“Credit Application” means the credit application form to which these Terms are annexed (if applicable);
“Purchaser” means the purchaser of Products to be supplied by the Supplier as detailed in the Invoice and/or Credit Application;
“Products” means the products to be supplied by the Supplier to the Purchaser as detailed in the Invoice and includes any part or parts thereof;
“Invoice” means the invoice issued by the Supplier to the Purchaser which details the Products and the Price to which these Terms are annexed (if applicable);
“PPSA” means the Personal Property Securities Act 2009 (Cth);
“Supplier” means GaP Solutions Pty Ltd ABN 84 057 892 538 as named in the Invoice and/or the Credit Application; and
“Price means the total amount payable for the Products as detailed in the Invoice, including applicable GST, and cost of delivery to the Purchaser. The price does not include any additional costs such as personalisation or customisation of any Products supplied.
These Terms will apply to the supply of Products despite any conflicting terms proposed by the Purchaser, unless waived in writing by the Supplier.
Quotations provided by the Supplier to the Purchaser under these Terms are fixed for a period of 30 days unless otherwise specified in the quotation. Following this period, the Supplier may revise the quotation.
Supply of the Products
The Supplier agrees to supply the Products and the Purchaser agrees to purchase the Products on these Terms.
Unless otherwise agreed by the Supplier in writing, the Purchaser must pay the Price without deduction in accordance with the payment terms detailed in the Invoice and/or Credit Application.
The Purchaser must provide a deposit on the placement of an order if requested by the Supplier. The amount of the required deposit will be specified in the quotation.
The Supplier may charge and the Purchaser will pay interest on all amounts not paid by the Purchaser on the due date at the current NAB Overdraft rate plus 2 % per annum. Interest will be calculated daily and may be capitalised monthly until full payment has been made by the Purchaser.
Allowance to the Purchaser of additional time to pay the Price will not constitute a waiver by the Supplier of any of these Terms.
In the event of non-payment of the Price in accordance with these Terms, the Purchaser will pay all reasonable collection expenses, legal costs and any other expenses incurred by the Supplier in connection with the non-payment.
If payment of the Price is not made by the Purchaser in accordance with these Terms, the Purchaser acknowledges and agrees that the Supplier has the right (without prejudice to any other rights and remedies it may have) to recover, remove and/or resell the Products in accordance with clause 16. For that purpose, the Supplier’s employees, agents or workers may without notice enter any place the Supplier believes the Products to be without committing a trespass.
The Supplier will have no obligation to make good any damage caused by such recovery or removal and the Supplier will not be liable for and the Purchaser will indemnify the Supplier against any costs, claims, damages or losses suffered by the Purchaser as a result of such removal.
Any delivery times proposed by the Supplier are estimates only and the Supplier will not be liable for any claim or cost resulting from late or non-delivery of Products.
Where the Supplier is required to install the Products or any part of them at the Purchaser’s nominated premises or site, the Purchaser shall ensure that the Supplier, its employees and agents are given reasonable and unimpeded access to such premises or sites at the times specified by the Supplier for such installation. The Purchaser will also provide the Supplier with reasonable use of any facilities or equipment on the premises or the sites for the purposes of such installation.
Title and risk
In relation to all Products:
title in the Products will not pass to the Purchaser until the Price is paid in full;
risk in the Products will pass to the Purchaser immediately upon delivery to or collection of the Products;
until the Supplier receives full payment of the Price, the provisions of clause 17 apply and the Supplier has the right (without prejudice to any other rights and remedies it may have) to recover, remove and/or resell the Products free from any claims by the Purchaser in accordance with clause 10; and
the Purchaser will indemnify the Supplier against any costs, claims, damages or losses suffered by the Supplier or a third party as a result of the Purchaser’s inability to pay the Price for the Products.
In relation to all Products, if the Purchaser has not paid the Price but sells or otherwise disposes of the Products or any part of them, the monies received in respect of the disposal of the Products will be held on trust by the Purchaser for the Supplier and will be payable immediately to the Supplier.
If the Supplier does not receive full payment of the Price as detailed in accordance with the payment terms on the Invoice and/or Credit Application (as applicable), the Supplier has the ability to:
recover, detach, remove or resell the Products;
switch off/de-commission the Products immediately;
terminate the software licence granted to the Purchaser (if any);
delete, remove and/or recover the software and any copies of it.
Personal Property Securities Act 2009 (Cth) (“PPSA”)
Where the Supplier has supplied Products to the Purchaser but where title in the Products has not yet passed to the Purchaser, the Purchaser acknowledges and agrees that:
these Terms constitute a Security Agreement for the purposes of the PPSA;
the Purchaser will grant the Supplier a purchase money security interest (“PMSI”) under the PPSA in the Products and their proceeds to secure all amounts owed to the Supplier by the Purchaser;
the Supplier may register the PMSI on the Personal Property Securities Register (“PPSR”);
it will undertake to do all things necessary and provide the Supplier on request all information the Supplier requires to register a financing statement or financing change statement on the PPSR;
it undertakes not to change its name in any form or other details on the PPSR without first notifying the Supplier; and
it will, if required by the Supplier, pay to the Supplier the cost of registering and maintaining registration of the Purchaser’s PMSI on the PPSR, within 14 days of the request.
The Supplier need not give any notice under the PPSA (including a verification statement or a financing change statement) unless the notice is required by the PPSA and cannot be excluded.
No party may disclose information of the kind referred to in section 275(1) of the PPSA (except where the parties may do so and where required due to the operation of section 275(1) of the PPSA (except where the parties may do so and where required due to the operation of section 275(7) of the PPSA) and the Purchaser must not authorise the disclosure of such information.
The Purchaser appoints the Supplier as its attorney to sign in the Purchaser’s name all documents which the Supplier considers necessary to enforce and to protect its rights under these Terms.
The Purchaser agrees that to the maximum extent permitted by law, it waives any rights it may have pursuant to, and the parties contract out of, sections 95, 118, 123, 125, 128, 129, 130, 132(1), 132(4), 135, 142 and 143 of the PPSA.
The Purchaser acknowledges that unless otherwise defined in these Terms, the terms and expressions used in this clause 17 have the meanings given to them, or by virtue of, the PPSA.
To the maximum extent permitted by law:
the Supplier provides no warranty in respect of any part of the Products that comprise software. Software is purchased by the Purchaser in an “as is” condition;
the Supplier warrants to the Purchaser that all hardware supplied by the Supplier will, subject to the proper use, care and maintenance of the hardware by the Purchaser, be free from defects due to faulty workmanship or materials for the period specified in the quotation; and
apart from the provisions of this clause 18 all other conditions or warranties in respect of the Products, express or implied, statutory or otherwise, are excluded.
Any modifications or repairs made to the Products without the written approval of the Supplier will invalidate the warranties set out in clause 18. Replacement of parts shall not extend the warranty for the products beyond the original warranty period specified in the quotation and no separate warranty is provided for such parts.
To the maximum extent permitted by law, the sole liability of the Supplier in respect of defective Products is either (at the election of the Supplier) the re-supply of the defective Products to the Purchaser or refund of the Price paid by the Purchaser for the defective Products.
No employee, agent or contractor of the Supplier has any authority to give warranties or make representations about the performance specifications or fitness for purpose of the Products supplied and the Purchaser expressly acknowledges and agrees that no such representation has been made to the Purchaser in respect of the Products.
To the maximum extent permitted by law:
the Supplier will not be liable to the Purchaser or the Purchaser’s employees, agent, contractors for any loss or expense whatsoever resulting from the use of the Products including any negligent or misuse of the Products;
the Supplier will not be liable to the Purchaser or any of the Purchaser’s employees, agents or contractors for any contingent, consequential or punitive damages arising in any way whatsoever. The Purchaser acknowledges this express limitation of liability and agrees to limit any claim accordingly; and
the Supplier will not be liable to the Purchaser or any of the Purchaser’s employees, agents or contractors for any claim, loss or expense sustained or incurred by a person arising in any way as a result of the unavailability of the Products, or any delay in delivery of the Products or any part thereof.
The Purchaser will indemnify and will continue to indemnify the Supplier against any liability, loss, damage, claim, action, demand, costs, or expenses incurred or suffered by the Supplier, including, but not limited to:
any breach of these Terms;
any breach of any laws by the Purchaser;
any act or omission (negligent or otherwise) by the Purchaser; or
any action or trespass resulting from the Supplier entering the location in accordance with clause 10.
These limitations and indemnities continue after the expiration or termination of these Terms.
These Terms may be terminated at any time by mutual agreement between the parties.
The Supplier may terminate the Purchaser’s credit at any time by written notice to the Purchaser, at which time any further supply of Products by the Supplier to the Purchaser will be on cash on delivery terms.
These Terms may be immediately terminated by the Supplier if:
the Purchaser is in breach of these Terms and fails to remedy that breach within 7 days of receiving notice to do so;
the Purchaser fails to pay any amount outstanding to the Supplier after receiving 7 days prior notice that the amount is outstanding; or
the Purchaser becomes bankrupt or insolvent.
Any obligations of the Purchaser which accrue prior to the date of termination of these Terms will remain current and must be fulfilled by the Purchaser and will survive the termination of these Terms.
Products may only be returned with the Supplier’s consent which must be requested within 7 days of delivery of the relevant Products. All returned Products must be returned to the Supplier at the Purchaser’s cost.
These Terms are to be governed and interpreted in accordance with the laws of the State of South Australia. The parties agree to submit themselves to the non-exclusive jurisdiction of the courts of South Australia and any competent appellate courts.
Any notice to be given by one party to the other must be signed by the party giving the notice or by one of its duly authorized officers. The notice may be faxed to the intended recipient’s facsimile number or e-mailed to the intended recipient’s e-mail address. The notice will be deemed to have been received by the intended recipient upon receipt by the sender of a successful facsimile transmission answerback or in the case of e-mail, on the day of transmission provided that the sender is able to give evidence of transmission and the intended recipient does not give evidence of non-receipt.
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