These are Clearswift (Asia/Pacific) Pty Limited‘s (“Vendor”) standard terms and conditions of business which apply to the sale by vendor and your purchase of the goods or services identified on the invoice overleaf.
Vendor draws your attention in particular to clauses 6 and 7 below and also the following:
- if this agreement concerns the sale of goods comprising software, then the use of the software will be subject to additional terms and conditions (including restrictions, warranties, exclusions of liability and indemnities) contained in the applicable licence agreement supplied with the software;
- if this agreement concerns the provision of services by vendor, then those services will be subject to additional terms and conditions (including warranties, exclusions of liability and indemnities) in the applicable services agreement; and
- if this agreement concerns the sale of goods or provision of services to resellers or distributors, then the arrangement with resellers or distributors will be subject to additional terms and conditions (including warranties, exclusions of liability and indemnities) in the applicable reseller or distributor agreement
- if there is any conflict between any of the below terms and conditions and the terms and conditions of any licence agreement, services agreement or reseller/distributor agreement (as applicable), then the terms and conditions of the latter shall prevail.
“Agreement” means these terms and conditions and the Invoice; "Customer" means the party as set out on the Invoice; “Goods” means, where applicable, the goods as set out on the front of the Invoice; “Invoice” means the invoice on the front of this document (overleaf); “Price(s)” means the price payable or paid for the Goods and/or Services as set out on the Invoice; and “Services” means, where applicable, the services to be provided by Vendor to Customer as set out on the Invoice.
2.1 This Agreement constitutes the entire and exclusive statement of the agreement and understanding between the parties with respect to the subject matter, and supersedes all prior agreements, proposals, representations and understandings (whether oral or written). No terms and conditions which Customer purports to apply, whether contained in or endorsed upon any purchase order, confirmation of order, specification or otherwise howsoever shall form part of this Agreement or the relationship between Vendor and Customer.
2.2 The terms and conditions comprising this Agreement represent Vendor’s standard terms of business for the supply of Goods and/or Services. This Agreement is not capable of being varied or amended, and subject to sub-clause 7.4.2, no representations about the Goods or Services shall be deemed to form part of this Agreement unless expressly agreed in writing and signed by a director of Vendor. All specifications, drawings, documentation, catalogues, price lists and advertising materials issued by Vendor from time to time are for the purposes of indicating the price and range of goods offered and for information only, and do not form part of this Agreement.
3 ORDER ACCEPTANCE
3.1 All orders placed with Vendor by Customer shall be deemed to be an offer by Customer to purchase the Goods or Services (as the case may be) on and subject to the terms and conditions of this Agreement.
3.2 All orders submitted are subject to availability and shall not be deemed to be accepted by Vendor until the issuance of an Invoice by Vendor to Customer.
4 PERFORMANCE AND DELIVERY
4.1 Customer agrees that any times and dates specified by Vendor for delivery of the Goods and/or provision of Services are intended to be an estimate only and are not, and shall not be binding on Vendor or capable of being made, time of the essence.
4.2 Unless otherwise agreed (or as set out on the Invoice), delivery of the Goods shall take place and shall be deemed to have occurred on the earlier of:
4.2.1 date of despatch of the Goods from Vendor’s place of business by Vendor to Customer; or
4.2.2 date of despatch of any licence key which enables use of any software supplied as or as part of the Goods.
4.3 The quantity of any consignment of Goods as recorded by Vendor upon despatch shall be conclusive evidence of the quantity received by Customer unless Customer can provide conclusive evidence proving to the contrary.
5 RISK AND TITLE
5.1 Risk of loss of and/or damage to the Goods shall pass to Customer on despatch and save as set out at sub-clause 5.3, Vendor accepts no liability for loss or damage arising during transit.
5.2 If Customer fails to accept delivery of the Goods (or part thereof), or if Vendor is unable to deliver the Goods on time because Customer has not provided appropriate instructions, documents, licences or authorisations:
5.2.1 risk in the Goods shall be deemed to have passed to Customer (including for loss or damage caused by the Vendor’s negligence) in accordance with sub-clause 5.1;
5.2.2 the Goods shall be deemed to have been delivered; and
5.2.3 Vendor may store the Goods until collection by Customer or re-delivery whereupon Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
5.3 In addition to clause 7, for the avoidance of doubt, Vendor shall not be liable for any non-delivery of Goods (even if caused by its negligence). In the event that Vendor shall be liable to Customer for non-delivery, such liability shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Price against any invoice raised for such Goods or in accordance with sub-clause 7.3.
5.4 Ownership of the physical Goods (but excluding any software) shall not pass to Customer unless and until Vendor has received in full (in cash or cleared funds) all sums due to it in respect of the Goods and all and any other sums which are or which become due to Vendor from Customer on any account. Until ownership has passed to Customer, Customer must:
5.4.1 hold the Goods on a fiduciary basis as Vendor’s bailee;
5.4.2 store the Goods (at no cost to Vendor) separately from all other of Customer’s goods (or those of any other party) in such a way that they remain readily identifiable as Vendor’s property;
5.4.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
5.4.4 maintain the Goods in their original condition and keep them insured on the Vendor’s behalf for their full price against all risks to the reasonable satisfaction of Vendor. Customer shall promptly produce to Vendor on request the policy of insurance;
5.4.5 hold the proceeds of any insurance referred to in sub-clause 5.4.4 on trust for Vendor and not mix them with any other money, nor pay the proceeds into an overdrawn bank account; and
5.4.6 not encumber or charge the Goods in any way or part with possession thereof.
5.5 Prior to ownership of the physical Goods passing in accordance with sub-clause 5.4, Customer’s right to possession of the Goods shall terminate immediately if:
5.5.1 Customer enters into a compulsory or voluntary liquidation (other than for the purpose of effecting a solvent reconstruction or amalgamation) or is unable to pay its debts as they fall due, or convenes a meeting of or enter into any composition with its creditors or have an administrative receiver, receiver, manager or administrator appointed over all or some of its undertaking or assets, or becomes insolvent as defined in the Corporations Act 2001 (Cth) or anything analogous to the events described above occurs in any jurisdiction; or
5.5.2 Customer breaches any term of this Agreement (or any other contract between Vendor and Customer); or
5.5.3 Customer encumbers or in any way charges any of the Goods.
5.6 Vendor shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from Vendor.
5.7 Customer grants to Vendor, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated, to recover them.
6 PRICE AND PAYMENT
6.1 Payment of the Price is due, and shall be made by Customer, within 30 days from the date of this Invoice. Time for payment shall be of the essence. No payment shall be deemed to have been received until Vendor has received cleared funds.
6.2 Customer shall make all payments without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise. All Prices are exclusive of goods and services tax, , import taxes, tariffs or levies and any similar taxes, duties or levies. All such taxes, duties, tariffs or levies are payable by Customer and will be added to any payments due to Vendor.
6.3 All sums payable to Vendor under this Agreement shall become due immediately upon termination of Agreement.
6.4 All payments not received by Vendor when due shall be considered as overdue. Customer shall remain liable for such overdue payments together with interest thereon at a rate equal to the thirty day Australian Treasury Bill Rate plus 5% or the maximum rate permitted by law, whichever is the lower. Such interest shall accrue on a daily basis until payment is made and be payable on demand after as well as before any judgment of a court of competent jurisdiction.
7 LIMITATION OF LIABILITY
7.1 To the fullest extent permitted by law, liability of vendor for any breach of a condition or warranty, including any condition or warranty implied into this agreement under the trade practices act 1974 (cth) or any state or territory legislation which cannot be excluded, is limited to one or more of the following at vendor's sole discretion:
- (a) in the case of goods:
(i) replacement of the goods or the supply of equivalent goods
(ii) repair of the goods;
(iii) payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) payment of the cost of having the goods repaired; or
- (b) in the case of services:
(i) supply of the services again; or
(ii) payment of the cost of having the services supplied again.
7.2 To the fullest extent permitted by law and subject to sub-clauses 7.1 and 7.4, in no event will vendor be liable to customer for any loss or damage whatsoever in connection with this agreement, whether direct, indirect or consequential and whether arising in contract (including under any indemnity or warranty), in tort (including negligence) or under any applicable legislation or otherwise howsoever caused.
7.3 Subject to vendor's obligations under sub-clause 7.1, in the event that vendor shall be liable to customer in respect of any loss or damage whether arising in contract (including under any indemnity or warranty), in tort (including negligence) or under any applicable legislation or otherwise howsoever in connection with this agreement (including, without limitation, late delivery under sub-clause 5.3) the maximum aggregate liability of vendor shall not exceed the price paid by customer. In calculating vendor's liability under this sub-clause, the parties must include any amount paid or the value of any goods or services replaced, repaired or supplied by vendor for a breach of the implied conditions or warranties referred to in sub-clause 7.1.
7.4 nothing in this agreement affects customer’s statutory rights which cannot be excluded or shall exclude or limit the liability of vendor in respect of:
7.4.1 Death or personal injury resulting from its negligence; or
7.4.2 Fraud or of any statements made fraudulently by its directors, officers, employees, contractors or agents.
7.5 Any action against vendor in connection with this agreement must be brought by customer within 18 months after the cause of action arises.
7.6 Notwithstanding sub-clauses 7.1 and 7.3, vendor will only be liable to the extent that such liability is caused or contributed to by vendor.
7.7 This clause 7 will survive termination of this agreement.
8.1 Vendor warrants that the goods will be of merchantable quality within the meaning of the trade practices act 1974 (cth).
8.2 Vendor hereby excludes all other warranties (whether express or implied) to the fullest extent permissible by law.
9 CONFIDENTIAL INFORMATION
9.1 Customer agrees to keep confidential all information (whether written or oral) concerning the business, trade secrets, know-how, customers, suppliers and affairs of Vendor together with all information, data, drawings, specifications, documentation, software listings, source or object code which Vendor may have disclosed and may from time to time disclose to in connection with this Agreement (the “Confidential Information”).
9.2 Customer agrees that the Confidential Information is commercially valuable and proprietary to Vendor. Customer further agrees that it shall be used by Customer solely in accordance with the provisions of this Agreement, and that Customer shall not at any time during or after expiry or termination of this Agreement, disclose the Confidential Information, whether directly or indirectly, to any third party without Vendor's prior written consent.
10.1 Any communication or other document to be given by a party under this Agreement shall be in writing and shall be considered to have been given if hand delivered to the other party's representative or sent by registered post or facsimile to the other party as follows:
Vendor: The Managing Director, Clearswift (Asia/Pacific) Pty Ltd, 5th Floor, 165 Walker Street, North Sydney, New South Wales, 2060, Australia. Fax: +61 2 9424 1201
Customer: as set out on the invoice
or such other address as one party may from time to time designate by written notice to the other.
10.2 Any communication or other document shall be considered to have been received by the addressee 3 working days following the date of despatch of the notice or other document by registered post or air mail or where the notice or other document is delivered by hand or is sent by facsimile, simultaneously with the delivery or transmission. To prove that a notice or other document was received it shall be sufficient to show that it was despatched or successfully transmitted.
11.1 This Agreement is personal to Customer, and Customer may not assign, transfer, sub-contract, sub-licence, encumber, novate or otherwise part with this Agreement or any right or obligation under it without Vendor’s prior written consent.
11.2 Vendor may assign, transfer, sub-contract, sub-licence, encumber, novate or otherwise part with this Agreement or any right or obligation under it in its absolute discretion.
12 FORCE MAJEURE
12.1 Vendor reserves the right to defer the date of delivery or to cancel this Agreement or reduce the volume of the Goods (without liability to Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Vendor including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials provided that, if the event in question continues for a continuous period in excess of  days, Customer shall be entitled to give notice in writing to Vendor to terminate this Agreement.
13.1 Headings used in this Agreement are for convenience only, have no legal effect and shall not affect its construction.
13.2 Words in this Agreement in the singular shall include the plural and vice versa; words importing a gender include every gender and references to persons include corporations, partnerships and other incorporated associations or bodies of persons;
13.3 The relationship between the Vendor and Customer is that of independent contractors. Neither party is the agent of the other, and neither party has any authority to make any contract or make any obligation expressly or impliedly in the name of the other party, without that party's prior written consent for express purposes connected with the performance of this Agreement.
13.4 The failure to exercise or delay in exercising a right or remedy provided by this Agreement or by law does not constitute a waiver of the right or a waiver of other rights or remedies. No single or partial exercise of a right or remedy provided by this Agreement or by law prevents further exercise of the right or remedy or the exercise of another right or remedy.
13.5 If any provision of this Agreement is, or becomes, to any extent illegal, invalid or unenforceable, then it is the intention of the parties that Vendor shall amend that provision in a reasonable manner to the extent necessary to render it enforceable without losing its intent, or at Vendor’s discretion, such provision shall, to the extent of the unenforceability, be deemed not to form part of the Agreement. In either case, such provision will not affect the legality, validity or enforceability of any other provision of this Agreement, which shall continue in force and effect.
14 THIRD PARTY RIGHTS
14.1 Only the parties to this Agreement have or are intended to have a right or remedy under this Agreement or obtain a benefit under it.
15 LAW AND JURISDICTION
15.1 This Agreement shall be governed by and interpreted in accordance with the laws of New South Wales and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales in relation to all disputes.