TERMS AND CONDITIONS OF USE

Computergate – TERMS AND CONDITIONS OF USE

1 TERMS AND CONDITIONS

1.1 Computergate is an Independent Service Provider offering the following services: Vendor Warranty Services, Managed IT Services and Partner Services, outlined in clause 3.1 throughout Asia Pacific.

1.2 Please read the whole of this document carefully. By using any of Computergate Services, you signify that you have read, understood and agree to be bound by these Terms and Conditions (“Terms”).

1.3 Computergate reserves the right to review and change any of the Terms by updating this page at its sole discretion. You should review this page regularly. Any changes to the Terms take immediate effect from the date of their publication on this page.

2 ACCEPTING THE TERMS

2.1 In order to use any of Computergate Services, you must first agree to the Terms. You may not use the Services if you do not agree to the Terms.

2.2 You can accept the Terms by:

(a) using; entering into an agreement to use; or registering to use of any of Computergate Services; or

(b) clicking to accept or agree to the Terms, where this option is made available to you by Computergate in the user interface for any service.

2.3 In order to access the Services, you will be required to provide information about yourself (such as identification or contact details) as part of the registration process for the Services, or as part of your continued use of the Services.

2.4 You agree that any registration information you give to Computergate will always be accurate, correct and up to date.

2.5 You may not use the Services and may not accept the Terms if:

(a) you are not of legal age to form a binding contract with Computergate; and/or

(b) you are a person barred from receiving the Services under the laws of or other countries including the country in which you are resident or from which you use the Services.

2.6 By accepting the Terms, you agree that this is clear and unequivocal proof that the Terms herein are not unconscionable; that there is no unfair bargaining power or position; that there is no duress; and that you have carefully read the Terms which signify there is no unilateral and/or mutual mistake.

3 SERVICE DESCRIPTION

3.1 Computergate provides several categories of Services:

(a) Internet Connections, including: EFM services, static IP addresses, spam filtering and virus protection, multiple user support and high-volume facilitation.

(b) Cloud products including but not limited to Hosting, website, email accounts, servers, Office 365 and offsite backup.

(c) Managed IT Services, including: Local and Wide Network Support (Phone/Onsite/Remote), Windows Server installation and maintenance, Windows OS installation and support, Router configuration and firewalls management including Cisco routers, Backup Systems setup and monitoring, Malware Removal, Disposal Services and Disaster Recovery.

(d) Extended Vendor Warranty Services, including: On-Site break/Fix, Parts Replacement and Warehousing, RMA and Workshop repairs where vendor appoints Computergate as an authorised service partner.

(e) Unless a parts guarantee has been obtained upfront, Vendor supplied parts may not be available locally. Computergate will endeavor to use every effort to ship a part within a reasonable time frame to ensure faulty parts are replaced.

(f) Supply of technical resources to nominated clients on a contract basis.

3.2 Computergate will use all reasonable efforts to provide your Services as soon as is reasonably practicable after your acceptance of these Terms.

3.3 You must not resupply any of the Services without Computergate expressed agreement in writing.

3.4 You understand that information transmitted or accessed through Computergate Services is the sole responsibility of those who transmit or access it.

3.5 Computergate may at its sole discretion elect to provide Services through whatever technology or infrastructure Computergate sees fit. You accept that this may involve the loss of some features of similar services provided through other forms of technology.

4 BILLING

4.1 The prices of Computergate Services are subject to change at any time.

4.2 Fees and charges for Computergate Services are non-refundable unless otherwise indicated.

4.3 Computergate may charge you fees for calls, services, usage, connection, initiation, transfer, relocation, cancellation, accounts, early termination or debt recovery relating to any Services. Not limiting the operation of this clause, Computergate may charge you additional fees for other services. A full schedule of charges can be reviewed in Schedule A of these Terms.

4.4 You will be invoiced monthly, quarterly or yearly and provided with 7 days for payment of accounts thereafter unless otherwise specified on the invoice. If you have nominated automatic direct debit, your bank account or credit card will be charged on the day your invoice is due, unless Computergate has agreed otherwise in writing. Charges that do not appear on your monthly invoice may appear on future invoices due to processing procedures.

4.5 Computergate may, without notice, deactivate or cancel all or part of your Service if any amount is not paid by its due date.

4.6 For any debt in arrears of 60 days or more, we may engage a Licensed Commercial Agent to recover this debt. You are liable for our costs of this engagement. Where additional recovery action is required such as Skip Trace searches, Field Calls, Legal Proceedings costs or any other third party actions, you will be liable for the incurred fees. We may register your details with Veda Advantage, Dun and Bradstreet, or other credit reporting agencies as having defaulted on your commitments.

4.7 If you purchase bundled Services from Computergate, then discontinue any of the bundled products, the charges for the Services shall revert to their unbundled values.

4.8 Returns Policy and Order Cancellation for any online orders can be initiated by notifying Computergate by email to accounts@computergate.com.au the same day that the order is placed. Returns are accepted at the discretion of Computergate’s Supplier, goods must be in unopened original packaging (including copy of Invoice). Freight to return goods is at the customer’s expense. A restocking fee of 10% of the value of the goods applies. When the product is prepaid and the order has been sent to the supplier but not delivered a 50% cancellation fee applies. Please contact accounts@computergate.com.au to apply for a RA number before returning goods.

4.9 No returns or cancellations for warranty services will be accepted after 30 days of the order being placed. Warranties can be transferred to any other product as long as serial numbers are supplied along with proof of purchase by client within 60 days of original order being placed.

5 USER RESPONSIBILITIES

5.1 Computergate offers the Services on the understanding that you acknowledge:

(a) You have the sole responsibility for protecting the confidentiality of any password and/or User ID that may be issued to you. Use of your password or User ID by any other person may result in the immediate cancellation of your Service;

(b) You may not use the User ID or password of another user at any time;

(c) You are responsible for the information you transmit or access when using the Services as well as the consequences of its transmission or accessing. You agree that you will not use the Services to engage in or facilitate activities that are illegal, obscene, offensive, threatening, defamatory, harmful, invade privacy, infringe intellectual property rights, objectionable, misleading (including through failure to update information) or otherwise injure third parties;

(d) You may not use a false email address, impersonate any person or entity, or otherwise mislead others or Computergate as to your identity. We reserve the right to suspend or terminate the Services in the event of a breach of this clause and in such cases you will be responsible for any costs associated with suspension or termination of the Services.

6 TERMINATION OF CONTRACT

6.1 The Terms will continue to apply until terminated by either you or by Computergate as set out below.

6.2 Termination of Maintenance Services provided to you on a regular or continuing basis by Computergate will not be allowed after 30 days of the commencement date of the agreement. A credit will be provided for any future purchases or as agreed with the client.

6.3 Computergate may at any time, terminate its Services to you if:

(a) you have breached any provision of the Terms;

(b) Computergate is required to do so by law;

(c) the carrier or supplier through whom Computergate offered the Services to you has terminated its relationship with Computergate or ceased to offer the Services to you;

(d) Computergate is transitioning to no longer providing the Services in the country in which you are a resident or from which you use the Service; or

(e) Computergate no longer considers their provision of Services to you to be commercially viable.

6.4 When these Terms come to an end, all of the legal rights, obligations and liabilities that you and Computergate have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and shall continue to apply to such rights, obligations and liabilities indefinitely or until its discharge.

7 INTELLECTUAL PROPERTY

7.1 For the purposes of these Terms, Confidential Information means all information and materials belonging to Computergate, in any form, which is not at the time of this Agreement or does not become after the date of this Agreement, lawfully in the public domain, which Computergate provides to you or to which you gain access at any time and includes without limitation:

(a) privileged communication between lawyers and their clients;

(b) business and marketing information whether past, current or relating to future activities;

(c) present or potential client, supplier or distributor information lists, including any personal information contained within those lists;

(d) the terms of any contract, agreement or business arrangement with third parties;

(e) trade secrets, licences, know-how, techniques or work methods, Intellectual Property Rights and related information;

(f) third party information disclosed in confidence;

(g) all information and materials created by any of Computergate employees, contractors, nominees, agents, consultants or advisers; and

(h) any other information and materials developed by you in the course of providing the Services or considered by Computergate as confidential.

7.2 For the purposes of these Terms, Intellectual Property Rights means all intellectual property rights throughout the world including rights in respect of:

(a) copyright (including future copyright) and rights in the nature of, or analogous to, copyright;

(b) trademarks and service marks;

(d) patents;

(e) any Confidential Information including trade secrets, know-how, software and circuit layouts, whether or not now existing, registered or registrable, and includes any right to apply for the registration and all renewals, extensions and revivals, of such rights;

7.3 Computergate and all of the related products & services of Computergate are subject to copyright. The material on Computergate website is protected by copyright under the laws of and through international treaties. Unless otherwise indicated, all rights (including copyright) associated with Computergate Services (including text, graphics, logos, button icons, video images, audio clips, source code and software) are owned or controlled for these purposes and are reserved by Computergate.

7.4 You agree that during the course of these Terms you may become acquainted with or have access to Confidential Information. You agree to use the Confidential Information only in accordance with the Terms of this agreement. You may disclose the Confidential Information only to your officers, employees and agents who specifically need to access the Confidential Information. If you disclose the Confidential Information to any person, you must also ensure that the person keeps the Confidential Information secret and confidential and does not use the Confidential Information for any purpose other than the purposes pursuant to the Terms of this agreement.

7.5 You acknowledge that Computergate owns all Intellectual Property Rights or rights of any sort in the Software and any document or things produced in the course of or in connection with the provision of the Services.

7.6 You hereby assign to Computergate all presently existing and future Intellectual Property Rights in any material, including modifications, updates or enhancements to the Software, created by Computergate in the course of or in connection with the provision of the Services.

7.7 Computergate retains all rights, title and interest in and to the Services and all related content. Unless specifically agreed in writing, nothing you do on or in relation to Computergate will transfer:

(a) any business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright;

(b) a right to use or exploit a business name, trading name, domain name, trade mark or industrial design; or

(c) a thing, system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process), to you.

7.8 Computergate claims no ownership or control over any information submitted, posted or displayed by you on or through Computergate Services. You or a third party licensor, as appropriate, retain all patent, trade mark and copyright to any information you submit, post or display on or through Computergate and you are responsible for protecting those rights, as appropriate.

7.9 You retain copyright and any other rights you already hold in information which you submit, post or display on or through, the Services. By submitting, posting or displaying the information you grant Computergate a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive licence to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any information which you submit, post or display on or through Computergate.

7.10 You may not, without the prior written permission of Computergate and the permission of any other relevant rights owners, broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way Computergate Confidential Information, or create a derivative work from Computergate Confidential Information for any purpose. This prohibition does not extend to materials which Computergate has made freely available for re-use or are in the public domain.

8 LIMITATION OF LIABILITY

8.1 Use of Computergate Services, and any of the products of Computergate, is at your own risk. All of Computergate products and Services are provided to you “as is” and “as available” without warranty or condition of any kind. None of the affiliates, directors, officers, employees, service agents, contractors, third party content providers or licensors of Computergate make any express or implied representation or warranty about, or shall be liable, in contract, tort (including negligence) or otherwise for any direct, indirect, special or consequential loss, damages or reliance in connection with Computergate Services, their use, or any information, products or services accessed through Computergate Services to the extent permitted by applicable law. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:

(a) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or any other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records;

(b) the accuracy, suitability or currency of any information accessed or transmitted through Computergate Services;

(d) loss of any emails caused by Computergate spam filtration systems;

(e) of any failure to complete a transaction, or any loss arising from e-commerce transacted through Computergate Services; or

(f) for any defamatory, threatening, offensive or unlawful conduct of third parties or publication of any materials relating to or constituting such conduct.

8.2 The total liability of Computergate to you for loss, damage or reliance shall be limited to the re-supply of the information or the Services or payment of the amount paid by you (if any) for accessing Computergate Services or any of the products of Computergate.

8.3 You expressly understand and agree that Computergate, its affiliates, employees, agents, contributors, third party content providers and licensors shall not be liable to you for any direct, indirect, incidental, special, consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.

8.4 Computergate is not responsible or liable in any manner for any Data or information received, transmitted or communicated through or in connection with the Services, whatever its source.

8.5 Computergate does not control and is not responsible for information transmitted, accessed or communicated through Computergate Services and is not responsible for any offensive, inappropriate, obscene or unlawful information you may encounter through or in connection with Computergate Services.

8.6 You agree to indemnify Computergate, its affiliates, employees, agents, contributors, third party content providers and licensors from and against all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with any information you transmit, access or communicate through or in connection with Computergate Services; and any direct or indirect consequences of you accessing, using or transacting through Computergate Services or attempts to do so and any breach by you or your affiliates, employees, agents, contributors, third party content providers and licensors of these Terms.

8.7 Computergate makes no representations or guarantees as to Service coverage or data speeds and reserves the right to vary or revoke offers that are not facilitated by infrastructure.

8.8 You agree to accept responsibility and liability for the security of access, virus protection and firewalling of your networks and related systems.

9 DISPUTE RESOLUTION

9.1 If a dispute arises in relation to an agreement between you and Computergate (“the Dispute“), either party may not commence any legal proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).

9.2 A party to this agreement claiming a Dispute has arisen must give written notice to the other party detailing the nature of the Dispute, the desired outcome and the action required to settle the Dispute.

9.3 On receipt of that notice (“the Notice“) by the other party, the parties to this Agreement (“the Parties“) must within seven days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree.

9.4 If for any reason whatsoever, 21 days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Law Society of New South Wales or his or her nominee;

9.5 The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation.

9.6 All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the fullest extent possible, must be treated as “without prejudice” negotiations.

9.7 If 30 days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either party may ask the mediator to terminate the mediation and the mediator must do so.

9.8 In the event that the Dispute is not resolved at the conclusion of the mediation, either party may institute legal proceedings concerning the subject matter of the Dispute thereafter.

9.9 Disputed Amounts

(a) In the event that a bill is disputed by you, you agree to pay to Computergate the total amount as indicated on the disputed bill without deduction or set-off and Computergate agrees to refund any monies found to be charged incorrectly after reasonable and proper investigation.

10 TRANSFER OF SERVICE

10.1 By accepting the provision of Services by Computergate:

(a) You authorise Computergate to sign on your behalf and in your name forms of authority to your current supplier of Services to transfer the provision of Services to Computergate name.

(b) You will give written instructions to your current supplier to transfer the Services from your name to Computergate name.

(c) You will immediately pay your current and previous suppliers all amounts owing to them for the Services being transferred up to the time of transfer to Computergate name.

(d) You agree that for Computergate to provide the Services to you, should you or your nominee apply through our online application form on Computergate website, this constitutes your agreement to these Terms. You should ensure that both you and your nominee have read and understood these Terms.

(e) You agree that you are responsible for any cancellation and associated fees required by your existing or previous service supplier.

11 PRIVACY

11.1 You agree that Computergate may exchange information relating to you with: Computergate agents, employees, advisors, contractors, carriers and suppliers; your representatives; credit agencies; fraud-checking agencies (including members of the Australian Telecommunications Fraud and Risk Association); government bodies; law enforcement authorities; and other telecommunication and information service providers. Computergate agrees only to disclose your information in compliance with Computergate Privacy Policy, which is available on Computergate website.

12 CREDIT CHECKS

12.1 You agree to supply without delay any information Computergate reasonably requests in order to check the worthiness of your credit rating.

12.2 If Computergate considers it relevant to assessing your Application, you consent to Computergate obtaining from a credit-reporting agency a credit report containing personal information about you.

12.3 You acknowledge and understand that such information can include any information regarding Your commercial or consumer credit worthiness, credit history or credit capacity that credit providers or credit reporting agencies are allowed to give or receive under the Privacy Act 1988 (Cth).

12.4 You authorise and permit Computergate to make independent enquiries of third parties concerning your financial standing and, for this purpose, authorise and permit third parties to supply such information regardless of any confidentiality or privilege which applies to the information sought.

12.5 We reserve the right to reject your application for services based on your credit worthiness as ascertained by Computergate.

13 SUSPENSION OF SERVICES

13.1 Computergate may suspend any or all Services to you at any time without notice if any of the following occur:

(a) Computergate is not reasonably satisfied with your credit worthiness;

(b) You breach any of the conditions of these Terms and if you have failed to remedy the breach within 10 days of Computergate providing written notice to you of the breach;

(d) Computergate is unable, for any reason, to provide the whole part of the Service;

(e) You become subject to any form of insolvency administration;

(f) Computergate finds your conduct adversely impacts its name or reputation or violates the rights of another party.

14 CUSTOMER PREMISES EQUIPMENT

14.1 Any Customer Premises Equipment (CPE) including but not limited to Telephone Handset, Indoor Access Router, Modem or Software thereof, you use that is not provided by Computergate in relation to the Services must comply with applicable standards and specifications, including those set by Computergate suppliers of the Services.

14.2 Computergate may substitute any component of the CPE or part of any component of the CPE prior to delivery without consultation with you and may in any respect modify the CPE if, in the reasonable opinion of Computergate, the substitution or modification:

(a) will not adversely affect the performance or capacity of the CPE in any material respect;

(b) will not alter the configuration of the CPE in any material respect; and

14.3 Risk in any CPE provided to you by Computergate passes to you upon delivery.

14.4 If purchased from Computergate, title to any CPE does not pass to you until all amounts owing have been paid in full to Computergate.

14.5 On the termination of this Agreement for any reason, you will immediately return all of Computergate CPE, should the CPE be Computergate property.

14.6 CPE DELIVERY

(a) Computergate will use their best endeavours to deliver the CPE to you on the Delivery Date at the site during your normal business hours.

(b) If you wish the CPE to be delivered to a location other than the site, you must request this in the Application Form upon signup for the Service.

(d) If Computergate requests permission to deliver the CPE prior to the Delivery Date, you shall use your best endeavours to prepare the site and to do all other things necessary to enable Computergate to comply with the request and to accept early delivery.

14.7 CPE INSTALLATION AND MAINTENANCE

(a) Where Computergate reasonably determine the requirements for installation exceeds reasonable expectations for any Installation Fee quoted or agreed with you, Computergate will not be bound to provide the installation at the Installation Fee previously quoted or agreed and Computergate agree to discuss and use reasonable endeavours to agree a new Installation Fee.

(b) You agree to obtain and maintain, at your expense, any and all permits, licences, approvals, authorisations, required for the installation and operation of the CPE.

(c) In the event that you are relocating your Premises and as a result, your CPE, Computergate may, upon your request, allow you to move the CPE from the Premises to new premises during the Term so that you can continue using the data services at the New Premises, subject to:

(i) Our being able to provide the services at the New Premises;

(ii) You agreeing that these terms and conditions apply to the provision of the services at the New Premises; and

(iii) You pay all costs incurred by Computergate as a result of your having the CPE moved.

14.8 Computergate is not responsible for installing, configuring or maintaining any equipment not supplied by Computergate, or additional to your primary modem or modem router. Computergate will ensure that you have a working Internet service to the modem and a single machine.

14.9 You are responsible for the compensation of technicians called to remedy faults where:

(a) upon arrival, the technician is unable to gain access to the property where the fault is located;

(b) the faults are caused by CPE;

(d) the fault has been rectified or no fault is in evidence.

14.10 You agree to install, maintain and program any equipment connected with Computergate Services so as to:

(a) facilitate carriage of calls by Computergate preferred switched services network; and

(b) facilitate the provision of Computergate Services.

15 GENERAL CLAUSES

15.1 GOVERNING LAW

(a) This agreement is governed by the laws of the local country where products or services are being supplied.

(b) If any part of this agreement is found to be invalid or unenforceable, it shall be severed to the extent possible without affecting the remainder.

(c) This agreement and any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to this agreement and the rights created hereby shall be governed, interpreted and construed by, under and pursuant of the local country where products or services are being supplied, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. This agreement shall be binding to the benefit of the parties hereto and their successors and assigns.

(d) You confirm and declare that the provisions of this agreement are fair and reasonable and you having taken independent legal advice and declare this agreement is not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.

15.2 VENUE AND JURISDICTION

(a) The Services offered by Computergate are intended to be supplied to Partners & Customers. In the event of any dispute arising out of or in relation to Computergate Services, you agree that the exclusive venue for resolving any dispute shall be in the courts of the local country where products or services are being supplied.

(b) Any claim may be adjudicated by a court of competent jurisdiction of the local country where services are being supplied. You and Computergate agree to submit personal jurisdiction to the local country where products or services are being supplied, and you hereby waive all defences of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the local country where products or services are being supplied.

15.3 ASSIGNMENT

(a) You shall have no right to delegate, assign or subcontract any obligations you assume pursuant to this Agreement to any person without Computergate written consent.

15.4 FORCE MAJURE

(a) If, by reason of any event of Force Majeure which was outside the control of the party concerned, either of the parties to this Agreement shall be delayed in, or prevented from, performing any of the provisions of this Agreement then such delay of performance shall not be deemed to be a breach of this Agreement, and no loss or damage shall be claimed by either of the parties hereto from the other by reason thereof. The parties shall use their best endeavours to minimise and reduce any period of suspension occasioned by any event of Force Majeure.

(b) An event of Force Majeure shall mean and include fire, flood, casualty, lock out, strike, labour condition or industrial action of any kind, unavoidable accident, national calamity or riot, disease, act of God, the enactment of any act of Parliament or the act of any legally constituted authority, any cause or event arising out of or attributable to war or any other cause or event (whether of a similar or dissimilar nature), outside the control of the parties.

15.5 INDEPENDENT LEGAL ADVICE

(a) You agree that you have obtained independent legal advice for any conditions which you do not fully understand

15.6 ENTIRE AGREEMENT AND MODIFCATIONS

(a) Both Computergate and you confirm and acknowledge that:

(i) This Agreement shall constitute the entire agreement between you and Computergate and shall supersede and override all previous communications, either oral or written, between the parties; and or extending this Agreement shall be binding upon any party unless arising out of the specific provisions of this Agreement.

15.7 SEVERANCE

(a) Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provisions in any other jurisdiction.

Terms and conditions