Terms and Conditions
1. DEFINITIONS
“Client” includes any person, firm or company their successors and assigns to whom WAVEX supply the Product. “GST” means Goods and Services Tax under A New Tax System (Goods and Services Tax) Act 1999 or a Tax on supply or similar tax “Product” includes all software and telecommunications equipment and other equipment supplied by WAVEX whether under licence or otherwise and all products sold by WAVEX.
“Software” includes all relevant documentation, manuals, printed and written matter. “WAVEX” means Wavex IT Support (ABN 61 016 482 178) its successors and assigns
2. WARRANTY
2.1 The Client prior to the date hereof and continuing warrants and agrees that:-
2.1.1 The Client will deal in the Product.
2.1.2 WAVEX will supply the Product to the Client in such quantities and at such prices as are agreed between the parties from time to time, upon the terms and conditions set out herein (“Terms and Conditions”).
2.1.3 If there is any variance between the Terms and Conditions and terms and conditions contained in any form, order or other document of the Client, the Terms and Conditions will prevail and any other terms and conditions will not be binding on WAVEX unless specifically agreed in writing and signed by a director of WAVEX.
3. TRADING TERMS
3.1 The Client at its own expense will arrange collection of the Product from WAVEX at WAVEX’s premises. Alternatively WAVEX at its sole and absolute discretion, may arrange physical delivery of the Product to the Client at the Client’s business address specified herein, such delivery being at the Client’s expense. The Client will be liable for loss or damage to the Product from the time the product is placed on the vehicle to transport the Product from WAVEX’s premises to the Client.
3.2 Payment for the Product supplied or services rendered will be made in full by the Client to WAVEX without deduction or demand within seven (7) days of the invoice date unless otherwise agreed in writing and signed by a director of WAVEX.
3.3 If the invoice remains unpaid after seven (7) days of the invoice date or such other term as agreed in writing and signed by a director of WAVEX. Interest will accrue on the unpaid monies at 5% per month calculated on a daily basis until payment.
3.4 If the Client fails to make payment of monies due to WAVEX for a period exceeding 30 days from the date of the invoice rendered to the Client, WAVEX may at its sole discretion in addition to its other rights suspend the provision of credit to the Client until payment is received in full.
3.5 A certificate signed by a director or secretary for the time being of WAVEX stating the amount due (including any interest) by the Client to WAVEX will be conclusive evidence of the facts stated therein.
3.6 Failure by the Client in the opinion of WAVEX to comply with the Terms and Conditions will result in:-
3.6.1 all monies including interest and GST owed by the Client to WAVEX becoming immediately due and payable without deduction or demand:
3.6.2 immediate cancellation of provision of credit to the Client;
and
3.6.3 WAVEX exercising all other rights it may have in relation to such breach.
4. RETENTION OF TITLE
4.1.1 Despite anything else contained herein, full legal and equitable title in the Product will be retained by WAVEX and title will only transfer to the Client upon the Client’s indebtedness to WAVEX (including any GST or other taxes payable, interest and any costs and disbursements incurred in obtaining judgement, if applicable) has been discharged in full.
4.1.2 Until title passes to the Client, the Client will hold the product on behalf of WAVEX maintaining it in good repair and proper working order.
4.2 Notwithstanding any other clause contained herein the risk in the Product will pass to the Client as referred to in Clause 3.1 hereof and the Product must be paid for notwithstanding the destruction thereof or any damage thereto however caused.
4.3 Until title passes to the Client, the Client will ensure that the Product is stored in such a way that it is clearly identifiable as the property of WAVEX and not intermingled with the property of the Client or any other person, firm or company. The Client will not in any way alter or treat the Product so as to change its quality or nature in any way until title has passed to the Client.
4.4 Payment of all moneys owed by the Client to WAVEX will be deemed to have been received when cash has been received or cheques for the invoice price and all other moneys owing under the Terms and Conditions have been met and honoured in full.
4.5.1 WAVEX authorises the Client to sell the Product as WAVEX’s fiduciary agent for the account of WAVEX only. The proceeds of sale are the property of WAVEX and the Client will hold such proceeds for and on behalf of WAVEX in a fiduciary capacity. The Client will keep separate records as to the Product sold and as to the amounts received.
4.5.2 While WAVEX retains full legal and equitable title in the Product the Client will not bail, pledge, mortgage, charge, grant a lien over, lease or assign the Product by any other way of security. Only sales as referred to in sub-clause 4.5.1 hereof are permitted.
4.5.3 Despite any period of credit allowed in WAVEX’s terms and conditions of sale the Client will account to WAVEX for the purchase price of the Product (or such part thereof as represents the Product on-sold) as soon as the Product (or any part of the Product) is on-sold by the Client and the proceeds of sale are received by the Client.
4.6 The Client will notify WAVEX in writing of any intended sale of the Client’s business which includes or purports to include the Product as part of the Client’s stock.
4.7 If the Client fails to pay for the Product pursuant to the Terms and Conditions or if the agreement between the parties is terminated or repudiated, however occurring, WAVEX is hereby irrevocably authorised to enter onto the premises of the Client and repossess the Product the title of which vests in WAVEX.
5. LIABILITY
5.1 Except to the extent provided in sub-clause 5.3 hereof WAVEX will not be liable to the Client or to any other person firm or company for any loss or damage whatsoever or how soever caused arising directly or indirectly in connection with the Product or any part thereof other than expressly imposed by statute in terms of which it is not possible to limit or exclude liability. The provisions of the Sale of Goods Act 1928 are hereby excluded.
5.2 Notwithstanding the provisions of sub-clause 5.1 hereof WAVEX expressively excludes liability for consequential loss or damage including but not limited to loss of profit, business revenue, goodwill or anticipated savings.
5.3 Without limiting the generality of sub-clauses 5.1 and 5.2 hereof and to the full extent permitted by law. WAVEX disclaims all warranties, conditions or representations, express or implied, regarding the processing, provision, receipt or exchange of date data by the Product and WAVEX will not be liable to the Client on any basis whatsoever for any failure of the Product in connection with such date data or for any other loss or darnage associated with the advent of the new century.
5.4 The sole liability of WAVEX for any loss as referred to in sub-clause 5.1 hereof will be limited to the price or licence fee or other sum paid by the Client to WAVEX for the Product licence or service respectively from which such loss or damage directly arose.
6. RETURNS
6.1 The Client must notify WAVEX in writing of any problems with the Product and/or the Product the Client wishes to return within seven (7) days from the date on the invoice relating to the particular Product subject to compliance with the provisions of sub-paragraphs 6.2, 6.3 and 6.4 hereof and subject also to the provisions of WAVEX’s returns procedure as set out from time to time.
6.2 Each claim of the Client for return will be dealt with under WAVEX’s Client returns procedure. The Client acknowledges that it is aware of the terms of the said Client returns procedure and further acknowledges that the Terms and Conditions anticipate the provisions contained therein. The Product to be sent or returned to the Client following compliance with the Client returns procedure will be sent by WAVEX to the Client by ordinary freight prepaid subject to the provisions of sub-clause 6.3 hereof. If the Client requests the Product be sent by any other means, the additional costs of such accelerated or special freight will be borne by the Client.
6.3 WAVEX will not be liable for any damage or defects in the Product caused by improper storage, warehousing or transport or by neglect, abuse or improper use, installation, maintenance or unauthorised repair of the Product. 6.4 The returns procedure will not extend to Product which has been added to, modified, varied or changed by any person, firm or company other than WAVEX.6.5 If the Client fails to notify WAVEX of any problems with the Product and/or the Product the Client wishes to return within seven (7) days then the Client is deemed to have accepted the Product and is not entitled to make any objection or claim in respect of that particular Product.
7. Patents, Trademarks, Copyright and Intellectual Property Rights
7.1 The Client acknowledges that:-
7.1.1 all of the trademarks, trade names, patents, copyright and other intellectual property rights embodied in or in connection with the Product and any information, documentation, parts or software relating thereto are the property of WAVEX or such other manufacturers or supplier of any such rights and further acknowledges that WAVEX has the right to import and distribute the Product in Australia.
7.1.2 All copyright and intellectual property rights and other rights belonging to WAVEX or other manufactures or suppliers are only used by the Client with the consent of WAVEX or the manufacturers or suppliers during the continuation of the agreement with WAVEX and such consent only extends to use essential for the direct purpose of the proper implementation of that agreement. Upon the expiry or termination of that agreement the Client will forthwith discontinue such use without receipt of compensation and the Client acknowledges that upon expiry or termination of the agreement any licence or intellectual property rights in Software created or implied by the agreement will immediately cease.
7.1.3 The Client will not during or after the expiration or termination of the agreement, without the prior written consent of WAVEX or other relevant manufacturers or suppliers, use or adopt any name, trade name, trading style or commercial designation or design used by WAVEX or other relevant manufacturers or suppliers nor will the Client repackage any of the Product, reproduce any artwork appearing on the package of the Product or copy, sell or hire or offer for sale or hire a copy of the Product.
7.1.4 The Client will indemnify WAVEX against all liabilities, costs and expenses which WAVEX may incur as a result of work done in accordance with the Client’s specifications or as a result of a combination of use of the Product with other equipment parts or software not supplied by WAVEX, involving infringement of any patent, copyright or other proprietary right.
8. CONFIDENTIAL INFORMATION
8.1 WAVEX has imparted and may from time to time impart to the Client certain confidential information and documentation such information other than is required to carry out the purposes of that agreement,
8.2 If disclosure is necessary, the Client will obtain from such third parties binding agreements to maintain confidence the information disclosed to the same extent as the Client is bound to WAVEX pursuant to the terms hereof,
8.3 The Client agrees that immediately on expiration or termination of the agreement it will cease to use and will return or destroy (as instructed by WAVEX) such information and documentation and will not itself or through any subsidiary, agent or other party sell, market, distribute, manufacture or otherwise deal with the Product or have the same manufactured for it based on any technical or confidential information supplied to it by WAVEX.
9. ASSIGNMENT
9.1 The benefit of any agreement between the Client and WAVEX will not be assigned by the Client whether voluntary, involuntary or by operation of law without the prior written consent signed by a director of WAVEX. No such assignment by the Client however occurring will relieve the Client of its obligations here under.
10. WAIVER
10.1 Failure or neglect by WAVEX to enforce at any time the provisions hereof will not be construed or be deemed to be a waiver of WAVEX’s rights hereunder nor in any way affect the validity of the whole or any part of the agreement with WAVEX or prejudice WAVEX’s rights lo take subsequent action.
11. SEVERABILITY
11.1 If any of the provisions of these terms and conditions are determined invalid, unlawful or unenforceable, to the extent that such provisions are invalid, unlawful or unenforceable they will be deemed severed from the remaining provisions which will continue to be valid and enforceable to the fullest extent permit-ted by law.
12. WHOLE AGREEMENT
12.1 The Terms and Conditions embody the entire understanding of the parties and there are no promises, terms, conditions or obligations, oral, express or Implied, other than those contained herein specifically except as varied in writing and signed by a director of WAVEX.
13. LAW
13.1 The Terms and Conditions will be governed and construed in accordance with the laws of New South Wales, Victoria and Queensland, Australia.
14. ACCESS TO CLIENT’S ACCOUNTS
14.1 The Client hereby authorises WAVEX to make inquires at any time of a credit reporting agency relating to the Client’s accounts should it be required and to contact the stated trade reference at any time.
15. PROVISION OF CREDIT
15.1 The provision of credit and/or the continued provision of credit by WAVEX to the Client from time to time will be in the absolute discretion of WAVEX who may:-
15.1.1 extend credit to the Client; or
15.1.2 continue to extend credit to the client; or
15.1.3 extend and/or continue to extend credit to the Client subject to the provision of security in a form acceptable to WAVEX; and/or
15.1.4 at any time and from to time vary or cancel the credit facility available to the Client.
16. DIFFERENCES AND COMPLAINTS
16.1 Subject to the provisions of Clause 5 hereof WAVEX will not be liable in respect of any difference or complaint arising out of the Terms and Conditions unless the Client advises WAVEX in writing of the difference or complaint no later then seven (7) days after the date of the occurrence of the event or circumstance on which the difference or complaint is based.
17. SUPPORT RATE DURATION
17.1 “Telephone Support” will be charged at 15 Minutes or part thereof, and subsequent time will be calculated in 15 minute increments.
17.2 “Remote Access Support” will be charged at 30 Minutes or part thereof, and subsequent time will be calculated in 30 minute increments.
17.3 “On Site Support” will be charged 60 Minutes for the first 60 minutes or part thereof, and subsequent time will be calculated in 15 increments.
17.4 Travel outside of the Sydney CBD will attract an additional 60 minute charge in addition to the “On Site Support” Rate
17.5 Work undertaken and or requested outside of the normal WAVEX standard hours of work will be charge at double the normal rate.
18. CLIENT A TRUSTEE
18.1 If the Client is purchasing or dealing in the Product in Its capacity as a Trustee, the Client warrants that It will advise WAVEX in writing prior to entering into any dealings with WAVEX.
18.2 If the Client acting as Trustee discloses to WAVEX that It proposes to enter into dealings with WAVEX in its capacity as Trustee, WAVEX at its sole discretion can:-
18.2.1 Refuse to deal with the Client;
18.2.2 Deal with the Client acting as Trustee subject to a personal guarantee from in the case of an individual, that individual personally not acting on trustee or in the case of a company from a director of that company personally not acting as a trustee, guaranteeing the performance of the Client;
18.2.3 Deal with the Client acting as a Trustee.
18.3 If the Client fails to disclose to WAVEX that it is acting as a Trustee and WAVEX supplies the Product to the Client
if the Client is :-
18.3.1 an individual then that individual not acting as a Trustee; and
18.3.2 a company, the director of that company personally not acting as a trustee; will be guarantors of the Client’s performance and liable jointly and severally to WAVEX as if they were the Client without the need for any further document being signed.
