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Terms & Conditions

1.     Definitions


1.1.   “Seller” or ”Owner” shall mean Magic Pulse Ltd its successors and assigns or any person acting on behalf of and with the authority of Magic Pulse Ltd.

1.2.   “Client” shall mean the Client or any person acting on behalf of and with the authority of the Client.

1.3.   “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.

1.4.   “Goods” shall mean all Goods (excluding all SDS) supplied by the Seller to the Client (and where the context so permits shall include any supply of Services or Equipment as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by the Seller to the Client.

1.5.   “Services” shall mean all services supplied by the Seller to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).

1.6.   “SDS” shall mean seller developed software supplied by the Seller to the Client and any related upgrades, updates, fixes and related documentation or materials. 

1.7.   “Equipment” shall mean all Equipment, accessories and SDS supplied on hire by the Owner to the Client (and where the context so permits shall include any supply of services) and is as described on the invoices, quotation, authority to hire, or any other work authorisation forms as provided by the Owner to the Client.

1.8.   “Personal Details Form” shall mean the form that Seller signs in relation to Goods, Services, Equipment and/or SDS and records the Client’s contact and pricing details. 

1.9.   “Price” shall mean the cost of the Goods, Services, Equipment and SDS as agreed between the Seller and the Client subject to clause 4 of this contract.

2.     Acceptance

2.1.   Any instructions received by the Seller from the Client for the supply of Goods, Services, Equipment and/or SDS, and/or the Client’s acceptance of Goods, Services and Equipment and/or SDS supplied by the Seller shall constitute acceptance of the terms and conditions contained herein.  For the avoidance of doubt, where the Client signs a Personal Details Form or, where these terms and conditions have appeared as a ‘pop up’ and the Client has clicked the “I ACCEPT” button on that pop up, that too shall constitute acceptance of the terms and conditions contained herein. 

2.2.   Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.

2.3.   Upon acceptance of these terms and conditions by the Client the terms and conditions are irrevocable and can only be amended with the written consent of the Seller.

2.4.   The Client undertakes to give the Seller at least fourteen (14) days notice of any change in the Client’s name, address and/or any other change in the Client’s details.

3.     Licence

3.1.   The Owner grants to the Client a non-exclusive, non-transferrable licence to use the SDS.

3.2.   The SDS is provided solely for the Client’s internal use and the Client agrees not to do any of the following without the Owner’s written consent:

(a) copy the SDS; or

(b) allow any third party to have access to the SDS; or

(c) alter, modify, tamper with or reverse engineer, decompile or translate the SDS other than to the extent permitted by law; or

(d) combine the SDS with any other software.

4.     Price, Payment and Invoicing

4.1.   The Client shall pay the Price for Goods, Services, Equipment and/or SDS supplied by the Seller.  For the purposes of this clause 4.1, the Seller is deemed to have supplied the SDS if it has made the SDS available for download and use by the Client irrespective of whether the Client has downloaded the SDS.   

4.2.   At the Seller’s sole discretion the Price shall be either;

(a) as set out on a “Personal Details Form”; or 

(b) as indicated on invoices provided by the Seller to the Client in respect of Goods, Services, Equipment and/or SDS supplied; or

(c) the Seller’s quoted Price (subject to clause 4.3) which shall be binding upon the Seller provided that the Client shall accept the Seller’s quotation in writing within thirty (30) days.

4.3.   The Seller reserves the right to change the Price in the event of a variation to the Seller’s quotation or the Price set out on a Personal Details Form.

4.4.   At the Seller’s sole discretion a non-refundable deposit may be required. The amount of the deposit will be stipulated at the time of the order of the Goods, Services, Equipment and/or SDS and shall become immediately due and payable.

4.5.   Time for payment for the Goods, Services, Equipment and/or SDS shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due ten (10) days following the date of the invoice.  

4.6.   At the Seller’s sole discretion payment for approved Clients shall be made by instalments in accordance with the Seller’s payment schedule.

4.7.   Payment will be by direct debit, credit card (in which case clause 5 will apply) or by any other method as agreed to between the Client and the Seller. If the Client has not signed up for direct debit or credit card and Seller and Client have not agreed on any other payment method, direct credit is applied as a payment method. Direct credit processing fee of $15 may be charged.

4.8.   GST, VAT and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

4.9.   The Seller shall send all invoices to the Client by email. Invoices sent by post shall be subject to a postal charge.

5.     Payment by credit card

5.1.   If the Client uses a credit card to pay the Price or any other amounts under this agreement, the Client:

(a) warrants that it is authorised to use the credit card to meet its payment obligations under this agreement; and

(b) authorises the Seller to debit amounts against the credit card in respect of the Price and other amounts payable under this agreement;

(c) acknowledges that a credit card surcharge will apply (as set out in the Personal Details Form).

5.2.   The Client acknowledges that, where it provides credit card information online, the Seller does not collect payment information itself.  Instead, the Client will be redirected to the Client's payment processor’s website, which collects the payment information directly.

5.3.   Where the Client provides credit card details over the phone or by fax, the Seller will collect the payment information directly from the person providing the details and will transfer those details to the Client's payment processor.  After receiving confirmation of the payment from the payment processor, the Seller will retain this payment information in a secure location in accordance with the Client's internal record retention policies.

5.4.   Each new credit card proposed to be used by the Client for payment will be charged a one-off $1.00 administrative fee.  This fee will be debited against the credit card at the time the credit card details are provided to the Seller.

5.5.   The Seller may debit the Price or any other amount under this agreement against the credit card on or after the date that is stated on the invoice.  If no time is stated then the credit card will be debited on or after the date of the invoice.  

5.6.   If:

(a) there are insufficient funds available in the credit card to meet the Client's payment obligations under this agreement; or

(b) a transaction is declined for any reason, except for:

(i)  the negligence of, or wilful misconduct by, the Seller or any of its officers, employees or agents; or

(ii) a systems error on the part of the Seller,

then the Seller may, in addition to the consequences of default set out in clause 19, charge the Client an administration fee of $25.00.

5.7.   Where a credit card transaction is declined for any reason (for example, because there are insufficient funds or the credit card has been suspended or cancelled) or the Client withdraws the Seller's authorisation to use a particular credit card, then subject to clause 5.8, the Client must immediately provide the Seller with details of an alternative credit card which can be used to meet the Client's obligations under this agreement.

5.8.   Where the Client does not have an alternative credit card, the Client must immediately pay the relevant amount using direct debit or an alternative method of payment agreed by the Seller.

6.     Free Trial Period

6.1.   The parties may agree to the use of the SDS for an obligation-free trial period.  If this applies, then the Client is under no obligation to make payment for its use of the SDS during the agreed trial period.  If the Client continues to use the SDS beyond this free trail period then the Client will be required to make payment, in accordance with clause 4 of this Contract. 

7.     Fair Use Policy

7.1.   The Fair Use Policy refers to the maximum number of text messages or emails sent in one month and is referenced against average Client profiles and estimated Client use of this service. If the use exceeds estimated averages in any month, then the use will be deemed excessive and/or unreasonable. If the Client breaches this policy the Seller may ask the Client to moderate its usage. The Seller reserves the right, without further notice, to charge for excessive use according to the current price list or to remove the service from the Client’s account.

8.     Delivery Of Goods

8.1.   At the Seller’s sole discretion delivery of the Goods shall take place when;

(a) the Client takes possession of the Goods at the Seller’s address; or

(b) the Client takes possession of the Goods at the Client’s address (including downloading by the Client).

8.2.   Any costs of delivery are for the Client’s account.

8.3.   Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.

8.4.   The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.

8.5.   To the extent permissible by law, the Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.

9.     Risk

9.1.   If the Seller retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.

10.   Title (Not applicable to Equipment)

10.1. The Client and the Seller agree that ownership of the Goods shall not pass until:

(a) the Client has paid all amounts owing for the particular Goods, and

(b) the Client has met all other obligations due by the Client to the Seller in respect of all contracts between the Seller and the Client.

10.2. Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Seller’s ownership or rights in respect of the Goods shall continue.

10.3. It is further agreed that:

(a) until such time as ownership of the Goods shall pass from the Seller to the Client the Seller may give notice in writing to the Client to return the Goods or copies of them to the Seller.  Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and

(b) if the Client fails to return the Goods to the Seller then the Seller or the Seller’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Goods are situated and take possession of the Goods and/or any copies of the Goods.

11.   Intellectual Property

11.1. All intellectual property rights, including copyright, relating to SDS and any associated manuals are the sole property of the Seller.

11.2. Save for the rights granted under this agreement, this agreement confers no title to, or ownership in, the SDS and is not a sale of any rights in the SDS.

11.3. To the extent permitted by law, the rights set out in section 80C of the Copyright Act 1994 are excluded.

12.   Personal Property Securities Act 1999 (“PPSA”)

12.1. Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:

(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and

(b) a security interest is taken in all Goods and Equipment previously supplied by the Seller to the Client (if any) and all Goods and Equipment that will be supplied in the future by the Seller to the Client.

12.2. The Client undertakes to:

(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Seller may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;

(b) indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods and Equipment charged thereby;

(c) not register a financing change statement or a change  demand without the prior written consent of the Seller; and

(d) immediately advise the Seller of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.

12.3. The Seller and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.

12.4. The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.

12.5. Unless otherwise agreed to in writing by the Seller, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.

12.6. The Client shall unconditionally ratify any actions taken by the Seller under clauses 12.1 to 12.5.

13.   Client’s Disclaimer

13.1. To the extent permitted by law, the Client hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to the Client by the Seller and the Client acknowledges that the Goods and the SDS are bought relying solely upon the Client’s skill and judgement.

14.   Defects

14.1. The Client shall within seven (7) days notify the Seller of any alleged defect, shortage in quantity, damage or failure of the Goods to comply with the description or quote. The Client shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Seller has agreed in writing that the Client is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods or repairing the Goods.

15.   Returns

15.1. Except to the extent required by law, returns will only be accepted provided that:

(a) the Client has complied with the provisions of clause 14.1; and

(b) the Seller has agreed in writing to accept the return of the Goods; and

(c) the Goods are returned at the Client’s cost within seven (7) days of the delivery date; and

(d) the Seller will not be obligated to accept back Goods which have not been stored or used in a proper manner (subject to clause 14.3); and

(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances

 

15.2. The Seller may (in its discretion, to the extent that such a discretion is permissible by law) accept the return of Goods for credit but this may incur a handling fee of 10% of the value of the returned Goods plus any freight.

15.3. Clauses 14.1(d) and 14.2 shall not apply to the return of Equipment however should the Equipment not have been stored or used in a proper manner the provisions of clause 24.1 shall apply.

16.   Warranty and Technical Specifications

16.1. Subject to the Client complying with the minimum technical specifications communicated by the Seller to the Client the Seller warrants that Goods will be provided with reasonable care and skill and that Services will commence within the timeframes agreed with the Client.

16.2. The Seller warrants that it will use reasonable care and skill to ensure that the SDS complies with all published specifications. 

16.3. The Seller does not warrant or guarantee that Services will be continuous or fault-free and whilst the Seller shall make all reasonable efforts to restore any disrupted Services the Seller shall not be liable to compensate the Client for any delay or in properly assessing the Client’s claim.

16.4. The Seller does not warrant that the SDS will be error-free, free of viruses or that any errors will be corrected.  The Client is solely responsible for all costs and expenses associated with any rectification, repair or damages caused by such error or viruses. 

16.5. The Seller does not make any claims or provide any guarantees that the Client’s use of the Goods or SDS provided by the Seller will lead to savings or increased revenue for the Client.

16.6. The Seller does not warrant the accuracy or usefulness of any comparative or benchmarking information made available to the Client.  The Client acknowledges that such information reflects the inputs from other clients which the Owner cannot control and the sample size which depends on the number of clients providing information. 

17.   Consumer Guarantees Act 1993

17.1. If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by the Seller to the Client.

17.2. The Client agrees that any provisions of the Consumer Guarantees Act 1993 which would otherwise apply to the supply by the Owner of the SDS to the Client do not apply as the Client is acquiring the SDS for the purposes of its business. 

18.   Client’s Responsibilities

18.1. The Client shall:

(a) follow any instructions the Seller provides about using the Seller’s Goods and/or SDS; and

(b) use the Goods or SDS in a responsible manner; and

(c) comply with all applicable laws and any relevant advertising codes of practice, especially in relation to sending unsolicited communications in any form; and

(d) only send to third parties materials they have agreed to receive;

(e) allow third parties to opt out of receiving messages;

(f)  keep all identification codes and/or passwords provided by the Seller to the Client confidential; and

(g) ensure that all information it inputs into SDS is accurate. .

18.2. The Client indemnifies the Seller against the consequences of any failure to effectively carry out the Client’s responsibilities as provided in these terms and conditions.

19.   Default & Consequences of Default

19.1. Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and such interest shall compound monthly at such a rate after as well as before any judgement.

19.2. If the Client defaults in payment of any invoice when due, the Client shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in pursuing the debt including legal costs on a solicitor and own client basis and the Seller’s collection agency costs.

19.3. Without prejudice to any other remedies the Seller may have, if at any time the Client is in breach of any obligation (including those relating to payment) the Seller may suspend or terminate the supply of Goods and/or SDS to the Client and any of its other obligations under the terms and conditions.  The Seller will not be liable to the Client for any loss or damage the Client suffers because the Seller exercised its rights under this clause.

19.4. The Seller reserves the right to charge a default fee of $25.00 in the event that the Client’s direct debit is dishonoured.

19.5. If any account remains overdue after thirty (30) days then an amount of the greater of $20.00 or 10.00% of the amount overdue (up to a maximum of $200) shall be levied for administration fees which sum shall become immediately due and payable.

19.6. Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Client which remains unperformed and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable in the event that:

(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Client will be unable to meet its payments as they fall due; or

(b)  the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

20.   Security And Charge

20.1. Despite anything to the contrary contained herein or any other rights which the Seller may have howsoever:

(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Seller or the Seller’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions.  The Client and/or the Guarantor acknowledge and agree that the Seller (or the Seller’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.

(b) should the Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis.

(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Seller or the Seller’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 20.1.

21.   Cancellation

21.1. The Seller may cancel these terms and conditions or any contract to which they apply at any time before the Goods are delivered or before the SDS is used by the Client, or thereafter by giving one month’s prior written notice. On giving such notice the Seller shall repay to the Client any sums paid in respect of the Price less any amount that may be due to the Seller for Goods already supplied or for the previous use of the SDS. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.

21.2. In the event that the Client cancels the contract the Client shall be liable for any loss incurred by the Seller including, but not limited to, all fees due for the remainder of the period of the contract.

22.   Privacy Act 1993

22.1. The Client and the Guarantor/s (if separate to the Client) authorises the Seller, and its agents:

(a) to collect, retain and use any information about the Client, whether collected by the Seller from the Client directly (including through the Client’s use of SDS) or obtained by the Seller from any other source for the purposes of:

(i)  assessing the Client’s creditworthiness;

(ii) maintaining a database containing your Inputs to the SDS, which may be accessed by you in using the SDS;

(iii) marketing products and services to the Client; and

(iv) collating it with other client information to enable the Seller to provide industry comparative and benchmarking information to any of its clients (including the Client).

(b) to disclose information about the Client, whether collected by the Seller from the Client directly (including through the Client’s use of SDS) or obtained by the Seller from any other source to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client

(c) for the purpose of industry comparisons and benchmarking to disclose aggregated information that includes information from the Client, whether collected by the Seller directly from the Client (excluding through the Client’s use of SDS) or obtained by the Seller from any other source to any other client of the Seller (and whether or not that information is also disclosed to the Client), provided such form does not enable the Client (and its customers) to be identified unless the Client requests of authorises the information to be provided in a manner which the Client could be identified. 

22.2. The Seller will take reasonable steps to keep information about the Client secure.  Information about the Client may be stored electronically or in hard copy documents.  The Seller has reasonable security safeguards and procedures in place to prevent loss, access, use, modification or disclosure or other misuse of information about the Client. 

22.3. Notwithstanding clause 21.2, the Seller assumes no responsibility for unauthorised access or misuse, and the Seller does not accept liability for the improper actions of unauthorised third parties. 

22.4. The Client must retain a copy of all information provided to the Seller (including all information it inputs into the SDS for disaster recovery purposes). 

22.5. Where the Client is an individual the authorities under (clause 22.1) are authorities or consents for the purposes of the Privacy Act 1993.

22.6. The Client shall have the right to request the Seller for a copy of the information about the Client retained by the Seller and the right to request the Seller to correct any incorrect information about the Client held by the Seller.

22.7. For the purposes of clause 22.1, the Client acknowledges that information input by the Client in the course of using SDS may be transmitted to the Seller. 

23.   Confidentiality

23.1. Except where the information is disclosed in accordance with clause 22.1(b) above, the Seller will treat all business information supplied to it by the Client confidentially.  The right to disclose information held by the Seller in accordance with clause 22.1(b) above shall continue to apply even if the Client stops using SDS (including at the end of a free trial period) or these terms and conditions end or are cancelled.

24.   Limitation of Liability

24.1. In the event of any breach of this contract by the Seller, and to the extent permissible by law, the remedies of the Client shall be limited to damages. The Client agrees that the damages shall be limited, to the maximum extent permitted by law, to either an amount equal to the Client’s monthly fees or where applicable the actual purchase price of any Goods, Services, Equipment and/or SDS.

24.2. The Seller shall not be liable for any error or breach resulting from incorrect information being provided by the Client to the Seller.

24.3. The Seller shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Seller of these terms and conditions.

24.4. The Seller shall have no liability to the Client for any loss of data which may be held by the Seller.

24.5. If, in accordance with clause 3.2, the Seller consents to the Client allowing a third party to have access to the SDS:

(a) the Seller shall have no liability to the Client whatsoever for any loss or expenses suffered or incurred by the Client arising out of the third party accessing and/or using the SDS: and

(b) the Client shall indemnify the Seller against any loss or expense suffered or incurred by the Seller as a result of the third party accessing and/or using the SDS.   

25.   Equipment Hire       

25.1. The Equipment (including SDS) shall at all times remain the property of the Owner and is returnable on demand by the Owner. In the event that the Equipment is not returned to the Owner in the condition in which it was delivered the Owner retains the right to charge the Price of repair or replacement of the Equipment.

25.2. The Client shall;

(a) keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to lien over the Equipment.

(b) not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment.

(c) keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by the Owner to the Client.

25.3. The Client accepts full responsibility for the safekeeping of the Equipment and the Client agrees to insure, or self insure, the Owner’s interest in the Equipment and agrees to indemnify the Owner against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Further the Client will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.

26.   General

26.1. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

26.2. These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.

26.3. The Client shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Client by the Seller.

26.4. The Seller may license or sub-contract all or any part of its rights and obligations without the Client’s consent.

26.5. The Seller reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Seller notifies the Client of such change.

26.6. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.

26.7. The failure by the Seller to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Seller’s right to subsequently enforce that provision.

 

LOCAL VARIATION

AUSTRALIA

27.   Australia

27.1. If the Client is located in Australia then the following clauses do not apply:

(a) clause 4.8 (GST);

(b) clause 10.3 (Section 80C of the Copyright Act 1994) ;

(c) clause 12 (Personal Property Securities Act 1999);

(d) clause 13 (Client's Disclaimer);

(e) clause 17 (Consumer Guarantees Act 1993);

(f)  clause 22 (Privacy Act 1993);

(g) clause 23 (Confidentiality); and

(h) clause 26.2 (Governing Law)

27.2. If the Client is located in Australia then the following clauses apply If the Client is located in Australia then the below  clauses 28 to 33 shall apply

28.   Privacy Act 1988 (Cth)

28.1. The Client and/or the Guarantor/s agree for the Seller to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by the Seller.

28.2. The Client and/or the Guarantor/s agree that the Seller may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:

(a) to assess an application by Client; and/or

(b) to notify other credit providers of a default by the Client; and/or

(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or

(d) to assess the credit worthiness of Client and/or Guarantor/s.

28.3. The Client consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit (section 18K(1)(h) Privacy Act 1988 (Cth)).

28.4. The Client agrees that personal credit information provided may be used and retained by the Seller for the following purposes and for other purposes as shall be agreed between the Client and Seller or required by law from time to time:

(a) provision of Goods, Services, Equipment and/or SDS; and/or

(b) marketing of Goods, Services, Equipment and/or SDS by the Seller, its agents or distributors and/or

(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Goods, Services, Equipment and/or SDS; and/or

(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or

(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods, Services, Equipment and/or SDS.

28.5. The Seller may give information about the Client to a credit reporting agency for the following purposes:

(a) to obtain a consumer credit report about the Client; and/or

(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.

29.   Confidentiality

(a) Except where the information is disclosed in accordance with clause 28.2 above, the Seller will treat all business information supplied to it by the Client confidentially.  The right to disclose information held by the Seller in accordance with clause 28.2 above shall continue to apply even if the Client stops using SDS (including at the end of a free trial period) or these terms and conditions end or are cancelled.

30.   GST

30.1. Subject to this clause 30, the Price is exclusive of GST and other taxes and duties, except when expressly included in the price.

30.2. In this clause, a word or expression defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the meaning given to it in that Act.

30.3. For the purposes of this agreement, where the expression GST inclusive is used in relation to an amount payable or other consideration to be provided for a supply under this Agreement, the amount or consideration will not be increased on account of any GST payable on that supply.

30.4. Any consideration to be paid or provided for a supply made under or in connection with this agreement, unless specifically described in this agreement as GST inclusive, does not include an amount on account of GST.

30.5. Despite any other provision in this agreement, if a party ("Supplier") makes a supply under or in connection with this agreement on which GST is imposed (not being a supply the consideration for which is specifically described in this agreement as GST inclusive):

(a) the consideration payable or to be provided for that supply under this agreement but for the application of this clause ("GST exclusive consideration") is increased by, and the recipient of the supply ("Recipient") must also pay to the Supplier, an amount equal to the GST payable by the Supplier on that supply; and

(b) the amount by which the GST exclusive consideration is increased must be paid to the Supplier by the Recipient without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.

30.6. If a payment to a party under this agreement is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party is entitled for that loss, cost or expense.

31.   Personal Property Securities Act 2009 (Cth) (“PPSA”)

31.1. Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:

(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and

(b) a security interest is taken in all Goods and Equipment previously supplied by the Seller to the Client (if any) and all Goods and Equipment that will be supplied in the future by the Seller to the Client.

31.2. The Client undertakes to:

(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Seller may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;

(b) indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods and Equipment charged thereby;

(c) not register a financing change statement or an amendment demand without the prior written consent of the Seller; and

(d) immediately advise the Seller of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.

31.3. The Seller and the Client agree that nothing in section 143 of the PPSA shall apply to these terms and conditions.

31.4. The Client waives its rights as a debtor under sections 92, 93, 94, 95, 97, 132, 137 and 142 of the PPSA.

31.5. Unless otherwise agreed to in writing by the Seller, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.

31.6. The Client shall unconditionally ratify any actions taken by the Seller under clauses 31.1 to 31.5.

32.   Competition and Consumer Act 2010 (Cth)

32.1. This agreement, including clauses 13 to 15 and clause 23, does not exclude, restrict or modify the application of any condition, warranty, guarantee, right or remedy conferred by or implied under any provision of the Australian Consumer Law (being Schedule 2 to the Competition and Consumer Act 2010 (Cth) or any other statute, where to do so would:

(a) contravene the relevant statute; or

(b) cause any part of this agreement to be void and/or unenforceable.

33.   Governing Law

33.1. These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria, Australia and are subject to the jurisdiction of the courts of Victoria.

 

LOCAL VARIATION

UNITED KINGDOM

34.   United Kingdom

34.1. If the Client is located in the United Kingdom then the following clauses do not apply:

(a) clause 4.7 (Payment)

(b) clause 5.4 (Administrative Fee);

(c) clause 5..6 (Consequences of Default);

(d) clause 12 (Personal Property Securities Act);

(e) clause 17 (Consumer Guarantees Act);

(f)  clause 19.4 (Default fee);

(g) clause 19.5 (Overdue amounts);

(h) clause 22.5 (Privacy Act 1993); and

(i)  clause 24 (Limitation of Liability);

(j)  clause 26.2 (Governing Law)

(k) clauses 27-33 (Local variation Australia)

34.2. If the Client is located in United Kingdom then the below  clauses 35 to 41 shall apply: 

35.   Payment

35.1. Payment will be by direct debit, credit card (in which case clause 5 will apply) or by any other method as agreed to between the Client and the Seller. If the Client has not signed up for direct debit or credit card and Seller and Client have not agreed on any other payment method, direct credit is applied as a payment method. Direct credit processing fee of £8.00 may be charged.

36.   Payment by Credit Card

36.1. Each new credit card proposed to be used by the Client for payment will be charged a one-off £1.00 administrative fee.  This fee will be debited against the credit card at the time the credit card details are provided to the Seller.

36.2. If:

(a) there are insufficient funds available in the credit card to meet the Client's payment obligations under this agreement; or

(b) a transaction is declined for any reason, except for:

(i)  the negligence of, or wilful misconduct by, the Seller or any of its officers, employees or agents; or

(ii) a systems error on the part of the Seller,

then the Seller may, in addition to the consequences of default set out in clause 19, charge the Client an administration fee of £12.00.

37.   Default fee and overdue amounts

37.1. The Seller may charge the Client a default fee of £10.00 in respect of any direct debit that is dishonoured.

37.2. If any invoice remains overdue after 30 days then the Seller reserves the right to charge the Client an administration fee, being the greater of either £10.00 or 10.00% of the overdue amount, and such fee shall be immediately due and payable. 

38.   Limitation of Liability

38.1. The express terms of this agreement are in lieu of all Seller’s warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise, including any condition of satisfactory quality or fitness for a particular purpose whether or not any purpose has been notified to Seller, all of which are hereby excluded to the fullest extent permitted by law.

38.2. Subject to clause 36.3 Seller’s maximum aggregate liability under or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise, shall in no circumstances exceed an amount equal to the Client’s monthly fees or where applicable the actual purchase price of any Goods, Services, Equipment and/or SDS.

38.3. Nothing in this Agreement shall exclude or in any way limit Seller’s liability for fraud, death or personal injury caused by its negligence or any other liability to the extent the same may not be excluded or limited as a matter of law.

38.4. Subject to sub-Clause 36.3, in no event will Seller be liable under or in connection with this agreement for loss of actual or anticipated income or profits, loss of goodwill or reputation, loss of anticipated savings, loss of data or for any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known.

38.5. The Seller shall not be liable for any error or breach resulting from incorrect information being provided by the Client to the Seller.

38.6. If, in accordance with clause 3.2, the Seller consents to the Client allowing a third party to have access to the SDS:

(a) the Seller shall have no liability to the Client whatsoever for any loss or expenses suffered or incurred by the Client arising out of the third party accessing and/or using the SDS: and

38.7. the Client shall indemnify the Seller against any loss or expense suffered or incurred by the Seller as a result of the third party accessing and/or using the SDS.

39.   Data Protection

39.1. Where Seller processes personal data (as defined in the Data Protection Act 1998) on behalf of Client, then Seller shall:

(a) process such data solely in accordance with Client's instructions from time to time (consistent with its duties under the Data Protection Act);

(b) adopt and maintain appropriate security measures for processing data, both in terms of the technology used and how it is managed.

39.2. Information about the Client or supplied by the Client may be transferred to and stored at a destination outside the European Economic Area ("EEA"). Client agrees that Seller may send and store such information outside the EEA.

40.   Jurisdiction

40.1. The formation, existence, construction, performance, validity and all aspects whatsoever of these terms and conditions or of any term of these terms and conditions will be governed by English law.  The English Courts will have exclusive jurisdiction to settle any disputes, which may arise out of or in connection with these terms and conditions.  The parties agree to submit to that jurisdiction. 

41.   General

41.1. Except as otherwise provided for in these terms and conditions, the parties do not intend any of the terms to be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.

41.2. The headings in this agreement are for ease of reference only and shall be disregarded in construing or interpreting the agreement.

41.3. This agreement contains all the terms agreed between the parties regarding its subject matter and supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing.  Each of the parties acknowledges and agrees that:

(a) in entering into this agreement it has not relied on, and shall have no remedy in respect of, any statement, representation, warranty or understanding other than the statements, representations, warranties and understandings expressly set out in this agreement; and

(b) its only remedies in connection with any statements, representations, warranties and understandings expressly set out in this agreement shall be for breach of contract as provided in this agreement.  Nothing in this clause shall, however, operate to limit or exclude any liability for fraud. 

Last updated 02/01/2016

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