1.1. “Company” means Cygnet Synergies Pty Ltd of 217 Flinders Street, Adelaide SA 5000, trading as Cygnet Systems, or any subsidiary or associated company.
1.2. “Conditions” means the terms and conditions set out below.
1.3. “Confidential Information” means information relating to the business affairs and methods of working of either party, the detailed financial terms of the Contract, and any other information of a secret or proprietary nature.
1.4. “Contract” means an agreement in writing between the parties for the Company to supply Goods and/or Services to the Customer. The Contract will be formed when the Company gives written acceptance of the Customer’s Order. Any verbal orders or instructions issued by the Customer will not be binding on the Company.
1.5. “Customer” means the party to whom the Company agrees to supply Products and/or Services in accordance with these Conditions.
1.6. “GST” has the meaning given to it under A New Tax System (Goods and Services Tax) Act 1999 (Cth).
1.7. “Intellectual Property” means all intellectual and industrial property rights.
1.8. “Order” means the Customer’s written instructions to the Company to supply a quantity of Products and/or Services at a set Price as specified on the relevant Quotation as may be amended from time to time.
1.9. “Price” means the price payable for the Products and/or Services under any Contract as set out on the relevant Quotation excluding GST and any carriage, packaging and insurance costs.
1.10. “Products” means goods including but not limited to computer hardware and software items to be provided by the Company to the Customer under any Order in accordance with these terms and conditions.
1.11. “Quotation” means a priced schedule of Products and/or Services that the Company proposes to supply to the Customer together with any particular conditions stated thereon.
1.12. “Services” means all services supplied by the Company to the Customer under any Order in accordance with these terms and conditions.
1.13. “Third Party Software” means all software owned by or licensed to the Customer from a third-party owner (whether or not supplied by the Company) and which comprises part of the Products.
1.14. Any reference in these Conditions to any provision of a Statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
2.1 These Conditions are the only general conditions of contract between the Company and the Customer. They supersede any other conditions previously issued.
2.2 The Company’s quotations are not binding on the Company and a Contract will only come into being upon acceptance by the Company of an Order placed by the Customer. Acceptance by the Company shall be either by written or by digital notice of acceptance.
2.3 Unless otherwise agreed, the Products are supplied in accordance with the manufacturer’s standard specifications and these may be improved, substituted, or modified by the manufacturer.
2.4 Notwithstanding that a Contract has come into being, the Company reserves the right, by giving notice to the Customer at any time before delivery, to increase the Price or to alter the specification to reflect any increase in the cost to the Company or unavailability of Products which is due to any factor beyond the control of the Company (including without limitation increases on costs of labour or materials) and any change in delivery dates, quantities or specifications for the Products and/or Services requested by the Customer or failure of the Customer to give the Company adequate information or instruction.
2.5 The Company will not be liable in respect of any loss or damage caused by or resulting from any variation for whatever reason in the manufacturer’s specifications or technical data and will not be responsible for any loss or damage resulting from curtailment or cessation of supply following such variation. The Company will use its reasonable endeavours to advise the Customer of any such impending variation as soon as it receives any notice thereof from the manufacturer.
2.6 The Contract will be subject to the Conditions which shall apply to all Contracts for the supply of Products and/or Services by the Company to the exclusion of all other terms and conditions including any terms and conditions which the Customer may purport to apply under any purchase order, confirmation of order or similar document.
2.7 All Orders for Products and/or Services shall be deemed to be an offer by the Customer to purchase Products and/or Services from the Company pursuant to these conditions.
2.8 Acceptance of delivery of the Products and/or Services shall be deemed to be conclusive evidence of the Customer’s acceptance of these Conditions.
2.9 Any variation to the Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Company and in particular (but without limitation) where the Customer requires the Products and/or Services for a particular purpose the Company shall be deemed to have no notice of such purpose unless
that purpose is agreed by the Customer and Company in writing. The Company and the Customer acknowledge that there is no usage or course of trading in existence which could affect the terms of the Contract in any way.
3.1 Time of delivery shall not be of the essence of the contract. The Company will make reasonable efforts to deliver the Products and/or perform the Services in accordance with any time limit outlined in any quotation provided. Where no time limits have been specified then the Company will make reasonable efforts to deliver the Products and/or perform the Services within 60 days of acceptance of the Order by the Company. Provided that the Company meets the time limits set out in this clause no delay in delivery shall entitle the Customer to repudiate or cancel the Contract. In no event shall the Company be liable for any damages or penalty for delay in despatch or delivery where such delay is because of conditions beyond the Company’s reasonable control.
3.2 The Products and /or Services may be supplied in separate instalments and each separate instalment may be invoiced and if invoiced must be paid for in accordance with the provisions of the Contract. The failure of the Customer to pay for any or all of the said instalments on the due date shall entitle the Company (at its sole discretion) without notice to suspend further performance of the Contract pending payment and/or treat the Contract as repudiated by the Customer.
3.3 Delivery of the Products and/or Services shall be made to the Customer’s address. The customer shall make all arrangements necessary to take delivery on the day notified by the Company for delivery.
3.4 Risks shall pass to the Customer at the time the Products are despatched by the Company or by their approved supplier and any loss of or damage to or deterioration of the Products from any cause whatsoever other than negligence of the Company shall be the responsibility of and be borne by the Customer. In the event of negligence by the Company, the liability of the Company for such loss or damage shall be limited to the invoice value of the Products.
3.5 The Company shall not be liable to the Customer for any loss or damage whether arising directly or indirectly from the late delivery or short delivery of the Products. If short delivery does take place, the Customer undertakes not to reject the Products but to accept the Products delivered as part performance of the Contract.
3.6 If the Customer fails to take delivery of the Products on the agreed delivery date or, if no specific delivery date has been agreed, when the Products are ready for despatch, the Company shall be entitled to store and insure the Products and to charge the Customer the reasonable costs of doing so.
3.7 Without prejudice the Customer shall inspect the Products and/or Services supplied under this contract immediately upon delivery and shall in the case of any allegation of non-conformity or unfitness of the Products and/or Services within 7 days from delivery give notice in writing to the Company of any matter or thing or reason by which it alleges the Products and/or Services are not in accordance with the Contract. If Products have not been received, the Customer must notify the Company within 7 days of the date of the invoice. If proof of delivery is required, this must be requested within 7 days of the date of the invoice.
3.8 If the Customer fails to give notice as provided in clause 3.7 the Customer shall be deemed to have accepted the Products and/or Services and they shall be deemed to be in all respects in accordance with the Contract and fit for their purpose.
3.9 If the Customer purports to reject the Products and/or Services by giving notice under clause 3.7 and such rejection afterwards becomes ineffectual by reason of the Customer dealing with the Products and/or Services as owner or by reason of any other conduct on the part of the Customer inconsistent with such rejection, the Customer shall be bound to pay the price in full and shall have no claim for damages or compensation by reason of any non-conformity of the Products and/or Services with the Contract.
3.10 If the Customer gives notice under clause 3.7 the Company may elect to provide other Products and/or Services which comply with the Contract within 14 days of the date of the notice and (providing those Products and/or Services are not subject to a further notice under clause 3.6), the Company shall be deemed to have compiled with its obligations under the Contract.
4. CANCELLATION AND RESCHEDULING
4.1 Any request by the Customer for cancellation of any order or for rescheduling of deliveries will only be considered by the Company if made at least 48 hours before despatch of the Products and/or Services and shall be subject to acceptance by the Company at its sole discretion and may be subject to a reasonable administration charge. The Customer hereby agrees to indemnify the Company against all loss, costs (including the cost of labour and materials used and overheads incurred), damages, charges and expenses arising out of the order and its cancellation or rescheduling.
5.1 The Company reserves the right to levy an administration charge in respect of the rotation of Products and returns.
5.2 Returns must be made subject to all of the following:
6.1 The Customer hereby authorises the Company to provide the Services insofar as is permitted by any legislation.
6.2 The Customer acknowledges and accepts that the performance by the
Company of certain aspects of the Services may carry a risk to the Customer of loss of data. The Customer warrants that it will insure against loss that may be suffered as a result of the performance of the Services and undertake all appropriate data and application back up procedures prior to any work being carried out.
6.3 The Customer warrants and undertakes that it has obtained from all persons including all third parties all necessary approvals and authorities required to allow the Company access to all information technology networks and systems used by the Customer and that the Company’s actions shall be deemed to be authorised by the Customer and any relevant third party for the purposes of any applicable legislation in any jurisdiction in which the Customer operates and in which the Services are performed (including but not limited to The Cybercrime Act 2001) and any contract governing the use of such networks and systems.
6.4 The Customer warrants and accepts that the Company shall be entitled to act upon all information and directions supplied to the Company by any of the Customer’s employees.
6.5 The Customer will provide such of its facilities to the Company (free of charge and on the same basis as it would provide similar facilities to its employees) as may be reasonably required by the Company to provide the Services, including:
Company’s control, the installation will be charged at the quoted rate. Any further time required to complete the installation will be scheduled and at the Company’s discretion charged according to the Company’s standard charges.
7.1 Catalogues, price lists and other advertising literature material as used by the Company are intended only as an indication as to price and range of goods offered and no prices, description or other particulars contained therein shall be binding on the Company.
7.2 The method of calculating the Price may depend on the type of work we are doing and any discussions we have had with you and may comprise:
The method of charging and applicable rates and prices will be confirmed in the Quotation.
8.1 Invoices will be raised and dated by the Company on the date of despatch of the Products and/or Services. Unless otherwise specifically negotiated and agreed, invoices will be payable in Australian dollars by the Customer 14 days from the date of the invoice.
8.2 Invoices at the time of sending and are subject to a 14-Day payment cycle. Should payment not be received within those 14 days, any overdue and unpaid balances below $1000 will be charged a fixed fee of $50. Invoices over $1000 will incur simple interest at a rate of 5% per month, charged daily until the balance is paid.
8.3 The Customer shall pay all accounts in full and not exercise any rights of set-off or counter-claim against invoices submitted by the Company.
8.4 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Company from and against all of the Company’s costs and disbursements including on a solicitor and own client basis and in addition all of the Company’s nominees’ costs of collection.
8.5 The Customer’s power of sale or right to use such Products shall immediately cease if an Administrative Receiver is appointed over all or any part of its assets or if it is adjudicated bankrupt or enters into liquidation whether compulsory or voluntary, or if the Customer makes an arrangement with its creditors, or generally becomes unable to pay its debts as and when they fall due for payment.
8.6 On termination of the Customer’s power of sale or right to use the Products the Customer will immediately hold the Products to the order of the Company.
8.7 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Products which remain the property of the Company, but if the Customer does so, all monies owing by the Customer to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.
8.8 The Company reserves the right to cease supplies of Products and/or Services to the Customer at any time. On such cessation of supplies, the Company reserves the right to withdraw any credit facility such that the whole of the Customer’s account becomes due for payment forthwith.
9.1 Notwithstanding despatch and the passing of risk in any and all Products to the Customer pursuant to clause 3.4, or any other provision of these Conditions, title to the Products shall not pass to the Customer until the Company has received in cash or cleared funds payment in full of the Price of the Products and/or Services and all of the Products and/or Services agreed to be sold by the Company to the Customer for which payment is then due.
9.2 Until such time as the title to the Products passes to the Customer, the Customer shall hold the Products as the Company’s fiduciary agent and bailee and shall keep the Products separate from those of the Customer and third parties and properly stored, protected and insured and identified as the Company’s property. Until that time the Customer shall be entitled to resell or use the Products in the ordinary course of its business, but shall account to the Company for the proceeds of sale or otherwise of the Products, whether tangible or intangible including insurance proceeds, and shall keep all such proceeds separate from any monies or property of the Customer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
9.3 Nothing in the Conditions shall prohibit the Company’s right to issue proceedings to recover the Price, even where title to the Products has not yet been passed.
9.4 Until such time as the title to the Products passes to the Customer (and provided the Products are still in existence and have not been resold), the Company shall be entitled at any time to require the Customer to deliver up the Products to the Company and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or third party where the Company’s Products are stored and repossess the Company’s Products.
10. PROPRIETARY RIGHTS IN SOFTWARE PRODUCTS
10.1 The Customer hereby acknowledges that any proprietary rights in any Third-Party Software supplied hereunder including but not limited to any title or ownership rights, patent rights, copyrights and trade secret rights, shall at all times and for all purposes vest and remain vested in the Third Party Software owner.
10.2 The Customer hereby acknowledges that it is its sole responsibility to comply with any terms and conditions of license attaching to Third Party Software supplied and delivered by the Company (including if so required the execution and return of a Third-Party Software license). The Customer is hereby notified that failure to comply with such terms and conditions could result in the Customer being refused a software license or having the same revoked by the proprietary owner. The Customer further agrees to indemnify the Company in respect of any costs, charges or expenses
incurred by the Company following action by a Third-Party Software owner as a result of any breach by the Customer of such conditions
11.1 The Company warrants that it has good title to or license to supply all Products to the Customer.
11.2 The Company warrants that all Services will be provided with reasonable skill and care.
11.3 The Customer warrants that it has complied with the obligation in clause 6 to back up data and has insured against loss that may be suffered as a result of the performance of the Services and that it has obtained all permissions, consents and approvals required in clause 6.
11.4 If any part of the hardware Products should prove defective in materials or workmanship under normal operation or service, such Products will be repaired or replaced only in accordance with any warranty cover and terms provided by the manufacturer of the Products provided that no unauthorised modifications to the Product or to the system of which the Product forms part have taken place. The Company is not responsible for the cost of labour or other expenses incurred in repairing or replacing defective or non-conforming parts.
11.5 All software Products supplied hereunder are supplied “as is” and the sole obligation of the Company in connection with the supply of software Products is to use all reasonable endeavours to obtain and supply a corrected version from the manufacturer concerned in the event that any such software Product should fail to conform to its product description provided that the Customer notifies the Company of any such nonconformity within 14 days of the date of delivery of the applicable software Product.
11.6 If the Products are rejected by the Customer as not being in accordance with the Customer’s order pursuant to clause 11.4 or 11.5, the Company will only accept the return of such Products provided that it receives written notification thereof giving detailed reasons for rejection. The Company will not consider any claim for compensation, indemnity or refund until liability, if any, has been established or agreed with the manufacturer and where applicable the insurance company. Under no circumstances shall the invoiced Products be deducted or set off by the Customer until the Company has passed a corresponding credit note.
11.7 Except as specifically set out in this section 11, the Company disclaims and excludes all other warranties, whether express or implied, by statue or otherwise, including but not limited to the warranties of description, design, satisfactory quality and fitness for a particular purpose, or arising from any previous course of dealing, usage or trade practice.
12.1 Each party will hold the other’s Confidential Information in confidence at all times, will only use such information for the purposes of performing its obligations under the Contract and will not disclose, divulge or release the same to any person except to those of its employees, agents, advisors and sub-contractors as the Contract reasonably requires.
12.2 Confidential Information does not include information generally available to the public, information obtained or developed independently by either party without reference to the Confidential Information, or information legitimately obtained from third parties.
12.3 Each party will ensure that those of its employees, agents, advisors and sub-contractors who are involved in the Contract are made aware of the confidential nature of the Confidential Information and are under obligations of confidentiality similar to the obligations of this clause.
12.4 The obligations of confidentiality given in this clause shall survive after the termination of the Contract, howsoever terminated, for a period of 1 year.
12.5 It shall not be a breach of this clause to disclose Confidential Information which it is legally obliged to disclose provided that the legal obligation in question has not been brought about because of a wrongful act or omission of the party from whom disclosure is demanded and that such party, where permitted by law, informs the other party prior to disclosure.
13.1 Subject to clause 13.3, the Company’s entire liability to the Customer whether in contract, tort or otherwise flowing from any one event or series of events shall be limited to the extent of the cover provided by our commercial insurance policies.
13.2 The Company shall not be liable to the Customer for any of the following losses which may arise by reason of any breach of the terms and conditions or implied warranty, condition or other term, any representation or any duty of any kind imposed on the Company by operation of law:
14. EXPORT AND/OR RE-EXPORT LIMITATION
14.1 Having regard to the current statutory or other Australian government regulations in force from time to time and, in the case of Products manufactured in the United States of America, to the current export rules and regulations of the United States Department of Commerce in force from time to time and regardless of any disclosure made by the Customer to the Company of an ultimate destination for any Products, the Customer will not export or re-export directly any Products without first obtaining all such written consents or authorisations as may be required by any applicable government regulations.
15.1 Upon breach of the Conditions by the Customer, the Company reserves the right to withhold Products and/or Services from the Customer and may invalidate any agreements for future supply, notwithstanding any contracts entered into by the Customer with a third party.
16.1 Whilst the Contract is ongoing and for 6 months after its termination, each party agrees that it will not, without the other’s consent, offer employment to any person employed by the other in a senior or technical capacity at any time in the preceding six months, unless the offer of employment can be demonstrated to have resulted from a response by the employee to a public advertisement or a direct and unsolicited approach by the employee.
16.2 The parties pre-estimate that the loss that would be caused by a breach of this clause can be expressed as an amount equal to 45% of that
employee’s gross annual salary immediately prior to his departure. This estimate is comprised of an estimate of an amount equivalent to 20% of gross annual salary in respect of the average recruitment cost of the Company’s employees and 25% of gross annual salary being the estimated average induction cost of new employees. It is agreed that amount comprises liquidated damages and the parties agree that such amount is reasonable and payable to the other party on demand in the event of breach of this clause.
17.1 the Company shall be entitled to terminate the Contract or suspend any further provision of Products and/or Services under the Contract without any liability to the Company if the Customer:
If the Products and/or Services have been provided but not paid for the Price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
18.1 The Customer shall not assign any of its rights under the Contact without the Company’s prior written consent.
19.1 The headings in these Conditions are for ease of reference only and shall not affect their interpretation or construction.
19.2 In the event of any of these Conditions or any part of them being judged illegal or unenforceable for any reason, the continuation in full force and effect of the remainder of them shall not be prejudiced.
19.3 Neither party shall be liable to the other for any delay or failure to perform its obligations hereunder where such a delay or failure results from circumstances due to any event beyond the reasonable control of either party including but not limited any of the following: an Act of God, extreme adverse weather conditions, flood, lightning or fire, industrial actions or lock-outs, the act or omission of Government or other competent authority, war, military operation, riot, terrorist incident.
19.4 Any indulgence by the Company to the Customer or any waiver by the Company of its rights, either under the Conditions or otherwise, in respect of a transaction or series of transactions shall not be deemed to be a waiver of the Company’s rights in respect of any further transactions nor to be an agreement to confer the same indulgence in respect of any subsequent transactions.
19.5 These Conditions and any Contract shall be governed and construed in accordance with the laws of South Australia.
19.6 Any notice under this Contract shall be effective if sent by e-mail to the last known e-mail address of the Customer or Company and shall be effective on the next business day after the date of transmission.
19.7 The Customer acknowledges the fact that it has had the opportunity to read these Conditions prior to ordering from the Company and in proceeding warrants its belief that the Contract is reasonable in all of its terms.
