IN CONSIDERATION OF Ness Corporation Pty Ltd ABN 28 069 984 372, (hereinafter referred to as 'the Company") providing commercial credit facilities to the party completing the application (hereinafter referred to as "the Customer") annexed to these conditions:-
(i) The Customer acknowledges and agrees that the following applies to and forms part of any contract for the supply of Goods and/or Services by the Company and that these General Terms and Conditions take precedence over any terms and conditions which may be contained in any document provided by the Customer. Any request from the Customer to the Company for the supply of Goods and/or Services shall constitute acceptance of these general terms and conditions.
(ii) The Customer hereby charges in favour of the Company all its estate and interest in any land and in any other assets, whether tangible or intangible, freehold or leasehold, in which it now has any legal or beneficial interest or in which it later acquires any such interest with payment of all monies owed by the Customer and consents to the lodging by the Company of a caveat or caveats which note its interest in or over any such land or other caveatable property;
(iii) The Customer acknowledges that where the Customer consists of more than one party or entity, liability shall be joint and several.
These terms and conditions, including any Credit Limits set by the Company, are effective from the date of acceptance by the Customer and may be amended or superseded from time to time by notice given by the Company by any means. Unless or except specifically excluded herein, the Company and the Customer retain any rights and remedies available to them in any prior or pre-existing agreement.
"Collateral" and/or "Goods" shall mean all goods and/or services supplied by the Company to the Customer, or ordered by the Customer but not yet supplied, and includes goods described on any quotation, invoice, purchase order or any other document including any recommendations and advice and over which the Company may intend to register a Security Interest.
"Price" shall mean the cost of the Collateral as referred to in the Company's price lists, invoices, prepared quotes and/or specific arrangements and shall be subject to change from time to time without notice.
a. This agreement shall be construed in accordance with laws of the State of New South Wales and, where applicable, The Commonwealth of Australia and the Customer submits to the non-exclusive jurisdiction of the courts of New South Wales.
b. The Company shall have the exclusive right to nominate the Court in which any legal action is to be commenced and conducted.
2. Personal Property Securities Act 2009 (PPSA)
a. The Customer grants and the Company may register on the Personal Property Securities Register, a security interest in all and any sale of Collateral under this agreement, including but not limited to intellectual property and all other present or after-acquired property.
b. The Customer warrants that all purchases under this agreement are for commercial purposes only and, accordingly, the provisions of the Consumer Credit Act will not apply.
c. The Customer and the Company agree to contract-out of the PPSA in accordance with section 115 of the PPSA to the extent that the section applies for the benefit of, and does not impose a burden on, the Company. The Customer waives its right to receive a copy of any Financing Statement or any Financing Change Statement registered by the Company in respect of the security interest created by these terms and conditions.
d. The Customer agrees to execute any documents, provide all relevant information and co-operate fully with the Company to ensure that the Company has a perfected security interest in the personal property charged and, if applicable, a Purchase Money Security Interest (PMSI).
e. The Customer agrees to notify the Company of any change in the Customer's structure or management including any sale or disposition of any part of the business of the Customer, any change in directorships, shareholders or management or change in partnership or trusteeship 7 days prior to any such change taking effect.
f. The Customer agrees that, until all monies owing to the Company are paid in full, it shall not sell or grant any other Security Interest in the Collateral.
g. The Customer agrees to reimburse the Company for all costs and/or expenses incurred or payable by the Company in relation to registering, maintaining or releasing any financing statement or any other document in respect of any security interest under this agreement.
3. The Competition & Consumer Act 2010
a. The warranties, rights and remedies of the Customer as outlined in the Competition & Consumer Act 2010 are not intended to be compromised as a result of anything contained in these terms and conditions, except to the degree permitted by the Act.
4. Payment Terms
a. At the Company's sole discretion, a deposit may be required prior to any supply.
b. Credit Account Customers are required to pay all amounts for purchases, in full and with no deduction or set-off, no more than 30 days from the end of the month during which any given purchase is made.
c. In the event of a dispute, the complete undisputed portion of the account must be paid in accordance with the Payment Terms.
d. Should it be considered necessary by the Company to incur legal and/or any other expenses, including any such expenses to any debt collection agency, in obtaining, or attempting to obtain, payment for any amount due by the Customer, the Customer shall be liable for all such expenses. The Customer acknowledges that those expenses may be calculated on a commission basis at a percentage rate of up to 25% of the amount due and expressly agrees to pay those expenses irrespective of the amount of work actually performed by the agency.
e. Amounts received by the Company may be applied first against interest, charges and expenses.
f. Interest on overdue amounts may be charged at a rate of 1.50 % per calendar month or part thereof and the Customer shall be liable for, and expressly undertakes to pay, all such interest.
g. Any payment made by or on behalf of a Customer which is later avoided by the application of any Statutory Provision shall be deemed not to discharge the Customer's indebtedness and, in such an event, the parties are to be restored to rights which each respectively would have had if the payment had not been made.
h. The Customer shall be liable for, and expressly undertakes to pay, all fees (including an Administration Fee in an amount to be set from time to time by the Company) for all costs incurred as a result of any cheque or electronic banking transaction being dishonoured for whatever reason.
a. The Company shall not be liable for any loss or damage, including consequential loss or damage, arising from delay in delivery or failure to deliver Collateral, either whole or in part, due to circumstances beyond its control.
b. The Company's obligation to deliver shall be discharged on arrival of the Collateral at the Customer's nominated delivery destination or nominated agent or carrier. If the Customer is unable or unwilling to accept physical delivery of the Collateral when the Collateral is ready for delivery, the Company shall be entitled to charge a fee for any delay suffered, or to arrange for storage of the Collateral at the risk and cost of the Customer including all transportation, storage and other consequential costs.
c. If the Company does not receive forwarding instructions sufficient to enable it to despatch the Collateral within 14 days of notification that they are ready the Purchaser shall be deemed to have taken delivery of the Collateral and the terms of payment shall apply from such date.
d. The Company reserves the right to deliver by instalments. If delivery is made by instalments the customer shall not be entitled:
(i) to terminate or cancel the contract; or
(ii) to any loss or damage howsoever arising for failure by the Company to deliver any instalments on or before the quoted date.
a. The Customer shall inspect the Collateral upon delivery and will, within 48 hours, notify the Company of any defects, short deliveries or any failure to fulfil any quotation or order.
b. The Customer will, within a reasonable time following delivery, grant the Company access to the Collateral in order to inspect for any alleged defects.
c. Should the Customer fail to notify the Company within the specified period then the Collateral shall be deemed to be in compliance with the order and free from any defect whatsoever.
a. The Company warrants that Collateral supplied shall be of merchantable quality.
b. The Company does not warrant that any Collateral is fit for a particular purpose and, except or unless otherwise stated herein, warranties relating to title, defects or conformity of the Collateral are expressly excluded.
c. The Collateral shall have the benefit of the Company's product warranty as detailed on the Company's web site.
d. The Collateral comes with guarantees that cannot be excluded under the Australian Consumer Law. The customer is entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss and damage. The customer is also entitled to have the Collateral repaired or replaced if the Collateral fails to be of acceptable quality and the failure does not amount to a major failure.
8. Retention of Title
a. Title in all the Collateral supplied shall remain vested in the Company and shall not pass to the Customer until all monies owing to the Company by the Customer together with all collection, repossession and/or legal costs incurred, have been paid in full. Until title passes to the Customer, the Customer acknowledges that these conditions create, in the Company's favour, a PPSA purchase money security interest in the Collateral and any proceeds of their sale.
b. The Company shall retain an equitable interest in the Collateral, whether separate or co-mingled or accessioned, which shall be stored in such a manner as to be clearly identifiable as the property of the Company, until title has passed to the Customer and further, upon re-sale of the Collateral by the Customer, the Company shall have the right to trace any proceeds of sale to the extent that they relate to its Collateral which are incorporated.
c. If payment has not been received, the Customer will transfer to the Company all of its rights in respect of the sale price.
d. The Company may demand at any time until title has passed to the Customer that the Customer returns the Collateral or any part of them.
e. In the event that the Customer defaults in the payment of any monies owing, the Company and its employees or agents shall have the right to enter without notice upon the Customer's premises or any other premises where the Collateral is known to be stored to repossess the Collateral and for this purpose, the Customer shall grant reasonable access rights and the Company, its employees or agents shall be entitled to do all things required to secure repossession.
a. Notwithstanding Retention of Title provisions as per clause 8 hereof, the risk in Collateral purchased shall pass to the Customer upon delivery to the Customer or its agent or a carrier nominated by the Customer.
b. If any of the Collateral is damaged or destroyed prior to the title passing to the Customer, the Company is entitled, without affecting any other rights and remedies under any agreement, to any insurance proceeds payable for the Collateral.
a. The Company may cancel the delivery of Collateral at any time before delivery by giving notice to the Customer by any means.
b. The Company shall not be liable for any loss or damage, including any consequential loss or damage, arising from such cancellation.
c. The Customer may cancel the delivery of Collateral at any time before delivery by giving notice to the Company by any means.
d. In the event that the Customer cancels delivery of Collateral, the Customer shall be liable for any costs incurred by the Company up to the time of the cancellation including, but not limited to, any re-stocking fees incurred by the Company.
11. Limitation of Liability
a. The liability of the Company to the Customer for any reason related to the performance of Goods under this agreement shall be limited to the replacement or repair of the Goods or the amount paid or payable by the Customer in respect of the particular Goods.
b. Where the customer is not a consumer for the purpose of the Australian Consumer Law and except where conditions, warranties and rights implied by the Competition and Consumer Act 2010 (the Act) cannot be excluded and subject always thereto, representations, promises, statements, warranties and conditions regarding any Collateral or services supplied by or on behalf of the Company are expressly excluded. The Company shall not be liable for any loss or damage whatsoever and however arising whether direct, indirect or consequential or in respect of any claim, whenever and however made, for any loss or damage, deterioration, deficiency or other fault or harm in the goods manufactured, work executed or services provided by or on behalf of or in any arrangement with the Company or occasioned to the Customer or any third or other party or to his or their property or interest and whether or not due to the negligence of the Company its servants or agents.
c. The Company shall not be liable in any circumstances for any:
(i) defects or damage caused in whole or in part by misuse, abuse, neglect, electrical or other overloads, non-suitable lubricant, improper installation repair or alteration (other than by the Company) or accident;
(ii) any transport installation removal labour or other costs;
(iii) Collateral not manufactured by it however the Company will endeavour to pass on to the Customer the benefit of any claim made by the Company and accepted by the manufacturer of such Collateral under a warranty given by the manufacturer provided that nothing contained in this subparagraph shall limit the rights of the Customer to proceed against the Company pursuant to the Act;
(iv) technical advice or assistance given or rendered by it to the Customer whether or not in connection with the manufacture construction or supply of the Collateral for or to the Customer provided always that the Company has rendered such services with the care and skill and that any materials supplied in connection with those services are reasonable for the purpose for which they are supplied.
Failure by the Company to insist upon strict performance of any term or condition hereof shall not be deemed a waiver thereof or of any rights which the Company may have and shall not and nor shall any express waiver be deemed to be a waiver of any subsequent breach of any term or condition.
13. Insolvency & Default
(a) the Customer makes default in payment due hereunder;
(b) a resolution is passed or proposed or a petition is presented or an application filed for the winding up of the Customer;
(c) a receiver or receiver and manager is appointed of the property or any part of the property of the Customer;
(d) the Customer makes or proposes to make any arrangement with the Creditors;
(e) the Customer is placed under official management;
(f) execution is levied upon the assets of the Purchaser for an amount in excess of $1,000.00 and is not within seven days satisfied,
then and in any such event the Company may at its option withhold further deliveries or cancel the contract without prejudice to its rights hereunder.
All quotations, customer assistance, advice, suggestions and support provided by the Company or its staff, by way of discussion, drawings or on-site, at the invitation or request by a customer of the Company in respect to product suitability, performance, application, service or warranty, is provided only in relation to NESS products. The Company is not responsible for the suitability or operation of products not supplied or approved by the Company.
Any quotations provided by the Company are based on information provided by the Customer and no responsibility will be taken by the Company as to the suitability of the quoted products for the intended purpose. The Customer is responsible for making individual assessments and verifying that any product quoted is suitable and fit for purpose.
The Customer acknowledges that in providing customer assistance, advice, suggestions or support the Company or its staff are not acting as Security Consultants, Advisors or Installers. The Customer accepts that it has a responsibility to be appropriately licensed in the respective state or territory in which it operates and be sufficiently trained and competent in product installation, programming and maintenance thereof.
a. The Company accepts no responsibility for changes in any law which may affect supply.
b. Neither the Company nor the Customer shall be liable for any breach of any provision of any contract between them arising from an act of their respective God, natural disaster, terrorism, war or any other, specified or unspecified, occurrence beyond the control of either party.
c. The invalidity or unenforceability of any provision of these General Terms and Conditions shall not affect the validity or enforceability of the remaining provisions.
d. The Customer acknowledges that all purchases are made relying solely upon the Customer's own skill and judgment.
Goods can be returned for a full refund or exchange within 14 days of purchase provided the goods and packaging are in as new and fully resaleable condition. The condition of the goods and their suitability for a refund is at Ness' sole discretion on receipt of the goods. Goods that have been used or have damaged packaging will incur a minimum 20% restocking fee. Goods that are marked, scratched or damaged will not be eligible for a refund. A copy of the original invoice must be supplied for any credit or exchange.
To make a warranty claim, the product should be returned to any Ness Corporation branch. The product must be returned with a fault report clearly stating the company name and contact details of the purchaser, the date of purchase, product serial number/s (if any), the original invoice number and a detailed fault description. The product can be returned in person, by mail or by courier at the customer's expense. Ness Corporation will not be liable for the cost of removal, reinstallation or transportation.
Products deemed faulty will be repaired or replaced at Ness Corporation's discretion free of charge but no responsibility is accepted for products subjected to misuse nor is responsibility accepted for consequential costs. A specific exception to our warranty provision relates to damage caused by a lightning strike or consequent power surge to equipment connected directly to phone lines. Such damage is considered to be a result of an Act of God and repair or replacement charges will apply.
This Ness Corporation product warranty offers the customer peace of mind and protection in addition to other rights and remedies available by law.
NESS SIM CONDITIONS OF USE
Ness SIM accounts are intended for use with selected Ness products for security and medical monitoring purposes only.
Fair Use restrictions may be applied in the event of excessive or abnormal usage patterns such as that caused by a fault condition, a runaway device or a 'hijacked' device.
Ness will alert the customer to abnormal use or activity by email or by phone using the contact details provided at the time of activation. If the fault condition persists and/or the customer cannot be contacted Ness reserves the right to suspend the SIM service to prevent network congestion or flooding of the recipient's phone with excessive calls or SMS messages.
A suspended service will be re-activated as soon as possible once Ness determines that the network or customer equipment fault/s have been rectified.
WEB ORDER SHIPPING POLICY
Trade orders valued over $200 and under 100kg weight are shipped free of charge within 100km of Sydney, Melbourne, Brisbane, Adelaide, Perth metro areas.
Orders under $200 are subject to a $25 flat rate shipping charge within capital cities metro.
Consignments over 100kg weight and outside of the 100km limit may be subject to additional freight charges. In such cases we will inform you of the estimated cost prior to shipping.
Ness Corporation locations.