CONDITIONS OF SALE
1. Meanings in these terms:
bankruptcy event means a person:
a. becomes an externally-administered body corporate
b. becomes an insolvent under administration or has steps taken against them to make them an insolvent under administration
c. has a controller appointed over any of its property
d. has a resolution passed for its winding up or liquidation
e. cannot pay its debts as and when they fall due
f. has proceedings brought against it under any bankruptcy or insolvency law and such proceedings are not discharged or stayed within 15 days, or
g. causes or is subject to any event that has analogous effect to any of the above (words italicised in this section have the meaning given in section 9 of the Corporations Act 2001).
claim means a demand, claim, action or proceeding made or brought by or against a party, however arising (including in contract or negligence) and whether present, unascertained, immediate, future or contingent.
contract means any contract for a supply from us to you.
customer goods means goods or equipment owned or provided by you to be incorporated in a supply.
data means plans, specifications, drawings, designs, manuals, technical data, documents and information provided in any form including verbally.
goods means any goods to be supplied under any contract formed under these terms.
GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999.
law means any applicable legislation, statute, regulation, order, and the general law.
liabilities means a claim, losses, liabilities, costs or expenses of any kind and however arising, including penalties, fines and interest whether present, unascertained, immediate, future or contingent.
Intellectual Property or IP means all industrial and intellectual property rights including:
a. copyright, including in computer software and source code, designs, manuals, development and performance documentation, marketing materials, implementation documentation and test results
b. circuit layout and design rights
c. trade marks (registered or unregistered)
d. all patents rights (registered or unregistered)
e. know-how, secret formulae and processes
f. proprietary knowledge and information
g. database rights and algorithms
h. all applications for registration relating to any of the above, and
i. all licences, consents and authorisations from third parties in respect of or related to any of the above.
month means a calendar month.
notice means written notice by post, facsimile or email.
PPSA means the Personal Properties Securities Act 2009.
quote means any written quote or written offer from us to you regardless of the title of the same.
RS software means our proprietary software (including as developed for you) and licensed to you under a contract.
services means services included in a supply under a contract.
schedule means our schedules of rates from time to time including the hourly rates for our staff with particular expertise, the price for any particular services and for our goods and software licensing.
software means, as the context dictates, the RS software and/or the third party software.
supply means our provision of goods and/or services to you or licensing of software as described or referred to in any contract.
third party software means any third party software we provide to you under a contract.
we or us means Resonate Systems Pty Ltd (ACN 168 964 930).
you means the person or legal entity specified in a quote.
Note: any other grammatical form of any of the above defined terms will have a corresponding meaning.
2. Interpretation In these terms:
a reference to “$” or “dollars” is to Australian dollars;
singular includes plural and vice versa;
reference to a person includes a corporation and partnership and vice versa;
headings do not affect interpretation;
no rule of construction applies to the disadvantage of a party because that party put forward a contract or any portion of it;
a reference to a clause means all subclauses of a clause unless otherwise specified;
a reference to materials means materials in a tangible or electronic form;
a reference to you includes your officers, employees and agents; and
if any part of a contract would be unenforceable, the provision must be read down to the extent necessary to avoid that result, and if the provision cannot be read down to that extent, it must be severed without affecting the validity and enforceability of the remainder of the contract.
1. A contract is formed if you:
a. accept a quote from us (in writing or electronically);
b. you request us to commence providing a supply and we elect to do so;
c. you accept a supply from us; or
d. you install, copy or otherwise use any software.
2. These terms:
a. apply to each contract;
b. together with our quote (if any) are the sole terms of each contract;
c. do not apply to a contract to the extent they are inconsistent with an applicable quote or are expressly excluded by an applicable quote; and
d. prevail over any terms put out by you including in any order, unless we expressly agree in writing.
3. None of our employees, agents or contractors may vary or add to these terms or a contract without the prior written authority of one of our directors.
4. Except as required by the mandatory operation of law, all implied terms and conditions are excluded from these terms and each contract.
5. If you enter into a contract as a trustee you agree that you enter into the contract in both your own capacity and as trustee of the trust.
6. We are under no obligation to accept an order from you or to enter into any contract for a supply under these terms.
4. Services and Goods
1. We will perform the services with due skill and care and engage suitably qualified employees and contractors to perform any services.
2. We may alter the range of services or goods we offer without notice to you.
3. If we agree to supply goods which subsequently are not readily available we may use substitute goods of comparable functionality and quality.
4. We reserve the right to determine how we provide the services under any contract. We may use agents or contractors to provide all or any part of the supply.
5. Quotes, Orders and Data
1. An order you give us is subject to our acceptance and we may decline an order. You may not cancel a contract, or delay delivery unless we agree in writing.
2. Unless a quote provides otherwise each quotes is valid for 30 days from the date of issue unless withdrawn or varied by us prior to our receipt of your notice of acceptance.
3. In preparing a quote you acknowledge that we materially rely on any description of the goods and/or services you require together with any data you provide to us. You also acknowledge that during the carrying out of a contract we materially rely on all information and data you provide to us. You warrant that any such information and data that you provide to us is complete, accurate and reliable and that we may rely on the same.
1. Our fee for the supply will be as specified in the quote. Our fee for a supply will be calculated by applying our then current schedule:
a. where we have not provided a fee in our quote
b. the supply is provided without a quote, or
c. the supply is outside the scope of the quote or agreed supply.
2. Invoices calculated on our schedule will include:
a. higher rates for supplies we agree to provide outside of our normal work hours and/or for urgent delivery of supplies;
b. different rates for different categories of staff;
c. goods at cost plus a percentage of the same; and
d. fees for our travel time and other costs (including air travel and accommodation and related expenses) for supplies carried out off our premises.
3. We may alter our schedule without notice to you but such changes will only apply to future contracts. We will send you a copy of our current schedule if you ask. Unless otherwise agreed in writing, where we agree to a variation to the supply (including the time of performance or completion date) then the offered price will be adjusted by applying our then current schedule to such variations.
4. Total prices quoted or estimated are exclusive of (unless otherwise stated) statutory or other fees, delivery costs, customs duties and other disbursements and expenses connected with the supply (including travel and accommodation costs incurred by our staff and contractors which will be charged based on our schedule) whether or not envisaged at the time the quote is prepared by us. We are entitled to include such amounts in any invoice we issue to you and you must pay such amounts within the time you are required to pay that invoice.
7. Price Adjustment
1. To compensate us for any loss, expense or increased costs we incur in making that supply as a result of any of the following we may increase our price (including where we have provided you with a fixed quote):
a. we are delayed for any reason from starting the supply on the date stated in the quote or if not so stated within 30 days of the contract being formed;
b. the data or description of the supply provided by you and relied upon by us:
i. to prepare a quote or in accepting an order is incomplete, misleading or incorrect (if so then on our request you must pay us an additional amount equal to the difference between the agreed price and what we would have quoted had the data supplied been accurate and complete), or
ii. as supplied by you in the course of the contract is incomplete, misleading or incorrect;
c. we agree to a request by you to make an additional supply or to vary the supply;
d. any increase to our cost for goods or third party software we require to make the supply over the price of the same as at the date of our quote or the acceptance of your order (including because the value of the Australian dollar falls against the value of a foreign currency which is applicable to our purchase of such goods);
e. any increase in costs or expenses incurred by us in making the supply arising from the change of any law (including the imposition of any new taxes or duties or increases to existing taxes or duties), and/or any increases in the costs of labour as at the date of our quote or the acceptance of your order;
f. any failure by you to provide data or any other information we reasonably require to enable us to make a supply; and/or
g. any breach by you of your obligations under these terms or a contract.
8. Invoicing and Payments
1. Unless a quote expressly provides otherwise you must pay us as set out in this clause. All payments to us must be made in Australian dollars.
2. Unless a quote provides otherwise:
a. you must pay for any software licenses prior to delivery, and
b. we may invoice you following the end of each month for supplies we have made in that prior month (to avoid doubt we may issue invoices for a month even if we have not delivered in full or any part the supply to you and such invoice will include any cost of goods incurred by us in that month).
3.Unless a quote provides otherwise you must pay our invoices in full within 14 days from the date of our invoice.
4. You may not deduct or set off from any amount due to us under a contract any amount (including a liability) you allege we owe you unless we agree in writing. An invoice is payable by you alone and under no circumstances may you withhold payment on the basis you are awaiting payment from any third party or request we seek payment directly from any third party. If at any time we allow you to pay an invoice by credit card or PalPay (or like means) you must also pay us a payment administration fee of 4%.
5. We may set off any amount we owe you under or in respect of any contract against any or all amounts you owe us under or in respect of any contract.
6. If payment is overdue, we may charge you interest at the Reverse Bank of Australia’s quoted cash rate plus 5% from the date of the default until we receive payment in full (this does not limit any other right we have arising from your default). We may apportion any part payments you make against any outstanding interest or principal as we may decide. We may also apportion any payments you make under one contract to amounts due under another contract.
7. If payment is overdue under any contract we may, without prejudice to any other rights available to us in respect of any or all contracts, cancel or suspend the delivery or performance of any supply. You must still pay us for any supply (or part thereof) delivered or performed under any such contracts
8. Payment is not deemed to be received until we receive cleared funds. A cheque is not deemed to be payment until it is accepted and cleared.
9. Unless expressly stated otherwise, the amounts payable under a contract or a quote are calculated or expressed exclusive of GST. If GST is or becomes payable for a supply under a contract, the amount payable for the supply must be increased by an amount equal to the GST payable on that supply. An amount payable under this clause must be paid at the same time the applicable invoice is paid and is in addition to the amount payable under the contract. If under any tax law deductions or withholdings are required to any amount payable to us you must pay to us such amount as will, after the deduction or withholding has been made, leave us with the same amount as we would be entitled to receive in the absence of such reduction or withholding.
9. Work on Site
1. You will ensure that all of your employees, contractors and agents who enter our premises comply with our occupational health and safety policies, procedures and protocols. Where our staff or contractors perform work on your premises you will ensure that the same are properly inducted into your health and safety procedures and you agree to provide a safe working environment for our staff and contractors.
10. Insurance and customer goods
1. You warrant that you have and will maintain public liability insurance and mandatory workers compensation insurance. You warrant that you have insurance in place for the full replacement or reinstatement value of all customer goods against loss or damage and that we are not required to insure customer goods. At all times risk in the customer goods remains with you. You agree that we are not your baliee in respect of the customer goods and you release us from any claims or liability arising from loss of or damage to the customer goods and indemnify us from any claims made in respect of the same. You agree to indemnify us against any liability we incur because you fail to comply with this clause.
11. Uncollected Goods
1. If you fail to take and accept delivery of goods or customer goods when they are in our opinion ready for delivery we may arrange for the storage of the same at your cost and expense and the same will be at your risk.
1. We may refuse to commence or continue any work on a supply without your prior written acceptance of our quote.
2. We will make every effort to fulfil orders and to comply with any delivery or completion date provided in the quote or otherwise agreed with you, but if our ability to do so is affected by circumstances or events beyond our control then we may:
a. elect to extend the time for fulfilment of the supply
b. alter the specifications for the supply so as to allow the substitution of equivalent goods and/or services; or
c. terminate the contract without liability for breach of the contract or otherwise and repay you any amounts you have paid to us which relate to supply which has not been completed.
3. We will be entitled to full payment for all goods which have been delivered and for any services which have been performed before termination under this clause. We will have no liability to you including for any consequential, contingent, special or indirect damages (including resulting from the loss of business, revenue or profit or reputation) which you incur arising from any delay in making the supply or the early termination of any contract under this clause.
1. If the supply involves the supply of goods or services outside of Australia then unless otherwise agreed in writing you must to pay for the supply in full by cleared funds within 10 days prior to the expected transport date of the goods (including any freight costs, duties and charges incurred or paid by us) or delivery of the final services.
14. Delivery, Risk and Returns
1. Unless a quote provides otherwise goods will be supplied to you from our premises stated on our quote. Where goods are:
a. collected by you or your agents or contractors, the goods are deemed to be delivered to you when collected from our premises, or
b. transported by us to a site designated by you, the goods are deemed to be delivered to you when they arrive at the same. You must insure all goods on and from the delivery of the same to you. Risk in the goods passes to you on delivery.
2. You are deemed to have accepted the goods 48 hours after they are delivered to you unless you give us notice that you do not accept the goods and you have the right to do so under the contract. 14.3 To the extent allowed by law, we do not warrant that spare parts will be available for any goods we provide to you.
15. Retention of Title
1. Title to the goods does not pass to you until we receive payment for the goods in full. Until you make full payment you are to keep the goods in their original condition for us in your capacity as trustee. If required you must store the goods in such a way that they can be identified as our goods. We may enter your premises to take possession of goods where payment to us is overdue. If we take possession of the goods and re-sell the goods we must pay you such amount (if any) received by us exceeding the amount owed by you under the contract plus our costs in relation to the sale and storage of the goods.
2. Despite the above, you may sell the goods to a third party in the normal course of your business provided that:
a. where you are paid by that third party, you hold the whole of the proceeds of sale on trust for us and
b. where you are not paid by that third party, you will at our option assign your claim against that third party to us on notice from us. You will pay the stamp duty (if any) on any such assignment. For the purpose of perfecting any such assignment you irrevocably appoint us as your agent.
3. For the purposes of clause 15.2, you hold the book debt arising on the sale of goods, or on payment, the proceeds of sale upon trust for us (but only to the extent of the monies and any outstanding interest owing to us in respect of the contract). We will have first right to payment of our claim from the book debt in priority to any other creditors. The balance of the book debt or proceeds belong to you. If you make new goods from our goods using other goods or materials, or if our goods in any way become part of any other goods, we own these new goods until you pay us in full. The ownership of such new goods, (whether finished or not) is transferred to us when our goods are converted into new goods, or become part of other goods.
4. If we determine that a contract (or a transaction in connection with it) is or contains a security interest for the purposes of the PPSA (including under this retention of title provision or the chattel mortgage provision in these terms), you agree to do anything (such as obtaining consents, signing and producing documents, getting documents completed and signed and supplying information) which we ask and consider necessary for the purposes of:
a. ensuring that the security interest is enforceable, perfected and otherwise effective
b. enabling us to apply for any registration, or give any notification, in connection with the security interest so that the security interest has the priority required by us; or
c. enabling us to exercise our rights in connection with the security interest.
5. You agree that nothing in sections 130 or 143 of the PPSA will apply to any contract, or the security under a contract.
6. You agree to waive your right to do any of the following:
a. receive notice of removal of an accession under section 95 of the PPSA
b. receive notice of an intention to seize collateral under section 123 of the PPSA
c. receive notice of disposal of collateral under section 130 of the PPSA
d. receive a statement of account if there is no disposal under section 130(4) of the PPSA
e. receive notice of retention of collateral under section 135 of the PPSA
f. redeem the collateral under section 142 of the PPSA
g. reinstate the security agreement under section 143 of the PPSA
h. object to the purchase of the collateral by the secured party under section 129 of the PPSA; and
i. receive a statement of account under section 132(3)(d) of the PPSA following a disposal showing the amounts paid to other secured parties and whether security interests held by other secured parties have been discharged.
16. Resonate software
1. On you paying the licence fee specified in the quote, we grant you a non-exclusive, non-transferable licence to use the RS software and related documentation (documentation) for the duration specified in the quote (if not specified, then a perpetual licence) for the purposes specified in the quote (if not specified, then for your own internal business purposes) on the terms of the quote (Licence).
2. We will provide and make available to you the documentation. Ownership in the RS software and documentation at all times remains with us.
3. You must ensure that you have and maintain any software or hardware required to operate and use the RS software.
4. If included in a quote we will install the RS software for you and provide you with specified training in respect of the use and operation of the RS software. Except as set below, you must not copy the RS software. You:
a. may make such number of copies of the RS software as is necessary to serve your system back-up and security needs. All copies of the RS software and the media in which the copies are contained will be deemed to be our property;
b. will notify us immediately on becoming aware of any unauthorised use or copying of the RS software;
c. must not use the documentation without our prior written consent for any purpose other than that for which they are expressly provided; and
d. must not transfer, sell, hire, sub-licence or grant any third party the right to use the RS software or the documentation.
5. You agree to use your best endeavours to ensure that the RS software and documentation is secure and protected from access or misuse by any unauthorised persons. The Licence does not grant any right to adopt or modify, dissemble or decompile the RS software or make improvements to the RS software (Modifications) without our prior consent. We will immediately own, on creation, any Modifications you make (whether authorised by us or not) and the contract and Licence will apply to the same. You must immediately provide us with copies of all Modifications (including source code) and explanations as to how the same works.
6. You indemnify us against all liabilities, damages and losses incurred by us from any Modifications (whether authorised by us or not), including for any infringement by the same of the intellectual property rights of third parties. You must not:
a. reverse assemble, reverse compile or reverse engineer the RS software; or
b. use any knowledge gained from the use of the RS software to create or cause to be created software to replace the RS software.
7. No provision in this contract will be interpreted as an attempt to exclude or limit, or having the effect of excluding or limiting, the operation of subsection 47B(3) or sections 47C, 47D, 47E or 47F of the Copyright Act 1968 to the extent the same prohibit any such exclusion or limit.
17. Third party software
1. Any third party software provided under a contract:
2. is supplied on the licence terms of the vendor of the third party software and you agree to comply strictly with the terms of the same; and
3. is, despite any other provision in these terms, provided solely with the warranties provided by the licence terms of the vendor of the third party software.
18. Intellectual Property
1. We retain sole ownership of all IP in any materials we use or create in carrying out the supply.
2. You will retain ownership of all IP in any materials you provide to us. Unless otherwise agreed in writing, you grant us a non-exclusive licence at no cost to use your IP to can carry out the supply.
3. Unless expressly stated in our quote on paying our invoices in full we will (for no additional cost) grant you a perpetual, non-exclusive, non-transferable licence to use any of our IP which is used or created in making the supply for the purposes of the supply (if no purpose is expressed or clearly implied then the purpose will be deemed to be for internal use in your business) (IP Licence) (to avoid doubt, the IP Licence does not apply to RS software which is governed by clause 16). To avoid doubt, you must not sell, hire, sub-licence or grant any third party the right to use our IP which is the subject of the IP Licence. You may only transfer the IP Licence with our prior consent which we will not unreasonably withhold. You will not disclose to any third party any IP owned or created by us without our prior written consent.
4. You warrant to us that you own or have appropriate legal rights in all IP in the data and materials you provide to us and that the same and any customer goods will not infringe the IP rights of any third party. You indemnify us against any claim and liability (including legal fees on an indemnity basis) which we may incur arising out of any breach by you of the warranties in this clause 18.4.
5. You will provide us with written notice within 10 days of becoming aware of any claim that the use of the data or materials provided to and used by us in a supply under a contract infringe any IP rights of any third party. Such notice must set out full details of the claim in so far as they are available to you.
6. If any party brings a claim against you alleging our IP or the software infringes their IP rights you agree to:
a. notify us in writing as soon as practicable of any such alleged infringement
b. give us the option to conduct the defence of such a claim, including negotiations for settlement or compromise prior to the institution of legal proceedings
c. not admit, handle, deal with or compromise any claim except with our prior written consent
d. follow all reasonable directions we may provide in relation to any claim
e. provide us with reasonable assistance in conducting the defence of such a claim
f. permit us to modify, alter or substitute the infringing part of the supply, at our expense, to render the supply non-infringing; and
g. authorise us to procure for you the authority to continue to use the supply.
Where the infringement claim referred to in this clause 18.6 arises in whole or in part because of our use of your IP in the supply or from the use of any improvements we have made to your IP, we may exercise any right we have under this clause 18.6 but the costs and expenses we incur in doing so must be paid by you and we continue in all cases to retain our rights under clause 18.4.
7. If we are unable to resolve the dispute promptly to our satisfaction or do not obtain the things specified in clauses 18.6(f) or (g) on terms acceptable to us we may direct that you cease using the relevant IP (including software) or terminate the contract. If we do so, we will pay you compensation reasonably determined by us up to an amount not exceeding the amount you paid us under the contract in respect of the same.
19. Confidential Information
1. A party (recipient) must use or disclose confidential information provided by or about the other party (discloser) only:
a. to perform its obligations under a contract
b. as required by the mandatory operation of law
c. to its professional advisors (bankers, accountants, insurers, lawyers) for a proper purpose
d. as required by the rules of any stock exchange to which a party is subject; or
e. with the other party’s prior written consent.
2. You agree that we own all confidential information that we provide to you (including in respect of a tender or our pricing). You agree to return all of our confidential information on demand.
3. The obligations imposed under this clause 19 survive the termination of a contract.
4. In this clause confidential information means any confidential or proprietary information (in any form including copies and notes) obtained in connection with a contract (including in negotiating a contract). It however excludes:
i. information which is or becomes a matter of public record other than by a breach of this clause
ii. information which the discloser certifies in writing as not being confidential information; and
iii. information which the recipient proves it lawfully possessed before obtaining it in connection with a contract.
5. Following completion of any supply, we will, upon receiving a request in writing, return to you any data you provide to us as soon as reasonably practicable. We will be entitled to retain copies of the data as part of our internal business records as required by law or good accepted business practices.
20. Instructions and Communications
1. Unless you give us notice to the contrary, we will assume that:
a. all of your employees, directors and officers who give us instructions are authorised to do so and that we may act on oral instructions
b. we may communicate with you by e-mail. We cannot guarantee that such electronic communications will be secure or free from infection and we will have no liability for any loss or damage caused by electronic communications.
2. We are not liable to you for any damage or loss suffered by you (including indirect or consequential loss or damage) which results from us following your directions or specifications in making the supply. You must, at your own expense, provide us with all instructions and data reasonably required to enable us to properly perform our obligations under any contract. You agree to promptly respond in full to any queries or directions we require to carry out the supply. You agree to provide to us at no expense access to any of your facilities to the extent we reasonably require to make the supply.
21. No Poaching
1. Subject to any quote, you agree that you will not, without our prior written consent, directly or indirectly solicit, employ or engage any of our staff during the term of a contract and for a period of 12 months from the completion of a contract if such staff have been involved in providing the supply to you.
22. Warranties and Liability
1. This clause is subject to clause 31 which deals with the Australian Consumer Law.
2. We warrant that:
a. we own or have the full power to grant you the Licence
b. the RS software and documentation does not infringe any third party’s IP rights.
3. We warrant that the RS software initially provided to you (and media on which the same is contained) will be free from significant programming and operation errors and perform substantially in accordance with the specification in the documentation where the RS software is used in conformity with a quote and in the environment contemplated by a quote and the documentation (Limited Software Warranty).
4. The Limited Software Warranty does not extend to substantial non-performance of the RS software which arises from problems with the interoperability of the RS software with other software and/or your hardware (including changes by you to your hardware or software, including new versions of your existing software), except to the extent we have otherwise expressly agreed to in a quote.
5. The Limited Software Warranty is valid for a period of 90 days from the date you first install the RS software (Software Warranty Period). The installation date being deemed to be the sooner of the date you install the RS software, the date you commence using the software, or 10 days after we provides the RS software to you. During the Software Warranty Period we will resolve at our cost any significant programming and operation errors with the performance of the RS software from that set out in the documentation so long as you promptly notify us during the Software Warranty Period (including full details of the nature of the error of the RS software). Unless you give us a notice within the Software Warranty Period, you will be deemed to have given us notice that the Software complies with Software Limited Warranty. We warrant that any goods (excluding the RS software and third party software) will be free from defects in materials and workmanship that cause the goods to fail or substantially perform to specifications of Resonate (or third party manufacturer) for a period of 12 months (Goods Warranty Period) from the date the goods are delivered to you (Goods Limited Warranty). During the Goods Warranty Period if the goods are or become defective in materials and workmanship that cause the goods to fail or substantially fail to perform to specifications and you give us notice of the same, we will repair or replace the applicable goods or refund the fees you have paid for the goods. You may give us a notice by post or email - the details of which are set out in this clause below.
6. RESONATE SYSTEMS PTY LTD (ACN 120 735 408) GIVES THE SOFTWARE LIMITED WARRANTY and GOODS LIMITED WARRANTY and has the following contact details Level 1, 23 Peel Street, Adelaide SA 5000, Australia, (08) 8155 5888, email: email@example.com.
7. The Software Limited Warranty and Goods Limited Warranty are given in addition to other rights or remedies you may have under a law in relation to goods or services to which the Software Limited Warranty or Goods Limited Warranty relate. The Goods Limited Warranty and Software Limited Warranty do not apply to damage or destruction to the goods or RS software caused by accident, wilful misconduct, acts of god, improper use or handling, or use of the same beyond or contrary to stated specifications of use. Resonate will pay for the freight costs of goods subject to the Goods Limited Warranty other than where Resonate acting reasonably determines that your claim under the Goods Limited Warranty is not valid.
8. Except as provided in this clause we disclaim and exclude all conditions and warranties, expressed or implied (including any rights and remedies) imposed or conferred by statute, common law, equity, trade custom or usage.
9. We will not be liable to you for any economic, consequential, contingent, special or indirect damages (including resulting from the loss of business, revenue or profit or reputation) with respect to claims arising in connection to a contract, including any act or omission by us in performing a contract or for a breach of contract or for negligence or under any other theory of law (even if the risk of such loss or damage was known to us).
10. Our liability for a breach of a condition, warranty or guarantee of supply imposed by law (including any imposed or implied under Schedule 2 (The Australian Consumer Law) of the Competition and Consumer Act 2010 (Australian Consumer Law) but subject always to section 64A of the Australian Consumer Law), or which we expressly provide or are held to have impliedly provided in making a supply is limited to (as we may decide):
a. in the case of goods
i. the replacement of the goods or the supply of equivalent goods, or
ii. the repair of the goods, or
iii. the payment of the cost of replacing the goods or of acquiring equivalent goods, or
iv. the payment of the cost of having the goods repaired; and
b. in the case of services
i. the supplying of the services again, or
ii. the payment of the cost of having the services supplied again.
c. Our liability to you for all claims arising under or in connection with the contract (whether made in contract, tort or under a statutory provision) that are not caught by clause 22.9 is limited to a maximum amount equal to the total amount you have paid to us for the applicable goods or services to which the claim relates. You agree that:
a. this is a genuine pre-estimate of your likely liability arising from a breach by us of a contract, our acts or omissions or negligence
b. if this clause was not included then either the terms of the contract on which we would have agreed to provide the supply would have been substantially different (including an increase in price).
d. In no circumstances will the amount of our liability to you exceed the amount stated in the applicable insurance policy (if any) held by us for that type of claim.
e. Where you suffer liability as the result of partly your fault and partly our fault, the amount recoverable by you from us (if any) is to be reduced to such extent as the Court thinks just and equitable having regard to your contribution to the overall fault for such liability. Where you suffer liability for which we are jointly and severally liable with any third party, the extent to which such liability is recoverable by you from us, as opposed to the third party, will be limited to such extent that the Court thinks to be in proportion to our contribution to the overall fault for such liability.
f. All Australian laws and international treaties, conventions and applicable laws which seek to impose terms on the supply of goods and/or services which are capable of exclusion are excluded from each contract.
g. If any goods supplied by us are manufactured by a third party and have a manufacturer’s warranty we will, to the extent possible on your request assign the same to you or enforce the same on your instructions (subject to you indemnifying us in full for the costs and expenses in respect of the same including making any payments we require in advance in respect of any claims you ask us to bring against the manufacturer and you entering into deed on terms acceptable to us in respect of such litigation).
h. The goods and software is not designed or intended to be used in life dependant or safety critical situations or systems or in hazardous environments requiring fail safe performance (such as aircraft navigation or control, medical services, software or devices or power plants) (High Risk Use). You warrant that you will not use the goods or software in High Risk Use or make the same available for such use and you release and indemnify us from all and any claims arising from such High Risk Use of the goods or software.
11. Selection of Supply
1. We are not liable to you in respect of defects or damage to the goods after delivery to you arising from:
a. design work for a supply done by others;
b. unauthorised alterations to the goods; or
c. the incorrect or negligent handling, disregard of operating and/or maintenance instructions, overloading, unsuitable operating conditions, or faulty or negligent storage, engineering, or maintenance work which is not carried out by us.
2. You agree to indemnify us from any claims by third parties in respect of a supply (including any claims by third parties that the goods are defective, not suitable for their intended use or because the goods do not have the characteristics required by such third parties).
1. Before entering into any contract, you warrant to us that:
i. you are the legal and beneficial owner of any customer goods; or
ii. that you have authority or permission of all persons having a legal or equitable interest in the customer goods to enable us to provide a supply under a contract without incurring any liability;
b. you have properly and accurately described the supply you require us to make; and
c. you have informed us of all issues that are within your actual knowledge that may pose a risk or danger to us in making a supply under these terms.
13. Indemnity and Costs
1. You indemnify us against any claim or liability (including legal fees on an indemnity basis) which we may incur arising out of any breach by you of the contract or the warranties provided by you under clause 24 or otherwise provided under these terms or from any negligence or wrongful act or omission by you.
2. You must pay us all our costs (on an indemnity basis) incurred in the recovery of monies owing by you or in otherwise enforcing our rights against you under a contract.
1. We may terminate or suspend all or any contracts by notice to you if:
a. you fail to pay any amount in full within 14 days of the due date under a contract
b. you breach any term or condition in a contract and fail to remedy that breach within 14 days of notice from us or the breach can not be remedied
c. you become subject to a bankruptcy event
d. a party seeks to enforce a security interest against the whole or substantial part of your assets; and/or
e. there is, in our opinion, a material adverse change in your financial position that gives us reasonable grounds for believing that you may be unable to fully and promptly perform your obligations under a contract.
2. Termination does not affect any of our rights or remedies existing before termination or arising from termination.
15. Force Majeure
1. We will not be liable for delay or failure to perform any of our obligations under a contract to the extent that such delay or failure is caused by a force majeure event.
2. A force majeure event means any circumstance not within our direct or reasonable control including labour disputes, obtaining labour, materials or goods, destruction or damage to our premises or a relevant work site, malfunction, breakdown or damage to our plant or equipment, breach of contract, default or insolvency of any third party, an act, omission or delay by government body (including in respect of the approval or issue of any certificate required in respect of the supply under applicable law), terrorism, disruption to the supply of power, gas, water, electronic or telecommunication services, civil disorder, the weather or other natural events.
3. We may terminate a contract 30 days after the occurrence of a force majeure event if in our opinion we are unable to perform the contract or can only perform the contract at a loss due to the effects of the force majeure event.
16. Other Matters
1. You may not assign your rights under a contract with us without our prior written consent. A contract can only be amended by agreement in writing. None of our sub-contractors has authority to agree to any variation of the contract or any supply under it on our behalf. Unless otherwise provided in a contract, a party must pay its own costs and expenses in carrying out its obligations. We may only waive our rights under a contract by written notice to you and such a waiver is limited to the specific instance to which it relates and to the specific purpose for which it is given.
17. Law and Jurisdiction
1. These terms and each contract are governed by South Australian law and any dispute arising in connection with a contract or these terms is subject to the non-exclusive jurisdiction of the courts of South Australia (and the Federal Court of Australia (Adelaide Registry)). We are entitled to bring proceedings in any court having jurisdiction (including any court outside of Australia where the supply is being made) in respect of any matter connected with a contract to efficiently enforce a contract and to protect our rights. You agree to consent to the recording, entry or acceptance of any judgement, arbitration decision or order we obtain in the courts of the jurisdiction where the supply is made or were you reside or are registered.
18. Dispute Resolution
1. If a dispute arises between the parties in respect of or related to a contract the party claiming that a dispute has arisen (complainant), must give written notice to the other party to the dispute specifying:
a. the nature of the dispute
b. what outcome the complainant wants; and
c. what action the complainant thinks will settle the dispute (dispute notice).
2. On receipt of the dispute notice, every effort must be made by both parties to resolve the dispute by mutual negotiation and to facilitate the same a senior officer of each party will meet or discuss the matter by telephone. If the parties are unable to resolve the dispute within 10 days of receipt of the dispute notice (or such further period as agreed between the parties) then either party may refer the matter to arbitration as set out in this clause even if a meeting between senior officers of each party has not occurred.
3. Arbitration will be effected by an arbitrator agreed between the parties in writing and if not agreed within 5 days of a party putting forward a suggested arbitrator then by an arbitrator to be appointed by the President for the time being of The Institute of Arbitrators and Mediators Australia through the South Australian Chapter Coordinator (which such arbitrator must have at least 7 years continuous experience in complex contractual disputes). The arbitration will be conducted in South Australia and in accordance with Rules for Fast Track Arbitration published by the Institute of Arbitrators and Mediators Australia. Nothing in this clause 30 will prejudice the right of a party to institute proceedings to enforce any statutory right or to seek injunctive relief in respect of a dispute or any matter arising under a contract or to exercise a right under that contract (including in respect of termination).
19. Australian Consumer Law
1. Subject to this clause, our goods (including software) come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. Any guarantees referred to in this clause 31.1 do not apply where you are not a “consumer” under the applicable contract within the meaning of section 3 of the Australian Consumer Law. To avoid doubt, if you do not acquire goods or services as a “consumer” as defined in the Australian Consumer Law, the only warranties against defects you will be entitled to are those otherwise imposed by the mandatory operation of law or contained within a contract (if any).
2. To the extent any supply we make to you is as a “repairer” as defined in section 103 of the Australian Consumer Law we give you notice that:
a. goods presented for repair may be replaced by refurbished goods of the same type rather than being repaired;
b. refurbished parts may be used to repair the goods; and
c. if goods to be repaired are capable of retaining “user-generated data” (as defined under the regulations the repair of the goods may result in the loss of the same). In this clause “regulations” means regulations made under section 139G of the Competition and Consumer Act 2010.
Resonate Systems Pty Ltd (ACN 168 964 930)