Terms and Conditions of Sale
These terms and conditions of sale (“Terms and Conditions”) apply to all sales of products and services (“Products”) by VoIP Pty Ltd (“VoIP”) to you (“Customer”). Customer will be deemed to have accepted the Terms and Conditions without additions or modifications by sending a purchase order to VoIP Pty Ltd. VoIP’s acceptance of Customer’s purchase order is conditional upon Customer’s acceptance of the Terms and Conditions, without addition or modification.
Order and Shipment
Customer will order Products by sending a completed purchase order to VoIP Pty Ltd. VoIP may accept or reject the purchase order for any reason and will not be bound by any terms or conditions set forth on Customer’s purchase order(s) unless otherwise agreed to in writing and signed by both parties. Delivery will be made in accordance with VoIP Pty Ltd’s shipping policy on the date of shipment unless otherwise agreed to in writing. VoIP reserves the right to vary its shipping policy as and when required, without prior notification to Customer. All shipments of Products by VoIP Pty Ltd to Customer will be FOB point of shipment. Insurance coverage, transportation costs and all other expenses applicable to shipment from VoIP Pty Ltd to Customer’s identified delivery place will be the responsibility of Customer. Insurable risk will pass to Customer upon delivery by VoIP Pty Ltd to Customer’s representative at VoIP Pty Ltd’s point of shipment, or on delivery by the carrier to Customer’s identified delivery place. Any delivery failure charges levied by a third party shipping company because of non-delivery due to factors caused by Customer will be charged to Customer’s account. The shipping destination cannot be changed once a freight consignment is in transit. Customer must notify VoIP Pty Ltd by phone or email within forty-eight (48) hours of delivery of any claimed shortages or rejections. VoIP Pty Ltd must then receive a statement in writing setting out the details of the claim within five (5) business days of the initial notification. Failure to give notice of a claim will be deemed an acceptance in full of any such delivery. Approval of a short shipment claim is at the discretion of VoIP Pty Ltd. In the event that VoIP Pty Ltd approves a short shipment claim, VoIP will replace the lost or damaged Product or issue a credit memo, at its discretion.
Price, Payment and Title
Prices for Products will be detailed in VoIP Pty Ltd’s then current price list or agreed pricing arrangement which will not include applicable taxes and shipping costs. Payment is due thirty (30) days from date of the invoice except on accounts where payment is required prior to dispatch or upon delivery. Title to the Product does not pass to Customer until full payment has been received by VoIP Pty Ltd. Payments may be made in cash, bank or company cheque, credit card, or by funds transfer to VoIP Pty Ltd’s bank account. Payment by cheque is not deemed to have been received until the cheque has been cleared by the bank. Where payment is made by credit card, VoIP reserves the right to charge Customer a merchant fee of 2%-4% in accordance with the fee charged to VoIP by Customer’s credit card company. Customer will pay a late fee of one and a half percent (1.5%) per month on any outstanding balance owed, or the maximum amount permitted by law. VoIP Pty Ltd reserves the right to withhold shipment of any part of an order or to require pre-payment for any given shipment if Customer does not make timely payment. Customer will pay all applicable taxes, duties, licenses, excises and tariffs (“Taxes”) levied upon the sale, purchase or delivery of the Product. If Customer has not paid in full, then VoIP may repossess any Product delivered and dispose of the Product in any way it sees fit. If VoIP exercises its rights under this clause 3, Customer gives permission to VoIP in the name of Customer to enter upon its premises or wherever the Product may be situated, whether or not the Product has been sold, and to use such force as may be reasonable and necessary to inspect or repossess the Product.
Returns and Warranty Assistance Service
This clause is subject to Customer’s rights under relevant laws. VoIP Pty Ltd may, at its sole discretion, consider a request from a Customer to return Products purchased. All requests for return of Product approved by VoIP Pty Ltd will be subject to the then current VoIP Pty Ltd restocking fee. VoIP Pty Ltd will refuse a request for return of Product if the Product is not returned to VoIP Pty Ltd within thirty (30) days of the invoice date, has been used and is therefore not new, is not in its original packaging or its original packaging has been damaged or altered, is a software item and has been ordered from the supplier by VoIP Pty Ltd based on Customer purchase order, or cannot be returned to the manufacturer by VoIP under the manufacturer’s terms and conditions of sale as well as the original invoice details. Where a request for return of Product has been approved, VoIP Pty Ltd will issue a credit note to Customer at the price paid by Customer on the original invoice less the applicable re-stocking fee. Customer may not withhold any payment due to VoIP Pty Ltd in respect of any other Products pending the resolution of a claim for a defect. If the Products are damaged in the course of being delivered to Customer, Customer must notify VoIP Pty Ltd of any claim for Products damaged in transit within thirty (30) days of delivery and subject to VoIP Pty Ltd’s acceptance of Customer’s claim, pursuant to this clause 4, VoIP will replace the relevant Products.
The warranty against defects (Warranty) contained in this clause 5 is provided by VoIP Pty Ltd, 50 Broughton Road, Artarmon NSW 2064, (02) 8424 7900. VoIP Pty Ltd warrants that the Products are supplied free from defects in material and workmanship, except such defects as normally being regarded as being commercially acceptable. The Products shall be covered by this Warranty for a period of 12 months (Warranty Period) unless otherwise stated in writing. VoIP Pty Ltd will not be liable for loss or damage caused by factors beyond VoIP’s control, any Products that have not been installed or maintained according to maintenance or care instructions, any alterations or repairs to the Products not performed by VoIP or without VoIP’s prior written consent, or any damage or defects caused to the Products due to unusual, non-recommended or negligent use of the Products. Customer may make a claim under this Warranty by providing VoIP Pty Ltd notice in writing to the address specified in clause 5 containing reasonable description of the defect in the Product(s). VoIP Pty Ltd will issue a Return Material Authorisation (RMA). VoIP Pty Ltd will during the Warranty Period and subject to clause 5, repair or replace at VoIP Pty Ltd’s option, any component or part of the Products which VoIP’s examination shows to be defective. VoIP Pty Ltd’s obligations under this Warranty are limited to repairing or furnishing a replacement part to replace any part which has proven to have been defective. VoIP Pty Ltd must receive the relevant Products within one (1) month of the issue of the RMA. Customer will be liable for all transport charges incurred in returning defective components or parts for repair or replacement together with the cost of returning them to Customer. An invoice for such transport charges will be provided upon returning the relevant Product(s) to Customer which will be payable in accordance with these Terms and Conditions. A replacement part supplied by VoIP Pty Ltd during the Warranty Period shall be covered by the Warranty for the unexpired portion of the Warranty Period which covered the original Product(s). The benefits to Customer given by this Warranty are in addition to Customer’s other rights and remedies under relevant laws. This Warranty against defects is provided in addition to other rights and remedies Customer may have at law. If Customer is not a consumer for the purposes of the ACL, the following statement applies to Customer. Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. Customer is entitled to a replacement or refund for a major failure. Customer is entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
Disclaimer and Limitation of Liability
Unless otherwise provided by these Terms and to the fullest extent permitted under law, VoIP Pty Ltd makes no warranties of any kind with regard to the Products. VoIP Pty Ltd disclaims all representations and warranties, express or implied, as to the Products including, without limitation, any implied warranty of merchantability or fitness for a particular purpose. In no event will VoIP Pty Ltd be liable for any loss, damage or cost for breach of warranty. All express or implied terms, conditions, warranties and representations are hereby expressly negated and excluded except to the extent that any implied condition or warranty may not be excluded by law. In the event of any breach of an implied warranty or condition which is not expressly excluded from these Terms and Conditions VoIP’s liability shall at VoIP’s option be limited to the repair or replacement of the Product, or the supply of equivalent Product, or the cost of such repair, replacement or supply.
VoIP Pty Ltd will not, in any event, be liable for a loss of revenue, profit, use of data, interruption of business or for special, indirect, consequential, incidental, exemplary or punitive damages however caused and regardless of the theory of liability, arising out of the use of or inability to use the product or in any way connected to this agreement, even if VoIP Pty Ltd has been advised of such damages. The foregoing limitation of liability applies whether a claim is based upon principles of contract, warranty, negligence or other tort, breach of any statutory duty, principles of indemnity or contribution, or otherwise. In no event will VoIP Pty Ltd’s liability to Customer exceed the purchase price paid for the product that is the basis for the claim. Customer must take out and maintain a valid and enforceable Public Liability Insurance Policy with a minimum value of $10,000,000 with a reputable insurer in form and substance satisfactory to VoIP Pty Ltd with respect to any potential liability, loss or damages arising at common law and under any statue relating to property damage and personal injury as may be relevant to the performance of VoIP’s obligations. Customer must provide a copy of those policies to VoIP Pty Ltd upon demand. No rule of construction can be applied to the disadvantage of VoIP Pty Ltd based on responsibility for preparing this document. If any provision of this document is determined to be invalid or illegal for any reason, it shall be deemed deleted; the remainder shall remain in full force.
A Default Event arises if Customer is an individual and commits an act of bankruptcy or is declared bankrupt, if Customer is a company and a petition is made to wind up Customer, Customer is wound up, Customer otherwise becomes insolvent, or Customer is placed in receivership or voluntary administration; Customer enters into a formal or informal arrangement with creditors; a Customer cheque presented for payment is not honoured; an account becomes overdue; Customer ceases to do business; Customer fails to pay applicable GST; or Customer is in breach of any of these Terms and Conditions. If a Default Event occurs then VoIP may cease to deliver any Product to a Customer; all overdue accounts become payable immediately; all costs and disbursements incurred by VoIP (including legal fees and debt collection agency fees) incidental to or arising from recovery of any unpaid amount shall be added to the balance of the overdue account and attract late fees pursuant to these Terms and Conditions; or VoIP may repossess any Product delivered and dispose of the Product in any way it sees fit.
Customer will obtain all licenses, permits and approvals required by any government and will comply with all applicable laws, rules, policies and procedures of the Australian Government. Customer will indemnify and hold harmless VoIP Pty Ltd for any violation or alleged violation by Customer of such laws, rules, policies or procedures.
Commonwealth Consolidate Acts, Personal Property Securities Act 2009 (PPSA)
All definitions for terms used in the PPSA apply when used in this clause. This clause will survive the termination of any VoIP Agreement or Contract to the extent permitted by law. Customer acknowledges that these Terms and Conditions constitute a Security Agreement and that Customer grants to VoIP Pty Ltd a Security Interest (which is also a Purchase Money Security Interest) in all goods supplied by VoIP Pty Ltd from time to time including all related proceeds (Collateral), as security for all or part of any payments to VoIP Pty Ltd for such goods. Customer agrees to execute documents and carry out all necessary actions required by VoIP Pty Ltd to perfect the Security Interest. The Security Interest is a continuing interest until VoIP Pty Ltd receives full payment from Customer in respect of the goods. As the PPSA permits, Customer waives their rights to notifications, verifications, disclosures and other documentation detailed in sections 95, 121(4), 123, 130, 132, 135, and 157 of the PPSA. Customer and VoIP Pty Ltd agree to contract out of the provisions of sections 96, 125, 129, 137(2), 142, and 143 of the PPSA to the extent that they impose obligations upon VoIP Pty Ltd. As provided for in section 275(6) of the PPSA and subject to section 275(7) of the PPSA, neither Customer nor VoIP Pty Ltd will disclose information in response to a request pursuant to section 257(1) about the Security Interest. Customer further agrees that in addition to those under Chapter 4 of the PPSA, Customer irrevocably grants to VoIP Pty Ltd the right to enter upon Customer’s property or premises, without notice and without being in any way liable to Customer or to any third party, and Customer agrees to indemnify VoIP Pty Ltd from any claims made by any third party as a result of such exercise. VoIP Pty Ltd may register a financing statement on the PPSA pursuant to this Security Agreement as it sees fit.
Neither party will, without the prior written consent of the other, directly or indirectly offer or cause a third party to offer on its behalf, employment or a contract of service to the other party’s personnel (whether employees or subcontractors) involved in the provision of the Services. This restriction will apply throughout the contracted terms and will continue for a period of six (6) months after the expiration date. If a party breaches this restriction it must pay to the other party an amount equal to 75% of the annual value of the salary or reasonable fees (including any commissions and bonuses) proposed to be paid to the relevant employee or subcontractor.
Other than conflicts of law, these Terms and Conditions will be construed in accordance with the laws of the state of New South Wales. The parties agree that the United Nations Convention of Contracts for the International Sale of Goods will not apply to these Terms and Conditions. The failure of either party to insist upon strict performance of any of the provisions of the Terms and Conditions will not be deemed a waiver of any breach or default. Each of the parties represent that it has the authority to enter into and accept these Terms and Conditions. Any notice given to either party will be in writing and effective by transmission via facsimile and regular mail to the address indicated in the Credit Application or as advised in writing by the party. VoIP Pty Ltd will be entitled to receive all costs, including solicitors’ fees and costs, incurred as a result of enforcing these Terms and Conditions or collecting any sum due from a Customer. Either party may assign these Terms and Conditions. Nothing in these Terms and Conditions excludes, restricts or modifies any condition, warranty or statutory guarantee which cannot be lawfully excluded, restricted or modified. VoIP Pty Ltd will not be liable for any delay or failure in performance due to acts of God, Force Majeure, earthquakes, shortage of supplies, transportation difficulties, labor disputes, riots, war, fire, epidemics and similar occurrences happening in Australia or elsewhere. These Terms and Conditions constitute the entire agreement between the parties as to the Sale of Products and supercede all prior or current written or oral statements, representations, negotiations, agreements and understandings to the extent that prior or current agreements modify or are inconsistent herewith. Prior or current agreements that do not modify and are consistent with these Terms and Conditions are made a part hereof. These Terms and Conditions may be amended or modified only in writing, signed by both parties.