avdcomms

​AVD Communications Standard Terms of Agreement

1. Definations

Client – refers to the entity or individual receiving telecommunications solutions, IT solutions, consulting services or any other service or goods provided by AVD Communications Pty Ltd.
Supplier – refers to AVD Communications Pty Ltd, except in the context of contracts or agreements made between the Client and Telstra Corporation, in which case Telstra Corporation is the supplier for that purpose.
Us – refers to AVD Communications Pty Ltd and Our Personnel.
You – the Client.
We – AVD Communications Pty Ltd and Our Personnel.
Our Personnel – Employees and subcontractors of AVD Communications Pty Ltd.
Service/s – refers to advisory, consulting, solutions, security, technical services, and Goods provided by AVD Communications Pty Ltd and refers to delivered, integrated, and supporting solutions provided to the Client, including ongoing maintenance or support.
Consulting – refers to the IT/software solutions and telecommunications related consultancy and advisory services provided by AVD Communications Pty Ltd.
Software – refers to any software delivered to You or during a project.
Goods – refers to any hardware delivered to You or during a project.
Standard Labour Rates – the labour fees AVD Communications Pty Ltd charges for its Services as advised by the Supplier.
Security Services – means any hardware and software-based security.

 

2. Scope of Service:
2.1  We provide telecommunications products and IT solutions, consulting and technical services as specified in a mutually agreed proposal and/or at the request of the Client on an ad-hoc basic. Where there is no mutually agreed proposal, We will provide Services to a Client at our sole discretion. By virtue of engaging AVD Communications Pty Ltd to provide You with Services, You accept our Standard Terms of Agreement as outlined in this document.

 

3. Fees and Payment:
3.1  The Client will pay us for all agreed-upon fees for Services rendered.
3.2  Should any Service that is provided by the Supplier not form part of a mutually agreed proposal and the Client requests Services on an ad-hoc basis, the Client will pay the Supplier for the Services provided at the Suppliers’ Standard Labour Rates.
3.3  The Client accepts that by virtue of placing an order or requesting a Service, it accepts AVD Communications Pty Ltd’s payment terms. In the case of a mutually agreed proposal, payment terms, including billing cycles and methods of payment will be defined in the proposal or agreement. Payment terms for Services provided on an ad-hoc basis will be required on a Cash on Delivery basis.
3.4  We may, at our sole discretion, choose to provide Services on account. Should the Supplier choose to extend credit to the Client, the Client must pay each invoice in full by the due date specified in the invoice.
3.5  Late invoicing does not affect the Supplier’s right to payment or the Client’s obligation to pay. Late payment may result in penalties or interest charges. We may also withhold providing further Services and You must indemnify us all against all costs and expenses (including legal expenses) incurred by us in attempting to recover the overdue amount.
3.6  If you fail to pay any amount (in whole or in part) payable in respect of any hardware and/or loan equipment by the time required for payment;
Or if you become insolvent (as that term is defined in the Corporations Act 2001);
Or any agreement you have with us is terminated, or becomes terminable in our option:
a) We may, without notice to you, enter at any reasonable time any premises where hardware and/or loan equipment is located (or believed by us to be located) and take possession of that hardware and/or loan equipment not paid for and any other hardware and/or loan equipment to the value of the amount owing.
b) Our permission to enter Your premises for that purpose is irrevocable.
c)  We are not liable to You in contract, tort or otherwise, for any costs, damages, expenses or losses incurred by You as a result of any action taken by us under this clause, except to the extent that loss is directly and solely caused by our negligent action.

 

4. Intellectual Property Ownership
4.1  The Client acknowledges and agrees that all intellectual property, including software code, developed during the provision of Services will be owned exclusively by Us. The Client will have a non-exclusive, non-transferable license to use the software and IP solely for the purposes agreed upon.

 

5. Liability
5.1  Subject to clause 5.4, nothing in our Standard Terms of Agreement excludes or limits, or has the effect of excluding or limiting, the operation of Australian Consumer Law or any right You may have under Australian Consumer Law.
5.2  We are not liable to You for any interruptions or delays in providing Service to you.
5.3   Subject to clause 5.6, we accept liability arising from our negligence:

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(a) for any personal injury or death to you, your employees, agents and contractors in relation to the supply of Services;
(b) for any damage to your real or tangible property resulting from the supply of Services, but we limit our liability to our choice of repairing or replacing the property or paying the cost of repairing or replacing it. The liability is also limited in aggregate to, an amount equal to the lower of:
(i) the charges received by the Supplier during the twelve (12) month period immediately preceding the claim; or
(ii) $1 million.
5.4 Other than for the liability we accept under clause 5.1 and 5.3, and subject to the remainder of this clause 5.4, we exclude all other liability whether to you or a third party for breach of contract, negligence or breach of any other law. For any liability which cannot be lawfully excluded as it is under this clause 5, our liability is limited to:
(a) in the case of Services, with the exception of Goods, the cost of supplying the Services again or payment of the cost of having the Services supplied again; and
(b) 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 equivalent Goods, or having the Goods repaired.
5.5  In no circumstances will We be liable to You for loss of revenue; loss of profits or anticipated savings; loss of business or goodwill; loss or corruption of data; or for any indirect, special or consequential loss or damage, however caused, even if the other party was advised of or aware of the possibility for such liability.
5.6  Notwithstanding anything else in this clause 5, our liability will be reduced to the extent that the loss or damage is caused by you, your employees, agents or contractors.
5.7  Notwithstanding anything else in this clause 5, our liability will be reduced to the extent that You fail to take steps or delay to take steps to reduce loss or damage.
5.8  We will not be responsible for any loss or damage arising from circumstances outside our reasonable control.
5.9  You acknowledge and agree that:
(a) the Supplier does not make any warranty or representation that Security Services will be sufficient to protect the Client data and/or the Clients’ network;
(b) security incidents (such as denial-of-service, malicious codes and any other form of cyber-attack) may occur despite the provision of Security Services, and the Supplier will not be liable for loss or damage caused by such security incidents;
(c) the Client is solely responsible for:
(i) the design of solutions (including selecting the Security Services) to be implemented for the protection of Client data and/or the Clients’ network; and
(ii) deciding whether to implement any advice or recommendation provided by the Supplier, or to rely on any security-related opinion, conclusion or other information provided by the Supplier; and
(iii) the Supplier is not responsible for any misuse or unauthorised modification, loss, transmission or disclosure of, unauthorised access to, or interference with, the Client data or the Clients’ network, which results (directly or indirectly) from:
(a) a security breach or incident occurring despite the implementation of the Security Services; or
(b) failures by the Client to take reasonable steps to prevent unauthorised access to the Services, Client data and/or Clients’ network (for example, by disclosing the security credentials (such as usernames and passwords) related to the Services (otherwise than as required by such Services)); or
(iv)  events beyond the reasonable control of the Supplier (including security incidents affecting hardware, software or services not controlled by the Supplier).
 

6 . Governing Law
6.1  This Standard Terms Agreement will be governed by and interpreted in accordance with the laws of South Australia, Australia, without regard to its conflict of law principles.
 

7. Telstra Contracts and Agreements
7.1  In our capacity as a Telstra Partner, We may provide you with advice regarding Telstra products and solutions and facilitate contracts between You and Telstra Corporation. You acknowledge and agree that as a Telstra Partner, We promote Telstra products and services to the exclusion of other carriers that may be available to You.
7.2  You acknowledge that any contract or agreement You enter into with Telstra Corporation is a contract or agreement between You and Telstra Corporation and You agree that it is your responsibility to ensure that any agreement or contract You enter into with Telstra Corporation is suitable for your needs. You acknowledge that Telstra Corporation is considered the supplier in these circumstances.
7.3 You acknowledge and agree that the Client is solely responsible for:
(i) the design of solutions (including selecting the Telstra products or services) to be implemented; and
(ii) deciding whether to implement any advice or recommendation provided by the Supplier, or to rely on any opinion, conclusion or other information provided by the Supplier.
7.4  We will not be responsible, in any circumstance, for any loss or damage arising from any contract or service provided by Telstra Corporation. Please refer to Telstra Corporation’s General Terms, Critical Information Summaries and any other contractual information as is relevant.
7.5  In accordance with clauses 7.2, 7.3 and 7.4 above, if You are contracted through a Telstra Contract (‘Telstra Customer Contract’) and We are working in a Telstra Partner capacity and Services are provided as a Telstra Partner, then such Services are covered by the relevant Telstra agreements/documents/terms and conditions between You and Telstra, including but not limited to:

​(a)  Telstra ‘Scope of Work’ SOW
(b)  Telstra Agreements (including but not limited to IASS, Professional Services Module, TNDA) that forms part of the Telstra Customer Contract.
(c)  Telstra customer terms/agreement or documents along with their customer terms.
 

8. Our Commitment to You
8.1  The Supplier obligations under these Standard Terms of Engagement may be performed by the Supplier or a third party appointed by the Supplier, in which case the Supplier remains responsible for ensuring that the third party complies with this agreement.
8.2  The Services will be provided with all reasonable care and skill. We will action your support requests as promptly as reasonably possible, taking into consideration the criticality of other support requests we are managing at the same time.
8.3  Standard support requests will be available during the hours of 8.30am and 5.00pm Adelaide time, Monday to Friday, excluding public holidays, unless otherwise agreed. We may, at our absolute discretion, provide support outside of these times. Should We provide support outside of these times, You will be charged at our after-hours labour rates.
8.4  By providing us with your email address, you consent to subscribing to AVD Communications emails as distributed from time to time. You may opt-out at any time by unsubscribing.
8.5  The Client must provide prompt notice in writing to the Supplier of any failure by the Supplier to comply with this warranty to enable corrective action to be taken by the Supplier.
8.6  To the extent that it is legally able to do so, the Supplier will make available to the Client any standard manufacturer warranties for Services where the Services are Goods.
8.7  Where the Services are Goods, the Client acknowledges that any Services provided to the Client by the Supplier are provided, to the extent permissible by law, on an ‘as-is’ basis.

The Supplier does not warrant:
a) that Services will be free from error, interruption or external intrusion;
b) the results that may be obtained from the use of the Services or the accuracy, reliability or content of any information contained in or provided through the Services; or
c) the quality, content, or accuracy associated with any Services or information provided by a third party received by the Client through or as a result of the use of the Services.
8.8 Where the Supplier supplies Supplier Equipment:
a) title to Supplier Equipment remains with the Supplier until such time as payment has been received by the Supplier in full.
b) the Client must not lease, transfer, sell, or grant any security interest over the Supplier Equipment until such time as title has transferred from Supplier to Client in accordance with clause a.
c) risk and responsibility for the safe keeping of the Supplier Equipment transfers to the Client upon delivery of the Supplier Equipment.
 

9. Client Obligations
9. 1  Clients Obligations are:
a) to comply with our lawful and reasonable directions in relation to the Services;
b) to provide a safe working environment for Our Personnel;
c) to comply with all laws, regulations, policies and guidelines;
d) to provide Us with information, as we reasonably require, in order to efficiently provide you with Services;
e) to maintain regular and complete backups of all Your data;
f) to take steps to minimise losses and damages should You form the belief that the Services provided by the Supplier have not been provided with all reasonable care and skill.
g) to undertake such tasks assigned to it by the Supplier and provide timely information and direction to the Supplier upon request to enable the Supplier to fulfill its obligations;
h) to ensure that, where Services are provided to a Related Body Corporate of the Client, the Related Body Corporate complies with our Standard Terms of Engagement. Any failure by a Related Body Corporate of the Client to observe the obligations (including payment) of the Client will be deemed a breach of our Standard Terms of Engagement for which the Client will be responsible. The Client indemnifies Us for all loss and damage incurred as a result of a failure of a Related Body Corporate of the Client to observe the obligations (including payment) of the Client under the Standard Terms of Agreement;
i) that the Supplier will not be responsible for any failure, default or delay to the extent caused by the Client’s failure to perform its’ obligations under this clause. Any additional costs incurred by the Supplier as a result of the failure or delay of the Customer, its Related Body Corporate, or a subcontractor of the Client or of a Client’s Related Body Corporate affecting the Supplier in performing the Services, will be charged to the Client;
j) to obtain any consents required to install the Supplier Equipment at the Clients’ Premises.
k) to ensure that the Client’s public liability insurance policy extends to cover the Supplier Equipment against loss or damage whilst at the Customers Premises.
l) that You agree to indemnify Us (including our Director/s, employees and officers) against any costs incurred, damage or loss suffered as a result of breaching your obligations to Us

m) that You acknowledge and agree that You, nor your officers, employees or contractors have relied on any representation, promise or undertaking made by or on behalf of the

Supplier which is not expressly set out in this Agreement.
 

10. Personal Information and Data Collection

​10.1 The Client acknowledges and agrees that the Supplier may collect, manage and store personal information about You. Some examples of personal information that the Supplier may collect and store about You includes identity information, financial information, information about equipment and services that You use (including databases, usernames and passwords) and information about how you use products and services.
10.2 Sometimes You may need to provide personal and/or sensitive information about other individuals to us, such as your authorised representatives. In those cases, it’s your responsibility to tell those individuals you are giving us their personal information.
10.3 There are three main ways we collect information about You:
(a) You give it to us; or
(b) We collect it ourselves; or
(c) We get it from other sources.
10.4 You acknowledge and agree that We can use your personal information to provide products and services to You, for administration purposes as we require, to communicate with You, for improvement, development and analysis, for network and/or system monitoring purposes, for direct marketing and for compliance purposes.
10.5 We may store your personal information in hard copy or electronic format and store it using facilities that we own and operate ourselves or that are owned and operated by our service providers.
10.6 You acknowledge and agree that We work with a range of external suppliers, partners and contractors. We may share your personal information with these parties where we deem this is appropriate to deliver our Services to You.
In case any one or more of these provisions is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions will not be affected or impaired in any way.