1. TERM

1.1       This Agreement commences and comes into full force and effect on the Acceptance Date.

1.2       SKEDA may accept or refuse Your application at its sole discretion, without any explanation.

1.3       The Services will commence on the Commencement Date, unless otherwise agreed.

1.4       If the Particulars state that this Agreement is for a fixed period then this Agreement will continue until at least the Expiry Date and then until it is terminated in accordance with clause 13 of this Agreement. If neither party terminates this Agreement immediately following the Expiry Date then SKEDA will continue to provide the Service to You on a month-to-month basis in accordance with this Agreement until the Service is cancelled in accordance with clause 13 of this Agreement.

1.5       If the Particulars state that this Agreement is for a non-fixed period then this Agreement will continue until it is terminated in accordance with clause 13 of this Agreement.

2. USE OF SERVICE

2.1       SKEDA shall provide You with the Service at the Location in accordance with this Agreement.

2.2       You acknowledge that you will undertake to use this Service in accordance with this Agreement.

2.3       You acknowledge and agree that You have assessed this Agreement and the Service and determined on your own volition and in your own judgment that is suitable for Your intended purpose.

3. MAINTENANCE

3.1       You shall notify SKEDA should You become aware that there is any malfunction or failure of the Service.

3.2       SKEDA shall undertake to fix any malfunction or failure of the Service as soon as is practicable.

3.3       Where possible, SKEDA shall undertake maintenance in “off-peak” hours.

3.4       You acknowledge that when SKEDA is undertaking maintenance, you shall co-operate with SKEDA and follow its reasonable requests during this process.

3.5       SKEDA is not responsible to You for any delay in the rectification of a Service which is outside of its reasonable control.

3.6       Whilst all reasonable efforts are taken by SKEDA to avoid any loss of information, SKEDA does not accept any responsibility for any loss of information You may incur while using the Service.

3.7       You shall install and maintain reasonable systems to back up your information while using the Service.

4. CUSTOMER’S OBLIGATIONS

4.1       You agree to co-operate with any reasonable direction of SKEDA in order to allow SKEDA to supply You with the Service.

4.2       In Your use of the Service, You agree to comply with:

1. a)      all laws;
2. b)      all directions by a regulator;
3. c)      all noticed issued by authorization of or under law;
4. d)      all of SKEDA’ policies notified to You;
5. e)      all reasonable directions of SKEDA.

4.3       You acknowledge that it is your responsibility to maintain the appropriate security while using the Service, including, but not limited to, ensuring that unauthorised access to the Service does not occur.

4.4       You must not use, or attempt to use, the Service:

1. a)      to break any law or to infringe on any other person’s rights;
2. b)      to perform any act which could result in a breach of clause 4.4(a);
3. c)      to expose SKEDA to any liability; or
4. d)      to interfere with, damage or interrupt the Service, the SKEDA network or any supplier’s network used to supply the Service.

4.5       SKEDA may issue You with a notice to stop performing any action which may result in You breaching clause 4.4 of this Agreement.

4.6       You agree to immediately comply with any notice issued by SKEDA pursuant to clause 4.5 of this Agreement.

4.7       You must immediately notify SKEDA of any suspected fault or issue with the Service and provide all reasonable assistance to ensure rectification of the fault or issue.

4.8       You agree to indemnify and hold indemnified SKEDA and its suppliers from any liability incurred as a result of Your breach of this Agreement.

4.9       You agree that SKEDA may monitor Your use of the Service and any communications sent over it for the purposes of ensuring compliance with this Agreement.

4.10     SKEDA may, but is not required to notify You or any usual use of Your Service or suspend the Service in the case of an usually high use of the Service.

4.11     You must ensure that any person that You allow to use the Service complies with this Agreement as if they were You.

5. SKEDA' RESPONSIBILITIES

5.1       SKEDA warrants that:

1. a)      all Services provided will be carried out with due skill and care, and in accordance with all applicable legislation and regulations;
2. b)      it will ensure that its representatives will, in carrying out the Service, and in respect of any personal information collected, used or managed in connection with the Service, comply with all applicable privacy obligations under any law or legislation, including without limitation, the Privacy Act.

6. CHARGES AND PAYMENT

6.1       You agree that You must pay the Fees and any other fees and charges set out in this Agreement by the method and at the required frequency for payment as set out in the Particulars.

6.2       If Your credit card or direct debit payment is declined for any reason, SKEDA may charge You a dishonor fee of $2.20 in addition to any other dishonor fees charged by Your financial institution.

6.3       SKEDA reserves the right to vary its rates, the frequency of the rates, and the time periods in which they need to be paid by giving You thirty (30) days’ prior written notice.

6.4       If you fail to pay a fee for the Service, on or prior to the due date for payment then SKEDA reserves its right, at its own discretion, to do any one or more of the following:

1. a)      charge interest at a rate of 5% per month on any outstanding amount for so long as the amount remains unpaid;
2. b)      charge a late fee of $22.00
3. c)      suspend the Service until full payment has been made by You;
4. d)      require You to pay Your fees in advance for future billing periods;
5. e)      engage an agent to recover the payment and charge You a recovery fee; and / or
6. f)       initiate legal proceedings against You to recover the money You owe SKEDA as well as any associated legal costs (on a full indemnity basis).

6.5       SKEDA will provide You with invoices prior to the required due date for payment.

6.6       If you notify SKEDA that you intend to transfer the Service to another supplier, you will pay any and all amounts owing on all of your accounts in full, before SKEDA assists in this transition.

6.7       You must pay all fees and charges which are incurred under this Agreement even if You did not authorise the use of the Service or were at any time during the billing period, unable to fully access the Service.

6.8       You acknowledge that in addition to the Fees, SKEDA may charge You other administration fees and other similar charges including suspension fees, cancellation fees, late payment fees and payment dishonor fees as set out in this Agreement.

6.9       SKEDA may offer You Special Offers from time to time unless You advise SKEDA that You do not wish to receive information about Special Offers. You may accept or decline Special Offers and You acknowledge that they may be subject to certain acceptance conditions that require further acceptance by SKEDA after the Special Offer has been made.

6.10     The terms of any Special Offer will only apply upon confirmation from SKEDA that they apply and from the date on which SKEDA advises.

6.11     The terms of any Special Offer will only prevail over this Agreement to the extent of any inconsistency and only for the period advised by SKEDA.

7. COMPLAINTS AND DISPUTES

7.1       You may notify SKEDA of any complaints with the Service or disputes about an invoice in writing or by calling SKEDA.

7.2       All complaints will be dealt with by SKEDA in accordance with its complaints policy. You can make a request to SKEDA for a copy of its complaints policy.

7.3       You acknowledge that unless we otherwise agree, you must pay the amount on a disputed invoice in full by its due date, irrespective of your notification.

7.4       SKEDA will conduct a reasonable investigation into the amount of an invoice You specifically dispute to determine if You are entitled to a refund for overpayment, on the condition that You provide evidence that supports your dispute.

7.5       Once the investigation has been completed, SKEDA will either:

1. a)      credit Your account for the overpayment on the disputed invoice; or
2. b)      You will pay any outstanding amount, including interest, that has accrued on the original due date for the payment.

7.6       SKEDA reserves its right to charge You for any third-party professional fees involved in the investigation of the disputed amount in the event that invoiced charges are found to be correctly invoiced charges and payable by You.

8. LIABILITY

8.1       Whilst SKEDA will take all reasonable steps to avoid delays or faults, it does not warrant that the Service will be uninterrupted and free of delays or faults.

8.2       You are liable to SKEDA for any breach of this Agreement that causes loss or damage to SKEDA.

8.3       SKEDA is not in any way liable to any End User (whether in contract or tort (including negligence). If You are a business, You must indemnify and keep SKEDA fully indemnified against any loss or damage incurred in connection with any claim against SKEDA by an End User in relation to:

1. a)      the use or attempted use of the Service; or
2. b)      the equipment used in connection with the Service.

8.4       Nothing in the Agreement seeks to limit any rights that You have under any valid laws, rules or regulations.

8.5       To the maximum extent permitted by law, SKEDA limits its liability to You to re-supplying, repairing or replacing failing systems of the Service.

9. PRIVACY AND PERSONAL INFORMATION

9.1       SKEDA may collect, use and disclose personal information that You, your customers or your Employees provide for the purposes of optimally supplying the Service, or as may be required under any applicable statutory legislation, guidelines, codes, rules or decisions passed by any government agency or regulatory body relating to the Service.

9.2       SKEDA may use any information collected from You for the purpose of:

1. a)      assessing whether to provide or suspend any personal credit, the Service of the products and services of related entities of SKEDA;
2. b)      invoicing and account management;
3. c)      planning and product and service development;
4. d)      provide You with information about promotions or new products or service offerings of SKEDA or its related entities.

9.3       SKEDA may provide information collected from You to:

1. a)      a credit reporting agency or credit provider;
2. b)      a related entity of SKEDA;
3. c)      SKEDA’ agents, contractors, mercantile agents or debt recovery service providers; or
4. d)      Suppliers of SKEDA where necessary to provide the Service to You.

9.4       You acknowledge that SKEDA may be permitted or required to provide Your personal information to other third parties or law enforcement agencies or government bodies.

9.5       You may request that SKEDA only sends you information that is account or legal related, whereafter SKEDA will cease other communications with You.

9.6       If You are an individual and except where SKEDA may legally refuse such request, You may gain access to Your personal information kept by SKEDA and request any correction to that personal information.

10. NOTICES

10.1     Any notice, invoice or other document, which may be provided to you under the Agreement, shall be taken to have been served to You when sent by e-mail, post or fax to the contact information You provide to SKEDA.

10.2     You shall notify SKEDA of any change in address, e-mail address, phone number, or other associated contact information as soon as practicable after the change.

10.3     You shall notify SKEDA of any change in ownership or control of your organisation as soon as practicable.

11. PERSONAL PROPERTY SECURITIES ACT

11.1     In consideration of SKEDA agreeing to supply the Service, You charge all of Your rights, title and interest (whether joint or several) in any of Your assets capable of being charged, that You own either now or in the future, to secure the performance of Your obligations under this Agreement.

11.2     You indemnify SKEDA from and against all SKEDA’ costs and disbursements, including legal costs in exercising its rights under this clause 11.

11.3     You irrevocably appoint SKEDA and each director of SKEDA as your lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11, including but not limited to, signing any document on your behalf.

11.4     You must not register a security interest over any equipment used by SKEDA to perform the Service either on site or anywhere else.

12. FORCE MAJEURE

12.1     Neither party shall be held to be in breach of the Agreement or otherwise liable for any damage or loss occurs suffered by the other party that is caused by an event that is outside the reasonable control of the first party, including, but not limited to, war, sabotage, acts of terrorism, riot, acts or omissions of God, flood, lightning, fire, trade or labour disputes, failure or shortage of power supplies, or computer viruses.

13. CANCELLATION

13.1     Unless the Particulars state that this Agreement is for a fixed period and that fixed period has not yet expired, either party may request for the Service to be cancelled upon thirty (30) days’ notice to the other party.

13.2     On cancellation of the Service, You agree to pay any fees that remain outstanding on your account at the date of cancellation, in addition to any costs incurred for any work already completed by SKEDA for the provision of the expected continued use of the Service, and any disbursements made to third parties for the provision of the expected continued use of the Service.

13.3     Without prejudice to SKEDA’ rights under the Agreement, it may terminate the Agreement immediately upon written notice to You if:

1. a)      You breach any term or obligation under the Agreement and fail to remedy the breach within fourteen (14) days of notice to remedy the breach;
2. b)      A receiver, manager, liquidator or provisional liquidator is appointed in respect of You;
3. c)      You become insolvent or bankrupt;
4. d)      You assign your rights under this Agreement except as permitted in this Agreement;
5. e)      There is a material change in Your ownership or control, except as permitted in this Agreement;
6. f)       A competitor or related entity of SKEDA acquires You;
7. g)      The service is suspended for more than fourteen (14) days;
8. h)      SKEDA suspects fraud or other illegal activity;
9. i)        SKEDA is required to do so to comply with an order; or
10. j)        There is an emergency.

13.4     If You notify SKEDA of Your intention to relocate to a new location where the Service cannot be reasonably provided by SKEDA, then SKEDA may terminate this Agreement from the date of your intended relocation as notified by You;

13.5     Upon termination of this Agreement, You must return to SKEDA:

1. a)      All property of SKEDA, including any Equipment;
2. b)      All confidential information and all copies of confidential information related to SKEDA or the Service;

in your possession or control.

13.6     If You do not comply with 13.5(a) within five (5) business days of the cancellation of the Agreement, SKEDA may charge You a fee for that property which You must pay within seven (7) days of invoice by SKEDA.

13.7     You agree that SKEDA will charge a cancellation fee of minimum monthly commitment per service x months remaining in contract plus the relevant installation fee for the service where such installation fee was waived or credited as part of the fixed term agreement, if you wish to cancel the Service during any fixed period set out in the Particulars.  

14. RELOCATION

14.1     You must inform SKEDA if you intend to relocate to a new premises during the period of this Agreement by giving it fourteen (14) days’ prior written notice.

14.2     If, during the period of this Agreement, You intend relocate to a new location, SKEDA shall assess the new location to determine whether the Service can be redeployed there.

14.3     If, after the assessment referred to in clause 14.2, SKEDA determines that the Service cannot be reasonably redeployed, it may exercise its right to terminate this Agreement under 13.4.

14.4     SKEDA may charge You for any costs directly or indirectly related to the redeployment of the Service at a new location.

15. ASSIGNMENT

15.1     You must not sell or assign or attempt to sell or assign any right or obligation under the Agreement, without the written consent of SKEDA.

15.2     SKEDA may assign all or any of its rights and obligations under the Agreement immediately upon providing You with written notice.

16. DISPUTES

16.1     It is mutually agreed that if a dispute arises (including a breach or an alleged breach) under the Agreement then the party disputing the issue shall provide the other party with written notice of the nature and details of the dispute. If the dispute is not resolved at an operational level or is sufficiently serious that it cannot be resolved at the operational level, the parties shall use reasonable endeavours to agree upon a resolution. The parties acknowledge that it is in their respective interests to resolve disputes at this level.

16.2     Should SKEDA and You be unable to resolve the dispute, the matter shall be submitted to mediation for resolution with the cost of mediation to borne equally between the parties.

16.3     In the event of a dispute between SKEDA and You, You agree to continue to pay SKEDA for all costs as they fall due without any set-off whatsoever.

17. RELATIONSHIP OF THE PARTIES

17.1     The parties agree that SKEDA is not an employee or agent of You and this Agreement shall not be interpreted to give rise to a relationship of principal and agent or employer and employee.

18. INVALIDITY

18.1     If any provision of these Terms are invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

19. CONFIDENTIAL AGREEMENT

19.1     The terms of this Agreement and all negotiations between the parties relating to the subject matter of this Agreement are confidential and the parties agree to keep the terms of this Agreement confidential.

20. GOVERNING LAW

20.1     This Agreement is governed by the laws of Queensland and each party submits to the non-exclusive jurisdiction of the courts of Queensland.

21. AMENDMENTS TO THE AGREEMENT

21.1     Except as provided in clause 21.3, this Agreement may only be varied by prior written agreement signed by both parties, or by exchange of written e-mails, where both parties clearly agree on what is to be amended and the date on and from which the amendment will apply.

21.2     Variations to the Agreement may result in additional fees.

21.3     SKEDA may vary any part of this Agreement without Your consent provided it complies with all applicable laws, rules and regulations in doing so, including providing You with applicable notice.

21.4     Unless expressly permitted in this Agreement, You may not make any changes to this Agreement without SKEDA's prior written consent.

22. EQUIPMENT

22.1     You must ensure that all Equipment that You use in connection with the Service complies with:

1. a)      all laws;
2. b)      all reasonable directions by SKEDA;
3. c)      the relevant policies provided to You by SKEDA about its use; and
4. d)      all directions from manufacturers.

22.2     In the event that You fail to comply with clause 22.1, SKEDA may cancel this Agreement under clause 13.3.

22.3     The Equipment:

1. a)      remains the property of SKEDA;
2. b)      must be kept under the control of You;
3. c)      must be kept in working condition;
4. d)      must not be encumbered in any way by You or any third party at Your direction;
5. e)      must be returned to SKEDA on cancellation of this Agreement.

22.4     You must provide a suitable space, power supply and environment for all Equipment at the Location.

22.5     You must immediately notify SKEDA of any defects to the Equipment.

22.6     You must allow any representative of SKEDA attend at the Location to modify, repair or replace any Equipment.

22.7     You are responsible for any lost, stolen or damaged Equipment, except where caused by SKEDA or its representatives.

23. GUARANTEE

23.1     If there is any default or failure by You in making any payment, or on any breach or non-observance of this Contract, the Guarantor agrees to guarantee the performance of You in favour of SKEDA as if the Guarantor were You in the Agreement.

23.2     The Guarantor covenants and agrees with SKEDA to indemnify SKEDA and keep SKEDA indemnified from and against all and any loss, damage, cost, charge or expense or other liability, however incurred, by SKEDA in connection with or in consequence of or arising out of any breach or default or attempted breach or default by You of any of your obligations. This indemnity is a separate and distinct and principal obligation of the Guarantor.

23.3     The Guarantor will pay any money due to SKEDA by reason of the indemnity, on demand. This includes all costs associated with collection, including legal fees and any late payment charges.

24. INTELLECTUAL PROPERTY

24.1     SKEDA owns all material (including intellectual property rights) developed by SKEDA or SKEDA representatives.

24.2     You must not infringe any third party’s intellectual property rights in using the Service.

25. NO WAIVER

25.1     If You breach this Agreement and SKEDA does not exercise a right that SKEDA has because of Your breach, SKEDA does not waive that right.

26. ORDER OF PRIORITY

In the event of any inconsistency between:

1. a)      the Particulars;
2. b)      the Special Terms and Conditions; and
3. c)      the Standard Terms and Conditions;

the earlier will prevail.

27. MEANING OF WORDS
    • Acceptance Datemeans the date on which SKEDA accepts Your application, as set out in the Particulars.
    • Agreementmeans the agreement between You and SKEDA for the provision of the Service, which is comprised of the Particulars, the Special Terms and Conditions and the Standard Terms and Conditions.  
    • Authorised Personmeans the person nominated by you in the Particulars with whom you consent for Us to liaise with on Your behalf.
    • Commencement Datemeans the date set out in the Particulars.
    • Employeemeans a person, who is an employee, agent, contractor or other representative of You.
    • End Usermeans an individual or entity:

1. to whom You ask SKEDA to directly supply the Service;
2. to whom You lawfully re-supply the Service or allow to distribute the Service;
3. who You allow to use the Service; or
4. to whom You supply any goods or services which use or rely on the Service.

• Equipment means any equipment noted in the Particulars, necessary to provide the Service.
• Expiry Datemeans the contract expiry date stated in the Particulars (if any).
• Feesmeans the agreed fees payable for the Service, as set out in the Particulars.
• Guarantor means the person named in the Particulars as such, if any.
• Locationmeans the location at which the Service will be provided, as noted in the Particulars.
• Mediationmeans alternate dispute resolution, where an independent and neutral person helps you and the other parties work out the issues in dispute and come up with a solution, which each party accepts.
• Particularsmeans the form setting out Your personal information and details of the Services.
• Partymeans a party to this Agreement.
• Premisesmeans the locations to which SKEDA supplies the Service.
• Schedule means an attached agreement to this Agreement that sets out the provision of a specific Service from SKEDA to You.
• Service means the service to be provided to You by SKEDA as described in the Particulars and as varied from time to time by agreement between the parties in accordance with the terms of this Agreement.
• Special Offermeans an offer made by SKEDA under clause 6.9 of this Agreement to vary some of the terms of this Agreement.
• Standard Terms and Conditionsmeans these standard terms and conditions.
• Special Terms and Conditions means the terms and conditions set out in the Schedule.
• SKEDAmeans SKEDA Pty Ltd ABN 77 139 093 306.
• Us means SKEDA Pty Ltd.
• You means the person or organisation that signs this document and enters into an agreement with SKEDA for the use of its Service and Your has a corresponding meaning.