STANDARD TERMS AND CONDITIONS
These standard terms and conditions apply to all Quotations between PSA and You as its customer for:
a) Sale of Goods and/or the supply of Services;
b) The creation of Customised Software specifically required by You; and
c) The creation and maintenance of Your website if required by You.
1.0 Creation of the Agreement
1.1 This Agreement will exist between You and PSA upon
the acceptance by You of PSA’s Quotation. Such acceptance shall be
deemed to have been made upon the receipt by PSA of Your signed acceptance in
the form contained at the end of the Quotation together with the payment (which
can be made by cheque, electronically or by credit card) if such payment is
required as part of the Quotation.
2.0 Definitions In this Agreement:
"Agreement" means these Standard Terms and Conditions together with the content of the Quotation and any additional terms included in the Quotation;
“Call-out Fees” means PSA’s current hourly fee for its representative attending at Your Premises for the purposes of providing any of the Services. As at the date of the Quotation PSA’s then current Call-out Fees are as set out therein.
“Communicate” or “Communicated” refers to the communication by a Party to another Party which communication must be made either electronically or in writing. Where a communication is made electronically by email it shall be deemed received when sent, where the communication is by facsimile it shall be deemed received when there is a transmission report confirming it has been sent, where a communication has been sent by mail, one day after the day of posting, or where it has been hand delivered, on the date of delivery.
“Customised Software” means software that You request PSA to arrange for PS to create for You.
"Goods" means all products and other Goods (including any Customised Software) of every description, and where applicable Goods supplied by PSA to You, including all Goods described in the Quotation;
“Hardware” means all computer hardware and components that are at any relevant time used by You in Your business and which in any way relate to the provision of the Services or the supply of Goods.
“Information Technology” or “I.T.” means every form of Information Technology used or which may be used by You in the conduct of Your business and includes without limitation all software programs used by You and all computer hardware used by You in respect to the conduct of Your business.
"Intellectual Property" or "I.P." means intellectual property related to the development and sale of software licenses by PSA to You as set out in the Quotation, including licenses for Customised Software developed as part of this Quotation. This includes (but is not limited to) source code, trademarks and patents.
“Law” means where applicable the laws of the State or Territory of Australia in which this Agreement is entered into and the laws of Australia in so for as they apply to this Agreement and includes all legislation, regulations, rules, codes of practice, and all variations or amendments thereto and all general law that has any application to the relationship between PSA and You.
“Licence” means any licence granted by PSA (as an authorised representative of PS) to You to use, on a non-exclusive basis, any of PS’s Software Products.
“Party” and “Parties” means singularly or collectively PSA and You as the context may require.
“PS” means Petrie Software Pty Ltd ACN 110 519 723 and any successor thereto.
“PSA” means Petrie Software Australia Pty Ltd ACN 144 750 194 and any successor thereto.
"PS’s Software Products” means software products that have been created by PS (including Customised Software) and which PSA is authorised by PS to grant licences to customers of PSA.
“Quotation” means a quotation provided by PSA to You.
“Service Fees” means the service fees on an hourly rate as set out in the Quotation.
"Services" means all services supplied by PSA to You and described in the Quotation.
“Your Premises” means the
premises described in the Quotation hereof as Your Premises and/or such other
place or address as the Parties may from time to time in writing agree.
3.0 Basis of Agreement
3.1 This Agreement applies to every Quotation for the Goods and to every provision of Services by PSA to You.
3.2 This Agreement cannot be varied or amended without the prior written consent of the Parties.
Any written Quotation provided to You by PSA is effective for 45
days and may only be accepted by You in that time. If it is not accepted by
You within that 45 days the Quotation shall automatically lapse. For a
Quotation to be accepted it must be communicated to PSA. This Agreement may be
supplemented by additional terms in the Quotation. This Quotation is not
assignable without the prior written consent of PSA.
4.0 Charges and Payment
4.1 Subject to all special terms in the Quotation:-
(a) Payment by You for Goods must be made in advance by cash, electronic transfer, cheque or credit card on or prior to the supply of the Goods unless You have a credit account with PSA. All Goods supplied by PSA will be charged separately from the Services.
(b) Payment for any Services, other than in clause 4.1(c) below, must be made as to 50% prior to the commencement of the Services, and to the other 50% within 7 days of completion of the Services. PSA will provide Tax Invoices for each of these amounts to You.
(c) Payment for any meetings to be held between PSA’s representatives and You must be paid by You in full in advance of the meeting.
(d) All visits by PSA’s representatives to Your premises are chargeable and are charged in one hour units. Any part thereof is chargeable at the same rate as a full hour. Call-out fees apply for any visits to Your premises.
(e) Payment made for Goods is non-refundable.
(f) Payment made for Services is non-refundable.
(g) Payment made for meetings is non-refundable. A meeting may be rescheduled by You if notice is given to PSA at least 1 business day prior to the scheduled time of the meeting (unless otherwise specified in the special terms in the Quotation). Rescheduling of a meeting by You after this time will result in forfeiture of the payment. Cancellation of a meeting after payment is received is not permitted. Meetings may be rescheduled by PSA at any time.
Where there is any change in the costs involved in providing the
Goods or Services on an ongoing basis then PSA may vary its price to You by
written notice of such increase to reflect any such change.
5.0 Non Payment
5.1 If You fail to pay by any amount when due to PSA, or if any cheque drawn by You is dishonoured, then PSA may, without prejudice to any other remedy available to PSA:-
(a) charge You interest on any sum due at the rate of 10% per annum until full payment is made. Interest to be calculated daily and compounded every 30 days for the period from the due date until full payment;
(b) charge You for expenses and costs (including legal costs on a full indemnity basis and dishonoured cheque fees) incurred by PSA in taking whatever action to recover any sum due;
(c) cease or suspend the supply of any further Goods or Services to You;
(d) cancel any unaccepted Quotations provided to You;
(e) by notice in writing to You, terminate this Agreement and/or any other contract with You; without effect on any accrued rights of PSA under any contract.
5.2 Clauses 5.1(c) to 5.1(e) inclusive may also be relied upon, at the option of PSA:
(a) where You are an individual and You become bankrupt or enter into any scheme of arrangement or any assignment or composition with or for the benefit of Your creditors;
(b) where You are a corporation, You enter into any scheme of arrangement or any assignment or composition with or for the benefit of Your creditors, or have a liquidator, provisional liquidator, administrator, or receiver appointed, or any action is commenced for Your winding up.
6.0 Websites and General I.T. Advice
6.1 Where You have requested PSA to develop and maintain Your website and PSA has agreed to do this, PSA shall maintain and manage the input of content on that website. You expressly acknowledge that:-
6.1.1 You are exclusively responsible for content on Your website. Before such content is put on Your website You must ensure that the content is free from errors and is not misleading in any way.
6.1.2 PSA is not obliged to put up any content which in its exclusive opinion is defamatory, libellous or in breach of any Law.
6.1.3 You expressly waive all claims You might have at any time against PSA arising directly or indirectly out of the content on Your Website.
6.2 Where any claim is brought by any third party against PSA and such claim in any way relates to the content on Your Website then You indemnify PSA against any loss, liability or expense (including all legal costs) which PSA incurs as a direct or indirect consequence of such claim.
Where You have agreed for PSA to provide advice on Your I.T.
Purchases, PSA will recommend and assist You in identifying suitable equipment
and suppliers thereof and suitable persons to install such equipment. PSA is
not responsible directly or indirectly for any defect in any equipment
purchased by You from any recommended supplier. PSA is not responsible for any
problems or defects in or arising out of the installation of the equipment. To
the extent that You have any such claims You hereby expressly waive them.
7.0 Passing of Property, Risk and Insurance
7.1 Until full payment in cleared funds is received by PSA for all Goods supplied by PSA to You, as well as all other amounts owing to PSA by You:
(a) title and property in all such Goods remain vested in PSA and title in them does not pass to You;
(b) You hold the Goods as bailee at will for PSA and must not use the Goods;
(c) You must keep the Goods separate from Your other goods and maintain the labelling and packaging of the Goods;
(d) You may only unpack the Goods for the purposes of inspection and identification;
(e) If You on-sell the Goods You acknowledge that all proceeds of their sale are held on trust exclusively for PSA and must be kept in a separate account. Failure to do so will not affect Your obligation to deal with the proceeds as trustee for PSA;
(f) PSA may without notice, enter Your premises at any time and remove the Goods, notwithstanding that they may have been attached to other goods not the property of PSA. You acknowledge that PSA will not be responsible for any damage to Your premises, or to Your property caused in the course of entry, exit or removal of the Goods. For this purpose You irrevocably permit and authorise PSA, its servants and agents to enter Your premises and You indemnify PSA from and against all costs, expenses, claims, demands or actions by any third party arising from such action.
The risk in the Goods and all insurance responsibility for their
theft, damage or otherwise passes to You immediately upon You accepting
delivery of the Goods.
8.0 Late Delivery or Completion
8.1 Any period or date for delivery of Goods or provision of Services stated by PSA is intended as an estimate only and is not a contractual commitment. PSA will use all reasonable endeavours to meet any estimated dates for delivery of the Goods or completion of the Services but this shall not impose any legal obligation on PSA or give rise to any claim by You for compensation of whatsoever kind or nature that relates to or arises out of such late delivery or completion.
You acknowledge that all delivery times and completion dates are
estimates only and accept all risk of loss or damage that You might sustain
through late delivery of Goods or delay in completion of the Services.
9.1 PSA will use its best endeavours to diagnose the cause of any hardware or software defect or problem. However, PSA does not warrant to You that it is able to diagnose or fix every problem that might occur.
9.2 Subject to clause 9.3, PSA warrants to You that all Goods and Services supplied shall be free from defects in materials and workmanship for 30 days from the date of delivery.
9.3 You acknowledge and accept that all such Goods (including Information Technology and Communications products generally), may have errors (or “bugs”) and may encounter unexpected problems, and accordingly You may be unable to use the Goods or Services. PSA will use its best endeavours to correct all errors and remove all bugs, but in so doing, such work may delay or interrupt Your use of the Goods and/or Services. PSA cannot warrant, and therefore gives no warranty that such errors or bugs will not occur or that their correction will not result in delay or interruptions to Your use of those Goods or Services. Unless PSA has negligently caused such errors or bugs it shall be entitled to charge You its usual Service Fees for correcting such errors or removing such bugs.
9.4 You warrant and undertake to PSA that You will put in place and follow all reasonable internal procedures and processes as recommended by PSA to enable PSA to minimise any inconvenience or any adverse impact of any delay or interruption to use of the Goods and Services.
The Parties warrant to each other that they will at all times in
their dealings with each other comply with all obligations under the Privacy
10.0 Your Responsibilities
10.1 You are exclusively responsible for all data inputs, the manner of use of the Goods by those who use them.
10.2 You must comply, at Your own cost, with any directions, recommendations and guidelines with respect to the use of the Goods, including any adjustments or replacements required in respect of equipment and software that is incidental or collateral to the use of the Goods.
10.3 You must ensure that all persons using the Goods are suitably trained and informed as to the use of the Goods and comply with all recommendations, guidelines, directions and procedures given by PSA or the supplier.
10.4 You must promptly notify PSA of any errors, faults or bugs in the Goods.
10.5 You must at all times provide reasonable assistance to and co-operation with PSA and its representatives.
10.6 You must ensure that there is proper back up for all software, data and files and follow all recommendations or directions given by PSA in that regard.
You acknowledge PSA is not liable for or responsible for any loss
suffered by You which would have been avoided or reduced had You followed any
directions or recommendations by PSA, including without limitation the proper
back up of all software data and files.
11.0 Exclusion of Liability
11.1 To the full extent permitted by Law, all conditions, warranties, representations and indemnities with respect to the Goods and/or the Services that may otherwise be implied by Law, equity, trade, custom or prior dealings between the Parties or otherwise (including, but not limited to, any implied warranty of merchantability or fitness for any particular purpose, quiet enjoyment or non-infringement) are hereby expressly excluded.
11.2 Except as specifically provided herein, the liability of PSA to You for any breaches of the terms of this Agreements, whether express or implied, is limited to:
11.2.1 subject to sub-clauses 11.2.2 and 11.2.3, an amount in damages equal to the total amount of the fees and charges paid by You under this Agreement as at the time of the breach;
11.2.2 in relation to Goods supplied by PSA to You other than as a domestic consumer (as defined in the Trade Practices Act 1974):
(a) the replacement of the Goods or the supply of equivalent Goods; or
(b) payment of the cost of replacing the Goods or acquiring equivalent Goods; or
(c) the repair of the Goods or payment of the cost of having the Goods repaired; and
11.2.3 where any Services are supplied to You other than as a domestic consumer (as defined in the Trade Practices Act 1974):
(a) the resupply of the Services; or
(b) the payment of the cost of having similar Services being supplied again, as in each case PSA may elect.
11.3 PSA Shall not be liable to You in respect of the use of (or failure or performance of) the Goods or the Services where:
11.3.1 such failures are caused or partly caused directly or indirectly by:
(a) any act or omission of any other person;
(b) steps taken by PSA expressly or impliedly authorised by You, or by Your employees, agents, consultants or advisers;
(c) any accident to, or misuse or abuse by You or any third party of the Goods;
(d) any change to or modification of the Goods or Services by any third party;
(e) Goods or products (including any hardware or software) not licenced or supplied by PSA that are attached to or used with the Goods;
(f) Your failure to provide a suitable operating environment for the Goods;
(g) any damage to the Goods during any movement, relocation, de-installation or re-installation of the Goods;
(h) any power surge or failure
(i) any event arising out of or as a consequence of any abnormal operating conditions;
(j) acts of God;
(k) normal wear and tear to the Goods;
(l) any maintenance or servicing of the Goods not authorised or approved by PSA;
(m) any failure to follow any direction or recommendation by PSA; or
(n) any careless of negligent use of the Goods or Services.
11.3.2 any loss or damage of any nature arising or caused directly or indirectly by any breach by You of any of Your obligations or responsibilities set out in this Agreement.
11.4 In respect to any hardware, any replacement of parts under warranty will be carried out by the supplier of the Goods and not by PSA.
11.5 To the fullest extent permitted by law, PSA is not liable to You in respect of the use of, failure or performance of the Goods or the supply of the Services for:
11.5.1 any loss of profit, business interruption, loss of or damage to goodwill, and/or any expectation benefit;
11.5.2 Your liability to any third party; or
11.5.3 incidental, consequential, special, exemplary or punitive damages of any kind,
howsoever arising or caused, including without limitation the breach of this Agreement Conditions or any expiration or termination of this Agreement, whether such liability is asserted on the basis of Law, contract, tort (including negligence or strict liability), equity or otherwise, even where PSA has been informed of the possibility of such loss or damage.
11.6 PSA is not liable for any loss or damage sustained by You because of any late delivery date, unavailability or cancellation or suspension of the supply of Goods or Services.
11.7 Nothing in this Agreement excludes, restricts or modifies any:
11.7.1 implied condition, warranty or other implied obligation in relation to this Agreement or the software and Services where by Law it is unlawful to so exclude, restrict or modify; or
11.7.2 liability for fraud or deceit; or
liability for death or personal injury caused by negligence.
12.0 Installation of Software
12.1 You are responsible for any breach of any software licence in respect of software provided to PSA by You to be installed on Your computer. You indemnify PSA from any liability or loss PSA might sustain as a direct or indirect consequence of such breach or installation.
You represent and warrant that You have a valid and current
licence in respect of such software.
13.0 Force Majeure
If, through any event or circumstance outside the control of PSA,
PSA is unable to deliver, provide or carry out any of its obligations including
the provision of any of the Goods or Services referred to in the Quotation then
PSA may terminate this Agreement by notice to You to that effect.
14.0 No representation or reliance
14.1 You acknowledge that neither PSA nor any person acting on behalf of PSA has made any representation or inducement to You to enter into this Agreement other than those expressly set out herein.
14.2 Without limiting clause 14.1, You represent to PSA and confirm that:
(a) Your decision to enter into this Agreement was not based on any representation, statement, warranty, promise or undertaking made or given by PSA or any person on its behalf in relation to the qualities, suitability, uses or benefits of the Goods or Services, except as specified in clause 9, and
acknowledge that You have had the opportunity to inspect the Goods and have
relied on Your own skill and judgement in deciding to purchase and acquire the
Goods and Services.
15.0 Intellectual Property
15.1 PS’s Software Products including any Customised Software (referred to hereafter as the "Software"), and any associated Intellectual Property rights is always the exclusive property of PS.
15.2 You are hereby granted a Licence to use the Software through PSA, who is an Authorised Representative of PS.
15.3 The terms of Your Licence is with PS as the owner of the Software and the grantor of the Licence, and with PSA as the seller to You of the Licence.
15.4 Any licence given to You for the use of the Software does not act as an assignment to You of the Software or any other Intellectual Property rights. The Licence is simply a licence to use.
16.0 Whole Agreement
16.1 To the fullest extent permitted by law, the express terms of this Agreement:-
16.1.1 Contain the entire contract between the Parties, as agreed by them; and
All prior written or oral representations, understandings,
agreements or contracts (if any) between the Parties are hereby expressly
released, waived and not relied on by either Party.
17.0 Applicable law
This Agreement is construed according to the law of New South
Wales. The Parties submit to the exclusive jurisdiction of the courts of New
18.0 Legal Advice
18.1 You have had the opportunity of obtaining separate and independent legal advice before signing the Agreement.
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