ACL means the Australian Consumer Law 2010 (Cth) or any equivalent provisions in the relevant consumer protection legislation in each of the States and Territories of Australia.
Affiliated Software means any standard operating system or similar software supplied with the Equipment and required to operate the Equipment.
Confidential Information means any information of any type in any form or medium disclosed, provided or made available by Optimos to the Customer in connection with a contract that is by its nature or regarded by Optimos as confidential, proprietary, of commercial value or sensitive including, without limitation, Optimos’ intellectual property rights, manuals, Equipment’ related know-how, technology, hardware, software, trade secrets, designs, methods, techniques, strategies, plans, processes and procedures, but excluding information which is or becomes generally available to the public other than as a result of a breach of the contract by the Customer.
Customer means the customer (or any person acting on behalf of and with the authority of the Customer) as described on any proposal, purchase order or other form as provided by Optimos to the Customer or the Customer to Optimos.
Equipment means all products supplied by Optimos to the Customer and are as described on the invoices, sales quote, or any other forms as provided by Optimos to the Customer.
Equipment Warranty means the Limited Warranty referred to at Attachment A.
with the authority of Optimos means Optimos Solutions Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Optimos Solutions Pty Ltd.
PPS Act means the Personal Property Securities Act 2009 (Cth).
PPSR means the Personal Properties Securities Register as administered under the PPS Act.
Price means the Price payable for the Equipment as agreed between Optimos and the Customer in accordance with clause 4 of these terms and conditions.
Services means all Services supplied by Optimos to the Customer and includes any advice or recommendations.
2. The ACL
- Nothing in these terms and conditions is intended to have the effect of contracting out of any applicable provisions of the ACL, except to the extent permitted by those Acts where applicable.
- Any instructions received by Optimos from the Customer for the supply of Equipment and/or the Customer’s acceptance of Equipment supplied by Optimos shall constitute acceptance of the terms and conditions contained herein.
- Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
- Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of Optimos.
- Equipment are supplied by Optimos only on the terms and conditions herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions.
4. Price and Payment
- At Optimos’ sole discretion the Price shall be either:
- As indicated on invoices provided by Optimos to the Customer in respect of Equipment supplied; or
- Optimos’ proposed Price (subject to clause 4.2) which shall be binding upon Optimos provided that the Customer shall accept Optimos’ proposal in writing within thirty (30) days.
- Optimos reserves the right to change the Price in the event of a variation to Optimos’ proposal. Any variation from the plan of scheduled Services or specifications of the Equipment and/or as a result of fluctuating currency exchange rates will be charged for on the basis of Optimos’ proposal and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
- At Optimos’ sole discretion a non-refundable deposit may be required.
- Optimos may submit detailed progress payment claims in accordance with Optimos’ specified payment schedule. Such payment claims may include the reasonable value of authorised variations.
- At Optimos’ sole discretion:
- payment shall be due on delivery of the Equipment; or
- payment shall be due before delivery of the Equipment; or
- as otherwise set out in Optimos formal proposal or quotation.
- Time for payment 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 thirty (30) days following the date of the invoice.
- Payment will be made by cash, bank cheque or electronic funds transfer or by any other method as agreed to between the Customer and Optimos.
- The quantity, quality and description of any specification, or configuration, of the Equipment shall be those set out in Optimos’ written proposal accepted by the Customer. The Customer shall be responsible for ensuring the accuracy of the terms of an order and for providing Optimos sufficient time to perform the agreement in accordance with those terms. Optimos shall be under no liability whatever for any inaccuracies or changes to the terms of the Customer’s order, and should this result in alterations to the Equipment or additional Equipment to be supplied, Optimos shall be entitled to treat this as a variation to the proposed Price.
- Optimos may be entitled to change the specifications, or configuration, of the Equipment, where required, to comply with any change in statutory standards or regulations.
6. Delivery of Equipment
- At Optimos’ sole discretion delivery of the Equipment shall take place when:
- the Customer takes possession of the Equipment at the Customer’s nominated address (in the event that the Equipment is delivered by Optimos or Optimos’ nominated carrier); or
- the Customer’s nominated carrier takes possession of the Equipment in which event the carrier shall be deemed to be the Customer’s agent.
- Unless otherwise agreed between the parties, the Price excludes all costs associated with delivery of the Equipment.
- The Customer shall make all arrangements necessary to take delivery of the Equipment whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Equipment as arranged then Optimos shall be entitled to charge a reasonable fee for redelivery.
- Delivery of the Equipment to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of these terms and conditions.
- The failure of Optimos to deliver shall not entitle either party to treat this contract as repudiated.
- Optimos shall not be liable for any loss or damage whatsoever due to failure by Optimos to deliver the Equipment (or any of them) promptly or at all, where due to circumstances beyond the control of Optimos.
- All risk for the Equipment passes to the Customer on delivery.
- Where the Customer expressly requests Optimos to leave Equipment outside Optimos’ premises for collection or to deliver the Equipment to an unattended location then such Equipment shall be left at the Customer’s sole risk and it shall be the Customer’s responsibility to ensure the Equipment are insured adequately or at all.
- The Customer agrees to provide a copy to Optimos, of a certificate of currency of a valid insurance policy (indemnifying the Customer in relation to losses incurred in transport of the Equipment), prior to the Equipment being delivered to the Customer. In the event that the Customer does not have a valid insurance policy in place, with sufficient indemnity to cover losses in amounts at least equivalent to the Price, Optimos reserves the right to withhold delivery of the Equipment until such time as a copy of a valid insurance policy is provided to it.
- If any of the Equipment are damaged or destroyed following delivery but prior to ownership passing to the Customer, Optimos is entitled to receive all insurance proceeds payable for the Equipment. The production of these terms and conditions by Optimos is sufficient evidence of Optimos’ rights to receive the insurance proceeds without the need for any person dealing with Optimos to make further enquiries.
8. Title & PPSR
- Optimos and the Customer agree that ownership of the Equipment shall not pass until:
- the Customer has paid Optimos all amounts owing for the particular Equipment; and
- the Customer has met all other obligations due by the Customer to Optimos in respect of all contracts between Optimos and the Customer.
- Receipt by Optimos 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 Optimos’ ownership or rights in respect of the Equipment shall continue.
- It is further agreed that:
- where practicable the Equipment shall be kept separate and identifiable until Optimos shall have received payment and all other obligations of the Customer are met; and
- if the Customer fails to return the Equipment to Optimos pursuant to
these terms and conditions, then Optimos or Optimos’ agent may (as the invitee
of the Customer) enter upon and into land and premises owned, occupied or used
by the Customer, or any premises where the Equipment are situated and take
possession of the Equipment; and
- the Customer is only a bailee of the Equipment and until such time as Optimos has received payment in full for the Equipment and the Customer shall hold any proceeds from the sale or disposal of the Equipment, up to and including the amount the Customer owes to Optimos for the Equipment, on trust for Optimos; and
- the Customer shall not deal with the money of Optimos in any way which may be adverse to Optimos; and
- the Customer shall not charge the Equipment in any way nor grant nor otherwise give any interest in the Equipment while they remain the property of Optimos; and
- Optimos can issue proceedings to recover the Price of the Equipment sold notwithstanding that ownership of the Equipment may not have passed to the Customer.
- For the avoidance of ambiguity and to further secure Optimos’ interest in the Equipment until title and ownership have passed to the Customer, the parties agree that Optimos shall have the right to register a purchase money security interest in the Goods, in accordance with the provisions of the PPS Act.
In order to give effect to the provisions of clause 8.4 herein the parties agree to execute all documents reasonably required to ensure that the security interest in the Goods is registered in favour of Optimos on the PPSR.
- The Customer shall inspect the Equipment on delivery and shall within thirty (30) days (time being of the essence) notify Optimos of any alleged defect, shortage of supply, damage or failure to comply with the description or proposal. The Customer shall afford Optimos an opportunity to inspect the Equipment within 14 days following such notification if the Customer believes the Equipment are defective in any way. If the Customer shall fail to comply with these provisions the Equipment shall be presumed to be free from any defect or damage. For defective Equipment, which Optimos has agreed in writing that the Customer is entitled to reject, Optimos’ liability is limited to either (at Optimos’ discretion) replacing the Equipment or repairing the Equipment except where the Customer has acquired Equipment as a consumer within the meaning of the ACL and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Equipment, or repair of the Equipment, or replacement of the Equipment.
- Returns will only be accepted provided that:
- the Customer has complied with the provisions of clause 9.1; and
- Optimos has agreed in writing to accept the return of the Equipment; and
- the Equipment are returned at the Customer’s cost within thirty (30) days of the delivery date; and
- Optimos will not be liable for Equipment which have not been stored or used in a proper manner; and
- the Equipment are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material.
- Optimos may (at their sole discretion) accept the return of Equipment for credit but this may (at Optimos’ sole discretion) incur a handling fee of up to twenty percent (20%) of the value of the returned Equipment plus any freight costs.
- The Customer will not be entitled to any incidental, consequential or other damages, including, but not limited to, damages for loss of profits, loss or corruption of data or information, loss of goodwill or reputation, for business interruption, for personal injury, for loss of privacy, for failure to meet any duty including of good faith or of reasonable care, for negligence or negligent misrepresentation, and for any other pecuniary or other loss whatsoever, even in the event of Optimos’ fault, of tort (including negligence), strict or product liability, breach of contract or breach of warranty.
- Except as expressly and specifically provided in this Agreement:
- Optimos shall have no liability for any damage caused by errors or omissions in any information or instructions provided to Optimos by the Customer, or any actions taken by Optimos at the direction of the Customer.
- all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement.
12. Intellectual Property (IP)
- All IP in or relating to:
- the Equipment and the Confidential Information are and will remain the sole and exclusive property of Optimos (or its licensors);
- any improvement, invention, discovery or work product developed or created by Optimos in performing its obligations under these terms and conditions or any other contract are and will remain the sole and exclusive property of Optimos;
- any improvement, invention, discovery or work product developed or created by the Customer or its Agents in using, operating or maintaining the Equipment or performing the Customer’s obligations under a contract or these terms and conditions or based on the Confidential Information (Customer Improvements) will become the sole and exclusive property of Optimos. The Customer must promptly disclose the Customer Improvements to Optimos and sign and do anything required to assign to Optimos all IPR in and relating to the Customer Improvements and to register, protect and secure Optimos’ IPR in relation to the Customer Improvements. By submitting an Order, the Customer waives any existing or future rights or claims in relation to any Customer Improvements and irrevocably appoints each of Optimos’ directors or their nominees as the Customer’s attorney if the Customer fails or neglects to sign any document or do any act or thing necessary or required under this clause 12
- Without Optimos’ prior written consent, the Customer must not, and must ensure its agents will not
- copy, reverse engineer, alter, modify, reproduce, customize, decompile or disassemble the Equipment or Optimos’ IPR in whole or in part;
- transfer, assign, sell, grant, sub-license, distribute or otherwise deal with Optimos’ IPR in whole or in part;
- create or develop any derivative material or item based on, incorporating, using or adding to the Equipment or Optimos’ IPR in whole or in part; or
- remove any copyright notices, trademarks or restricted rights legends which appear on any Equipment’ components.
- The Customer must notify Optimos of any suspected or actual:
- infringement of the IPR in and relating to the Equipment by a third party; and
- claims alleging infringement of third party rights in connection with the Equipment, that the Customer or its Agents becomes aware of, and the Customer must co-operate with and assist Optimos, at the cost of Optimos, to protect Optimos’ IPR in and to the Equipment and oppose any third party claim against them.
- Subject to clause 13, the sale of Equipment to the Customer does not grant or imply any right to the Customer other than the right to use the Equipment in accordance with the Contract, the Manuals and Optimos’ instructions.
13. Confidential Information
- The Customer must, and must procure that its Agents will, keep the Confidential Information confidential at all times and protect it from unauthorized use, disclosure or third party access. The Customer must notify Optimos as soon as the Customer becomes aware of, and do all the Customer reasonably can to prevent or minimize, any actual or suspected theft, loss, damage or unauthorized use or disclosure of any Confidential Information and the Customer must comply with Optimos’ instructions in relation to handling the situation.
- The Customer must not, and must procure that no Customer Agent will, without Optimos’ prior written consent:
- disclose, copy, record, communicate, make available or allow access to the Confidential Information, directly or indirectly, to any third party, or assist or permit any person to do so, except as required for the purpose of the Equipment’ installation, use, operation or maintenance, or is required by law or an Accrediting Authority, provided the Customer ensures the Confidential Information remains protected in accordance with this clause 8, or
- create or develop anything based on, derived from or in any way using the Confidential Information directly or indirectly.
- The Customer acknowledges and agrees that a breach of this clause 8 may cause damage or loss to Optimos for which a monetary remedy may not be adequate or sufficient, and Optimos may seek specific performance or an injunctive or other relief from a court of competent jurisdiction as a remedy for any actual or anticipated breach by the Customer, in addition to any other right or remedy available to Optimos under the Contract, at law or otherwise.
- All right, title and interest in the Confidential Information vest and remain exclusively in Optimos. Nothing in the Contract or the disclosure of Confidential Information grants or implies any rights to the Customer in relation to the Confidential Information except for the non transferable right to use the Confidential Information in connection with the Equipment’ installation, use, operation and maintenance.
14. Licence to Use
- Optimos grants to the Customer a non-exclusive, perpetual licence to use the Affiliated Software with the Equipment supplied by Optimos. Copying, printing, transfer and/or modification of the Affiliated Software is not permitted under any circumstances.
- In the event that the Customer cancels delivery of Equipment the Customer shall be liable for any loss incurred by Optimos (including, but not limited to, any loss of profits) up to the time of cancellation.
- Cancellation of orders for Equipment made to the Customer’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.
16. Default and Consequences of Default
- If any account remains overdue after ninety (90) days then interest on overdue invoices shall accrue daily until the date of payment at a rate of two percent (2.0%) per calendar month (and at Optimos’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
- In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by Optimos.
- If the Customer defaults in payment of any invoice when due, the Customer shall indemnify Optimos from and against all costs and disbursements incurred by Optimos in pursuing the debt including legal costs on a solicitor and own client basis and Optimos’ collection agency costs (if any).
- Without prejudice to any other remedies Optimos may have, if at any time the Customer is in breach of any obligation (including those relating to payment) Optimos may suspend or terminate the supply of Equipment to the Customer and any of its other obligations under the terms and conditions. Optimos will not be liable to the Customer for any loss or damage the Customer suffers because Optimos has exercised its rights under this clause.
- If any account remains overdue after thirty (30) days then an amount of two hundred dollars ($200.00) shall be levied for administration fees which sum shall become immediately due and payable.
- Without prejudice to Optimos’ other remedies at law Optimos shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Optimos shall, whether or not due for payment, become immediately payable in the event that:
- any money payable to Optimos becomes overdue, or in Optimos’ opinion the Customer will be unable to meet its payments as they fall due; or
- the Customer 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
- a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
- 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.
- These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria and are subject to the jurisdiction of the courts of Victoria
- Optimos shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Optimos of these terms and conditions.
- In the event of any breach of this contract by Optimos the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Equipment.
- The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by Optimos nor to withhold payment of any invoice because part of that invoice is in dispute.
- Optimos may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
- The Customer agrees that Optimos may 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 Optimos notifies the Customer of such change.
- Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
- The failure by Optimos to enforce any provision of these terms and conditions shall not be constitute a waiver of any of Optimos’ rights herein.
Any warranty is limited to the warranties provided, to Optimos, by relevant component suppliers.