1. What is the purpose of this agreement?
1.1 This agreement sets out the terms that apply to the relationship between you (and “your”) and Cadpro Australia Limited (“we”, “us” and “our”), ABN 22 643 495 050.
2. When do these terms apply?
2.1 These terms apply to all your transactions with us, whether they are through our website or generally purchasing our Products or engaging our Services through any other means (email, phone calls, messages, our social profiles, networking platforms, online platforms, or face-to-face interactions).
2.2 No other terms and conditions contained in any purchase order or documentation issued by You shall bind the parties.
3. What information about you can we collect?
3.1 You agree to provide us with and allow us to use your personal and business information as necessary to affect this agreement, the provision of our Products and the performance of our Services. Please review our Privacy Statement so that you know the purposes of our collection, what we collect, how we collect and use it, and our policies around your personal and business information here.
4. Agency acknowledgement
4.1 You acknowledge that where we have indicated to you that we are acting as an agent for a certain Product or Services supplier, your contract for the supply of the Product or Services will be with the Product or Services supplier and are subject to the supplier’s terms and conditions.
5. PlanGrid - Autodesk Construction Cloud – Additional Terms and Conditions
5.1 Should you purchase selected products from the PlanGrid and Autodesk Construction Cloud portfolio, additional Terms and Conditions from Autodesk will apply. These will be forwarded to you along with your quote or proposal from us.
6. What are our Products and Services?
6.1 Meaning of Products, Services, and Expenses:
a. “Product(s)” means and includes without limitation, computer software and hardware, technology, applications, components, parts, items, units, systems, accessories, devices, and manuals, as available or advertised occasionally.
b. “Service(s)” means and includes supply, sales, subscription, consultation, repair, servicing, maintenance, labour, delivery, training, support, and installation without limitation.
c. “Expense(s)” means agency fees, charges and out-of-pocket expenses incurred by us such as freight or delivery costs, identified in any document or electronic record issued by either party, all of which are deemed to be incorporated into and form part of this agreement, or as ours by marking or a manner of storage enabling identification.
6.2 If the Products are no longer available, we can recommend and supply equivalent options.
7. What is the price?
7.1 The price is the fee we advise you of for the Products and/or Services exclusive of GST or as advertised on our website, and Expenses. If no price is stated, the price will be the amount at which we provide the Products and Services at the time of your request. The price is subject to reasonable change due to circumstances beyond our control such as exchange rate fluctuations.
7.2 Where we act as a referrer, introducer, or agent of a Product supplier, all prices we mention are indicative amounts only. They are meant to indicate the prices charged by the Product supplier. The said Product supplier will determine the final amount chargeable, and we do not influence that decision.
Orders through our website
7.3 When you order through our website (including any other online platform that we use), the following terms under clauses 7.4 and 7.13 apply.
7.4 Any order that you have placed or submitted constitutes an offer by you to us to purchase the Products or Services on these terms and is subject to our subsequent acceptance.
7.5 Our acceptance of your order takes effect, and the contract concluded at the point where such offer is expressly accepted by us dispatching your order/commencing Services and accepting your credit card or other payment ("Acceptance").
7.6 Any prices, quotations and descriptions made or referred to on our website are subject to availability. They do not constitute an offer and may be withdrawn or revised at any time before our express acceptance of your order.
7.7 While we make every effort to ensure that items appearing on our website are available, we cannot guarantee that all items are in stock or immediately available when you submit your order. We may reject your order (without liability) if we are unable to process or fulfil it. If this is the case, we will refund any prior payment that you have made for that item.
7.8 Before such Acceptance, an automatic e-mail acknowledgement of your order may be generated. Please note that any such automatic acknowledgement does not constitute a formal acceptance of your order.
7.9 We may keep records of orders received, acknowledgements, acceptances, and other contract records for a reasonable period after Acceptance. We may be able to provide you with copies on written request; however, you must make sure you print a copy of all such documents and these terms for your records.
7.10 Prices payable for Products or Services are those in effect at the time of dispatch or delivery unless otherwise expressly agreed. From time to time, it is possible that a programming or data transcription error may result in an inaccurate price. We will generally honour the posted price, although we reserve the right to correct the price and offer to sell you the Products or Services at the correct market price in situations where the price advertised is clearly an error as evidenced by being substantially under market.
7.11 Prices (unless stated otherwise) are in the currency quoted on our website and remain valid for 30 days.
7.12 We have the right at any time prior to your Acceptance to withdraw any discount and/or to revise prices to take into account increases in costs including (without limitation) costs of any materials, carriage, labour or the increase or imposition of any tax, duty or other levy and any variation in exchange rates. We also reserve the right to notify you of any mistakes in Product descriptions or errors in pricing prior to product dispatch. In such event if you choose to continue with fulfilment of the order, you acknowledge that the Product or Service will be provided in accordance with such revised description or corrected price.
7.13 The places that we deliver to ("Territory") are listed on our website. Unless otherwise specified, prices quoted are:
a. exclusive of the costs of shipping or carriage to the agreed place of delivery within the Territory (charges for which are stated on the website); and
b. exclusive of GST and any other tax or duty which (where applicable) must be added to the price payable.
7.14 You agree to pay for shipping or carriage of Products as such costs are specified by us at the point of purchase.
8. What happens when we give you a quote or proposal?
8.1 If we give you a quote for Products and Services:
a. the quote will be valid for fourteen (14) days unless withdrawn by us or stated otherwise.
b. the quote will exclude GST and delivery costs unless stated otherwise.
c. you will be responsible for increased costs resulting from any subsequent changes to the quote due to any inadequate or inaccurate information, request/requirement for additional Products and Services or variations.
d. we may alter the quote due to circumstances beyond our control or clerical or computer error; and
e. exchange rate fluctuations of the Australian dollar by plus or minus 3% against the US dollar may affect to quoted or final amount invoiced.
8.2 All prices listed on our website are not quotes and are subject to the terms recorded in clauses 7.4 to 7.13.
8.3 Where we act as a referrer, introducer, or agent of a Product supplier, we cannot provide quotes; all amounts mentioned by any of our staff members are indicative amounts.
9. When and how do you pay us?
9.1 All payment for Products or Services shall be made before delivery and by such methods as are indicated on our website or as agreed in writing (and not by any other means unless we have given our prior agreement).
9.2 New Customers ordering hardware – At our discretion, full payment must be made at the time of the order or a deposit of 50% is due at the time of order with final payment before delivery of the Products and/or Services.
9.3 New Customers Ordering Software – Full payment is due before we approve any of your subscriptions or licences for any of the Products.
9.4 Credit Account Customers ordering hardware Products – A deposit of 30% may be due at time of order. Final payment of the remaining sum is due on or before the 20th day of the month following the date of invoice, unless agreed otherwise.
9.5 Credit Account Customers ordering new software Subscriptions/licenses – Payment is required based on your current credit term.
9.6 Software Subscription/License Renewal – All subscription/license renewals must be paid 5 days before term expiry. This applies to all customers regardless of credit term.
9.7 Training Courses –
a. Payment due date is typically seven days from the date of Invoice or as otherwise noted on Invoice. Your seat is not reserved until full payment has been made and all courses operate on a first-in-first-paid basis.
b. We reserve the right to re-schedule course dates if minimum class numbers aren’t met.
c. Training Course cancellation and refund policy:
- 30 days or more – full refund
- 11 to 29 days – 75% refund
- 4 to 10 days - 50% refund
- <= 3 business days or no attendance – 0%
d. Full-time students, teachers and lecturers can apply for up to a 40% discount on classroom-based Training Courses. A copy of a valid student ID and tertiary organisation email address is required.
e. Discounts on Training Courses cannot be used with any other offer and only applies to classroom Training Courses. No discounts
9.8 Professional Services – Payment for Professional Services is based on current credit terms or as agreed. Some professional services provided may be subject to additional Terms of Engagement.
9.9 Interest – Interest is chargeable on overdue amounts at the overdraft rate of our current usual trading bank, plus 5% accruing daily from the due date for payment until our receipt of the full amount (whether before or after judgement).
9.10 Expenses – You indemnify us and shall pay us on demand against all expenses incurred due to enforcing any of our rights contained in this agreement including PPSR registration, debt collection and legal fees.
9.11 No set-off – Time for payment of the Services is of the essence. Without our written consent, no counterclaim or set-off may be deducted from any payment. We may also act against you for the price of Products at any time after payment has become due even though property in those Products may not yet have passed to you.
9.12 Our right to set-off – You agree to us allocating or reallocating any payment received from you towards any invoice. If no allocation is made, then it is deemed to be in such a way that preserves the maximum value of our purchase money security interest in the Products.
9.13 Credit card – If you choose to pay for the Products or Services by credit card, we may require retention of the value of the Products or Services and deduct the same from your card when the Product or Service is available for delivery. All payments by credit card will incur a surcharge of 2.5% of the value of the invoice; or the value of the surcharge fees imposed by the relevant credit card payment service provided, whichever is higher. We reserve the right to verify credit or debit card payments before Acceptance.
9.14 Your third party – You will be responsible for payment if a third party that you expect to pay you or us fails to pay.
9.15 Products from outside Australia – All Products entering Australia from outside may be subject to customs charges, import duties and/or taxes (including GST). You may be subject to customs charges, import duties and taxes (including GST), levied when the Product reaches Australia. You must meet any additional charges for customs clearance, import duties, or taxes (including GST) since we have no control over these charges. You should contact the Australian Customs Service or ATO for further information on customs policies or duties.
9.16 Full payment expected – Except as expressly provided elsewhere in these terms or the website, payment may be taken in full notwithstanding any claim for short delivery or defects.
9.17 Payment due – Where the payment is invoiced, each invoice shall be due on and made in full within thirty (30) days of the relevant invoice date. If at any time you fail to pay any amount due on the relevant due date, we may by notice declare all invoiced amounts unpaid at that date to be immediately due and payable.
10. What warranties and limitation of liabilities apply?
10.1 We are not liable for loss of data or system failure, hacking or corruption caused by factors outside our reasonable control. We are not liable for delay or failure to perform our obligations if the cause is beyond our control.
10.2 If you are in trade and/or are a business, you agree that the parties contract out of the Competition and Consumer Act 2010 to the extent permissible by law.
10.3 We are not liable for delay or failure to perform our obligations if the cause is beyond our reasonable control being any failure, delay or breach caused by strike, industrial dispute, natural disaster, shortage or unavailability of stocks of goods or raw materials, failure of any of our suppliers to supply goods, delay in transit, import restrictions, legislative, governmental or other prohibition or restriction, fire, flood, pandemics, hostilities, commotions or any other causes whatsoever (whether similar to the foregoing or not) (“Force Majeure Event”).
10.4 To the maximum extent legally permitted, our aggregate liability (whether for negligence, breach of contract, misrepresentation (except, if fraudulent) or otherwise) shall in no circumstances exceed the cost of the defective, damaged, or undelivered Products or Services (determined by net price invoiced/charged to you) in respect of any single occurrence or series of occurrences. Even if advised of the same, we shall not be liable for:
a. special, punitive, incidental, indirect, or consequential damages; or
b. Your inability to make orders or loss of income, revenue, profits, contracts, data, goodwill, or savings.
10.5 Except as set out above or under any applicable returns policy and subject to any rights you have under applicable law that cannot be excluded or limited by these terms:
a. We shall not be liable, and you shall not be entitled to reject Products or Services, except for:
i) damage to or loss of Products or any part thereof in transit (where the Products are carried by our transport or by a carrier on our behalf) where notified to us within 5 working days of receipt of the Products.
ii) defects in Products (not being defects caused by any act, neglect, or default on your part) notified in writing to us within 30 days of receipt of the Products.
iii) defective performance of Services (not being defects caused by any act, neglect, or default on your part) were notified in writing to us within 5 days of such defect becoming apparent.
b. We shall not be liable for any damage or losses arising from defective installation of the Products; from the use of the Products in connection with other defective, unsuitable, or defectively installed equipment; your negligence; improper use or use in any manner inconsistent with the manufacturer’s specifications or instructions.
c. Where there is a shortage or failure to deliver, or any defect in or damage to a Product or Service, we may at our option:
i) (in the case of Product shortage or non-delivery) make good any such shortage or non-delivery and/or
ii) in the case of failure to perform or defective performance of a Service, make good such failure or defective performance; and/or
iii) in the case of damage or any defect(s) in the Product and in accordance with any applicable returns policy:
- iv) Replace or repair the Product upon you returning the Product.
or - v) Refund the price paid in respect of any Products found
10.6 Subject to any express provisions to the contrary set out in these terms, to the maximum extent legally permitted all terms, conditions, warranties, and representations (express or implied by statute, common law or otherwise) are hereby excluded. We shall not be liable for any loss, damage or injury whether resulting from defective material, faulty workmanship, or otherwise howsoever arising and whether caused by our (or our employee’s or agent’s negligence) except to the extent that applicable law prohibits exclusions or limitations of liability for intentional torts or gross negligence or other wrongs.
10.7 All Product specifications, illustrations, drawings, particulars, dimensions, performance data and other information on the website or made available by us are intended to represent no more than a general illustration of the Products and do not constitute a warranty or representation by us that the Products will conform with the same. You must refer to the manufacturer’s specifications or warranty documentation to determine your rights and remedies in this regard.
10.8 You will benefit from the manufacturers, licensors or suppliers’ warranty with the Products supplied and you should refer to the relevant documentation supplied with the Product in this regard. (If applicable, a returns policy may also set out procedures applicable to repairs or replacement of defective Products delivered.)
10.9 Your rights of repair or replacement of any Products or any part or parts thereof which are found to be defective will (except where agreed otherwise) be negated or rendered void where:
a. Products have been repaired or altered by persons other than the manufacturer, us or any authorised dealer; and/or
b. defective Products have not been returned together with full details in writing of the alleged defects within30 days from the date on which such Products were delivered; and/or
c. defects are due (wholly or partially) to mistreatment, improper use or storage or maintenance or installation, or failure to observe any manufacturer’s instructions or other directions issued or made available by us in connection with the delivered Products.
10.10 To the maximum extent legally permitted, we exclude all other warranties, guarantees and other assurances implied by custom or law on our behalf.
10.11 Where we act as a referrer, introducer, or agent of a Product supplier, any information we supply to you is provided by the supplier of the said Product and all of their warranties are not our warranties, and any claim you have concerning any warranties must be directed to the supplier.
11. What if you wish to make a claim in relation to our Products and Services?
11.1 Special order, custom made and purposely built Products cannot be returned, and no refund is due to you unless due to incorrect supply or fault/defect. Return of all other Products is subject to:
a. the Products being in original, undamaged, and resalable condition and (if applicable) all shrink-wrapped software returned with licence seals unbroken.
b. approval from the Product manufacturer to return the Product.
c. a restocking fee equal to 20% of the value of the returned Product will apply.
d. you cover the cost of the return, and
e. a credit with our business or cash refund at our discretion
11.2 Subject to clause 11.1, claims concerning our Products and Services are subject to the following:
a. for claims relating to faulty/defective Products and Services, you notify us within the applicable warranty period.
b. for claims not relating to fault/defective Products, you notify us within seventy-two (72) hours of pick up/delivery (non-notification is deemed acceptance of the Products); and
c. the Products having been used in accordance with the manufacturer’s/our instructions and not having been subject to abuse, neglect, misuse, accident or work by an unauthorised third party; and
d. we repair or replace the defective Products or perform further Services at our discretion.
12. When will the Products and Services be provided (Delivery and Risk)?
12.1 We are responsible for the Products until delivery in accordance with clause 12.2, pick up by you or the passing of ownership under clause 14.1, whichever comes first.
12.2 Delivery is complete when we give the Products to you, give the Products to a third-party carrier, or leave the Products at the delivery address. The time of delivery is not an essential term of this agreement. We may partially deliver Products listed in one order. If the parties agree on delivery by instalments and we fail to deliver an instalment, the failure will not give rise to a right of cancellation.
12.3 Delivery timescales/dates specified on the website, in any order acknowledgement, acceptance or elsewhere are estimates only. While we endeavour to meet such timescales or dates, we do not undertake to dispatch Products and/or commence Services by a particular date and shall not be liable to you regarding delays or failure to do so.
12.4 Delivery shall be to a valid address within the Territory submitted by you and subject to Acceptance ("Delivery Address"). You must check the Delivery Address on any acknowledgement or acceptance we provide and notify us immediately of errors or omissions. We reserve the right to charge you for any extra costs arising from changes you make to the Delivery Address after you submit an order.
12.5 If you refuse or fail to take delivery of Products provided in accordance with these terms, any risk of loss or damage to the Products shall nonetheless pass and without prejudice to any other rights or remedies we have:
a. We shall be entitled to immediate payment in full for the Products or Services delivered and either to effect delivery by whatever means we consider appropriate or to store Products at your risk.
b. You shall be liable to pay on demand all costs of Product storage and any additional costs incurred because of such refusal or failure to take delivery; and/or
c. We shall be entitled to, 30 days after the agreed date for delivery, dispose of Products in such manner as we determine and may set off any proceeds of sale against any sums due from you.
12.6 You must ensure the delivery address you provide is safe to enable the delivery to take place safely and comply with all relevant health and safety standards. If your delivery address is not safe for the deliverer to deliver your Products, it is considered a failure on your part to accept delivery, and we are not liable for the failed delivery.
12.7 Except to the extent required as a result of any mandatory rights you have as a consumer (within the meaning of Australian Consumer Law) under applicable law, you shall not be entitled to reject the Products in whole or in part because of short delivery and shall pay in full notwithstanding short delivery or non-delivery unless you notify us in writing of any claim within 7 days of the latest of the date of receipt of the relevant invoice or delivery (whichever is earlier) whereupon you shall pay for the quantity actually delivered.
12.8 Where we deliver Products in instalments, each is a separate contract. Any defect in any one or more instalments shall not entitle you to repudiate the contract as a whole nor cancel any subsequent instalment.
12.9 Save as otherwise provided in these terms, risk of loss of or damage to the Products passes to you on delivery or when placed in your possession or that of any carrier or transport provided by you, whichever shall occur first.
13. For what are you responsible and liable?
13.1 You are responsible for providing to us with all information required free of cost and as soon as practicable following any request for information for us to provide our Products or Services.
13.2 Unless provided as part of the Products and Services, you are responsible for the supply of a computer to the appropriate specification for the Products purchased.
13.3 You will be responsible for backing up all data on the hard disk of any computer delivered to us for repair or service. We are not under any liability for the loss of or damage to any such data.
13.4 You will keep all documents submitted and information supplied by us confidential and not use it for any purpose other than that stipulated by us nor will you disclose it to a third party without our prior written consent.
13.5 You are responsible for checking Products upon delivery and verifying that they are in satisfactory condition, in accordance with their description and complete. You may return purchased Products in accordance with these terms, or any applicable returns policy referred to on the website.
13.6 You indemnify us against all liabilities, claims and costs incurred by or made against us as a direct or indirect result of us performing Services or carrying out any work on or to the Products where this has been done to your (or your representatives) specific requirements or specifications causing an infringement or alleged infringement of any proprietary rights of any third party.
13.7 You fully indemnify us from and against all damages, claims, losses, demands, liabilities (including vicarious liability), injuries, suits, actions, judgments, costs and expenses of any kind whatsoever (including, without limitation, legal fees, service costs and costs of recovering unpaid amounts) arising out of or in any way connected with your breach of these Terms.
13.8 To the fullest extent permitted by law and save where expressly set out in any Licence Terms (as defined in clause 15) or elsewhere, we shall have no liability to you in the event of the Products or Services infringing or being alleged to infringe the proprietary rights of any third party. If the Products are or may be the subject of a patent, copyright, database right, registered design, trademark, or other rights of any third party, you should refer to the relevant terms of the Product manufacturer and/or licensor/owner. We shall be obliged to transfer to you only such right or title as we have.
13.9 You represent that information provided by you when placing your order is up-to-date, materially accurate and sufficient for us to fulfil your order. You also represent that you have the legal capacity to enter a contract and have the authority to place the order on behalf of your company or the entity you are placing an order for.
13.10 You are responsible for maintaining and promptly updating your account information with us for accuracy and completeness and keeping such information (and any passwords given to you to access the website and/or purchasing Products) secure against unauthorised access.
13.11 No warranty, commitment or any other obligation should ever be assumed by you on our behalf or on behalf of a Product manufacturer, licensor or supplier without our express prior written consent.
13.12 If any licence or consent of any government or other authority is required for the acquisition, carriage or use of the Products by you, you shall obtain such licence or consent at your own expense and if necessary produce evidence to us on demand. Failure to do so shall not entitle you to withhold or delay payment of the price. You shall meet any additional expenses or charges incurred by us resulting from such failure.
13.13 Products licensed or sold to you under these terms may be subject to export control laws and regulations in the Territory or other relevant jurisdiction where you take delivery or use them. You shall be responsible for complying with those laws and will not do anything to breach them.
13.14 Where we act as a referrer, introducer, or unrelated agent of a Product supplier, any information we supply to you is provided by the supplier of the said Product. You have an obligation to satisfy yourself with the supplier that the Products are capable of meeting your expectations and intended purpose.
13.15 You will grant us unencumbered and unobstructed access to all areas of the site where the Services are being performed.
14. What ownership and security rights do we have?
14.1 We retain ownership of and hold a security interest in all Products until you have paid us in full for all Products and Services provided to you. While we retain ownership, you will store all Products in such a way that our interests are protected, and they can be easily identified as provided by us or as instructed by us from time to time and keep proper and accurate reports to enable us to distinguish Products for which payment has been made in full of those Products for which payment is outstanding.
14.2 You agree that we hold a security interest in all of your present and after-acquired property connected with Products and Services provided to you, and:
a. authorise us to register a financing statement and charge on the Personal Property Securities Register and provide all information and signatures necessary to affect the same.
b. will not register a financing charge or statement or charge demand regarding Products without our prior written consent.
c. waive your entitlement under s 157 of the Personal Property Securities Act 2010 (PPSA) to receive a copy of a verification statement where we have registered our interest.
d. to the maximum extent of the law, waive your rights as listed under sections 95,125, 130,135,142 and 143 of the PPSA; and
e. to give us seven (7) days prior written notice of any proposed change in your name or details such as contact information.
14.3 Where appropriate, we own the intellectual property rights connected to our Products and Services. You fully indemnify us for any intellectual property infringements we may make when acting in accordance with your instructions.
14.4 You agree to do anything that we reasonably require to ensure that we have a perfected security interest in all the Products and a purchase money security interest in each part of the Products to the extent of the purchase price for that part.
14.5 We may allocate amounts received from you in any manner we determine, including in any manner required to preserve any purchase money security interest we have in any Products.
14.6 If you sell any Products to the fullest extent permitted by law, you shall hold (on a fiduciary basis) all proceeds of such sales in trust for us and in a separate account. You undertake immediately upon being so requested by us to assign to us all rights in respect of those proceeds and that separate account and/or all rights and claims which you may have against any customers arising from such sales until payment is made in full as aforesaid and not to assign such rights and claims to any third party without our prior written consent.
14.7 We reserve the right (subject to applicable law) to repossess any Products in respect of which payment is overdue, declined or lapses and thereafter to re-sell the same and for this purpose, you hereby grant us an irrevocable right and licence to our servants and agents to enter upon your premises during normal business hours. This clause shall continue in force notwithstanding termination of the contract howsoever caused.
15. What is a Software and related rights?
15.1 Where any Product supplied is or includes software ("Software"), this Software is licensed by us or by the relevant licensor/owner subject to the relevant end-user license agreement or other licence terms included with Software ("Licence Terms") and/or the Product. In addition:
a. Such Software may not be copied, adapted, translated, made available, distributed, varied, modified, disassembled, decompiled, reverse engineered or combined with any other software, save to the extent that:
- (i) this is permitted in the Licence Terms, or
- (ii) applicable law expressly mandates such a right which cannot legally be excluded by contract.
b. Save to the extent provided for in any applicable Licence Terms, your rights of return and/or to a refund under these Terms and any applicable returns policy do not apply if you open the Software shrink-wrap and/or break the licence seal and/or register or use the Software.
15.2 Except to the extent expressly provided by us in writing or under relevant Licence Terms, the Software is provided as is without any warranties, terms or conditions as to quality, fitness for purpose, performance or correspondence with description and we do not offer any warranties or guarantees concerning Software installation, configuration or error/defect correction. You are advised to refer to any licence terms concerning determining your rights against a Software manufacturer, licensor or supplier.
16. What if you want to cancel or vary an order?
16.1 All orders are subject to these terms and conditions, and no order may be cancelled or varied except by written notification within a reasonable time frame and both parties agreeing to the variation or cancellation in writing. If we have reasonably relied on your original instructions, you will be responsible for paying the original price of the Products and Services.
17. When can a party cancel this agreement?
17.1 Subject to clauses 17.2 to 17.5, either party may cancel this agreement at any time by giving fourteen (14) days prior written notice. This does not apply to all orders in transit to you.
17.2 We have the right by seven (7) days prior written notice to suspend or cancel wholly or in part this or any agreement for the provision of Products and Services, including delivery (completed or in transit), if you default by:
a. failing to pay or indicating you will not pay any sum owing by the due date.
b. any of your creditors seizing or indicating they will seize any Products provided to you.
c. Products in your possession becoming materially damaged while any amount remains unpaid.
d. being bankrupted, insolvent, under statutory management or put into liquidation.
e. a receiver being appointed over or a landlord possessing any of your assets.
f. a court judgment entered against you remaining unsatisfied for seven (7) days.
g. breaching the terms of this agreement and
h. an adverse material change in your financial position.
17.3 If you default, we may exercise a lien against any Products we possess.
17.4 You agree that if you default and the default is not remedied within seven (7) days, we may enter any premises you occupy to inspect or retrieve any Products. You will provide reasonable access to such premises and do all things necessary to give effect to our obligations. We may resell any Products and credit the net sale proceeds to your account for the invoice value less adjustment for the condition of the Products.
17.5 Cancellation under clause 17.1 or cancellation or suspension under clause 17.2 will not affect either party’s claim for any amount due at the time of cancellation or suspension, damages for any breach of obligations under this agreement and any other legal rights either party may have. Upon cancellation of this agreement, any amount you owe for Products and Services provided up to and including the date of cancellation will become immediately payable and current orders will terminate.
18. Does a personal guarantee apply?
18.1 If you are a director of a company or the trustee of a trust:
a. In exchange for us agreeing to supply Products and Services and/or grant credit to the company or the trust, you accept this agreement in your personal capacity and jointly and severally personally undertake as principal debtors, to pay everything that the company or trust owes us, and to indemnify us against non-payment and/or default; and
b. any personal liability of you as director or trustee will not exclude the company or trust from the liabilities and obligations contained in this agreement.
18.2 A guarantee provided under clause 18.1 will continue to apply notwithstanding changes to these terms of trade in accordance with 20.8 and/or prior dealings.
19. Copyright and Intellectual Property
19.1 The website and its contents are our property and protected by law, including laws governing copyright and other intellectual property rights.
19.2 Unless otherwise expressly authorised by law, you may not use, transfer, or copy any of the website/application content for public or commercial use without our permission. You may only print, download extracts, or use any website/application content pages for your personal use. You acknowledge our status as the owner of the website/application content.
19.3 The provision of Services will not operate to transfer or vest in you any trademark, patent, copyright or other intellectual property. All intellectual property rights in respect of the Products and Services provided by us remain ours and you may not use, reverse engineer, interfere with or alter the intellectual property in any way.
19.4 Unless otherwise agreed, you authorise us to advertise that we are Products and/or Services providers to you on our website, Facebook, Instagram, and other social media sites or for other advertising purposes we may require.
20. What else is agreed upon?
20.1 We may outsource (contract out) part of the work required to perform our Services. You agree to pay for all amounts due in connection with the same.
20.2 A failure by either party to enforce any of the terms of this agreement will not be deemed to be a waiver of any of the rights or obligations under this agreement.
20.3 Neither party may assign or transfer their rights or obligations under this agreement to any other party without our prior written consent.
20.4 If any of these terms are determined to be invalid, void, illegal or unenforceable, the validity, existence, legality and enforceability of the remaining terms will not be affected.
20.5 This agreement supersedes all prior agreements, representations, and warranties. Any instructions we receive from you, and all arrangements between the parties are subject to these terms.
20.6 If a dispute arises between the parties, either party must notify the other in writing within seven (7) days of the dispute arising. The parties will endeavour to resolve the dispute by negotiation within seven (7) days of receiving notice. If the parties cannot resolve the dispute, each party will have the right to refer the dispute for mediation or arbitration at any time. The arbitration will be undertaken in accordance with the Arbitration Act 1996. The presence of a dispute will not affect either party’s claim for any amount due, damages for any breach of obligations under this agreement and any other legal rights either party may have.
20.7 Documentation related to this agreement may be served on you by email.
20.8 We will notify you of any changes to these terms and publish the same on our website - continued provision of Products and Services will be subject to your signed or written acceptance of the same. All other variations must be mutually agreed upon in writing.
20.9 These terms shall include any and every invoice or other document evidencing or describing, whether by item or kind or otherwise, any Products. These terms are paramount, and to the extent that there is any conflict between any provision of them and any invoice or other document evidencing or describing any Products, these terms will prevail.
20.10 Any notice or other communications concerning our contract may be given by sending the same by hand delivery, pre-paid post, or e-mail to the latest address and contact that one party has notified in writing to the other. This will also be the address for service of legal proceedings in the manner prescribed by law Such notices or communications (where properly addressed) shall be considered received:
a. Concerning hand delivery, on the date of delivery at the relevant address (or, if this is not a working date, the first working date thereafter).
b. If posted, 5 working days after the date of posting; or
c. If sent by email, on the earliest of:
- i) the email is acknowledged by the recipient as received.
- ii) receipt by the sender of an automated message indicating successful delivery or the email having been opened or
- iii) the expiry of 48 hours after transmission, provided that the sender has not received notification of unsuccessful transmission.