in order to supply the services, and that any failure, delay or inaccuracy on your part in providing (or omitting to provide) such information and materials may affect Mobilise IT’s ability to supply the services (including any advice Mobilise IT may provide to you). Mobilise IT will not acquire any Intellectual Property Rights in any such information or materials; and
- to ensure that your staff provide all assistance that Mobilise IT reasonably requires to enable Mobilise IT to supply the services. You will be responsible for ensuring that your staff have the appropriate skills and experience. If any of your staff fail to perform as required, you will ensure that, on request by Mobilise IT, additional or alternative staff, with appropriate skills and experience, are made available. Where you are using contractors or other third parties, you will be responsible for managing them, and for any breach of a Supply Contract caused by them.
- If you cause a delay which in turn delays Mobilise IT from supplying the services, then you agree to pay Mobilise IT all costs, expenses and losses reasonably incurred by Mobilise IT as a result of the delay. Mobilise IT will not be liable for any breach of Mobilise IT’s obligations to the extent resulting from that delay.
- You will own the copyright in all deliverables identified in the Supply Proposal as ‘Client Materials’, except to the extent that they comprise items in which we, or third parties, have pre-existing Intellectual Property Rights (or which comprise improvements to such pre-existing Intellectual Property Rights).
- We will own the copyright in all deliverables and other materials not identified as ‘Client Materials’. You will have a non-exclusive, non-transferable licence to use these deliverables for your own internal use, but you must not provide these deliverables or copies of them to any third party without first obtaining our written permission.
- The Supply Contract does not prevent or restrict us from developing and using any ideas, concepts, information, tools, methodologies or know-how reromang to methods or processes of general application, including those in the fields of mobile workforce solutions, application development and technology consulting.
- To the extent that you acquire products and/or services from Mobilise IT as a consumer within the meaning of the Australian Consumer Law, you may have certain rights and remedies (including consumer guarantee rights) that cannot be excluded, restricted or modified by agreement.
- Nothing in a Supply Contract operates to exclude, restrict or modify the application of any implied condition, warranty, provision, the exercise of any right or remedy, or the imposition of any liability, under the Australian Consumer Law or any other statute, where to do so would:
- contravene that statute; or
- cause any of these Supply Terms or the terms of any Supply Contract to be void,
- Except in relation to Non-excludable Obligations, all conditions, warranties, guarantees, rights, remedies, liabilities or other terms that may be implied by custom, under the general law or by statute, are expressly excluded under these Supply Terms and each Supply Contract.
- Except in relation to Non-excludable Obligations, Mobilise IT’s liability to you arising directly or indirectly under or in connection with these Supply Terms or any Supply Contract, whether arising under an indemnity, statute, in tort (for negligence or otherwise), or on any other basis in law or equity, is limited as follows:
- Mobilise IT excludes all liability for loss or revenue, loss of goodwill, loss of customers, loss of capital, downtime costs, loss of profit, loss of or damage to reputation, loss under or in relation to any other contract, loss of data, loss of use of data, loss of anticipated savings or benefits, or any indirect, consequential or special loss, damage, cost or expense or other claims for consequential compensation, incurred by or awarded against you under or in any way connected with these Supply Terms or any Supply Contract; and
- Mobilise IT’s total aggregate liability for the supply of any products and/or services under any Supply Contract is otherwise limited to the lesser of:
- AUD$10,000; and
- the amounts paid by you to Mobilise IT under the Supply Contract.
- In relation to Non-excludable Obligations (other than a guarantee as to title, encumbrances or quiet possession conferred by the Australian Consumer Law), except for goods or services of a kind ordinarily acquired for personal, domestic or household consumption (in respect of which Mobilise IT’s liability to you is not limited under this paragraph e)), Mobilise IT’s liability to you for a failure to comply with any Non-excludable Obligation is limited to:
- in the case of goods, the cost of replacing the goods, supplying equivalent goods or having the goods repaired, or payment of the cost of replacing the goods, supplying the equivalent goods or having the goods repaired; and
- in the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again.
Any Third Party Product forming or supplied as part of any products and/or services supplied by Mobilise IT to you is supplied subject to the terms of any licence or other agreement accompanying the Third Party Product. Subject to clause b), Mobilise IT has no liability to you (including in negligence) for any Third Party Product.
HIGH RISK ACTIVITIES
The products and/or services supplied by Mobilise IT are not designed, nor any part of them intended, for use in hazardous environments requiring fail-safe performance (such as the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, life support machines or weapons systems) in which the failure of the products and/or services could lead to death, personal injury or severe physical or environmental damage (High Risk Activities). You agree:
- not to use the products and/or services with respect to any High Risk Activities; and
- to indemnify Mobilise IT against all losses, expenses, damages and costs (on a solicitor and own client basis and whether incurred by or awarded against Mobilise IT) that Mobilise IT may sustain or incur as a result, whether directly or indirectly, of any third party claims reromang to any such High Risk Activities.
The disclosure by you of Personal Information to Mobilise IT in relation to your application for a trading account and/or credit line, or in connection with any Supply Contract formed between you and Mobilise IT under these Supply Terms, may be subject to the Privacy Act. All products and/or services suppled to you under any Supply Contract are supplied on the basis that you will only disclose Personal Information to Mobilise IT provided that:
- it is for a purpose related to the supply of the products and/or services;
- you have made all disclosures required under the Privacy Act;
- you have obtained any consents required under the Privacy Act; and
- to do so would not otherwise breach the Privacy Act.
TERM AND EXTENSION
- If you the customer does not give Mobilise IT at least ninety (90) days’ written notice prior to the end of the then current term of a Supply Contract that you do not wish to extend the term of that Supply Contract, then subject to paragraph (b), the term of that Supply Contract will automatically extend:
- for a 12 month period in relation to the Product(s) detailed within the applicable Supply Proposal; and
- on a month-to-month basis for Service(s) detailed within the applicable Supply Proposal, unless the Service(s) are provided for an annual upfront cost, in which case the Supply Contract will be extended for a 12 month period.
- An extension referred to in paragraph (a) will not apply if, at any time prior to the date on which the Supply Contract would otherwise have been automatically extended, Mobilise IT notifies you in writing that the Supply Contract will not be extended.
- If either party breaches a Supply Contract in a material way, the other party may give notice requiring the breach to be remedied within 20 Business Days. If the breach is not so remedied, the party serving notice may serve a further notice terminating the Supply Contract with immediate effect. You agree that your failure to pay an invoice by the due date for that invoice constitutes a breach of the relevant Supply Contract in a material way.
- Either party may terminate a Supply Contract immediately by written notice if the other party is unable to pay its debts or has a receiver, administrator, administrator receiver or liquidator appointed, or calls a meeting if its creditors, or for any other reason ceases to carry on business, or if any of these events appear reasonably likely to occur.
- These termination provisions do not affect:
- your right to cancel a Supply Contract for products in accordance with clause 12.5 (subject to the payment of the applicable cancellation fees); or
- Mobilise IT’s right to cancel a Supply Contract in accordance with clause (b).
- Other than the express termination rights conferred under a Supply Contract, each party hereby waives any other right or power it may have (whether in contract, in tort or under common law or statute) to terminate that Supply Contract for any reason whatsoever.
Neither party will be liable to the other party for any failure to fulfil, or delay in fulfilling, its obligations caused by circumstances outside of its reasonable control (including illness of Mobilise IT’s staff or third party contractors). However, this clause 20 does not apply to any of your obligations to pay monies for products and/or services supplied to you.
- A party must not start court proceedings (except proceedings seeking interlocutory relief) in respect of a dispute arising out of these Supply Terms or any Supply Contract (Dispute) unless it has complied with this clause 18.
- A party claiming that a Dispute has arisen must give each party to the Dispute notice setting out details of the Dispute. Each party to the Dispute (Disputant) must use its best efforts to resolve the Dispute within 10 Business Days after the notice is given under this clause 18 (or any longer period agreed by the Disputants) (Initial Period).
- If the Disputants cannot resolve the Dispute within the Initial Period, the Dispute must be referred to the CEO (or their nominee) of each Disputant who must use their best efforts to resolve the Dispute within 10 Business Days after the Dispute is referred to them (Second Period). After the Second Period, a Disputant that has complied with clause 18 may terminate the dispute resolution process by giving notice to each other Disputant.
- If a Disputant breaches any part of this clause 18, each other Disputant does not have to comply with this clause.
- Any notice required or authorised to be given or served on a party under these Supply Terms or any Supply Contract must be in writing and delivered personally, by pre-paid registered letter, by facsimile or by email addressed to the relevant party as set out in the relevant Supply Contract.
- Notice will be deemed given on the date of personal delivery, within the 3 days of mailing, if by facsimile transmission on receipt by the sender’s facsimile machine of notification from the receiver’s machine that all pages were successfully transmitted, or if by email, when the email becomes capable of being retrieved by the addressee.
- In these Supply Terms:
- the singular includes the plural and vice versa, and a gender includes other genders and another grammatical form of a defined word or expression has a corresponding meaning;
- a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity; and
- the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions.
- If there is any inconsistency between these Supply Terms and the terms of a Supply Proposal, the terms of the Supply Proposal will prevail to the extent of the inconsistency.
- The laws of the State of Victoria, Australia, govern these Supply Terms and each Supply Contract, and you and Mobilise IT irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of that State.
- A provision of these Supply Terms or any Supply Contract may only be waived in writing signed by Mobilise IT.
- Each Supply Contract constitutes the entire agreement between you and Mobilise IT as to its subject matter, and supersedes all prior or inconsistent statements or representations as to that subject matter.