Overview

The following definitions have the corresponding meaning:

• “Activity” means the provision of any Product and/or Service to the Customer by Generation-e.
• “Customer” means the organisation purchasing a Product or Service from Generation-e.
• “Generation-e” means Generation-e Productivity Solutions Pty Ltd (ABN 25163718714), a company registered in Australia or Generation-e Productivity Solutions Limited (NZBN 9429048781138) a company registered in New Zealand, that supplies Products and/or Services to the Customer, and includes Generation-e’s successors, assigns and contractors.
• “Bank Cheque” means a cheque drawn by a bank on the applicable bank’s own bank account.
• “Normal business hours” - Services are available between the hours of 8:00am to 6:00pm Monday to Friday on regular business working days with public holidays excluded. Out of hours services can be scheduled in advance and will incur a 100% premium over the agreed Normal
  Business Hours rate that you have been quoted.
• “Proposal” means the proposal or other specification type document that these Terms and Conditions are attached to or referenced by, including without limitation, quotes and invoices.
• “Products” means the products supplied by Generation-e to the Customer specified on the Proposal and/or any invoice dispatched by Generation-e to the Customer.
• “Services” means the services scoped and/or specified (including any deliverables) in the
  Proposal. “Service Levels” means the performance set out in any Annexure, and
  incorporated by reference into these Terms and Conditions.
• “Installation Signoff” means the time when the Customer signs Generation-e’s Signoff form or in the case of the Customer not signing, 2 working days from the date the Activity occurs.
• “Terms and Conditions” means these legally binding and enforceable terms and conditions of agreement between Generation-e and the Customer.
• “Update” means interim software application updates (excluding hardware updates), including software bug patches, provided by Generation-e and/or the Software manufacturer under a manufacturers effective contract or warranty.
• “Upgrades” means a major release of Software (excluding hardware), not covered under a manufacturer’s effective contract or warranty, but is to be provided by Generation-e and/or Software manufacturer under a newly defined sales contract.
• “Work Product” means any written materials, reports, computer software or software documentation, inventions, discoveries, improvements, ideas, techniques or know-how created, developed or delivered by Generation-e hereunder whilst providing the Services.
  
  

Acknowledgment

• Generation-e’s Terms and Conditions of Credit and Terms and Conditions of Sale form the agreement between the parties and are binding on the parties. These Terms and Conditions will prevail over any subsequent document issued by the Customer. If the Application is received in electronic format, it is constituted as an original document.
• The failure by Generation-e to exercise, or any delay in exercising, any right, power or privilege available to it under these terms and conditions will not operate as a waiver or preclude any other or further exercise or the exercise of any other right or power.
• No order shall be binding on Generation-e until accepted by Generation-e. An individual contract for the supply of Products, on these terms and conditions, is formed on acceptance by Generation-e of an order from the Customer. Generation-e reserves the right to accept any order in whole or in part. Where Generation-e makes a part delivery of any order, such delivery shall constitute a separate contract. No order may be cancelled or varied after acceptance by Generation-e.

 

Terms of Payment

• Payment terms are strictly seven days from date of Invoice unless otherwise previously agreed in writing. Payment may be via bank cheque, direct deposit or credit card. Generation-e reserves the right to charge a surcharge for payment by credit card.
• The Customer acknowledges that, should any amount not be paid immediately when it is due, or any cheque given in payment for it be dishonoured, the Customer agrees that an additional service charge of 10% compounded per calendar year on overdue balances will be charged and all possible courses of action for restitution will immediately be commenced. The Customer
  authorises Generation-e to immediately notify all relevant credit ratings agencies of the failure of the Customer to pay.
• In the event of Generation-e instructing its solicitors to collect an overdue amount, all legal fees, collection charges and tracing agent's fees as between solicitor and client shall be borne by the Customer and all payments made shall firstly be allocated towards these charges, thereafter to service charges, and finally to the purchase price.
• Jurisdiction.
  • Australia: The Customer agrees that the terms set out in these Terms and Conditions are governed by, and construed in accordance with the laws of the State of Victoria, and the
    Customer hereby consents to the exclusive jurisdiction of these courts, and all courts to which a rightful appeal may be made, including for all actions that may be instituted
    against it for the recovery of any amounts owing to Generation-e.
  • New Zealand: The Customer agrees that the terms set out in these Terms and Conditions are governed by, and construed in accordance with the laws of New Zealand, and the Customer hereby consents to the exclusive jurisdiction of these courts, and all courts to which a rightful appeal may be made, including for all actions that may be instituted against it for the recovery of any amounts owing to Generation-e.

 

Terms of credit

• The Applicant warrants that the information provided in the Application is accurate, correct and complete and is supplied for the purposes of obtaining credit.
• The person/s signing the Application warrants that he/she is duly authorised by the Customer to apply for credit and execute this Application on their behalf.
• The Applicant agrees that it is not entitled to any credit facilities until it receives notice in writing from Generation-e stating that credit facilities have been given and confirming the terms and conditions upon which such credit facilities are given. Until the Applicant receives such notice, any products and/or services that are supplied by Generation-e will be on the basis of payment up front.
• Where the Applicant is a trustee, the Applicant warrants that it is the only trustee of the trust and will remain trustee of the trust, it is not aware of any action having been taken to remove it as trustee of the trust, it has the power under the trust deed to enter into and observe its obligations
  under these Terms and the assets of the trust shall be available to meet payment of any monies due and owing to Generation-e.
• The Applicant will notify Generation-e no later than 14 days after any change of ownership, change in particulars, any alteration or addition to shareholders or directors, and any change, alteration or addition in the Applicant’s internal structure and senior management.
• The parties agree that, if prior to formally approving credit, Generation-e grants to the Applicant time to pay for any products and/or services supplied, it does so on these Terms.
• In the event of Generation-e granting credit facilities to the Applicant then:
  • All accounts are to be settled in full within the agreed trading terms noted on the Generation-e statement and/or invoice. Credit facilities may only continue if payment is maintained in accordance with those agreed trading terms.
  • Should the Applicant default in making any payment in accordance with the agreed trading terms, then all monies owing to Generation-e shall immediately become due and payable. Generation-e shall be entitled to charge interest at the rate of 110% per calendar year on all overdue amounts from the date due for payment until the date of actual payment.
  • Any reasonable expense and/or costs or disbursements incurred by Generation-e is recovering any outstanding monies including debt Collection agency fees and legal costs shall be paid by the Applicant.
  • It is expressly understood and agreed that this credit arrangement may be terminated at any time by Generation-e. In that event, all monies owing to Generation-e will be immediately due and payable.
  • Generation-e may at any stage during the continuance of the credit arrangement impose as a condition precedent to the grant of further credit that the Applicant give such security or additional security or information as Generation-e shall in its discretion think fit and in a form acceptable to Generation-e. Generation-e shall be entitled to withhold supply of goods or further credit until such security or additional security is obtained.

 

Title, Risk and Insurance

• The Customer acknowledges that:
  • Product supplied by Generation-e will be at the Customers risk from the time it leaves Generation-e or a supplier facility as organised by Generation-e. The Customer shall
    maintain custody of the Product on trust for the sole benefit of Generation-e, until the Customer rightfully makes all necessary payments for the Product.
  • ownership of the Product supplied by Generation-e will not pass to the Customer and will remain with Generation-e until such time as the Product has been fully paid for, and
    Generation-e shall have a right of full set off against any Product for which the Customer has not fully paid.
  • until such time as the Product and/or Service has been paid for in full and all other debts discharged by the Customer, the Customer must store the Product in such a manner as to
    show clearly that the Product is the property of Generation-e.
  • the Customer irrevocably agrees and undertakes that until ownership passes to the Customer, Generation-e (its servants or agents) will have the right forthwith (and without
    prejudice to any other rights Generation-e may have pursuant to these Terms and Conditions or at law (or in equity) with notice or demand to immediately enter upon the Customer's premises and retake possession and remove the Product in the possession of the Customer or wheresoever situated.
  • The Customer assumes risk of loss or damage upon delivery of the Products to the Customer (or to any person or place as agreed or directed by the Customer) or collection of the Products by the Customer or by any agent acting on their behalf.
  • In the event that the Customer on sells the Products or Services provided, then the Customer shall hold such part of the proceeds of such sale as relates to the Products or Services provided in trust for Generation-e. Such part shall be deemed to be equal in dollar terms to the amount owing by the Customer to Generation-e at the time of the receipt of such proceeds.

 

Delivery of Product

• In consideration of the payment by the Customer in addition to the price, of Generation-e’s freight, handling and insurance charge calculated according to Generation-e current prices, Generation-e
  will arrange delivery of Products to the Customer’s nominated location within major metropolitan areas of Australian capital cities.
• Delivery times quoted by Generation-e are estimates only and Generation-e may extend delivery times.
• Generation-e may make part delivery of any Products ordered by the Customer and any Products so delivered shall constitute a separate contract upon these Terms and Conditions. As such, an invoice on any Products part delivered is due in accordance with the agreed terms of payment.
• Delivery of Product(s) is deemed to take place at the time Generation-e initially delivers the Product(s) to the Customer site; or within 7 days of notification by Generation-e to the Customer that the Products are available, whichever first occurs.

 

Warranty

• Except for the warranty set forth in the relevant manufacturers’ limited warranty programmes, Generation-e makes no warranties with respect to the performance of Products or Services provided. The foregoing warranties are in lieu of all other, express or implied, including but not
  limited to the implied warranties of merchantability and fitness for a particular purpose, are hereby disclaimed. Notwithstanding anything to the contrary set forth elsewhere in these Terms and
  Conditions, the liability of Generation-e for damages caused by defective products is limited to the terms of the limited warranty statement specified by the relevant manufacturers. The manufacturers have reserved the right to change their limited warranty programs at any time
  without further notice or obligation to Generation-e or any other person by reason of such change. Warranty coverage for any services performed is limited to one (1) calendar month from date of Installation Signoff.
• Generation-e does not warrant the functions contained in any Proposal provided will meet the Customer’s requirements, nor that the operation of the Products and/or Services provided will be error-free or uninterrupted.
• Generation-e does not warrant or guarantee that Products and/or Services provided will be compatible with any hardware or software, or the Customer’s designated computer environment.
• To the maximum extent permitted by applicable law, Generation-e, its agents and its suppliers disclaim all other warranties and conditions, either express or implied, including, but not limited to, implied warranties or conditions of merchantability, fitness for a particular purpose, title and non-infringement, with regard to hardware, software or services provided and the provision of or failure to provide support services.
• Generation-e makes no commitment to response time for warranty claims.
• Any items deemed by Generation-e to be subject to accidental or intentional misuse or abuse will have their warranty voided immediately. Rectification of faults on any item not covered by warranty is subject to standard services charges plus the cost of any necessary parts for repair. Generation-
  e makes no commitment that any item can be repaired and in some cases replacement is the only option, which will incur normal product charges.

 

Customer Responsibilities

• The Customer agrees to provide free and timely access to their site, systems and technology environment for the purposes of Service delivery, including installation and/or warranty services. Free and timely access is defined as availability within 2 business days of notification by Generation-e during our Normal Business Hours.
• As a condition of Generation-e’s performance of the Services, Customer shall perform certain Customer tasks specified in the Proposal or other scoping document attached to these Terms and Conditions and/or agreed by the parties at no charge to Generation-e.
• Customer data is the responsibility of the Customer and Generation-e is not responsible for any loss, corruption or in ability to access Customer data. Generation-e is not responsible for any consequential damages or losses associated with a Customer’s ability to access its data.
• Support services are available to customers according to the deliverables in any service
  agreement entered into by Generation-e and the Customer. Services only continue to be available when either verification of payment has been accepted or when outstanding service invoices have been paid in full.
• Many services are delivered remotely using secure communications to the customer site. The Customer agrees to provide free and timely remote access to their systems and environment for the purposes of Service delivery, including installation and/or warranty.

 

Availability of Services

• Onsite representatives used in the delivery of Services, including support service activities, may be Generation-e staff, nominated representatives or outsourced third parties.
• Service coverage area - Service coverage includes the closest capital city CBD and extends to include up to 50km from the GPO of that city. No call out fee for onsite visitation will be charged within this service coverage area. Coverage outside of this area will incur travel and accommodation (if applicable) at cost.
• Generation-e will do everything to ensure our representatives are available to take your requests during Normal Business Hours.
• Services are provided on a best effort basis unless a guaranteed response time has been stated in your agreement. General services are segmented into three broad categories: Critical–Service is completely down and is directly affecting more than five users, Standard-Routine support tasks and Basic-Request is for an informational or planned requirement. Generation-e will work with the Customer to classify service requests and we prioritise our response in line with the agreed criticality of the request.
• Priority service - Priority service is available at a premium service charge.
• Provision of Services provided by the manufacturer will be in accordance with the manufacturer’s terms and conditions.

 

Intellectual Property

• Generation-e shall own all intellectual property rights (including copyright) in the Work Products.
• Generation-e grants to Customer, subject to these Terms and Conditions, a non-exclusive, non-transferable right and license to use such Work Product solely for Customer’s internal purposes provided, however, that this license does not extend to the use of any third party software which
  may require the prior written consent of such party and/or payment of royalties or other license fees to such party by Customer This license shall include the right to use, copy and, with respect to documentation, copy and distribute internally only and not to third parties, such Work Product. This
  license does not expand any license Customer has for any of Generation-e’s commercial software products. Customer agrees to include the Generation-e copyright notice in all copies Customer makes. Generation-e or its third party licensor will retain ownership, including copyright,
  registrations and any other similar protections, in all Work Product.
• Customer acknowledges and agrees that all rights in all copyright, designs, patents and
  trademarks existing in relation to the Products or Services are reserved to the owner of those rights. Furthermore, Customer acknowledges Generation-e’s ownership of the intellectual property in methodologies, processes and procedures (“Generation-e IP”) used and developed by
  Generation-e while undertaking the Services and furthermore acknowledges that they have no interest in the Generation-e IP other than that expressly provided to the Customer in writing by Generation-e.
• Customer shall indemnify, defend and hold Generation-e harmless from any action brought against Generation-e based on a claim that any materials or information provided by Customer to Generation-e constitute an infringement of a third party’s patents, copyrights or trademarks, or a
  misuse of a third party’s confidential, proprietary or trade secret information.
• Customer shall ensure that each part and copy of the computer software licensed for the use of the Customer is kept under conditions of strict security and confidentiality.

 

Limitation of Liability

• Customer acknowledges that in accepting these Terms and Conditions, it will be relying upon its own experience, skill and judgment to evaluate any conclusion or recommendations made by Generation-e in any report supplied by Generation-e to the Customer in the course of providing the
  Services under these Terms and Conditions and that it will satisfy itself as to the suitability of any such conclusions or recommendations to meet its requirements
• To the maximum extent permitted by applicable law, in no event shall Generation-e or its suppliers be liable for any damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of information, or any other pecuniary loss) arising out of the use or inability to use Products and/or Services provided, even if Generation-e has been advised of the possibility of such damages or for any claim by any other party.
• The Services provided through Generation-e are provided without warranty. Generation-e accepts no responsibility for errors or damage incurred as either a direct or indirect result of action or the content of information received.
• Claim waiver - Generation-e or any representative nominated or acting in behalf of Generation-e shall not be liable for any damage including but not limited to, the loss of data and software, hardware or property damage. This clause shall still apply if the Customer has not been expressly advised of any potential damage.

 

Confidentiality

• Generation-e agrees not to use any Customer confidential information other than for the purposes of providing:
  • The information reasonably required by Generation-e’s financier; or
  • The Services and agrees to use best endeavours to maintain the confidential nature of the confidential information. However, Generation-e shall bear no responsibility for disclosure where such information or data is publicly available, is already in the possession of Generation-e, known to Generation-e, or is obtained by Generation-e from a third party.
• The Customer agrees to maintain the confidentiality of Generation-e confidential and agrees not to disclose such information to anyone else without the prior written consent of Generation-e.

 

General

• By providing your contact details, Generation-e assumes permission to market to you in the future.
• No relaxation or indulgence granted by Generation-e to the Customer shall be deemed as a waiver of any rights of Generation-e in the terms of this agreement.
• These Terms and Conditions contained herein constitute the entire legal and commercial agreement, which is legally binding and enforceable, between the parties and no amendment or variation shall be of any force and effect unless in writing and signed by both Generation-e and the
  Customer. No representations have been made by Generation-e or on its behalf, which have induced the Customer to enter into this legally binding agreement.