(a) This Agreement is made between Teneo Australia Pty Limited incorporated in Australia and with offices at Level 11, 64 York Street, Sydney, NSW 2000, Australia (the “Supplier” which expression shall include its subsidiaries, agents and assigns)
the “Customer” being the company, firm or individual particulars of which appear on page one and by and/or on behalf of whom this Agreement is accepted.
(b) the Supplier agrees during the period of this Agreement:
(i) to sell to the Customer the hardware equipment which the Customer orders from time to time (excluding the software); and
(ii) to furnish the Customer, in relation to Software which the Customer orders from time to time, with either;
(1) the developer’s software licence where the same accompanies the software upon the terms, including payment of any licence fee, therein contained, or, in the absence of the same,
(2) a non-exclusive, non-transferable licence to use the software upon the terms contained in Clause 5 below,
(the hardware equipment and/or software specified in the Equipment Schedule is hereinafter referred to as the “Equipment” unless otherwise or separately stipulated).
(iii) to provide to the Customer the training and other services which the customer Orders from time to time (“the Services”).
(c) The Customer agrees:
(i) to accept delivery of the Equipment; and
(ii) to be bound by the Terms and Conditions specified herein.
- Application of Terms
(a) These Terms and Conditions shall apply to all orders (including telephone orders) placed with the Supplier by the Customer. Acceptance by the Supplier of any order is conditional upon acceptance by the Customer of these Terms and Conditions which shall override all other terms and conditions inconsistent herewith, whether express, implied or otherwise including but not limited to terms, conditions or stipulations contained in the Customer’s purchase order or otherwise stipulated by the Customer and which are at variance with or additional to these Terms and Conditions. The same shall not be binding upon the Supplier unless specifically accepted in writing and signed by a Director of the Supplier.
(b) These Terms and Conditions shall supersede any arrangements made or existing between the parties prior to conclusion of this Agreement and shall constitute the entire understanding between the parties hereto. Except as otherwise provided herein, no addition, amendment or modification of these Terms and Conditions shall be effective, unless in writing and signed or accepted by a director of the Supplier.
(a) The price of the Equipment is based on the cost prevailing at the date hereof and the Supplier reserves the right to adjust the price by such an amount as may be necessary to cover any increase affecting the Supplier after the date hereof attributable to market conditions prevailing at the date of delivery to the Customer. Without prejudice to the foregoing generality, market conditions shall include but shall not be limited to any direct or indirect increase in any foreign exchange rates relating to the Equipment or in the cost of labour, materials, handling, manufacture, supply or transport or such costs as may be incurred by the Supplier in complying with obligations imposed by law.
(b) The price of the Equipment includes (where applicable and unless otherwise stipulated by the Supplier or appearing as a separate item on page one) the licence fee for the Customer’s right to use the operating system software and (where applicable) such other software supplied.
(c) The price may be based on the quantity specified and accordingly the Supplier reserves the right to adjust the price in the event of orders being placed by the Customer for a different quantity or in the event that the quantity actually delivered to the Customer differs (for any reason) from that specified in an order.
(d) The price of the Equipment is based on the supply of the Equipment to the address specified on page one and to the relevant specifications and drawings at the date hereof and is subject to adjustment in the event of delivery to a different address or in the event of any modification being incorporated therein before or after delivery either at the request or with the consent or knowledge of the Customer.
(e) All prices are exclusive of any applicable purchase tax and if applicable, packing, delivery and installation.
(a) All accounts are payable within thirty days of the date of the Supplier’s invoice for the Equipment or for the Services or, if different, in accordance with the terms contained in such invoice. Where credit terms are agreed with the Customer, the Supplier reserves the right to withdraw the same and substitute cash with order. Any discounts must be agreed in writing by the Supplier.
(b) Where payment of the price or any part thereof is not made, the Supplier, without prejudice to its other rights hereunder or in law, shall be entitled to charge interest on the outstanding amount at a rate not exceeding 2 per cent per month from the due date until the outstanding invoiced price or outstanding part thereof is paid.
(c) If the Customer shall fail to take delivery of any Equipment under any contract within twenty-one (21) days of notification that it is ready for delivery, the Supplier shall have the right to present its invoice for payment at any time after the expiry of the said period and payment shall be due thereon as if delivery had been made notwithstanding the Customer’s liability for storage charges and the Supplier’s lien therefor in accordance with the provisions of Clause 8 hereof.
(d) Should the Customer fail to make any payment when due under any contract the Supplier shall have the right by notice in writing forthwith to suspend all further manufacture, deliveries, installation or warranty service until the default be made good or at the Supplier’s absolute discretion, to determine any contract or agreement where goods remain to be delivered, without prejudice to any other rights or remedies (including, without prejudice to the foregoing generality, re-possession of the Equipment in accordance with the provisions of Clause 10 below), which may be available to the Supplier in accordance with these terms and conditions, this Agreement, at law or otherwise.
(e) Where the Services or any part of them are paid for by the Customer in advance of the provision of such Services, the Customer shall within one year of the date of the Supplier’s invoice therefor request the provision of such Services and, where appropriate, specify the date on which and the location at which the Customer wishes such Services to be provided, failing which the Supplier’s obligation to provide such Services shall be discharged without prejudice to the Supplier’s right to retain payment therefor.
With respect to all operating system software and applications to be supplied hereunder, the following provisions shall apply:
(a) Where the Customer has been furnished with a developer’s software licence, the same must be signed and returned to the Supplier within seven (7) days or as otherwise specified in the said licence unless the said licence is a “shrink wrap” licence.
In the event that the Customer fails to sign and return the said licence in accordance with this sub-clause:
(i) the Supplier reserves the right to withhold release of the Software; or
(ii) if the same has been delivered, to collect the Software from the Customer.
(b) In absence of the developer’s software licence being furnished, the Customer, on issue of the Supplier’s Letter of Acceptance or upon delivery of the Software, hereby accepts a non-exclusive, non-transferable licence to use the Software solely for its own internal business purposes upon the terms of this Agreement, including the following:
(i) the Customer undertakes not to copy (other than for normal Equipment operation and except to the extent permitted by the applicable law), reproduce, translate, adapt, vary or modify the Software nor to communicate the same to any third party without the Supplier’s prior written consent;
(ii) the Customer undertakes to use the Software only on the Equipment specified in the Schedule, if any, and undertakes not to remove, add to, change or otherwise tamper with any copyright notice, legend or logo appearing in or on the Software or the medium upon which it resides;
(iii) the Customer undertakes not to disassemble, decompile or otherwise reverse engineer the Software, or otherwise attempt to learn the source code, structure, algorithms or ideas underlying the Software, except and only to the extent that the provisions of this clause are unenforceable pursuant to sections 50A to 50D Copyright, Designs and Patents Act 1988;
(iv) the licence hereby granted shall continue until or unless the Supplier terminates the Licence, which the Supplier may do forthwith if the Customer fails or has failed to comply with any of the Terms and Conditions, including but not limited to breach of copyright or confidentiality.
- Drawings, etc.
All drawings, descriptive weights, dimensions and the descriptions and illustrations contained in the sales literature and price list are approximate only and shall not form part of this Agreement. In addition, drawings or technical documents issued either before or after the conclusion of this Agreement for the use or information of the Customer and such other information as may be supplied to the Customer including specifications shall not be copied, reproduced or communicated to any third party without the Supplier’s prior written consent.
- Inspection and Testing
The Equipment undergoes a system of testing before delivery. If any additional testing is required by the Customer the additional expense which is incurred thereby shall be borne by the Customer.
- Delivery and Installation
(a) Delivery dates are estimates only and unless the Supplier expressly agrees in writing to be bound by a delivery date as being of the essence of this Agreement, the Supplier shall not be liable for direct, indirect or consequential loss arising from part, late or non-delivery.
(b) Where the Supplier expressly agrees in writing to be bound by a delivery date, the Supplier’s liability, subject to Clause 9 and subject always to Clause 14 hereof, in respect of any loss or damage suffered by the Customer which is directly attributable to such part or late or non-delivery shall be limited to the value of the Equipment not delivered.
(c) The Supplier shall inform the Customer when any part or all of the Equipment is ready for delivery, and the Customer shall inform the Supplier of the location for delivery if the same does not appear or is different from the address stated on page one. If the Customer shall fail to give to the Supplier instructions for delivery within twenty-one (21) days of such notification by the Supplier that the Equipment is ready for delivery, the Supplier may without further reference to the Customer arrange for storage of the Equipment. Charges for storage shall be paid by the Customer and the Equipment shall be subject to a lien of the Supplier therefor.
(d) Delivery shall be made during normal working hours (excluding local and national holidays). If the Customer requires delivery to be made outside such times, an additional charge shall be payable. The Supplier reserves the right to deliver in more than one delivery.
(e) The Customer shall prepare the area of delivery and installation for the Equipment and provide free access to the location and to any services or facilities that may be required to deliver and install the Equipment. Where the same has not been prepared or provided or the Supplier is prevented from carrying out delivery or installation at the pre-arranged day and time through no fault of the Supplier, the Supplier shall be entitled to charge for same.
- Damage, Shortage or Loss in Transit
(a) The Supplier accepts responsibility for damage, shortage or loss in transit if:
(i) the same is notified to the Supplier and the carrier (if not delivered by the Supplier) within three days of receipt of the Equipment by the Customer; and (where applicable)
(ii) the Equipment has been handled by the Customer in accordance with the Supplier’s or the carrier’s conditions of carriage or handling stipulations.
Where the Supplier accepts responsibility under this Clause, it shall, at its sole option, replace or repair (as the case may be) any such Equipment or part thereof, proved to the Supplier’s satisfaction to have been lost or damaged in transit.
- Title to the Equipment
(a) Notwithstanding delivery, installation, acceptance and passing of risk, title to the Equipment shall not pass to the Customer but shall be retained by the Supplier until full payment for the Equipment together with all sums due from the Customer to Teneo have been received by the Supplier from the Customer.
(b) Until such time as title in the Equipment has passed to the Customer, the Supplier:
(i) shall be entitled to repossess at any time any of the Equipment in which title remains vested in the Supplier;
(ii) for the purpose specified in (b)(i) above, the Supplier or any of his agents or authorized representatives shall be entitled at any time and without notice to enter upon any premises in which the Equipment or any part thereof is installed, stored or kept, or is reasonably believed so to be;
(iii) shall be entitled to seek a court injunction or equivalent judicial order under the applicable law of this Agreement to prevent the Customer from selling, transferring or otherwise disposing of the Equipment.
(c) Until such time as title in the Equipment has passed to the Customer, the Customer shall, subject to the Supplier’s rights hereunder:
(i) hold the Equipment as the Supplier’s fiduciary agent and be entitled to use the same in the ordinary course of the Customer’s business; but shall not be entitled to sell or otherwise dispose of the same or part with possession thereof;
(ii) cause to be added to its audited accounts for each year a note that Equipment supplied by the Supplier is subject to retention of title and shall be the property of the Supplier until full payment of all sums in respect thereof has been made to the Supplier; and
(iii) insure such Equipment to its replacement value naming the Supplier as the loss payee until all payments to the Supplier have been made as specified in this Clause and the Customer shall forthwith, upon request, provide the Supplier with a Certificate of such Insurance.
Supplier, provided that nothing herein shall constitute the Customer the agent of the Supplier for the purposes of any such sub-sale.
If the Customer shall sell any goods delivered in such manner as to pass to a third party a valid title to those goods, the Customer shall hold the proceeds of such sale on trust for the Supplier, provided that nothing herein shall constitute the Customer the agent of the Supplier for the purposes of any such sub-sale.
The provisions in this clause 10 relate to the Equipment and not to the Software which is subject to licence as specified in Clause 1 and 5 hereof and the terms of which are (where applicable) contained in the developer’s software licence or failing which, the licence contained in Clause 5 above.
- Passing of Risk
Notwithstanding Clause 10, risk in the Equipment shall pass to the Customer upon delivery by the Supplier or its carriers to the Customer or his agent and the Supplier shall not be liable for any loss or damage to the Equipment from the time that the Equipment is so delivered.
(a) The Supplier warrants to the Customer that the Equipment marketed by the Supplier is free from defects of workmanship and materials and the Supplier undertakes, subject to paragraphs (c) and (d) below, to replace or, at its option, to repair the Equipment purchased hereunder and detailed in the foregoing Schedule (other than rubber parts and/or printing heads and/or consumable items) found to be defective within 12 months of delivery, where such defects are a result of faulty materials or workmanship.
(b) Each claim of the Customer under this warranty shall be sent in writing to the Supplier within 10 days after the discovery of such defect, specifying the type of Equipment and nature of the defect. Upon receipt of such written notice, the Supplier or its agent or representative shall have the option of testing or inspecting the Equipment at its location or of having the Equipment returned to the Supplier or such other address as may be notified to the Customer, freight pre-paid. Replacement parts, items or Equipment shall be sent by the Supplier to the Customer ordinary freight pre-paid, subject always to (c) and (d) below.
(c) In the event of any claim presented under warranty being found on investigation by the Supplier either to be outside the scope or duration of this warranty or the fault being unconfirmed, then the costs of such investigation and repair shall be borne by the Customer.
(d) The Supplier shall not be liable at any time for damage or defects in the Equipment or parts caused by improper use, abuse, mismanagement or by using the Equipment outside the specifications detailed in the manuals and documentation relating to the Equipment or outside the specific application of the Equipment.
(e) The Supplier warrants to the Customer that the Services will be performed with reasonable skill and care.
(f) These warranties shall not be assigned without the prior written consent of the Supplier.
(g) Except as otherwise provided in this Clause, the Supplier makes no other representations or warranties and expressly excludes the same whether implied, statutory or otherwise especially as to quality or fitness of the Equipment for any particular purpose or as to the Services.
- Maintenance and Support
(a) The obligations of Supplier set out in this clause 13 apply to any maintenance and support services ordered by Customer and apply only in respect of the latest
release of the Software from time to time which is made available by the producer of the Software (“Software Producer”) to Supplier for distribution to end users (“the Current Release”) and to the release immediately preceding the Current Release, and shall apply only to such questions, faults and errors referred to in clause 13.3 as shall have been notified to Supplier or to Software Producer by Customer , providing sufficient information to allow Supplier or Software Producer to reproduce the error, using any telephone helpline forming part of the support service or in writing by post or by hand or to any e-mail address or fax number notified from time to time to Customer by Supplier for that purpose.
(b) Supplier shall without additional charge provide notification by e-mail of such maintenance releases and updates to the Software as Software Producer, in its sole discretion, makes generally available and of which Supplier receives notification from Software Producer. The contents of all maintenance releases and updates shall be decided upon by Software Producer in its sole discretion. Customer may obtain the object code of such maintenance releases and updates either through delivery of a copy pursuant to instructions contained in such notification or by downloading the updates from the customer care website of Software Producer.
(c) Supplier shall use reasonable endeavours to:
(i) answer questions on the installation and operational use of the Software;
(ii) identify and verify the causes of suspected errors in the Software;
(iii) correct any programming fault or error in the Software which can be reproduced by Supplier and by Software Producer using an unmodified copy of the Current Release;
by telephone, e-mail and/or by remote access via the internet.
Such endeavours shall, without otherwise limiting the meaning of “reasonable”, be commensurate with the severity of such fault or error.
(d) Supplier will use reasonable efforts to repair or replace defective hardware forming part of the Equipment, provided that such hardware has been returned to Supplier in accordance with the requirements of this clause 13(d). Before returning any such hardware, Customer shall notify Supplier of the defect in the hardware by any telephone helpline forming part of the support service or in writing by post or by hand or to any e-mail address or fax number notified from time to time to Customer by Supplier for that purpose. If, following such notification, Supplier believes that the Product is likely to be defective Supplier will issue to Customer a Return Material Authorization number (“RMA number”), and authorize Customer to return the defective unit to Supplier for repair or replacement. Supplier shall not be obliged to accept the return of any hardware unless the relevant RMA number is visible on the packing. Customer is responsible for shipping the defective hardware at its own expense and at its own risk to Supplier at such address as Supplier shall notify to Customer when the RMA number is issued and Customer shall use the original or equivalent packing. Supplier may repair or replace the hardware with new or reconditioned equipment.
(e) Supplier may, at the request of Customer, discharge its obligation under clause 13(d) to replace defective hardware by sending to Customer by express delivery the replacement equipment before the defective hardware is returned to Teneo, provided that an RMA number has been issued pursuant to clause 13(d). Where Supplier does so, Customer shall deliver the defective hardware to Supplier within thirty days after the date on which the replacement equipment is dispatched by Supplier. If the defective equipment is not returned within that thirty day period Customer shall become liable to Supplier for the price of that equipment at Supplier’s then current list price or, if none, at the price at which such replacement equipment is then customarily supplied to end users in Australia in arms length transactions. The delivery time of the replacement equipment may be affected by customs clearing and other factors and Supplier shall not be liable for any delay in the delivery of the replacement equipment, whether such delay exceeds the thirty day period referred to in this clause 13(d) or otherwise.
(f) Customer shall designate two individuals to act as its representatives for the purposes of the support and maintenance services to be provided by Supplier pursuant to this clause 13 and shall ensure that such persons are trained in the operation and use of the Software and Hardware. Supplier shall not be obliged to deal with any other individuals in relation to the provision of such services. Customer agrees to provide reasonable access to all its personnel, to provide on-line access and to provide all information reasonably required by Supplier to provide such services. Customer also agrees to promptly implement all updates and error corrections provided by Supplier under this agreement.
(g) Customer may request maintenance and support services not specifically provided for in this agreement. Customer agrees that, if provided, Customer shall pay for all such services at Supplier’s then current charges for such services.
(h) Supplier may, by giving not less than one year’s written notice, terminate its obligation to provide the services to be provided by Supplier pursuant to this clause 13.
- Supplier’s Liability
(a) Except to the extent that by the law relating to this Agreement it is not lawful to exclude such liability, the Supplier shall not be liable to the Customer for any loss or damage whatsoever or howsoever caused arising directly or indirectly in connection with this Agreement, the Services, the Equipment or its use or otherwise.
(b) Notwithstanding the generality of (a) above, the Supplier expressly excludes liability for consequential loss or damage, including but not limited to loss or damage to data or to other equipment or property (whether or not the same may be in the Supplier’s care, custody or control), or for loss of profit, business, revenue, goodwill or anticipated savings.
(c) In the event that any exclusion of liability contained in these Terms and Conditions shall be held to be invalid for any reason and the Supplier becomes liable for loss or damage
that may be limited or capable of being limited in law, such liability shall be limited to the price of the Equipment specified on page one of this Agreement.
(d) The Supplier does not exclude liability for death or personal injury to the extent that the same arises directly from the negligence of the Supplier or its employees.
- Copyright, Patents, Trade Marks and Other Intellectual Property Rights
(a) The Customer acknowledges that any and all of the trade marks, copyright, patents and other intellectual property rights used or subsisting in or in connection with the Equipment including software, hardware and other parts thereof in which the Supplier or the respective manufacturer, developer or third party has an interest are and shall remain the sole property of the Supplier or such manufacturer, developer or third party. The Customer shall not during or at any time after the completion, expiry or termination of this Agreement in any way question or dispute the ownership thereof.
(b) In the event that new inventions, designs or processes evolve in performance or as a result of this Agreement, the Customer acknowledges that the same shall belong to the Supplier unless otherwise agreed in writing by the Supplier.
(c) The Customer shall indemnify the Supplier fully against all liabilities, costs and expenses which the Supplier may incur as a result of work done in accordance with the Customer’s specifications involving infringement of any copyright, patent or other proprietary right.
All notices to or by the respective parties hereto shall be in writing and shall be deemed to have been duly given when delivered by hand, posted by pre-paid first class or recorded delivery post or sent by facsimile to the party to which such notice is required to be given under this agreement addressed as follows:
The Supplier: Teneo Australia Pty Ltd, Level 20, Tower 2 Darling Park, 201 Sussex Street Sydney, NSW 2000, Australia
The Customer: the address and fax number given on page 1;
or, in each case, to such other address or facsimile number as such party may from time to time have communicated to the other in accordance with the provisions of this clause 16.
Notices delivered by hand or sent by facsimile shall be deemed received the first working day following such delivery or sending. Notices which have been posted as above shall be deemed received on the second working day following posting.
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- Force Majeure
The Supplier shall be under no liability to the Customer in respect of anything which, apart from this provision, may constitute breach of this Agreement arising by reason of force majeure, namely circumstances beyond the control of the Supplier which shall include (but shall not be limited to) labour disputes of whatever nature and for whatever cause arising, including but without prejudice to the generality of the foregoing, work to rule, overtime bans, strikes and lockouts and whether between either of the parties hereto and any or all of its employees and/or any other employer and any or all of its employees and/or between any two or more groups of employees (and whether of either of the parties hereto or any other employer).
In the event that the Customer wishes to export from the country in which the delivery address is located the Equipment or any part of it or any other goods or computer software bought from or supplied by the Supplier, the Customer undertakes to comply with any export control regulations, including in particular the requirements of the regulatory authorities of the United States of America.
Failure or neglect by the Supplier to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of the Supplier’s rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudice the Supplier’s rights to take subsequent action.
The headings of the Terms and Conditions herein contained are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of any of the Terms and Conditions.
In the event that any or any part of these Terms or Conditions shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent such term, condition or provision shall to that extent be severed from the remaining terms and conditions which shall continue to be valid and enforceable to the fullest extent permitted by law.
This Agreement shall not be assigned by the Customer without the prior written consent of the Supplier.
The parties hereby agree that this Agreement shall be governed by Australian law and the parties submit to the non-exclusive jurisdiction of the New South Wales courts.