Standard Supply Terms and Conditions

Parties Involved

Supplier
Alpha Global Pty Ltd of Level 23, 171 Sussex Street, Sydney, NSW 2000, Australia

andand

Customer
Addressee and/or company of the associated quote or invoice for which these terms of sale applied.

Recitals

The Customer wishes to enter into an agreement for the supply of Goods by the Supplier as stipulated on quotes and invoices distributed to the Customer.

The Supplier has agreed that it will provide such Goods to the Customer on the following agreed terms.

Operative Part

The parties agree as follows;

The Standard Terms of Agreement


1.0 Scope of this agreement

1.1 Supply

a. The Supplier agrees to provide the Goods and any related Services to the Customer of this Agreement and as requested by the Customer and agreed to by the Supplier from time to time.

b. The terms of this Agreement, notwithstanding anything contained or stated in the Customer’s Purchaser Order, or in correspondence between the parties or elsewhere, shall be binding on the parties and the terms of this Agreement shall prevail over all prior negotiations.

c. All other terms or conditions including those in the Customer’s offer, Purchase Order or other document, are excluded, unless specifically agreed otherwise in writing by the Supplier.

d. This Agreement may be dependent upon any software license provided or to be provided by the Supplier to the Customer in respect of some or all of the Goods. If this Agreement is terminated or expired, any accompanying license may/will also terminate.

1.2 Relationship of Parties

The relationship of the Supplier and the Customer under this Agreement is that of principal and independent contractor. This Agreement does not make either party a joint venturer, partner, employee or agent of the other. No act or omission of either party is to bind the other party except as expressly set out in this Agreement.

1.3 Term and Extended Term

a. The Term of the agreement is based on the associated quoted and/or invoiced Goods and Services provided to the Customer. In most cases the term will imply immediate processing of orders and is effective immediately upon agreement by issuing purchase orders or making related payments.

b. If not terminated sooner or extended pursuant to clause 1.3(c), this Agreement expires at the end of the Term;

c. The Term may be extended by the parties as following;

(i) by either party giving written notice to the other no later than three (3) months prior to expiry of the initial Term referred to in clause 1.3 (a) of a intention to extend the Term (Extension Request);

(ii) the parties agreeing that the Term will be extended for an additional period equivalent in time to the initial Term. Agreement by an Extension Request by the Supplier, is subject to the Customer not being in default of any material term of the Agreement at the date of the Extension Request;

(iii) the Term may be extended for successive initial Term periods by following the procedure in clause 1.3(c) (i) and (ii);

(iv) If the Term is extended in accordance with the 1.3(c) the terms and conditions of this Agreement will apply to any extended term(s) save and except the Fees, which may be increased by the Supplier – this includes CPI increases where relvent.


2.0 Purchase Orders

2.1 Purchase Order

The Customer may request the supply of the Goods from the Supplier by using a Purchase Order request. A Purchase Order request may specify;

  • the Goods to be supplied;
  • a proposed timetable (Proposed Timetable);
  • any other relevant matter including delivery addresses.

2.2 On receipt of a Purchase Order request, the Supplier will submit invoices to the Customer in relation to the Purchase Order request and subject to clause 1.1, and acceptance of the Purchase Order and any supply of the Goods under such Purchase Order does not give rise to a new or separate agreement.

2.3 By submitting a Purchase Order to the Supplier, you as the Customer are agreeing to these Standard Terms of Sale unless otherwise negotiated.

2.4 If terms of sale has been negotiated, a separate Terms of Sale agreement will be issued in which case will take precedence over these terms of sale.


3.0 Fees, GST, Invoicing and Payment

3.1 Fees

a. The Customer will pay the Supplier Fees for the Good in accordance with Schedule 3; including all related invoices.

b. The Customer will pay to the Supplier the Additional Charges for the Goods if applicable.

c. The Customer agrees to pay all Goods and Services as quoted and related to the purchase order.

3.2 The Supplier reserves the right to request a deposit be paid by the Customer as a condition of acceptance of the Customer’s Purchase Order or at any milestone date specified by the Supplier.

3.3 GST

The consideration specified in this Agreement does not include any amount for GST. If a supply under this Agreement is subject to GST, the recipient must pay to the Supplier an additional amount equal to the fees payable multiplied by the applicable GST rate. The additional amount is payable at the same time as the consideration for the supply is payable or is to be provided. However, the additional amount need not be paid until the supplier gives the recipient a Tax Invoice. If the additional amount differs from the amount of GST payable by the supplier, the parties must adjust the additional amount.

3.4 Reimbursement

If a party is entitled to be reimbursed or indemnified under this agreement, the amount to be reimbursed or indemnified does not include any amount for GST for which the party is entitled to an input tax credit.

3.5 Pricing and Invoicing

  • Pricing and Invoices
    • Subject to clause 3.5(c), the Supplier will invoice the Customer for the Fees and any Additional Charges in accordance with Schedule 3.
    • Unless otherwise stated all prices, quotes or other amounts are in Australian Dollars (AUD$).
    • The Supplier reserves the right to make any changes necessary to the Fees in relation to the Goods including but not limited to covering:
      • any cost variation;
      • any act or omission on the Customer’s part or the part of the Customer’s agents;
      • to correct any typographical errors which may be present in the prices, deliveries or specifications in any quote;
      • any adverse change in monetary exchange rates;
      • any increases in costs beyond the control of the Supplier which result in the Fees being increased by the same amount;
      • any Consumer Price Index (‘CPI’) increases;

and will notify the Customer in writing of any such variation in Fees at least two (2) weeks before the proposed change takes effect.

  • For any extended Term of this Agreement:
    • all Fees will be increased in proportion to the increase in the Australian Consumer Price Index (All Capitals) in the most recent 12-month period for which CPI data is available; and
    • the Supplier may increase its Fees to reflect item 3.5(c)(iv) and (v).

3.6 Payment

  • The Customer will pay all invoices of the Supplier issued to the Customer within 30 days of the date of invoice without set-off, cross demand or cross claim, unless otherwise agreed by the Supplier.
  • Should payment not be made in accordance with the Supplier’s payment terms, the Supplier may, in addition to its other rights and at its option:
    • charge the Customer weekly interest on the overdue amount based on the prevailing Commonwealth Bank of Australia base corporate overdraft rate for facilities over $100,000, plus 3%;
    • withhold further deliveries of Goods or provision of Services or suspend use of any Software under this or under any Software License and Managed Services Agreement accompanying this Agreement.; or
    • withdraw or refuse credit.

3.7 Customs Entry and Export Licenses

If the Goods are imported into Australia the Supplier must:

  • arrange for customs entry into Australia and pay any customs duty;
  • obtain any necessary export license and other approval from the country the Goods are to be imported from and on request of the Customer provide evidence that such licenses and approvals have been obtained.

4.0 Delivery and Timing

4.1 Suppliers Obligation

The Supplier with provide the Goods in accordance with any proposed Delivery Timetable.

4.2 Delivery Timetable

The Delivery Timetable is a proposal of dates and times for Delivery of the Goods only, and the dates and times that may be given or agreed to by the Supplier for supply of the Goods are given or agreed in good faith and are estimates only. The Customer is not relieved of any obligation to accept or pay for the Goods by reason of any delay in delivery. If the Supplier fails to provide the Goods or perform any other obligation by the date required under the Delivery Timetable, the Supplier must follow the procedure set out in clauses 4.3 and 4.4.

4.3 Notice of Delay

As soon as the Supplier becomes aware that it may not meet a Delivery Timetable under this Agreement by the date stated in the Delivery Timetable, the Supplier must promptly notify the Customer in writing. The notice must include:

  • the cause or causes of the delay; and
  • the steps the Supplier is taking to minimise the delay;

4.4 Extension of Time

The Delivery Timetable will be revised to reflect any delays referred to in clause 4.3.

4.5 Access

    • At the time of delivery the Customer must provide, at their cost:
      • safe and unobstructed access to the building at which the Goods are to be provided via a sealed road;
      • 240V AC power outlets within 30 meters of where the Goods are to be assembled, together with adequate lighting;
      • a large enough area adjacent to where the Goods are to be assembled for the purpose of storing components and tools and for the assembly of individual components.
      • an installation area clear of other trades and obstructions.
      • standard services and equipment, including lavatories, first-aid and washing facilities.
    • The Customer acknowledges that if the Supplier does not have full, free and unencumbered access to the building and the area where the Goods are to be assembled at all material times, the Supplier may not be in a position to perform its obligations under this Agreement and that, consequently the Supplier is relieved from its obligations under this Agreement to the extent that it is prevented from performing such obligations.

5.0 Goods and Services

5.1 Quality of Services

The Services must be provided with due care and skill and must conform to the requirements of this Agreement.

5.2 Goods Obligations

The Supplier must ensure that the Goods:

  • match the description, including any performance criteria, provided in any Goods proposal forming part of this Agreement;
  • comply with any relevant standard of the Standards Association of Australia and any other standards specified in this Agreement;
  • are fit for the purpose for which Goods of the same kind are commonly supplied;
  • are of merchantable quality;

5.3 Title and Risk

  • Risk of loss or damage to the Goods, passes to the Customer on the earlier of delivery (a) at or in the near vicinity of an address specified by the Customer; (b) into the possession of the Customer or its carrier at the premises of the Customer; (c) into the possession of a carrier at the premises of the Supplier, where such carrier has been engaged by the Supplier to deliver the Goods to the Customer (“Delivery”).
  • Ownership, title and property in the Goods and in any proceeds of sale of those Goods remains with the Supplier until payment in full for the Goods and all sums due and owing by the Customer to the Supplier on any account or agreement with the Supplier has been made.
  • The Customer is deemed to be in default immediately, have committed breach of a material term of this Agreement, upon the happening of any of the following events:
    • if any payment to the Supplier is not made promptly by the due date for payment;
    • if the Customer ceases to carry on business or stops or suspends payment or states its intention of so doing or is unable to pay its debts as they fall due or if any payment by the Customer to the Supplier is dishonoured or cancelled.
  • In the event of a default by the Customer, then, without prejudice to any other rights which the Supplier may have at law or under this Agreement:
    • The Supplier or its agents may without notice to the Customer enter the Customer’s premises or any premises under the control of the Customer for the purposes of recovering the Goods;
    • The Supplier may recover and resell the Goods;
    • If the Goods cannot be distinguished from similar Goods which the Customer has or claims to have paid for in full, the Supplier may in its absolute discretion seize all goods matching the description of the Goods and hold same for a reasonable period so that the respective claims of the Supplier and the Customer may be ascertained. The Supplier must promptly return to the Customer any goods the property of the Customer and the Supplier is in no way liable or responsible for any loss or damage to the goods or for any loss, damage or destruction to the Customer’s business howsoever arising from the seizure of the goods.

5.4 Inspection of Goods

The Customer must inspect the Goods within 7 days after delivery.

5.5 Rejection of Defective Goods

If on inspection the Customer finds that any Goods do not conform to the requirements of this Agreement or are otherwise defective, the Customer may:

  • reject the defective Goods by returning them to the Supplier or making them available for collection at the address set out in the Contract Details (or such address otherwise nominated by the Customer); or
  • accept the defective Goods at a reduced price agreed with the Supplier.

6.0 Intellectual Property Rights

6.1 Unless otherwise specified in writing, the Supplier exclusively owns or has a licence or right to use all Intellectual Property in the Goods, including the Software, that it designs, creates, modifies, supplies or licences, even if it was created or modified for or as suggested by the Customer.

6.2 The Customer agrees not to infringe the Intellectual Property Rights of the Supplier, and except as expressly authorized under this Agreement, the Customer will not   use, copy, adapt, translate or otherwise exploit the Intellectual Property Rights of the Supplier.  Nothing in Agreement affects the Intellectual Property Rights in any open source software. Intellectual Property Rights in all open source software is subject to the terms of the open source software licence under which it is provided.

6.3 IP Claims

In the event a third party brings a claim against the Customer that the Customer’s use of the Goods, including the Software in accordance with this Agreement is an infringement of that person’s Intellectual Property Rights or other rights (including a misuse of the person’s confidential information) (each an “Infringement Claim”) then, subject to clauses 6.4 and 6.5, the Supplier will, as the Customer’s sole and exclusive remedy, defend the Customer against any such Infringement Claim and indemnify the Customer from the resulting costs, damages and attorney’s fees that a court awards against the Customer under a court judgment to such third party or that are agreed to in settlement (approved in advance by the Supplier) provided that:

  • the Customer:
    • promptly notify the Supplier in writing of any known or reasonably suspected Infringement Claim; and
    • does not make any admission of liability in relation to, or agree to any settlement or compromise of, an Infringement Claim without the Supplier’s prior written consent.

6.4 The Supplier is not obliged to defend any Infringement Claim which arises directly out of the Customer’s failure to comply with its obligations under this Agreement.

6.5 The Supplier will have no liability for any Infringement Claim based on:

  • modifications to the Goods made by or on behalf of the Customer by anyone other than the Supplier without the Supplier’s approval;
  • the Supplier’s compliance with any directions or specifications provided by the Customer or a third party on the Customer’s behalf;
  • use of Goods by the Customer other than in accordance with the manufacturer’s specifications and applicable licence restrictions, or the use of a superseded version of Goods should the Infringement Claim have been avoided by using the current version; or
  • use of the Goods in combination with equipment or software for a purpose or in a manner for which the Goods were not reasonably intended.

6.6 If a person makes an Infringement Claim on reasonable grounds or if the Supplier believes that it is necessary to avoid an Infringement Claim, then the Supplier may promptly (at its option and expense):

    • procure the right for the Customer to continue to use the Goods;
    • modify or replace the Goods to avoid continuing infringement; or
    • if neither of the alternatives in the preceding paragraphs is reasonably available, remove the infringing Goods and provide a refund of the Fees paid by the Customer in relation to the infringing Goods.

7.0 Personal Property Securities Act 2009 (Cth) – ‘PPSA’

7.1 Defined terms in this clause have the same meaning as given to them in the PPSA.

7.2 The Supplier and the Customer acknowledge that this Agreement constitutes a Security Agreement and entitles the Supplier to claim a Purchase Money Security Interest (“PMSI”) in favour of the Supplier over the Goods (Collateral’) supplied or to be supplied to the Customer as Grantor pursuant to this Agreement, and in any proceeds.

7.3 The Goods supplied or to be supplied under this Agreement fall within the PPSA classification of ”Other Goods” acquired by the Customer pursuant to this Agreement.

7.4 The Supplier and the Customer acknowledge that the Supplier, as Secured Party, is entitled to register its Security Interest in the Collateral supplied or to be supplied to the Customer pursuant to this Agreement and in the relevant Proceeds.

7.5 To the extent permissible at law, the Customer:

    • waives its right to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the Customer to the Supplier.
    • agrees to indemnify the Supplier on demand for all costs and expenses, including legal costs and expenses on a solicitor / client basis, associated with the:
      • registration or amendment or discharge of any Financing Statement registered by or on behalf of the Supplier; and
      • enforcement or attempted enforcement of any Security Interest granted to the Supplier by the Customer;
    • agrees that nothing in sections 130 and 143 of the PPSA will apply to these this Agreement or the Security under this Agreement;
    • agrees to waive its right to do any of the following under the PPSA:
      • receive notice of removal of an Accession under section 95;
      • receive notice of an intention to seize Collateral under section 123;
      • object to the purchase of the Collateral by the Secured Party under section 129;
      • receive notice of disposal of Collateral under section 130;
      • receive a Statement of Account if there is no disposal under section 132(4);
      • receive a Statement of Account under section 132(3)(d) following a disposal showing the amounts paid to other Secured Parties and whether Security Interests held by other Secured Parties have been discharged.
      • receive notice of retention of Collateral under section 135;
      • redeem the Collateral under section 142; and
      • reinstate the Security Agreement under section 143.
    • All payments received from the Customer must be applied in accordance with section 14(6)(c) of the PPSA.

8.0 Confidential Information

8.1 Confidential Information

Confidential information includes:

  • any information about the Supplier or Customer’s business that is disclosed to or learnt by the recipient party in the course of providing the Goods; and
  • any information that is developed by the Supplier in the course of providing the Goods.

8.2 Exclusions

Confidential information does not include:

  • information that is in or enters the public domain other than as a result of a breach of confidence; or
  • information known by the recipient independent of the provision of the Goods, including information acquired from a third party entitled to disclose it.

8.3 Permitted Use

Either party may only use the other’s Confidential Information as required for the proper performance of this Agreement.

8.4 Disclosure of Information

  • The recipient may only disclose the other party’s Confidential Information to its employees who need the information for the proper performance of this Agreement;
  • as required by law or by a stock exchange; and
    • to a government agency or authority, a legal, financial or other adviser including an auditor of the party.
 
  • Any such disclosure must be made on a confidential basis.

8.5 Protection of Information

The recipient of a party’s Confidential Information under this Agreement must ensure that its handling and storage of the other party’s Confidential Information (including storage on information systems) is effective to restrict access to persons who need the information for the proper performance of this Agreement.

8.6 General Obligations of the Parties

The parties must:

  • ensure that its employees, officers, contractors and agents who collect, use, disclose, store or handle Personal Information are aware of the party’s obligations under this Agreement in relation to such activities or practices;
  • immediately notify the other party if it becomes aware of a breach or possible breach of its obligations in relation to the collection, use, disclosure, storage or handling of Personal Information under this Agreement; and
  • indemnify the other party against any direct and provable loss or damage suffered by that party as a result of a breach by the recipient party of its obligations in relation to the collection, use, disclosure, storage or handling of Personal Information under this Agreement.

9.0 Warranty

To the extent permissible by law and at the Supplier’s option, the Supplier’s liability is limited to:

9.1 In relations to the goods

  • the replacement of the goods or the supply of equivalent goods;
  • the repair of the goods;
  • the payment of the cost of replacing the goods or of acquiring equivalent goods; or
  • the payment of the cost of having the goods repaired.

9.2 In relation to services

  • the supply of the services again; or
  • payment of the cost of having the services supplied again.

9.3 To the extent permitted at law, all other warranties whether implied or otherwise, not set out in this Agreement, are excluded and the Supplier is not liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate the Customer for any Consequential Loss.


10.0 Disputes

10.1 Notice of Dispute

Any party claiming that a dispute has arisen under or in relation to this Agreement must give notice to the other party in writing, setting out the details of the dispute and the circumstances giving rise to the dispute.

10.2 Negotiation

After notice of a dispute has been given, the Representatives of each party will use their best endeavours to resolve the dispute by good faith negotiations on a without prejudice basis.

10.3 Dispute Resolution

If the Representatives have not resolved the dispute within 14 days of notification, the parties may pursue other forms of dispute resolution. Nothing in this Agreement prevents a party from commencing court proceedings to seek urgent interim or interlocutory relief at any time.

10.4 Record Keeping

The parties must keep records, and must ensure any subcontractors keep records, necessary to demonstrate compliance with this agreement.


11.0 Force Majeure

11.1 Notice and Suspension of Obligations

  • If a party is affected, or likely to be affected, by a Force Majeure Event:
    • that party must immediately give the other party prompt notice of that fact including:
    • full particulars of the Force Majeure Event;
    • an estimate of its likely duration;
    • the obligations affected by it and the extent of its effect on those obligations; and the steps taken to rectify it; and
  • the obligations, except any obligation to make payment under this Agreement, of the party giving the notice are suspended to the extent to which they are affected by the relevant Force Majeure Event as long as the Force Majeure Event continues.

11.2 Effort to Overcome

A party claiming a Force Majeure Event must use its best endeavors to remove, overcome or minimize the effects of that Force Majeure Event as quickly as possible. This does not require a party to settle any industrial dispute in any way that it considers inappropriate.

11.3 Termination

If a Force Majeure Event continues for more than 60 Business Days, either party may terminate this agreement by giving at least 5 Business Day’s written notice to the other party.


12.0 Termination

12.1 Termination for Insolvency

Either party may terminate this Agreement by notice in writing to the other party if the other party becomes Insolvent, and to the extent that termination is permitted at law.

12.2 Termination of Cause

Either party may terminate this Agreement by notice in 30 days writing to the other if the other commits a material breach of this Agreement and

  • the breach is not capable of being cured; or
  • the breach is capable of being cured but the breaching party fails to cure the breach within 30 days of receiving the notice of breach.

12.3 Termination for Convenience

Either party may terminate this Agreement without cause by giving the other party 60 days’ notice in writing.

12.4 Consequences of termination

  • if terminated under clause 11, the Customer must pay the Supplier all outstanding Fees and Additional Charges, and Fees for Goods and Services referred to in clause 11.4(b) on receipt of an invoice;
  • the Supplier must return any of the Customer’s property provided to it under this Agreement and must deliver any outstanding Goods and Services that are fully or partially complete;
  • a party must return to the other party all of the other party’s Confidential Information.

13.0 Assignment and Subcontracting

13.1 Assignment

  • The Supplier may novate or assign its rights or obligations under this Agreement by notice in writing to the Customer.
  • The Customer may novate or assign its rights or obligations under this Agreement with the prior written consent of the Supplier, which consent shall not be unreasonably withheld.

14.0 Notices

14.1 Form of notices

Any notice, approval, consent or other communication in relation to this Agreement must:

  • be in writing;
  • be marked for the attention of:
    • in the case of a notice to the Customer, the Customer’s Representative; and
    • in the case of a notice to the Supplier, the Supplier’s Representative; and
  • be left the address set out in the Contract Details, be sent by prepaid ordinary or express post or sent by email to the Representative as set out in the Contract Details.

14.2 Effect of Notice

A notice, approval, consent or other communication takes effect from the time it is received unless a later time is specified in it.

14.3 Notices sent by post in Australia

If posted in Australia, a letter is taken to be received on the third day after posting, unless sent by express post, in which case it is deemed to have been delivered the next business day.

14.4 Notices sent by post overseas

If posted overseas, a letter is taken to be received on the seventh day after posting.

14.5 Email

An email is taken to be received at the time shown in a delivery confirmation report generated by the sender’s email system.


15.0 General

15.1 Governing Law

This Agreement is governed by the law in force in the State of New South Wales. Each party submits to the non-exclusive jurisdiction of the court of the State of New South Wales and courts entitled to hear appeals from those courts.

15.2 Waiver

A party’s rights under this Agreement can only be waived by that party in writing.

15.3 Variation

This Agreement may not be varied except in writing signed by both parties.

15.4 Exercise of Rights

A party may exercise a right, remedy or power in any way it considers appropriate. If a party does not exercise a right, remedy or power at any time, this does not mean that party cannot exercise it later.

15.5 Remedies Cumulative

A party’s rights, remedies and powers under this Agreement are in addition to any rights, remedies and powers provided by law.

15.6 Indemnities

The indemnities in this Agreement are continuing obligations, independent from the other obligations of the parties under this agreement and continue after this agreement ends. It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity under this agreement.

15.7 Severability

If any terms and condition of this Agreement are invalid or enforceable, that part may be severed and the remaining terms and conditions of this Agreement will remain in full force and effect.

15.8 Counterparts

  • This Agreement may consist of a number of copies, each signed by one or more parties to the Agreement. If so, the signed copies are treated as making up the one document and the date on which the last counterpart is executed will be the date of the agreement.
  • Counterparts may be exchanged by way of email.

15.9 Entire Agreement

This Agreement constitutes the entire agreement of the parties about its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter.


16.0 Interpretation

16.1 Definitions

These meanings apply unless the contrary intention appears:

Additional Charges includes all delivery, handling and storage charges, goods and services tax, stamp duty, interest, legal and other costs of recovery of unpaid money including solicitors costs on an indemnity basis and as a liquidated sum, and all other government imposts and all money, other than the purchase price, payable by the Customer to the Supplier arising out of the sale of the Goods and / or Services.

Agreement means this supply agreement and any attachments or schedules to it.

Claim means any action, claim, demand or proceeding.

Confidential Information means all confidential, non-public or proprietary information regardless of how the information is stored or delivered, exchanged between the parties before, on or after the date of this Agreement relating to the business affairs, technology, clients, marketing and business strategy, financial affairs, reports, prices, or other confidential affairs of the Discloser.

Consequential Loss means:

  • loss of revenue;
  • loss of profit or anticipated profit;
  • loss of business;
  • loss of business reputation;
  • loss of opportunities;
  • loss of anticipated savings;
  • loss of goodwill; and
  • any other loss suffered by a party as a result of a breach of this Agreement that cannot reasonably be considered to arise directly and naturally from that breach.

Delivery Timetable means any date or time specified for delivery of the Goods.

Fees means the fees for Goods and the Services calculated based on the rates specified in this Agreement, and as may be amended from time to time.

Force Majeure Event means any occurrence or omission as a direct or indirect result of which the party relying on it is prevented from or delayed in performing any of its obligations under this agreement and that is beyond the reasonable control of that party, including but not limited to forces of nature, industrial action and action or inaction by a government agency or any such events, whether of a like kind or otherwise.

Goods means any physical or virtual Hardware or Software and includes any related Services, unless the context otherwise provides.

GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Hardware means any physical technology or other goods supplied by the Supplier.

Insolvent means, for a person, if:

  • it has had a liquidator or provisional liquidator appointed; or
  • it is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute or dissolved (in each case, other than to carry out a reconstruction or amalgamation while solvent on terms approved by the other parties to this agreement and to the extent permitted at law); or
  • an application or order has been made (and in the case of an application, it is not stayed, withdrawn or dismissed within 20 Business Days), resolution passed, proposal put forward, or any other action taken, in each case in connection with that person, which is preparatory to or could result in any of (a), (b) or (c) above; or
  • it is taken (under section 459F(1) of the Corporations Act 2001 (Cth)) to have failed to comply with a statutory demand; or
  • it is the subject of an event described in section 459C(2)(b) or section 585 of the Corporations Act 2001 (Cth) (or it makes a statement from which another party to this agreement reasonably deduces it is so subject); or
  • it is otherwise unable to pay its debts when they fall due; or
  • something having a substantially similar effect to (a) to (f) happens in connection with a party under this Agreement under the law of any jurisdiction. 

Intellectual Property or Intellectual Property Rights includes any patent (including without limitation originals, divisionals, continuations, continuations-in-part, extensions, foreign applications, utility models and re-issues), patent application, trademark (whether registered or unregistered), trade name, service mark (whether registered or unregistered), service mark application, copyright (including all registrations and applications therefore ), copyright application, trade secret, know-how, confidential information, process, technology, development tool, idea, concept, design right, data base right, methodology, algorithm or invention and other proprietary and intellectual property rights as defined in Article 2 of the Convention Establishing the World Intellectual Property Organisation of July 1967, including without limitation Moral Rights, any right to use or exploit any of the foregoing, and rights related to any software or similar intangible asset.

Material means material in whatever form including documents, reports, products (including the Products), equipment, information, data, and software. 

Moral Rights has the meaning ascribed to in in the Copyright Act 1968 (Cth). 
 
  • Personal Information has the meaning as defined in any applicable Privacy Law. 
  • Privacy Law means any legislation or administrative requirement (as amended from time to time) imposing an obligation in relation to the collection, use, disclosure, storage and transmission of personal information which is applicable to a party in the performance of its obligations under this agreement, including without limitation any codes, principles or guidelines contained in or arising out of such legislation Representative, in relation to a party, means that party’s representative identified in the Purchase Order or any replacement person nominated by that party at any time. 
  • Services means any services to be provided under this Agreement associated with the installation or supply of the Goods. Software means software programs and systems in relation to the Hardware delivered on a subscription basis by the Supplier under a Software Licence and Managed Services Agreement entered into with the Customer on the date of this Agreement, and includes all updates, upgrades, enhancements and modifications made from time to time by the Supplier at no additional charge. Software License and Managed Services Agreement means the license, subscription and services agreement entered or to be entered on the same date of this Agreement between the Supplier and Customer which supports the Goods provided under this Agreement by the Supplier. 
  • Tax Invoice has the same meaning as in the A New Tax System (Deliverables and Services Tax) Act 1999 (Cth).16.2 Reference to certain general terms
  • Unless the contrary intention appears, a reference in this agreement to:
    • (variation or replacement) a document (including this agreement) includes any variation or replacement of it;
    • (references to statutes) a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re- enactments or replacements of any of them;
    • (singular includes plural) the singular includes the plural and vice versa;
    • (person) the word “person” includes an individual, a firm, a body corporate, a partnership, joint venture, an unincorporated body or association, or any Government Agency;
    • (reference to a group of persons) a group of persons or things is a reference to any two or more of them jointly and to each of them individually;
    • (dollars) an amount of money is a reference to the lawful currency of Australia;
    • (calculation of time) a period of time that dates from a given day or the day of an act or event is to be calculated exclusive of that day;
    • (reference to a day) a day is to a calendar day and is to be interpreted as the period of time commencing at midnight and ending 24 hours later;
    • (meaning not limited) the words “include”, “including”, “for example” or “such as” are not to be interpreted as words of limitation, and when such words introduce an example, they do not limit the meaning of the words to which the example relates, or to examples of a similar kind;
    • (next day) if an act under this agreement to be done by a party on or by a given day is done after 5.30pm on that day, it is taken to be done on the next day;
    • (next Business Day) if an event under this agreement must occur on a stipulated day which is not a Business Day the stipulated day will be taken to be the next Business Day; and
    • (reference to anything) anything (including any amount) is a reference to the whole and each part of it.
    • If the sale includes components from Verkada, the end user agreement and terms of service applies to these standard terms of sale.