- TERMS AND CONDITIONS OF SUPPLY
Always UP IT Pty Ltd (“Company”) agrees to supply goods (“Products”) and/or services (“Services”) to the Customer on these standard terms and conditions (“Terms”).
- Purchase Orders.
Purchase orders for Products or Services will constitute an offer by the Customer and may only be accepted by Company in writing. Any amendments to purchase orders for Products or Services must be approved by Company in writing to be effective. Only these Terms (no other terms and conditions which may be attached to or incorporated in a purchase order) form part of the agreement between the parties. Acceptance of a purchase order will not be acceptance of any such terms or conditions.
Unless otherwise agreed by Company in writing, payment terms are strictly Net 7 Days from the date of invoice. Products will be invoiced on delivery. Services will be invoiced at the end of each month and on completion or as otherwise prescribed in the documents describing the Services to be supplied.
Past due amounts will bear interest from due date until payment is made in full at the lesser of 18% per annum or the highest rate permitted by applicable law. Customer shall pay all collection and other costs incurred by Company, including reasonable attorney’s fees.
Company makes no warranty in relation to the Products or Services other than as contained in these Terms or as prescribed by a law which cannot be excluded or in the case of Products, as provided by the Products’ respective manufacturers as made known to the Customer in the documents supplied by Company or the manufacturer or as otherwise published or made known to the Customer. Defects in Services reported to Company within 30 days of delivery of the Service will be rectified by Company at no charge to the Customer. Company will not provide claimed warranty services for defects or deficiencies in Products or Services which are caused by:
- a) external causes including natural disaster, fire, accident, neglect, misuse, vandalism, water, lightning, power surge or spike;
- b) the use of a Product for other than its intended purpose;
- c) the use with or connection of a Product to items not approved by Company;
- d) the performance of maintenance or attempted repair by persons other than Company or as authorised by Company;
- e) changes made to the deliverables created by performance of the Services or to the operating environment;
- f) the relocation of Products by the Customer; or
- g) any configuration or reconfiguration by the Customer of the Products or other equipment with which the Products interface.
Company will use its reasonable endeavours to deliver Products or Services to the Customer by the date agreed but will not be liable for any delays in delivery caused by matters beyond its control. Freight charges incurred by Company in delivering Products to the Customer will be invoiced to the Customer at cost unless quoted otherwise.
Unless the Customer gives Company written notice of any aspect of a deliverable which is alleged by the Customer to be otherwise than in accordance with these Terms or any applicable specifications, within 7 days of the date of delivery of that deliverable, the Customer shall be deemed to have accepted that deliverable on delivery. Where the Customer puts a deliverable to commercial use, it shall be deemed to have accepted that deliverable on the first day of such use, whether or not a notice of the kind contemplated by this clause is given to Company as required.
Products returned will only be credited to the Customer’s account if the return is authorised by Company and the Products are in the same condition as delivered by Company and only if received by Company within 14 days of delivery. Company reserves the right to charge the Customer for any costs or losses incurred by Company if Products which are not faulty are returned or returned without authorisation, returned later than 14 days from delivery or in a different condition to the condition the Products were in when delivered by Company. Company will use its best endeavours to minimise such costs and losses.
- Risk and Insurance.
Risk of loss, theft, damage, deterioration or destruction of Products passes to the Customer upon the earlier of:
- a) delivery to the Customer;
- b) the taking of possession by the Customer; and
- c) the delivery to any carrier contracted to the Customer for delivery to the Customer.
Until the Products have been paid for in full, they remain the property of Company. If the Customer fails to pay any moneys to Company when due, Company may immediately without notice or demand, enter upon the Customer’s premises and take possession of the Products. This right is without prejudice to any other rights that Company may have.
Company and the Customer agree that they will keep at all times as strictly confidential any confidential information that is disclosed or provided by one party to the other. In this clause, “confidential information” means information in any form but does not include information that is already in the public domain at the time that it is disclosed or becomes part of the public domain otherwise than as a result of an unauthorised disclosure by Company or the Customer.
- Intellectual Property.
The Customer acknowledges that, unless otherwise agreed in writing, all intellectual property rights attaching to the Products or arising out of the provision of Services are and will remain the property of Company (or its supplier, where such rights are owned by that supplier). Software will be licensed to the Customer on the terms of the relevant licence agreement provided with the Product or as otherwise agreed between Company and the Customer in writing. Any rights to be conferred on Customer will only commence on payment of all charges payable in connection with those rights.
13.1 Where the Customer:
- a) makes default in any payment or breaches any of these Terms;
- b) becomes unable to pay its debts as and when they fall due; or
- c) commits an act of bankruptcy or, being a company, enters into liquidation or provisional liquidation whether compulsory or voluntary or compounds with its creditors generally or has a receiver or receiver manager or administrator appointed over all or part of its assets or passes a resolution for winding-up or a petition is presented for its winding-up
13.2 Company may without prejudice to any of its rights or remedies under these Terms or otherwise by notice to the Customer:
- a) suspend further supply and require payment in advance for future supply;
- b) recover possession of any Product for which payment has not been made;
- c) terminate all or any purchase orders for Products or Services which have been accepted by Company;
- d) claim immediate payment of all moneys due by the Customer in respect of all Products and/or Services which will then be immediately due and payable notwithstanding the due date or dates for payment or any terms agreed by Company; and/or
- e) continue to enforce its rights and recover from the Customer such payments and any other amounts owing as and when they fall due.
- No Representations.
The Customer acknowledges that Company has not made any warranty or representation, express or implied, in relation to the Products or the Services, including whether they are suitable for a particular purpose (whether such purpose was made known to Company or not), unless provided in writing.
- No Implied Terms.
To the fullest extent permitted by law, the parties agree to exclude any terms which would otherwise be implied into these Terms by any statute. The liability of Company for a breach of a condition or warranty implied into these Terms by the Trade
Practices Act, 1974 is limited at the option of Company:
- a) if the breach relates to goods, to the replacement of the goods or the supply of equivalent goods, or the repair of the goods, or the payment of the cost of replacing the goods or of acquiring equivalent goods or the payment of the cost of having the goods repaired; and
- b) if the breach relates to services, the supplying of the services again or the payment up to a maximum of the amount paid to Company of the cost of having the services supplied again.
- Limitation of Liability.
Company will not be liable to the Customer for any indirect or consequential damages including loss of profits, revenue, data or use arising out of or in relation to the supply of Products and/or Services, even if Company knew or should have known of the possibility of such loss or damage and whether damages are claimed in contract, tort (including negligence) or statute.
Except in relation to liability for personal injury (including sickness and death), or damage to tangible property, Company’s liability to the Customer in respect of any loss or damage (including consequential or indirect loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of the supply of Products and/or Services pursuant to these Terms or in respect of a failure or omission on the part of Company to comply with its obligations under these Terms, shall be, in aggregate, limited to an amount equal to the amount paid by the Customer to Company under these Terms.
Any variation to these Terms must be in writing. Variations to any of the Services agreed to be supplied will be charged by Company at its then current rates for those additional services, unless otherwise agreed in writing
18.1 All notices must be in writing and sent by mail, hand delivery or transmitted by facsimile to the address or facsimile number of the receiving party and shall be deemed delivered, in the case of:
- a) hand delivery, on delivery;
- b) posting, three days after dispatch; and
- c) facsimile, on completion of complete and legible transmission.
18.2 No leniency, indulgence or extension of time granted by Company to the Customer will prejudice any of Company’s rights in any way or constitute a waiver of any of Company’s rights.
18.3 If any of these Terms are for any reason declared to be or become unenforceable, invalid or illegal, the remaining Terms will remain in full force and effect.
18.4 These Terms are governed by the laws of New South Wales, Australia and the parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales.
- Taxes and GST.
The amount payable to Company (“the Price”) is exclusive of existing taxes, duties and government charges imposed or levied in Australia in connection with the supply of the Products and Services. The Customer shall be liable for any new or varied taxes, duties or charges imposed subsequent to Company’s quotation or proposal or to this agreement in respect of the supply of the Products and Services. Company will issue a valid tax invoice where GST is to be recovered.
- Foreign currency exchange.
Some or all of the Products to be supplied as part of the engagement may be sourced by Company in a currency other than Australian Dollars. The price quoted for the Products shall remain valid for a period of 30 days from date of issue. Company reserves the right to adjust the Australian Dollar price for the Products after this period.