1. DEFINITIONS & INTERPRETATIONS
In these Conditions, the Rate Schedule and every Quote, Order, Plan contract, or other arrangement in connection with the supply of Goods or Services by Aureole Systems the following words have the following meanings:
“After Hours” means from 5pm to 9am, Monday to Friday, Saturday, Sunday & Public Holidays.
“Business Hours” means 9am to 5pm Monday to Friday excluding Public Holidays.
“Client”, “You” or “Your” means a person who seeks or obtains a quote for, or who orders, Goods or Services from Us, and includes both a person whose name is on the Order or on an email attached to which is an order, a person who places an order, and a person on whose behalf an Order is placed or on whose behalf it appears and order is placed, and in any case each of their heirs, successors and assigns;
“Conditions” means these terms and conditions;
“Goods” means any goods and/or services sourced by Us or provided by Us in connection with any such goods and/or services including computer hardware and Software and any goods or services provided in connection with any of those things;
“GST” has the meaning given to it under Tax System (Goods and Services Tax) Act 1999 (Cth):
“Order” means any order requested by You to Us for Goods or Services in any form;
“Quote” means a quote provided to You by Us;
“Period” means a particular number of half-days, days, weeks, fortnights, months, or any other period, as may be agreed between Us and the You as the period during which some Services will be provided;
“Plan” means any arrangement between Us and You (whether alone or in conjunction with any other person) for Services (including unlimited support) and/or the provision of Goods provided by Us under an arrangement in connection with Work agreed to be done or progressed for or on behalf of You or any other person at Your request, including as set out in a Plan Schedule;
“Plan Schedule” means the key terms applicable to Plans as set, and as may be varied by Us, from time to time in its absolute discretion without notice to You;
“Public Holidays” means any day which is a public holiday throughout Victoria
“Rates” means the hourly rates and other charges for Services (including any call-out fees and any Return/Cancellation Fees) set out in the Rates Schedule, a Plan, Plan Schedule, Quote, contract or arrangement entered into by Us and You or in these Conditions, and includes any monies payable to Us on a quantum meruit basis for any work it has done;
“Rate Schedule” means the schedule of rates, charges and conditions for the services of Ours as set, and as may be varied, by Us from time to time in its absolute discretion without notice to You;
“Reasonable Assistance Limits” has the meaning set out in clause 17.2;
“Return/Cancellation Fee” means a fee charged pursuant to clause 12.5 as set by Us from time to time;
“Service request” means a request for service such as adds, moves, changes and technical assistance;
“Services” means the provision of any services by Us including Work, advice and recommendations;
“Software” includes software and any installation, update, associated software and any services provided in connection with any of these things;
” Us”, “Our”or“We”means Aureole Systems 33 132339 701 and its heirs, successors and assigns; and
“Work” means anything We may do, provide, customise, produce or acquire, whether or not in connection with, or for the purposes of, You or Your use or benefit, and includes testing, troubleshooting, installation and configuration of new equipment or software, consulting, scoping, planning, documenting and quoting for complex items.
In these Conditions, the Rate Schedule and every Quote, Order, Plan, contract, or other arrangement in connection with the supply of Goods or Services by Us, unless the contrary intention appears:
Words denoting the singular number only shall include the plural number and vice versa;
Reference to any gender shall include every other gender;
Reference to any Act of Parliament, Statute or Regulation shall include any amendment currently in force at the relevant time and any Act of Parliament, Statute or Regulation enacted or passed in substitution therefore;
Headings and words put in bold are for convenience of reference only and do not affect the interpretation or construction of these Conditions;
All references to dollars ($) are to Australian Dollars
A reference to time is to Victoria, Australia time
A reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa;
A reference to a recital, clause, schedule, annexure or exhibit is to a recital, clause, schedule, annexure or exhibit of or to these Conditions;
A recital, schedule, annexure or description of the parties forms part of these Conditions;
A reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions), as amended, novated, supplemented or replaced from time to time;
Where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
A reference to “includes” means includes without limitation;
A reference to “will” imports a condition not a warranty; and
A reference to bankruptcy or winding up includes bankruptcy, winding up, liquidation, dissolution, becoming an insolvent under administration, being subject to administration and the occurrence of anything analogous or having a substantially similar effect to any of those conditions or matters under the law of any applicable jurisdiction and to the procedures, circumstances and events which constitute any of those conditions or matters.
2. APPLICATION OF THESE CONDITIONS
Unless otherwise agreed by Us in writing, these Conditions are deemed incorporated in and are applicable to (and to the extent of any inconsistency will prevail over) the terms of every Quote, Order, Plan, contract, or other arrangement in connection with the supply of Goods and/or Services by Us to You.
The invalidity or enforceability of any one or more of the provisions of this Agreement will not invalidate, or render unenforceable, the remaining provisions of this Agreement.
3. COMMITMENT TERM
- The minimum term that You acquire the service for is outlined in Our Quote to You, beginning from the first of the next month after the date of signing or approving the Quote.
- After the expiry of the Committed Term, an extension of the Term will automatically commence for the same period as the original Committed Term and will continue indefinitely, unless earlier terminated by you as specified in Clause 4
- This Agreement may be terminated by You upon ninety (90) days written notice if We:
- Fail to fulfil in any material respect its obligations under this Agreement and do not cure such failure within thirty (30) days of receipt of such written notice.
- Breach any material term or condition of this Agreement and fail to remedy such breach within thirty (30) days of receipt of such written notice.
- Terminate or suspend our business operations, unless it is succeeded by a permitted assignee under this Agreement.
- This Agreement may be terminated by Us upon ninety (90) days written notice to you.
- If either party terminates this Agreement, we will assist you in the orderly termination of services, including timely transfer of the services to another designated provider. You agree to pay us for rendering such assistance at our normal rates as outlined in our current Rate Schedule.
- Should You wish to terminate this Agreement before the end of the commitment term, You agree to pay all of the remaining payments up until the end of the commitment term.
- You acknowledge that no employee or agent of Ours has any right to make any representation, warranty or promise in relation to the supply of Goods or Services other than subject to and as may be contained in the Conditions.
- Any notices given under the Conditions shall be in writing and sent by e-mail to the last notified e-mail address of Yours.
7. GOVERNING LAW
- The Conditions shall be governed by and construed in accordance with the laws Victoria and the parties submit to the non-exclusive jurisdiction of the Victoria.
- You may not assign Your rights and obligations under this Agreement without the prior written consent of Us.
9. VARIATION OF THESE TERMS & CONDITIONS
- We may at any time vary these Terms and Conditions by publishing the varied Terms and Conditions on Our website. You accept that by doing this, We have provided You with sufficient notice of the variation. We are under no other obligation to notify You of any variation to these terms and conditions.
- Term and effect: Quotes will only be valid for 14 days unless otherwise specified in the Quote. A Quote is merely an invitation to You to place an Order with Us and the acceptance of a Quote by You will not create a binding contract between You and Us.
- Quote is valid for 14 days only. Expiry dates on quotes are set to be able to inform Us when the quote is still active or to be discarded. Once discarded the quote will need to be requested again.
- Once a quote has been confirmed by Us, then the prices in the quote will be confirmed as the final agreed price. A quote is confirmed as ‘final’ as soon as both parties agree with the final price after any last changes requested by You.
- The price in the final quote may vary from the original request if there is any price or product changes requested by You. We reserve the right to alter product and prices in the quote, as long as the quote has not been confirmed with You.
- Quotes and estimates shall be deemed to correctly interpret the original specifications and are based on the cost at the time the quote or estimate is given. If You later require any changes to the quotes, and We agree to the changes, these changes will be charged at Our prevailing rate.
- Once the Quote has been confirmed and converted to an Order, the Order will be subjected to our normal Terms and Condition of Sale.
- The general minimum turnaround time for Quote request to be actioned is usually 24 hours. In the event that a quote is required urgently please let us know so that we can respond to it accordingly.
- When a special price or discount offer has been applied to this Quote, no other special promotion, discount or bonus offer will be applicable.
- In the event that products in the Quote are subjected to any price and supply fluctuations that is outside of Our control We reserve the right to update the price and product in the Quote accordingly. If a product has undergone a price drop or a price increase, the Quote will then be adjusted accordingly. If there is a product that is no longer available, the product will then be replaced or substituted based on Your request and is subject to Your final approval.
- Price on non-stocked products are subjected to Price and stock fluctuations and can only be confirmed once the Quote is turned into an Order. While We endeavour to honour every price quoted, if there is a price increase that is beyond our control, We reserve the right to increase the price as necessary.
- Once a Quote has already passed the expired date, We may cancel the quote or estimate without having to notify or receive an approval from You.
- ETA information is based on an estimate given by our vendors and cannot be held as the actual promised date.
- Freight charges will be added to the Order unless otherwise stated. Any included delivery charges are estimates only.
- We do not keep inventory and as such only order items once we receive a completed order from a client. If You would like to return an item or cancel an order, a restocking fee may apply. We will need to get approval from the distributor that the stock is returnable before being able to issue a refund as not all products can be returned.
- Prices are based upon total Quote Purchase.
- Unless Specified, all items on quote are covered by manufacturer’s warranty covering parts and labour for hardware only on a return to depot basis.
- Varying or withdrawing Quotes: We may vary or withdraw a Quote at any time in Our absolute discretion and without prior notice to You. We may do so for any reason We consider fit, including, e.g. where the Goods or Services become unavailable or the cost price of Goods or Services increases after the date of the Quote.
- Order forms: You may place an Order for Goods and/or Services with Us. Normally, We will require that You provide either a completed Order form or You approve the quote electronically via either an email or a web based system with the date and Your details, including Your full legal name or description and any applicable ABN or ACN number (including the full name or description of any person on whose behalf the order is placed), Your address together with any relevant Quote number and date.
- Approval of Orders: You will need to sign the Order or have it duly executed on Your behalf, unless the Order is sent by email or via the web based ordering system, in which case the Order will be treated or deemed as if signed by or on behalf of You by the person whose name appears as the sender of the email or submitter of the form.
- Reliance on appearance of validity: Absent actual knowledge to the contrary, We may rely upon the apparent validity of an Order. If any Order is signed or sent by email or approved through the web based ordering system by a named person, that person warrants that the Order is, and it is acknowledged the Order is deemed in favour of Us to be:
- signed by, and duly authorised by, both the person who signed the Order and the person who sent the email; and
- duly authorised by the person on whose behalf the Order is placed or apparently placed.
- Acceptance and Orders: An Order has no effect unless or until it is accepted by You in writing and, until We have received from You payment in clear funds for the Order and any related freight, delivery and (where applicable) in-transit insurance costs in clear funds.
- No obligation to deliver: We are not obliged to deliver any Order until we have received payment in clear funds from You for the Order, any related freight, delivery and (where applicable) in-transit insurance costs or where We are unwilling or unable to complete the Order for any reason provided it refunds any payment made by You in respect of the Order.
- Credit checks: For the purposes of ascertaining the credit standing or history of a prospective customer to whom We are considering extending credit or payment terms, You hereby consents to Us undertaking a credit reference check in respect to You.
- Cancellation of Orders: You will not cancel an Order unless We agree to do so in writing in Our absolute discretion. You acknowledge that, amongst other things, We cannot cancel an Order once the manufacturer or supplier has despatched the relevant Goods and that such despatch often occurs the same day as the Order is placed by Us.
- Processes and Procedures: We have processes and procedures that We follow in the course of the provision of Our Services and the supply of Goods. You agree to co-operate with Us and to comply with such processes and procedures as advised to You from time to time.
12. PRICING & RATES
- Rates exclude Tax: All rates and amounts charged or quoted for Goods and/or Services by Us are exclusive of Tax and any other applicable taxes or government charges (unless otherwise stated in writing by Us).
- Rates Schedule: You must pay for Goods and Services at the Rates set out in any applicable Plan and the Rate Schedule as applicable from time to time during the provision of the Goods and/or Services.
- Vary Rates: We reserve the right vary any Rate and/or the Rate Schedule from time to time (subject to any fixed pricing for specific periods in any Plan), in its absolute discretion and without notice to You.
- Call-out fees: You acknowledge that call-out fees may be charged in addition to the Rates at Our absolute discretion and that the amount of the call-out fee will depend upon where the Services are provided.
- Where We arrange a return or refund on behalf of You, or where an Order is cancelled by You after acceptance by Us, We may charge You a Return/Cancellation fee to cover the administration costs to Us in processing the return or refund, or in processing the Order, the cancellation and any refund. We may deduct the Return/Cancellation fee from out of any moneys otherwise due to be refunded to You by Us.
- Expenses: You must pay any out of pocket expenses incurred by Us in providing the Services to You in addition to the Rates, charges and call-out fees, upon written demand. Such expenses will include travel costs, flights, car hire, petrol, insurance, taxi fares, accommodation and related meal allowance, tolls and car parking expenses. Where appropriate, We will obtain prior written authorisation from You before such expenses are incurred.
- Separate charges for Goods and Services: We may in Our absolute discretion charge for Goods separately from Services or may charge for Goods and Services together.
- Calculation of increments: Where a charge is calculated based on increments of time, e.g. 1 hour or 30 minutes, We will charge the applicable rate for the whole increment of time even if work is done during part of, but not for the whole of, that increment of time.
- Change in underlying costs: Without prejudice to any other rights of Ours under these Conditions, where there is any increase in the underlying costs incurred by Us in connection with the supply of Goods or Services to You, We may, in our absolute discretion, vary any of Our Rates.
13. SERVICES & PLANS
- Service and Plan Variations: Currently, We offer the Services and Plans referred to in the Rates Schedule and any Plan Schedule. We may withdraw the provision of, or vary the scope or terms of, or add to or change, the Services without notice to You, from time to time in Our absolute discretion.
- Copies on Request: We will provide You with a copy of the current Rates Schedule upon request. Plan Schedules are tailored for particular Plans and are available to Clients participating in the Plan.
- We may subcontract any or all of the Services to be performed, but shall retain prime responsibility for the Services under these terms.
15. DELIVERY, TITLE & RISK
- Delivery liability: We will use all reasonable endeavours to despatch Goods by the due date, but do not accept any liability for non-delivery or failure to deliver on time where this is caused by circumstances beyond the reasonable control of Ours, including, for example, due to failures in supply to Us or delays caused by third parties, such as delivery companies or manufacturers.
- Availability to accept delivery: You must be available to accept the Goods at Your nominated delivery address during Business Hours unless otherwise arranged.
- Passing of Risk: Delivery is deemed to take place when the Goods are delivered to Your nominated address, whereupon risks of loss, breakage and all damage and all other risks pass to You. Nothing in this clause 15.3 will affect title to the Goods.
- Obligation to insure: You will ensure that Goods are adequately insured from the time of delivery under clause 15.3.
- Retention of Title: Until We receive full payment in cleared funds for any moneys due to Us by You on any account or for any reason:
- title to, and property in, Goods supplied to You remain vested in Us and does not pass to You;
- You must hold those Goods as fiduciary bailee and agent for Us and must not sell them;
- You must keep those Goods separate from other goods and maintain the Goods and their labelling and packaging intact;
- Where You sell the goods in breach of these Conditions, You are required to hold the proceeds of any sale of those Goods on trust for Us in a separate account (however any failure to do so will not affect Your obligation to deal with the proceeds as trustee and remit them to Us);
- We may, without prior notice, enter into any premises where We suspect those Goods may be, take possession of those Goods and sever and remove those Goods (notwithstanding that they may have been attached to other goods not the property of Ours) and for this purpose, You hereby irrevocably authorise and direct Us (and Our employees and agents) to enter into such premises as its duly authorised agent and You hereby indemnify and hold harmless Us from and against any costs, claims, allegations, demands, damages or expenses or any other acts or omissions arising from or in connection with, such entry, repossession or removal.
- You irrevocably appoint Us as Your attorney to do anything We consider necessary in order to enter such premises and repossess the Goods as contemplated by this clause 15.5.
16. RETURNS & CLAIMS FOR GOODS & SERVICES
- General Returns Policy: Notwithstanding anything in these Conditions, You acknowledge that We supply Goods subject to all applicable conditions, including returns and claims policies, of any relevant manufacturer or supplier. You will accept Goods subject always to these Conditions and the terms of such conditions and will indemnify and hold Us harmless in respect of any further or other obligation or any failure or default on the part of that manufacturer or supplier.
- Customised Goods not returnable: Where Goods have some element of customisation for You, are supplied pursuant to an Order for Goods that is in the opinion of Ours special or unusual, the Goods are obtained from overseas, the Goods are obtained from a supplier who is no longer trading, or the Goods are otherwise not readily returnable by Us to the manufacturer or supplier or any related services may not be cancelled, You may not return the Goods to Us or cancel the related services.
- Duty to inspect: You will inspect all Goods immediately upon their delivery. Within 7 days of such delivery You may give written notice to Us of any matter or thing, by reason of which You might wish to return the Goods, ask for a refund, or make a claim. If no such notice is given on time, You will accept the Goods without any such return, refund or claim.
- Return Condition: Where You are entitled to return Goods under these Conditions, You must return the Goods in their original condition and unopened, provided always that where, upon opening the packaging it becomes apparent that the Goods are different to what is described on the packaging or that the Goods are faulty, the Goods may be returned.
- Return costs: You will pay all costs and expenses incurred by Us in arranging the return of the Goods to a manufacturer or supplier and/or the cancellation of any related services unless that manufacturer or supplier pays such costs.
- Consequences of use, installation, customisation or sale: You will indemnify and hold Us harmless in respect of all allegations and claims in respect of Goods once such Goods have been used, installed, customised or re-sold by You (without prejudice to the recourse of such a customer to the manufacturer of the Goods).