TERMS AND CONDITIONS
Definitions
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We, Our, Us, The Company. Means the business listed on the top of the Order and labelled “The Company” or our related bodies corporate, partners, dealers, agents or employee(s).
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You, Your. Means the customer and applicant as specified in the Order.
Order. Means any document(s) labelled Order, Goods Schedule, Purchase Order, Order Variation or any combination, whether containing an order number or not and provided by you to request from us the Equipment specified within. This may be varied or replaced if agreed by you or with us.
Site. Means the location(s) of your premises where the equipment is to be installed and/or delivered as specified in the order.
Equipment, Goods. Means the Equipment supplied or to be supplied by us as specified in the Order.
Agreement. Means these terms and conditions, any Maintenance Agreement or any other Schedules and/or any attachments as agreed by you.
Proposed Installation Date. Means the date of installation and/ or delivery as specified in the agreement or the earliest possible date as determined by us if no date is specified.
Financier. Means the finance company if you are financing the Equipment or You if the Equipment is being purchased outright. At any time, this may be changed or varied if agreed by you or with us.
Privacy Authorisation, Consent and Information
1.1 You agree that we may give certain information about you to a credit reporting agency to obtain a credit report about you. (The information which may be given is covered by the s18E (1) of the Privacy Act 1988 (“Privacy Act”) and includes identity particulars and the fact that you are entering this Agreement).
1.2 You agree that we may seek and obtain information about you from a credit reporting agency or another credit provider and give information about you to another credit provider. (This may include anything about credit worthiness, history, standing or capacity, including information about Commercial credit, which credit providers are permitted by the Privacy Act to obtain or receive).
1.3 If you are an individual, we may collect personal information about you including but not limited to your electronic contact details such as email ("your personal information").
1.4 If you are a business customer we may collect information about your business including but not limited to your electronic contact details such as email (“your business information”).
1.5 You acknowledge and agree that we may use your personal information or business information to send commercial electronic messages, as defined under the Spam Act 2003 (Cth). Unless you ask us not to, we will use your personal information or business information to provide information to you about goods or services which we or any of our related bodies corporate or any of partners, dealers and agents may offer to you; provide information to our related bodies corporate, our partners, our dealers and agents so that they can provide information to you about goods and services they offer; send commercial electronic messages as defined under the Spam Act 2003 (Cth) and for billing, administration and customer information purposes.
1.6 If you do not want us to use your personal information or business information in this way, you may ask us not to by contacting us. Otherwise we will assume that you have consented to the use and disclosure of the information for these purposes.
1.7 Information concerning our policies with respect to personal information is contained in our privacy policy as current from time to time which is available on request or on our Website.
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Sale of the Equipment
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2.1 We agree to sell the Equipment to the financier. You agree to order it from us and the financier to pay us for the Equipment. The Equipment will be new unless otherwise stated and agreed with you.
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2.2 You agree to comply with our toll fraud minimisation information and strategies. A copy of which can be found on our Website or obtained by calling us on the telephone number(s) provided and as current from time to time.
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Delivery of the Equipment
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3.1 We will endeavour to deliver the Equipment to the Site on or prior to the proposed installation date as specified in the order and as agreed with you.
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Installation of the Equipment
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4.1 This clause 4 only applies if as specified in the order, we are to install the Equipment.
4.2 When requested we will connect the Equipment to the telephone network at an additional cost fixed by us. We are not responsible for delays in providing network access to your Site.
4.3 We will endeavour to install the Equipment at the Site by the Proposed Installation Date as specified in the order.
4.4 If you are ready for the Equipment to be installed and we have not installed it by that date, then for the following 10 days only, you can cancel this Agreement by written notice to us. You cannot cancel after we install the Equipment.
4.5 Installation of the Equipment may only be performed during normal working hours (8am-5pm, Mon-Fri). If you request us to install at another time, there may be additional charges.
4.6 We are not responsible for any problem(s) which occur during an installation unless we caused the problem directly or the problem is related to the direct performance of the Equipment. If a problem occurs which we did not cause and we have to fix it, there may be additional charges.
4.7 It may be necessary to change the Equipment because of a problem which we did not cause. In that case, the price as specified in the order may also change. You will be advised when the Equipment is fully installed and functioning correctly. We will provide basic instruction on the features of the Equipment.
4.8 We may cancel this order by written notice to you if you have not enabled installation of the Equipment to take place within 30 days of the Proposed Installation Date. In that event you will pay us damages for our storage, handling, re-scheduling and other administration costs as determined by us.
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Preparing the Site for Installation
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5.1 Before we have to install, you are responsible for preparing the Site for installation of the Equipment. We will tell you what work is required and if you have not done that work by the time we come to install (on a date that is agreed with you) you may be charged a visit fee and installation will be re-scheduled.
5.2 You are responsible for providing suitable attendance and access to all areas of your premises to allow us to perform our work. If the Proposed Installation Date needs to be re-scheduled and notice is not received at least 48 hours prior you may be charged a visit fee and installation will be re-scheduled.
5.3 You are responsible for getting any council or other approval(s) as required for our work to be carried out.
5.4 You must ensure the working environment is clean and safe for us to perform our work.
Payment
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6.1 If you purchase the goods outright, you must pay us the total Equipment price, any installation charges and any other charges you as specified in the order.
6.2 If any Goods and Services Tax (GST) is or becomes payable by us in respect of any supply made by us to you then you must reimburse us for any GST paid or payable by us immediately upon request.
6.3 We will pay all stamp duty and delivery or storage charges except for any that you have agreed to pay or if you are in breach of any condition of sale.
6.4 You must pay our actual cost to install. This may vary from the quotation price for installation once we have physically inspected the Site on or before the Proposed Installation Date or by a licensed technician during a scheduled Site inspection.
6.5 If you purchase Equipment outright, you must pay us for the Equipment in instalments as follows:
(a) 50% of the price of the Equipment will be due immediately and upon of entering into this Order;
(b) 50% of the price of the Equipment will be due prior to installation/ delivery of the Equipment.
6.6 If you do not pay the first or second instalment of the price in accordance with clauses 6.5(a) or 6.5(b), we may withhold delivery or installation (at our sole discretion) of the Equipment or cancel your Order and refund to you any amounts paid less reasonable administrative costs incurred by us.
6.7 You must pay us at the time of delivery and/or installation of the Equipment, as set out in any invoice we provide.
6.8 If you finance the Equipment you must pay all the charges in accordance with the finance agreement and its terms and conditions.
6.9 You agree that we may charge you interest on any unpaid amounts outside our payment terms including any delays caused by you restricting payment from a financier. The interest rate will be calculated daily at the rate that is calculated at 18% per annum.
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Financed Equipment
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7.1 If you finance the Equipment you must make all reasonable effort to allow us to receive prompt payment from the financier.
7.2 Once all or some of the Equipment is ordered, delivered and/ or installed or an arrangement has been made or attempted to supply the balance of the Equipment, you agree that we are entitled to prompt payment from the financier.
7.3 You must not unreasonably restrict a payment which we are otherwise entitled to under this or any other agreements.
Legal title to the Equipment
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8.1 We own the Equipment until the financier has paid us everything owed to us under this Agreement. In the case of software, no title will pass to that software but we will grant a licence to use that software on the terms set out in this Agreement.
8.2 You cannot sell it or use it as security for a loan or deal with it in any other way (until you own it).
8.3 If you have financed your goods Legal title to the equipment is in accordance with the finance companies terms and conditions.
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Loss or Damage to the Equipment
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9.1 The Equipment is accepted in your care and at your risk from the time of its delivery to the Site.
9.2 We are not responsible for any loss of or damage to any of the Equipment after that time unless we caused it directly.
9.3 If that loss or damage happens and we did not cause it, you still have to pay us the total Equipment price as specified in the order.
9.4 If the order is for financing of the Equipment you must pay an amount, as determined by us and our suppliers to be reasonable to replace the goods in accordance with the terms and conditions of the finance company.
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Return of the Equipment
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10.1 Subject to your legal rights, you cannot return any of the Equipment to us except with our written agreement.
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Changes to the Equipment
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11.1 We can change the Equipment, its design or the way it is made, at any time but we can only do this if there is no extra cost to you and the changed Equipment has at least the same functionality.
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Intellectual property rights
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12.1 All our documentation provided to you is subject to copyright. The Equipment may also be subject to design rights or other rights. Nothing in this Agreement constitutes any transfer of intellectual property rights from us to you.
12.2 You must not copy or reproduce any part of our documentation or any part of the Equipment without our expressed written permission.
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Cancellation by You
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13.1 If you cancel under 4.4, we can take back any of the Equipment at the Site. We will pay you back what you have paid us for the Equipment. You have no other right against us.
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Our warranty
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14.1 The warranty period for each item of the Equipment and installation workmanship, if installed by us, is as detailed in the Warranty Schedule contained within these terms and conditions.
14.2 We warrant that, for the warranty period, the Equipment will be free of defects caused by faulty work done or materials used in making it or faulty work done by us in installing it.
14.3 But we only have to repair or, at our option, replace the Equipment at no charge to you. In the case of software we will only replace the software (within a reasonable timeframe after you report the fault to us). You have no other right against us.
14.4 This warranty is void if the Equipment, or any warranty sticker on the Equipment, has been tampered with.
14.5 This warranty only covers the Equipment and not anything else (such as things attached to it or the wiring already at the Site).
14.6 This warranty does not cover defects caused or contributed to by you or others or by abuse or misuse of the Equipment.
14.7 Consumable items such as (but without limitation) foam and leather ear cushions, microphone covers, voice tubes, clips, toner and batteries are excluded from warranty.
Limits of our liability
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15.1 To the full extent permitted by law, any warranty or condition implied (or other liability put on us) under law is excluded from this Agreement. However, if it cannot lawfully be excluded, then if allowed, our liability is limited to repairing or replacing or reservicing the Equipment or supplying equivalent Equipment or in the case of software we will only replace the software (whichever option we choose) at no charge to you.
15.2 We have no liability to you except as written in this Agreement, or except for our deliberate misconduct.
15.3 Subject to 15.1, we exclude all liability, in Contract, tort (including negligence) or otherwise for all claims, actions, loss, liability or damage (whether direct, indirect, consequential or incidental loss or damage and whether for loss of profits, costs of delay or data or otherwise) suffered or incurred by you or anybody else because of a failure of the Equipment or any act, omission, delay or non performance by us or any network service provider or any toll fraud suffered by you.
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Force Majeure
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16.1 This clause 16 applies if a party cannot fully comply with an obligation under this Agreement due to a cause out of the party’s reasonable control.
16.2 In th at case so far as and for as long as the party cannot comply with the obligation due to that cause, the party is excused from doing so.
16.3 However, an obligation to pay money is never excused by this clause.
16.4 Industrial disputes, any changes in the law and our failure to obtain materials from our suppliers are, amongst others, to be treated as causes out of our reasonable control.
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Breach
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17.1 You must comply with all your obligations in this Agreement fully, correctly and on time, without fail. Your strict compliance is essential.
17.2 We may cancel this Agreement immediately by written notice to you if you breach it in any way.
17.3 In that case, we can keep what you have paid us for the Equipment.
17.4 We may also take back any Equipment and resell it. You must pay all the expenses of this.
17.5 You must pay any shortfall in our damages after allowing for anything we get under 17.3 or 17.4.
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Our right to enter
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18.1 We can enter the Site to take back any Equipment under 13.1 or 17.4.
18.2 You must ensure that we have access to the Equipment, at any time, in order to exercise any of our rights, including testing the Goods or otherwise checking whether you have complied with your obligations. You authorise us to enter any premises where the Equipment are located for these purposes. We will give you reasonable notice before doing so, unless we consider we must act quickly in order to protect our interest.
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Our right to cancel or reject
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19.1 We may cancel or reject an Order at any time and for any reason, whether disclosed to you or not, at our sole discretion by written notice to you.
19.2 If we cancel or reject in accordance with clause 19.1, we will pay you back what you have paid us under this Agreement. You have no other right against us.
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Unenforceable or Void terms
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20.1 Clauses in this Agreement must be read so that they are not illegal, void or unenforceable.
20.2 If they cannot, they must be severed (that is, treated as if cut out).
20.3 The rest of this Agreement is not affected if any clauses are read down or severed.
Assignment
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21.1 Except with our written consent, you cannot transfer any of your rights or obligations under this Agreement to anybody else.
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Copies
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22.1 You agree that an electronic or faxed copy of this Agreement is admissible evidence of this Agreement.
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Governing law
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23.1 This Agreement is governed by the laws of the State of Victoria and all parties agree to the jurisdiction of its courts.
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Powers You give Us
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25.1 You give us authority to do, without notice to you, anything considered by us to be necessary to give effect to the Order including the completion or correction of any details or the doing of anything you should have done and anything we consider desirable to protect our rights to the equipment or payment.
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Training Packages
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25.1 If your order includes a training package, we will conduct the training at the Site and endeavour to deliver the training at the times agreed with you in advance. We will deliver training of your receptionist and system administrator on a one-to-one basis and user training in groups of no more than 10 users. We will conduct the training during our normal working hours. You will allow us access to the Site and to the Equipment to enable us to conduct the training. You must pay us for extra charges if you want us to conduct the training at other times or for additional travel charges (if any), but only if you agreed to pay beforehand. If you request us to cancel or re-schedule a planned training session less than 3 business days prior to the agreed start date, you will lose the agreed hours for that training session.
25.2 Training must be conducted within 3 months from the date of this Agreement. Training sessions must be no less than one (1) hour and no greater than three (3) hours duration. All allocated training is to be consumed in a single session.
Service and Maintenance
26.1 Service can be provided by entering a Maintenance Agreement or contacting us by our Website or telephone to arrange assistance via Fee for Service for which the rates will be quoted on request and may be varied from time to time.
26.2 Terms, Conditions and Inclusions for Maintenance Agreements are provided on the Maintenance Agreement Schedule, a copy of which can be found on our Website or obtained by calling us on the telephone number(s) provided and as current from time to time.
Warranty Schedule
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General Equipment Warranty
- 12 months repair or replacement warranty for all new Equipment.
- 3 months repair or replacement for refurbished Equipment.
- We cannot and do not claim to control the supply of any Equipment. If required, our best efforts will be used to locate a suitable replacement and we will offer any viable temporary alternatives, at our sole discretion, to assist you in operating during this period. This can sometimes take 90 days or more and we will advise you of any delays or difficulties in sourcing replacement equipment.
Software Warranty
- No warranty is provided.
Installation Warranty
- 3 months for the workmanship and all the materials required to complete the installation.
Commencement
- The period of warranty begins when the Equipment is delivered to the Site or, if we install it, when we complete the installation.
Exclusions
- In addition to clauses 14 and 15, our warranty does not include any defect or damage caused by unauthorised attempts to repair, by any other cause beyond the range of the intended use of the Equipment, or by accident, fire, lightning, power cuts or outages or other hazards, failure to maintain appropriate environmental conditions.
- We do not warrant that the Equipment will work in combination with hardware or applications software products provided by third parties, that the operation of any software will be uninterrupted or error free, or that all software defects will be corrected.
- Where our product documentation or specifications indicate a third party supplied product is compatible, we will make reasonable efforts to provide compatibility except where the non-compatibility is caused by a “bug” or defect in the third party’s product or from use of software not in accordance with our published specifications or user manuals.
Software Licence
- Where software is provided as part of the Equipment, or where the Equipment we are providing are software products only, we grant to you a personal, non-exclusive, non-transferable, licence to use that software only on the Equipment you are purchasing from us and only for your own internal business purposes. You must not use the software for any other purpose. The detailed terms of this licence accompany the Equipment or the software product. By accepting the Equipment or the software product you are deemed to accept the terms of this licence. You acknowledge that at no time do you acquire any right, title or other interest in that software other than this licence.
Other Conditions
- If any equipment is returned to us for repair, we are not responsible for any software, firmware, information or memory data of yours contained in, stored on, or integrated with that equipment.
- We will not install third party software on the Equipment and it is your responsibility to ensure that any third party software licences are complied with.
- If you ask us to install software products we are supplying to you on equipment not provided by us, we will only do so on the basis we have no responsibility for any damage or disruption in operation or any other loss resulting out of the use of that equipment or to any other software or data which may reside on that equipment.
- We may, at our sole discretion, choose to resolve the difficulty by: providing verbal assistance in person or via telephone, or fixing the fault by remote access, or coming to the Site to rectify the fault.
Associated Costs
- We will resolve any Equipment related difficulties difficulty by providing verbal assistance or you must send us the faulty Equipment at your cost.
- If when received and tested the Equipment is found to be in working order we will return the Equipment to you at your cost.
- If when received and tested the Equipment is found to be faulty, we will send you replacement Equipment at our cost.
- You must pay all labour costs incurred during testing and for the return of Equipment to you.
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