1.1 These terms form part of any:
(a) sale of Products by the Seller to the Buyer; and
(b) provision of Services to the Buyer, and
any order or request for Products and/or Services placed by the Buyer is deemed to be an order incorporating these terms.
2.1 In these terms:
(a) Australian Consumer Law means the law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any corresponding state or territory legislation, including any statutory amendment or re-enactment for the time being in force;
(b) Buyer means the buyer of Product or Services from the Seller;
(c) Delivery means delivery of Products to the Buyer’s address by the Seller’s carrier. and Delivered has a corresponding meaning;
(d) Force Majeure Event means any event outside the control of the Seller;
(e) Price means the price for the Products and/or Services determined in accordance with the Seller’s pricing policy as notified to the Buyer, listed on its website from time to time, or set out in a quote (in response to which an order has been placed by the Buyer and the Seller has accepted that order);
(f) Product means any goods or products supplied by the Seller to the Buyer whether on consignment or otherwise;
(g) Seller means NCrypt Cellular Pty Limited ABN 97 604 425 489 Trading As Xiph Cyber; and
(h) Service means any service provided by the Seller to a Buyer.
3. Order and Acceptance
3.1 Any quotation made by the Seller is not an offer to sell the Products or to provide the Services and no order made by the Buyer in response to a quotation binds the Seller until accepted by the Seller in writing or by the commencement of supply of the relevant Products and/or Services.
3.2 The Seller is not obliged to accept an order placed by the Buyer. An individual contract for the supply of Products and/or Services, on these terms, is formed on acceptance by the Seller of an order from the Buyer.
4. Delivery of products
4.1 Unless other delivery arrangements are agreed (including shipping arrangements), Delivery will take place at the Buyer’s address noted in an order. The Seller will make all reasonable efforts to have the Products Delivered to the Buyer as soon as practicable, but the Seller has no liability if Delivery is not made on this date. The Buyer must accept Delivery of the Products ordered and pay the Price irrespective of any delay in Delivery.
4.2 In the event that the Seller is unable to obtain a Product ordered by the Buyer from its supplier for more than 30 days from the date the Buyer ordered that Product, the Seller will notify the Buyer of the delay and the Buyer may request a full refund of the Price paid by the Buyer in respect of that Product.
4.3 Risk in a Product passes to the Buyer on Delivery.
4.4 Subject to any applicable law, once a Product has been Delivered to the Buyer, the Seller will not provide the Buyer with a refund in respect of a Product if the Buyer changes their mind.
5. Acceptance of products and services
5.1 Subject to any applicable law, Products and Services will be deemed to have been accepted by the Buyer, unless the Buyer notifies the Seller within a reasonable period of time (not to exceed 7 days from date of Delivery of the Products or the provision of the Services or such longer period as required under any applicable law, including the Australian Consumer Law) of a defect (Rejection).
5.2 The Buyer must notify the Seller in writing of the reason for Rejection and allow for on-site inspection, repair or replacement by the Seller.
5.3 Subject to any applicable law, the return of any Products is at the Buyer’s expense and any associated risk of damage in respect of returned Products is the responsibility of Buyer until received, inspected and accepted by the Seller.
6.1 Any order for Products and/or Services may only be cancelled, varied or suspended by the Buyer with the prior written consent of the Seller (which must not unreasonably be withheld) and in the event of such cancellation, variation or suspension, the Buyer undertakes to reimburse and indemnify the Seller for any reasonable costs, expenses or charges incurred by the Seller in preparation for and in the execution of an order.
7. Buyer's property
7.1 In the event that the Buyer orders a Service to be performed by the Seller upon or in respect of piece of equipment already owned by the Buyer (Buyer’s Property):
(a) the Buyer must provide the Buyer’s Property to the Seller at its own expense and any associated risk of damage in respect of the Buyer’s Property is the responsibility of Buyer until received, inspected and accepted by the Seller;
(i) once the Service has been completed, the Buyer must collect the Buyer’s Property from the Seller’s premises or arrange for it to be delivered to the Buyer at its own expense; and
(j) once the Buyer’s Property is collected by the Buyer or collected for delivery, and any associated risk of damage in respect of the Buyer’s Property is the responsibility of Buyer.
7.2 The Seller does not provide any warranties in respect of the Buyer’s Property.
8. Force Majeure
8.1 The Seller is not liable for any delay or the failure to perform any obligation to the Buyer caused by a Force Majeure Event.
8.2 If a Force Majeure Event causes an increase in costs to be incurred by the Seller (for example, as a result of changes in exchange rates), the Seller may change the Price at any time (including after an order has been placed) to reasonably reflect the additional costs incurred or to be incurred by the Seller.
9. Price and Payment
9.1 The Buyer must make payment of the Price to the Seller:
(a) in respect of Products – at the time the Buyer orders the Products.
(k) in respect of Services – within 7 days of being issued with an invoice by the Seller.
9.2 Where the Seller agrees to provide credit terms to the Buyer (in respect of Products and/or Services), the Seller may, at its sole discretion, require the Buyer to make payment of at least 50% of the total order value as part payment before it accepts that order.
9.3 The Seller is not required to Deliver a Product unless the Buyer makes payment for that Product in accordance with clause 9.1(a).
9.4 The Price for subsequent orders of Products and Services is subject to change at any time, including after an order has been placed.
9.5 The Seller may charge the Buyer interest at a rate of 8% per annum or the maximum amount permitted by law, whichever is less, on all overdue amounts.
9.6 If the Seller takes steps or any action to recover any amount due to it by the Buyer, the Buyer is responsible for all reasonable costs and disbursements (including but not limited to legal costs on a full indemnity basis) incurred by the Seller in recovering the monies due.
10.1 Where invoices are not paid when due, the Seller may exercise any rights it may have against the Buyer including (without limitation):
(a) suspending Delivery of Products;
(b) suspending the supply of Services;
(l) requiring the Buyer to make payment of the Price upon the order of any Services; or
(m) commencing legal action to recover any amount owing by the Buyer.
10.2 Any expense, cost or disbursements incurred by the Seller in recovering any outstanding monies including debt collection agency fees, commission and any fees, costs or disbursements paid to the Seller’s solicitors, must be paid by the Buyer on a full indemnity basis.
11. Exclusion of Conditions and Warranties
11.1 To the fullest extent permitted by any law, all conditions and warranties implied by law arising out of the supply of the Product and/or Services by the Seller, are excluded.
11.2 The Seller does not limit or exclude the application of any provision of any statute (including the Australian Consumer Law or any similar law) where to do so would contravene that statute or cause any part of this clause to be void.
11.3 Without limiting this clause 11, the Seller has no liability (including liability for negligence) to any person for:
(a) any loss or damage (including consequential loss) suffered by any person which arises directly or indirectly out of the supply of Products and/or Services to any person;
(n) any loss or damage (including consequential loss) suffered by any person which arises directly or indirectly out of any failure of, or defect or deficiency in, any Product and/or Service;
(o) any loss or damage (including consequential loss) suffered by any person which arises directly or indirectly out of the provision of any advice, recommendation or Service by the Seller;
(p) any defects in or damage to the Products caused by:
(i) inappropriate use by the Buyer, a third party commissioned by the Buyer or by use in deviation from normal operating conditions;
(ii) normal wear and tear or use of the Products outside its normal scope of use;
(iii) lack of or improper maintenance of the Products (e.g. non-compliance with maintenance intervals as specified by the manufacturer and maintenance not performed by a qualified maintenance person); or
(iv) parts being replaced improperly by the Buyer or any third parties commissioned by the Buyer; or
(q) any cosmetic faults, including but not limited to minor deviations from the required quality of the Products which are insignificant for the value and functional soundness of the Products.
12. Limitation of Liability
12.1 Where any condition or warranty arising out of the supply of Products and/or Services by the Seller cannot be excluded by any law, the liability of the Seller arising out of a breach of any condition or warranty is, at the Seller’s option, to the extent permitted by law, limited to:
(a) in the case of the supply of Products by the Seller:
(i) replacement of the Products;
(ii) paying the cost of supplying equivalent products; or
(iii) refunding the Price paid by the Buyer in respect of the supply of the Products; and
(r) in the case of the provision of any Services by the Seller, by supplying the Services again or paying the cost of having equivalent Services supplied.
13.1 In these terms:
(a) GST means GST as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended (GST Act) or any replacement or other relevant legislation and regulations;
(s) words used in this clause which have a particular meaning in the GST law (as defined in the GST Act) have the same meaning, unless the context otherwise requires;
(t) if the GST law treats part of a supply as a separate supply for the purpose of determining whether GST is payable on that part of the supply or for the purpose of determining the tax period to which that part of the supply is attributable, such part of the supply is to be treated as a separate supply.
13.2 Unless GST is expressly included, the consideration expressed to be payable under any other clause of these terms and conditions for any supply made under or in connection with these terms and conditions (including the Price) does not include GST.
13.3 To the extent that any supply made under or in connection with these terms (including the supply of the Products and/or Services) is a taxable supply, the GST exclusive consideration otherwise payable for that supply is increased by the amount of any GST payable in respect of that taxable supply and that amount must be paid at the same time and in the same manner as the GST exclusive consideration is to be paid or provided.
14.1 The Seller may at any time set-off any amount owing by the Seller to the Buyer, against any amount payable by the Buyer in respect of Products and/or Services whether or not that amount is due and payable or actually or contingently due.
14.2 If anything in these terms is unenforceable, illegal or void then it is severed and the rest of these terms remain in force.
14.3 The Seller may sub-contract the whole or any part of the production or delivery of the Products or the performance of the Services agreed to be supplied by the Seller to the Buyer.
14.4 These terms constitute the entire agreement between the Seller and Buyer in relation to its subject matter and replaces all other agreements between the Seller and the Buyer in relation to its subject matter.
14.5 These terms are governed by and construed in accordance with the laws in force in New South Wales. The parties submit to the exclusive jurisdiction of the courts of New South Wales and of the Commonwealth of Australia.