IoTMSS Pty Ltd Standard Terms and Conditions of Sale/Supply of Goods and/or Services
a) Acceptance by the Supplier to provide the Goods or Services described or referred to in any Purchase Order issued by the Customer constitutes the formation of the Agreement and is expressly subject to and conditional upon these Terms.
b) Any Purchase Order (oral or written) for or any statement of intent to purchase any Goods or Services, or any direction to proceed with engineering procurement, manufacture or shipment of such, shall constitute acceptance of these Terms, and a representation that the Customer is solvent.
c) Any additional or different terms and conditions to the Terms provided in any communication from the Customer are rejected by the Supplier and shall not be effective or binding on the Supplier unless expressly agreed by the Supplier in writing by authorized representative.
d) None of the Supplier’s agents or representative’s other than a manager or officer are authorized to make any representations, statements, conditions or agreements nor is the Supplier bound by any such unauthorized actions.
i) The Goods or Services shall be supplied by the Supplier in a timely manner and in accordance with the Agreement including any specification set out in the Agreement.
a) The Customer must pay to the Supplier the Price based on the Goods or Services requested by the Customer and the then current prevailing rates of the Supplier for those Goods or Services or, at the discretion of the Supplier, the amount specified in any quotation by the Supplier to the Customer.
b) Any increase in the cost of delivery and/or supply of the Goods or Services between the date of the Purchase Order and the date of delivery or supply of those Goods or Services shall be borne by the Customer.
c) The Supplier may change the Price of any quotation for Goods or Services by providing written notice to the Customer.
d) Any Price quoted by the Supplier is based on the costs of labour, materials and statutory obligations applicable at the date of quotation. Any variations in these rates or obligations actually incurred by the Supplier shall be to the Customer’s account.
e) The Supplier shall be entitled to charge reasonable additional costs and fees for all delays caused as a result of the Supplier obeying any instructions given by the Customer or the Customer not fulfilling the Customers obligations under the Agreement.
4) GST and other Taxes
a) The Price is exclusive of GST. The Customer must pay the Supplier an additional amount on the Price for any GST payable in respect of any taxable supply made under or in connection with the Agreement, provided the Supplier must provide the Customer with a tax invoice in respect of that taxable supply.
b) If there is an adjustment event in relation to the taxable supply:
i) the Supplier must refund to the Customer the amount by which the GST paid by the Customer pursuant to clause 4.1 exceeds the adjusted GST on the taxable supply; or
ii) the Customer must pay to the Supplier the amount by which the adjusted GST on the supply exceeds the amount of GST paid pursuant to clause 4.1.
c) Any other taxes (excluding income taxes) duties, fees, charges or assessments of any nature levied by any government authority about the Agreement, shall be to the Customer’s account and shall be paid directly by Customer to the governmental authority concerned. If the Supplier is required by law or otherwise to pay such a levy and/or fines, penalties or assessments in the first instance, or because of Customer’s failure to comply with any applicable laws or regulations governing the payment of such levies by Customer, the amount of any payments so made by the Supplier shall be reimbursed by Customer to the Supplier upon submission of the Supplier invoices.
5) Property & Risk
a) All risk for Goods or in any Goods forming part of the Services transfers to the Customer on delivery of those Goods to the Customer or any third party on behalf of the Customer.
b) The Supplier shall remain the sole and absolute owner of the Goods until the price for the Goods has been received in full by the Supplier from the Customer and, subject to the provisions of the PPSA, be entitled, in addition to the right conferred by clause 5.3(b) of these Terms, to retake possession of all Goods in the possession of the Customer which have been supplied by the Supplier sufficient to clear any outstanding indebtedness by the Customer to the Supplier under the terms of the Agreement and the Supplier shall not be required to distinguish between Goods which have been paid for and Goods which have not been paid for.
c) Subject to the provisions of the PPSA, until the Supplier has received payment in full of the Price for all Goods supplied by the Supplier in:
i) the Customer shall be bailee of the Goods for the Supplier and shall store them upon its premises separately from its own Goods or those of any other person and shall store them in a manner enabling them to be readily identifiable as Goods of the Supplier;
ii) the Customer grants the Supplier an irrevocable license to enter the Customer’s premises and retrieve the Goods; and
iii) the Customer shall not sell or dispose of any of the Goods or any interest in the Goods without the prior written consent of the Supplier.
d) If the Supplier consents in writing to the sale or disposal or if any sale or disposal is made in breach of clause 5.3 and notwithstanding such breach:
i) the Customer shall inform any person to whom it proposes to sell or dispose of the Goods or any interest in the Goods (“Acquirer”) of the Supplier’s interest;
ii) the Customer shall ensure that the terms of the sale or disposal of Goods to the Acquirer includes a term which is identical in substance to this clause 5;
iii) notwithstanding that the payment of the price for the Goods would not otherwise have been due by the Customer, the Customer shall be obliged to pay the price for the Goods to the Supplier as soon as it receives payment from the Acquirer;
iv) the Customer shall hold all its rights against the Acquirer on trust for the Supplier and, to the extent necessary to discharge all debts owing to the Supplier in respect of the supply of Goods or other Goods only, any proceeds it receives;
v) the Customer agrees that the Supplier shall be entitled to trace all and any proceeds arising from any sale or disposal of the Goods until the Customer pays the full price for the Goods to the Supplier;
vi) the Customer agrees that the Supplier shall be entitled to trace all and any proceeds arising from any sale or disposal of the Goods until the Customer pays the full price to the Supplier for all other Goods supplied by the Supplier; and
vii) the Customer shall, at the Supplier’s request, assign its claims against the Acquirer and agrees irrevocably to appoint the Supplier and each of its officers as its attorney to give effect to and complete that assignment.
i) the Customer makes a new object from the Goods, whether finished or not;
ii) the Customer mixes or otherwise comingles the Goods with other articles, goods or products; or
iii) the Goods become part of the other product, (“Mixed Goods”) the Customer agrees with the Supplier:
iv) that the ownership of the Mixed Goods immediately passes to the Supplier, to the extent
(1) necessary to repay all moneys owing to the Supplier and to no greater extent; and
v) until payment of all sums owing to the Supplier whether under this Agreement or any other contract, that the Customer shall hold the Goods as a fiduciary for the Supplier until payment of all sums owing to the Supplier whether under this or any other contract.
f) For the avoidance of doubt, subject to the PPSA, the ownership of the Mixed Goods passes to the Supplier at the beginning of the single operation or event by which the Goods are converted, mixed, commingled or becomes part of Mixed Goods.
g) Where the Customer has not paid the Supplier in the manner required by these Terms:
i) the Customer agrees with the Supplier to keep the Mixed Goods as a fiduciary for the Supplier and, unless otherwise required by the Supplier, to store the Mixed Goods in a manner that clearly shows the ownership of the Supplier;
ii) the Customer grants the Supplier a security interest in the Mixed Goods as security for any moneys owing by the Customer to the Supplier under the Agreement.
a) Any dates for delivery of Goods or Services advised by the Supplier are approximate and are based upon the Customer providing prompt access to any area or equipment requiring the Supplier’s services and prompt receipt of all the necessary information in respect of the Services required.
b) All delivery costs for Goods or Services shall be in addition to the Price unless expressly stated otherwise by the Supplier.
c) Unless otherwise agreed, all shipments are ‘Ex Works’(EXW) (as defined in INCOTERMS 2010 published by the International Chamber of Commerce from time to time) at the Supplier’s shop.
d) The Supplier shall not be liable for delays in delivery or performance or failure to manufacture or deliver due to:
i) causes beyond its reasonable control;
ii) acts of God, acts of the Customer, acts of civil or military authority, priorities, fire, strikes or other labour disturbances, floods, cyclones, epidemics, war, riots, delays in transport or car shortages; or
iii) inability because causes beyond its reasonable control to obtain necessary labour, drawings, materials components or manufacturing facilities.
e) In the event of a delay in providing service under clause 6.4, the date of delivery or of performance shall be extended for a period equal to the time lost by reason of the delay.
a) Unless otherwise specified by the Supplier in writing, payment of the Price is to be made by the Customer no later than 30 days from the date of a tax invoice for the Services. The Supplier may submit a detailed payment claim at intervals not less than one (1) month for work performed up to the end of each month.
b) At the Supplier’s sole discretion, a deposit or pre-payment of the Price may be required.
c) Time for payment for the Goods and/or Services is of the essence.
d) Payment of the Price and any other payment must be made in cleared funds by cash, or by cheque, or by bank cheque, or by credit card, or by direct debit, or by or by any other method as agreed to between the Customer and the Supplier.
e) In the event of bankruptcy or insolvency of the Customer or in the event any proceeding is brought against the Customer, voluntarily or involuntarily, under the bankruptcy or any insolvency laws, the Supplier shall be entitled to cancel any Purchase Order then outstanding at any time during the period allowed for filing claims against the Customer and shall receive reimbursement for its reasonable and proper cancellation charges.
f) The Supplier at its option may retain possession of equipment repaired, modified, inspected, maintained or service under this Agreement until the Price is paid in full. If such charges are not paid within 90 days following completion for the Services and invoicing the Customer, the Supplier may, upon not less than 7 days written notice by certified mail to the Customer at the Customer’s last known address, sell the equipment at public or private sale and apply the net proceeds to the Supplier charges.
g) Interest on overdue invoices owed by the Customer accrues from the date when payment becomes due, until the date of payment, at a rate of ten percent (10%) per annum calculated daily.
h) If the Customer defaults in payment of any invoice when due, the Customer indemnifies the Supplier from and against all costs and disbursements incurred by the Supplier in pursuing the debt including legal costs on a solicitor and client basis and the Supplier’s collection agency costs.
a) The Customer consents to the Supplier creating and maintaining a registration on the Person Property Securities Register (“Register”) in any required form, in relation to any security interest contemplated or created by the Agreement, including a security interest as defined in the PPSA.
b) The Customer agrees to sign any necessary documents and provide all reasonable assistance and information to facilitate the registration and maintenance of a security interest on the Register if required by the Supplier. The Supplier reserves the right to register a financial statement or financial charge statement in respect of any security interest and the Customer waives the right to receive notice of a verification statement in relation to any registration of a security interest on the Register, by way of clause 8.1 or 8.2, in respect of any Goods supplied.
c) The Customer undertakes to do any and all acts that are reasonably required by the Supplier so as to:
i) allow the Supplier to create and maintain a perfected security interest (including a purchase money security interest) pursuant to the PPSA in respect of any Goods supplied and any and all proceeds of those Goods;
ii) allow the Supplier to register a financing statement or financing change statement;
iii) ensure that the Supplier maintains its secured position under the PPSA;
iv) not register a financing charge statement without the Supplier’s prior written consent; and
v) not register or commit to the register of a financial statement or financing change statement in respect of the Goods, in favour of a third party, without the Supplier’s prior written consent.
d) The Supplier and Customer agree that no information (as defined in section 275(1) of the PPSA) will be provided to an interested person or person requested by an interested person. This clause 8.4 may be waived by providing written notice to the Supplier authorizing the disclosure of the above information to a specified party.
e) In the event that the Agreement is subject to Chapter 4 of the PPSA:
i) the Supplier and Customer agree that, pursuant to Section 115(1) of the PPSA, the Customer waives Sections 95, 96, 118, 121 (4), 125, 130, 132 (3)(d), 134, 135, 142 and 143 of the PPSA; and
ii) the Supplier and Customer agree that, pursuant to Section 115(7) of the PPSA, Sections 127, 129(2), 129 (3), 130 (1), 132, 134(2), 135, 136(3), 136(4), 136(5) and 137 of the PPSA do not apply to the Agreement.
f) The Agreement (including clauses 5 and 6 of these Terms) is a security agreement for the purposes of the PPSA. For the avoidance of any doubt, collateral, for the purposes of Section 20(2) of the PPSA includes, but is not limited to, Goods (as described in the Agreement) or Goods provided by the Supplier to the Customer at any subsequent time.
g) The Supplier may apply amounts received in connection with the sale of Goods to satisfy obligations secured by security interests contemplated or constituted by the Agreement, at the Supplier’s absolute discretion.
h) Despite anything to the contrary contained herein or any other rights which the Supplier may have howsoever:
i) The Customer charges all of its estate and interest in land, personal property or other property in favour of Supplier to secure all monetary and other obligations under the Agreement.
ii) The Customer acknowledges and agrees that the Supplier entitled to register securities for the purposes of clause 8.8(a) (including an absolute caveat) with any applicable security registries, provided that those registered securities must be withdrawn once all payments and other monetary obligations payable under the Agreement have been met.
iii) The Customer irrevocably appoints the Supplier as the Customer’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 8.
a) The Supplier shall, until acceptance of the Services by the Customer and/or completion of the performance of the Services, at its own cost and in a form acceptable to the Customer, insure the Services and any materials provided by the Customer to the Supplier pursuant to clause 12 for any loss of or damage to the Services and/or such materials, with the Customer noted as an interested party on the policies.
b) The Supplier shall have in effect for the duration of the Agreement the following insurances:
i) where required by law, adequate Employers Indemnity and Workers Compensation insurance; and
ii) Public and Products Liability insurance for an amount of at least $20,000,000.00 per occurrence and in the aggregate.
a) The Supplier warrants to the Customer that:
i) the Services to be performed under the Agreement will be performed with reasonable care and skill in accordance with any specifications; and
ii) the Goods to be provided under the Agreement will be free from material defects and will be of the kind and quality,
iii) stipulated in the Agreement (“Warranty”).
b) The Warranty shall apply only to the defects appearing within twenty-four (24) months on parts and three (3) months on labour from the date of completion of the Services or provisions of the Goods by the Supplier (“Warranty Period”), following which the Customer is deemed to have accepted the Services or Goods. The conditions of any tests to Goods or Services provided by the Supplier shall be mutually agreed upon and the Supplier shall be notified of, and may be represented at, all tests that may be made.
c) If the Supplier breaches to the Warranty, provided the Customer has given the Supplier written notice of such breach within the Warranty Period, the Supplier’s liability is limited to the remedies under clauses 10.6(a) or 10.6(b), provided that any Goods to be returned must be returned at the Customer’s cost. Where the Customer is a ‘consumer’ as defined in the Competition and Consumer Act 2010 (Cth) or the
i) Fair Trading Act of any State or Territory in Australia (as applicable), then the Customer is also be entitled to a refund provided that any repayment of the Price shall be without interest.
d) The liability of the Supplier under the Warranty or for any loss or damage to incurred by the Customer whether the claim is based on contract or negligence will not in any case exceed the cost of correcting defects in the Services, (including the Goods) furnished as herein provided and upon the expiration of the Warranty Period all such terminate. The foregoing shall constitute the exclusive remedy of the Customer and the exclusive liability of the Supplier.
e) Any condition, term, guarantee or warranty which would otherwise be implied in the Agreement is hereby excluded to the full extent permitted by law.
f) Where legislation implies in the Agreement any condition, term, guarantee or warranty (“Mandatory Warranty”), and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such Mandatory Warranty, the Mandatory Warranty is deemed to be included in the Agreement and the liability of the Supplier for any breach of such Mandatory Warranty is limited, at the absolute discretion of the Supplier, to one or more of the following:
i) if the breach relates to the Goods:
(1) the replacement of the Goods or the supply of equivalent Goods;
(2) the repair of such Goods;
(3) the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
(4) the payment of the cost of having the Goods repaired; and
ii) if the breach relates to the Services:
(1) the supplying of the Services again; or
(2) the payment of the cost of having the Services supplied again.
g) The provisions of this clause 10 shall survive termination of the Agreement for any reason.
11) Limited Warranty
i) (a) IoTMSS warrants that IoTMSS-branded products will be free from defects in materials and workmanship for a period of two (2) years from the date of shipment with respect to hardware and will materially conform to their published specifications for a period of one (1) years with respect to software. IoTMSS may resell sensors manufactured by other entities and are subject to their individual warranties; IoTMSS will not enhance or extend those warranties. IoTMSS does not warrant that the software or any portion thereof is error free. IoTMSS will have no warranty obligation with respect to Products subjected to abuse, misuse, negligence or accident. If any software or firmware incorporated in any Product fails to conform to the warranty set forth in this Section, IoTMSS shall provide a bug fix or software patch correcting such non-conformance within a reasonable period after IoTMSS receives from Customer (i) notice of such non-conformance, and (ii) sufficient information regarding such non-conformance so as to permit IoTMSS to create such bug fix or software patch. If any hardware component of any Product fails to conform to the warranty in this Section, IoTMSS shall, at its option, refund the purchase price less any discounts, or repair or replace non-conforming Products with conforming Products or Products having substantially identical form, fit, and function and deliver the repaired or replacement Product to a carrier for land shipment to customer within a reasonable period after IoTMSS receives from Customer (i) notice of such non-conformance, and (ii) the non-conforming Product provided; however, if, in its opinion, IoTMSS cannot repair or replace on commercially reasonable terms it may choose to refund the purchase price. Repair parts and replacement products may be reconditioned or new. All replacement products and parts become the property of IoTMSS. Repaired or replacement products shall be subject to the warranty, if any remains, originally applicable to the product repaired or replaced. Customer must obtain from IoTMSS a Return Material Authorization Number (RMA) prior to returning any Products to IoTMSS. Products returned under this Warranty must be unmodified.
ii) IoTMSS reserves the right to repair or replace products at its own and complete discretion. Customer must obtain from IoTMSS a Return Material Authorization Number (RMA) prior to returning any products to IoTMSS. Products returned under this Warranty must be unmodified and in original packaging. IoTMSS reserves the right to refuse warranty repairs or replacements for any products that are damaged or not in original form.
iii) (b) As a condition to IoTMSS’s obligations under the immediately preceding paragraphs, Customer shall return Products to be examined and replaced to IoTMSS’s facilities, in shipping cartons which clearly display a valid RMA number provided by IoTMSS. Customer acknowledges that replacement products may be repaired, refurbished or tested and found to be complying. Customer shall bear the risk of loss for such return shipment and shall bear all shipping costs. IoTMSS shall deliver replacements for Products determined by IoTMSS to be properly returned, shall bear the risk of loss and such costs of shipment of repaired products or replacements, and shall credit Customer’s reasonable costs of shipping such returned Products against future purchases.
iv) (c) IoTMSS’s sole obligation under the warranty described or set forth here shall be to repair or replace non-conforming products as set forth in the immediately preceding paragraph, or to refund the documented purchase price for non-conforming Products to Customer. IoTMSS’s warranty obligations shall run solely to Customer, and IoTMSS shall have no obligation to customers of Customer or other users of the Products.
12) Limitation of Warranty and Remedies.
13) THE WARRANTY SET FORTH HEREIN IS THE ONLY WARRANTY APPLICABLE TO PRODUCTS PURCHASED BY CUSTOMER. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED. YOU ACKNOLWEDGE AND AGREE THAT THE PRODUCTS AND SERVICES FURNISHED BY IOTMSS ARE NOT GUARANTEED TO BE UNINTERRUPTED OR ERROR FREE. ADDITIONALLY, YOU AGREE THAT WE ARE NOT LIABLE FOR PROBLEMS CAUSED BY YOU OR A THIRD PARTY; BY WIRELESS CARRIERS, DATA CENTERS, BUILDINGS, ACCIDENTS, HILLS, NETWORK CONGESTION, TUNNELS, TOWERS, WEATHER OR OTHER THINGS WE DON’T CONTROL; OR BY ANY ACT OF GOD. FURTHERMORE, IOTMSS SPECIFICALLY DISCLAIMS ANY AND ALL LIABILITY AND WARRANTIES, IMPLIED OR EXPRESSED, FOR USES REQUIRING FAIL-SAFE PERFORMANCE IN WHICH FAILURE OF A PRODUCT COULD LEAD TO DEATH, SERIOUS PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE SUCH AS, BUT NOT LIMITED TO, LIFE SUPPORT OR MEDICAL DEVICES OR NUCLEAR APPLICATIONS. PRODUCTS ARE NOT DESIGNED FOR AND SHOULD NOT BE USED IN ANY OF THESE APPLICATIONS. IF YOU NEVERTHELESS CHOOSE TO USE THE PRODUCTS, SOFTWARE, AND/OR SERVICES IN SUCH ACTIVITIES, YOU MUST NOT RELY ON THEM AS YOUR SOLE OR PRIMARY SOURCE OF MONITORING.
i) IOTMSS’S TOTAL AGGREGATE LIABIITY WHETHER IN CONTRACT, IN TORT, UNDER ANY WARRANTY, IN NEGLIGENCE OR OTHERWISE SHALL NOT EXCEED THE PURCHASE PRICE PAID BY CUSTOMER FOR THE PRODUCT. UNDER NO CIRCUMSTANCES SHALL IOTMSS BE LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES. THE PRICE STATED FOR THE PRODUCTS IS A CONSIDERATION IN LIMITING IOTMSS’S LIABILITY. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
14) Limitation of Liability
a) The Supplier’s liability under any claim by the Customer in respect of this Agreement or matters associated with this Agreement is limited to the portion of the Price allocable to the Services which give rise to that claim, including negligence for any loss or damage arising out of connected with, or resulting from this Agreement, or from the performance or breach thereof, or from the design, manufacture, sale, delivery, resale, installation, technical direction of installation, inspection, repair, test modification, operation or use of any equipment, material or components covered by or furnished under this Agreement.
b) The Supplier is not liable for any:
i) loss of profits or revenue, loss of use of the equipment or any associated equipment, facilities or services downtime costs;
ii) special or consequential loss or damages; or
iii) for any claims by third parties against the Customer for such loss or damages.
c) The warranties of the Supplier do not cover and the Supplier makes no warranty with respect to (without limitation):
i) breaches of the Warranty not reported to the Supplier within the Warranty Period;
ii) failures or damage in respect of the Services due to misapplication, abuse improper installation or abnormal conditions of temperature, dirt or corrosive matter;
iii) failure in respect of the Services due to operation (either intentional or otherwise) above rated capacities or in an otherwise improper manner;
iv) Goods which have been in any way tampered with or altered by anyone other than an authorized representative of the Supplier;
v) Goods damaged in shipment or otherwise without fault of the Supplier, and
vi) expenses incurred by Customer to repair or rework any alleged defective Goods.
d) The Customer agrees to indemnify the Supplier from and against:
i) any loss, damage, injury or death to any person caused because of the act, omission or negligence or otherwise of the Customer, the Customer’s employees, servants and agents whilst the Supplier performs the Services;
ii) any loss or damage of any kind whatsoever caused to the Customer or the property of the Customer, whether such loss or damage was caused by the act, default or negligence on the part of the Supplier or otherwise; and
iii) any consequential loss or damage sustained by the Customer or any other person arising from the late delivery or mis-delivery of any goods or provision of any services by the Customer, howsoever caused.
e) The Customer shall assume all risks and liabilities for and in respect of the Services and for injuries to or death of persons and damage to property howsoever arising and the Customer indemnified and will keep indemnified the Supplier from and against:
i) the loss of or damage to any Goods for which payment of the Price has not yet been made in full, whether by fire, theft, accident, seizure, confiscation or otherwise whilst in the Customer’s custody possession or control; and
ii) all other losses, damages, claims, penalties, liabilities and expenses, including legal costs, howsoever arising incurred because of or in connection with the provision of the Services.
15) Materials Supplied by the Customer
a) The Customer shall provide to the Supplier any patterns, designs, specifications, drawings, samples, technical information, specified in the Agreement (whether in electronic format or otherwise) or which the Customer has agreed in writing to provide to enable the Supplier to supply the Services (“Materials”).
b) All Materials, and the Customer’s intellectual property rights therein (if any), remain the property of the Customer.
c) The Supplier must not use the Materials for any purpose except the supply of Services to the Customer.
16) Intellectual Property
a) Other than as otherwise agreed between the Parties:
i) the Supplier hereby grants to the Customer a perpetual, irrevocable, non-exclusive, royalty- free, transferable license (with the right to sub-license) to use all intellectual property (whether owned by the Supplier or not) which is used by the Supplier in connection with the performance Services under the Agreement;
ii) all intellectual property developed by the Supplier in connection with the performance of the Services under the Agreement vests in the Supplier; and
iii) the Customer agree to enter into and/or execute any document reasonably required to give effect to the provisions of this clause 13.1.
b) The Supplier warrants that:
i) the supply of Services by the Supplier to the Customer and the license granted by the Supplier pursuant to clause 13.1 does not infringe the intellectual property rights of any third party; and
ii) the Services are not subject to any intellectual property rights of any third party that in any way restrict the rights of the Customer or its Customers to use or sell the same.
c) In this Agreement “intellectual property” means any intellectual or industrial property whether protected by statute, at common law or in equity, including any patent, invention, copyright, or design right (whether or not registrable), in any design, specification, process, technique, software, know how, trade secret, technical information, financial information, business method and confidential information.
17) Termination and Cancellation
a) The Customer may cancel any Purchase Order prior to provision of the Services under that Purchase Order by written notice to the Supplier and upon payment of to the Supplier of any costs incurred by the Supplier together with reasonable and proper cancellation charges.
b) The Supplier may suspend or terminate the Agreement:
i) immediately upon giving written notice to the Customer in the event that the Customer is in default of a material term of the Agreement and fails to remedy such default within 14 days of notice from the Supplier to do so, if such default is capable of remedy; or
ii) if the Customer becomes insolvent, is made bankrupt, is placed into external administration or liquidation or has a receiver or other controller appointed over its assets.
c) Termination of the Agreement pursuant to this clause 14 shall be without prejudice to the rights of either party accruing prior to termination.
18) Dispute Resolution
a) If a dispute between the parties arises in connection with the subject matter or interpretation of the Agreement, including a dispute concerning a claim in tort, under statute, or on any other basis in law or equity available under the law governing the Agreement (“Dispute”), either party may by hand or registered post give the other party written notice of the Dispute identifying and providing details of the Dispute and entitled Dispute Notice (“Dispute Notice”).
b) Within seven (7) days of receipt of a Dispute Notice, representatives of the parties having authority to bind the parties shall confer to seek to resolve the Dispute or agree on a method of doing so and whether that method shall be binding. If a resolution or method of resolution has not been agreed within.
i) Twenty-one (21) days of the service of Dispute Notice, the Chief Executive Officers (or equivalent) of the parties shall confer for the same purpose as the parties’ representatives. All aspects of such conference(s) shall be subject to “without prejudice” privilege.
c) Except for the enforcement of payment due under the Agreement or to seek injunctive or urgent declaratory relief, and subject to any agreement to the contrary, neither party may institute legal proceedings in respect of any Dispute unless a Dispute Notice in respect thereof has first been given and then only after a period of twenty-eight (28) days from receipt of such Dispute Notice has elapsed with the Dispute not being resolved.
a) The Supplier shall have no liability to the Customer in respect of any matter in connection with the Agreement unless the claim together with full particulars thereof is lodged with the Supplier within 14 days of the occurrence of the event(s) or circumstance(s) on which the claim is based.
b) If any provision or part of any provision of the Agreement is unenforceable, such unenforceability shall not affect any other part of such provision or any other provision of the Agreement.
c) Supplier may alter, amend revise or change any terms of the Agreement with notice given to the Customer of any such alteration amendment revision or change. The Agreement (as amended from time to time) shall apply to all Services performed by Supplier for Customer and shall comprise the entire agreement between the parties notwithstanding any other terms and conditions which may be supplied by the Customer.
d) Any waiver by the Customer of strict compliance with any provision of the Agreement shall not be effective unless in writing and signed by an authorized officer of the Customer.
e) The Agreement shall be governed by the laws and jurisdiction of the State of New South Wales and the parties agree to submit to the jurisdiction of the courts of that State and any courts having appellate jurisdiction from them.
f) No provision of the Agreement shall be construed adversely against one party solely on the basis that that party was responsible for the drafting of that provision.
g) The Customer agrees for the Supplier to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by the Supplier.
h) The Customer consents to the Supplier being given a consumer credit report to collect overdue payment on commercial credit under Section 18K(1)(h) of the Privacy Act 1988 (Cth).
i) In these Terms:
21) “Agreement” means the agreement between the Supplier and the Customer for the provision of Goods or Services by the Supplier to the Customer to which the Terms apply.
22) “Customer” means the customer (or any person acting on behalf of and with the authority of the customer) as described on any Purchase Order or quotation for Services, including their successors or permitted assigns.
23) “Goods” means goods, materials, parts or products described in a Purchase Order or quotation that are supplied or to be supplied by the Supplier to the Customer.
24) “Loss” means any loss (including but not limited to direct loss, indirect loss, consequential loss, loss of anticipated profits and/or loss of business opportunity), liability, damage (including but not limited to any damages or compensation and/or any damage to reputation), cost or expense (including legal costs on a full indemnity basis) of whatever kind and however it arises.
25) “PPSA” means the Personal Property Securities Act 2009 (Cth).
26) “Price” means the price payable for the Services in accordance with clause 3.1.
27) “Purchase Order” means any purchase order, work order, work authorization or any other form requesting Services from the Supplier.
28) “Supplier” means the ARA Group Pty Limited (ABN 47 074 886 561) and includes without limitation all members of the ARA Group its successors, assigns, associates, affiliates, attorneys, agents or any person acting on behalf of and with its authority.
29) “Services” means all services or described in a Purchase Order or quotation that are supplied or to be supplied by the Supplier to the Customer and includes any advice or recommendations.
30) “Terms” means the Supplier’s Standard Terms and Conditions of Sale (Services & Goods) as amended from time to time.
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