Terms and Conditions

1 Definitions, Interpretation and Priority
Company means nx2000 Pty Ltd trading as Nexus IT.
Confidential Information means all information of
a confidential nature that a party first becomes aware
of as a result of its involvement with the other party
for the purposes of this Agreement but excluding
information that:
(a) the party creates independently;
(b) is public knowledge (other than as a result of a
breach of confidentiality by that party); or
(c) is obtained without restriction from a third party
through no breach of confidentiality by that third
Consequential Loss means loss of revenue, loss of
profits, loss of anticipated savings, pure economic
loss, loss of data, loss of value of equipment (other
than the cost of repair or replacement) loss of
opportunity or expectation loss and any other form of
consequential, special, indirect, punitive or exemplary
loss or damages.
Customer means the recipient of the Quotation.
Customer Data means data relating solely to the
Customer provided by the Customer to the Company.
Insolvency Event means:
(a) any step is taken to enter into any scheme of
arrangement with creditors;
(b) any step is taken to appoint a receiver or manager,
a liquidator, an administrator or other like person;
(c) the suspension of payment of debts generally; or
(d) presumed insolvency for the purposes of any
provision of the Corporations Act 2001 (Cth).
Intellectual Property Rights means any intellectual
or industrial property rights (including any registered
or unregistered trademarks, patents, designs or
Loss means any loss, cost, liability or damage,
including reasonable legal costs on a solicitor/client
basis and includes Consequential Loss, unless
otherwise stated.
Price means the charge(s) for the Products and
Products means any goods provided by the
Company to the Customer under this Agreement.
Quotation means the attached quotation, proposal
or other similar document.
Related Body Corporate has the meaning given in
the Corporations Act 2001 (Cth).
Services means any services provided by the
Company to the Customer under this Agreement.
Tax means any value-added or goods and services
tax, withholding tax, charge (and associated penalty
or interest), rate, duty or impost imposed by any
authority at any time, but does not include any tax on
income or capital gains.
(a) The expressions ‘Company’ and ‘Customer’ will
include respective successors and permitted assigns
and novatees.
(b) A reference to a person includes a reference to a
person, firm, corporation or other legal entity.
(c) A term which is defined in any part of the
Agreement has the same meaning in every other part
of the Agreement.
(d) The singular includes the plural and vice versa.
(e) Different grammatical forms of the same word
have the corresponding meaning.
(f) A reference to a clause is to a clause in this
Agreement, unless otherwise stated.
(g) Examples or words of inclusion are illustrative only
and do not limit the generality of the relevant subject.
2 Provision
2.1 The Company will provide and the Customer will
acquire the Products and Services set out in the
2.2 The Customer must provide the Company with all
reasonable information, access, storage, facilities and
assistance that the Company requires in order to
provide the Products and Services.
2.3 The Company may use any of its Related Bodies
Corporate to assist it with the provision of the
Products and Services under this Agreement.
2.4 Unless specified otherwise in the Quotation, all
Services and Products are supplied on the basis that
the Customer will be responsible for:
(a) overall operational, design, installation,
configuration and support; and
(b) ensuring that it has valid licence arrangements for
off the shelf software incorporated into, or necessary
for the provision of, the Products of Services.
3 Products
3.1 Unless specified otherwise in the Quotation, the
Customer must, in addition to the Price, pay for all
freight, handling and insurance charges payable in
connection with the delivery of the Products to the
3.2 The Company will use all reasonable endeavours
to ensure that delivery times set out in the Quotation
are met but the Customer acknowledges that such
times are estimates only.
3.3 The Company may make part-delivery of any
Products and this Agreement will apply separately to
each part-delivery.
3.4 Risk in the Products passes upon delivery.
3.5 Title to the Products passes upon payment in full.
3.6 Until title has passed under clause 3.5, the
Customer holds the Products as bailee and must
clearly identify such Products as the property of the
3.7 If the Company is reselling any third party
software as part of the Products, the relevant third
party licence and warranty terms and conditions apply
to the provision of that software.
3.8 If the Company is not the manufacturer of the
Products, the company does not make any warranties
with respect to the Products and the only warranties
available to the Customer are the standard third party
manufacturer warranties that the Company will use
reasonable endeavours to transfer the benefit of, to
the Customer.
4 Services
4.1 The Company reserves the right in its reasonable
discretion to:
(a) determine which personnel will perform the
(b) replace or reassign such personnel; and
(c) sub-contract suitable third parties to perform the
4.2 If the Company is providing any software or
system support as part of the Services, the Customer
must install the latest version of relevant software as
advised or provided by the Company.
4.3 Where the Company is reselling standard product
maintenance services as part of the Services, the
relevant third party maintenance terms and
conditions of supply apply to the provision of those
maintenance services.
5 Invoices and Payment
5.1 The Customer must pay each invoice by the due
date shown on it and if there is no date, within 30
days of the date of invoice. Time is of the essence for
payment of invoices.
5.2 If the Customer disputes any invoice it must:
(a) raise that dispute with the Company as soon as
reasonably possible and in any event within 3 months
of the date of invoice; and
(b) pay any undisputed amount included in the
invoice in accordance with clause 5.1.
5.3 If the Customer raises a dispute under clause 5.2,
the Company will conduct prompt investigations and
advise the Customer of its findings.
5.4 If following an investigation by the Company
under clause 5.3 the parties are unable to resolve the
dispute, then either party may commence
proceedings or take such other actions as they deem
5.5 The Company may charge the Customer for all
reasonable expenses it incurs in connection with late
payments by the Customer and may also charge the
Customer interest at the prime lending rate of the
Company’s principle banker calculated daily on the
total overdue amount.
5.6 Unless stated otherwise, the Price and any other
charge invoiced by the Company under this
Agreement is exclusive of Tax and the Customer must
pay an additional amount equal to the Tax.
5.7 In some cases the Company may specify a charge
followed by another amount in parentheses or as
‘without GST’ and ‘with GST’. In those cases, the
specified charge or ‘without GST’ amount is exclusive
of GST and the amount in parentheses or specified as
‘with GST’ is:
(a) the charge inclusive of GST at the rate in effect at
the date of agreement; and
(b) included by way of information only, and its
inclusion does not limit the Customer’s obligation to
pay the GST exclusive charge together with an
additional amount equal to the GST determined at
the applicable rate.
6 Intellectual Property
6.1 Intellectual Property Rights in:
(a) the Customer Data will be owned by the
(b) in the Products (including any third party licensed
software provided) will be owned by the
manufacturer; and
(c) all other materials, information, know-how,
systems, processes and technology of any nature that
is created or used in connection with this Agreement
(Material) that is not covered by clauses 6.1(a) or (b)
will, as between the parties, be owned by the
6.2 The Company grants the Customer a perpetual,
royalty free, non-exclusive, non-transferable licence to
use the Intellectual Property Rights in the Material for
its own internal purposes in Australia.
6.3 The Customer grants the Company a nonexclusive
licence to use the Customer Data for the
purposes of providing the Products and Services.
6.4 Any third party software provided by the
Company to the Customer under this Quotation will
be licensed to the Customer on the terms and
conditions provided by the vendor of that software.
7 Liability
7.1 To the extent permitted by law, the Company
excludes all conditions and warranties implied into
the Agreement and limits its liability for nonexcludable
conditions and warranties to, at the
Company’s complete discretion, repairing or replacing
the relevant Products, resupplying the relevant or
equivalent Services or, in either case, paying the
Customer the cost of doing so.
7.2 Each party accepts liability for Loss suffered by the
other party (excluding Consequential Loss) arising
from personal injury, to the extent that such Loss is
caused or contributed to by a negligent act or
omission of that party in connection with this
7.3 The parties agree that any liability of the
Company to the Customer for Consequential Loss
suffered or incurred by the Customer in connection
with the Agreement is excluded.
7.4 The parties agree that any liability of the
Company to the Customer for Loss under or in
connection with the Agreement (whether based in
contract, tort (including negligence), statute or
otherwise) is reduced to the extent that the
Customer’s acts, omissions or equipment or the acts,
omissions of a third person, including a Supplier,
cause or contribute to that Loss.
7.5 Subject to clauses 7.1-7.4, the Company’s liability
for Loss suffered or incurred by the Customer in
connection with this Agreement whether based in
contract, tort (including negligence), statute or
otherwise, is limited in aggregate to the lesser of:
(a) the aggregate of all invoices paid by the Customer
in respect of Products and Services during the
preceding 12 months prior to the occurrence of the
event causing the Loss; and
(b) AU $5,000,000.
7.6 This Agreement is between the Company and the
Customer and the Company does not have control
over End Users. The Customer indemnifies and will
keep indemnified the Company for any Loss suffered
by the Company in connection with an End-User
claim (whether based in contract, tort (including
negligence), statute or otherwise).
8 Assignment
8.1 To the extent they are assignable, the Customer
may assign its rights under the Agreement so long as
it has the Company’s prior written consent.
8.2 To the extent they are assignable, the Company
may at any time assign some or all of its rights under
the Agreement to any person. The Company may also
transfer some or all of its obligations under the
Agreement to any Nexus Group Company that is able
to perform those obligations.
8.3 The Company may perform any of its obligations
under the Agreement by arranging for them to be
performed by a Subcontractor.
9 Confidentiality
9.1 Each party agrees to keep the other party’s
Confidential Information confidential and to only
disclose such Confidential Information to those of its
employees, agents, contractors or advisers, or, in the
case of the Company, the employees, agents,
contractors or advisors of its Related Bodies
Corporate, who have a need to know for the
purposes of this Agreement.
9.2 The obligations of confidentiality in clause 9.1 do
not apply to the extent that disclosure is required by
law or the listing rules of a stock exchange or
pursuant to a direction of a government body.
10 Termination
10.1 Either party may terminate Agreement with
immediate effect by giving written notice to the other
party if the other party:
(a) breaches a material term of this Agreement and
that breach is not capable of remedy or if capable of
remedy is not remedied within 20 Business Days after
notice is given; or
(b) suffers an Insolvency Event.
10.2 On termination of this Agreement for any
(a) the Customer must pay all outstanding invoices
within 30 days of the date of termination (including
any relevant Cancellation Fee);
(b) each party must, if requested by the other party,
return all Confidential Information of the other party
or if not requested then destroy such Confidential
(c) the Customer must grant the Company access to
any relevant Customer premises to retrieve any
Products in respect of which title has not passed to
the Customer; and
(d) the accrued rights and obligations of each party
are unaffected.
10 General
10.1 Any notice given under this Agreement must be
in writing delivered to the recipient’s registered office
or principal place of business.
10.2 A waiver of any right under this Agreement
must be in writing.
10.3 If a provision of this Agreement is void, voidable
or unenforceable, it will be severed and the
remainder of the Agreement will not be affected.
10.4 The Company may, in connection with this
Agreement, pay commission to any of its employees
or any third party.
10.5 Nothing in the Agreement constitutes a
relationship of employer and employee, principal and
agent, partnership or joint venture between the
Customer and the Company and neither party has
any right to bind the other in contract or otherwise.
10.6 Each party will be relieved of its obligations to
the extent that it is unable to fulfil them as a result of
circumstances beyond its reasonable control. If such
an event occurs, the affected party must notify the
other party as soon as reasonably possible.
10.7 This Agreement constitutes the entire
agreement of the parties about its subject matter and
supersedes all previous agreements, understandings
and negotiations on the matter.
10.8 The Agreement is governed by the laws
applicable in the state of New South Wales and the
parties submit to the nonexclusive jurisdiction of the
courts of that state.
10.9 This Agreement may only be varied in writing
signed by both parties