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Terms & Conditions
Downs Microsystems Pty Ltd – Terms & Conditions of Trade
© Copyright – EC Credit Control Pty Ltd - 2006
1. Definitions
1.1 "DMS" shall mean Downs Microsystems Pty Ltd its successors and
assigns or any person acting on behalf of and with the authority of
DMS.
1.2 "Client" shall mean the Client or any person acting on behalf of and
with the authority of the Client.
1.3 "Guarantor" means that person (or persons), or entity, who agrees
to be liable for the debts of the Client on a principal debtor basis.
1.4 "Goods" shall mean Goods supplied by DMS to the Client (and
where the context so permits shall include any supply of Services
as hereinafter defined) and are as described on the invoices,
quotation, work authorisation or any other forms as provided by
DMS to the Client
1.5 "Services" shall mean all services supplied by DMS to the Client
and includes any advice or recommendations (and where the
context so permits shall include any supply of Goods as defined
above).
1.6 "Price" shall mean the cost of the Goods as agreed between DMS
and the Client subject to clause 3 of this contract.
2. Acceptance
2.1 Any instructions received by DMS from the Client for the supply of
Goods and/or the Client's acceptance of Goods supplied by DMS
shall constitute acceptance of the terms and conditions contained
herein.
2.2 Where more than one Client has entered into this agreement, the
Clients shall be jointly and severally liable for all payments of the
Price.
2.3 Upon acceptance of these terms and conditions by the Client the
terms and conditions are irrevocable and can only be amended with
the written consent of DMS.
2.4 All specifications, drawings, and particulars of weights and
dimensions submitted to Client are approximate only and any small
deviations shall not be taken to vitiate any contract with DMS or
form grounds for any claim against DMS.
2.5 The descriptions, illustrations and performances contained in
catalogues, price lists and other advertising matter do not form part
of the contract of sale of the Goods.
2.6 The Client undertakes to give DMS at least fourteen (14) days
notice of any change in the Client's name, address and/or any other
change in the Client's details.
3. Approval
3.1 If the Goods are to be leased DMS requires a letter of approved
funding from the lease company prior to delivery of the Goods.
3.2 The Client acknowledges primary responsibility for payment rests
with the Client and that in the event of default or failure by the lease
company the Client will be liable for payment of the Price.
3.3 Where an agreement is made for the Client to purchase the goods
subject to finance then the Client shall make all reasonable efforts
to obtain finance within the time stated in the agreement.
4. Price And Payment
4.1 At DMS's sole discretion the Price shall be either;
(a) as indicated on invoices provided by DMS to the Client in
respect of Goods supplied; or
(b) DMS's current Price, at the date of delivery of the Goods,
according to DMS's current Price list or "prepaid service plan";
or
(c) DMS's quoted Price (subject to clause 3.2) which shall be
binding upon DMS provided that the Client shall accept
DMS's quotation in writing within thirty (30) days.
4.2 Where the Client supplies specifications, drawings or other
particulars, the Price is made on estimates of quantities required.
Should there be any adjustments in quantities above or below the
quantities estimated by DMS and set out in any quotation, then any
such increase or decrease shall be adjusted on a unit rate basis
according to the Price.
4.3 At the sole discretion of DMS, DMS requires a non-refundable
deposit of 10% of the Price on placement of an order.
4.4 Unless otherwise agreed in writing between DMS and the Client
time for payment for the Goods shall be of the essence and will be
stated on the invoice or any other forms. If no time is stated then
payment shall be due seven (7) days following the date of the
invoice.
4.5 At DMS's sole discretion;
(a) payment for the Goods shall be fourteen (14) following the
date of the invoice; or
(b) payment for the Goods shall be thirty (30) days following the
date of the invoice; or
(c) payment shall be due on delivery of the Goods, or
(d) payment shall be due before delivery of the Goods, or
(e) if the Price is greater than AUD$75,000 payment for approved
Clients shall be made by progress payments. This payment
method requires percentage payments of the total contract
value based upon DMS reaching set performance goals
throughout the contract. These performance goals will be
agreed upon between the parties prior to commencement of
the contract, or
(f) payment for approved Client's shall be due on seven (7) days
following the end of the month in which a statement is posted
to the Client's address or address for notices.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or
by credit card (plus a surcharge of up to 3% of the Price), or by
direct credit, or by any other method as agreed to between the
Client and DMS.
4.7 GST and other taxes and duties that may be applicable shall be
added to the Price except when they are expressly included in the
Price.
5. Delivery Of Goods / Services
5.1 Delivery of the Goods shall be made to the Client's address. The
Client shall make all arrangements necessary to take delivery of the
Goods whenever they are tendered for delivery, or delivery of the
Goods shall be made to the Client at DMS's address.
5.2 Delivery of the Goods to a carrier, either named by the Client or
failing such naming to a carrier at the discretion of DMS for the
purpose of transmission to the Client, is deemed to be delivery of
the Goods to the Client.
5.3 The costs of carriage and any insurance which the Client
reasonably directs DMS to incur shall be reimbursed by the Client
(without any set-off or other withholding whatever) and shall be due
on the date for payment of the Price. The carrier shall be deemed to
be the Client's agent.
5.4 Where there is no agreement that DMS shall send the Goods to the
Client, delivery to a carrier at limited carrier's risk at the expense of
the Client is deemed to be delivery to the Client.
5.5 DMS may deliver the Goods by separate instalments (in
accordance with the agreed delivery schedule). Each separate
instalment shall be invoiced and paid for in accordance with the
provisions in this contract of sale.
5.6 Delivery of the Goods to a third party nominated by the Client is
deemed to be delivery to the Client for the purposes of this
agreement.
5.7 The failure of DMS to deliver shall not entitle either party to treat
this contract as repudiated.
5.8 DMS shall not be liable for any loss or damage whatever due to
failure by DMS to deliver the Goods (or any of them) promptly or at
all.
6. Risk
6.1 If DMS retains ownership of the Goods nonetheless, all risk for the
Goods passes to the Client on delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but
prior to ownership passing to the Client, DMS is entitled to receive
all insurance proceeds payable for the Goods. The production of
these terms and conditions by DMS is sufficient evidence of DMS's
rights to receive the insurance proceeds without the need for any
person dealing with DMS to make further enquiries.
6.3 DMS shall not be held liable for any loss or corruption of files
(including, but not limited to, software programmes) resulting from
repairs being undertaken on the Goods.
7. Title
7.1 It is the intention of DMS and agreed by the Client that ownership of
the Goods shall not pass until:
(a) the Client has paid all amounts owing for the particular
Goods, and
(b) the Client has met all other obligations due by the Client to
DMS in respect of all contracts between DMS and the Client.
7.2 Receipt by DMS of any form of payment other than cash shall not
be deemed to be payment until that form of payment has been
honoured, cleared or recognised and until then DMS's ownership or
rights in respect of the Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and
identifiable until DMS shall have received payment and all
other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from
DMS to the Client DMS may give notice in writing to the Client
to return the Goods or any of them to DMS. Upon such
notice the rights of the Client to obtain ownership or any other
interest in the Goods shall cease; and
(c) DMS shall have the right of stopping the Goods in transit
whether or not delivery has been made; and
(d) if the Client fails to return the Goods to DMS then DMS or
DMS's agent may enter upon and into land and premises
owned, occupied or used by the Client, or any premises as
Downs Microsystems Pty Ltd – Terms & Conditions of Trade
© Copyright – EC Credit Control Pty Ltd - 2006
the invitee of the Client, where the Goods are situated and
take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as
DMS has received payment in full for the Goods then the
Client shall hold any proceeds from the sale or disposal of the
Goods on trust for DMS; and
(f) the Client shall not deal with the money of DMS in any way
which may be adverse to DMS; and
(g) the Client shall not charge the Goods in any way nor grant
nor otherwise give any interest in the Goods while they
remain the property of DMS; and
(h) DMS can issue proceedings to recover the Price of the Goods
sold notwithstanding that ownership of the Goods may not
have passed to the Client; and
(i) until such time that ownership in the Goods passes to the
Client, if the Goods are converted into other products, the
parties agree that DMS will be the owner of the end products.
8. Client's Disclaimer
8.1 The Client hereby disclaims any right to rescind, or cancel the
contract or to sue for damages or to claim restitution arising out of
any misrepresentation made to the Client by DMS and the Client
acknowledges that the Goods are bought relying solely upon the
Client's skill and judgement.
9. Defects
9.1 The Client shall inspect the Goods on delivery and shall within
seven (7) days notify DMS of any alleged defect, shortage in
quantity, damage or failure to comply with the description or quote.
The Client shall afford DMS an opportunity to inspect the Goods
within a reasonable time following delivery if the Client believes the
Goods are defective in any way. If the Client shall fail to comply
with these provisions the Goods shall be presumed to be free from
any defect or damage. For defective Goods, which DMS has
agreed in writing that the Client is entitled to reject, DMS's liability is
limited to either (at DMS's discretion) replacing the Goods or
repairing the Goods.
10. Returns
10.1 Returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 8.1; and
(b) DMS has agreed in writing to accept the return of the Goods;
and
(c) the Goods are returned at the Client's cost within fourteen
(14) days of the delivery date; and
(d) DMS will not be liable for Goods which have not been stored
or used in a proper manner; and
(e) the Goods are returned in the condition in which they were
delivered and with all packaging material, brochures and
instruction material in as new condition as is reasonably
possible in the circumstances.
10.2 DMS may (in its discretion) accept the return of Goods for credit but
this may incur a handling fee of up to 40% of the value of the
returned Goods plus any freight.
10.3 Goods made or purchased to special order, Client specification or
non-catalogue items are under no circumstances acceptable for
credit or return. Cancellation of orders for special or non-catalogue
items will definitely not be allowed, once these orders have been
processed.
11. Warranty
11.1 For Goods not manufactured by DMS, the warranty shall be the
current warranty provided by the manufacturer of the Goods. DMS
shall not be bound by nor responsible for any term, condition,
representation or warranty given by the manufacturer of the Goods.
12. The Commonwealth Trade Practices Act 1974 and Fair Trading
Acts
12.1 Nothing in this agreement is intended to have the effect of
contracting out of any applicable provisions of the Commonwealth
Trade Practices Act 1974 or the Fair Trading Acts in each of the
States and Territories of Australia, except to the extent permitted by
those Acts where applicable.
13. Intellectual Property
13.1 Where DMS has designed, drawn or written Goods for the Client,
then the copyright in those designs and drawings shall remain
vested in DMS, and shall only be used by the Client at DMS's
discretion.
13.2 The Client warrants that all designs or instructions to DMS will not
cause DMS to infringe any patent, registered design or trademark in
the execution of the Client's order.
14. Default & Consequences Of Default
14.1 Interest on overdue invoices shall accrue from the date when
payment becomes due daily until the date of payment at a rate of
2.5% per calendar month and such interest shall compound
monthly at such a rate after as well as before any judgement.
14.2 If the Client defaults in payment of any invoice when due, the Client
shall indemnify DMS from and against all costs and disbursements
incurred by DMS in pursuing the debt including legal costs on a
solicitor and own client basis and DMS's collection agency costs.
14.3 Without prejudice to any other remedies DMS may have, if at any
time the Client is in breach of any obligation (including those
relating to payment), DMS may suspend or terminate the supply of
Goods to the Client and any of its other obligations under the terms
and conditions. DMS will not be liable to the Client for any loss or
damage the Client suffers because DMS exercised its rights under
this clause.
14.4 If any account remains overdue after thirty (30) days then an
amount of the greater of $20.00 or 10.00% of the amount overdue
(up to a maximum of $200) shall be levied for administration fees
which sum shall become immediately due and payable.
14.5 Without prejudice to DMS's other remedies at law DMS shall be
entitled to cancel all or any part of any order of the Client which
remains unperformed in addition to and without prejudice to any
other remedies and all amounts owing to DMS shall, whether or not
due for payment, become immediately payable in the event that:
(a) any money payable to DMS becomes overdue, or in DMS's
opinion the Client will be unable to meet its payments as they
fall due; or
(b) the Client becomes insolvent, convenes a meeting with its
creditors or proposes or enters into an arrangement with
creditors, or makes an assignment for the benefit of its
creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or
similar person is appointed in respect of the Client or any
asset of the Client.
15. Security And Charge
15.1 Despite anything to the contrary contained herein or any other
rights which DMS may have howsoever:
(a) where the Client and/or the Guarantor (if any) is the owner of
land, realty or any other asset capable of being charged, both
the Client and/or the Guarantor agree to mortgage and/or
charge all of their joint and/or several interest in the said land,
realty or any other asset to DMS or DMS's nominee to secure
all amounts and other monetary obligations payable under the
terms and conditions. The Client and/or the Guarantor
acknowledge and agree that DMS (or DMS's nominee) shall
be entitled to lodge where appropriate a caveat, which caveat
shall be released once all payments and other monetary
obligations payable hereunder have been met.
(b) should DMS elect to proceed in any manner in accordance
with this clause and/or its sub-clauses, the Client and/or
Guarantor shall indemnify DMS from and against all DMS's
costs and disbursements including legal costs on a solicitor
and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably
nominate constitute and appoint DMS or DMS's nominee as
the Client's and/or Guarantor's true and lawful attorney to
perform all necessary acts to give effect to the provisions of
this clause 14.1.
16. Cancellation
16.1 DMS may cancel these terms and conditions or cancel delivery of
Goods at any time before the Goods are delivered by giving written
notice. On giving such notice DMS shall repay to the Client any
sums paid in respect of the Price. DMS shall not be liable for any
loss or damage whatever arising from such cancellation.
17. Failure to Complete
17.1 If the Client fails to complete the contract, then the parties agree
that the Client shall immediately by way of damages for default;
(a) Pay to DMS a sum by way of liquidated damages equating to;
(i) 25% of the gross Price of firmware and hardware;
(ii) 25% of the gross Price of software;
(iii) 100% of the cost stated for labour, installation, testing
and set up fees.
(b) In the event of the amount not being separately specified on
the invoice then DMS may at its discretion apply;
(i) DMS's current advertised or published Price or the
product distributors advertised or published
recommended retail Price of the Goods; or
(ii) 25% of the whole contract value; or
Downs Microsystems Pty Ltd – Terms & Conditions of Trade
© Copyright – EC Credit Control Pty Ltd - 2006
(iii) Seek un-liquidated damages provided that the amount
determined cannot be less 25% of the gross purchase
Price of the Goods;
(c) Where the purchaser has ordered Goods not normally
stocked by DMS or software that has been opened or
registered to the Client, then the liquidated damages sum
shall be 90% of the original sale price of the Goods.
17.2 Where the Client has paid a deposit on the Goods and fails to
complete the contract, then the deposit shall be forfeited and shall
be treated as part payment of the liquidated damages sum. In the
event of the deposit exceeding the liquidated damages sum as
calculated in accordance with clause 16.1, then such surplus shall
be refunded to the Client within thirty (30) days of the date of
forfeiture.
18. Privacy Act 1988
18.1 The Client and/or the Guarantor/s agree for DMS to obtain from a
credit reporting agency a credit report containing personal credit
information about the Client and Guarantor/s in relation to credit
provided by DMS.
18.2 The Client and/or the Guarantor/s agree that DMS may exchange
information about the Client and the Guarantor/s with those credit
providers either named as trade referees by the Client or named in
a consumer credit report issued by a credit reporting agency for the
following purposes:
(a) to assess an application by Client; and/or
(b) to notify other credit providers of a default by the Client;
and/or
(c) to exchange information with other credit providers as to the
status of this credit account, where the Client is in default with
other credit providers; and/or
(d) to assess the credit worthiness of Client and/or Guarantor/s.
18.3 The Client consents to DMS being given a consumer credit report to
collect overdue payment on commercial credit (Section 18K(1)(h)
Privacy Act 1988).
18.4 The Client agrees that personal credit information provided may be
used and retained by DMS for the following purposes and for other
purposes as shall be agreed between the Client and DMS or
required by law from time to time:
(a) provision of Goods; and/or
(b) marketing of Goods by DMS, its agents or distributors in
relation to the Goods; and/or
(c) analysing, verifying and/or checking the Client's credit,
payment and/or status in relation to provision of Goods;
and/or
(d) processing of any payment instructions, direct debit facilities
and/or credit facilities requested by Client; and/or
(e) enabling the daily operation of Client's account and/or the
collection of amounts outstanding in the Client's account in
relation to the Goods.
18.5 DMS may give information about the Client to a credit reporting
agency for the following purposes:
(a) to obtain a consumer credit report about the Client; and/or
(b) allow the credit reporting agency to create or maintain a credit
information file containing information about the Client.
19. Items Left For Repair
19.1 Where the Client has left any item with DMS for repair, modification,
exchange or for DMS to perform any other Service in relation to the
item and DMS has not received or been tendered the whole of the
Price, or the payment has been dishonoured, DMS shall have:
(a) a lien on the item;
(b) the right to retain the item for the Price while DMS is in
possession of the item;
(c) a right to sell the item,
19.2 The lien of DMS shall continue despite the commencement of
proceedings, or judgement for the Price having been obtained.
20. Maintenance Agreement
20.1 Subject to the conditions set out in clauses 20.2 to 20.5 during its
normal business hours, and within a reasonable time of receipt of
request from the Client, DMS will;
(a) provide and install replacement parts necessary for the
effective working of the Goods. Replacement parts will be of
serviceable quality and may be new or used. All replaced
parts will become the property of DMS; and
(b) service (i.e. inspect, adjust and repair) the Goods without
further charge.
20.2 The Price payable under this agreement does not cover repair or
service to the Goods caused by failure or damage as a result of:
(a) negligence or wilful act or default of the Client; or
(b) electrical work external to the Goods; or
(c) operation of the Goods other than in accordance with the
relevant documentation, manuals and user guides originally
supplied with the Goods; or
(d) accident, misuse, vandalism or any act of God; or
(e) causes other than normal or proper use of the Goods the
environmental conditions where the equipement is located
differ from those under which the Goods is designed to
operate as set out in the documentation; or
(f) lightening of either a direct hit or induced surge; or
(g) electromagnetic interference or power surges of any type
irrespective of cause; or
(h) service calls by incorrect use of the Goods when no fault is
present; or
(i) relocation or reinstallation; or
(j) repair of any Goods not specified in this agreement.
20.3 The Price payable under this agreement does not cover the supply
or installation of version upgrades, either firmware or hardware, to
telephone system/s under the agreement.
20.4 The Client will pay for maintenance outside service hours, i.e.
9:00am to 5:00pm Monday to Friday (excluding Public Holidays) at
the rates then currently charged by DMS.
20.5 The Company will maintain its policy of not differentiating in the
standar of service between users owning and users renting their
NEC Equipment.
21. General
21.1 If any provision of these terms and conditions shall be invalid, void,
illegal or unenforceable the validity, existence, legality and
enforceability of the remaining provisions shall not be affected,
prejudiced or impaired.
21.2 These terms and conditions and any contract to which they apply
shall be governed by the laws of Queensland and are subject to the
jurisdiction of the courts of Queensland.
21.3 DMS shall be under no liability whatever to the Client for any
indirect loss and/or expense (including loss of profit) suffered by the
Client arising out of a breach by DMS of these terms and
conditions.
21.4 In the event of any breach of this contract by DMS the remedies of
the Client shall be limited to damages. Under no circumstances
shall the liability of DMS exceed the Price of the Goods.
21.5 The Client shall not be entitled to set off against or deduct from the
Price any sums owed or claimed to be owed to the Client by DMS.
21.6 DMS may license or sub-contract all or any part of its rights and
obligations without the Client's consent.
21.7 DMS reserves the right to review these terms and conditions at any
time. If, following any such review, there is to be any change to
these terms and conditions, then that change will take effect from
the date on which DMS notifies the Client of such change.
21.8 Neither party shall be liable for any default due to any act of God,
war, terrorism, strike, lock out, industrial action, fire, flood, drought,
storm or other event beyond the reasonable control of either party.
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