STREAMLINE SERVICES PTY LIMITED
ABN 12 600 075 732
GENERAL TERMS AND CONDITIONS
These terms and conditions apply to Products and Services provided by Streamline.
The Customer acknowledges that these terms may change from time to time and agrees to be bound by the latest published version. Customers should check the Streamline website, www.streamline-business.com.au, regularly to ensure you are aware of any recent updates.
“Agreement” means the contract between Streamline and the Customer comprising these terms and conditions and the Customer’s Order Form.
“Confidential Information” means information that by its nature is confidential, is designated by a party as confidential, or which the recipient knows or ought to know is confidential.
“Customer” means a person to whom Products and Services are supplied by Streamline.
“Documentation” means all operating manuals and materials which are designed to assist or supplement the use and understanding of the Products and Services.
“Force Majeure” means a circumstance beyond the reasonable control of the parties, which results in a party being unable to observe or perform on time an obligation under this Agreement. Such circumstances include but are not limited to acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage, strikes, equipment or communication failures or delays or failures in the provision of goods or services by third parties.
“Intellectual Property Rights” means existing and future intellectual property and industrial property rights (including, but not limited to, patents, trade marks, designs and copyright, and all other rights of a like nature).
“Order Form” means the documents by which the Customer places orders for Products and Services supplied by Streamline.
“Partner Products” means any products developed by Streamline’s partners and distributed by Streamline on their behalf.
“Partner Services” means any services developed by Streamline’s partners and distributed by Streamline on their behalf.
“Products” means any products distributed by Streamline including Partner Products, and includes any Documentation.
“Services” means any services performed and/or distributed by Streamline including Partner Services, and includes any Documentation.
“Streamline” means Streamline Services Pty Limited.
2. USE OF PRODUCTS AND SERVICES
2.1 Use of Products and Services
The Customer must ensure that Products and Services are used in accordance with any instructions contained in the Documentation.
Support for Partner Products and Partner Services supplied by Streamline may be available from the relevant Streamline partner. Customers should refer to the Documentation for details of support.
4. PAYMENT AND DELIVERY
4.1 Payment terms
The Customer must pay Streamline the fees specified in, and in accordance with, the Order Form.
4.2 Delivery of Products and Services
(a) Streamline will not deliver Products and Services to the Customer until payment in full has been received by Streamline, or as otherwise agreed between the parties.
(b) Delivery times advised to the Customer are estimates only and to the fullest extent permitted by law, Streamline will not be liable for any loss, damage or delay suffered or incurred by the Customer or its customers arising from any late delivery of the Products or Services.
5. CUSTOMER’S OBLIGATIONS/RESPONSIBILITIES
The Customer warrants to Streamline that the Customer has determined the Customer’s needs, evaluated the capabilities of the Products and Services, obtained sufficient demonstrations of the Products and Services and satisfied itself as to their suitability for the Customer’s purposes before entering into this Agreement.
5.2 Intellectual Property Rights
The Customer acknowledges that they do not acquire any Intellectual Property Rights in the Products and Services supplied by Streamline.
5.3 Trade secret
The Customer acknowledges that the Products and Services and all Documentation and other written materials that are disclosed or delivered to the Customer in connection with this Agreement (collectively “Commercial Information“) are protected by copyright, are confidential and contain trade secrets and proprietary data and the Customer must preserve the confidentiality of the Commercial Information. In particular, but without limiting the generality of the foregoing, the Customer must not and must not permit any other person:
(a) to copy, reproduce or transmit any of the Commercial Information by any means or in any form, other than user Documentation, training materials or parts thereof required for the Customer’s employees, agents or contractors to conduct their position related responsibilities;
(b) to disclose any of the Commercial Information to any person other than those of the Customer’s employees, agents or contractors who need such disclosure for the conduct of their ordinary responsibilities as employees, agents or contractors;
(c) to remove any copyright, proprietary rights, ownership identification, confidentiality or non-disclosure label or notice appearing on or in the Products or any other item of Commercial Information.
5.4 Reverse engineering
The Customer will not reverse assemble or reverse compile or directly or indirectly allow or cause a third party to reverse assemble or reverse compile the whole or any part of the Products.
6.1 No use or disclosure of Confidential Information
Subject to clauses 6.2 and 6.3, the parties:
(a) will not disclose to a third party or use the other party’s Confidential Information, without the prior written consent of the other party; and
(b) will take all reasonable steps to ensure that their respective employees, agents and contractors do not use or disclose such information to a third party.
The obligations of confidence under clause 6.1 do not extend to information which:
(a) becomes public knowledge through no fault of that party;
(b) is already in that party’s possession prior to disclosure by the other party of that information;
(c) is independently developed by the party without the use of Confidential Information;
(d) is received by that party from a third party who had a right to disclose such information; or
(e) the party is legally compelled to disclose.
6.3 Streamline exclusions
(a) share Confidential Information on a confidential basis with IT, financial and legal service providers engaged by Streamline to the extent reasonably necessary in order for those services providers to provide services to Streamline; and
(b) disclose that the Customer is a customer of Streamline for marketing and advertising purposes.
7. DATA PRIVACY
(c) Streamline may disclose data provided by the Customer if Streamline is required to do so by law.
(d) Streamline may use and disclose data provided by the Customer in bringing any proceedings or any other actions necessary in the event that the Customer breaches its obligations under this Agreement.
(e) Streamline will delete all Customer data from all systems including backups within 60 days from receiving written and verified notice from the Customer at any time and in any circumstance.
8. LIMITS OF STREAMLINE’S LIABILITY
8.1 Limit of liability
(a) For the purposes of this clause,
(1) “Non PDH Goods” means any goods which are not PDH Goods;
(2) “Non PDH Services” means any services which are not PDH Services;
(3) “PDH Goods” means any goods which, for the purposes of section 3(1) of the Australian Consumer Law, are goods of a kind ordinarily acquired for personal domestic or household use or consumption; and
(4) “PDH Services” means any services which, for the purposes of section 3(1) of the Australian Consumer Law, are services of a kind ordinarily acquired for personal domestic or household use or consumption.
(b) If Streamline:
(1) in supplying Products to the Customer, is supplying goods to a consumer; or
(2) in supplying Services to the Customer, is supplying services to a consumer, those goods and services come with guarantees that cannot be excluded under the Australian Consumer Law.
(c) Streamline acknowledges that if:
(1) any Products are:
(A) PDH Goods; or
(B) Non PDH Goods, the purchase price for which is less than $40,000 (or such other amount specified in or prescribed under section 3 of the Australian Consumer Law from time to time); or
(2) any Services are:
(A) PDH Services; or
(B) Non PDH Services, the purchase price for which is less than $40,000 (or such other amount specified in or prescribed under section 3 of the Australian Consumer Law from time to time), then, subject to the provisions of the Australian Consumer Law (including, without limitation, section 3(2)), a number of Consumer Guarantees may apply.
(d) Nothing in this clause 8 should be interpreted as attempting to exclude, restrict or modify the application of any applicable provisions of the Australian Consumer law or the Consumer’s right to make a claim in respect of any Consumer Guarantees or under any other provision of the Australian Consumer Law.
(e) If the goods are Non PDH Goods or the Australian Consumer Law does not apply to the Customer’s purchase of the goods, then (to the extent permitted by law) any claim relating to the goods is limited, at the Company’s option, to:
(1) the replacement of the goods;
(2) the supply of equivalent goods;
(3) the repair of the goods;
(4) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(5) the payment of the cost of having the goods repaired.
(f) If the services are Non PDH Services or the Australian Consumer Law does not apply to the Customer’s purchase of the services, then (to the extent permitted by law) any claim relating to the services is limited, at the Company’s option, to:
(1) the supply of the services again; or
(2) the payment of the cost of having the services supplied again.
8.2 Warranties excluded
For the avoidance of doubt, Streamline excludes all other warranties and guarantees with regard to Products and Services including all guarantees and warranties under law except for the guarantees that cannot be excluded under the Australian Consumer Law (and any other law).
8.3 Consequential loss
To the maximum extent permitted by law Streamline will not be liable for any ordinary, incidental, indirect, consequential, contingent or special loss or damage (including but not limited to loss of profits, loss of data,corruption of data, loss of time, inconvenience, loss of use of the Products and Services, interruption of business, economic loss, damage or injury to property or person and loss of personnel) arising out of this agreement or the use of the Products and Services, whether or not Streamline has been apprised of the likelihood of such loss or damage occurring and whether the claim arises out of an alleged breach or repudiation of contract, breach of warranty, negligence or otherwise.
The Customer indemnifies and holds harmless Streamline and Streamline’s officers, employees, agents and contractors (“those indemnified”) from and against any loss (including reasonable legal costs and expenses) or liability incurred or suffered by any of those indemnified arising from any proceedings against those indemnified where such loss or liability was caused by:
(a) any breach of the Customer’s warranty; or
(b) any breach by the Customer of their obligations under this Agreement; or
(c) the Customer’s wilful, unlawful or negligent act or omission.
This Agreement may be terminated by either party giving the other party (“Defaulting Party”) written notice of termination:
(a) if any sum payable by the Defaulting Party is not paid within 30 days of due date;
(b) if the Defaulting Party breaches any term of this Agreement:
(1) which is capable of remedy and fails to remedy the breach within 30 days after receipt of notice from the other party requiring its remedy; or
(2) which is incapable of remedy;
(c) If the Defaulting Party:
(1) suffers any act of insolvency;
(2) enters into any composition or scheme of arrangement with any of their creditors; or
(3) has a receiver, liquidator, trustee in bankruptcy or official manager or administrator appointed in respect of any part of their business or property.
11. FORCE MAJEURE
(a) Neither party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement (other than payment obligations) if such delay is due to Force Majeure.
(b) If a delay or failure of a party to perform its obligations is due to Force Majeure exceeds 14 days, either party may immediately terminate the Agreement on providing notice in writing to the other party.
Those terms of this Agreement capable of having effect after termination will survive termination
If any term, or part of a term, of this Agreement is determined by a court to be invalid, unlawful or unenforceable, the Agreement shall remain in full force apart from such term or part, which shall be deemed deleted.
14. GOVERNING LAW
This Agreement is governed by the laws of New South Wales.