In these terms and conditions:
"Alarmcorp" means Alarmcorp Pty Ltd (ABN 25 133 152 084) of Unit 115, 45 Gilby Road, Mt Waverley, VIC 3129 Australia;
"Agreement" means any agreement or contract entered into for the provision of goods and/or services by Alarmcorp to the Customer;
"Customer" means a person, firm or corporation, jointly and severally if there is more than one obtaining goods and services;
"Goods" means any goods supplied by Alarmcorp to the Customer;
"Intellectual Property" means all copyright, trademarks, designs, patents, specifications, confidential information, whether registrable or not;
"GST" means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 as amended;
"Services" means the provision of services by Alarmcorp to the Customer; and
"Terms" means these Terms and Conditions of Trade.
2.Basis of Contract
2.1 Unless otherwise agreed by Alarmcorp in writing, the Terms apply exclusively to every contract for the sale of goods or services by Alarmcorp to the Customer and cannot be varied or supplanted by any other terms and conditions, including the Customer's terms and conditions of purchase (if any).
2.2 Any written quotation provided by Alarmcorp to the Customer concerning the proposed supply of goods or services is:
(a) valid for 30 days;
(b) an invitation to treat only;
(c) subject to the Customer offering to enter into an Agreement and accepting these Terms.
2.3 The Terms may include additional terms in Alarmcorp's quotation, which may be inconsistent with the Terms if specifically stated to be.
2.4 An Agreement is accepted by Alarmcorp when Alarmcorp confirms its acceptance of an offer from the Customer in writing or electronic means or provides the Customer with the goods or services.
2.5 Alarmcorp in its absolute discretion may refuse to accept any offer.
2.6 It is the Customer's responsibility to provide Alarmcorp with its specific requirements in relation to the goods and services.
2.7 Alarmcorp may vary or amend these Terms by notice in writing to the Customer at any time. Any variations or amendments will apply to orders made by the Customer after the date of notice.
3.1 Prices quoted, whether in a price list, by written quotation or verbally, for the supply of goods and services, exclude GST and any other taxes or duties imposed on or in relation to the goods and services. In addition to payment of the price of goods and services, the Customer must pay any GST and any other taxes or duties imposed on the goods and services.
3.2 All prices are quoted ex works and do not include the costs of delivery, carriage, packaging and insurance of the goods from the Alarmcorp's premises.
3.3 If the Customer requests any variation to the Agreement, Alarmcorp may increase the price to account for the variation.
3.4 Where there is any change in the costs incurred by Alarmcorp in relation to the goods or services, Alarmcorp may vary its price for the goods or services in order to take account of any such change, by notifying the Customer.
4.1 Subject to clause 4.3, payment for the goods and services must be made within 30 days from the end of month in which the goods are made available at Alarmcorp's premises.
4.2 Alarmcorp reserves the right to require payment in full on delivery of the goods or commencement of the services.
4.3 Payment by cheque is not deemed made until the proceeds of the cheque have cleared.
4.4 Payment terms may be revoked or amended at the sole discretion of Alarmcorp immediately upon giving written notice to the Customer.
5. Payment Default
5.1 If the Customer defaults in payment by the due date of any amount payable to Alarmcorp, then all money which would become payable by the Customer to Alarmcorp at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and Alarmcorp may, without prejudice to any other remedy available to it:
(a) claim a general lien over all the Customer's goods in the possession of Alarmcorp, and subject to giving 14 days written notice to the Customer, sell the property by private treaty or public auction, whichever Alarmcorp in its sole discretion deems appropriate, and allocate the proceeds to the repayment of its sale costs and expenses and any sum which is due and payable by the Customer;
(b) charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) plus 4 per cent for the period from the due date until the date of payment in full;
(c) charge the Customer for, and the Customer must indemnify Alarmcorp from, all costs and expenses (including without limitation all legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with the Conditions or to recover any goods;
(d) cease or suspend for such period as Alarmcorp thinks fit, supply of any further goods or services to the Customer;
(e) by notice in writing to the Customer, terminate any Agreement with the Customer so far as unperformed by Alarmcorp;
without effect on the accrued rights of Alarmcorp under any Agreement.
5.2 Clauses 5.1(c) and (d) may also be relied upon, at the option of Alarmcorp:
(a) where the Customer is an individual and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or
(b) where the Customer is a corporation and, it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, provisional liquidator, administrator, receiver or receiver and manager appointed, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Customer.
6. Passing of Property
6.1 Until full payment in cleared funds is received by Alarmcorp for all goods and services supplied by it to the Customer, as well as all other amounts owing to Alarmcorp by the Customer:
(a) title and property in all goods remain vested in Alarmcorp and do not pass to the Customer;
(b) the Customer must hold the goods as fiduciary bailee and agent for Alarmcorp;
(c) the Customer must keep the goods separate from its goods and maintain the labelling and packaging of Alarmcorp;
(d) the Customer is required to hold the proceeds of any sale of the goods on trust for Alarmcorp in a separate account however failure to do so will not affect the Customer's obligation to deal with the proceeds as trustee;
(e) Alarmcorp may without notice, enter any premises where it suspects the goods may be and remove them, notwithstanding that they may have been attached to other goods not the property of Alarmcorp, and for this purpose the Customer irrevocably licences Alarmcorp to enter such premises and also indemnifies Alarmcorp from and against all costs, claims, demands or actions by any party arising from such action.
7. Performance of Agreement
7.1 Any period or date for delivery of goods or provision of services stated by Alarmcorp is intended as an estimate only and is not a contractual commitment.
7.2 Alarmcorp will use its reasonable endeavours to meet any estimated dates for delivery of the goods or completion of the services.
7.3 Alarmcorp will use its reasonable endeavours to delivery the correct quantity ordered, however the Customer acknowledges that there may be difficulties in producing exact quantities, estimates or orders. The Customer cannot reject short or over delivery of less than 10% and must pay for or be refunded on a pro rata basis.
8.1 The Customer acknowledges that:
(a) it has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by Alarmcorp in relation to the goods or services or their use or application;
(b) it has the sole responsibility of satisfying itself that the goods or services are suitable for the use of the Customer or any contemplated use by the Customer, whether or not such use is known by Alarmcorp; and
(c) any description of the goods provided in a quotation or invoice is given by way of identification only and the use of such description does not constitute a contract of sale by description.
8.2 The Customer must not make any claim or demand for any matter referred to in clause 8.1.
9.1 If, through circumstances beyond the control of Alarmcorp, Alarmcorp is unable to effect delivery or provision of goods or services, then Alarmcorp may cancel the Customer's order (even if it has already been accepted) by notice in writing to the Customer.
9.2 No purported cancellation or suspension of an order or any part thereof by the Customer is binding on Alarmcorp after that order has been accepted.
9.3 If the Customer cancels the order after acceptance by Alarmcorp, then Alarmcorp will be entitled to damages for breach of contract.
10. Returns and Exchanges
10.1 Alarmcorp will not be liable for any defects, shortages, damage or non-compliance with the specifications in the Agreement unless the Customer notifies Alarmcorp in writing with full details within 10 business days of delivery of the goods or provision of the services.
10.2 If the Customer fails to give the notice as required in clause 10.1, it is deemed to have accepted the goods or services.
10.3 If any defects, shortages, claim for damage or non-compliance with the Agreement specifications are accepted by Alarmcorp, Alarmcorp may, at its option, replace the defective or missing goods or re-provide services, or refund the price of the defective or missing goods or services.
10.4 Alarmcorp will not under any circumstances accept goods for return:
(a) that have been altered in any way;
(b)that have been used; or
(c) that are not in their original condition and packaging.
10.5 The Customer must obtain Alarmcorp's prior written approval for the return of goods and pay all freight charges associated with the return of goods unless Alarmcorp accepts the reasons stated for the return is due to its fault.
11. Intellectual Property
11.1 The Customer acknowledges that it has no proprietary right or interest in any Intellectual Property created or owned by Alarmcorp in the design, creation or manufacture of the goods or provision of the services. The Customer must not at any time create, sell, manufacture or process any goods using or taking advantage of Alarmcorp's Intellectual Property without the prior written consent.
11.2 The Customer warrants that, where it provides Intellectual Property for use by Alarmcorp, it is legally entitled to do so.
11.3 Any Intellectual Property provided to the Customer by Alarmcorp in connection with the goods or services remains the exclusive property of Alarmcorp and must be returned to Alarmcorp on demand and must not be copied or communicated to any third party without the express written consent of Alarmcorp.
11.4 Alarmcorp reserves the right to discontinue delivery of any goods, the manufacture, sale or use of which, in the reasonable opinion of Alarmcorp, would infringe any Intellectual Property for which Alarmcorp is not licensed.
11.5 The Customer shall be solely responsible for and shall hold Alarmcorp fully indemnified against any loss or damage arising from or in connection with the provision of the goods or services, including without limitation, any action for infringement of Intellectual Property rights brought by any third party against Alarmcorp or the Customer in relation to the goods or any Intellectual Property provided by the Customer to Alarmcorp.
12. Grant of Licence
12.1 Subject to this Agreement, Alarmcorp hereby grants to the Customer a limited, non-exclusive, non-transferable licence to use the Intellectual Property relating to the goods or services for the Customer to use the goods or benefit from the services.
12.2 The Customer must not in any way assign, transfer, modify or alter Alarmcorp's Intellectual Property in an unauthorised manner or for an unauthorised purpose.
13. Risk and Insurance
13.1 The risk in the goods and all insurance responsibility for theft, damage or otherwise in respect of the goods will pass to the Customer immediately on the goods being despatched or picked up from Alarmcorp's premises.
13.2 Alarmcorp has no obligation to insure any property of the Customer in Alarmcorp's possession.
14.1 Except as specifically set out herein, or contained in any warranty statement provided with the goods or services, any term, condition or warranty in respect of the quality, merchantability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods or services, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded.
14.2 Replacement of the goods or resupply of the services is the absolute limit of Alarmcorp's liability howsoever arising under or in connection with the sale, use of, storage or any other dealings with the goods or services by the Customer or any third party.
14.3 Alarmcorp is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party.
14.4 Alarmcorp will not be liable for any loss or damage suffered by the Customer where Alarmcorp has failed to deliver goods or services or fails to meet any delivery date or cancels or suspends the supply of goods or services, or suspends or cancels the Copyright Licence.
14.5 Nothing in the Terms is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be excluded, restricted or modified.
15.1 The law of Victoria from time to time governs the Terms and the parties agree to the non-exclusive jurisdiction of the courts of Victoria, the Federal Court of Australia, and of courts entitled to hear appeals from those Courts.
15.2 Failure by Alarmcorp to enforce any of these Terms shall not be construed as a waiver of any of Alarmcorp's rights.
15.3 If any part of the Terms is unenforceable, it shall be read down so as to be enforceable or, if it cannot be so read down, the part shall be severed from these Terms without affecting the enforceability of the remaining part or Terms.
15.4 A notice must be in writing and handed personally or sent by facsimile or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by facsimile are deemed received on the facsimile machine confirming transmission.
15.5 Any dispute arising between Alarmcorp and Customer in relation to any Agreement shall be submitted to arbitration in accordance with and subject to The Institute of Arbitrators & Mediators Australia Rules for Conduct of Commercial Arbitrations.
16.1 Alarmcorp is bound by the Privacy Act 1988 and takes steps to ensure that all personal information obtained in connection with the Customer will be appropriately collected, stored, used, disclosed and transferred in accordance with the National Privacy Principles. Such information may be accessed by request to the Supplier in accordance with the Privacy Act.
16.2 Alarmcorp requires that the Customer comply with the National Privacy Principles in connection with any personal information supplied to it by the Supplier in connection with this Agreement.