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TERMS AND CONDITIONS OF SALE
Agreement means this agreement for the provision of Goods and/or Services by Diversus Group to the Buyer.
Diversus Group means Diversus Group Pty Ltd [ACN 127 936 832], Diversus Group Consulting Pty Ltd [ACN 127 914 005], Diversus Group Solutions Pty Ltd [ACN 141 242 971], Diversus Group Consulting Unit Trust [ABN 24 274 151 123] and includes its related entities, contractors, successors and assigns.
Buyer means a person, firm or corporation, jointly or severally, if there is more than one, obtaining Goods and/or Services from Diversus Group.
Goods means all Goods to be supplied by Diversus Group to the Buyer from time to time including but not limited to hardware, software, managed services and professional services.
Documentation means any material, in any format, supplied by Diversus Group (including but not limited to training manuals, product descriptions, supporting material and technical information such as design, test and configuration documents) relating to the Goods and/or Services.
GST means any Goods and/or Services and services or value added tax, including GST, within the meaning of A New Tax System (Goods and/or Services and Services Tax) Act 1999 (Cth).
Hardware means third party hardware that is available for purchase or license from Diversus Group that is manufactured, developed or made available by any entity other than Diversus Group and is distributed by Diversus Group. The hardware may be distributed in conjunction with other Diversus Group products or services and may be enhanced or further developed by Diversus Group.
Intellectual Property means all copyright, patents, trademarks, names, formulae, specifications, confidential information and all modifications, improvements and enhancements (whether registered, registerable, or not registerable) owned by, attributable to or licensed to Diversus Group in respect of the Goods and/or Services.
Invoice means the invoice produced by or on behalf of Diversus Group relating to the corresponding Goods and/or Services and, where applicable, GST.
Order means any orders placed by the Buyer for Goods and/or Services.
Price means the price for the Goods and/or Services as stated on the Invoice.
Services means all professional and/or support services to be supplied by Diversus Group to the Buyer from time to time including but not limited to business analysis, requirements definition, design, configuration, testing, transition to operations and ongoing support.
Software means third party software that is available for purchase or license from Diversus Group that is manufactured, developed or made available by any entity other than Diversus Group and is distributed by Diversus Group. The software may be distributed in conjunction with other Diversus Group products or services and may be enhanced or further developed by Diversus Group.
Support Services means warranty and support services related to the software and hardware as well as Diversus Groups own value added support service where agreed between the parties.
Terms means these terms and conditions relating to the sale of the Goods and/or Services and includes all terms set out on the corresponding Order, Invoice or confirmation of Order.
2. Basis of Contract
2.1 The Terms apply exclusively to every contract for the sale of Goods and/or Services by Diversus Group to the Buyer and cannot be varied, or supplanted by any other terms, conditions, warranties, representations or undertakings whatsoever unless otherwise agreed in writing by Diversus Group and any condition, term or warranty which might otherwise be implied under any law of Australia is hereby expressly negatived or excluded in so far as it legally can be.
2.2 Any written quotation or order form provided by Diversus Group to the Buyer in respect of the proposed supply of Goods and/or Services is deemed to be an invitation only to the Buyer to place an Order based upon that quotation.
2.3 Orders will be accepted by Diversus Group at the earlier of the following events:
(a) delivering the Goods and/or Services to the Buyer;
(b) attempting to deliver the Goods and/or Services to the Buyer;
(c) written confirmation of the Order;
(d) collection of the Goods and/or Services by the Buyer or their agent or contractor.
3.1 Any price quoted by Diversus Group to the Buyer for Goods and/or Services is valid for 30 days and is subject to the Buyer entering into an Agreement and accepting these Terms. The validity period for a quoted price may be varied by Diversus Group in its discretion, in which case, the validity period will be specified upon the written quotation.
3.2 Prices for the supply of Goods and/or Services exclude GST and any other duties, taxes or imposts imposed in relation to the Goods and/or Services in Australia, or overseas. Where Diversus Group is required to pay GST, duties, taxes or imposts in relation to a supply, the amount otherwise payable by the buyer shall be increased by the amount reasonably determined by Diversus Group as the amount of GST, duty, tax or impost for which Diversus Group is liable as a result of making that supply (“additional amount”);
3.3 Subject to paragraph 3.4 below the additional amounts shall be payable at the same time and in the same manner as the consideration otherwise payable.
3.4 If the time required by paragraph 3.3 for payment of the additional amounts is at a time prior to the commencement of the tax period in respect of which Diversus Group will be required to include the GST on that supply in its GST return, paragraph 3.3 will not apply to that additional amount and instead the additional amount will be payable not less than 5 business days prior to the date upon which Diversus Group is required to lodge its GST return for that tax period.
3.5 The Buyer is deemed by this clause to have requested a GST invoice at the time of making any payment of additional amounts under this clause and Diversus Group will as soon as possible, provide to the Buyer a tax invoice which will enable the Buyer, where entitled under the GST law, to claim an input tax credit in respect of the acquisition made by the Buyer.
3.6 The Buyer must pay, in addition to the Price any amount incurred by Diversus Group including transport, freight, delivery and insurance of Goods from point of dispatch of the Goods or other costs reasonably incurred in performance of the Services, unless otherwise stated by Diversus Group in writing.
3.7 Where there is any change in the costs incurred by Diversus Group in relation to the Goods and/or Services, Diversus Group may vary the price of the Goods and/or Services in order to take account of any such change, including but not limited to foreign exchange fluctuations (where applicable).
3.8 Unless otherwise stated on the Invoice, all payments must be made in Australian dollars.
4.1 Unless credit is provided, invoices are due and payable within 14 days of the invoice date.
4.2 All payments must be made without set-off and in immediately available funds. Diversus Group may, at its discretion, provide pre-payment or prompt-payment discounts in which case, the discounts will be set out in the written quotation.
4.3 If credit is agreed in writing by Diversus Group, all payments must be made within thirty (30) days of the invoice date. Time for payment shall be of the essence.
4.4 Diversus Group may refuse, cancel or change any provision of credit to the Buyer at any time.
4.5 Diversus Group will provide a tax invoice for GST purposes.
4.6 Any other payment terms must be agreed in writing and signed by Diversus Group.
5. Payment Default
5.1 If the Buyer:
(a) defaults in payment by the due date of any amount payable to Diversus Group; or
(b) credit is cancelled by Diversus Group for any reason; or
(c) where the Buyer is an individual and dies, commits an act of bankruptcy or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or
(d) where the Buyer is a corporation and it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, provisional liquidator, administrator, receiver or receiver and manager appointed, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Buyer
then all money which would become payable by the Buyer to Diversus Group at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Buyer, and Diversus Group may, without prejudice to any other remedy available to it:-
(i) charge the Buyer interest on any sum past due at the rate of 2% compounded monthly for the period from the due date until the date of payment in full;
(ii) charge the Buyer for all expenses and costs (including legal costs on an indemnity basis) incurred by it in taking whatever action it deems appropriate to recover any sum due;
(iii) cease or suspend for such period as Diversus Group thinks fit, supply of any further Goods and/or Services to the Buyer;
(iv) by notice in writing to the Buyer, terminate any Agreement with the Buyer so far as unperformed by Diversus Group;
(v) retain any security given or moneys paid by the Buyer or available through the enforcement of any guarantee, security, or bond and apply it against any costs and expenses incurred by Diversus Group as a result of the default;
(vi) cancel in writing any current Orders from the Buyer;
(vii) Treat as discharged all or any obligations arising from any agreement with the Buyer; and/or
(viii) Take such steps as it may deem necessary to mitigate the damages suffered including the putting to use, hiring out, sale or disposal of any Goods supplied or to be supplied under the Agreement and in its possession.
6. Passing of Property in Goods
6.1 Until full payment in cleared funds is received by Diversus Group for all Goods and/or Services supplied by it to the Buyer, as well as all other amounts owing on any account to Diversus Group by the Buyer, title and property in any Goods remains vested in Diversus Group and does not pass to the Buyer. In addition, in the case of hardware:
(i) the Goods are held as fiduciary bailee and agent for Diversus Group; So far as is practicable, the Buyer must keep the Goods separate from its Goods, and maintain the labelling and packaging of Diversus Group, and in proper and marketable condition;
(ii) Should the Goods be sold to a third party before payment, the Buyer hereby assigns to Diversus Group its right of recovery of payment from the third party; and
(iii) Diversus Group, may without notice (but is not obliged to), enter any premises where it suspects the Goods may be and remove them, notwithstanding that they may have been attached to other Goods not the property of Diversus Group, and for this purpose the Buyer irrevocably licences Diversus Group to enter such premises and also indemnifies Diversus Group from and against all costs, claims, demands or actions by any party arising from such action.
In the case of software, the Buyer shall cease using the software, deliver up all copies of the software to Diversus Group, delete the software from all devices and Diversus Group shall revoke any relevant software licence. Action may be taken against the Buyer for use of unlicensed software where the Buyer fails to comply with this clause.
6.2 The Buyer must not pledge or in any way charge by way of security for any indebtedness any of the Goods whilst they remain Diversus Group’s property. Without prejudice to our other rights, if the Buyer does so all sums whatever owing from the Buyer to Diversus Group will become immediately due and payable and subject to interest charges in accordance with clauses 4 and 5
6.3 Nothing in this clause shall prevent Diversus Group from electing (at its sole discretion and without prejudice to any other rights) to pass property in the Goods to the buyer.
7. Risk and Insurance over Goods
7.1 Risk in the Goods and all insurance responsibility for theft, damage, or loss in respect of the Goods will pass to the Buyer:
(a) where Diversus Group has agreed to deliver the Goods, immediately upon delivery of the Goods to the premises nominated by the Buyer; or
(b) where Diversus Group specifies that the Buyer must collect the Goods from Diversus Group, upon collection of the Goods by the Buyer or their agent or contractor.
7.2 If the Goods remain on Diversus Group’s premises, warehouse, yard, wharf, or with a carrier due to the failure by the Buyer to take delivery or arrange collection, the Goods will be at the Buyer’s risk from the date and time of the attempted delivery or the agreed collection time (as the case may be). The Buyer will be liable for all costs associated with storage of the Goods and any attempts to re-deliver the Goods.
8.1 Unless otherwise agreed by Diversus Group or where Diversus Group specifies that the Buyer must collect the Goods and/or Services, the Goods and/or Services will be delivered to the address shown on the Order.
8.2 Delivery of software and other intangible deliveries will occur when (a) Diversus Group makes such Software available for use or download by the Buyer; or (b) the enabling key is made available to the Buyer if an enabling key is required for the activation of such Software by the Buyer.
8.3 Any period or date stated by Diversus Group for the delivery of the Goods and/or Services is intended as an estimate only and is not a contractual commitment.
8.4 Diversus Group will use its best endeavours to meet any estimated dates but will in no circumstances whatsoever be liable for any loss or damage suffered by the Buyer or any third party for failure to meet any estimated date, even if such loss or damage is caused by the act or omission of Diversus Group.
8.5 If, through circumstances beyond the control of Diversus Group, Diversus Group is unable to effect delivery or provision of Goods and/or Services, or is delayed or hindered in delivery of the Goods and/or Services, Diversus Group may cancel, delay or reduce the Buyer’s Order, even if it has already been accepted, by notice in writing. Diversus Group will be under no liability to the Buyer or any third party for any damages or losses, direct or indirect, resulting from such cancellation or variation to the Order.
8.6 The Buyer agrees to accept partial delivery or delivery by instalments of the Goods and/or Services, however the Buyer has no right to partial delivery. All partial deliveries or instalments will be invoiced separately, and are deemed to constitute a separate contract. Failure to deliver any separate contract does not entitle the Buyer to cancel the entire order.
9. Cancellation (by Diversus Group), Termination and Rescheduling
9.1 Diversus Group may cancel all or part of any Order for Goods and/or Services at any time before the Goods and/or Services are delivered by giving written notice to the Buyer. On giving such notice Diversus Group shall promptly repay to the Buyer any sums paid in respect of a cancelled Order. Diversus Group shall not be liable to the Buyer or any third party for any loss or damage arising from such cancellation
9.2 The Customer may reschedule the provision of any Services no later than fourteen (14) days prior to the scheduled date of commencement of such Services, for any period up to thirty (30) days from the schedule date of commencement or as otherwise agreed in writing by Diversus Group. In the event that the Customer requests rescheduling less than fourteen (14) days prior to the scheduled date of commencement of any Services, or for a period longer than thirty (30) days from the schedule date of commencement, Diversus Group may require payment, and the Customer will pay on Diversus Group’s invoice, a rescheduling fee of twenty-five percent (25%) of the estimated or fixed fee for the provision of such Services, which is a genuine pre-estimate of Diversus Group’s cost of redeployment of personnel.
9.3 With respect to Services only, either party may terminate any of the Services, with or without cause, by thirty (30) days’ prior written notice.
9.4 In the event of termination of any of the Services by the Customer without cause under clause 9.3 or termination or suspension of any of the Services or the whole of this Agreement by Diversus Group for cause under clause 9.5, Diversus Group will as soon as possible discontinue the performance of the Services affected thereby and the Customer will pay Diversus Group:
(a) Diversus Group’s charges on a time and materials basis for all of the affected Services performed by it up to the effective date of such termination or suspension; and
(b) a termination fee equal to twenty-five percent (25%) of the estimated or agreed fixed fee for the provision of all remaining such Services not performed (in the case of Services subject to a fixed fee, such percentage shall apply to any balance remaining after deduction of the amount invoiced in respect of such Services under paragraph (a) of this clause), which is a genuine pre-estimate of Diversus Group’s cost of redeployment of personnel.
9.5 In addition, either party may suspend performance of any of the Services, or terminate this Agreement as a whole, and/or require delivery up of any item of equipment or documentation remaining upon the other’s premises forthwith at any time after:
(a) failure to comply with any obligation of the other party under this Agreement or any other agreement between the parties and the continuance of such breach for a period of twenty-one (21) days after the due date for performance of that obligation.
(b) an order is made for the other party or any holding company of the other party (“the relevant company”) to be wound up otherwise than voluntarily for the purpose of amalgamation or reconstruction, the relevant company becomes insolvent or bankrupt, has a receiver of its property or assets or any of them appointed, has an official manager appointed, makes or offers to make any assignment for the benefit of creditors, enters or offers to enter into a deed or scheme or arrangement of composition with creditors, or any proceedings under any bankruptcy or liquidation or insolvency laws are commenced by or against the relevant company.
9.6 In the event of termination or suspension of performance of any of the Services or the termination of the whole of this Agreement for any reason, Diversus Group shall not be liable to pay any refund or rebate of any fees already paid by the Customer, but such payment will be credited against any liability of the Customer under this clause.
10.1 Diversus Group will not be liable to the Buyer in respect of any reasonable variation between any samples and the Goods and/or Services actually supplied to the Buyer. Diversus Group do not guarantee the performance level of any third party hardware or software (supplied by it as an authorised vendor representative of the third party) and do not guarantee its suitability for any or all of the Buyers intended uses.
10.2 While Diversus Group will take all reasonable measures to preserve the Customer’s data to which Diversus Group may have access in the course of provision of the Goods and/or Services, Diversus Group cannot accept any responsibility in the event that any data is corrupted or erased for any reason. The Customer accepts that it must maintain backup data in order to avoid any loss or damage arising from such corruption or erasure, and will indemnify and save Diversus Group and its employees harmless from any loss or damage howsoever arising as a result of any claim by the Customer or any third party as a result thereof. This clause also applies to existing configurations of existing systems.
10.3 The Customer acknowledges by entry into this Agreement that no promise, representation, warranty or undertaking has been made or given by Diversus Group or any person on its behalf in relation to the capacity, uses or benefits to be derived from use, profitability of or any other consequences of or benefits to be obtained from the provision of the Services, except as set out in this Agreement and any additional Statement of Work governed by this Agreement, and that the Customer has relied on its own skill and judgment in deciding to acquire the Services.
10.4 In the event that the supply of any goods or services under this Agreement constitutes a supply of goods or services to a consumer as defined in the Trade Practices Act 1974, as amended, or relevant State or Territory legislation (“the Acts”) nothing contained in this Agreement excludes restricts or modifies any condition, warranty or other obligation in relation to this Agreement and the goods and services to be supplied hereunder which pursuant to the Acts or any of them is applicable or is conferred on the Customer where to do so is unlawful, in which event Diversus Group’s sole liability for breach of any such condition, warranty or other obligation, including any consequential loss which the Customer may sustain or incur, shall be limited (except to the extent specifically set forth herein) to:
(a) in relation to goods: (i) the replacement of the goods or the supply of equivalent goods or payment of the cost of replacing the goods or acquiring equivalent goods; or (ii)the repair of the goods or payment of the cost of having the goods repaired;
(b) In relation to services: (i) the supplying of the services again; or (ii) the payment of the cost of having the services supplied again as in each case Diversus Group may select.
10.5 Subject only to clause 10.4, all conditions and warranties which would or might otherwise be implied in this Agreement, whether by operation of statute, inference from circumstances, industry practice or otherwise, are hereby excluded.
10.6 Other than as set out in clause 10.4, and notwithstanding anything else in this Agreement, under no circumstances will Diversus Group be liable to the Customer:
(a) in respect of any contingent, consequential, direct, indirect, special or punitive losses or expenses suffered by the Buyer, howsoever caused, including but not limited to loss of turnover, profits, business, goodwill or any liability to any other party.
(b) in respect of any liability of the Customer to any third party; or
(c) in respect of any loss, damage or injury other than those referred to in 10.6(a) and (b)
to the extent the aggregate of all liability for all claims under or incidental to this Agreement exceed the value of the aggregate of the fees paid hereunder during the period of ONE (1) YEAR prior to the date of claim, whether arising from the supply of the Services or any failure by Diversus Group to perform any obligation or observe any term of this Agreement.
10.7 Diversus Group will not be liable in relation to any proceeding or claim which:
(a) was caused by any act or omission of the Customer or its employees or agents; or
(b) relates to actions of Diversus Group which were expressly or impliedly authorised by the Customer, or by the Customer’s employees or agents; or
(c) relates to the failure of third party hardware or software to perform to the expectations of the Buyer.
11. Returns and Exchanges of Goods
11.1 When any defects, shortages, claim for damage or non-compliance with the Agreement specifications is accepted by Diversus Group, Diversus Group may, at its option, replace the Goods, or refund/credit the portion of the Price affected.
11.2 Diversus Group will not under any circumstances accept Hardware for return that:
(a) has been specifically produced, imported or acquired to fulfill any contract;
(b) has been altered in any way;
(c) has been used; or
(d) is not in the original condition and packaging.
11.3 The Buyer must;
(a) Obtain Diversus Group’s prior written approval for the return of Goods; and
(b) Pay all freight charges associated with the return of Goods.
12. Force Majeure
12.1 Diversus Group shall have no liability whatsoever under or in any way related to the sale and purchase of the Goods and/or Services or otherwise for any failure to fulfil any obligation hereunder to the extent that such fulfilment is prevented by circumstances beyond its reasonable control including but without limitation to industrial disputes, strikes, lockouts, accident, breakdown, import or export restrictions, war or acts of God, acts of terrorism. Should an event of Force Majeure occur Diversus Group may terminate the contract by giving the Buyer written notice. Force Majeure will not relieve the obligation of any payments due hereunder for delivered Goods or Services actually performed.
13. Intellectual Property
13.1 The Buyer acknowledges that Diversus Group grants (or will procure) a permanent, irrevocable, royalty-free, non-exclusive licence to use the Intellectual Property related to Goods & Services provided by Diversus Group in performance of this agreement, and that the Buyer has no proprietary right or interest in the Intellectual Property.
13.2 Nothing herein shall prejudice Diversus Group’s Intellectual Property Rights in work produced independently of this agreement.
13.3 The Buyer must not use the Intellectual Property except as directed by Diversus Group.
13.4 The Buyer must not register or record or attempt to register or record anywhere in the world the Intellectual Property or any part thereof or any patents, inventions, trademarks or designs derived from or similar to the Intellectual Property or aid or abet anyone else in doing so.
13.5 The Buyer must not at any time create, sell, manufacture or process any products using or taking advantage of the Intellectual Property.
13.6 Any Intellectual Property provided to the Buyer by Diversus Group under licence in connection with the Goods and/or Services remains the exclusive property of Diversus Group and must be returned to Diversus Group on demand and shall not be copied or communicated to any third party without the express prior written consent of Diversus Group.
13.7 The Buyer acknowledges that it does not have any exclusive rights in relation to the Goods and/or Services or Intellectual Property.
14.1 Diversus Group is bound by the Privacy Act 1988 as amended. All personal information obtained in connection with the Buyer will be collected, used, stored, disclosed, transferred and destroyed in accordance with the Australian Privacy Principles (“APPs”).
14.2 The Buyer is required to deal with any personal information in accordance with the NPPs.
16. Both parties will keep in confidence all information which it receives from the other which is marked in any way so as to indicate its confidentiality or which by its nature is confidential and will not, without prior written consent of the disclosing party, publish, disclose or otherwise make available, direct or indirectly, any item of such information to any person other than its employees, agents, or contractors who need to know the same in the performance of their duties. The receiving party further agrees that it will only use such confidential information in connection with the obligation arising as a result of the Agreement. Such confidential information does not include any data or information which: (i) was in the receiving party’s lawful possession prior to the submission thereof by the disclosing party, (ii) is later lawfully obtained by the receiving party from a third party under no obligation of secrecy, (iii) is independently developed by the receiving party or (iv) is, or later becomes, available to the public through no act or failure to act by the receiving party.
17. Buyer Detail Variation
17.1 Should there be any variation to any of the information supplied by the Buyer or in the structure of the Buyer’s business (such as conversion to or from a company or trust), Diversus Group shall be notified in writing.
17.2 Where credit has been provided, and there is a change in the Buyer’s information, the original application and those person(s) who signed as guarantor(s) shall remain liable to Diversus Group as though all goods and services were supplied to the original applicant, until such time as a new application is signed and approved in writing by Diversus Group.
18. Buyer Obligations
18.1 The Buyer shall make available to Diversus Group at all times during business hours complete, correct and adequate information, such of its equipment and facilities and its personnel required to provide such access and information as Diversus Group may reasonably require in order to perform the Services.
18.2 The Buyer will accept the consequences of all instructions, specifications or directions given by the Buyer or by any of its employees carried out by Diversus Group in good faith. Unless Diversus Group expressly and in writing agrees otherwise, Diversus Group does not represent or guarantee that the outcome of the Services will meet the Buyer’s expectations or objectives.
18.3 The Buyer shall indemnify and save Diversus Group harmless from and against any expense, loss, claim, judgment, award or order (including settlement of any claim entered into upon legal advice) suffered by or made against Diversus Group arising from or incidental to compliance by Diversus Group with any instruction, specification or direction of the Buyer.
19.1 Diversus Group and the Buyer hereby acknowledge and agree that Diversus Group may subcontract some or all of the service provided under this Agreement. Diversus Group will be responsible for the performance of Diversus Group’s subcontractors with respect to its obligations under this Agreement.
20. Software License
20.1 Subject to these Terms, the then-current applicable EULA and any limitations or restrictions set forth in the corresponding Order Documentation, Diversus Group grants the Buyer a non-exclusive, worldwide, non-sublicensable, non-transferable and limited license to use the Software, in executable form, and its associated Documentation, for the Buyer’s internal business use, in accordance with such Documentation and the corresponding Order Documentation.
20.2 The Buyer will not make any copies of the Software and/or Documentation except as reasonably required for backup or archival purposes as authorized within the applicable Documentation. Except as otherwise expressly authorized within the applicable Documentation, Buyer will not, nor will Buyer allow any third party to: (a) alter, decompile, disassemble, decrypt, extract, or otherwise reverse engineer or attempt to reconstruct, or discover any source code or underlying ideas, algorithms, or file formats of, or any components used in the Software by any means whatsoever; (b) remove or conceal any product identification, copyright, patent or other notices contained in or on the Software and/or Documentation; (c) modify the Software, incorporate it into or with other software, or create a derivative work of any part of the Software; (d) use any “locked” or restricted feature, function, service, application, protocol, operation or capability without first purchasing the applicable license(s) and/or obtaining a valid license enablement key from Diversus Group, even if such feature, function, service, application, protocol, operation or capability is technically achievable without a key; (e) sell, lease, rent, lend, sublicense, resell, distribute, or otherwise transfer in whole or in part the Software or the applicable license enablement key to another party or to a different storage controller or cluster; (f) use the Software for the purposes of commercial timesharing, hosting, service bureau, outsourcing center or other rental or sharing arrangements; or (g) electronically transmit the Software from one computer to another over a network or otherwise.
20.3 The Buyer will be solely responsible for obtaining, and represents and warrants that it currently has obtained and/or will obtain, all applicable third party licenses necessary to operate any third party software required in connection with the use of the products and for Diversus Group to freely and without interruption perform the Services hereunder. If the Buyer fails to obtain such applicable third party licenses, the Buyer will defend and indemnify Diversus Group (including without limitation its directors, officers, and employees) and its licensors from and against all claims, actions losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to such Buyer’s failure to obtain such applicable third party licenses.
21.1 Diversus Group do not warrant the third party hardware and software and shall simply pass on the third party vendor’s warranties to the Buyer. Warranty claims shall remain between the Buyer and the third party vendor.
21.2 Diversus Group do not warrant that the hardware and/or software will meet the Buyer’s requirements or that its operation will be uninterrupted or error free. Diversus Group do not make any guarantee in relation to the performance levels of the hardware or software and do not warrant fitness of the hardware or software for the Buyers intended use.
21.3 Diversus Group will not be liable under this warranty for claims arising from Buyer’s, Buyer subcontractor’s or any unauthorized third person’s misuse, neglect, improper installation or testing, attempts to repair, or any other cause beyond the range of the intended use.
21.4 The foregoing warranties and remedies are exclusive and are in lieu of all other conditions, warranties and guarantees, express or implied, either in fact or by operation of law, statutory or otherwise including warranties of merchantability and fitness for a particular purpose or non infringement. Diversus Group neither assumes nor authorizes any other person to assume for it any other liability in connection with the sale, installation, maintenance or use of the products, and Diversus Group makes no warranty whatsoever of any nonstandard or third-party branded products supplied by it hereunder.
22.1 The laws of NSW from time to time govern these Terms and the parties agreed to the exclusive jurisdiction of the courts and tribunals of NSW, the Federal Court of Australia, and of the courts entitled to hear appeals from those courts and tribunals.
22.2 Failure by Diversus Group to enforce any of these Terms shall not be construed as a waiver of its rights.
22.3 If any provision of these Terms is or becomes invalid, illegal or unenforceable the provision must be read down so as to be enforceable, or if it cannot be read down, the term may be severed from these Terms without effecting the enforceability of the remaining Terms.
22.4 The Buyer must not without the prior written consent of Diversus Group assign any Order or part of an Order.
22.5 Words in the singular shall be construed so as to include the plural and vice versa.
22.6 Any notice to be served hereunder may be served by hand, facsimile transmission or post to the last known trading address of either party. A notice is deemed to be received by facsimile transmission at the time recorded on the transmission report. A notice is deemed to be received by post after two days if posted within the Australia and 10 days if posted from outside Australia.
Last updated: 16 November 2018
Professional Services – Time & Materials
Terms and Conditions related to Professional Services is available upon request