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1. Definitions 1.1 “CC” shall mean Comms Connect Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Comms Connect Pty Ltd. 1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by CC to the Client1.3 “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 “Products” shall mean Products supplied by CC 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 CC to the Client. 1.5 “Services” shall mean all Services supplied by CC to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Products as defined above).1.6 “Price” shall mean the price payable for the Products as agreed between CC and the Client in accordance with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”) 2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
3. Acceptance 3.1 Any instructions received by CC from the Client for the supply of Products and/or the Client’s acceptance of Products supplied by CC shall constitute acceptance of the terms and conditions contained herein. 3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price. 3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of CC. 3.4 The Client shall give CC not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by CC as a result of the Client’s failure to comply with this clause. 3.5 Products are supplied by CC only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
4. Price And Payment 4.1 At CC’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by CC to the Client in respect of Products supplied; or (b) CC’s current price at the date of delivery of the Products according to CC’s current Price list; or (c) CC’s quoted Price (subject to clause 4.2) which shall be binding upon CC provided that the Client shall accept CC’s quotation in writing within thirty (30) days. Unless specifically stated in the quotation, any installation, maintenance and support of the Products is not included in CC’s quotation.
4.2 CC reserves the right to change the Price in the event of a variation to CC’s quotation. 4.3 At CC’s sole discretion a deposit may be required. 4.4 At CC’s sole discretion:
(a) payment shall be due on delivery of the Products; or (b) payment shall be due before delivery of the Products; or (c) payment for approved Clients shall be made by instalments in accordance with CC’s payment schedule; or (d) payment for certain approved Clients shall be due either fourteen (14), twenty-
4.5 CC reserves the right to review and/or reduce any prior approved payment period in the event the Client fails to make payment when due. 4.6 Time for payment for the Products 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. 4.7 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to five percent (5%) of the Price), or by direct credit, or by any other method as agreed to between the Client and CC. 4.8 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 Products 5.1 At CC’s sole discretion delivery of the Products shall take place when:
(a) the Client takes possession of the Products at CC’s address; or (b) the Client takes possession of the Products at the Client’s nominated address (in the event that the Products are delivered by CC or CC’s nominated carrier).
5.2 At CC’s sole discretion the costs of delivery are:
(a) in addition to the Price; or (b) for the Client’s account.
5.3 The Client shall make all arrangements necessary to take delivery of the Products whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Products as arranged then CC shall be entitled to charge a reasonable fee for redelivery. 5.4 Delivery of the Products to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement. 5.5 CC may deliver the Products by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions. 5.6 The failure of CC to deliver shall not entitle either party to treat this contract as repudiated. 5.7 CC shall not be liable for any loss or damage whatever due to failure by CC to deliver the Products (or any of them) promptly or at all, where due to circumstances beyond the control of CC.
6. Export Contracts 6.1 In the event that the Products are exported, delivery of the Products may be subject to either FOB Contract or CIF Contract. 6.2 In the event of a FOB Contract the following shall apply:
(a) the Products shall be delivered to the Client by delivery on board the agreed upon mode of transport on the delivery date. The CC shall promptly notify the Client that the Products have been delivered aboard. Title (subject to clause 8) to, and risk in the Products shall pass to the Client upon such delivery being effected. The CC shall promptly provide the Client with a clean shipped bill of lading in respect of the Products. (b) the Client shall reserve the necessary space on board the agreed upon mode of transport and give CC due notice of the loading berth and any revised delivery dates. The Client shall bear any additional costs caused due to the failure of the agreed upon mode of transport being available to load the Products on the delivery date.
6.3 In the event of a CIF contract the following shall apply:
(a) the Products shall be delivered to the Client by delivery on board the agreed upon mode of transport on or before the delivery date. The CC shall procure a contract of carriage and insure the Products from dispatch until delivery on terms current in the trade for the benefit of the Client. The Products shall be at the risk of the Client as they are loaded on board. The CC shall promptly tender to the Client a clean shipped bill of lading, the insurance policy and an invoice in respect of the Products. (b) the Client shall accept the documents tendered by CC if they correspond to this contract and take delivery of the Products at the port of destination and bear all other costs and charges arising out of shipment of the Products to the port of destination.
7. Risk 7.1 If CC retains ownership of the Products nonetheless, all risk for the Products passes to the Client on delivery. 7.2 If any of the Products are damaged or destroyed following delivery but prior to ownership passing to the Client, CC is entitled to receive all insurance proceeds payable for the Products. The production of these terms and conditions by CC is sufficient evidence of CC’s rights to receive the insurance proceeds without the need for any person dealing with CC to make further enquiries. 7.3 The Client agrees to indemnify CC against any consequential loss or damage (including but not limited to system failure of any component of Products and/or software) after delivery of the Products or where CC has commissioned the installation of the Products on behalf of the Client.
8. Title 8.1 CC and Client agree that ownership of the Products shall not pass until:
(a) the Client has paid CC all amounts owing for the particular Products; and (b) the Client has met all other obligations due by the Client to CC in respect of all contracts between CC and the Client.
8.2 Receipt by CC 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 CC’s ownership or rights in respect of the Products shall continue. 8.3 It is further agreed that:
(a) where practicable the Products shall be kept separate and identifiable until CC shall have received payment and all other obligations of the Client are met; and (b) until such time as ownership of the Products shall pass from CC to the Client CC may give notice in writing to the Client to return the Products or any of them to CC. Upon such notice the rights of the Client to obtain ownership or any other interest in the Products shall cease; and (c) CC shall have the right of stopping the Products in transit whether or not delivery has been made; and (d) if the Client fails to return the Products to CC then CC or CC’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Products are situated and take possession of the Products; and (e) the Client is only a bailee of the Products and until such time as CC has received payment in full for the Products then the Client shall hold any proceeds from the sale or disposal of the Products, up to and including the amount the Client owes to CC for the Products, on trust for CC; and (f) the Client shall not deal with the money of CC in any way which may be adverse to CC; and (g) the Client shall not charge the Products in any way nor grant nor otherwise give any interest in the Products while they remain the property of CC; and (h) CC can issue proceedings to recover the Price of the Products sold notwithstanding that ownership of the Products may not have passed to the Client; and (i) until such time that ownership in the Products passes to the Client, if the Products are converted into other products, the parties agree that CC will be the owner of the end products.
9. Defects 9.1 The Client shall inspect the Products on delivery and shall within forty-
10. Returns 10.1 Returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 9.1; and (b) the CC has agreed in writing to accept the return of the Products; and (c) the Products are returned at the Client’s cost within fourteen (14) days of the delivery date; and (d) the CC will not be liable for Products which have not been stored or used in a proper manner; and (e) the Products 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 The CC may (in its discretion) accept the return of Products for credit but this may incur a handling fee of fifteen percent (15%) of the value of the returned Products plus any freight.
11. Warranty 11.1 For Products not manufactured by CC, the warranty shall be the current warranty provided by the manufacturer of the Products. CC shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Products. 11.2 To the extent permitted by statute, no warranty is given by CC as to the quality or suitability of the Products for any purpose and any implied warranty, is expressly excluded. CC shall not be responsible for any loss or damage to the Products, or caused by the Products, or any part thereof however arising.
12. Default & Consequences of Default 12.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month (and at CC’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment. 12.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by CC. 12.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify CC from and against all cotfss and disbursements incurred by CC in pursuing the debt including legal costs on a solicitor and own client basis and CC’s collection agency costs. 12.4 Without prejudice to any other remedies CC may have, if at any time the Client is in breach of any obligation (including those relating to payment), CC may suspend or terminate the supply of Products to the Client and any of its other obligations under the terms and conditions. CC will not be liable to the Client for any loss or damage the Client suffers because CC has exercised its rights under this clause. 12.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable. 12.6 Without prejudice to CC’s other remedies at law CC shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to CC shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to CC becomes overdue, or in CC’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.
13. Security And Charge 13.1 Despite anything to the contrary contained herein or any other rights which CC 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 CC or CC’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that CC (or CC’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met. (b) should CC elect to proceed in any manner in accordance with this clause and/or its sub-
14. Cancellation 14.1 CC may cancel any contract to which these terms and conditions apply or cancel delivery of Products at any time before the Products are delivered by giving written notice to the Client. On giving such notice CC shall repay to the Client any sums paid in respect of the Price. CC shall not be liable for any loss or damage whatever arising from such cancellation. 14.2 In the event that the Client cancels delivery of Products the Client shall be liable for any loss incurred by CC (including, but not limited to, any loss of profits) up to the time of cancellation.
15. Privacy Act 1988 15.1 The Client and/or the Guarantor/s agree for CC 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 CC. 15.2 The Client and/or the Guarantor/s agree that CC 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
The Client consents to CC being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988). 15.4 The Client agrees that personal credit information provided may be used and retained by CC for the following purposes and for other purposes as shall be agreed between the Client and CC or required by law from time to time:
(a) provision of Products; and/or (b) marketing of Products by CC, its agents or distributors in relation to the Products; and/or (c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Products; 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 Products.
CC 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.
16. Unpaid CC's Rights 16.1 Where the Client has left any item with CC for repair, modification, exchange or for CC to perform any other Service in relation to the item and CC has not received or been tendered the whole of the Price, or the payment has been dishonoured, CC shall have:
(a) a lien on the item; (b) the right to retain the item for the Price while CC is in possession of the item; (c) a right to sell the item.
16.2 The lien of CC shall continue despite the commencement of proceedings, or judgment for the Price having been obtained.
17. General 17.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and of the remaining provisions shall not be affected, prejudiced or impaired. 17.2 These enforceability terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales. 17.3 CC shall be under no liability whatsoever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by CC of these terms and conditions. 17.4 In the event of any breach of this contract by CC the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Products. 17.5 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 CC. 17.6 CC may license or sub-
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