TERMS & CONDITIONS OF TRADE
“Act of insolvency” means being “insolvent” for the purposes of the definition in the Corporations Act 2001 or any Australian law relating to bankruptcy; or in relation to any person if in the reasonable opinion of the Seller there are sufficient facts to justify the conclusion that the person is insolvent.
“Buyer” means the purchaser of Quorum’s products and services, who pursuant to a Purchase Order (or otherwise) orders the supply of Products and/or services the subject of these Terms and that order is accepted by the Seller.
“GST” means GST, as imposed under the A New Tax System (Goods and Services Tax) Act 1999.
“Products” mean all goods supplied from The Seller to the Buyer.
“Purchase Order” means an order that satisfies the requirements from time to time set out by the Seller, based on the Price quoted by the Seller to the Buyer, and which is placed by the Buyer with the Seller whereby the Seller, if it accepts the Purchase Order, will agree to supply the Buyer with the Products and/or Services referred to in the Purchase Order or any other relevant documentation relating to the agreement whereby the Seller will supply the Products and Services to the Buyer plus additional charges as contemplated by these Terms.
“Services” means the supply of alarm monitoring and related security services as relevant requested by the Buyer to be provided to the Seller and the installation of Products connected with the supply thereof.
“The Seller” means Quorum Security Systems Pty Limited A.C.N 094 598 099.
Where the Buyer orders the supply of Products and/or Services, pursuant to a Purchase order or otherwise, and the Seller accepts that order, the parties agree that the order will be subject to these Terms
TERMS OF PAYMENT
The terms of payment under these Terms is within 14 days from the date the Buyer receives an invoice from the Seller, unless otherwise agreed between the parties. Terms of trade for contracts in excess of $10,000 may vary from the above terms, to allow for progress payments. Errors and ommissions in creating the sellers invoice are excepted. Payment is to be in Australian dollars, unless otherwise indicated, payable without any deduction or set-off whatsoever.
If monies owed to The Seller are not paid when due, they will bear interest as a liquidated damages amount, at the then current interest rate for judgment debts under the Civil Procedure Act NSW, from the date on which it is due until it is paid, provided that the Buyer is not thereby relieved from the obligation to make payments to The Seller at the time and in the manner specified. The Seller reserves the right, among other remedies, either to terminate the agreement comprising these Terms or to suspend further provision of Products or Services if the Buyer fails to pay for any Purchase Order when due.
RETENTION OF TITLE
(i.)Risk in the Products will pass to the Buyer on delivery.
(ii.)Title in the Products will pass to the Buyer on full payment of the corresponding invoice. Until such payment in full is received by The Seller, the Buyer takes custody of the Products as bailee and fiduciary agent of The Seller, and the Buyer agrees to store the Products separately from other Products in its possession so as to be readily identifiable as the property of The Seller and to keep them appropriately insured.
(iii.) Until title has passed to the Buyer, the Buyer may not sell the Products without the written consent of The Seller. If the Products are sold, the Buyer will hold the right to recover the proceeds of sale on trust for The Seller and will keep all proceeds received in a separate identifiable account on trust for The Seller, paying such amounts to The Seller upon request.
(iv.)The Buyer’s right to retain possession of the Products shall cease if the Buyer is in default of these Terms or the Terms of Payment, by more than 14 days, or within 3 days of non-compliance with a Letter of Demand from the Seller. This clause shall apply if the Buyer or a Guarantor, who guarantees the obligations of the Buyer to The Seller:
(a) commits an act of insolvency, or is in breach of these Terms; or
(b) if a Guarantor is in breach of its obligations under any guarantee provided to The Seller; or
(c) if incorrect information is given to The Seller by a Guarantor or the Buyer in relation to any Application for Commercial Credit made to The Seller.
(v.)In the event of (iv) above, the Buyer authorises The Seller or its nominee to enter the premises where the Buyer locates the Products or where The Seller may reasonably believe those Products may be in order to retain possession of those Products and remove them from the premises without liability for trespass or any resulting damage, and to retake possession of the Products and any other Products supplied by The Seller to the Buyer then not fully paid for, and to keep or resell any such Products repossessed provided that any excess of the proceeds of sale (less expenses of repossession of sale) after all monies owed by the Buyer to The Seller have been fully paid to the Buyer.
(vi.)The Buyer indemnifies The Seller against all claims, damages, costs and losses of any nature which The Seller suffers as a consequence of recovering or attempting to recover its Products.
(vii.)Notwithstanding the above provisions The Seller will be entitled to maintain an action against the Buyer for all amounts owing to The Seller in respect of the supply of the Products and until legal ownership has passed to the Buyer.
LIMITATION OF LIABILITY
(i.)To the extent permitted by law and except as otherwise provided in these Terms, the Buyer’s exclusive remedy will be for loss and damages and The Seller’s total liability for any and all losses and damages arising out of any and all causes whatsoever (whether such cause be based in contract, infringement of rights, negligence, strict liability, other tort or otherwise) will in no event exceed the purchase price of the Products or the Services in respect of which such cause arise, and in no event will The Seller be liable for incidental, consequential, exemplary or punitive damages resulting from any such cause (including, without limitation, loss of profit, loss of revenue or loss of opportunity).
(ii.)The Seller will not be liable for, and the Buyer assumes liability for, all personal injury and property damage connected with the handling, transportation, possession, use, further manufacture or resale of the Products.
(iii.)The Seller disclaims all conditions and warranties, express or implied, concerning the Products or Services, including any warranty of merchantability or fitness for purpose except to the minimum extent required by law. Such implied conditions and/or warranties are deemed to be included in these Terms, provided that unless prohibited by law The Seller’s liability for breach of the condition or warranty will, if the legislation permits, be limited to:
(a) the supplying of the Products or Services again;
(b) the payment of the cost of having the Products supplied again;
(c) repairing the Products; or
(d) any other remedy prescribed by any relevant law.
(iv.)To the extent permitted by law, a warranty claim will be considered if written notification of the claim is received by The Seller within seven days of the Buyer’s receipt of the Products or provision of the Services, or such longer period provided for under any applicable law and the Products are returned to The Seller in the same condition that they were delivered. Neither transportation charges for the return of Products, nor any other costs or charges incurred by the Buyer in that respect shall be payable by The Seller.
(v.)The Buyer acknowledges that it has not relied on The Seller’s skill or judgement or on that of any person by whom negotiations are conducted. The Seller and the Buyer hereby acknowledge that all Products purchased by the Buyer are NOT for the purpose of resupply in trade or commerce.
Either party must not assign its rights or delegate its performance under these terms without the prior written consent of other party and any attempted assignment or delegation without such consent will be void.
An act of insolvency of the Buyer shall give The Seller the right to cancel and terminate an agreement asking from accepting a Purchase Order and refuse to accept any further Purchase Orders and cancel any Credit that may have been made available to the Buyer. Should the Buyer’s financial situation be or become unsatisfactory to The Seller, which decision-making process may be exercised by The Seller in its absolute discretion, advance cash payments or security satisfactory to The Seller may be required.
To the extent that a Product supplied under a Purchase Order is a software Product then, in addition to these Terms, the sale and purchase of the Product is also to include a licence to use that software Product and will be supplied subject to the terms and conditions of the relevant licence agreement applicable to it. The Buyer acknowledges and agrees that Software licence agreements may be packaged with the software, may be separately provided to the Buyer for execution or may require on-screen acceptance by the Buyer. The Buyer agrees to use the software Product in accordance with the terms and conditions of the relevant licence agreement.
The price payable for the Products is exclusive of GST and The Seller may recover from the Buyer, the GST payable on any supply connected with a Purchase Order or these Terms. This GST is an additional obligation, and is the GST if any, able to be imposed on The Seller for such supplies made by it to the Buyer in relation thereto. The amount of GST recoverable is 10% of the GST exclusive price to the intent that the total considerable payable for any such supplies shall be inclusive of GST and the GST inclusive price or amount shall be the sum of the GST exclusive price or amount plus the GST applicable to the supply. If the rate of GST so imposed on The Seller increases to an amount higher than 10%, the GST recoverable shall be such higher percentage of the GST exclusive price or amount from the date of the increased rate coming into force. The GST may be recovered from the Buyer at the same time as payment is due for any applicable supply in accordance with these Terms.
CREDIT CARD PAYMENTS
If the Buyer makes payment by way of credit card, The Seller will charge a credit card processing fee, equal to the amount charged to The Seller from any credit card provider organisation in respect of the payment by way of that credit card. The Seller is only obligated to advise the Buyer of these rates when specifically requested to do so by the Buyer.
CREDITS, RETURNS AND DELIVERIES
Claims for credit will not be considered, unless they are advised in writing by the end of the next business day after delivery. The Buyer takes responsibility for checking the Products delivered against the Purchase Order and Invoice, and in the case of software Products to test or inspect such software Products upon those Products being authorised by the Seller for downloading by the Buyer. Failing such notice and to the extent permitted by law, the Products will be deemed to have been accepted by the Buyer. Any returned Products must be approved for return in advance, and transport must be by a nominated carrier of The Seller. Where goods are required to be delivered to premises that are unoccupied or unattended, the Buyer accepts full responsibility for those goods and Products delivered and agrees to pay for the goods and Products, whether or not they are actually received and/or are in good and merchantable condition or fit for purpose.
(i.)These Terms are governed by the laws applicable in the State of NSW Australia and each party submits to the exclusive jurisdiction of the courts of that State.
(ii.)These Terms constitute the full understanding of the Buyer and will apply to all transactions between The Seller and the Buyer after acceptance by the Buyer, to the exclusion of all representations of The Seller. Any other terms and conditions asserted by the Buyer to benefit the Buyer, either oral or written, express or implied, are excluded unless expressly agreed by The Seller in writing with reference to these Terms.
(iii.)The failure of The Seller at any time to insist upon strict performance of the provisions of these Terms will not be deemed a waiver of The Seller’s rights at any time thereafter to insist on strict performance.
(iv.)Documents sent by The Seller to the last known business/e-mail address or facsimile number for the Buyer notified to The Seller in writing will be deemed to have been received by the Buyer upon issue and the Buyer acknowledges that all of the Buyer’s employees, directors and secretaries have authority to negotiate, place and accept delivery of orders.
(v.)Without limiting the foregoing, the acceptance of a Purchase Order by The Seller includes acceptance of these Terms by the Buyer. No provision of these Terms merge by virtue of any supply being made or any amount due being paid or otherwise.
(vi.)The Buyer agrees that The Seller may recover from the Buyer, all costs that are associated with collection of overdue monies from the Buyer by The Seller which include but are not limited to legal fees on a full indemnity basis, and all costs, and all outgoings levied by third parties, acting for and on behalf of The Seller in respect of the collection of such overdue monies, also on a full indemnity basis.
(vii.)If the performance of the Seller’s obligations under these Terms is prevented, restricted or affected by force majeure including strike, lock out, raw material shortage, breakdown of plant, transport or equipment or any other cause beyond the reasonable control of the Seller, the Seller will give notice of such cause to the Buyer and after 7 days from the receipt by the Buyer of such notice, either party may terminate the relevant agreement to supply the Products without penalty
(viii.)The Seller may amend these Terms at any time, by mutual agreement in writing. By continuing to place orders for Products, the Buyer will be deemed to have accepted the revised Terms.
(ix.)If any provision of these Terms is invalid or unenforceable for any reason whatsoever, such provision shall be severed and the other provisions of these Terms shall not be affected by such invalidity or unenforceability and shall remain valid in all respects.
(x.)Where services are provided by the Seller to the Buyer in addition to the Products or otherwise, these Terms shall apply to those services as though a reference to those services were to Products, as the relevant context requires.