Terms and Conditions of Service Maintenance Agreement – Australia and New Zealand
1.1. In this Agreement “Ascent” means Ascent Services Pty Limited ABN 98 632 161 007.
1.2. This Agreement provides the scope of service provided by Ascent to the Customers equipment including routine maintenance, remedial service, the replacement of faulty parts excluding consumable items, at a pre-determined rate with the following conditions.
1.3. This Agreement is effective for a minimum of twelve (12) months unless otherwise specified in this Agreement thereafter.
1.4. Either party may terminate this agreement with thirty (30} days prior written notice.
1.5. Any fee paid in advance shall be refunded pro-rata.
1.6. The offer of this Agreement including charges and conditions expires unless accepted 30 days after the proposed start date of the Agreement or as otherwise shown.
1.7. Additional items of equipment may be added to the coverage of this Agreement at any time during the term of this Agreement with the Written agreement of both Parties.
1.8. Privacy: The provisions of the Privacy Act 1988 (as amended) apply to any information collected by Ascent. Please review Ascent’s Privacy Statement at www.ascent.services
1.8.1. The Customer consents to Ascent giving and receiving information about the Customer in accordance with the provisions of the Privacy Act 1988 (Cth) (Privacy Act). Any personal information of the Customer collected by Ascent will be used, stored, and disclosed consistently in accordance with the provisions of the Privacy Act.
1.9. PPSA: (a} The Customer acknowledges the Personal Property Securities Act 2009 (cth), or in NZ, the Personal Property Securities Act (1999), their respective regulations, or any amendment or re-enactment of those Acts; and that:
1.9.1. this Agreement creates a purchase money security interest in products and services supplied by Ascent and the proceeds of these products and services (“Security Interest”} without the need for any further action by any party; and
1.9.2. Ascent may perfect its Security Interest in the products and services by registering the Security Interest on the Personal Property Securities Register in accordance with the PPSA.
1.9.3. The Customer waives its right to receive notice of verification statements in relation to the registration of Ascent’s Security Interest
1.9.4. as long as Ascent retains Iien to and a Security Interest in the product and services;
1.9.5. Ascent may, at any time. terminate any contract or agreement relating to the Equipment without notice to the Customer and may take possession of the product or withhold services.
1.9.6 If the Customer defaults in the performance of any obligation owed to Ascent under these Conditions or any other agreement with Ascent to supply products to the Customer, Ascent may enforce its security interest in any of its rights under these Conditions or the PPSA. To the maximum extent permitted by law, both parties agree that the following provisions of the PPSA do not apply to the enforcement by Ascent of its security interest in the Product: sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135, 142 and 143.
1.9.7 Both parties agree not to disclose information of the kind mentioned in s 275(1) of the PPSA, except in circumstances required by sections 275(7) (b)-(e) of the PPSA.
1.10. Service Maintenance: Ascent will provide Service Maintenance for the Customers equipment shown on the face of this Agreement during hours shown excluding Company observed holidays or as shown otherwise on the face of this Agreement.
1.10.1. The Service Maintenance Coverage selected on the face of the Agreement may include:
1.10.2. Planned routine service maintenance visits as described in the Ascent Engineering Services Guide or other agreed document.
1.10.3. On-call remedial maintenance as required due to equipment failure. including labour to install replacement parts.
1.10.4. Supply of replacement parts as required on a new or exchange basis.
1.11. Exclusions: Service Maintenance does not include:
1.11.1. work external to the Equipment (eg. electrical);
1.11.2. maintenance of damage resulting from accident, transportation.
1.11.3. Acts of God, earthquake, lightening, explosion, floods, water damage (including damaged pipes, air-conditioning and the operation of sprinklers),
1.11.4. Customers neglect or misuse.
1.11.5. failure to provide the proper environment, or failure of electrical power.
1.11.6. use of improper supplies, causes other than ordinary use or any other cause beyond the control of Ascent;
1.11.7. furnishing photographic material. magnetic tapes, chart paper, transducers, cables or other consumable items;
1.11.8. painting or refurnishing the Equipment making specification changes or modifications;
1.11.9. service relating to relocating the Equipment;
1.11.10. adding or removing accessories, attachments or other devices;
1.11.11. the supply of consumables; or
1.11.12. Spare Parts supplied or service rendered inappropriately as reasonably determined by Ascent other than Where the Spare Parts or services have been provided by Ascent or its authorised representative by reason of alterations to the Equipment or by reason of electrical or mechanical connections to other equipment not supplied by Ascent.
1.11.13. Ascent reserves the right to charge the Customer for repair and adjustment required for other than normal equipment failure.
1.11.14. This would include damage through Customer’s misuse, operation error, inadequate environment conditions or improper environment, power failure or Acts of God.
1.11.15. Should the Equipment shown on the face of this Agreement be not covered by a current Ascent Service Agreement or Ascent warranty, prior to the start of his Agreement, Ascent personnel will inspect the Equipment and any deficiencies found will be advised to the Customer and corrected at the then current Ascent standard hourly rates otherwise identified deficiencies, if not critical or safety related, may be excluded from cover of this Agreement
1.11.16. In the event that replacement parts, including parts shown on the face of this Agreement, or Service Maintenance are supplied or undertaken by a person or entity other than Ascent or its authorised representatives. this will void all warranties offered in this agreement.
1.12. Charges: Charges are payable as shown on the face of this Agreement within 30 days of receipt of a valid tax invoice.
1.12.1. If the Customer requests unscheduled on-call remedial Service Maintenance other than during normal working hours. such service will be furnished at the then current
1.12.2. Ascent standard hourly rates including travel and may be subject to the availability of staff.
1.12.3. Charges may be varied due to the addition of other items or variation of equipment specification requested by the Customer and shall be added to the charges due. including amounts equal to any taxes or duties payable by Ascent in respect to the foregoing.
1.12.4. All charges stated in this Agreement are inclusive of Goods and Services Tax (GST).
1.12.5. Ascent may adjust the charges shown for this Agreement at 12 monthly intervals from the Agreement commencement date or at expiry by giving sixty (60) days advance written notice.
1.12.6. However, any GST increases are immediately payable by the Customer.
1.12.7. Upon receipt of such notice, the Customer may then elect to terminate the Agreement on the effective date shown by giving thirty (30} days prior written notice of termination.
1.12.8. Unless otherwise agreed between the parties in writing: (i) all invoices are due in accordance with the payment due date set out on the invoice; and the Customer consents to receiving invoices from Ascent by email sent to their usual email address.
1.12.9. All taxes and charges (including any GST) that may be imposed on the products, Spare Parts and /or services supplied shall be for the account of the Customer.
1.12.9. In the event of any payment under this Agreement becoming more than thirty (30) days overdue, Ascent shall have the right to terminate the Agreement without prejudice to its right in respect to the payment due under this Agreement by giving written notice at least fourteen (14) days prior to termination.
1.12.10. If the Customer fails to pay the invoice by the Payment Due Date, Ascent may at its option: (i) charge interest on the unpaid invoice, equal to the lesser of: 1.5% of the outstanding amount, calculated monthly; or the maximum rate allowed by Australian law at the time that the invoice becomes outstanding; (ii) enforce its security interest in the Product in accordance with paragraph 11; or (iii) take action to recover the amount owing plus the interest specified in paragraph 2(b)(i).
1.12.11 In the event that Ascent is required to take action to recover an amount owing under this paragraph 2, the Customer agrees to reimburse Ascent for all costs and expenses (including but not limited to reasonable legal costs) incurred by Ascent in relation to its collection of the amounts owed to it.
1.13. Customer’s Creditworthiness: The Customer acknowledges that the issue of a Proposal by Ascent is subject Ascent’s approval of the Customer’s creditworthiness in Ascent’s sole discretion. If Ascent determines the Customer’s creditworthiness to be unsatisfactory, Ascent shall give the Customer written notice of this fact within sixty (60) days of the date of the Order.
1.13.1. To enable Ascent to assess the Customer’s creditworthiness, the Customer authorises Ascent to obtain from a credit reporting agency a credit report containing personal information about the Customer pursuant to the Privacy Act and to obtain a report from a credit reporting agency and other information in relation to the Customer’s commercial and/or consumer credit activities.
1.13.2. The Customer authorises Ascent to give to and obtain from any credit provider named in a credit report issued by a credit reporting agency information about the Customer’s credit arrangements in accordance with the Privacy Act. The Customer understands that this information can include any information about its credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive from each other under the Privacy Act. This includes payment information and information on defaults or credit infringements.
1.14.Warranty: Ascent warrants that:
1.14.1. The services are provided with due care by appropriately skilled people,
1.14.2. It has appropriate levels of Public Liability Insurance. Professional Indemnity Insurance and Workers Compensation Insurance, and,
1.14.3. All warranties expire on termination or expiration of this Agreement
1.14.4. To the extent permitted by law and without limiting the Customer’s rights under the ACL, Ascent is not liable to the Customer or any third party for: (i) indirect, special, consequential or incidental loss, damages or delays arising from or in connection with the provision of Product; (ii) personal injury or property damage arising from or in connection with the use of third party equipment and accessories in conjunction with Ascent products and/or services; or (iii) loss or damages arising from or in connection with delays in manufacture or shipment resulting from any cause beyond Ascent’s control.
1.15. Limitation of Liability: The liability in contract of Ascent under this Agreement shall be limited to providing Service Maintenance. In no event shall Ascent be liable for loss of anticipated profits or consequential or special damages. Ascent’s sole liability in contract shall be limited to resupplying the service. Ascent shall not be liable for any delay to provide Service Maintenance whatsoever and shall not be liable for any failure to provide Service Maintenance under this Agreement caused by Acts of God, strikes, or any causes beyond the reasonable control of Ascent.
1.16. Access to the Equipment: Subject to all reasonable directions of the authorised Customer representative, Ascent shall have full and free access to the Equipment to perform Service Maintenance within a safe and adequate area.
1.16.1. The Customer warrants that, except as disclosed in writing to Ascent prior to commencement of any Service Maintenance, the site is and will be free of all hazardous substances and will constitute a safe working place for the purposes of the installation and /or Service Maintenance by Ascent, its employees. agents and contractors.
1.17.1. Specifications, drawings and any other form of intellectual property relating to the Product (Intellectual Property) will remain the exclusive property of Ascent.
1.17.2. The Customer warrants that: (i) it will not disclose the Intellectual Property to any third party without the prior written consent of Ascent; (ii) it will act at all times to protect the value in the Product and ensure that the Intellectual Property and other proprietary rights in the Product are not infringed in any way; and (iii) it will comply with the reasonable directions of Ascent in relation to the use of the Product and the Intellectual Property.
1.18. Miscellaneous: This Agreement and attachments signed by both parties constitutes the entire Agreement between the Customer and Ascent and supersedes any previous Agreement, understanding or order between the Parties.
1.18.1. No modification or waiver of these Terms and Conditions of this Agreement shall be binding unless made in Writing and signed by both parties.
1.18.2 Products and Service Agreements: Separate Terms and Conditions relating to new Products and additional Services supplied by Ascent are provided with each Proposal, Quotation or Agreement