Terms and Conditions of Supply
Terms and Conditions of Supply
These terms and conditions (Terms) apply to any contract for the supply of goods and services from IComm to the Purchaser.
1. Definitions
In these Terms:
Equipment means the items of equipment specified in the Quote.
Fees mean the prices specified in the Quote, including any fees and charges that apply to the supply of Equipment or Services under these Terms.
IComm, our, us or we mean IComm Australia Pty Ltd (ACN 075 895 662).
a. Manufacturer’s Warranty means the terms and conditions of the manufacturer’s warranty (if any) specified by the relevant manufacturer of the Equipment.
Purchaser, you, and your means the party to whom the proposal or Quote is addressed.
Quote means the proposal provided by IComm to the Purchaser specifying the details of the equipment and/or services that the Purchaser has requested to purchase from IComm.
Service Levels means the service levels in respect of the Services specified in the Quote.
Services mean the services specified in the Quote.
2. Contract and Term
2.1 The Purchaser offers to purchase and IComm agrees to sell the Equipment and Services specified in the Quote subject to these Terms. An order by the Purchaser or other offer to purchase Equipment or Services may be accepted by IComm by written acceptance, by performance (including by delivery) or by issuing an invoice in respect of the order (whichever comes first). Such acceptance will complete a contract between the Purchaser and IComm on these Terms (Agreement).
2.2 The Agreement has effect on and from acceptance by IComm under clause 2.1.
2.3 The Purchaser shall not cancel any order for Equipment made pursuant to the Agreement without IComm’s prior written consent. In consideration for IComm consenting to the cancellation of an order by the Purchaser, the Purchaser agrees that IComm may retain for its reasonable administrative costs a cancellation fee of 20% of the Fees for the Equipment.
2.4 If IComm agrees to supply Services to the Purchaser, IComm will supply those Services from the Commencement Date specified in the Quote and, unless terminated earlier in accordance with the provisions of these Terms, will continue to supply the Services for the period specified in the Quote (Term).
2.5 In respect of the Services, at the end of the Term, this Agreement will be automatically extended for successive periods of 12 months on the terms and conditions then in effect, unless either party provides 30 days’ written notice to the other party before the end of the Term that it is not to be renewed.
3. Provision of Services and Service Levels
3.1 Where agreed by the parties, IComm will provide the Services to you in accordance with any Service Levels listed in the Quote for the Fees and at the site (if applicable) specified in the Quote. The provision of the Services is subject to any assumptions or conditions listed in the Quote.
3.2 Where we provide the Services in conjunction with our third-party service providers, the Quote will contain details, including any applicable third-party service provider terms and conditions, which may also apply to your use of the Services.
4. Delivery, installation, and supply of Equipment
4.1 This clause applies to the extent IComm supplies Equipment to you under the Agreement.
4.2 IComm shall, during its normal business hours, deliver to, install, and commission the Equipment for the Fees and at the site specified in the Quote.
4.3 Any dates specified by IComm for delivery and commissioning are estimates only. IComm shall not be responsible for any delay or failure to supply the Equipment on the estimated date and IComm shall not be liable for any such delay.
4.4 The Purchaser shall provide at its own cost adequate power requirements specified by IComm for the Equipment.
4.5 The Purchaser shall be responsible for ensuring that all necessary connecting facilities have been approved by Telstra and/or relevant statutory authorities.
4.6 Any Equipment sold by IComm shall be at the Purchaser’s risk as and from delivery to the site specified in the Quote or such other premises directed by the Purchaser, whether title has passed or otherwise. Upon delivery (including prior to commissioning) the Purchaser shall be responsible for any loss or damage to the Equipment howsoever arising. The Purchaser agrees to indemnify IComm for any loss sustained in any manner whatsoever by IComm in relation thereto.
4.7 Property and title in the Equipment shall not pass to the Purchaser and IComm will retain the legal and equitable title in the Equipment until the Purchaser has made:
a. Payment in full in cleared funds for the Equipment; and
b. payment in full of all other money owing by the Purchaser to IComm (whether in respect of money payable under a specific contract or on any other account whatsoever).
4.8 Until payment in full of all monies owing has been made to IComm, the Purchaser will hold the Equipment on trust for and as bailee for IComm and the Purchaser agrees, to the extent reasonably possible, to store the Equipment in a manner which clearly shows it is the property of IComm.
4.9 Consistent with the Purchaser's intended use of the Equipment, the Purchaser must keep the Equipment in such condition as it was in when supplied, or in such closest condition as can be reasonably maintained.
4.10 IComm may, whilst it retains title to the Equipment, in its absolute discretion, without prejudice to any of its other rights and without notice, demand the return of the Equipment or retake and resume possession of the Equipment from any site owned or controlled by the Purchaser where the Equipment is stored, installed or in operation, and the Purchaser grants IComm, and any of its representatives, employees or agents, an irrevocable license to enter upon any land or premises to do so without any liability for trespass or for any loss or damage suffered as a consequence of such entry or retaking of possession.
4.11 The Purchaser agrees that where IComm retakes possession of Equipment under clause 4.10, IComm has the absolute right to sell or deal with the Equipment and to retain the proceeds of any such sale free from any claim from the Purchaser and without prejudice to IComm’s rights to claim the balance of all moneys owing to it.
4.12 Each part of the Equipment shall be deemed to be a chattel notwithstanding any affixation to any premises.
4.13 If any time prior to payment in full the Purchaser commits any breach of its obligations hereunder or suffers an insolvency event, then IComm may at its own option cancel the Agreement and the Purchaser shall deliver up to IComm the Equipment or such part thereof as has been delivered. IComm shall be entitled to retain any deposit paid by the Purchaser for such Equipment.
4.14 IComm retains title to any and all software supplied with the Equipment including documentation. Copyright is similarly retained, and reproduction is expressly forbidden unless permission is given by IComm in writing. IComm shall extend a royalty-free non-exclusive licence to the Purchaser for use of such software related to the Equipment concerned for the period during which the Equipment remains in the Purchaser’s direct control.
4.15 The provisions of this clause 4 survive the termination of any security agreement that arises in respect of these Terms.
5. Fees and Payment
5.1 Subject to clause 5.5, the applicable Fees and expenses will be specified in the Quote and are due and payable by you in accordance with the payment terms set out in the Quote or on any invoice we provide to you under the Agreement.
5.2 In the event that you fail to pay any Fees or expenses by the due date we may either:
a. charge interest on the amount owing at 4% above the overdraft index rate charged by the Westpac Bank; and/or
b. immediately suspend the supply of any Equipment or Services.
5.3 Fees and expenses are exclusive of GST which is payable by you in addition.
5.4 Subject to clause 5.5, during the Term we may increase the Fees on written notice to you following any increase in the costs of providing the Equipment or Services as a result of any change or increase in costs passed on to us by any third-party service providers.
5.5 We will hold firm the price of the Equipment specified in the Quote for 30 days from the date the Agreement is entered into. If after 30 days from the date of the Agreement delivery and commissioning of the Equipment have not occurred, we reserve the right to vary the price resulting from any increase in our costs in accordance with clause 5.4.
5.6 If we increase the Fees in accordance with clause 5.4, you may terminate the Agreement upon written notice to us, provided your notice is received by us within 10 Business Days of the date of our increased Fees notice to you.
6. Training, maintenance and warranty
6.1 IComm shall use reasonable commercial efforts to provide the Purchaser’s operators with training in the use and operation of the Equipment at the site as IComm deems reasonable and necessary. Any such training shall be the Purchaser’s responsibility to arrange and shall be at the Purchaser’s cost.
6.2 IComm will provide manuals for the operation, use and upkeep of the Equipment. The Purchaser acknowledges that the proper observation of the manuals and each and every direction or advice given therein must be proven as a condition precedent to any action being taken against IComm whatsoever or howsoever arising concerning the Equipment.
6.3 Unless maintenance services are specified in the Quote, the Purchaser acknowledges that the sole obligation for proper maintenance of the Equipment rests with the Purchaser and the maintenance must be performed by properly skilled and trained personnel. The Purchaser further acknowledges that until a maintenance contract is entered into with IComm in writing, there shall be no implied agreement placing any obligation whatsoever upon IComm to maintain the Equipment in any way.
6.4 The Purchaser shall be entitled to the benefit of the manufacturer’s warranty (if any) in respect of each item of the Equipment supplied by IComm for the duration of the manufacturer’s warranty period and in accordance with the terms and conditions of the relevant warranty. The manufacturer’s warranty period shall begin on the date of commissioning of the Equipment.
6.5 Defects due to wear and tear, negligence, neglect or default on the part of the Purchaser or any third parties are excluded from the manufacturer’s warranty.
6.6 Equipment covered under a manufacturer’s warranty and in need of repair or replacement will be repaired or replaced free of charge upon delivery to IComm by the Purchaser. The Purchaser is required to pay the cost of delivery.
6.7 Any warranty given does not extend to any Equipment other than that supplied by IComm, nor does it extend to Equipment maintained otherwise than by properly trained personnel or interfaced other than in accordance with the conditions specified by IComm.
7. Your obligations
You agree to do each of the following:
a. comply with applicable laws.
b. provide us with appropriate access to the site specified in the Quote including to your facilities, equipment, and personnel, as is necessary to allow us to perform the Services or deliver, install and commission the Equipment; and
c. pay the Fees and expenses when due under clause 5.
8. Intellectual Property Rights
8.1 Nothing in the Agreement or these Terms alters or assigns the ownership of any intellectual property rights owned by IComm which remains vested in IComm.
8.2 IComm grants you a limited, non-exclusive, revocable, non-transferable, royalty-free licence for the Term to use, reproduce, and communicate any IComm intellectual property solely to the extent necessary to have the effective use of the Equipment or Services.
8.3 If any additional third-party software is required to access the Equipment or Services, unless otherwise specified in the Quote, you are responsible for procuring the rights to such items and for any configuration, interoperability issues, maintenance and storage of the third-party software.
9. Indemnities
9.1 You indemnify us from any damage, loss, liability, cost, charge, expense, outgoing or payment of any kind suffered or incurred by us arising out of or in respect of any:
a. illness, injury or death of any of the person, and any damage to any tangible or real property caused or contributed to by you, arising out of or in connection with the Agreement.
b. breach of the Agreement.
c. act or omission of you, your officers, employees and agents, including but not limited to:
breach of any third party’s intellectual property rights; or
breach of your obligations in respect of confidential information under the Agreement.
10. Limitations of Liability
10.1 With the exception of clause 10.3, our liability to you for all proven loss and damage arising from a breach of the Agreement, or a claim under common law or tort (including negligence) is limited, in aggregate, to the Fees received by us from you or on your behalf in the 6 months preceding the event giving rise to the cause of action.
10.2 Any representation, warranty, condition or undertaking that would be implied in the Agreement by legislation, common law, equity, trade, custom or usage is excluded to the maximum extent permitted by law.
10.3 Nothing in these Terms excludes, restricts or modifies any condition, warranty, right or remedy which cannot lawfully be excluded, modified or limited by agreement, including any consumer guarantees set out in the Australian Consumer Law (ACL). Subject to the ACL, and except as expressly provided to the contrary in these Terms, any guarantee, warranty, representation, statement, undertaking, term or condition, that would be implied by statute, the general law or otherwise, is expressly excluded to the maximum extent permitted by law. If a warranty or condition is implied by the ACL or other law which may not be excluded, then our liability for any breach of such an implied warranty is limited solely to one or more of the following as determined by IComm in its sole discretion and at its election:
a. in the case of goods, the repair, the replacement or the supply of substitute goods (or payment of the cost of doing so); or
b. in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.
10.4 Subject to clause 10.3, to the extent permitted by law, in no event will IComm be liable to the Purchaser for loss of profits, downtime costs, loss of revenue, loss of reputation, loss of data, loss of use, loss of goodwill, failure to realise anticipated savings, anticipated profit or revenue or any indirect or consequential loss arising out of or in connection with the Agreement, howsoever caused.
10.5 IComm is not liable to you for failing to provide the Equipment or Services, unless the failure directly results from a breach of the Agreement, or directly results from our negligence or wilful misconduct.
11. Termination
11.1 In addition to any other termination right available to us in the Agreement or at law, we may without any liability to you suspend the supply of Equipment or Services and/or terminate the Agreement in whole or in part if:
a. you fail to pay any of the Fees by the date due for payment.
b. you breach the Agreement; or
c. you are a company, you are unable to pay your debts or otherwise become insolvent, or, if you are a person, you are declared bankrupt.
11.2 Upon termination or expiry of the Agreement for any reason:
a. you must immediately pay us any outstanding Fees that are due to us under the Agreement; and
b. each party must return to the other party all confidential information and any material that is the subject of intellectual property rights of the other party, or if not capable of return, destroy it and certify its destruction to the other party.
12. Credit
We may at any time set a credit limit for you and require you to provide or arrange a bond, guarantee or other security for the Fees. You authorise us to the full extent permitted by law, including under applicable Privacy laws to give to and obtain from a credit reference organisation or another credit provider, information relating to your creditworthiness and to use that information.
13. Force Majeure
Neither party will be liable to the other party for any delays or errors in its performance, or non-performance, due to any circumstances beyond its reasonable control including (without limitation) natural events, fire, lightning, earthquake, flood, storm, explosion, industrial dispute or acts of terrorism.
14. Severability
If anything in the Agreement is unenforceable, illegal or void then it is severed, and the rest remains in force.
15. Governing Law
The Agreement will be governed by the laws of Victoria, Australia and each party submits to the non-exclusive jurisdiction of the courts of Victoria, Australia.
16. Waiver
A right may only be waived in writing and must be signed by the party giving the waiver, and no other conduct of a party (including a delay in exercising, relaxation of or failure to exercise the right) operates as a waiver of the right or otherwise prevents the exercise of the right.
17. Entire Agreement
The Agreement constitutes the entire agreement between you and us.
18. Surviving Provisions
The provisions of these Terms which are intended or capable of having effect after the expiration or termination of your Agreement with us (including provisions relating to warranties, indemnities, liability, licence, intellectual property rights and those with respect to payments that are accrued but unpaid at the time of termination) will remain in full force and effect following any suspension, expiration or termination of the supply of Equipment or Services.