Terms and Conditions
Terms and Conditions
1. Formation of the Services Contract
1.1. The Services Contract will come into existence when the Customer’s online order has been submitted by the Customer and NCR has received payment for the Maintenance Services charges. A Services Contract will expire at the end of the Maintenance Services Term unless terminated earlier under these Terms and Conditions.
2. Scope
2.1. NCR will only provide Maintenance Services under the Services Contract in Australia.
2.2. The Customer acknowledges that it is aware of the contents of, and agrees to be bound by, the Terms and Conditions applying to the Services Contract.
3. Charges and Invoicing
3.1. The Customer must pay to NCR the charges as set out in the Services Contract selected by the Customer for the relevant Maintenance Services Term.
3.2. A Maintenance Services Term is a fixed fee commitment by the Customer and the charges for Maintenance Services are payable in advance. NCR will provide an invoice to the Customer for the Maintenance Services charges in accordance with the Services Contract selected by the Customer after NCR has received payment for the Maintenance Services charges.
3.3. NCR will invoice the Customer for any time and materials services, as those services are rendered (if any). The Customer must make payment of an invoice within 30 days after receiving the invoice (except for Maintenance Services charges which are payable in advance under clause 3.2). Time for payment is of the essence. If NCR does not receive payment within 30 days of the invoice date, NCR reserves the rights to: (a) charge late fees of the lesser of 1.5% per month or the maximum allowed by law, (b) suspend the provision of the Maintenance Services, without waiving NCR’s right to payment.
3.4. NCR may change its prices and rates for time and material services at any time, and may change its charges and rates for Maintenance Services for Equipment covered by a Service Contract, at the end of the Service Contract.
4. Maintenance Services
4.1. NCR will provide the Maintenance Services during the relevant Maintenance Services Term:
(a) as specified in the Services Contract selected by the Customer; and
(b) will use its reasonable endeavours to meet the Service Levels set out in the Services Contract.
4.2. During the Maintenance Services Term, NCR will maintain the Equipment to operate in accordance with its published specifications, normal wear and tear excepted. NCR's Maintenance Services include parts, and labour during covered hours
4.3. NCR is not required to perform the Maintenance Services in respect of:
(a) problems caused by the Customer’s negligence, abuse or misapplication of the Equipment;
(b) failure by the Customer to use the supported Equipment in accordance with the specifications or interface requirements or relevant documentation; including due to unauthorised alterations or attachments; negligence, abuse or misuse;
(c) failure of goods or services not obtained from NCR or another certified Cisco provider subject of the Maintenance Services;
(d) problems caused by improper handling, use or storage of the Equipment; and
(e) problems caused by fire, water, acts of God or other catastrophic events.
4.4. The Customer acknowledges that NCR does not offer telephone technical support as part of its Maintenance Services (i.e the Maintenance Services do not include a helpdesk facility).
4.5. The Maintenance Services Term will commence 30 days after NCR receives payment of the Maintenance Services charges, unless NCR otherwise notifies the Customer or terminates the Service Contract in accordance with clause 10.
4.6. NCR may, but is not obligated, to notify the Customer before the end of the Maintenance Services Term about renewal options in relation to the Maintenance Services. It is the Customer’s responsibility to ensure it acquires a new Services Contract (if made available by NCR) for Equipment at the expiry of the Service Contract.
4.7. NCR will provide the Maintenance Services according to the Services Contract following the Customer issuing a Request for Maintenance.
4.8. Within 90 days after the commencement of the Maintenance Services Term, NCR may inspect and refurbish at the Customer’s expense any Equipment not then under NCR maintenance or which anyone other than NCR has installed or serviced.
4.9. The provision of Maintenance Services is dependent on the life of the Equipment and its installation environment and level of use. NCR may move Equipment to “end of life” support status by providing at least one years notice. If NCR continues to maintain Equipment in end of life status it will do so on a best efforts basis, subject to the availability of parts, but that Equipment will no longer be included in any Service Level) commitment.
4.10. If a unit of Equipment has been in service for more than five years and incurs excessive service actions due to its age, operating environment, or level of use, NCR may request to perform a Customer-chargeable overhaul to extend its useful life. If the Customer does not agree to such an overhaul, NCR may terminate the Services Contract in accordance with section 10 of the Terms and Conditions.
4.11. The Customer agrees that NCR may invoice the Customer on a time and materials basis if NCR personnel attend a site and:
(a) the Equipment:
(i) does not require the provision of Maintenance Services (as reasonably determined by the NCR personnel attending the site);
(ii) is not subject to Maintenance Services due to an exclusion under the Terms and Conditions (including as set out at clause 4.3); or
(b) the Customer has provided incorrect information to NCR which affects NCR’s ability to reasonably perform the Maintenance Services (e.g. the Customer Account contains incorrect or inaccurate information in relation to the location of the Equipment).
4.12. Time and material services will be provided on an hourly basis at NCR's then-current rates for time and materials services. NCR will provide the Customer with details of NCR’s current rates for time and materials services on request by the Customer.
5. Customer Obligations
5.1. To enable NCR to provide the Maintenance Services, the Customer must set up and maintain the dedicated Customer Account.
5.2. The Customer is responsible for all use of the Customer Account, whether or not the Customer has authorised it. In addition, the Customer represents and warrants that the person who registered for the Maintenance Services is duly authorised by the Customer and has legal capacity to enter into the Services Contract for and on behalf of the Customer and bind the Customer to the Service Contract, including these Terms and Conditions.
5.3. The Customer must keep all Customer Account username (email address) and password information secure.
5.4. The Customer must ensure that all details provided by the Customer on registration and purchase of Maintenance Services including in the Customer Account are correct and current, including the following:
(a) the Equipment the subject of the Maintenance Services (e.g. the “Cisco ID” and “Product Name” for the Equipment);
(b) the “Serial Number” of the Equipment;
(c) the location of supported Equipment;
(d) a nominated electronic mail address to receive electronic communications from NCR;
(e) physical mailing address;
(f) other contact details such as telephone number, mobile number and fax.
5.5. The Customer must update the Customer Account (if necessary) to ensure that the information remains correct and current at all times. It is the Customer’s responsibility to ensure that this information is correct and the Customer will be liable to NCR for any costs in connection with the provision of incorrect information, including (without limitation) information relating to the Services Contract or “Serial Number” of the Equipment or location of the Equipment.
5.6. The Customer acknowledges that notices (including invoices) under the Services Contract will be provided through the Customer’s nominated electronic mail address or physical mailing address (both of which are to be specified in the Customer Account). The Customer agrees that any notice (including an invoice) sent by NCR:
(a) if sent to the Customer’s nominated electronic mail address, will be deemed to have been received by the Customer at the time the electronic communication(s) was sent to the Customer; or
(b) if sent to the Customer’s physical mailing address, will be deemed to have been received by the Customer 3 business days after the notice was sent.
5.7. The Customer must comply with:
(a) NCR’s Online Usage Policies when the Customer uses the Customer Account
(b) the instructions included in the Welcome Pack;
(c) any relevant Laws.
5.8. Where Maintenance Services are required, the Customer must issue a Request for Maintenance. NCR will use reasonable endeavours to respond in accordance with the Service Levels specified in the Services Contract selected by the Customer.
5.9. The Customer must cooperate with NCR by providing safe and reasonable access to its premises and facilities as reasonably necessary to enable NCR to provide the Maintenance Services. The Customer may also be required, if necessary, to provide access to the Customer’s networks, systems, data and relevant information to allow NCR to perform the Maintenance Services. The Customer must allocate appropriate resources and use all commercially reasonable efforts to avoid delay.
5.10. The Customer acknowledges that implementing or removing software updates does not form part of the Maintenance Services. The Customer is responsible for managing software updates.
6. Variations to Terms and Conditions
6.1. NCR may amend any or all of these terms and conditions from time to time by:
(a) notifying the Customer of any amendment by electronic mail to the Customer’s nominated electronic mail address; and
(b) the Customer is deemed to have received the notice of the amendment and accepted the amendment within one week of the electronic mail being sent to the Customer.
but in no event shall such variation result in material changes to these terms and conditions including:
(c) diminished Service Levels;
(d) materially diminished obligations for NCR; or
(e) materially diminished rights of the Customer.
7. Warranties
7.1. NCR warrants that the Maintenance Services will be provided by trained and experienced personnel in a professional manner consistent with industry standards and as described in the description of the services provided under the Services Contract selected by the Customer. If the Customer notifies NCR within 30 days of the date of performance of any Maintenance Services of any material non-conformance, NCR will reperform the services.
7.2. NCR does not warrant that the Equipment under which NCR is providing Maintenance Service for, will operate uninterrupted or error free, or that all deficiencies, errors, defects or non-conformities will be corrected.
7.3. NCR’s liability to the Customer (including its officers, employees, agents and contractors) will not include any indirect, incidental, special or consequential damages, including loss of revenue, profits, anticipated profits, savings or data. It does not matter whether the loss was foreseeable, arose from negligence and even if warning was given of its possibility.
7.4. Any representation, warranty, condition 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.
7.5. Nothing in these Terms and Conditions excludes, restricts or modifies any condition, warranty, right or remedy that cannot be excluded, restricted or modified.
7.6. NCR’s liability for breach of a condition or warranty that can not be excluded is limited, at NCR’s option, to re-supplying or paying the cost of re-supplying services and repairing, replacing or paying the cost of repairing or replacing goods.
8. Limitation of Liability
8.1. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR FOR LOSS OF PROFITS, REVENUE, TIME, OPPORTUNITY OR DATA, WHETHER SOUNDING IN CONTRACT, TORT, FRAUD, STATUTE, OR OTHERWISE. NCR WILL HAVE NO LIABILITY FOR FAILURE TO PERFORM THE MAINTENANCE SERVICES IN ACCORDANCE WITH THE SERVICE LEVELS SPECIFIED IN THE SERVICES CONTRACT SELECTED BY THE CUSTOMER.
8.2. NEITHER PARTY WILL BE CUMULATIVELY LIABLE TO THE OTHER FOR ANY AMOUNT GREATER THAN THE CHARGES SET FORTH IN THE APPLICABLE SERVICES CONTRACT.
8.3. Notwithstanding any limitations in this Section 8, (a) a party’s liability for personal injury, including death, will be unlimited to the extent caused by that party’s negligence or willful misconduct; (b) a party’s liability for physical damage to tangible real or personal property will be the amount of direct damages, to the extent caused by that party’s negligence or willful misconduct, up to one million dollars per occurrence; and (c) a party’s obligation to indemnify, defend and hold the other harmless from third party intellectual property infringement claims is not limited by the Services Contract.
8.4. EACH CLAUSE OF THIS SECTION IS SEPARATE FROM EACH OTHER CLAUSE AND FROM THE REMEDY LIMITATIONS AND EXCLUSIONS ELSEWHERE IN THIS SERVICES CONTRACT, AND WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF A REMEDY OR ANY TERMINATION OF THE SERVICES CONTRACT.
9. Privacy and data protection
9.1. NCR will treat your personal information, including your credit card details, in accordance with NCR’s “Privacy Policy” as published on the Website.
9.2. The Customer consents to NCR’s use of its personal information as set out in NCR’s “Privacy Policy” as published on the Website.
9.3. NCR may use the Customers’ information provided under the Services Contract for any marketing purposes. If the Customer does not agree to NCR using its information for marketing purposes the Customer may use the contact mechanism in NCR’s “Privacy Policy” to opt out of any marketing communications.
10. Suspension and termination
10.1. NCR may at its sole discretion suspend the Maintenance Services with immediate effect where the Customer breaches any of the following:
(a) section 3 (Charges and Invoicing); or
(b) section 5 (Customer obligations).
10.2. Where the Customer subsequently rectifies the relevant breach (e.g. by making payment of any outstanding amounts), NCR will reinstate the provision of the Maintenance Services. A suspension of the Maintenance Services will not affect the Maintenance Services Term which will continue to operate.
10.3. Without prejudice to its rights at common law or under any statute, NCR may, by notice in writing to the Customer, terminate the Services Contract if:
(a) the Customer commits a breach of the Services Contract; or
(b) the Customer becomes insolvent or has a liquidator, receiver, administrator, or trustee in bankruptcy appointed to it or in relation to any of its assets.
10.4. NCR may terminate the provision of the Maintenance Services where the Customer’s Equipment:
(a) incurs excessive service actions due to its age, operating environment, or level of use, or as otherwise reasonably determined by NCR; or
(b) has reached “end of life” and NCR has not been able to agree with the Customer another form of maintenance,
upon 90 days written notice to the Customer.
10.5. The Customer may cancel the Maintenance Services at any time during the Maintenance Services Term.
10.6. Where the Maintenance Services are suspended under clause 10.1, terminated by the Customer under clause 10.5, or terminated by NCR under clauses 10.3 and 10.4(a), the Customer:
(a) is not entitled to a refund of any charges paid under the Services Contract; and
(b) will be liable to NCR for any charges still applicable under the Services Contract (e.g. where time and materials services have been supplied to the Customer).
10.7. Without prejudice to clauses 10.3 and 10.4, NCR may, at its sole discretion, by notice in writing to the Customer, terminate the Services Contract for any reason. If NCR terminates the Services Contract in accordance with this clause 10.7 or clause 10.4(b), and NCR has received payment from the Customer for Maintenance Services charges, NCR must refund on a pro-rata basis to the Customer the payment of the Maintenance Services charges based on the time remaining under the Maintenance Services Term (e.g. if there was 3 months remaining on a 3 year Maintenance Service Term, the Customer would be entitled to a refund of 1/12th of the Maintenance Services charges).
11. GST
11.1. In this section:
(a) “GST” means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 as amended (“GST Act”) or any replacement or other relevant legislation and regulations;
(b) words used in this section which have a particular meaning in the GST Act or in any applicable legislative determinations and Australian Taxation Office public rulings, have the same meaning, unless the context indicates otherwise;
(c) any reference to GST payable by a party includes any corresponding GST payable by the representative member of any GST group of which that party is a member; and
(d) if the GST Act treats part of a supply as a separate supply for the purpose of determining whether GST is payable on that part of the supply or for the purpose of determining the tax period to which that part of the supply is attributable, such part of the supply is to be treated as a separate supply.
11.2. Unless GST is expressly included, the consideration expressed to be payable for any services provided to the Customer or any other supply made under or in connection with the Services Contract does not include GST. To the extent that any services provided to the Customer or any other supply made under or in connection with the Services Contract is a taxable supply, the consideration set out in the Services Contract is increased by an amount equal to that consideration multiplied by the rate at which GST is imposed, and is payable at the same time. The parties agree to do all things, including providing tax invoices and other documentation, that may be necessary or desirable to enable or assist either the Customer or NCR to claim any input tax credit, adjustment or refund in relation to any amount of GST paid or payable in respect of any supply made under or in connection with the Services Contract.
11.3. If a payment to a party under the Services Contract is a payment by way of reimbursement or indemnity and is calculated by reference to the GST inclusive amount of a loss, cost or expense incurred by that party, then the payment is to be reduced by the amount of any input tax credit to which that party is entitled in respect of that loss, cost or expense before any adjustment is made for GST pursuant to this clause.
12. Disputes
12.1. The Services Contract (including the Terms and Conditions) is subject to the laws of New South Wales, which will govern the interpretation and enforcement of the Services Contract. The parties submit to the non-exclusive jurisdictions of the courts of New South Wales. If any controversy or claim arises relating to the Services Contract, the parties will attempt in good faith to negotiate a solution to the differences, including progressively escalating any controversy or claim through senior levels of management. If such negotiation does not result in a resolution within 15 business days of when one party first notifies the other of the controversy or claim, the parties will participate in good faith mediation. The mediator shall be jointly appointed by the parties (“Mediator”). The Mediator may propose non-binding decisions or recommendations for the resolution of the controversy or claim. If both parties fail to agree on the selection of the Mediator or if either party disagrees with the decisions or recommendations made by the Mediator, then such party may initiate legal proceedings in any competent Court in the jurisdiction of New South Wales. Notwithstanding the foregoing, either party may seek an injunction in court to prevent misuse of its intellectual property. Neither party may bring a claim more than 2 years after the underlying cause of action first accrues.
13. General
13.1. No waiver of any provision of the Terms and Conditions shall be deemed a waiver of future enforcement of that or any other provision. Neither party may assign the Services Contract or its rights or obligations under it, except NCR may assign the Services Contract to an affiliate and may use subcontractors to fulfill its obligations. Neither party is liable for failing to fulfill its obligations due to acts of God or other causes beyond its reasonable control, except for the Customer’s obligation to make payments.
13.2. The Terms and Conditions are the entire agreement between NCR and the Customer connected with the subject matter of the Services Contract and supersedes any prior agreement or understanding between NCR and the Customer on anything connected with that subject matter.
14. Definitions
14.1. The following definitions apply to these Terms and Conditions, unless the context dictates otherwise:
Customer means the person or entity identified in the Customer Account.
Customer Account means the dedicated Customer account established by the Customer through the Website for the purposes of the Services Contract, to be managed by the Customer to enable NCR to provide the Maintenance Services.
Equipment means Cisco Systems equipment to be supported under the Services Contract, as specified in the Customer Account by reference to the “Cisco ID”, “Product Name” and “Serial Number”.
Laws means statutes, statutory rules, regulations, instruments and by-laws in force from time to time.
Maintenance Services has the meaning given in the description of the Services Contract selected by the Customer (as identified in the Customer Account) and further set out in clause 4 of these Terms and Conditions.
Maintenance Services Term is the term of support to be provided by NCR as specified in the Services Contract selected by the Customer as identified in the Customer Account.
NCR means NCR Australia Pty Ltd (ABN 61 000 003 592) of 8-20 Napier Street, North Sydney, NSW, 2060.
Online Usage Policies means NCR’s policies published on the Website, including (without limitation) the “Privacy Policy” and the “Legal Notice”.
Request for Maintenance means a request by the Customer to NCR for Maintenance Services, issued through the Customer Account by logging an online request or via the NCR designated telephone number.
Services Contract means the contract relating to a specifically identified item of Equipment that NCR is providing Maintenance Services for according to the Service Levels on these Terms and Conditions.
Service Level means the service level, as specified in the Services Contract selected by the Customer and identified in the Customer Account.
Terms and Conditions means these terms and conditions, which apply to the Services Contract.
Website means the Network Medico website (including NCR @ Your Service portal), which the Customer will access to set up and use its Customer Account.
Welcome Pack means the package of information sent to the Customer after acceptance of the Services Contract by NCR, which includes information about the Maintenance Services and Customer Account details (e.g. login details).