1.1 In these conditions:
(a) ‘We’ means AIM Communications P/L.
(b) ‘Agreement’ means these terms and conditions of schedule;
(c) ‘You’ means the Customer referred to in the schedule;
(d) ‘Equipment’ means the equipment referred to under the heading ‘’description’ in the schedule;
(e) ‘Products’ means the products referred to in the schedule;
(f) ‘Schedule’ means the schedule overleaf;
(g) Clauses 1.5 and Clauses 13 and 14 shall apply to all service contracts.
2.1 You agree to purchase the products on the terms and conditions set out in this agreement unless otherwise agreed by both of us in writing.
3.1 Unless otherwise stated by us the quote excludes all duties and taxes (including GST). The prices quoted are those ruling at the date of quotation and are based on freight rates, customs duties, exchange rates, shipping expenses, sorting and stock charges, cartage and material costs at the date of the quotation. We reserve the right to vary or withdraw any quotation prior to your acceptance or in order to correct any error or omission affecting the purchase price quote or its calculation.
3.2 It is your responsibility to ensure that the quantity, type and description of the products ordered are those required by you and are compatible with any other equipment connected to any of the products and we shall not be responsible for any repair or loss arising in relation thereto.
3.3 We are entitled to vary the price of the products if at any time prior to delivery there is an increase in our labour, material or freight costs or if delivery is quoted outside normal working hours or to an address other than that specified by you or for any cause beyond our control.
4.1 Any delivery date is an estimate only. We can determine the route and mode of delivery and may deliver the products to the premises notified by you even if there is no one in attendance. We shall not be responsible for any loss, or damage arising from any late or non-delivery of products.
5.1 Subject to any statutory right, you may not cancel your order with us either wholly or in part nor seek to suspend delivery without our written consent. If you do, we may impose a cancellation fee of not less than 50% of the order and you must pay, to us, that fee immediately.
6.1 The purchase price must be paid in full on or before delivery. If you fail to make payment, we may postpone our obligations to you and charge you for extra expense incurred by us.
6.2 We reserve the following rights in relation to the products until all accounts are fully paid:
(a) legal ownership of products.
(b) to enter your premises (or premises of any associated company or agent where the products are located) to re-take possession of the products without liability for trespass or any resulting damage.
6.3 You shall assist us to keep and re-sell the products re-possessed pursuant to (ii) above.
6.4 If you have resold the products, you shall hold such part of the proceeds as representing our invoice price in a separate account as our beneficial property and you shall pay that amount to us immediately upon request.
6.5 You shall pay interest on all moneys due and unpaid at the variable rate which is the sum of our business loan rate, at that time and a margin of 3%. Interest will accrue daily on any unpaid balance.
7.1 We agree to service our products brought from us or your own equipment in accordance with a signed Maintenance Agreement.
8.1 Our charge for services referred to in the Schedule shall be fixed for 6 months and we are not obliged to carry out other services which are not specified.
8.2 If you require us to carry out additional services not specified in the agreement, you agree to pay our prevailing rates for those services. Rates are available on request.
8.3 All service fees shall be exclusive of all taxes (including GST) and be exclusive of out-of pocket expenses, accommodation and other disbursements incurred in performing those services.
9.1 We shall –
(a) Service your products and/or equipment at your premises during our normal business hours as soon as is reasonably possible after being notified by you;
(b) Provide and install all parts that we consider are required to maintain the products and/or equipment in good working order, in accordance to the maintenance agreement.
10.1 If we service your products and/or equipment, you
(a) Shall pay all invoices relating to servicing within (7) days, or our agreed trading terms, or an administration charge may apply at the discretion of AIM Communications P/L.
(b) Shall immediately notify us if further service of the product and/or equipment is required of if any damage is suffered to or there is any malfunction in the operation of products and/or equipment.
(c) Shall allow us access to the product and/or equipment to carrying out the service and acknowledge that if you delay or reschedule the operation of us carrying out service when we arrive you agree to pay us our prevailing rates for our attendance.
(d) Acknowledge that service is limited to the usual service necessary to maintain the products and/or equipment in good working order assuming that the products and/or equipment are used in accordance with the manufacturers directions and that the service does not include repairs or materials where the damage to products arises from any of those matters set out in Clause 14.4 of this Agreement, mains supply problem, user error or any tampering with the internal workings of the product and/or equipment by a person not authorized by us, nor does it include relocation, refurbishment, damage to external panels, the fitting of accessories or the like. Service specifically does not include any diagnosis, services or maintenance relating to any computer or network to which the equipment may be connected, nor any programme, software or drivers which may be supplied with the equipment.
11.1 This agreement on its anniversary, shall renew, for a further period of twelve (12) month at our then prevailing rates unless you give us three (3) months written notice prior to the renewal date that you do not wish the agreement to be renewed.
12.1 We may terminate this agreement should:
(a) We serve written notice on you terminating the agreement whereupon this agreement shall immediately terminate.
(b) You relocate the products and/or equipment to an area, (unless agreed otherwise outside of the area in which our offices are located;
(c) You fail to adhere to the terms and conditions of this Agreement;
(d) The products and/or equipment suffer damage as a result of any of the matters or things set out in Clauses 10.1 (c) and 14.4 in this Contract.
(e) If you commit to an act of insolvency, become bankrupt, seek to make an arrangement with creditors, go into liquidation or have a manager, receiver or controller appointed to you as a company.
12.2 This agreement shall automatically be deemed to be immediately terminated if you elect to replace, trade-in or upgrade our equipment using another company or entity not associated with us, without giving us three months written notice of your intention to do so. You will then agree to immediately pay us the equivalent of a sum equal to the charges we have billed you for the preceding three months. If you give us three months notice, that you elect to terminate this Agreement under the above circumstances, then we agree not to request you to pay additional charges.
13.1 You acknowledge that the products have not been manufactured by us and the guarantee of the manufacturer of the products shall be deemed to be assigned to the purchaser once legal ownership of the products passes to you and this is the only guarantee given to you in respect of the products.
14.1 Except as provided herein, all express and implied warranties, guarantees and conditions under Statute or general Law as to merchant liability, description, quality, suitability or fitness of the products for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are hereby expressly excluded and we shall not be liable for physical or financial injury loss or damage or for consequence or loss or damage of any kind arising out of supply, layout, assembly installation or operation of the products or arising out of our negligence or in any way whatsoever.
14.2 Our liability for breach of a condition or warranty implied by Division 2 of Pt. iv of the Trade Practices Act 1975 (other than S. 69) is hereby limited to:
In the case of products any one or more of the following:
(a) The replacement of the products or the supply of equivalent products;
(b) The repair of the products;
(c) The payment of the costs or replacing the products or of acquiring equivalent products;
(d) The payment of the costs of having the products repaired; and
In the case of services:
(e) The supplying of the services again; or
(f) The payment of the costs of having the services supplied again.
14.3 Our liability under S. 74 (h) of the Trade Practices Act 1975 is expressly limited to a liability to pay you an amount equal to;
(a) The cost of replacing the products
(b) The cost of obtaining equivalent products
(c) The cost of having the products repaired whichever is the lowest amount.
14.4 We shall not be liable to you where the damage to the product arises from improper operation or adjustment of the product by you, the use of accessories including consumables, hardware or software which was not supplied or approved, in writing by us, any contamination or leakages caused or induced by you, any modification of the product which is not authorized in writing by us, any misuse of the product, any use or operation of the product outside of the physical, electrical or environmental specifications of the products, inadequate or incorrect sitting of the product and inadequate or improper maintenance of the products. Furthermore, Hard Drives, Network Interface Cards are covered by the manufacturers warranty only and will not be covered by this service agreement.
14.5 All transportation charges incurred in returning defective products or parts thereof for repair, together with the costs of returning them to you shall be paid by you.
15.1 These conditions shall prevail over all conditions contained in any order form.
15.2 No purported waiver, alteration, cancellation or assignment of this agreement shall be binding on us unless accepted by a Director of our Company and our failure to enforce the provisions of this agreement or to exercise any rights expressed in this agreement shall not be a waiver of such provisions or rights and shall not affect the enforcement of this agreement.
15.3 If by any reason or any fact, circumstance, matter or thing beyond our reasonable control, we are unable to perform in whole or in part any obligation under this agreement, we shall be relieved of all obligations under this agreement to the extent and for the period that we are unable to perform and we shall not be liable to you in respect of such inability.
15.4 You acknowledge that we do not make any representations or warranties regarding the products or any matter which is or might be relevant to you buying or selling the products other than representations or warranties expressed in this agreement, and this agreement constitutes the entire contract between the parties.
15.5 This agreement shall be governed by the laws of Australia and the State of Queensland.
15.6 All notices to be served on either party shall be served in the manner prescribed by Law and the address for service of each party shall be the address shown in the schedule or such address as may be notified in writing from time to time.
15.7 Telstra Services
Where indicated on the schedule you request us to order network services on your behalf from Telstra and other Telecommunications carriers. You agree to be bound by the terms and conditions associated with these services as detailed by the carrier. You further agree to be responsible for the payment of any fees and charges both initially and ongoing for these services.