These are the standard trading terms governing the supply of Goods and/or Services by Netlogyx Technology Specialists Pty Ltd (“Netlogyx”, “we” or “us”) of: Unit 1A, 24 Traders Way, Currumbin Qld 4223; (07) 5520 1211; and
1. General
1.1 These standard trading terms apply to all purchases of Goods or Services by a customer (“you” or “Customer”) from us. They are supplemented by any additional trading terms published by us and applicable at the time of purchase. We expressly reject any terms you propose that vary or add to our trading terms.
1.2 These standard trading terms can be varied only in accordance with either changes or additions published by us from time to time about these standard trading terms or by written agreement between us and you expressly stating that the agreement varies these standard trading terms. The updated trading terms do not apply to any Goods or Services you have already ordered from us and we have agreed to supply.
1.3 These trading terms apply notwithstanding any forbearance or failure by us to enforce any of the terms, any course of conduct by the parties and despite any industry practice to the contrary.
2. Orders
2.1 We will typically render a quote for any Goods or Services you request from us.
2.2 You can accept that quote within 7 days of receiving it (or in any other way acceptable to us). By accepting a quote, you thereby accept these trading terms.
2.3 Subject to clauses 2.4, 2.7 and 3.7, upon accepting our quote within 7 days, you are obliged to purchase the Goods or Services set out in the quote.
2.4 Despite clause 2.3, we may in exceptional circumstances (such as a change of pricing from a supplier) cancel the order for Goods or Services that you accepted. If we do so we will notify you.
2.5 If you do not accept our quote in 7 days, then if you subsequently seek to accept that quote we will either confirm that the quote is open for acceptance (in which case you are obliged to purchase the Goods or Services set out in the quote) or notify you that the quote is not available for acceptance (and we may issue a new quote to you).
2.6 Upon a valid acceptance of a quote, we will specify the intended delivery date or date for rendering the services. Acceptance is subject to you complying with clause 3.7 (if applicable).
2.7 Notwithstanding clause 2.3, at your request we may, in our discretion, allow you to return any Goods. You must not return any Goods to us until we have authorised you to return them. You must deliver to us at your cost Goods returned for credit undamaged and accompanied by notice setting out the return authorisation number, the original invoice number, the date of purchase and the reason for the return.
2.8 We can cancel an order for Goods or Services if you are late in paying for any prior or current delivery of Goods or Services or have otherwise breached these trading terms, you are insolvent or enter into any form of bankruptcy or external administration or bankruptcy.
3. Price
3.1 Prices are subject to change and availability.
3.2 The price for the Goods or Services is the price applicable as set out in the quote (if accepted within 7 days) or at the time the Goods are delivered to you or Services are rendered to you.
3.3 At or before the time we deliver the Goods or render the Services to you, we will invoice you for the Goods or Services. We may require a deposit or payment in full before Goods are dispatched, or the Services are rendered, to you.
3.4 You must pay for the Goods or Services within the time indicated in the invoice. Your payment must be made without any set-off, discount or by way of exchange of your goods or services.
3.5 The price for the Goods excludes the cost of freight; if the quote or invoice indicates, we will charge you for freight for all deliveries of Goods.
3.6 You must pay us in AUD$.
3.7 If we request that you provide us security for payment (or replacement security from time to time) then you must provide us the security before we are required to deliver any Goods or render any Services ordered by you.
3.8 If you are late in paying for the Goods or Services, then you must also pay to us interest at the monthly rate of 1.5% (compounding monthly). You hereby indemnify us for all costs incurred arising from your default, including all legal costs.
3.9 You must inform us in writing of any discrepancies in our invoices within 7 days of the invoice date.
3.10 The price for the Goods or Services is exclusive of GST. You must pay all GST arising from the supply of the Goods or Services to you, including delivery.
3.11 Payment can be made by cash, or by cheque, or by bank cheque, or by credit card (but we may in addition to the price charge you the fees charged by the credit card provider to us), or by electronic funds transfer to our bank account (BSB 484799 Acc # 604956702), or by any other method as agreed to between the Customer and Netlogyx.
4. Delivery
4.1 We will arrange delivery of the Goods or the time and place to render the Services to you.
4.2 We make all statements or forecasts of delivery times in good faith, but these are estimates only. We will render the Services at the time indicated in our quote or other communication with you or otherwise at a reasonable time.
4.3 You must notify us within 7 days after delivery of any shortages in the quantity or quality of Goods delivered or dissatisfaction with the Services rendered. We will investigate your claim within a reasonable time. If we are satisfied that there was a shortage or quality issue, then we will make it up (and this is the maximum extent of our potential liability).
4.4 To the maximum extent permitted by law, we are not liable to you for any loss or damage arising directly or indirectly from any delay in delivery of, or failure to deliver, the Goods or any delay in rendering of, or failure to render, the Services. If we are not able to deliver the Goods or render the Services to you, then we will notify you.
4.5 We reserve the right to dispatch your order in one delivery or by instalments. Where we deliver in instalments, we will invoice you for each instalment delivered. If we fail to deliver any instalment this does not entitle you to repudiate any remaining instalments.
5. Access to computers and systems
5.1 In providing the Goods or Services to you, we are likely to require access (including knowing and having the ability to set and reset passwords) to your computers and their operating and other software and databases (Computer Systems). You hereby irrevocably consent to us having that access.
5.2 We agree to use that access only in providing the Goods and Services (or other Services you request from time to time) to you or as otherwise contemplated by these terms. We also agree to keep our ability to access your Computers Systems reasonably secure and to treat the information in your Computer Systems confidentially.
5.3 If you do not pay our invoice according to its terms then we reserve the right, and you hereby irrevocably consent to us, without limiting other remedies available to us, to access your Computer Systems and to:
(a) Disable, delete or turn off the functionality of any software or programs that we have installed that you have not paid for in full; and/or
(b) Change passwords to your Computer Systems (including to a password not known to you),
until our invoice is paid in full (and if paid in full in due course, we may charge you our standard fee to reinstall or enable access to that software again and can require payment of this before doing so).
6. Title & Risk
6.1 The Goods are at your risk (including responsibility for insurance, or transit insurance) when they are first in your possession or the possession of the applicable courier or delivery company, who are acting as your agent.
6.2 Until you have paid to us the price for the Goods (in cleared funds in our nominated bank account) supplied under each invoice:
(a) We are and remain the legal and equitable owner of the Goods;
(b) You hold the Goods as a fiduciary bailee for us and you must store the Goods safely; and
(c) you grant to us, our employees and authorised representatives an irrevocable licence to enter your premises (or any other premises either under your control or where the Goods are stored on behalf of you) at any time to inspect the Goods and, if you default in paying for those Goods, to use reasonable force to take possession of the Goods without liability for trespass, negligence, payment of any compensation to you, another person or otherwise. Any exercise of this right is without prejudice to any other rights we may have against you, including the right at all times to make a claim against you for the invoiced price of the Goods, when due and payable.
6.3 Clause 6.2 also applies until you have paid all monies owing to us on any account whatsoever, including any costs incurred by us because of your failure to pay or late payment of any such monies and the costs incurred by us in recovering the Goods from you.
6.4 When we receive payments from you, we are entitled to allocate them to outstanding invoices as we see fit.
6.5 If you pay for Goods or Services by cheque, then payment only occurs when all cheques have been presented and cleared in full.
7.1 You acknowledge and agree:
(a) that you grant us a Security Interest in the Goods by virtue of the retention of title under clause 6;
(b) the Security Interest secures the purchase price for all Goods and Services supplied to you by us;
(c) the Security Interest attaches to the Goods purchased by you from us at the time risk in the Goods passes to you; and
(d) that we are entitled to register the Security Interest pursuant to the PPS Law.
7.2 To avoid any doubt, the Parties intend this document to create a purchase money security interest in the Goods for the purposes of the PPS Law.
7.3 The Security Interest ranks in priority ahead of all other Security Interests over the Goods.
7.4 You agree to do anything (such as obtaining consents, completing, signing and producing documents and supplying information) which we consider necessary for the purpose 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 (including registering a Financing Statement or Financing Change Statement on the PPSR as a Security Interest and a Purchase Money Security Interest pursuant to the PPSA), in connection with the Security Interest so that it has the priority required by us;
(c) enabling us to exercise any powers in connection with the Security Interest; and
(d) obtaining possession or control of any Goods for the purpose of perfecting any Security Interest in the Goods by possession or control for the purposes of the PPS Law.
7.5 You agree not to change your name, or any other details required on the PPSR, without first notifying us in writing.
7.6 Without limiting any other provision of this document, you waive your right to receive any Verification Statement (or notice of any Verification Statement) in respect of any Financing Statement or Financing Change Statement relating to any Security Interest created under this document.
7.7 To the maximum extent permitted by law, you waive any right you may have pursuant to, and hereby contract out of the following sections of the PPSA: Section 95 (notice of removal of accession) to the extent it requires us to provide you with a notice, Section 125 (obligation to dispose of or retain collateral), Section 130 (notice of disposal) to the extent it requires us to provide you with a notice, Section 132(4) (statement of account if no disposal), Section 135 (notice of retention), Section 142 (redemption of collateral) and 143 (reinstatement of security agreement).
7.8 You and we agree that subject to section 275(7) of the PPSA neither of us will disclose information of the kind described in section 275(1) of the PPSA in response to a request made pursuant to section 275(1) of the PPSA or otherwise.
7.9 You agree to pay our costs of any discharge or necessary amendment of any Financing Statement or Financing Change Statement.
8. Guarantee
8.1 We guarantee that the Goods are of acceptable quality as defined in the Australian Consumer Law.
8.2 We guarantee that the Services will be rendered with due care and skill.
8.3 Unless you make known to us that the services are being acquired for a particular purpose or the result you wish the services to achieve, then we make no guarantee that the services are fit for any particular purpose or to achieve any particular result.
8.4 The guarantee in clause 8.1 operates for the period (if any) specified for any particular Good in the supplier’s written materials that accompany them or, if not specified, for either 6 months or the period allowed in the Australian Consumer Law (as if you are a consumer). The guarantee in clause 8.2 or 8.3 operates for 6 months or the period allowed in the Australian Consumer Law (as if you are a consumer).
8.5 If within 7 days of receipt of the Goods or us having rendered the Services you believe any Goods or Services do not conform to our warranty, then please contact us at our address, phone number or email address listed at the start of these trading terms.
8.6 Following contact from you pursuant to clause 8.5, if we believe that any particular Goods do not conform to the guarantee in clause 8.1, then:
(a) at our request (but not otherwise), you must send that Good to us (at your cost), at our address listed at the start of these trading terms, together with the original invoice and in the original packaging; and
(b) if we agree that the Good does not conform to our warranty, we will (at our option) repair or replace that Good and return it to you (at our cost) or provide you with a refund.
8.7 Following contact from you pursuant to clause 8.5, if we believe that any Services did not conform to the guarantee in clause 8.2 or 8.3, then we will render the Services again.
8.8 To the maximum extent permitted by law:
(a) for Goods, us repairing, replacing or providing a refund for the Goods pursuant to clause 8.6(b) is the limit of our liability to you; or
(b) for Services, us supplying the Services again or payment of the cost of having the Services supplied again is the limit of our liability to you; and
(c) we are not liable to you or any other person, whether in contract, tort or otherwise, for more than the price paid by you for the Goods or of having the Services supplied again.
8.9 This warranty does not apply, and we are not obliged to repair, replace or provide a refund for any Goods if:
(a) the Goods were damaged after risk in them passes to you for a reason not related to a defect, or if the Goods are lost, destroyed or disposed of;
(b) you or another person undertakes any unauthorised repairs or alterations to the Goods; or
(c) the Goods are damaged due to misuse, accident or neglect by you or you do not follow any applicable care instructions.
8.10 To the maximum extent permitted by law, we are not liable in any circumstances for:
(a) any injury, damage or loss, including consequential damage or loss (including without limitation loss of market, loss of profit or loss of contracts) whether arising directly or indirectly, whether arising in contract, tort, in equity or on some other basis, to people or property arising out of us supplying the Goods or rendering the Services to you, including because of any latent or other defects therein; or
(b) any loss of or damage to the Goods, or caused by the Goods, whilst in transit.
8.11 Mandatory Statement in favour of Australian Consumers:
“Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service you are entitled:
• to cancel your service contract with us; and
• to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done, then you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.”
8.12 The benefits to you pursuant to this clause are in addition to the other rights and remedies you may have pursuant to applicable law.
8.13 You agree to comply with Netlogyx’s returns policy from time to time.
9. Intellectual Property
9.1 You acknowledge that all intellectual property in the Goods or Services, their associated trademarks and marketing and advertising material are our or the supplier’s sole property.
9.2 You must not advertise or use our name, trademarks or other intellectual property in any manner without our prior written consent and must immediately ceasing using them at our request.
9.3 You must keep all information we provide to you that is not commonly known to the public, including our price lists, absolutely confidential.
10. Miscellaneous
10.1 The laws of Queensland, without reference to “choice of law” principles, govern these standard terms of trade. You and we submit to the non-exclusive jurisdiction of the courts of that place.
10.2 Other than clauses 2.7, 3.4 and 5, time is not of the essence under these standard trading terms.
10.3 A reference to “includes”, “including”, “in particular” or “such as” are to be read as if followed by the words “without limitation”.
10.4 All rights and powers enjoyed by us and any discretion, consent or decision to be made by us pursuant to these standard trading terms may be exercised by us in our absolute discretion and may be given or withheld subject to conditions. All approvals by us are only effective and binding when given in writing by an authorised officer.
10.5 If any provision or part of any provision of these terms is unenforceable (including any of the sub-clauses in clause 5) then it will be severed from the rest and such unenforceability does not affect any other part of such provision or any other provision of these terms.
10.6 If you are a trustee, then the following provisions apply:
(a) you are personally liable for the performance of all obligations and undertakings under these trading terms and/or under any guarantee given by you;
(b) you warrant that you have full, complete and valid authority pursuant to the trust to enter into the relevant supply contract;
(c) notwithstanding that there is no reference to a specific trust, our rights of recourse extend to both your assets personally and the assets of the trust; and
(d) you undertake to us that your rights of indemnity against the trust assets have not been excluded by the provisions of the trust or by any breach of trust or otherwise and that you will not release or otherwise prejudice such rights of indemnity.
10.7 In these standard terms of supply, the following terms apply:
Goods mean any computers, associated hardware, software or other products delivered by us to you pursuant to these standard terms of supply;
GST means any consumption tax imposed by any government or government agency, whether at the point of sale or at some other occurrence, by whatever name, which operates during the time we supply you with Goods or Services and includes a goods and services tax, an indirect tax and value added tax.
Parties means us and you.
PPS Law means:
(a) the PPSA and any regulation made at any time under the PPSA, including the PPS Regulations (each as amended from time to time); and
(b) any amendment made at any time to any other legislation as a consequence of a law or regulation referred to in paragraph (a).
PPS Regulations means the Personal Property Securities Regulations 2010 (Cth).
PPSA means the Personal Property Securities Act 2009 (Cth).
PPSR means the Personal Property Securities Register.
Services means services ordered by the Customer and rendered or to be rendered by Netlogyx.
10.8 In these standard terms of supply, unless the context requires otherwise, the following words and expressions (and grammatical variations of them) have the same meanings given to them in the PPSA or the PPS Regulations (as applicable): Accounts, Accessions, Financing Change Statement, Financing Statement, Purchase Money Security Interest and Verification Statement.