Unless otherwise agreed in writing by Intellectual Technology and Communication Pty Limited ("iT&C"), these Conditions override any terms and conditions appearing in IT&C's catalogue or elsewhere or referred to by you ("the Buyer") whether in the order or in any negotiations. These Conditions apply to all agreements for the supply of goods and / or services by IT&C and shall be varied only where such variation is in writing and signed by a Director of IT&C.
All orders for goods placed by the Buyer with IT&C are subject to acceptance by IT&C, which may be withheld by IT&C in its absolute discretion. Any acceptance of an order by a representative of IT&C shall only be a conditional acceptance of the order and shall be subject to IT&C approval of the Buyer's credit status. Buyers may request IT&C to confirm that particular orders have been accepted unconditionally but, unless IT&C does so, the unconditional acceptance of the Buyer's offer will only be deemed to occur upon delivery of the goods to the Buyer.
Any price list or other document published by IT&C does not constitute a representation by IT&C that the goods detailed in such publication are available to the Buyer and IT&C shall not be bound by any order for goods based upon or which refers to any such material. The Buyer acknowledges the manufacturer may at any time and without notice to IT&C vary the composition of or packaging for the goods (or components for the goods) and that IT&C does not undertake that any goods supplied to the Buyer will be identical to those previously purchased or advertised.
The price of the goods shall be as set out in the price list current at the date of placement of the order. IT&C reserves the right by written notice to the Buyer at any time prior to delivery, to increase the price of the goods to reflect any increased cost to IT&C (such as, without limitation, any foreign exchange fluctuation, alteration of duties, increase in costs from the manufacturer).
Unless otherwise agreed by IT&C in writing, payments shall be due within 14 days of invoice. Time shall be of the essence in relation to payments due. Pre-payment of all third party costs and/or cost of goods will be required before placement of any orders with third-parties and/or upstream suppliers.
Should the Buyer fail to pay any amount to IT&C on the due date for payment, IT&C reserves the right to require the Buyer to pay, and the Buyer shall be liable to pay on demand, interest on that amount at the daily rate of 3% above the unsecured retail interest rate charged by Westpac Banking Corporation Limited (or such other bank as IT&C may nominate) from time to time.
Notwithstanding anything else appearing in these Conditions, payment for all charges shall immediately become due and payable if the Buyer:-
a) fails to pay any charges when due under, or is otherwise in breach of, the Agreement or any other agreement between the Buyer and IT&C;
b) is an individual and a bankruptcy application is filed in relation to the Buyer;
c) is a body corporate and:
enters into any composition with its creditors, enters into liquidation, or suffers a receiver, a receiver and manager to be appointed in respect of all or part of its assets, or an application is made for, or an event occurs which would allow, any of such persons to be so appointed; or allows an administrator or similar officer to be appointed in respect of all or part of its assets, or an application is made for, or an event occurs which would allow, any of such persons to be so appointed.
d) any of the information provided to IT&C to establish the Buyer's credit status is, in IT&C's reasonable opinion, false or misleading in any material particular; and
e) any of the events referred to in paragraphs (a) or (c) occur in relation to a guarantor and a replacement guarantee in a form satisfactory to IT&C is not provided within 7 days of IT&C’s request.
The Buyer shall be liable without demand to reimburse IT&C for all bank fees incurred by IT&C in relation to cheques provided by the Buyer which are not accepted by the Buyer's bank when presented to it.
The Buyer shall be liable to reimburse IT&C for all debt recovery and legal fees incurred by IT&C in relation to overdue payments from the Buyer which are not received by iT&C within the agreed credit terms, set out in clause 4.1.
Any time or date named by IT&C for delivery is given as an estimate only, and IT&C shall not be liable to make good any damage or loss whether arising directly or indirectly out of delay in delivery. The Buyer shall supply such details as may be necessary (or required by IT&C) to complete delivery.
If the Buyer fails to take delivery of the goods or fails to give IT&C adequate delivery instructions then, without prejudice to other rights available to IT&C, IT&C may:-
store the goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) for storage; or
sell the goods at the best price readily obtainable and charge the Buyer for any shortfall below the agreed price.
The Buyer shall inspect the goods upon delivery and shall within 5 days of delivery give notice in writing to IT&C indicating why the goods are not in accordance with the order placed by the Buyer. Time is of the essence in relation to this notice. If the Buyer shall fail to give such notice the goods shall be deemed in all respects in accordance with the order and the Buyer shall be deemed to have accepted the goods.
Save as provided in this clause 7, IT&C shall not be liable to the Buyer or any person claiming under it in contract or in tort for, or in respect of, any direct, indirect or consequential loss, damage, expense or injury suffered by the Buyer or any other person, arising out of or relating to this Agreement, its performance or non-performance (including due to the negligence or willful default of IT&C), the goods or any error (whether negligent or not) in information supplied to the Buyer in connection with its subject matter.
IT&C warrants to the Buyer that goods delivered shall be free from defects in materials and workmanship on delivery. Further warranty may be applicable to the specific products which may be provided by the manufacturer or developer of the original hardware or software product.
IT&C reserves the right to charge any additional time needed to resolve 3rd party warranty claims; this would include but not limit to:-
A) liaising with original suppliers, manufacturers or developers.
B) restoring software or hardware configurations before during or after the original suppliers, manufacturer or developer has completed their portion of the warranty claim.
C) Any shipping or handling involved in the execution of the warranty claim.
The warranty contained in clause 7.2 is subject to the following conditions:-
A notice of complaint shall be sent by the Buyer to IT&C within a reasonable time of the defect becoming known to the Buyer, setting out the delivery date, such identification of the good as IT&C may require and the nature of the complaint; and
The relevant condition not having been caused by events (howsoever caused) after delivery.
Upon receipt of this material, IT&C shall review the complaint and if, in its reasonable opinion, a breach of warranty has occurred, IT&C shall deliver a replacement good. Save as provided in clause 7.4, IT&C's liability for breach of the warranty set out in clause 7.2 shall be limited in the manner set out in this clause 7.3.
Where conditions or warranties are implied or other rights are given in respect of the Agreement under the Trade Practices Act or other laws they are, to the extent permitted by such laws and subject to clause 7.2, excluded from this Agreement. Where those implied conditions or warranties are not able to be excluded, IT&C's liability for any breach of a condition or warranty shall, if and to the extent permitted by such laws, and subject to any qualifications appearing in such laws, be limited to, at IT&C's option, the replacement of the goods or the supply of equivalent goods or the payment of the costs of replacing the goods or of acquiring equivalent goods.
The Buyer shall keep IT&C indemnified in respect of all claims and demands against IT&C for any loss, injury, expense or damage arising howsoever (and including any claim or demand by a subsequent purchaser or consumer whether or not arising from the default, negligence or conduct of IT&C or its representatives), in relation to goods sold by IT&C to the Buyer.
Save as provided in clause 7, no liability is accepted by IT&C for any loss or damage caused directly or indirectly by any inaccuracy in any description of the goods sold to the Buyer.
8. Risk and Title
Risk of damage to or loss of the goods shall pass to the Buyer on delivery or, if the Buyer fails to take delivery, when IT&C tenders delivery. At such time, the Buyer shall assume all risk and liability for the goods, and for their use and storage.
No legal or equitable title to the goods shall pass to the Buyer until IT&C has received cleared funds from the Buyer in full payment for the goods as well as payment of all charges for goods previously supplied to the Buyer and due to IT&C.
Until the legal and equitable title to the goods passes to the Buyer, the Buyer shall:-
hold the goods as bailee of IT&C returnable at will and without prior demand by IT&C;
store the goods in such a manner as enables them to be readily identified and distinguished from all other goods held by the Buyer and where such other goods include similar goods previously supplied by IT&C to the Buyer and in respect of which title has passed to the Buyer then the Buyer shall mark the goods in respect of which title has not passed in an indelible and legible manner which enable the goods to be readily identified as goods held as bailee for IT&C;
upon demand by IT&C, deliver up the goods forthwith to IT&C; and
authorise and the Buyer authorises IT&C to enter upon the premises where the goods are stored for the purpose of taking possession thereof.
The rights contained in Clause 8 are without prejudice to the seller’s other rights and remedies. Any period of credit may be terminated by the seller by notice in writing and thereupon any amounts unpaid shall be immediately due and payable to the seller. Notwithstanding Clause 8 where any part of the invoice price of the goods is due and payable the seller may at its option elect to take any action to recover the unpaid invoice price as a liquidated sum. Any failure of the seller to so elect shall not be construed as a waiver of its right to make a later election to recover any unpaid invoice price.
The Buyer shall, if required by IT&C, arrange for its liability to IT&C to be guaranteed by third persons. This request may be imposed by IT&C at any time.
Notwithstanding that the Buyer has no right to require IT&C to sell goods to it, IT&C may upon the occurrence of any of the events set out in clause 4.3 decline to consider any further orders made by the Buyer and IT&C shall have the right forthwith to withhold delivery of goods subject to a pending order, and terminate this Agreement without prejudice to any claim or right IT&C may otherwise make or exercise. This Agreement shall terminate automatically upon the occurrence of any of the events set out in clause 4.3(c)(ii).
In particular and without prejudice to the generality of the foregoing IT&C shall (in addition to all other rights vested in it) be entitled to retake possession of all and any goods supplied in respect of which payment in full has not been made by the Buyer and the Buyer authorises IT&C to enter upon the premises where the goods are stored for the purpose of taking possession thereof.
Any indulgence, latitude or extension of time which either party may show towards to the other party in relation to any of the provisions of the Agreement or any matter or thing relating to it or arising from it shall not in any way prejudice or interfere with the first party's rights under the Agreement and shall not be claimed to constitute a waiver of it.
The Agreement shall be governed by the laws of New South Wales and the parties agree to submit to the jurisdiction of the courts of that State.
The relationship between the IT&C and the Buyer shall not be that of principal and agent, or that of partners, nor fiduciary, but that of seller and buyer and neither party shall, nor has power or authority to, conclude any contract or agreement or make any commitment, representation or warranty which binds the other or otherwise act in the name of or on behalf of the other. Subject to the provision of this Agreement, the Buyer shall distribute and otherwise make available the goods on its own account.
If any provision of this Agreement is held by any court or other competent authority to be void or unenforceable in whole or in part, the validity and enforceability of the remaining provisions shall not be affected.