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.
• “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 premium over the agreed Normal Business Hours rates.
• “Proposal” means the proposal, quote, response, order form 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, two 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 whilst providing Products or Services.

Acknowledgment

• Generation-e’s Terms and Conditions of Trade 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 unless prior written approval is received from an authorised officer of Generation-e.
• 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.
  
  

Payment & Credit

• Payment is due within thirty (30) days from the date of our invoice, unless we have agreed to another timeframe in writing. You may pay by direct deposit or credit card. Payments made by credit card may incur a surcharge.
• If an invoice is not paid by the due date, we may charge interest on the overdue amount. The interest rate will be calculated at a rate of 5% per annum above the official cash rate of the Reserve Bank of Australia. We also reserve the right to engage a collection agency or solicitor to recover the debt. You agree to pay all reasonable costs associated with this recovery, including legal fees and collection agency charges. Failure to pay may also be reported to credit rating agencies.
• 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, then to service charges and finally to the purchase price.
• The Customer warrants that the information provided in the Application is accurate, correct and complete and is supplied for the purposes of obtaining credit. Customers are not entitled to any credit facilities until they receive notice that credit facilities have been given, and whether any specific terms and conditions apply.
• 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.
• In the event of Generation-e granting credit 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.
  • 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

• 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.
• 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.
• 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 full payment 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.
    
    

Governing Law

• Customers supplied by Generation-e Productivity Solutions Pty Ltd (ABN 25163718714): 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.
• Customers supplied by Generation-e Productivity Solutions Limited (NZBN 9429048781138): 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.
  
  

Warranty

• In Australia, our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law and New Zealand's Consumer Guarantees Act 1993 and Fair Trading Act 1986. The remedies you are entitled to for any failure depend on whether the failure is major or minor, as defined by that legislation. To the extent permitted by law and where the goods or services are not acquired for personal or domestic use, Generation-e’s liability for breach of a Consumer Law guarantee is limited, at Generation-e’s option, to:
  • in the case of goods—repair or replacement of the goods or supply of equivalent goods, or payment of the cost of doing so; and
  • in the case of services, resupplying the services or payment of the cost of doing so.
• In New Zealand, if you are acquiring goods or services for business purposes, you agree that the provisions of the Consumer Guarantees Act 1993 (NZ) do not apply. To the extent permitted by law, our liability for any breach of a guarantee will be limited, at our option, to:
  • For goods: repairing or replacing the goods, supplying equivalent goods, or paying the cost of doing so.
  • For services: resupplying the services or paying the cost of doing so.
• For all customers, 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 ten (10) business days 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. Neither does 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.
• Products are supplied with any manufacturer warranties that apply. Generation-e will, where practicable, facilitate manufacturer warranty claims. 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 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 guarantees have been stated in your agreement.
• Provision of Services provided by the manufacturer will be in accordance with the manufacturer’s terms and conditions.
  
  

Intellectual Property

• Generation-e retains 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, the 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 (the Work Product) 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.
• Generation-e grants to Customer, subject to these Terms and Conditions, a non-exclusive, non-transferable right and licence to use such Work Product once only and solely for Customer’s internal purposes and solely for the project that the customer has engaged Generation-e for in the delivery of the specific Work Product. Further use of the Work Product is prohibited unless Generation-e provides written approval. This single use licence does not include the right to copy, distribute or re-use in any form.
• 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.
• Any licence 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 licence fees to such party by the Customer. This licence does not expand any licence Customer has for any of Generation-e’s commercial software products.
  
  

Use of 3rd Party Services

• Generation-e may utilise 3rd party products and services, including those leveraging artificial intelligence (AI), to enhance how we deliver to customers. These services are carefully selected to ensure they align with our commitment to privacy, quality, security and compliance. By engaging with Generation-e, you acknowledge and consent to the integration of such technologies and services as part of the delivery and ongoing support of the solutions provided. Generation-e remains responsible for overseeing these collaborations to ensure they meet the required standards of service and reliability.
• While Generation-e makes every effort to ensure that 3rd party services adhere to data sovereignty principles specific to Australia or New Zealand, it is important to note that this cannot be guaranteed in all circumstances. Factors such as the nature of the service, global infrastructure and provider policies may occasionally necessitate data storage or processing outside these regions. Nonetheless, Generation-e remains committed to evaluating and selecting providers that prioritise regional compliance wherever feasible, safeguarding customer data to the highest possible standards.
  
  

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.
• 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.
• Generation-e or any representative nominated or acting on 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.
• Nothing in these Terms limits liability for personal injury or death caused by negligence, fraud, willful misconduct, or liability that cannot be excluded by law.
  
  

Vendor Terms and Pass-Through Obligations

• Some Products and Services supplied by Generation-e are sourced from third-party vendors and are subject to those vendors’ standard terms, end user licence agreements (EULAs), acceptable use policies, and support/warranty terms (“Vendor Terms”). By purchasing or using such Products or Services, the Customer agrees to comply with all applicable Vendor Terms, as updated from time to time.
• To the extent required by any Vendor Terms, those terms are incorporated by reference and prevail over these Terms and Conditions to the extent of any inconsistency, but only in relation to the relevant Product or Service.
• The Customer must not do, or permit any act or omission, that would cause Generation-e to breach any Vendor Terms. The Customer indemnifies Generation-e for any loss or liability arising from the Customer’s breach of this clause.
• Vendor Terms may be updated by the relevant vendor at any time. The Customer is responsible for reviewing and complying with the current version of the Vendor Terms.
  
  

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.
  • The Services and agrees to use best endeavours to maintain the confidential nature of the confidential information. 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.
• Each party must keep the other’s confidential information confidential and use it only for performing or receiving the Products/Services, except where disclosure is required by law, to professional advisers under confidentiality, or with prior written consent.
• Generation-e will handle personal information in accordance with its Privacy Policy and applicable privacy laws (including the Australian Privacy Act 1988 and Notifiable Data Breaches scheme, and the New Zealand Privacy Act 2020). The Customer must ensure it has all consents necessary to provide personal information to Generation-e.
• 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.
  
  

Dispute Resolution

• If a dispute arises, senior representatives will meet within 10 Business Days to seek resolution. If unresolved after 20 Business Days, either party may refer the dispute (other than for urgent injunctive relief or unpaid invoices) to mediation in Melbourne, Australia or Auckland, New Zealand (as applicable) before commencing court proceedings.
  
  

Force Majeure

• Neither party is liable for delay or failure to perform to the extent caused by an event beyond its reasonable control (including natural disaster, epidemic, war, terrorism, labour disputes, government action, utility failure or internet service interruption). The affected party must use reasonable efforts to mitigate and resume performance.
  
  

General

• Notices must be in writing and may be given by email to the addresses specified in the Proposal or otherwise notified. Notices are deemed received when the email is sent, unless the sender receives an automated message that the email was not delivered.
• By providing your contact details, Generation-e assumes permission to market to you in the future.
• No variation is effective unless in writing and signed by both parties.
• No waiver of a right is effective unless in writing and signed, and a waiver applies only to the specific instance.
• If any term is unenforceable, it is severed and the rest remain in force.
• 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.