Terms and Conditions
Terms and Conditions of Service
The Customer engages Capital Techies and Capital Techies agrees to provide the Services in
respect of the Supported Infrastructure in accordance with the terms and
conditions of this Agreement.
1.1 Changes to this policy
We reserve the right to modify this policy at any time, so please
review it frequently. Changes and clarifications will take effect immediately
upon their posting on the website. It is the responsibility of the customer to
read and understand these terms and conditions each time an order is placed.
2 Procurement of Goods
2.1 Warranty Information
All products sold by Capital Techies are covered by the manufacturers’ warranty
that accompanies the product. Capital Techies makes no additional or independent warranty
in addition to the Consumer Guarantees or those offered by the manufacturer of
2.2 Delivery of Goods
We place great importance on the fast and reliable delivery of Customers
orders, however please note that delivery times are estimates only and Capital Techies
shall not be liable for delays.
If the Customer fails or refuses to take delivery of the goods, then in
addition to all other rights and remedies of Capital Techies , the Customer shall be
liable for all loss and damage (including consequential loss and damage)
suffered or incurred by Capital Techies as a result thereof and Capital Techies, at its discretion
may charge a restocking fee.
If Authority to Leave is requested during ordering, you must specify
where you would like the goods left (at the front door, next to the garage,
etc). Capital Techies and our couriers cannot be held responsible for goods being left
unattended that go missing if an order has been authorised to leave. *Couriers
may not leave goods at the door, and will leave a card instead so that you can
pick up your order at the nearest post office/depot if selected.
2.3 Title of Goods
The goods shall be at the Customers risk at the point of delivery. The
Customer, upon taking delivery of the goods, shall immediately examine the
goods and give written notice to Capital Techies of any defect within five (5) days of
such date, failing which the goods shall be deemed to have been delivered in
good order and condition and accepted by the Customer.
The price shall be paid by the Customer in full without any deduction in
respect of any claimed set-off or counterclaim (including any such set-off or
counterclaim on account of any delay on the part of Capital Techies in delivering any
part of the goods) on or before the payment date. In addition to any other
rights or remedies of Capital Techies in the event of the Customer’s default hereunder,
Capital Techies shall be entitled:
a) To charge and recover costs incurred for the collection
of payment (such as but not limited to collection agency fees and legal costs),
cheque dishonor fees, interest at the current bank overdraft rate plus two per
cent per annum from the due date for payment until payment in full;
b) To immediately and without notice retake possession
of the goods (and for such purpose the Customer irrevocably licenses Capital Techies, its
employees, contractors, servants or agents to enter upon the premises at which
the goods are located to so retake possession) and resell the goods after seven
(7) days written notice to the Customer and thereafter recover from the
Customer any amount by which the resale price is less than the price agreed to
be paid by the Customer, together with all costs and expenses suffered or
incurred by Capital Techies as a result of the Customer’s default;
c) At the sole discretion of Capital Techies
charge a restocking fee of up to 100% of the purchase price.
2.5 Errors and Omissions
At Capital Techies, we work hard to offer competitive pricing and accurate product
information. Because of the dynamic nature of this industry (e.g. vendor price
changes and other variables beyond our control), prices, promotions, versions
and availability advertised are subject to change without prior notice. All
images are for illustrative purposes only. Actual product may differ. Please be
assured of our every effort to ensure the accuracy of information; however, the
documents and graphics published may contain technical inaccuracies or
typographical errors. Capital Techies makes no representations about the suitability of
this information; it is provided “as is” without warranty of any
kind. If an error is made or a product is listed at an incorrect price, Capital Techies
shall maintain the right to refuse or cancel any orders placed. If the order
has been confirmed and charged to your account or credit card, Capital Techies shall
issue a credit or refund.
2.6 Order Cancellation Policy
If you would like to cancel a backorder please notify us on 08 7099 8900
or via email to your account manager. Other than “special orders” (an
order where goods ordered are especially ordered to meet specific to customer
requirements or cannot be refunded by Capital Techies to its supplier), an order can
often be cancelled before it has left the distributor or vendor’s warehouse
with no cancellation fee. If the order has left our warehouse, a fee may apply
to cover courier and restocking costs.
3 Customer Obligations
3.1 Supported Infrastructure
The Customer must procure and maintain hardware and software support contracts with the applicable vendors for the Supported Infrastructure which comply with the reasonable requirements of Capital Techies (‘Vendor Support Contracts’). The Customer acknowledges that Capital Techies may not be able to provide all or part of the Services where Vendor Support Contracts for the Supported Infrastructure are not in place.
The Customer must use and ensure its Personnel use the Services in accordance with all applicable laws and regulations and Capital Techies directions, including security regulations and operating policies and procedures.
3.3 Customer’s assistance
(a) To enable Capital Techies to perform the Services, the Customer:
(i) must provide Capital Techies with access to the information, equipment, facilities and the Site that Capital Techies reasonably requires to perform the Services, including reasonable and necessary Internet access, electrical power, telephone services and working space as Capital Techies may reasonably request and all relevant Documentation and information relating to the Customer’s Computer System;
(ii) advise Capital Techies as soon as it becomes aware of any changes in the information that the Customer has supplied to Capital Techies ;
(iii) must provide sufficient, qualified Personnel capable of performing all of its duties and obligations under this Agreement and will provide reasonable access to its relevant Personnel;
(iv) consents to the installation of, and agrees to provide Capital Techies with sufficient space, facilities and assistance to allow Capital Techies to install, any Capital Techies Hardware and Capital Techies Software (via Customer consent), that Capital Techies considers necessary to enable Capital Techies to perform the Services;
(v) must, at its own cost, establish and maintain a connection to the Internet at all times during the Term to enable Capital Techies to connect remotely to the Customer’s Computer System;
(vi) must maintain an active and up to date antivirus and anti-malware protection on the Customer’s Computer System;
(vii) must ensure that the Customer’s Computer System, any relevant data and the Site are ready and available to Capital Techies in order to facilitate the provision of the Services by Capital Techies ; and
(viii) must promptly provide any other information, approvals or assistance reasonably required by Capital Techies .
(b) Despite any provision of the Relevant Proposal, Capital Techies is not required to commence or continue to perform the Services unless the Customer provides the assistance set out in clause 3.3(a), but the customer is still obliged to pay any applicable fees.
4 Capital Techies Obligations
The Services will be provided with due care and skill and in accordance with all applicable laws and regulations.
4.2 Capital Techies to exercise discretion
Subject to complying with its obligations under this Agreement, Capital Techies shall exercise its own independent discretion as to the most appropriate and effective manner of providing the Services and achieving the Customer’s requirements.
4.3 Scope of Capital Techies obligations
(a) Unless expressly required by the Relevant Proposal, the obligations of Capital Techies when providing the Services are confined to:
(i) the provision of technical services only. If any repair or rectification of the Supported Infrastructure is required, Capital Techies responsibility will be to request the relevant vendor of the Supported Infrastructure to provide the repair or rectification (at the Customer’s expense) under the relevant Vendor Support Contract.
(b) Capital Techies obligation to provide the Services is dependent on, and subject to, the Customer:
(i) procuring and maintaining the Vendor Support Contracts referred to in clause 3.1; and
(ii) providing the assistance set out in clause 3.3(a).
(c) Capital Techies obligation to provide the Services does not extend to rectifying any Defect, problem, fault or incident arising from or repair or replacement of an item which fails or develops an error due to:
(i) a Force Majeure Event, fire, accident, neglect, misuse, vandalism, water, lightning, power failure, power surge or power spike;
(ii) use of an item for other than its intended purpose or contrary to is specifications;
(iii) services necessitated by authorised changes, modifications or alterations to hardware or software by the Customer or a third-party.
5 Changes to the Supported Infrastructure
The Customer acknowledges that the Services and the Fees specified in the applicable Relevant Proposal have been proposed by Capital Techies on the basis that:
(a) the information provided by the Customer to Capital Techies concerning the Customer’s Computer System is complete and accurate;
(b) the Supported Infrastructure is correctly described in the Relevant Proposal;
(c) the Customer’s Computer System is properly maintained and up to date; and
(d) the Customer will continue to maintain the Customer’s Computer System for the Term.
5.2 Change to the Supported Infrastructure
The Customer must not substitute, remove or update the Supported Infrastructure or the Customer’s Computer System without first notifying Capital Techies , and Capital Techies may then:
(a) where the substitution, removal or update is performed by a third party, require the third party to brief Capital Techies on all aspects of the work performed and provide Capital Techies with all relevant Documentation and information relating to the altered Supported Infrastructure;
(b) vary the Fees or impose new Fees for performing any additional Services; and/or
(c) request variations to this Agreement.
5.3 Services Exclusions
Unless expressly specified to the contrary in the applicable Relevant Proposal, the Services do not include the following (or services relating to any of the following):
(a) electrical, air conditioning, building or environmental work external to the Supported Infrastructure;
(b) effecting changes or alterations to the configuration or specifications of the Customer’s Computer System;
(c) re-installation, moving or removing of the Customer’s Computer System;
(d) repair of damage caused by:
(i) the operation of the Supported Infrastructure by a person not authorised by the Customer;
(ii) the operation of the Supported Infrastructure other than in accordance with recommended operating procedures or otherwise than in accordance with the directions or recommendations of the manufacturer or supplier;
(e) cleaning, or refinishing any part of the Supported Infrastructure or the Customer’s Computer System;
(f) re-installing moving or removing the Supported Infrastructure or accessories, supplies or other items associated with the Supported Infrastructure;
(g) maintenance which is determined by Capital Techies not to be related to the Supported Infrastructure;
(h) rectification of defects, errors or computer viruses (except for computer viruses that were introduced by Capital Techies) in any software, hardware or equipment, or repairs, support or maintenance relating to those things;
(i) preservation, translation, migration or management of data;
(j) rectification of faults in hardware, equipment or telecommunications links or telecommunications services;
(k) development of any software or software interfaces needed to complete any installation;
(l) supply and installation of consumables or hardware;
(m) rectification of errors or failures caused by failure of hardware, power, air-conditioning or other environmental failure;
(n) installing, transferring, moving or removing software, data, hardware or other equipment or materials; and
(o) any other services not expressly included in the Relevant Proposal.
5.4 Simple Service Requests
If Capital Techies receives a request from the Customer to provide any services urgently (where there is no time to prepare a proposal) or to provide services where Capital Techies reasonably considers that the preparation of a proposal is unnecessary (whether due to the simplicity of the services requested or otherwise), then Capital Techies may treat the request as a Simple Service Request in which case Capital Techies will provide the requested services on a time and material basis at Capital Techies then applicable rates.
6 Capital Techies Security Assessment Services
6.1 Provision of Services
The Customer agrees to cooperate with Capital Techies in supplying the Security Assessment Services, including:
(a) providing Capital Techies with timely and required access to Customer Computer Systems, information, personnel, facilities, site and utilities as reasonably required
(b) ensuring Customer Computer Systems are backed up and recoverable prior to and at all times during the performance of the Services
Due to the nature of the Security Assessment Services, the Customer acknowledges and agrees that Capital Techies will not be liable or in breach of any terms and conditions of service for any temporary degradations of service to the Customer’s Computer Systems, or subsequent loss of productivity.
6.2 No Guarantee
The information contained within the Reported Findings does not constitute a guarantee or warranty by Capital Techies Pty Ltd (“Capital Techies ”) of any an assurance against risk. The Reported Findings are based on information provided by the Customer, in addition manual and automated findings while conducted the engagement, within the agreed scope of Security Assessment Services. Reported Findings have been collated and prepared following consultation with the Customer and reflect context of the business priorities of the Customer as interpreted by Capital Techies. Advice included in the Reported Findings make no assurance for completeness of all issues of concern in relation to the subject matter.
All commercial decisions undertaken as a result of the Reported Findings shall remain entirely at the Customer’s own discretion.
Capital Techies makes no guarantee that the Security Assessment Services will prevent the Customer from being affected by any security breach or Cyber Incidents. Furthermore, Capital Techies is not liable to the Customer in any way in the event the Customer is affected by a security incident, except to the extent such incident is directly caused by Capital Techies misfeasance.
The Customer acknowledges and agrees that all Security Assessment Services conducted:
(a) sample assessment activities only and cannot account for all possible ways a third party could breach the Customer’s security measures or Customer’s Computer Systems
(b) do not implement any security measures, and are intended for informational use only
In the case of Cyber Incident, the Customer must not:
(a) in any way link such security breach or cyber incident to Capital Techies failure to provide the Security Assessment Services in any announcement, publication, declaration or other communication; or
(b) otherwise mention or refer to Capital Techies in relation to such security breach or cyber incident in any announcement, publication, declaration or other communication, without Capital Techies prior written consent.
7 Software and Hardware Procurement
If Capital Techies provides the Customer with Capital Techies Software, the Customer acknowledges that it has no right, title or interest in the Capital Techies Software and it is only being provided to the Customer for the purposes of Capital Techies providing the Services.
(a) If Capital Techies installs any Capital Techies Hardware into the Customer’s Computer System, the Customer acknowledges that it has no right, title or interest in the Capital Techies Hardware and it is only being provided to the Customer for the purposes of Capital Techies performing the Services.
(b) The parties irrevocably agree that the Capital Techies Hardware is not and will not become a fixture on or to the Site.
(c) On expiry of this Agreement, the Customer grants Capital Techies, or its authorised representatives, the right to enter the Site to remove the Capital Techies Hardware. Capital Techies agrees to make good any damage to the Site caused by Capital Techies carrying out the activities contemplated in this clause.
(d) The Customer agrees, warrants and represents that it will:
(i) not tamper with or remove any labels identifying the Capital Techies Hardware as the property of Capital Techies;
(ii) not represent that it owns or otherwise attempt to sell, rent or otherwise part with the possession of the Capital Techies Hardware;
(iii) not register or permit any charge or security interest to be registered or enforced with respect to the Capital Techies Hardware by anyone other than Capital Techies (including any interest registrable under the PPSA);
(iv) not interfere with or tamper with the Capital Techies Hardware;
(v) provide adequate rack space for and ensure the safe storage of the Capital Techies Hardware on the Site at all times; and
(vi) ensure that the Capital Techies Hardware located on the Site has adequate access to electrical supply and cooling systems and is at all times maintained at a suitable operating temperature as reasonably required by Capital Techies from time to time.
(e) The Customer is liable for any loss or damage to the Capital Techies Hardware.
8 Microsoft CSP — New Commerce Experience (NCE)
From the start of 2022, Microsoft has introduced the New Commerce Experience (NCE) for license-based CSP services.
8.1 License billing frequency
Customers can choose to be billed upfront, monthly or annually. Billing date for licenses For New Commerce products, billing dates are based on the calendar start date instead of the subscription’s anniversary date.
8.2 License term
License-based subscription can have 1‑month, 12-month or 36-month paid terms, which begin on the purchase date (from Capital Techies written confirmation of purchase).
Due to cost optimisation for Customers, all Microsoft 365 CSP quotes will be quoted at a default 12-month term unless discussed and agreed otherwise.
8.3 License cancellation
Customers can cancel their subscription with a prorated refund within the first seven (7) calendar days for any term (proration calculated daily).
After seven (7) calendar days, cancellation is no longer available, and the Customer will be billed for the full term, even if the Customer stops using the subscription (applicable to any billing plan).
8.4 License renewal
All license-based subscription auto-renew either 1‑month, 12-months or 36-months after the paid term begins.
If Capital Techies determines that this Agreement (or a transaction in connection with it) contains or gives rise to a registrable security interest for the purposes of the PPSA, the Customer agrees to do all things reasonably required by Capital Techies(such as obtaining consents, signing documents, entering into a further agreement in relation to the security interest and supplying information) for the purposes of:
(a) ensuring that the security interest is enforceable, perfected and otherwise effective; or
(b) enabling Capital Techies to apply for any registration, or give any notification, in connection with the security interest so that the security interest has the priority required by Capital Techies; or
(c) enabling Capital Techies to exercise its rights in connection with the security interest.
10.1 Payment of Fees
(a) The Customer must pay Capital Techies the Fees in accordance with this Agreement.
(b) Unless specified otherwise, the Customer must pay Capital Techies all Fees payable under this Agreement within 14 days of receipt of an invoice from Capital Techies without demand, deduction, withholding, set-off or counterclaim.
(c) All payments must be made in Australian currency and unless stated otherwise, in immediately available funds.
(d) A payment in ‘immediately available funds’ refers to a payment in cash, by bank cheque the drawer of which is an Australian bank, telegraphic transfer of cleared funds or a direct credit of cleared funds.
10.2 Fixed Service Fee and Variable Service Fee
(a) Fees are quoted as either a Fixed Service Fee or a Variable Service Fee, as set out in the applicable Relevant Proposal.
(b) Unless expressly stated as a Fixed Service Fee, all quotes are given as an estimate of the total cost of the fees to complete the Services.
(c) In respect of the Variable Service Fee, the Customer acknowledges and agrees that:
(i) site call-outs are charged in 15-minute units, with a one hour minimum
(ii) remote support is charged in 15-minute units.
(d) The Customer acknowledges that where unusual or overtime support staff are engaged specifically to complete the Services, these staff will be charged out at their additional cost to the Customer.
10.3 Additional Services Fee
(a) Where Capital Techies provides the Customer with services that are outside the scope of the Services required by the applicable Relevant Proposal, then unless agreed otherwise, the Customer must pay the Additional Services Fee calculated in accordance with Capital Techies standard hourly rates for providing that service.
(b) Unless specified otherwise in the applicable Relevant Proposal, the Customer must pay the Additional Services Fee monthly in arrears.
The Customer must pay Capital Techies or reimburse Capital Techies for any expenses which Capital Techies is required to pay or incur under the applicable Relevant Proposal or otherwise under this Agreement in order for Capital Techies to perform this Agreement, provided the expenses were formally agreed in advance.
10.5 Disputed invoices
If the Customer wishes to dispute an invoice it must:
(a) pay all parts of the invoice which are not the subject of a bona fide dispute; and
(b) give Capital Techies notice of the dispute and the reasons why the Customer disputes the invoice before the due date for payment of the invoice.
10.6 Default in payment
If the Customer fails to pay any amount payable under this Agreement by the due date then, except where the amount has been validly disputed pursuant to clause 10.5, Capital Techies may (without prejudice to any other remedies to which it is entitled):
(a) charge the Customer interest (calculated on a daily basis) on any unpaid amounts at the rate charged by Capital Techies’s bank on an overdraft of $100,000 (expressed as a percentage) plus an additional 2% (i.e. if the bank rate is 6% then the applicable rate will be 8%) for the duration that the amount is unpaid; and
(b) suspend performance of all or some of Capital Techies’s obligations under this Agreement without any liability to the Customer.
(a) Unless expressly stated otherwise, all amounts payable are exclusive of any Taxes.
(b) Subject to clause 11.2 , the Customer must pay all Taxes in connection with this Agreement.
(c) If the law requires the Customer to make a deduction or withholding for or on account of Taxes from a payment, the Customer must pay Capital Techies an additional amount so that Capital Techies receives an amount equal to the payment which would have been paid had no deduction or withholding been made.
(a) Capitalised expressions which are not defined in this Agreement but which have a defined meaning in the GST Act have the same meaning in this clause.
(b) If a party (Supplier) makes a Taxable Supply under this Agreement then the Recipient of the Taxable Supply must pay the Supplier the GST payable on the Taxable Supply in addition to the consideration for the Supply.
(c) The Supplier must provide to the Recipient a Tax Invoice or other documentation that complies with the requirements for a valid Tax Invoice under the GST Act.
(d) Subject to the Supplier issuing a Tax Invoice to the Recipient as required under clause 11.2(c), the Recipient must pay the GST on the Taxable Supply under this Agreement to the Supplier at the same time as the Recipient pays the consideration for the Supply to the Supplier.
(e) Despite any other provision of this Agreement, if the whole or part of any consideration under this Agreement is a reimbursement or an indemnity to one party of an expense, loss, outgoing or liability incurred or to be incurred by the other party, the consideration excludes any GST included in such expense, loss, outgoing or liability incurred or to be incurred for which the other party can claim an Input Tax Credit. The other party will be assumed to be entitled to a full Input Tax Credit unless it can establish otherwise.
(a) Without limiting clause 12(a), Capital Techies will have no responsibility to assist the Customer in respect of a Defect where:
(i) the Defect is caused by items not produced or supplied by Capital Techies (including without limitation third party hardware or software supply by Capital Techies) or any error or defect in the Customer’s Computer System, Supported Infrastructure or physical environment;
(ii) the Defect is due to a Force Majeure Event; or
(iii) the Customer is in breach of this Agreement.
(b) Capital Techies will use reasonable endeavours to assign all warranties under any third-party agreement for the supply of hardware or software, including without limitation any warranty for fixed part, component or running part failure to the Customer.
13.1 Protection of Confidential Information
Each party must only use or copy the other party’s Confidential Information for the purposes of this Agreement and must take all steps reasonably necessary to:
(a) maintain the confidentiality of the other party’s Confidential Information; and
(b) ensure that any person who has access to Confidential Information of the other party through it or on its behalf does not use, copy or disclose that Confidential Information other than in accordance with this Agreement.
13.2 Disclosure of Confidential Information
(a) Each party must not disclose the Confidential Information of the other party to any person except:
(i) to its Personnel who need to know the Confidential Information for the purposes of this Agreement;
(ii) as required to be disclosed by law; or
(iii) with the written consent of the other party.
(b) Before disclosing Confidential Information to a person, the disclosing party must take reasonable steps to ensure that the person is aware of the confidential nature of the Confidential Information and has agreed to comply with the confidentiality obligations under this Agreement.
13.3 Return of Confidential Information
Each party must, at the other party’s request return, erase, destroy or procure the return, erasure or destruction (as applicable) of all copies of the other party’s Confidential Information in its possession or control. Notwithstanding this provision, each party is permitted to retain a copy of Confidential Information (subject to the confidentiality obligations of this clause 13) to the extent this is necessary to meet internal or statutory record keeping obligations.
13.4 Injunctive relief
A party will be entitled to seek injunctive relief for any breach or threatened breach of the other party’s obligations of confidentiality.
(a) Each party must comply with all applicable Privacy Laws in relation to any Personal Information that is collected, stored, used, disclosed or otherwise dealt with under or in connection with this Agreement.
(b) To the extent the Customer discloses any Personal Information to Capital Techies, the Customer warrants that it has given all necessary notifications and has obtained all necessary consents required to disclose that information to Capital Techies and to enable its lawful use by Capital Techies.
(c) Capital Techies warrants that Customer Data on servers hosted in Capital Techies racks is located in secure datacentres within Australia.
(d) Capital Techies will comply with the Privacy (Tax File Number) Rule 2015 (Cth), Taxation Administration Act 1953 (Cth) and Income Tax Assessment Act 1936 (Cth) in respect of any tax file number information that is disclosed or provided to Capital Techies under or in connection with this Agreement.
15 Use of Customer Data
Capital Techies acknowledges that the Customer retains ownership and all other interests in the Customer Data. The Customer will be entitled to obtain a copy of Customer Data at any time provided that Capital Techies will be entitled to charge the Customer at its then applicable time and materials rates for any services required of Capital Techies in connection with the provision of a copy of the Customer Data. Subject to clause 13 , the Customer authorises and licenses Capital Techies (and its agents and contractors) to collect, retain and use Customer Data as reasonably necessary in connection with the provision of Services.
16 Intellectual Property
(a) Unless specified otherwise in the applicable Relevant Proposal, Capital Techies (or its licensors) will own all Intellectual Property Rights related to work methods, document and software templates, source code, related confidential information, trade secrets, know-how, trademarks, service marks and other related business marks or names.
(b) To the extent any materials or deliverables (including software or Documentation) are provided to the Customer and are not the subject of a separate licence, then Capital Techies grants to the Customer (subject to payment of the Fees payable under this Agreement) a non-exclusive, royalty-free, non- transferrable licence to use the materials and the deliverables for its own internal business purposes for the Term.
(c) Except to the extent expressly permitted by an applicable law or this Agreement, the Customer must not, and must not permit others to, use, copy, alter, modify, reproduce, adapt, distribute or make derivative works of all or any part of those materials and deliverables.
(d) The Customer must not use the materials and deliverables (including any software and Documentation) other than in accordance with the terms of this Agreement, any Documentation provided and Capital Techies’s reasonable instructions.
(e) If the Customer provides any materials or access to software for use by Capital Techies, the Customer warrants that such use by Capital Techies or its contractors will not infringe the intellectual property or any other rights of any third party.
17 Implied Terms
17.1 Exclusion of implied terms
Any representation, warranty, condition, guarantee or undertaking that would be implied in this Agreement by legislation, common law, equity, trade, custom or usage is excluded to the maximum extent permitted by law.
17.2 Non-Excludable Guarantee
(a) Nothing in this Agreement excludes, restricts or modifies any consumer guarantee, right or remedy conferred on the Customer by the Australian Consumer Law contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth) or any other applicable law that cannot be excluded, restricted or modified by agreement (‘Non-Excludable Guarantee’).
(b) To the maximum extent permitted by law, Capital Techies’s liability for breach of a Non-Excludable Guarantee is limited, at Capital Techies’s option, to:
(i) in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; or
(ii) in the case of services, the supplying of the services again or the payment of the cost of having the services supplied again.
18.1 No reliance on representations
(a) The Customer warrants that it has not relied on any representation or warranties made by Capital Techies which has not been stated expressly in this Agreement, or relied upon any descriptions, illustrations or specifications contained in any document including proposals, websites or publicity material produced or provided by Capital Techies.
(b) The Customer acknowledges that to the extent Capital Techies has made any representation or warranty which is not otherwise expressly stated in this Agreement, the Customer has been provided with an opportunity to independently verify the accuracy of that representation or warranty.
18.2 Limitation of Liability
Subject to clause 17.2, Capital Techies will be under no liability to the Customer or any other person in respect of:
(a) any Loss that is directly or indirectly caused by or results from any wrongful, wilful or negligent act or omission of the Customer or any of its Personnel;
(b) any indirect, incidental, special or consequential loss, loss of profits or anticipated profits, loss of revenue, loss of savings, loss of opportunity, or loss or corruption of data suffered incurred by the Customer under or in connection with this Agreement (whether arising under contract, in tort (including negligence) or otherwise), irrespective of whether the Customer or its Personnel previously notified Capital Techies of the possibility of such loss.
(c) any Loss arising from or in connection with the use by the Customer of any information or advice provided by Capital Techies in connection with the Customer seeking or effecting their own insurance. The Customer acknowledges and agrees that Capital Techies offers no warranty in connection with such information and advice.
(d) as it relates to use of any self-service portal(s), including but not limited to Microsoft 365 licensing, Capital Techies will not be liable for any Loss, damage, cost or expense of any resulting from:
(i) the use or inability to use any self-service portal(s);
(ii) unauthorised access or alterations of Customer transmissions to or from the self-service portal by a third party;
(iii) activities resulting from the loss or misuse of Customer login credentials or other information contained in your account.
The Customer acknowledges that their use of any self-service portals are entirely at the Customer’s own risk, and they are responsible for taking all precautions deemed necessary or advisable to protect against any claim, damage, Loss or hazard that may arise from such access.
18.3 Liability cap
(a) Subject to clause 17.2, to the maximum extent permitted by law, the maximum aggregate liability of Capital Techies for all proven Losses and Claims arising under or in connection with this Agreement, whether in contract, statute, tort (including negligence), equity or otherwise, is limited to the Fees paid by the Customer to Capital Techies under this Agreement, in relation to the particular Service which was responsible for or connected with the relevant Loss or Claim, in the 12 months preceding the Loss or Claim.
(b) The cap on Capital Techies’s liability in clause 18.3(a) does not apply to any injury or death to a person, any breach of clause 13 or any infringement of a third party’s Intellectual Property Rights including under the indemnity set out in clause 18.4(b).
(a) The Customer will at all times indemnify and hold harmless Capital Techies and its Personnel (Capital Techies Indemnified Parties) from and against any Loss reasonably incurred or suffered by any of the Capital Techies Indemnified Parties arising from any Claim against the Capital Techies Indemnified Parties where such Loss was caused by:
(i) a breach by the Customer of its obligations under this Agreement; and
(ii) any wilful, unlawful or negligent act or omission of the Customer.
(b) Capital Techies will at all times indemnify and hold harmless the Customer and its Personnel from and against any Loss reasonably incurred or suffered by any of the Customer and its Personnel arising from any Claim against the Customer and its Personnel where such Loss was caused by:
(i) a breach by Capital Techies of its obligations under this Agreement;
(ii) a third party alleging that the use of the Services provided under this Agreement infringed the Intellectual Property Rights of any person. The indemnity is subject to the Customer promptly notifying Capital Techies of the relevant Claim and allowing Capital Techies to control the defence of the Claim; and
(iii) any wilful, unlawful or negligent act or omission of Capital Techies.
19.1 Termination by Capital Techies
(a) Without limiting the generality of any other provision in this Agreement, Capital Techies may suspend and/or terminate its provision of all or any of the Services immediately by written notice if the Customer:
(i) is the subject of an Insolvency Event; or
(ii) commits a breach of this Agreement and that breach is incapable of remedy or is capable of remedy but the Customer fails to remedy the breach within 15 Business Days of receiving notice requiring it to do so.
19.2 Termination by Customer
The Customer may terminate this Agreement immediately by written notice, if Capital Techies:
(a) is the subject of an Insolvency Event; or
(b) commits a breach of this Agreement and Capital Techies fails to remedy the breach within 15 Business Days of receiving notice requiring it to do so.
19.3 Consequences of Termination
(a) If this Agreement expires or is terminated for any reason:
(i) each party may repossess any of its property in the possession, custody or control of the other party;
(ii) Customer must pay Capital Techies all amounts payable as at expiry or termination (including early termination charges (if any) specified in the applicable Relevant Proposal) and any amount which would have become payable but for that termination or expiry;
(iii) Capital Techies may charge for all costs, disbursements and expenses, incurred in expectation of performing all of the requirements of the applicable Relevant Proposal except to the extent the Customer has already paid the applicable Fees; and
(iv) providing the Customer has paid all Fees, then the Customer may request Capital Techies to provide disengagement/transition-out services (“Disengagement Services”). Capital Techies will be entitled to be paid for all such services at its then applicable time and materials rates. The parties shall record any agreed Disengagement Services in writing and the provisions of these terms and conditions shall apply to Disengagement Services notwithstanding the expiry or termination of the agreement; and
(v) all rights that a party has accrued before termination continue.
(b) Clauses 10, 13, 14, 15, 17, 18, 19, 20, 21, 27, 29 and 30 continue after termination or expiry of this Agreement, as well as all other clauses which by their nature should survive the expiry or termination of this Agreement.
20 Employment Restrictions
The Customer must not, during the Term and for six months after the expiry or termination of this agreement, directly or indirectly solicit for employment or engagement the services of any of Capital Techies’s Personnel involved in the supply of the Services to the Customer.
The Customer acknowledges that the restraint in this clause 20 is reasonable in its extent and goes no further than is reasonably necessary to protect Capital Techies’s interest in maintaining its Personnel. If in breach of this provision, the Customer agrees to pay Capital Techies a flat fee of $25,000.
21 Special Conditions
(a) The Special Conditions will apply to this Agreement if and only if Capital Techies has agreed to them in writing.
(b) To the extent of any inconsistency between the Special Conditions and the terms of this Agreement, the Special Conditions will prevail.
22 Dispute Resolution
(a) The parties agree to use best endeavours to resolve in good faith any dispute concerning this Agreement.
(b) Each party must follow the procedures in this clause 22 before starting arbitration or court proceedings (except for urgent injunctive or declaratory relief).
(c) If a dispute arises between the parties and that dispute cannot be resolved promptly between their nominated contact persons, either party may notify the other party of a formal dispute. Each party must nominate a senior executive to meet with 10 Business Days of the notice (or another agreed period) to try and resolve the dispute.
(d) If the dispute remains unresolved after the expiry of 10 Business Days from the date a party gave notice of the dispute, the parties must try to resolve the dispute by mediation administered by the Australian Disputes Centre in accordance with its then-current Guidelines for Commercial Mediation.
(e) If a dispute remains unresolved after mediation and the dispute involves an amount of less than $200,000, then the dispute must only be resolved by expert determination. Either party may refer the dispute to expert determination and neither party may commence any litigation with respect to that dispute except to enforce an expert determination after it is delivered
(f) If a party refers a dispute to expert determination, then the parties shall agree an appropriate person to determine the dispute or, if agreement on an expert cannot be reached within 5 Business Days, then either party may request the Australian Disputes Centre to nominate an expert to determine the matters in dispute An expert determination shall be conducted in accordance with the Australian Disputes Centre rules for expert determination and the following provisions:
(i) the expert shall determine the matters required to be determined under this Agreement and any other matters the parties may agree to submit to the expert for determination;
(ii) each party shall be entitled to make written submissions to the expert;
(iii) the expert shall determine the matters referred to the expert expeditiously and each party must do all things reasonably necessary to facilitate the prompt finalisation of the expert determination;
(iv) the expert shall be deemed to be acting as an expert and not an arbitrator;
(v) the determinations of the expert shall be binding on the parties; and
(vi) the costs of the expert shall be borne equally by the parties.
(g) Despite the existence of a dispute, and except where otherwise provided, each party will continue to perform its obligations under this Agreement.
(a) Capital Techies will, during performance of the Services, hold insurance policies for the following risks and to the following minimum amounts:
(i) Public Liability: $20 million per event and in the aggregate;
(ii) Professional Indemnity: $10 million per event and $30 million in the aggregate; and
(iii) Workers Compensation: to the extent required by law.
(b) It is recommended that the Customer obtain independent advice relating to appropriate levels of insurance including (without limitation) to appropriately cover damages or losses from a cyber-related data breach or any other security-related event and business interruption insurance cover.
24 Cyber Security
(a) Unless otherwise specified in the Relevant Proposal, the Customer is solely responsible for security governance, including but not limited to the direction and approval of measures to protect Customer data, software, applications or other materials that are installed, located, hosted or otherwise stored in the Supported Infrastructure/Customer Computer System.
(b) Where specified in the Relevant Proposal, Capital Techies will implement security measures or provide advice in relation to systems and process to assist in securing the Supported Infrastructure as part of the Services, however Capital Techies does not represent and warrant that the provision of these services will guarantee the availability, uptime, and/or security of the Supported Infrastructure.
25 Force Majeure
(a) Neither party is liable for not performing an obligation in whole or in part, or for not performing it on time (except an obligation to pay money), because of a Force Majeure Event.
(b) If a Force Majeure Event occurs, the non-performing party must:
(i) promptly notify the other party of the event and provide an estimate of the non-performance and delay;
(ii) take all reasonable steps to overcome the effects of the event (but this does not require the settlement of industrial disputes or other claims on unreasonable terms or the expenditure of additional money); and
(iii) resume compliance as soon as practicable after the event no longer affects either party.
(c) If the Force Majeure Event continues for a period of two months, either party may terminate this Agreement immediately by giving the other party written notice.
(a) Capital Techies will use its reasonable endeavours to meet any dates agreed under this Agreement but does not guarantee it will do so.
(b) Without limiting clause 26(a) , Capital Techies will not be responsible for any delays (or Claims or Losses arising from delays) which occur during the course of the Term and which arise from any non-compliance by the Customer with this Agreement, the late supply or provision of instructions and information by the Customer, delays in obtaining access to the Site or any other delays caused by the Customer, the Customer’s third party suppliers and contractors (any of which is a “Customer Delay”).
(c) Capital Techies will be entitled to extension of time in respect of any date agreed under this Agreement equal to the duration of any delay caused by Force Majeure Event or a Customer Delay. Capital Techies will be entitled to recover any additional costs it incurs as a result of any Customer Delay. Any such costs will be invoiced by Capital Techies and must be paid by the Customer within 14 days after the date of receipt of the relevant invoice.
(a) A notice, consent, approval or other communication under this Agreement (‘Notice’) must be:
(i) in writing and signed by the sender or its duly authorised representative, addressed to the recipient and sent to the recipient’s address specified in this Agreement or as otherwise notified; and
(ii) delivered by personal service, sent by pre-paid mail or transmitted by or email, or any other lawful means.
(b) A Notice given in accordance with this clause 27 is treated as having been given and received:
(i) if personally delivered, on delivery;
(ii) if sent by pre-paid mail, on the third clear Business Day after the date of posting (or the seventh Business Day after the date of posting if sent to or from an address outside Australia);
(iii) if sent by email, at the time of transmission by the sender, unless the sender receives an automated notice generated by the sender’s or the recipient’s email server that the email was not delivered, except that, if the delivery, receipt or transmission is after 5.00pm in the place of receipt or on a day which is not a Business Day, it is taken to have been received at 9.00am on the next Business Day.
(a) This Agreement may only be varied by written agreement between the parties.
(b) If either party (the Proposing Party) wishes to vary the agreement:
(i) the Proposing Party will submit a copy of the proposed variations to the other Party (the Receiving Party), specifying a reasonable period in which the Receiving Party is to provide written notice of acceptance or rejection of the proposal;
(ii) if the Receiving Party accepts the variations, the Agreement will be deemed to be so amended from the date of acceptance; and
(iii) if the Receiving Party rejects the proposed variations, each party will perform the Agreement in accordance with the unvaried terms.
(g) Except where prevailing terms have been formally agreed between the Customer and Capital Techies, including but not limited to a Master Service Agreement, these Terms and Conditions shall prevail over all terms (except in relation to any agreed Special Conditions) to the extent of any inconsistency.
(b) Except as expressly stated otherwise in this Agreement, each party must pay its own legal and other costs and expenses of negotiating, preparing, executing and performing its obligations under this Agreement.
(c) The Customer acknowledges that Capital Techies may subcontract the performance of all or part of its obligations under this Agreement.
(d) Nothing in this Agreement (whether express or implied) is intended to create or constitute a relationship of partnership, agency, employment, trustee or other fiduciary relationship between the parties. It is the intention of the parties that any such relationship is expressly denied.
(e) Neither party may assign any of its rights or novate any obligations under this Agreement without the prior written consent of the other party (consent not to be unreasonably withheld or delayed). Either party may assign or novate this Agreement to any purchaser of all or substantially all of its business assets without the need to obtain consent from the other party.
(f) A right created by this Agreement may only be waived in writing by the party giving the waiver, and the failure to exercise or any delay in exercising a right or remedy provided by this Agreement or by law does not waive the right or remedy. A waiver of a breach of this Agreement does not waive any other breach.
(g) This Agreement constitutes the entire agreement of the parties about its subject matter and any previous agreements, understandings and negotiations on that subject matter cease to have any effect.
(h) This Agreement is governed by the laws applicable in South Australia, Australia. Each party submits to the non-exclusive jurisdiction of the courts of that place and the courts of appeal from them.
(i) If any clause or part of any clause is held by a court to be invalid or unenforceable, that clause or part of a clause is to be regarded as having been deleted from this Agreement and this Agreement otherwise remains in full force and effect.
(j) A party, at its own cost and within a reasonable time of being requested by another party to do so, must do all things and execute all documents which are reasonably necessary to give full effect to this Agreement.
(k) This Agreement may consist of a number of counterparts and, if so, the counterparts taken together constitute one agreement.
(l) Except as expressly stated otherwise in this Agreement, a party may conditionally or unconditionally give or withhold consent to be given under this Agreement and is not obliged to give reasons for doing so.
30 Modern Slavery
At Capital Techies, we have a zero-tolerance approach to modern slavery and are committed to preventing slavery and human trafficking in our operation and supply chain – in accordance with the Modern Slavery Act 2018 (Cth).
We establish a relationship of trust and integrity with our suppliers, which is built upon mutually beneficial factors. Our supplier selection and on-boarding procedure includes due diligence of the supplier’s reputation, respect for the law, compliance with health, safety and environmental standards, and references.
Capital Techies is committed to:
- Operating in accordance with the Modern Slavery Act 2018 (Cth)
- Providing appropriate reporting and whistleblowing avenues for all Capital Techies staff
- Identifying and/or eliminating potential and/or actual modern slavery practices from our supply chain
- Promoting transparency with our our stakeholders for all matters relating to modern slavery
- Continuously improving our processes related to identifying and eliminating modern slavery
31 Definitions and interpretation
In this Agreement, unless the context requires otherwise:
Additional Services Fee means any fees in addition to the Fixed Service Fees which Capital Techies may charge the Customer to cover miscellaneous, additional, increased, unusual or unexpected costs incurred by Capital Techies in supplying the Services or any other service to the Customer.
Agreement means these Terms and Conditions and any Relevant Proposal agreed by the parties.
Business Day means a day which is not a Saturday, Sunday, public holiday or bank holiday in South Australia.
Claim includes a claim, notice, demand, action, proceeding, litigation, investigation, judgment, damage, loss, cost, expense or liability, whether based in contract, tort or statute and whether involving a third party or a party to this Agreement, but excluding unascertained or contingent claims or claims for consequential loss.
Commencement Date means the earlier of:
(a) the date Capital Techies commences providing the Services to the Customer; and
(b) acceptance by the Customer and Capital Techies of the Relevant Proposal.
Confidential Information means the following information, regardless of its medium of form, whether or not it is marked as confidential, and whether the recipient of the information became aware of it before or after the date this Agreement is executed:
(c) the existence and terms of this Agreement;
(d) information of a party (disclosing party) that is:
(i) made available by or on behalf of the disclosing party to the other party (receiving party), or is otherwise obtained by or on behalf of the receiving party; and
(ii) by its nature confidential or the receiving party knows, or ought reasonably to know, is confidential, but does not include information that:
(e) is in or enters the public domain through no fault of the receiving party or any of its Personnel;
(f) is or was made available to the receiving party by a person (other than the disclosing party) who is not or was not then under an obligation of confidence; or
(g) is or was developed by the receiving party independently of the disclosing party and any of its Personnel.
Corporations Act means the Corporations Act 2001 (Cth).
CPI means the All Groups Consumer Price Index applicable to Australia, Weighted Average of Eight Capital Cities, published by the Australian Bureau of Statistics and if this price index is discontinued or abolished or if the items or weighting of the items whose prices are considered vary so as to change the basis of the price index, then any price index Capital Techies selects that, as nearly as practicable, serves the same purpose.
Customer means the customer receiving the Services from Capital Techies under the Agreement and may be specified in the Relevant Proposal.
Customer Data means data collected by Capital Techies (either directly or indirectly) on or from the Customer and including without limitation data submitted by or on behalf of the Customer in relation to the Customer’s use of the Services.
Customer’s Computer System means the Customer’s existing computer system and operating environment, including all hardware and software owned by, licensed to or leased by the Customer.
Defect means any failure of the Services to materially comply with the applicable Relevant Proposal or this Agreement.
Documentation means any user manual or other operational documentation provided by (as applicable) the manufacturer of any hardware or the licensor of any software, and includes any modifications of such documentation.
Early Termination Fee means the amount equal to the value of the Fees which would payable by the Customer to Capital Techies in respect of the remainder of the Term.
Expiry Date means the earlier of:
(a) the date Capital Techies has finished providing the Services; and
(b) the expiry date (if any) set out in the Relevant Proposal.
Fees means the Fixed Service Fee, Additional Services Fee and any other fees and charges which the Customer must pay for the provision, receipt and use of the Services and any other services provided under this Agreement.
Fixed Service Fee means the fees and charges payable by the Customer to Capital Techies for the provision of the Services as specified in the applicable Relevant Proposal.
Force Majeure Event means any event or circumstance:
(a) which a party did not cause;
(b) to which that party did not materially contribute; and
(c) which that party is unable to prevent or materially influence,
and includes without limitation hostilities, military operations of any nature, acts of public disorder, civil commotion, sabotage, strike, fire, floods, exceptional bad weather conditions, epidemics, war (whether declared or not) and acts of God.
Government Authority means any government, governmental, semi-governmental, administrative, fiscal or judicial body department, commission, authority, tribunal, agency or entity.
GST means goods and services tax or similar value added tax levied or imposed in Australia under the GST Law or otherwise on a supply.
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
GST Law has the same meaning as in the GST Act.
Insolvency Event means the occurrence of any one or more of the following events regarding a party (Insolvent Party):
(d) the Insolvent Party ceases or takes steps to cease to conduct its business in the normal manner;
(e) the Insolvent Party enters into or resolves to enter into any arrangement, composition or compromise with or assignment for the benefit of its creditors or any class of them;
(f) the Insolvent Party is unable to pay its debts when they are due or is deemed under the Corporations Act to be insolvent;
(g) a liquidator or provisional liquidator is appointed to the Insolvent Party or a receiver, receiver and manager, official manager, trustee or similar official is appointed over any of the assets or undertakings of the Insolvent Party;
(h) an application or order is made or a resolution is passed for the winding up of the Insolvent Party; or
(i) any act or event analogous or having a substantially similar effect to any of the events specified in paragraphs (a) to (e) of this definition.
Intellectual Property Rights means all intellectual property rights, including without limitation:
(a) patents, inventions, copyright, registered designs, trade marks, rights in circuit layouts and the right to have confidential information kept confidential; and
(b) any application or right to apply for registration of any of those rights.
Loss includes any loss, damage, cost, charge liability (including Tax liability) or expense.
Capital Techies means Capital Techies Pty Ltd ABN 41 611 856 583.
Capital Techies Hardware means Capital Techies’s hardware and any third party hardware provided by Capital Techies (if any) which Capital Techies uses or installs into the Customer’s Computer System to enable Capital Techies to provide the Services.
Capital Techies Software means Capital Techies’s software and any third party licensed software (if any) which Capital Techies uses or installs on the Customer’s Computer System to enable Capital Techies to provide the Services.
Personal Information has the meaning given to it in the Privacy Act.
Personnel means, in respect of a party, its officers, employees, agents, contractors and subcontractors.
PPSA means the Personal Property Securities Act 2009 (Cth) as amended from time to time.
Privacy Act means the Privacy Act 1988 (Cth).
Privacy Laws means:
(c) the Privacy Act;
(d) all applicable laws affecting privacy, Personal Information or the collection, handling, storage, processing, use or disclosure of data; and
(e) any legally binding ancillary rules, guidelines, orders, directions, directives, codes of conduct or other instruments made or issued thereunder, as amended from time to time.
Relevant Proposal includes a quote, statement of work, request for tender or proposal as accepted or agreed by the Customer and Capital Techies.
Reported Findings includes all reported data and recommendations, written or verbal, in relation to Services provided.
Security Assessment Services includes
Services includes any technical services and professional services and the supply of goods (if applicable) as set out in a Relevant Proposal and includes any services provided pursuant to a Simple Service Request.
Simple Service Request means a request made by the Customer for services which is categorised as a Simple Service Request in accordance with clause 5.4.
Site means the location or locations at which the Services and any other services or supplies will be provided as specified in the applicable Relevant Proposal.
Special Conditions means the special conditions, if any, set out in the applicable Relevant Proposal.
Supported Infrastructure means the devices, infrastructure, environments, products and systems of the Customer’s Computer System specified in the applicable Relevant Proposal, in respect of which Capital Techies will provide the Services.
Tax means all forms of taxes, duties, imposts, charges, withholdings, rates, levies or other governmental impositions of whatever nature and by whatever authority imposed, assessed or charged together with all costs, charges, interest, penalties, fines, expenses and other additional statutory charges, incidental or related to the imposition.
Term has the meaning provided by clause 1.1.
Terms and Conditions means these terms and conditions.
Variable Service Fee means the estimated fees and charges (on a time and materials basis) payable by the Customer to Capital Techies for the provision of the Services as specified in the applicable Relevant Proposal.
Vendor Support Contracts has the meaning provided by clause 3.1.
In this Agreement, unless the context otherwise requires:
(a) a reference to:
(i) the singular includes the plural and the plural includes the singular;
(ii) a recital, clause, schedule or annexure is a reference to a clause of or recital, schedule or annexure to this Agreement and references to this Agreement include any recital, schedule or annexure;
(iii) any contract (including this Agreement) or other instrument includes any variation or replacement of it and as it may be assigned or novated;
(iv) a statute, ordinance, code or other law includes subordinate legislation (including regulations) and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(v) a person or entity includes an individual, a firm, a body corporate, a trust, an unincorporated association or an authority;
(vi) a person includes their legal personal representatives (including executors), administrators, successors substitutes (including by way of novation) and permitted assigns;
(vii) a group of persons is a reference to any two or more of them taken together and to each of them individually;
(viii) an entity which has been reconstituted or merged means the body as reconstituted or merged, and to an entity which has ceased to exist where its functions have been substantially taken over by another body, means that other body;
(ix) unless otherwise stated time means South Australian time;
(x) business hours means between the hours of 9.00 am and 5.00 pm on a Business Day;
(xi) a reference to a day or a month means a calendar day or calendar month;
(xii) money (including ‘$’, ‘AUD’ or ‘dollars’) is to Australian currency;
(b) the meaning of any general language is not restricted by any accompanying example, and the words ‘includes’, ‘including’, ‘such as’, ‘for example’ or similar words are not words of limitation;
(c) the words ‘costs’ and ‘expenses’ include reasonable charges, expenses and legal costs on a full indemnity basis;
(d) headings and the table of contents are for convenience only and do not form part of this Agreement or affect its interpretation;
(e) if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day;
(f) if the last day for doing an act is not a Business Day, the act must be done instead on the next Business Day; and
(g) a provision of this Agreement must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of this Agreement or the inclusion of the provision in this Agreement.
Date updated: 23 August 2022